Discussion forum on DSI policy options

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Discussion forum on policy options for digital sequence information (DSI) on genetic resources.

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1. Policy options categories and other options (April 21-May 2) [#2046]
A proposed classification of different policy options was presented during the third DSI webinar. For more details refer to the Policy Options Summary Paper attached.  Figure 1 of the attached document provides a summary of the categories of policy options.

Questions to guide the discussion

1. What are your views on the policy option categories presented in webinar 3? 

2. Are there any policy options missing?
(edited on 2021-04-15 16:00 UTC by Mr. Matthew DIAS)
posted on 2021-04-15 16:00 UTC by Mr. Matthew DIAS, Afghanistan
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2047]
I am pleased to participate in this online discussion. My name is Joseph Henry Vogel. I have participated in ABS discussions ever since Cyril de Klemm chaired a session about the CBD at the 4th World Congress of the IUCN, held in February 1992 (Caracas, Venezuela). He bemoaned that only a dozen souls were in attendance and spoke of open access and a global fund (https://s3-us-west-2.amazonaws.com/tandfbis/rt-files/docs/9781138801943_foreword.pdf).

Over the last three decades, I have worked out the application of the economics of information to ABS in books, articles, Reports and OP-EDs. Whenever possible, my co-authors and I have chosen open-access venues, which also publish in translation (usually, Spanish, Portuguese and French, but occasionally Arabic, Chinese and Russian). I have also served as a technical advisor on the Ecuadorian delegation for COPII, III & IX and as an observer in another half dozen COPs, where I have talked in side-events.

Recognizing that not enough delegates attend the side-events or read the books, etc., I changed tactics after COPXIV. To move the discussion forward, I decided to focus on peer reviews of the studies commissioned on DSI, as well as those on transboundary resources, the GMBSM and the post-2020 Global Biodiversity Framework. My reviews eschew the templates provided by the UN Secretariat and offer criticism in narrative form. So, I welcome the opportunity to persevere here as we enter the fourth decade of unresolved ABS. Economics could be a wellspring of "Criteria for Assessing DSI Policy Options".

I will argue that the anthropologists, biologists and lawyers engaged in policy options have misinterpreted the economics and missed interpretations afforded by economists. I hasten to add that economics is difficult even for economists. The problem becomes acute when non-economists grapple with the elusive concept of value. To borrow a phrase from the Nobel physicist Wolfgang Pauli, some mistakes are so wrong that they are not even wrong. "Das ist nicht nur nicht richtig, es ist nicht einmal falsch!" In addressing such mistakes, the Conference of the Parties must acknowledge the fallacy of sunk costs. Will the expected gains from ABS be greater than the expected expenditures? Over the course of this online discussion, I will elaborate how the answer turns wholly on whether "economic rents" will be a criterion for fairness and equity in benefit sharing.

But first there is an issue of housekeeping: the categories of policy options.

A nomenclature exists in the "1st Global Dialogue on Digital Sequence Information on Genetic Resources" (6-8 November 2019 Pretoria, South Africa), which was a substantial endeavor. The Report, available in English and French, identifies and diagrams five categories:

Option #1 Nagoya-Bilateral;
Option #2 Open access-Bilateral;
Option #3 Open access-Multilateral BS;
Option #4 (Open access) Subscription fees / levies;
Option #5 Free Access - Capacity Development (pp. 16-20).

The nomenclature of the Report is a precedent which has not been respected in the literature or even in the intralink of this Webinar, which is titled "Policy options for ABS and DSI" and dated April 2021.

Consider Option #4 "Subscription fees / levies" of the 1st Global Dialogue: the WiLDSI Project treats it as Option #1; the Morgera et al Study, as Option #5; and "Policy Options for ABS and DSI" as Option #3.2. Similarly confusing, some stakeholders are calling proposals by names that do not match those given by their authors. For example, the policy option advanced by myself and co-authors is "Bounded Openness over Natural Information" and not "Bounded Openness over DSI" or "Bounded Openness over Access and Benefit Sharing". In a forthcoming Report for The ABS Capacity Development Initiative, we duly classify "Bounded Openness over Natural Information" as Option #3 of the 1st Global Dialogue and not as a "Compensatory Liability Regime", which is Option #6 of the Morgera et al Study.

To avoid equivocation, the categories in the 1st Global Dialogue should be respected in this online discussion. How do we cite literature that has not so conformed? I suggest that the name of the author and the number of the alternative nomenclature be followed by the bracketed number of the 1st Global Dialogue. Say we wish to discuss the option that the WiLDSI Project proposes for "Subscription fees / levies", then we should cite the proposal as WiLDSI#1 [Pretoria #4]. Options not discussed in Pretoria could be given a sequential number. Thus the Blockchain model of the WiLDSI Project would be WiLDSI#5 [post-Pretoria #6]. 

The famed naturalist E.O. Wilson is fond of citing a Chinese saying: "the first step to wisdom is getting things by their right names”  (Consilience 1998, p. 4). Let's take that first step now.

(cc) 2021. Joseph Henry Vogel
posted on 2021-04-21 14:17 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2047 RE: 1. Policy options categories and other options (April 21-May 2) [#2048]
Dear Mr. Vogel,
it would be interesting for me (and probably others) to get references to your publications. Maybe you could post them here?
posted on 2021-04-21 14:31 UTC by Edmund Schiller, Collections/Museums
This is a reply to 2048 RE: 1. Policy options categories and other options (April 21-May 2) [#2050]
Thank you for your interest in my work. Before economics, my first degree was in chemistry. My approach to ABS is admittedly reductionist. The embedded link in the first paragraph of my introductory comment is the Foreword I wrote for "Genetic Resources as Natural Information: Implications for the Convention on Biological Diversity and Nagoya Protocol" (Routledge 2015, also open access in Spanish). The Foreword traces the origins of "Bounded Openness over Natural Information" as the proposed modality for ABS.

Over the course of this online discussion, I will provide open-access links to specific works that seem most on topic. I do not want to overwhelm the forum now or in any one posting. However, a good place to start is a trilogy of OP-EDS that appeared in 2018 in the news bulletin IP-Watch from Switzerland. The first is available in English, French, Portuguese, Russian and Spanish. The other two, in English and Spanish. I copy them below.

(cc) 2021. Joseph Henry Vogel


“Ending Unauthorised Access to Genetic Resources (aka Biopiracy): Bounded Openness”. Joseph Henry Vogel, Manuel Ruiz Muller, Klaus Angerer, Omar Oduardo-Sierra. Inside Views. Intellectual Property Watch / International IP Policy News. 6 April 2018. 

