The relationship between the access and benefit sharing international regimen and other international instruments: The world trade organization and the international union for the protection of new varieties of plants

AuthorJorge Cabrera Medaglia
PositionProfessor, Environmental Law, University of Costa Rica, Legal Adviser, National Biodiversity Institute (INBio), Lead Council Biodiversity Law. International Center for Sustainable Development Law, Montreal
Pages24-33
24SPRING 2010
THE RELATIONSHIP BETWEEN THE ACCESS AND BENEFIT
SHARING INTERNATIONAL REGIMEN AND OTHER
INTERNATIONAL INSTRUMENTS: THE WORLD TRADE
ORGANIZATION AND THE INTERNATIONAL UNION
FOR THE PROTECTION OF NEW VARIETIES OF PLANTS
by Jorge Cabrera Medaglia*
* Professor, Environmental Law, University of Costa Rica, Legal Adviser,
National Biodiver sity Institute (INBio), Lead Council Biodiversity Law. Inte r-
national Center for Sustainable Development Law, Montreal. Former Co-Chair,
ABS Expert Panel of the CBD. This article is based on the author’s pre vious
research, Jorge Cab rera Medaglia, The relationship between the International
Regimen, the World Trade Organization, the World Intellectual Property Orga-
nization and the Convention for the Protection of New Varieties of Plants, pre-
pared for the CBD Secretariat in April, 2009.
INTRODUCTION
This article examines the relationship between the Interna-
tional Regimen (“IR”) and the World Trade Organization
(“WTO”) and International Convention for the Protec-
tion of New Varieties of Plants (“UPOV”). The article high-
lights the potential relationship between the intellectual property
rights system and the negotiations on an international regime for
access and benef‌it-sharing within the context of the Convention
on Biological Diversity (“CBD”), and identif‌ies some questions
requiring further scrutiny. The WTO, World Intellectual Prop-
erty Organization (“WIPO”), and UPOV each have provisions
related to Access to Genetic Resources and Benef‌it Sharing
(“ABS”) and Intellectual Property Rights (“IPR”). Meanwhile,
there are ongoing negotiations on an international regime gov-
erning access to and the equitable sharing of benef‌its from
genetic resources derived from biodiversity under the CBD.
The f‌irst section provide s a general introduction, while the
second gives an overview and a factual description of the other
instruments, as well as their provisions related to ABS and the
relationships between the IR and the ABS provisions or devel-
opments identif‌ied. The third section seeks to address the dif-
ferent scenarios and options to achieve mutual supportiveness
between the IR and the instruments. Finally, some general con-
clusions are presented.
THE CONVENTION ON BIOLOGICAL DIVERSITY AND ITS
RELEVANT ABS PROVISIONS
The Convention on Biological Diversity recognizes the sov-
ereign rights of States over their natural resources in areas under
their jurisdiction.1 The Objectives of the Convention on Biologi-
cal Diversity are:
1. The conservation of biological diversity;
2. The sustainable use of the components of biological
diversity; and
3. The fair and equitable sharing of the benef‌its arising
out of the utilization of genetic resources2
According to the Convention, States have the authority to
determine access to genetic resources in areas within their juris-
diction. Parties also have the obligation to take appropriate mea-
sures with the aim of sharing in a fair and equitable way the
benef‌its arising from the utilization of genetic resources.3 Two
further principles established under article 15 of the CBD are
that “access [to genetic resources], where granted, shall be on
mutually agreed terms” and “shall be subject to prior informed
consent of the Contracting Party providing such resources,
unless otherwise determined by that Party.”4 This provides the
basic legal framework under the Convention for access and ben-
ef‌it sharing arising from the utilization of genetic resources.
Furthermore, the protection of traditional knowledge, inno-
vations, and practices of indigenous and local communities plays
an important role. Traditional knowledge often provides a lead
to genetic resources with benef‌icial properties and can thus form
the basis for ABS mechanisms or entitlements. To this effect,
Article 8(j) states that:
each contracting Party shall, as far as possible and as
appropriate, subject to national legislation, respect, pre-
serve and maintain knowledge, innovations and prac-
tices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and
sustainable use of biological diversity and promote
their wider application with the approval and involve-
ment of the holders of such knowledge, innovations
and practices and encourage the equitable sharing of
the benef‌its arising from the utilization of such knowl-
edge innovations and practices.5
ABS activities should be based on the Bonn Guidelines on
Access to Genetic Resources and Fair and Equitable Sharing of
the Benef‌its Arising out of their Utilization.6
CURRENT STATUS AND PERSPECTIVES OF THE IR
NEGOTIATIONS7
The World Summit on Sustainable Development in Johan-
nesburg in 2002 agreed to the establishment of an international
regime to effectively promote and safeguard fair and equitable
25 SUSTAINABLE DEVELOPMENT LAW & POLICY
benef‌it-sharing. On December 20, 2002, Resolution 57-260 of
the United Nations General Assembly invited the Conference of
the Parties to take the necessary measures regarding the commit-
ment established at the Summit to negotiate this regime.8 Taken
together with the Convention’s decision this represents a com-
mitment to create an international regime.
