Discussion on Equity and Commercial Rights for Genetic Resources
| Date | 01 November 2009 |
11-2009 NEWS & ANALYSIS 39 ELR 11035
Discussion on Equity and Commercial
Rights for Genetic Resources
April 29, 2009
Moderator:
Richard J. Blaustein
Speakers:
Susan Finston, Executive Director of the Access and Benet
Sharing Alliance
Michael Gollin, Venable LLP, and founder of Public Inter-
est Intellectual Property Advisors
Dr. David Newman, Chief, Natura l Products Branch,
National Cancer Institute
Dr. Leonard Hirsch, International Programs, Smithsonian
Institution
David Hegwood, former U.S. Department of Agriculture
representative to the United Nations Food and Agriculture
Organization
Richa rd J. Blaustein: anks very much for being here.
I’m Rich Blaustein. I’m a member of the D.C. Bar Envi-
ronment and Natural Resources Section. ank you very
much for coming for this conversation a nd presentation on
Equity and Commercial Rights for Genetic Resources. I
say great thanks to Jim Rubin for a ll the support. He’s the
co-cha ir of our Env ironment Section at D.C. Ba r and I’ll
give him the microphone to say hello on behalf of all our
dierent sponsors.
is will be about the fourth event connected with my
own interest in the Convention on Biological Diversity
(CBD) that the Bar has allowed me to do. In 2004, we had
“e CBD in the U.S.A.”; Hamdallah Zedan came down
[from Montreal] for that and we had panelists, like Mike and
Susan, who were on that discussion. I led another in 2008;
Ahmed Djoghlaf c ame down and we had panelists David
and Susan and Len Hirsch. Finally, I led one on international
policy on ecos ystem services, which connects with the Mil-
lennium Ecosystem Assessment focus of the CBD.
I have great appreciation for the Bar for allowing me to
pursue this. Before I introduce the pa nelists, Jim, do you
want to say anything on behalf of the D.C. Bar?
James Rubin: On behalf of t he D.C. Bar, t hanks for com-
ing. anks to the panelists, speakers, and ELI for putting
this together.
Richard J. Blaustein: I’ ll give the introductions one by one.
e only point I’ll try to make is t hat access to and benet-
sharing of genetic resources, issues of equity, and commer-
cial rights are quite large and compelling issues in the WTO
[World Trade Orga nization], in the WIPO [World Intel-
lectual Property Organization] forum, in the FAO [United
Nations Food and Agriculture Organization], and, of course,
in the CBD.
e only sort of backdrop I have about the CBD is that
there was a decision. As you know, it was endorsed to have
an international regime for actors in benet-sharing and
genetic resources during the World Summit on Sustainable
Development (WSSD). And the most recent CBD decision
came out of t he Conference of the Parties (COP), Number
Nine, which would have been in 2008. at was Decision
912, which had its seventh working group meeting in April;
Susan attended most of the meetings in Paris. But the deci-
sion from the COP directed the working group “to nalize
the international regime and to submit for consideration and
adoption by the COP at its tenth meeting and instrument
to eectively implement the provisions in Article 15 and
Article 8(j) of the convention and its three objectives.” We
know that Article 15 would be biotech and genetic resources
and technology transfer, the known indigenous traditional
knowledge, indigenous people’s right provisions.
So on that background note, we have a timeframe. We’re
looking at a working group discussion culminating in Octo-
ber 2010 at the COP in Japan.
I’ll begin with Susan Finston, who has been a great help
for all the meetings we’ve had on these issues. She is the
executive director of the Access and Benet Sharing Alli-
ance (A BSA), an industry advocacy organization that seek s
an enabling environment for sustainable commercial use of
genetic resources and related trad itional knowledge. She has
a background in law and public policy and, par ticularly, in
innovative life sciences in emerging markets. anks very
much, Susan.
Susan Finston: a nk you. Rich has been very active on
trying to increase t he awareness of these issues. It’s fascinat-
ing because the CBD always strikes me as: “What if they
held a trade negotiation and nobody came?” We don’t get the
same level of awareness as in WIPO or WTO, even though
in terms of U.S. commercial interest, this is probably, right
now, the most salient negotiation going on. And as Rich said,
there will be Operational Texts nished through the next
two ABS Working Groups in the CBD, and it actually has
to go to ministers by t he end. In the CBD Treaty, there’s a
six-month period for review of anything that could poten-
tially end up as a binding protocol. So really, you have 11
months between now and when operational texts will be n-
D I A L O G U E
Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
39 ELR 11036 ENVIRONMENTAL LAW REPORTER 11-2009
ished. e key point that I would like to cover is the way that
access a nd benet-sharing norms have now really been well
established across international soil and organizations, some
of which Rich has already alluded to and how, in a sense, the
ABSIR [Access and Benet Sharing International Regime]
people shouldn’t be surprised.