English: http://www.ip-watch.org/2018/04/06/ending-unauthorised-access-genetic-resources-aka-biopiracy-bounded-openness/
French: http://www.ip-watch.org/2018/06/12/en-finir-avec-lacces-aux-ressources-genetiques-sans-autorisation-cest-dire-avec-la-biopiraterie-louverture-limitee/
Portuguese: http://www.ip-watch.org/2018/06/12/pondo-termo-ao-acesso-nao-autorizado-aos-recursos-geneticos-quer-dizer-biopirataria-acesso-aberto-limitado/
Russian: http://www.ip-watch.org/2018/06/19/прекратить-неавторизованный-доступ/
Spanish: http://www.ip-watch.org/2018/06/06/terminando-con-el-acceso-no-autorizado-los-recursos-geneticos-biopirateria-apertura-delimitada/

“Not Just A Matter Of Matter: ‘The Way Forward’ For The UNCBD, NP And Half-Earth” Joseph Henry Vogel. Inside Views. Intellectual Property Watch / International IP Policy News. 7 September 2018.
English: http://www.ip-watch.org/2018/09/07/not-just-matter-matter-way-forward-uncbd-np-half-earth/
Spanish: http://www.ip-watch.org/2018/11/05/no-se-trata-solo-de-lo-material-el-camino-seguir-para-el-cdb-de-la-onu-el-pn-y-half-earth-mitad-de-la-tierra/

“The Global Multilateral Benefit-sharing Mechanism: Where will be the Bretton Woods of the 21st Century?” Joseph Henry Vogel. Inside Views. Intellectual Property Watch / International IP Policy News. 5 October 2018.
English: http://www.ip-watch.org/2018/10/05/global-multilateral-benefit-sharing-mechanism-will-bretton-woods-21st-century/
Spanish: http://www.ip-watch.org/2018/11/05/el-mecanismo-mundial-multilateral-de-participacion-en-los-beneficios-donde-sera-el-bretton-woods-del-siglo-xxi/
(edited on 2021-04-21 18:09 UTC by Mr. Joseph Henry Vogel)
posted on 2021-04-21 18:04 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2062]
Background
I assume that most if not all of the parties in this process agree on the following:
1. Sustainable Global Benefit Sharing on Genetic Resources is directly dependent on the maintenance of biodiversity.
2.  Gain of knowledge and information derived from genetic material offers mutual benefits at it´s best if access to this common knowledge is not restricted/delayed/blocked/limited by bi- or multilateral regulations.
Consequences
1. Any regulatory framework needs to be as low and as simple as possible to support maintenance of and acquisition of information on genetic material (including the NP).
2. Agreements / Conventions on Biological Diversity should be based on the open access to genetic material and information derived from, which would not need any further bilateral regulation.
3. Regulations on Intellectual Property Rights should be arranged / modified to feed public funds for Capacity Building Projects with respect to Research and Innovation to foster competitiveness in technical developments based on genetic resources and information obtained from (as formulated in option 4).   

The options presented here should be considered under these perspectives.

Ad Option 1: negative
Reasons: overloaded and complicated bureaucracy reducing and/or blocking public research on genetic resources.
Ad Option 2: Mutually agreed terms should be included in the general agreement, not at state of particular use (access).
Ad Option 3:
Payment / monetary benefit sharing should start at the level of technical development / commercial use / protection of intellectual property – e.g. royalty fees into fund for capacity building  (consequence 3)
Ad Option 4: good option for both genetic material and information derived from.

Conclusion: In order to agree on DSI regulations the agreed terms on access and use of genetic material should be reformulated / amended.
posted on 2021-04-28 08:52 UTC by PD Dr Alois Palmetshofer, University of Wuerzburg
This is a reply to 2062 RE: 1. Policy options categories and other options (April 21-May 2) [#2066]
Dear colleagues,
I´d like to provide a general comment which I think cuts across the different discussion threads.  The comment by Professor Palmetshofer [#2062] got me thinking, and his final sentence is highly relevant and timely. 
From my read of the very interesting comments, it seems there are two distinct dimensions in the discussion moving in parallel at this moment: one, is the emphasis on databases and their operation, and the second, attention a broader ABS/”DSI” discussion – where databases certainly play a role.  But both are inseparable. A policy or regulatory option applicable to databases needs to be compatible with the selected ABS option. In my mind, it seems clear the current ABS approach, where bilateralism plays a prominent role, is inapplicable and unresponsive to the current scientific and technological needs of biodiversity research in general. I believe we need to construct a new fair, equitable and efficient ABS framework which defines, among others, the rules and principles applicable to “information” as key subject matter (if we think about biotech and its ramifications) and operational tools such as databases. If we cannot agree on the broader framework, we seem to be trying to forcefully “fit” a piece of the puzzle -rules for databases- which are that: a piece, albeit important,  of a broader construct. If we evade looking at the current existing ABS framework or “model”, simply because we are too far down the line (25 years of ABS ...) and only focus surgically on DSI/databases, we lose the chance of constructing an efficient and workable ABS model. Just like the dozens or more  studies developed over the years looking at “successful ABS cases”, this inductive type reasoning prevents us from giving meaning to “fairness and equity” which have seemed to mean over the years anything on the table or which is negotiated. “Bounded openness over natural information” seems to offer a different way at looking at ABS though economic reasoning, including a broad yet distinct and robust definition for the informational dimension of genetic resources which can withstand the passage of time and changes in interests regarding scope in ABS. If we do not consider rules for databases/DSI in the broader context of an efficient ABS model that logically and efficiently aligns incentives for conservation and realizations of the three CBD objectives, I am afraid we will continue dealing with fragile and counterproductive ABS. Simply concluding that if a model faciliates research, this will in turn support conservation (and become a "non monetary benefit"),  is not a robust alignment of incentives to support for conservation.
All, be safe.
posted on 2021-04-28 14:20 UTC by manuel muller, peruvian society for environmental law (SPDA)
This is a reply to 2062 RE: 1. Policy options categories and other options (April 21-May 2) [#2069]
I agree with Alois Palmetshofer who concludes that the "agreed terms on access and use of genetic material should be reformulated / amended" [#2062]. The framework nature of the NP allows for just such "reformulat[ion] / amend[ment]". Stare decisis has always been a fallacious argument for the bilateral approach to ABS.