Paragraph 42(n) of the same Johannesburg Plan of Action
provided a related commitment to
Promote the wide implementation of and continued
work on the Bonn Guidelines on Access to Genetic
Resources and Fair and Equitable Sharing of Benef‌its
arising out of their Utilization of the Convention, as an
input to assist Partie s to the Convention when devel-
oping and drafting legislative, administrative or policy
measures on access and benef‌it-sharing, and contracts
and other arrangements under mutually agreed terms
for access and benef‌it-sharing.9
Decision VII/19 of the Conference of the Parties of the
CBD is potentially one of the most comprehensive and detailed
of all of the decisions having to do with the issue of access to
genetic resources. This decision calls for the Working Group on
ABS to meet again
. . . with the collaboration of the Ad Hoc Open-ended
Inter-Sessional Working Group on Article 8 (j) and
Related Provisions, ensuring the participation of
indigenous and local communities, non-governmental
organisations, industry and scientif‌ic and academic
institutions, as well as intergovernmental organisations,
to elaborate and negotiate an International Regime on
access to genetic resources and benef‌it-sharing with
the aim of adopting an instrument/instruments to effec-
tively implement the provisions in Article 15 and Arti-
cle 8 (J) of the Convention and the three objectives of
the Convention.10
The group has operated in accordance with the terms of ref-
erence contained in the Annex to Decision VII/19. The Confer-
ence of the Parties also decided on the terms of reference for
such a negotiation, including the process, nature, scope, and ele-
ments for consideration in the elaboration of the regime. The
terms of reference are contained in the annex to Decision VII/19
D.11 As set out in the Terms of reference of the Working Group
on ABS, the IR could be composed of one or more instruments
within a set of principles, norms, rules, and decision-making
procedures, legally-binding and/or non-binding.
According to these same Terms of reference, the scope of
the IR is to include:
• Access to genetic resources and promotion and safeguard-
ing of fair and equitable sharing of the benef‌its arising out of
the utilization of genetic resources in accordance with rel-
evant provisions of the Convention on Biological Diversity;
• Traditional knowledge, innovations and practices in accor-
dance with Article 8(j).12
At the eighth meeting of the Conference of the Parties
(“COP”) in Curitiba, Brazil, the Working Group was requested
to complete its work as soon as possible and no later than 2010.13
In addition to COP 8, two meetings of the Working Group on
ABS, as the negotiating body of the international regime, were
held prior to the ninth meeting of the Conference of the Parties.
The Working Group held its f‌ifth meeting in Montreal, Canada,
from October 8-12, 2007,14 and its sixth meeting in Geneva,
Switzerland, from January 21-25, 2008.15 At its ninth meeting
in Bonn, in May 2008, the COP extended the mandate of the
Working Group on Access and Benef‌it-sharing, and instructed it
to f‌inalize the negotiation of the international regime before its
tenth meeting, in 2010.16 The COP adopted a detailed calendar
of meetings to achieve this objective and decided that the Ad
Hoc Open-ended Working Group on Access and Benef‌it-sharing
should meet three times prior to the tenth meeting of the Con-
ference of the Parties. In addition, the COP decided to establish
three distinct groups of technical and legal experts to address
key substantive issues at the core of the negotiation process.
The seventh meeting of the Working Group, held in Paris,
France, in April 2009, focused on the objective and scope of the
International Regime, as well as the components of the Interna-
tional Regime related to compliance, benef‌it-sharing, and access.