People are going to be surprised, but they shouldn’t be
because it’s been a heck of a long time in coming. ere have
been a number of COP decisions, even in advance of the
WSSD in Johannesburg, but certainly the last two COPs
have said we’re going to do this. And now, Japan, as the host
of Nagoya, has made it very clear that they’re committed to
having a successful adoption of something, whether it’s a n
individual instrument, a series of instruments, something
nonbinding, something binding. It probably will be adopted.
Now, you’ve got a lot of countries t hat are committed to its
success, and I’ll go into that a little bit later.
e challenge ahead is that the greatest risk is from those
governments that have the most to gain. Essentially, you
sometimes get into a situation, either interpersonally or cu l-
turally, where you have people who want something so much
that they can’t stop themselves from creating circumstances
in which they can’t get it, and it’s very dicult sometimes to
recognize that the reality ha s changed. So for example, there
is a tremendous resistance to even mentioning the Bonn
Guidelines because they’ll say: “Oh, that’s a subterfuge to
avoid a negotiation.” But we’re in a negotiation, so it’s not
really a subterfuge because we’re already committed, and
we’re doing it.
I think the keys to success, and this is where I really have
to take my hat o to Ahmed Djoghlaf, the executive secre-
tary, as well as his two co-chairs, Timothy Hodges of Can-
ada and Fernando Casas of Colombia, they are rea lly trying
to improve the level of trust and cooperation in the room. I
would say that the level of success we’ve had so far almost
dees expectations and conventional wisdom, and it’s due to
the very hard work of those three individuals and everyone
who is supporting their eorts. at’s really going to be criti-
cal going forward.
I think we saw a level of trust that was less in Paris than
in some of the previous meetings. From what I can observe,
Len Hirsch, who is also going to be speaking today, and oth-
ers who were in the room for the whole meeting, can spea k
to that. But t here just seems to be less trust and I think the
length and the number of brackets in the operational text
kind of reects that.
And then the second thing that I think is going to be key
to continued success may sound a little bit self-interested, but
I really do think keeping business and industry groups in the
room in a meaning ful way is going to be critical because it
isn’t just the question of adopting something. It’s the ques-
tion of adopting something that can be implemented at the
national level and internationally. And as I’m going to go
through this in just a few minutes, I’ ll show you what has
been adopted by the IBSA (India, Brazil, South Africa) coun-
tries or the BRIC (Brazil, Russia, India, China) countries,
plus South Africa. It doesn’t work. And we can name a lot
of other countries that adopted things that don’t work, and I
think that where that happens, it’s because there’s a lack of a
connection to reality as to where the market is.
And so if we’re not only going to adopt something in
Nagoya but have it work, I think we have to have trust, we
have to have cooperation, and we have to continue to have
business in t he room. I’ve been encouraged by the level of
access business has been given, including two meetings that
are relatively closed-door meetings, like t he compliance
expert group that I attended in January. But as we get to the
clinches, I know it gets more dicult so t hat’s going to be a
continuing challenge.
Very briey, what is the ABSA? It’s a very focused, small
advocacy organization. It’s much, much smaller than groups
like BIO, PhRMA, or ASTA or other groups, and it was just
formed in 2005 to focus on these issues across fora, as well
as in key capitals, bilaterally, including China, India, Bra-
zil, South Africa, countries where really, we felt t hat these
issues were very resonant, very important politically. We
work closely with the ICC [International Chamber of Com-
merce] and other groups because we are small. One benet to
ABSA members is that decisionmaking is totally transparent.
e board is open. e decisionmaking apparatus is open for
anyone who is a dues-paying member, and we work closely—
we play nicely—with our other industr y groups so we try as
much as possible to participate in ICC programs, etc. And I
think it’s been a good model so far in terms of how we c an
try to move the ball forward.
e interesting thing, which I didn’t anticipate, is that
developing countries look to the ABSA to provide timely,
important, and accurate information. e value of ABSA
to our members is obviously only as great as the credibil-
ity we have with developing countries. I’ve been pleased, as
evidenced by the number of developing countries that par-
ticipate in our side-events a nd come to our side-events, that
we’ve been able to develop a good rapport with a number of
developing countries, to build bridges, and, hopefully, to be
able then to communicate industry priorities in a clea r, and
again, a transparent way.
One of the things we’ve done in the last year or so that
has been valuable is we have put on our website and we have
handed out in all the meetings ABS [Access and Benet
Sharing] negotiating principles, where we say in writing that
ABSA members are committed to prior informed consent
(PIC). We’re committed to coming to mutually agreed terms
(MAT) in writing. We don’t believe that it makes sense for
any company to go into a market where you can’t do that
under domestic law. In other words, we’re not looking to go
places where there isn’t rule of law on these issues. And one of
the red herring arguments that some organizations try to put
forward is that industry doesn’t really want to share benets
equitably, and we’ve really tried to dispel that.
e rea lity, as others today may point out, is that there
frequently aren’t monetar y benets a nd it’s much better to
get capacity-building or front-loaded research benets and
that’s also something we’ve tried to point out and a lso, that
patent disclosure is pretty much a red herring and a dead end.
Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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