My co-authors and I are in Version 3.0 of a “Legal Elements for the 'Global Multilateral Benefit- sharing Mechanism' as contemplated in the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization”. The proposed amendment will be published as Appendix VI in the extensive Report "Fairness, Equity and Efficiency for the Convention on Biological Diversity and the Nagoya Protocol: Analysis of a Rodent, a Snail, a Sponge and a Virus". (2021, forthcoming). Sociedad Peruana de Derecho Ambiental / Peruvian Society of Environmental Law. Eschborn, Germany: The ABS Capacity Development Initiative. http://www.abs-initiative.info/about-us/

As a preview, I extract two of the seven sections in the twenty-five article proposal:

Section 5. On the technical mechanism for the determination of the distribution of
natural information

Article 15.- The technical mechanism of the determination of the distribution of natural information is designed to identify, as precisely as possible, the country(ies) of origin of the species from which said information could have been extracted. Identification includes the geography of the habitats, deploying the technology available at the time of commercial success to calculate said distribution, so that the percentage of benefits will be shared fairly and equitably.
Article 16.- In cases where the expected costs to ascertain the distribution of species is greater than the monetary benefits to be shared, the accumulated benefits up to the expiry of the granted intellectual property, will be used to defray the costs for developing and maintaining the capacities and infrastructure of the technical mechanism for the determination of the distribution of the natural information.
Article 17.- The technical mechanism for the determination of the geographic distribution of natural information comprises those international institutions of recognized standing, working in activities of taxonomy, monitoring biodiversity, patterns of distribution, developing models of speciation and phylogeny and other activities to understand how biodiversity is distributed.
Article 18. Benefit sharing for marine species will be distributed among Parties which reduce drivers beyond  existing commitments. To level the playing field in the decision to utilize marine or terrestrial genetic resources, the conditions and percentages negotiated for terrestrial species will apply to marine species.

Section 7. On the fund for sharing the benefits from the utilization of natural information
Article 23. The Parties will establish an International Fund of Sharing and Distribution of the Benefits Derived from the Utilization of Natural Information.
Article 24.- The International Fund will be constituted as an escrow, either integrated or annexed to already existing international funds to distribute the monetary benefits in accordance with that established by the technical mechanism for the determination of the distribution of natural information.
Article 25.  Ex situ collections will participate as a group in the sharing of  benefits arising from utilization of accessions.  The group will consist of those collections for which the accession pre-dates ratification of the CBD and contains the natural information utilized. The technical mechanism will weigh the group as equivalent to the geographic area  sufficient for one "minimum viable population" .

(cc) 2021. Joseph Henry Vogel.
posted on 2021-04-29 04:01 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2069 RE: 1. Policy options categories and other options (April 21-May 2) [#2070]
Ad #2064: C Lyal mentions Functions on benefit sharing (BS) by use of DSI: The early point outlined appears as inappropriate for monetary BS. Basic research activities (which are to a major part funded by the public) need to be fully exempt from any monetary obligations which would feed into any International Fund. Basic research provides non-monetary benefits with all the consequences including the FAIR principle (#2061).
Ad #2069: JH Vogel
Cited Arts 15, 16 (technical mechanism for the determination of the distribution of
natural information) – avoid costs to deeply trace information on generation, flow and use to “exactly” distribute potential monetary BS at a much later time point. Instead, ascertain the obligation of each party who is willing to access the databases to provide open access to basic research activities on behalf of “biodiversity research” including both the identification of species and/or information derived from. Again, the monetary BS needs to be fed at a later stage i.e. at the point of commercial use purposes. Exact allocation of benefits according to access in databases could be an illusion for most if not all developments with “commercial success”. Instead, try to negotiate the procedure how to distribute the “Benefit fund” by defining scaled funding criteria. Those may consider the site(s) of identification, the size of areas with high biodiversity (graded), technical developmental state of area, societal conditions endangering biodiversity etc etc).
posted on 2021-04-29 11:12 UTC by PD Dr Alois Palmetshofer, University of Wuerzburg
This is a reply to 2070 RE: 1. Policy options categories and other options (April 21-May 2) [#2071]
Efficiency means that the modality of "bounded openness over natural information" be as simple as possible but no simpler, to borrow a famous expression from Einstein. Any research that does not result in a limited-in-time monopoly intellectual property right (IPR) would not incur an ABS obligation. This refers not just to basic research but also to commercial applications for which the IPR was not granted or sought The value added  through research is the benefit which diffuses globally through competition. Because the marginal cost of information is negligible, low prices result.

The databases should be open access, as described by Chris Lyal [#2064].  Taxonomy is an international public good which is under-financed nationally, due in part to "free-riding". Bounded openness would be a source of finance when the natural information in commercially successful IPR-protected goods is ubiquitous.

(cc) 2021. Joseph Henry Vogel.
posted on 2021-04-29 14:37 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2075]
The options outlined in Webinar 3 and summarized in the pdf-document attached to the introduction of this forum thread describe not only a continuum along the axes of access and benefit sharing. They are, at the same time, set into a context answering if “genetic resources” (GR) and “digital sequence information” (DSI) are or should be identical (cp. notes to option 1 and 5 in fig. 1 of the linked pdf above summarizing webinar 3). I will follow JH Vogel’s precedent and contribute to the question of GR, DSI and “information”.

Some background to my perspective: I am an evolutionary biologist and while having followed the developments related to the “Nagoya Protocol” from afar for years, I only started to be more involved in discussions about ABS, GR and DSI with the current series of webinars organized by the SCBD. Thus, I am looking at the current situation without any extensive pre-existing history, though also might miss important factors and consequences.

The policy option, which I see fulfilling the criteria of the last webinar (webinar 4) best, is one of open access coupled with multilateral benefit sharing, distributing returns from IPR-protected commercialization. The concept of “bounded openness”, proposed by JH Vogel et al., seems to resonate well with my thoughts.

I am still puzzled by the distinction made between GR and DSI. Several colleagues explained that the definitions of GR and DSI, and their differentiation, in the context of the CBD and ABS have nothing to do with the natural sciences (and logic). They are legal constructs. While domain-specific definitions are completely valid and practical, this leaves me as biologist engaged at the intersection to policy with the difficulty to finding arguments that fit the definitions of both domains. Without sufficient insight into the legal framework, thus, my question simply is if the legal distinction between GR and DSI will hold up under the tensions and challenges of the current global crises and provides the required robust and resilient foundation for solutions.

Starting out from a background quite different to JH Vogel’s, I too would like to argue that it might be more productive and resilient for the CBD post-2020 GBF and Nagoya Protocol long-term implementations to abandon material GR and “disembodied” DSI in favor of “information”. Everything that makes GR and DSI interesting and valuable is (extra) information that is associated with them.

Should one artificially synthesize 1 kg of DNA based on some algorithm producing random sequences, this material would be GR in the essence of its meaning. Yet, this material has no meaning at all. Genetic matter, that is GR, gains its meaning and value through its association with additional information (eg. phenotype and thus species information, environment, geographic origin, etc.).