At its eighth meeting (November 9-15, 2009, in Montreal,
Canada), the Working Group addressed operative text on all
components of the regime, and discussed its legal nature. The
meeting adopted the Montreal Annex, 17 consisting of a single,
consolidated draft of the international regime, and a second
annex on proposals for operational texts left in abeyance for
consideration at its ninth meeting, referred to as ABS 9. The
Working Group also established an intersessional process lead-
ing up to ABS 9, including: a Friends of the Co-Chairs group;
a Co-Chairs’ Inter-regional Informal Consultation; and a series
of regional consultations. Given the fundamental disagree-
ments, only a heavily bracketed structure exists as a basis for the
negotiations on the regime.18 The document has four sections,
covering the objective, scope, main components, and nature of
the regimen. The content of each section, however, identif‌ies
various options or is heavily bracketed. The text regarding the
main components includes: benef‌it sharing, access, compliance,
capacity building, and traditional knowledge and also ref‌lects
the wide divergence of positions among countries.
The inter-regional consultation (March 16-18, 2010, in Cali,
Colombia) was held in order to identify concrete solutions to
facilitate and accelerate ABS 9 negotiations. As a result, the Co-
Chairs prepared a draft protocol and a draft COP decision was
circulated prior to ABS 9. At the ninth meeting of the Work-
ing Group in Cali, Colombia, from March 22-28, 2010, a draft
protocol was tabled by the Co-Chairs and accepted by Parties
as a basis for further negotiations. However, since it was not
possible to f‌inalize the text at this session, the Working Group
decided to suspend the meeting at the end of the seven days and
to resume the ninth meeting of the Working Group in order for it
to complete its mandate.19 The text of the Protocol (still subject
to negotiation) became Annex I of the Report.20 Subsequently
the CBD Secretary notif‌ied21 formally to the Parties and other
stakeholders the text of the Protocol pursuant to article 28 of the
CBD.22 A roadmap to Nagoya was also agreed upon, including
26SPRING 2010
the reassumed session of the ABS/WG to be held in Montreal in
July 10-16, 2010. Out of the Cali meeting came a draft protocol
text upon which negotiations can move forward towards creat-
ing the international regime. But the text is still open for modif‌i-
cation and additions.
As a result of the ninth meeting, the Draft Protocol on
ABS23 addresses the following issues of interest for this article:
disclosure requirements in IPR applications; the certif‌icate of
compliance and technology transfer.24
OVERVIEW AND FACTUAL DESCRIPTION OF THE
RELEVANT ABS PROVISIONS AND DEVELOPMENTS
AT THE WTO AND UPOV25
FACTUAL OVERVIEW OF RELEVANT PROVISIONS/
DEVELOPMENTS/PROCESSES AT THE WTO AGREEMENT
ON TRADE-RELATED ASPECTS OF INTELLECTUAL
PROPERTY RIGHTS
Since the entry into force of the TRIPS Agreement, there
have been calls, mainly by developing countries, to explore the
relationship between the CBD and intellectual property rights
(“IPRs”). In parallel, CBD COP decisions26 have stressed the
need to gather information on the impact of IPRs on achiev-
ing the objectives of the CBD, and to explore the relationship
between the Convention and the TRIPS Agreement.27
As early as COP 3,28 the CBD Secretariat was requested to
cooperate with the WTO through the Committee on Trade and
Environment (“CTE”) to explore the extent to which there may
be linkages between CBD Article 15 on ABS and relevant provi-
sions of the TRIPS Agreement. In the WTO context, the TRIPS
Council has included the relationship between TRIPS and the
CBD on numerous occasions in its discussions.29 Some of the
debates about the links between the CBD and WTO took place
in the context of the TRIPS review of Article 27.3(b), which was
started by the TRIPS Council during 1999, four years after the
entry into force of the Agreement.
