Implications of biological information digitization: Access and benefit sharing of plant genetic resources

• Author: Diego M. Macall,Jeremy Beer,Stuart J. Smyth,Peter W. B. Phillips
• DOI: http://doi.org/10.1111/jwip.12151
• Date: 01 July 2020
• Published date: 01 July 2020

J World Intellect Prop. 2020;23:267–287. wileyonlinelibrary.com/journal/jwip

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267

DOI: 10.1111/jwip.12151

ORIGINAL ARTICLE

Implications of biological information digitization:

Access and benefit sharing of plant genetic

resources

Stuart J. Smyth

1

|Diego M. Macall

1

|Peter W. B. Phillips

2

|

Jeremy de Beer

3

1

Department of Agricultural and Resource

Economics, University of Saskatchewan,

Saskatoon, Canada

2

The Johnson‐Shoyama Graduate School of

Public Policy, University of Saskatchewan,

Saskatoon, Canada

3

Faculty of Law, Common Law Section,

University of Ottawa, Ottawa, Canada

Correspondence

Stuart J. Smyth, Department of Agricultural and

Resource Economics, University of

Saskatchewan, 51 Campus Drive, Saskatoon SK

S7N 5A8, Canada.

Email: stuart.smyth@usask.ca

Funding information

The Plant Phenotyping and Imaging Research

Centre (P2IRC) a funding initiative through the

Global Institute for Food Security at the U of S

and the Canada First Research Excellence Fund

Abstract

The decoupling of biological information from its material

source has changed debates about global access and ben-

efit sharing (ABS) of genetic resources. What does the di-

gitization of biological information imply for genetic

resources of proven and potential value? What implications

does digital sequence information (DSI) have for individuals

and groups, who have invested time and effort in aug-

menting and refining valuable characteristics in genetic

resources? Stakeholders discussing this issue in various in-

ternational fora unanimously acknowledge there are cur-

rently more questions than answers. Online digital publicly

accessible resources represent a transformative technolo-

gical shift, resulting in intellectual property governance

gaps. This article provides interdisciplinary perspectives on

options available to governments to continue advancing the

goals of ABS, when physical access to genetic resources is

no longer needed because DSI is readily accessible. It en-

visions four governance scenarios.

KEYWORDS

digital sequence information, genetic resources, intellectual

property rights, Nagoya Protocol, World Intellectual Property

Organization

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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2020 The Authors. The Journal of World Intellectual Property published by John Wiley & Sons Ltd

1|INTRODUCTION

The decoupling of biological information from its material source has changed the global access and benefit sharing

(ABS) of genetic resources debate. Until recently, to make use of a genetic resource required physical access to it,

or at least to its tangible DNA. The ability to “digitize”biological information opens a host of possibilities, as well as

issues that will need to be addressed. What does the digitization of biological information imply for genetic

resources of proven and potential value? What implications does digital sequence information (DSI) have for

individuals and groups, who have invested time and effort in augmenting and refining valuable characteristics in

genetic resources?

In light of such questions, this article provides interdisciplinary perspective on options available to govern-

ments and firms to continue advancing the goals of ABS, when physical access to genetic resources is no longer

needed because DSI is readily accessible. By examining the challenges of DSI governance at the intersection of law,

economics, political science, and public policy, this article offers new insight into the nature of the problem and

potential solutions.

The ability to “digitize”biological information has coincided with the development and application of novel

genome editing technologies, big data, and synthetic biology (SB). Although different in their scope and depth of

application, combined, these technologies and scientific disciplines could considerably loosen the constraints to

plant engineering and modification. Implications of DSI are explored through the specific sectoral lens of access to

plant genetic resources for agricultural crop and plant breeding, a topic of keen interest that is currently being

deliberated in various international fora. Whether private or public, plant breeding requires access to a wide pool of

genetic resources (vast amounts of data) to create novel plant varieties, which themselves are genetic resources. As

countries have become interdependent for their food production, international cooperation against the backdrop of

emerging technologies and scientific disciplines is imperative. How DSI that at the extreme can become completely

disembodied and independent of underlying genetic resources are governed, will have profound direct and indirect

effects on relevant stakeholders in both the private and public sector. Stakeholders who at times have, and likely

will continue to have, complimentary and competing political, economic, and social interests.

The objective of this article is to frame the DSI big data challenge within an agricultural intellectual property

(IP) context, focusing on the governance challenges that decision makers will have once the relevant international

institutions and agencies have been determined. The domestic legislation of only a limited number of countries is

either implicitly or explicitly suited to address DSI governance challenges. For example, Brazilian Law 13.123

1

Chapter I Article 2 I states that in accordance with concepts and definitions pertaining to the Convention on

Biological Diversity (CBD), genetic information or metabolism information originating from vegetables (plants),

animals, and microbes are Brazilian genetic heritage. Article 10(4)(ii)(D) of the Patents Act, 1970

2

(as amended up

to Patents [Amendment] Act, 2005) of India requires the disclosure of the source and geographical origin of

biological material, when used in an invention. However, the policies, programs, and practices of most countries are

currently built on the embodied nature of genetic resources.

The rupture of the bond between tangible and intangible resources challenges existing governance models and

requires detailed exploration (Reichman, Uhlir, & Dedeurwaerdere, 2016). It raises difficult conceptual questions in

the field of IP in particular. For example, under the Nagoya Protocol (NP) to the CBD, is DSI itself a genetic

resource or does DSI instead constitute or arise from the utilization of genetic resources? What exactly is the

resource: the physical sample or the information within it? Is DSI copyrightable data, either on its own or a

database compilation? How does DSI intersect with patent or plant breeders’rights regimes, or with the protection

of trade secrets or undisclosed test data? How is DSI connected to the traditional knowledge (TK) governance

models of Indigenous Peoples and Local Communities? What exactly is the relationship between information, data,

and knowledge? This article facilitates answers to such questions not through a specific legal doctrinal analysis, but

rather by situating the questions in an interdisciplinary framework of various future scenarios for DSI governance.

And it adds to our current understandings of the problem a discussion of DSI in the context of multilevel, network

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