Similarly, a single DNA-sequence or even full genome in a database (a representative of “DSI”) without any additional information is hardly of interest, even to genomicists. Only in comparison with other genomes or DNA-sequences, for which we know associated information (eg. species of origin, gene annotations, etc.), can we gain information from a genome. Furthermore, the value of a DSI-record in eg. the INSDC databases, foremost lies in its associated metadata. Without knowing anything about the organism from which the DNA-sequence or protein was extracted, the gene annotation (eg. “ITS") or a contact address for further inquiries, a DNA-record generally is of no use.

GR and DSI gain their usefulness through the information that is associated with them. Biologically this makes sense, after all, DNA-molecules (genetic matter) are the foundation of transmitting information from one generation to the next for most of life on Earth. Everything else, e.g. proteins, metabolic pathways, blue feathers, undulating cries in the night, C4 carbon fixation, etc., is phenotype, an expression of this information. One can even argue that gene annotations within genomes are phenotypes, too.

As humanity, researchers and users alike, we are interested in this associated information (“Its shape tells me, it’s an apple. This means, I can eat it. And apples from the neighbor to the right taste better than the ones from the neighbor to the left”…). Both, GR and DSI are just carriers for such information.

My perspective on information might correspond with what JH Vogel defined as “natural information”.
posted on 2021-04-30 12:20 UTC by Jutta Buschbom, Statistical Genetics
This is a reply to 2075 RE: 1. Policy options categories and other options (April 21-May 2) [#2078]
Building on my previous comment #2075: Why am I making such a “fuss” about the fine print related to GR and DSI? Distinguishing between GR and DSI, with, for example, GR continuing to be regulated and DSI potentially becoming open access, will result in increasing legal and financial threats to the functioning of scientific collections and, thus, basic and applied biodiversity research, as well as, conservation applications.

The key charge and goal of scientific collections of natural history specimens is to act as repositories of physical specimens (GR) and services associated with them. Besides managing physical specimens, these services increasingly include the development of integrated information and data (e.g. DSI). Thereby, scientific collections, no matter if public or private, perform public services to society.

Scientific collections’ tradition is to follow the principle of FAIRness (finable, accessible, interoperable and reusable). To enhance long-term reusability and usefulness, collections from the beginning have connected specimens with additional information, eg. on specimen labels. Over the past decades, the collections community has been one of the drivers of open and FAIR integrated and extended data infrastructures (cp. GBIF). Currently, developments in this area are rapidly advancing.

Due to the legal differentiation between GR and DSI, scientific collections find themselves in a situation, in which they maintain two closely entwined sets of information with different legal requirements (associated with GR and DSI, respectively). Caution suggests to keep both datasets separate and to treat them differently. However, collections’ FAIR approach and the advanced development of powerful, globally accessible data infrastructures promote the integration of both sets of information. Furthermore, only data integration provides the essential services and information for conservation, research, commercial R&D and society in general. Yet, it leaves scientific collections as one of the main origins of high-quality biodiversity data increasingly vulnerable.

Consider a collection submitting its digitized specimen information to an aggregator in the good faith that all specimens were legally collected and exported. Some time/decades later, due to integration with additional information it becomes clear that some specimens are of illegal provenance. The past years have shown that such cases are realistic and occurring. Even if the collector(s) are still alive, the legal, public relation and financial consequences are most severe for the collection. This undermines the core mission of collections: to accept physical specimens and their associated data, preserve them for future generations and provide open, FAIR services to society.

Thus, for the continued functioning of scientific collections as fundamental institutions and infrastructures of basic biodiversity science and research, it seems important that GR is not treated differently from DSI or any other information about a specimen. My current understanding is that a transition to "information” as basis of legal considerations can also be a solution to the contradictory situation, in which scientific collections find themselves currently.
posted on 2021-04-30 14:19 UTC by Jutta Buschbom, Statistical Genetics
This is a reply to 2075 RE: 1. Policy options categories and other options (April 21-May 2) [#2079]
Thank you for your posting [#2075]. Your impressions to "bounded openness over natural information" remind me of the 2nd International Conference of iBOL (Mexico City 2009) (for links see [#2065]). In the Q&A to follow my presentation, Paul Hebert, Chair of the Board and later recipient of the Midori Prize, stood up. He turned to the audience and said effusively "It's so logical". I quote him not to be self-congratulatory---that's not the way I was raised--- but to emphasize the pent-up demand for "bounded openness". Nevertheless, lawyers outnumber the scientists in the ABS discussion. As the lone economist, I often feel like a Moabite. Nested dominance hierarchies are palpable. Lawyers rule. Nagoya is a boom. Material Transfer Agreements will be juicy.

Nobel Economist Joseph E. Stiglitz hit the nail on the head when he wrote "For lawyers, transaction costs are a benefit, because they are a source of their income".

"ECONOMIC FOUNDATIONS OF INTELLECTUAL PROPERTY RIGHTS" Duke Law Journal 2008 Vol. 57:1693, 40. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1362&context=dlj
posted on 2021-04-30 15:04 UTC by Mr. Joseph Henry Vogel, University of Puerto Rico-Rio Piedras
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2080]
1. Policy option categories presented in webinar 3
I found it useful to have a reference document that clearly and conveniently maps and groups together the options which emerge from the literature. The proposed categories provide a useful shorthand to facilitate/standardise discussions in a manner that facilitates "comparing apples with apples". I also found the criteria/filters presented in the columns along side the options to be a valuable contribution as it helps help compare the options at a glance. Overall the SCBD efforts are commendable for helping to bring some order to the chaos.

2. Additional Policy Options
(a) Should broader Resource Mobilization initiatives that involve payments into a multilateral fund also be represented or acknowledged as potentially having a bearing on the DSI policy options under consideration?
Context: Option 3.2 is characterized by payments into a multilateral fund in which benefit sharing is not linked directly to DSI data (no tracing required). The payment triggers suggested appear intrinsically linked to the use of DSI and innovative financial tools (e.g. biodiversity bonds) and marketing approaches (label/badge/certification) are suggested in the context of "informing options for DSI". These latter options (biodiversity bonds, labels) have potential to go beyond merely informing options for DSI and to contribute to a RM strategy for the GBF more broadly. For example, if a RM mechanism involving a multilateral fund were to be implemented (e.g. a 'penny in the dollar' biodiversity user charge as suggested by Pierre du Plessis in a WIPO webinar earlier this year, as per link below) this would likely have a bearing on any DSI policy option involving a multilateral fund (e.g. make it redundant or undesirable).
https://www.wipo.int/edocs/mdocs/tk/en/wipo_iptk_ge_21/wipo_iptk_ge_21_presentation_1du_plessis.pdf (slide 14).