There have also been similar discussions regarding the
TRIPS Agreement under the CTE, including protection of Tra-
ditional Knowledge; the transfer of environmentally sound tech-
nology; ethical concerns associated with the patenting of living
organisms; and compatibility between TRIPS and the CBD.30
The TRIPS Council has also discussed what the implica-
tions of IPRs are for access to and transfer of technology. One
view ha s been that IPRs in respect of gen etic resources could
impede access to and raise the cost of technology in this area, by
virtue of the exclusive rights given to rights-holders to prevent
others from using the protected technology. In response, it has
been argued that full implementation of the TRIPS Agreement
in developing countries would stimulate investment in those
countries and that, therefore, facilitated technology transfer
forms part or the basis of benef‌it sharing as envisaged under the
CBD.31 Technology transfer is also a relevant issue addressed
by the CBD. Article 16 of the CBD on access to and transfer
of technology contains numerous references to IPRs. CBD COP
7 adopted a program of work on technology transfer and tech-
nological and scientif‌ic cooperation, which required the CBD
Secretariat to prepare, in collaboration with UNCTAD, WIPO,
and other relevant international organizations, technical stud-
ies32 to explore and analyze the role of IPRs in technology trans-
fer, in the context of the CBD, and identify potential options to
increase synergy and overcome barriers to technology transfer
and cooperation.33
Later, in 2001, the Doha Declaration, which launched the
current round of trade negotiations, specif‌ically instructed the
TRIPS Council to examine the relationship between the TRIPS
Agreement and the Convention on Biological Diversity, the pro-
tection of traditional knowledge and folklore, and other new and
relevant developments pointed out by the Members.34 In particu-
lar, the TRIPS Council shall take this into account in conducting
the examination provided for in paragraph 3(b) of article 27; the
examination of the application of the TRIPS Agreement pro-
vided for in paragraph 1 of article 71; and in its work in compli-
ance with paragraph 12 of the Declaration. In carrying out this
work, the TRIPS Council shall be governed by the objectives
and principles stated in articles 7 and 8 of the TRIPS Agreement
and shall fully consider the dimension of development.
Though this debate was originally wide-ranging,35 it now
focuses on how the TRIPS agreement relates to the CBD and
particularly whether the agreement should be amended to require
disclosure in IPR applications, which has been discussed in the
WTO based on the mandate established in Doha, or whether
alternative approaches, including contractual based systems or
databases of genetic resources and traditional knowledge, could
be more effective in ensuring mutual supportiveness between
the TRIPS and the CBD.
One of the f‌irst measures suggested in order to achieve
mutual supportiveness between the CBD and intellectual prop-
erty systems (in particular, the WTO TRIPS) was the disclo-
sure of the origin of genetic resources or associated traditional
knowledge in intellectual property rights applications, particu-
larly in patents. It has been suggested by developing countries
mostly that the TRIPS Agreement should be amended so as to
require that patent applicants disclose, as a condition to patent-
ability one or more of the following: the source and origin of any
genetic material used in a claimed invention; and/or any related
traditional knowledge used in the invention; evidence of prior
informed consent from the competent authority in the country of
origin of the genetic material; and evidence of fair and equitable
benef‌it sharing. Proponents of disclosure requirements argue
that this stipulation would help to support compliance with the
CBD provisions on access to genetic resources and benef‌it-shar-
ing.36 In response, it has been expressed that such a modif‌ica-
tion is not necessary to implement the CBD requirements as they
should be implemented through corresponding contracts at the
national level, and that the TRIPS Agreement is not the appro-
priate instrument to regulate ABS.
The Declaration adopted at the Ministerial Summit in 2005
in Hong Kong provides (in paragraph 44) that note be taken of
the work carried out by the TRIPS Council, in accordance with
paragraph 19 of the Doha Declaration, and agrees that work will
continue based on this paragraph and on the progress made to
27 SUSTAINABLE DEVELOPMENT LAW & POLICY
date.37 In addition, in accordance with paragraph 39 concern-
ing implementation, it was decided to address the relationship
between the TRIPS Agreement and the CBD through a consulta-
tion process on different aspects of implementation.38 This con-
sultation is being carried out with the intervention of the Deputy
Director General of the WTO.
In May 2006, six countries, including India, Brazil, and
Peru, submitted a proposal to the TRIPS Council suggesting
concrete changes to the TRIPS Agreement in order to support
disclosure of origin. The Communication39 aims to incorporate
a new article 29 bis into the TRIPS Agreement. It proposes an
amendment to the TRIPS Agreement to incorporate require-
ments for disclosure of the origin of genetic resources40 and
associated traditional knowledge
in patent applications along with
evidence of prior informed con-
sent and benef‌it-sharing.41
At the Mini-Ministerial
Conference held in July 2008,42
not much changed. A deter-
mina tion rega rding the pro -
posed amendment to the TRIPS
Agreement to incorporate the
disclosure of orig in remains to
be made at the WTO. A Draft
Modality text on IP was pre-
sented including negotiations on
disclosure.43 The Draft called44
for text based negotiations on the
IP issues, including disclosure.
This Draft Modalities proposal
for negotiating the IP issues at
the Ministerial level has gath-
ered the support of the majority
of developing country Members
and some developed countries
as well. A large coalition of
more than a hundred develop-
ing and developed countries led
by Brazil, the EU, India, and Switzerland, were pushing for the
three TRIPS issues to be moved forward as a single undertaking
in the Round, but the proposal was strongly rebuffed by some
country Members who contended that the intellectual property
issues should not be discussed in tandem with the Doha negotia-
tions on liberalizing trade in agricultural and industrial goods.