(b) Should the policy options include a multilateral and universal (or harmonized or interdisciplinary) policy option?
Context: The SCBD paper that accompanied the 4th webinar notes "the linking across biodiversity regimes and international fora" as one of the  key criteria came up in several papers on DSI. It seems that a multilateral and universal policy option could be an option that merits consideration in of itself.

*Affiliation appears as "Academia" in the post. This should read "Leibniz-Institute DSMZ". Profile has been updated accordingly.
(edited on 2021-04-30 15:50 UTC by Rodrigo Sara)
posted on 2021-04-30 15:41 UTC by Rodrigo Sara, Leibniz Institute DSMZ
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2086]
[This post is submitted on behalf of the USA Nagoya Protocol Action Group (USANPAG), a group of scientific researchers and biological collections managers who represent national and international scientific societies and inform membership about requirements of the Nagoya Protocol.  We submit these comments and views to this discussion forum as concerned individuals and citizens, and do not claim to represent the opinions, views, or policies of the organizations and institutions where we work or with which we formally affiliate.]

The USANPAG supports the idea that genetic resources, including data and knowledge, should be shared in a fair and equitable way. While we welcome and work towards improvements to existing data sharing practices, we oppose any restriction or control on access to and/or use of DSI. We view efforts to restrict or control their access and/or use as both unacceptable and a direct threat to research and development, food security, and public health at global scale. This view has already been expressed by several others in this discussion forum.

We are concerned that it is not possible to adequately assess the proposed policy option categories without clarity on how a proposed expansion of ABS to DSI under each of these options would be implemented in practice.  Deciding international policy before a consensus on what DSI is, how the policy would be implemented, and without properly understanding the impacts of the proposed policy would be irresponsible.  Doing so could significantly increase the risk that the implementation of the CBD and the Nagoya Protocol may prevent biodiversity conservation, disincentivize data sharing and collaboration among scientists, and curtail international collaboration.  

Because others have already commented on the perceived merits of each of the proposed policy options, we share some abbreviated comments regarding each option below:

*Option 0 - Status quo, should remain the default until Parties explore how each of the policy measures might be implemented, and identify the implications of each policy with that understanding. 

*Option 1 and Option 2.1 - These options are not feasible for scientific researchers. If utilizing DSI derived from international sources and publishing related scientific findings requires separate bilateral agreement to proceed and/or comply with multiple different ABS systems, scientists across the globe will be deterred from engaging in international collaboration, publication, and innovation. To avoid personal and professional liabilities and/or spending large amounts of time trying to navigate the domestic frameworks of provider countries, scientists will be disincentivized from conducting work that relies on the use of DSI from Nagoya Protocol parties.

*Option 2.2 - This option may be worth further consideration, though implementation will be challenging.  [We propose questions about the implementation of this option in the thread in response to forum topic 2, many of which are linked to the challenge of a proposed policy option requiring “buy-in” from or cooperation with independent third parties (e.g., databases) and/or changes to domestic law.]

*Option 3 - This option is also not feasible. Payment to access DSI would restrict open access and hinder scientific progress. Further, this option (like Option 2.2 above) also requires the cooperation or “buy-in” of independent third parties (e.g., databases), which could be a significant implementation challenge. [We propose questions about implementation in response to forum topic 2].

*Option 4-  We support further consideration of this policy option.  Further, we welcome opportunities to provide proposals for mechanisms that may be utilized to facilitate capacity building for developing country scientists to access and use DSI.

*Option 5 - We support this policy option as DSI is not equivalent to physical biological material in terms of both use and benefit.  Access to DSI should be free and not regulated under any bilateral model as part of Prior Informed Consent (PIC) and/or Mutually Agreed Terms (MAT).

**One additional policy option** that could be beneficial could be a variation of  “Option 2.2” that explicitly outlines the criteria associated with determining whether compulsory payments into a Global Fund are required. If such criteria are characteristic of products and IPRs, which are associated with commercial use, this would provide an exemption for DSI used for non-commercial purposes, such as scientific research that contributes to biodiversity conservation and enables response to public health issues.
posted on 2021-04-30 18:22 UTC by Jyotsna Pandey, USA Nagoya Protocol Action Group, American Institute of Biological Sciences
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2093]
I am Elpidio V. Peria, a practising lawyer based in Gen. Santos City, Philippines advising IGOs and NGOs in Philippines and SEAsia on general CBD issues and others.  My comments are as follows:

1. On policy options in webinar 3

If one cuts through the essence of these options, the only option that should be merit further discussion  is option 1, full integration with the CBD and Nagoya Protocol, since the other options, from 2 to 5, can just be considered modalities in the implementation of option 1. After all, as this discussion we're having  is under the CBD and Nagoya Protocol, all these options should be implementable using current text of these international instruments and their corresponding COP and COP-MOP Decisions. Remember, OEWG Co-Chair Basile van Havre reminding us in Webinar 3 that we should be looking at practical options while CBD Secretariat's Taukondjo Sem Shikongo reminded us that all these options may be combined anyway in their various iterations, esp when we consider how CBD Parties may implement it within their existing legal framework. If I may recall how Namibia raised this during COP 13 in Cancun, what was being asked then was a simple COP Decision recognising the idea or principle that there be fair and equitable sharing of benefits from the use of DSI. All the more reason the key option in webinar 3 is option 1, all other options can be subsumed under it, even option 5

2. Other possible policy options

Again, looking at the options already laid out in webinar 3, given that we are still at the scoping stage of the discussions, at least for those who are just looking at this for the first time, it may also be useful to include the following policy approaches in cracking wide-open this issue and I will explain why the suggested approach may be useful

a) human rights-based policy approach - the over-emphasis on access and ensuring that access is not impeded from the discussions in this forum overlooks the main rationale why we are even talking about this - the developing countries as well as the indigenous peoples and local communities feel that the utilization of these GRs via DSI leaves them out of any benefit-sharing scheme that may be due them, of course it may be possible to construe of situations where a claim for benefit-sharing may not be made but the important thing is to look at possible human rights principles particularly those based in ICESCR and instruments that may be tapped to fully implement any policy that realizes the fair and equitable benefit-sharing goal of any policy. The right to development of states also should be factored in as this will help shape a future policy that builds on capacity-building of UN Member States/CBD Parties to develop their technological infrastructure in the utilization of DSI for various applications.

b) sustainable development policy approach - having the SDGs and the Rio Declaration as foundational principles of any future DSI policy should enable the discussion to be broadened such that it will not reach only broad goals outlined in the 2030 SD Agenda, but also put into operation the various principles like the multistakeholdership approach, the common-but-differentiated-responsibilities principle, the participation of major groups, etc.

c. general equity principles via contractual approaches- back during the negotiations for the Nagoya Protocol, we discussed the principle of "benefit-sharing-for-every-use" principle which some CBD Parties strenuously opposed; if this kind of idea will be further picked up by legal scholars here, this may be something that will be embedded in each contract or MAT that was considered in various options; this option will be useful if no agreement can be reached and option 5 becomes the default. In fact, countries dealing with DSI should already be embedding these in their default MATs or MTAs.

d. algorithm approach - this may not be a clear policy approach but perhaps maybe a modality and am ready to be educated by the more knowledgeable here in this thread but since DSI involves  bits and bytes of data about GRs transmitted through cyberspace, perhaps we should just develop an algorithm such that any agreement that may be internationally agreed, like paying a unit price per every discrete unit of information used or something similar is just carried out through a piece of application program interface embedded in an institution's software that is using the DSI.

These are but suggestions for further broadening of perspectives, even if all these may eventually be found to be baseless or included already in other options, it's fine, but if something still remains that may be useful, then I may have, as David Cooper said in the webinar, sort of "moved the needle" on this issue.

Thank you for this opportunity.
posted on 2021-05-01 05:02 UTC by Mr. Elpidio Peria, Philippines
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2096]
I would like to commend the SCBD for consolidating various approaches used to determine policy options emerging from various studies and publications. This effort has created a platform for a focused discussion towards evaluation of possible innovative policy solutions to ensure sharing of benefits from the use of DSI.

However, some of the headlines/ captions of the policy options categories are silent on the context in which they are viewed. For example, one could think Policy option 1 is the only option that is viewed within the CBD & the Nagoya Protocol context, where access to genetic resources is viewed as similar to access to DSI.

I think policy options 2.1, 2.2, 3.1, 3.2 & 4 should also include the context in which they are viewed, in relation to the CBD and the Nagoya Protocol, including the relationship between genetic resource and the use of DSI, in this high level classification.
posted on 2021-05-01 14:17 UTC by Mrs. Lactitia Tshitwamulomoni, South Africa
This is a reply to 2096 RE: 1. Policy options categories and other options (April 21-May 2) [#2103]
As Basil van Havre described during Webinar 3 that the development of a well-fitting and long-term sustainable solution for ABS in the context of DSI is a recursive process. In this process definitions (for “DSI”) and policy options inform each other in a stepwise fashion.

In response to the informative, diverse and insightful posts and discussions over the past days, I would like to differentiate my initial view on “information”. My argument in post #2075 was that ABS for DSI should be developed based on information, since the main function of GR fundamentally is information. However, the context in which this holds, needs to be qualified.

At the very first step, during collection “in the field”, including e.g. natural ecosystems, agricultural contexts, as well as cultural contexts, genetic resources can be on one hand traditional knowledge, and thereby already start out as information. Alternatively, genetic resources are physical specimens (individual organisms, their parts, tissues, DNA-extracts, etc.), which are removed from their original geographic location.

In both cases, (inter-)national and subnational permits regulate geographically bound, analog access, that is, physical collection and subsequently potential export.

Except for traditional knowledge, GR in this phase of analog access is primarily defined by it being physical material (if no digital tools were used during collection to record collection metadata). However, as soon as GR has been removed from its location of origin, potentially has been exported, and is en-route or arrived at its national or international destination, the primary property and role of GR depends immediately on its use.

Its primary property remains physical matter, if it was removed for consumption (eg. fisheries, timber, bushmeat, ivory, medicines, stuffed trophies) or for the trade with live organisms (e.g. animals as exotic pets, plants as ornamentals). In these types of commercial cases, GR’s primary role remains one of physical material.

Alternatively, if a physical specimen in the initial phase of analog access was collected for commercial R&D or non-commercial basic and applied research purposes, the primary role of GR becomes one of information. At the latest, this transition happens with arrival at its site of storage and/or use, often a public, private or commercial scientific collection, research facility or e.g. a private collection of a specialist, which generally is integrated into an institutional collection later-on.

In sum, after the initial analog access phase, the key property of GR depends on its (intended) use.

My impression is that the topic of “ABS for DSI” completely lies within this second “use” phase following a phase of initial analog access. In this second, use- and reuse-oriented phase the key to GR is information in both cases, with regard to the use of traditional knowledge and physical specimen-based research.

The associated access to information (today mostly digitally) in this phase of usage is very different from the initial analog access. It should be treated differently on conceptual and pragmatic grounds. The reason for this is that (digital) information moves and behaves quite differently from physical material. This has been pointed out by JH Vogel and his reference to the theories of “information economics” and certainly more concepts exist in the social sciences, humanities and the ICT (Information, Communication & Technology) field. Most of us have practical experience with the distinct behavior of digital information compared to transfers of or based on physical materials in our interaction with social media.

In conclusion, my argument that GR should be treated as information needs to be qualified and is valid only in the second phase concerning the use of GR, and here in the case of its use for research and development in the widest sense (including e.g. breeding). I propose to distinguish initial, analog access from secondary (digital) access and re-use, which occur within the subsequent phase of overall use.

It might be that the current legal framework of the CBD and Nagoya Protocol were developed mainly with the first phase of initial analog access in mind and pertain (mostly?) to this situation. In contrast, the discussions about ABS for DSI consider the subsequent phase, specifically if it is characterized by processes of use and reuse for research and development. This second phase includes again forms of access. In this second phase access, use and benefits revolve around the information content of GR.
(edited on 2021-05-02 09:42 UTC by Jutta Buschbom)
posted on 2021-05-02 09:39 UTC by Jutta Buschbom, Statistical Genetics
This is a reply to 2062 RE: 1. Policy options categories and other options (April 21-May 2) [#2104]
Dear colleagues:
Greetings from Iran! I agree with the statement that: "Gain of knowledge and information derived from genetic material offers mutual benefits at it´s best if access to this common knowledge is not restricted/delayed/blocked/limited by bi- or multilateral regulations."
However, it is equally important and perhaps more important that "the Gain of knowledge and access to technology including biotechnology also offers mutual benefits at it´s best if access to this technologies is not restricted/delayed/blocked/limited by bi- or multilateral regulations." This has been fully addressed under articles 16 and 19 of the convention. Though access to germ plasm has already been granted by the adoption of the Nagoya protocol, there is no discussion how and when the owners of technologies are going to transfer technology including biotechnology in a fair manner. A compromise must be made between the owners of technology and the owners of germplasm including relevant DSI before it is too late. It is obvious that the developing countries wish to have share from the benefits of granting access to their germplasm and embodied natural information (DSI), but not at the price of "peanut"!  I do however agree that the benefit sharing should be based on each country's standard MAT when another party/person is at the stage of the commercialization of products or services derived from the access to germplasm/DSI.
Behzad Ghareyazie,
Professor, Genetics
CPB NFP, Islamic Republic of Iran
posted on 2021-05-02 10:07 UTC by Mr. Behzad Ghareyazie, Iran (Islamic Republic of)
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2110]
These comments are my own personal opinions and do not represent the institution or organization to which I belong.