The issue of disclosure was also raised at the several TRIPS
Council Meetings after the July Mini-Ministerial45 in 2009 and
2010, with similar results. In essence, countries largely reiter-
ated known positions on the relationship between the TRIPS
Agreement and the Convention on Biological Diversity. Mean-
while, informal consultations on how to move the issue forward
are ongoing. However, like all issues discussed at the July Mini-
Ministerial Conference, the future of the TRIPS issues depend
upon the future of the negotiations.
Relationship between the IR and WTO
As presented in the previous section, discussions on the
relationship between the CBD and the WTO provisions have
addressed a range of issues and several proposals have been
presented. However, the current debate has focused on the dis-
closure of origin in patent applications or whether altern ative
approaches including contractual based systems or databases
of genetic resources and traditional knowledge could be more
effective in ensuring mutual supportiveness between TRIPS and
the CBD. In addition, technology transfer (“TT”) is a relevant
issue connecting the IR and the WTO.
There are other issues connecting the WTO and the potential
IR, but they can be brief‌ly mentioned here, including: the appli-
cability of the WTO investment
provisions to the ABS activities;
and the relationships between
the Principle of Non Discrimi-
nation (the Most Favored Nation
and National Treatment Prin-
ciples); and ABS legislation and
practices, among others.46
• Disclosure of origin
The Anne x of D ecision
IX/12 has identif‌ied f‌ive compo-
nents for the IR. These include:
access; fair and equitable ben-
ef‌it sharing; compliance mea-
sures; traditional knowledge;
and capacity building. Under the
Compliance component one of
the measures for “furth er con-
sideration”47 is the disclosure
requirements. Decision VIII/4/D
is more clear about disclosure in
the context of the CBD IR nego-
tiations.48 The Draft Protocol49
provides
In implementing Article 12,
paragraph 1, Parties shall take measures, as appropriate,
to monitor the utilization of genetic resources, includ-
ing from derivatives produced through expression, rep-
lication and characterization, having regard to the list
of typical uses of genetic resources provided in Annex
II of the present Protocol. Such measures include: (a)
The identif‌ication and establis hment of check poin ts
and disclosure requirements including at
(iv) Intellectual property examination off‌ices50
• Certif‌icate of Origin/Source/Legal Provenance/Compliance.51
One element ABS negotiations have focused on in order to
respond to the call for user country measures, and to contribute
to solving problems related to the monitoring and traceability of
genetic resources, is the development of some form of certif‌icate
of origin/source/legal provenance—more recently called a “cer-
tif‌icate of compliance.” The idea of the certif‌icate is to prevent
Due to the nature
of a legally binding
instrument of the [Access
and Benef‌its Sharing]
Protocol, the countries
should develop—in their
national legislation—
disclosure of origin
requirements to comply
with the international
obligations.
28SPRING 2010
or minimize problems generated by the existence of two differ-
ent jurisdictions for ABS arrangements—that of the place where
the material is collected and that of the place where research
and development activities are carried out. The existence of an
internationally recognized document would make it possible to
check the legality of access at the place where the activity (pat-
ent, product approval, etc.) generates value, and to discover the
subsequent use of the resources and the origin of the correspond-
ing benef‌it-sharing. At the same time, this supposedly52 would
favor the creation of simpler access systems in provider coun-
tries, because existing control mechanisms would be applied,
via the certif‌icate, in the later stages of research and develop-
ment, thus helping to make the regulations on access to genetic
resources more f‌lexible. In this way, monitoring and regulation
would be less strict during the access phase and stricter during
the research and development phase, where control or check
points would be established. This implies that the documen-
tation would need to pass through the various buyers, but the
monitoring points would be reserved only for certain milestones
in the research and development process, such as those related to
product appro val, IPR applications, publications, the prese nta-
tion of funding proposals, etc.
Many aspects still need to be clarif‌ied before this system
can become operational, including:
1. The designation of national authorities to issue certif‌i-
cates that are mutually recognized.
2. The identif‌ication of conditions for verif‌ication of and
compliance with the certif‌icates, that is, the determina-
tion of which materials they would apply to, for what
purposes, and at what moment or stage they would be
verif‌ied.
3. Exemptions.
4. Provisi ons for cases in which it is not possible to
identify the origin of the genetic resources, including
benef‌it-sharing.