Already, people all over the world have been receiving a lot of non-monetary benefit sharing, including developing countries, through the current methods. Non-monetary benefit sharing should be clarified or made visible. In addition, the implementation of each option is likely to create disincentives for non-monetary benefit sharing. These should be carefully considered. Although some case studies have already been reported, an exhaustive quantification of the impact of DSI on benefit sharing of genetic resources is desirable.

In addition, between Option 0 and the other options, Options 1 to 5, there are likely to be many more options that have not yet been considered. These should be clarified and further studied.


Further consideration should be given to option 4, capacity building.
An environment in which scientists in developing countries have easy access to DSI, and especially the promotion of education on research and development of genetic resources using DSI, especially bioinformatics methods, will enable more people around the world to receive the benefits of DSI.

Although the DSI-AHTEG has already discussed what DSI is, we need to agree on an operational definition  of DSI , and formal name.
posted on 2021-05-02 15:35 UTC by DR. Mutsuaki Suzuki, National Institute of Genetics
This is a reply to 2110 RE: 1. Policy options categories and other options (April 21-May 2) [#2111]
Dear colleagues,
I´ve been following the different threads in the discussions and, coming near to a close, there are a few points which stand out in my mind and I´d like to share:
1. From looking at all the criteria for assessing policy options suggested by the Secretariat, it seems a relatively straightforward exercise to compare what regulatory models might best respond – at this stage- to each criteria from a technical and economic perspective. I also think we should identify these models by their name, which makes it easier for analysis and following consistency and trajectories of ideas over time. 
2. There is a lesson to be learnt from the climate change community: they decided to change their approach to combating climate change through a wholly new international agreement (the Paris Agreement) which has to some extent changed the conversation along new lines and approaches - and we can also discuss elsewhere whether the Paris Agreement is enough. So, the biodiversity community is not tied to the letter of the CBD and ABS provisions eternally. The CBD is in essence, even though not expressed as such in its title, a “framework” convention. Parties can agree to change the ABS paradigm and shift the international ABS framework dramatically if need be. And “need” seems to be so …   
3. If we stick to “politics as the art of the possible,” we will only delay solutions and impact conservation. This is rather curious when we all agree -is my guess- and it is always vociferously demanded that policy should be informed by the best available science and technical inputs, which means transparently and openly vetting and deciding what technical option is best. It may be that circumstances and the “building back better” trend as expressed in dozens of declarations and manifestos, should inspire the biodiversity and ABS community to an ambitious change as well.
4. Avoiding the express reference to “economic rents” as part of an open discussion on ABS/DSI makes it almost impossible to anchor an economics of information argument. Economic rents are key in ABS and if they are ignored, exercises in projecting monetary benefits are simply futile and, at least for the bounded openness model, make its analysis impossible. There is a COP Decision calling for analysis or consideration of rents … (Decision IX/12, COP 9), which has been completely ignored over time. Echoing Paul´s comment (#2108), indeed, economics is not a magic wand, but we would all agree that the relevant economics (of information), has rarely been discussed and for the most part has been sidelined for the past decades in the ABS discussion. So, we haven’t really even looked at the discipline as a collective in any meaningful way. And we have 30 years of ABS in place.
5. ABS and in fact “DSI”/information have a history of almost 30 years (since D 391 of the Andean Community and EC 247 of The Philippines) and quite a few millions spent on case studies and reports addressing feasibility, implementation challenges, value or markets for GR, etc. etc. Do we really need yet another study (ies)?  I am sure we can thoroughly go through existing studies and literature and call upon existing expertise in all fields (particularly economics) to reason and find the meaningful evidence needed to support change and identify appropriate solutions. 
6. Whilst many commentators openly refer to a “multilateral approach or system” I also believe it is time to openly acknowledge that the GMBSM (art. 10 of the NP) is the opening we need for constructing new ABS altogether to replace existing frameworks – both internationally and nationally. In the case of the ITPGRFA, possible adjustments may be what is needed. But, certainly, national approaches to ABS would require change.   
7. I agree with my colleague Joseph H. Vogel that creating hybrids in order to satisfy all, only leads to second best solutions. Which might be the result of what is “politically feasible” and “practical” at a moment in time but does not solve the more fundamental problem of finding a solution which is useful and, at the very least, has a conceptual model and rationale one can invoke to back it up.  I also hear Paul´s comment on “placing all eggs in the same basket” (Oldham #2108). The “bounded openness over natural information” can accommodate this particular concern and maintain its basic principles intact.
8. I would finally like to commend the CBD Secretariat for its effort and openness to all inputs and points of view. 
This has been a great learning experience. I thank all participants for sharing their views.
Manuel
posted on 2021-05-02 15:51 UTC by manuel muller, peruvian society for environmental law (SPDA)
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2113]
Response from Elisa Morgera and Stephanie Switzer (Strathclyde Centre for Environmental Law and Governance)

Many thanks to the SCBD for its work in providing a really useful overview of the different policy approaches which have arisen in the literature on DSI. One issue we wanted to make clear is that that while our Legal Consultancy Report for the European Commission (Morgera, Switzer and Geelhoed, 2019) addressed all options, it recommended against some and in favour of others. This wasn't perhaps as clear in the SCBD's presentation as it could have been.


It would have been useful for the CBD Secretariat's presentation to have noted the significant convergence on a multilateral solution from a legal, technical and scientific perspective in the literature review, particularly as these conclusions were reached independently by various authors and on the basis of different criteria.

A multilateral solution would not need a treaty amendment, be that to the Nagoya Protocol or the CBD. The solution could be embodied in a COP decision under the CBD (due to its quasi-universal membership and broader legal framework) on the basis of the general rules of treaty interpretation.

The CBD Secretariat's presentation also did not clarify that in respect of its Option 4, ‘Enhanced technical and scientific cooperation’, in our report for the European Commission, what we proposed is not merely about capacity-building and has several key advantages for developing countries. The Legal Consultancy Report to the European Commission suggested, and similar ideas were supported also by the Technical Consultancy report, as well as by Amber Sholz, a global platform for dialogue and learning on DSI, that would:

·       approach the issues of DSI ‘from the side’, moving beyond the (false) dichotomy of monetary versus non-monetary benefits, as well as on definitions and the subject-matter scope of the CBD, in order to concentrate on dealing with the actual barriers to the realization of equity and fairness in benefit-sharing;

·       build upon and implement existing obligations and opportunities, notably on information-sharing, capacity-building, technology transfer and scientific cooperation as forms of benefit-sharing;

·       allow for more strategic responses and matching of capacity-building needs and opportunities, benefitting from a global overview of where needs, capacities and opportunities are;

·       give more voice to the Global South in identifying priority capacity-building needs, which is the main game-changer in terms of benefit-sharing. On that basis, the international community, via the global platform for dialogue and learning, would co-develop solutions to DSI and benefit-sharing,

·       provide a space for learning so that solutions are based on lived experiences of what approaches are working and why, and which are not;

·       allow for direct exchange with natural and social scientists, to co-develop solutions/adjustments to the multilateral system on the basis of evolving scientific practices and good practices in international scientific cooperation.


In summation, our proposed multilateral platform for benefit-sharing would adopt a principled approach and be underpinned by a concern for cooperation. It would aim to facilitate and broker scientific cooperation and capacity building while at the same time attempting to provide space for dialogue between the multiplicities of actors involved in the use of DSI, with a view to producing a more effective response to their needs. The proposed multilateral platform could also facilitate the co-production of ‘solutions’ to DSI, with such co-produced solutions encompassing the views and needs of the range of communities involved.
posted on 2021-05-02 16:37 UTC by Dr Stephanie Switzer, University of Strathclyde
This is a reply to 2046 RE: 1. Policy options categories and other options (April 21-May 2) [#2114]
These comments are in my personal capacity only. 

Thank you very much to the Secretariat for organizing this forum, and to all the participants. 

One option that I don’t see explicitly mentioned in the paper – but perhaps it could be characterized as a variant of Option 3.1 – is that national governments would assume responsibility for making benefit sharing payments based on levels of relevant commercial activities of companies within their borders.  This approach would have the advantages of: not interrupting in any way the open availability of DSI for use in R&D; no tracking and tracing of users; no need to establish the origin of the data or the genetic material from which it was derived; no need to establish whether or not a particular product was derived from the use of accessed DSO; no policing of data bases or products; no data sharing agreements or registration, and no need to develop exhaustive ‘in or out’ definition(s) of DSI. It would fully address understandable concerns about negative potential impacts on R&D if new ABS4DSI rules end up undermining data availability and exchange. This approach would also give rise to predictable income streams paid into a multilateral benefit sharing fund. Those funds could be disbursed to address priorities identified under the Post 2020 Global Biodiversity Framework, thereby linking access and benefit-sharing to conservation of biological diversity, equity, and sustainable development.  Having undertaken to make such payments, contracting parties could, if they wished, seek to recoup from the companies/industries concerned in their jurisdictions. I appreciate that this option will not be popular with many contracting parties, and it is out of step with the original intention of the CBD to attract use rents from commercial users to help pay for biological conservation. However, we have been collectively pursuing this objective for over 40 years now without a great deal of success, and DSI is pushing the entire model to the breaking point. Perhaps it is time to step back and give this efficient, legally certain, low transaction approach another look.

Otherwise, as a fall back position, I want to make the case for Option 3.1. And I want to do so by making cross references to the Plant Treaty’s multilateral system of access and benefit-sharing and recent efforts to increase the efficacy of that system.  The current default benefit-sharing option under article 6.7 of the Plant Treaty’s Standard Material Transfer Agreement (SMTA) is very much like Option 2.2 in the background paper: access is facilitated, and payments are linked to commercialization of particular products derived from genetic materials that are accessed from the multilateral system.  As part of an effort to enhance the functioning of the multilateral system, for 6 years, contracting parties worked on a number of options. One of them was  ‘subscription system’ (which is very similar to Option 3.1 in the background paper) whereby subscribers would enjoy facilitated access to all of the plant genetic resources in the multilateral system in exchange for making subscription payments, for a fixed number of years,  based on a percentage of their seed sales (regardless of whether the seeds were actually derived from multilateral system genetic material).  The advantage of the subscription system would be that it does not require tracking or tracing of uses of materials (or DSI if it was included in the scope of the system) through to particular products. This means fewer transaction costs for users, erasure of possible concerns/distrust about compliance on a product by product bases, and predictable payments to a multilateral benefit sharing fund.  I am reviewing all this to highlight that option 3.1 is not  ‘pie in the sky’; it may seem a little strange under the CBD/Nagoya Protocol framework, but has been actively considered under the very closely allied Plant Treaty. Most of the arguments that make it appropriate to consider under the Plant Treaty apply equally well to DSI under the CBD/NP framework.

Finally, one last observation.  It seems there is agreement that, IF we are going to address BS for DSI under the CBD framework, it needs to be through multilateral mechanisms. It would be odd to have the material genetic resources subject to bilateral measures, and DSI derived from those resources available multilaterally.  Does this mean not we would eventually need to open up reconsidering the bilateral approach to regulation of ABS for genetic materials as well under the CBD/Nagoya?
posted on 2021-05-02 20:32 UTC by Mr Michael Halewood, Bioversity
This is a reply to 2114 RE: 1. Policy options categories and other options (April 21-May 2) [#2116]
I am only stating my personal opinions here

The multiplication of separate, distinct regimes can hardly be seen as progress. The consistency of the ABS ecosystem must be increased.

A more inclusive definition of genetic resources will help ( genetic material  and DSI/related information are GR). Biological Resource Centers have been integrating for long that data are biological resources.

And as Michael Halewood suggests, yes, given the perspectives on a multilateral approach for DSI, we “need to open up reconsidering the bilateral approach to regulation of ABS for genetic materials as well under the CBD/Nagoya”.
posted on 2021-05-02 21:27 UTC by Mr. Jean-Louis PHAM, French National Research Institute for Sustainable Development (IRD)
This is a reply to 2113 RE: 1. Policy options categories and other options (April 21-May 2) [#2122]
These comments are my own personal views and do not represent the institution or organization to which I belong.

I thank the Secretariat for giving me the opportunity to discuss this DSI. However, on the other hand, I do not have the impression that the discussion has deepened, so I think it is necessary to reconsider the form of such a forum.

Several comments made in recent days, in particular [# 2114], [# 2113], [# 2109], and [# 2081], refer to the legal nature of the discussions on the access, use and benefit sharing for DSI or GSD on genetic resource, where the conclusions of the discussions can be treated to amendments to the Convention, Protocol negotiations, and COP decision.
In the negotiations on enhancement of the MLS under the ITPGRFA, these discussions were discussed at a group of legal experts meeting. The group of legal experts concluded that it could be implemented on the basis of a resolution of Governing body, not an amendment of Treaty. I'm aware of the need for transformative change but procedural questions may remain as to whether such change can be moved without legal discussion of the current framework.
posted on 2021-05-03 01:46 UTC by Kunihiko Kobayashi, Research Institute for Humanity and Nature