5. Differential treatment of different sectors.
6. Dispute settlement mechanisms.
7. The creation of an international certif‌icate register.
8. How countries that are not parties to the IR will be
handled.
9. Provisions related to the resources contained in ex-situ
collections prior to the Convention. 53
Other aspects of interest could include:
1. What the certif‌icate corresponds to: species, genes, spe-
cif‌ic biological samples, etc.
2. Transaction costs of the certif‌icate.
3. Different types of certif‌icates: origin, legal provenance,
source.
4. Characteri stics of the system: simplicity, f‌lexibility,
avoidance of complex procedures.
5. Considerations regarding the product supply chain, etc.
6. Ability to comply with the objectives of the CBD,
especially conservation.
7. Economic impacts and implications of the certif‌icate
for different actors (botanical gardens, etc.).
8. Content of the certif‌icate.
9. Sanctions for non-compliance.
10. Lack of legislation on access.
11. Procedures for control and use of the Clearing House.
12. How to ensure that additional barriers are not created
for the non-commercial exchange of resources.
13. Compatibility with international trade regimes,54 etc.
Depending on the certif‌icate’s f‌inal design, some rules of
the trade system might apply to it, especially those related to
technical barriers to trade. For instance, if the certif‌icate is going
to be checked at customs and if the legal consequences of not
producing a certif‌icate are the prohibition of the entry of the
genetic resources—for which the certif‌icate should have been
issued—into a country. However, the potential implications of
such rules on the certif‌icate need to be better understood.
With regard to the compliance component of the IR, the
Annex of Decision IX/12 identif‌ied as an area for “further elabo-
ration” the “Development of tools to monitor compliance: . . . b)
(an) internationally recognized certif‌icate issued by a domestic
competent authority.”55 The Draft Protocol provides that the:
disclosure requirement shall be met by providing bona
f‌ide evidence that a permit or certif‌icate was granted at
the time of access in accordance with Article 5, para-
graph 1 (d);
The permit or certif‌icate issued at the time of access
in accordance with Article 5, paragraph 1 (d) and reg-
istered with the ABS Clearing House Mechanism, in
accordance with Article 5 paragraph 2 shall constitute
an internationally recognised certif‌icate of compliance.
The internationally recognised certif‌icate of compli-
ance shall serve as evidence that the genetic resource
in question has been obtained, accessed and used in
accordance with prior informed consent and that mutu-
ally agreed terms have been entered into, in accordance
to national legislation on access and benef‌it-sharing of
the country providing the genetic resource. Disclosure
requirements shall be met by providing an internation-
ally recognised certif‌icate or permit. The internation-
ally recognised certif‌icate of compliance shall contain
the following minimum information:
a) Issuing national authority;
b) Details of the provider;
c) A codified unique alpha numeric identifier where
feasible;
d) Details of the rights holders of associated traditional
knowledge, as appropriate;
e) Details of the user;
f) Subject-matter covered by the certif‌icate;
g) Geographic location of the access activity;
h) Link to mutually agreed terms;
i) Uses permitted and restrictions of use;
j) Conditions of transfer to third parties if any;
k) Date of issuance.
The Conference of the Parties serving as the meeting
of the Parties to this Protocol shall consider additional
29 SUSTAINABLE DEVELOPMENT LAW & POLICY
modalities of the internationally recognized certif‌icate
of compliance system, taking into account the need to
minimize transaction costs and to ensure feasibility,
practicality and f‌lexibility.56
The certif‌icate can contribute to the monitoring and trace-
ability of genetic resources. It appears to have some degree of
support, at least regarding an analysis of this proposal to deter-
mine whether it should be included in the Regime and, if so, how
this should be accomplished. The certif‌icate could be required
in patent applications to provide evidence of compliance with
national legislation on ABS, including prior informed consent
and benef‌it sharing, thus fulf‌illing a role in supporting the dis-
closure of origin requirement.
CBD COP Decision VIII/4C established an Expert Group
(“EG”) on an internationally recognized certif‌icate of origin/
source/legal provenance.57 The Group agreed that the basic role
of any certif‌icate system would be to provide evidence of com-
pliance with national ABS legislation. This could be achieved
by a system of national certif‌icates with standard features to
allow for their international recognition.
The Group58 identif‌ied a number of points common for all
proposals of a certif‌icate, including that it could be required for
presentation at specif‌ic checkpoints in the user countries, inter
alia patent and in general IP applications.59 Indeed, the certif‌i-
cate of origin could perhaps be integrated into the existing sys-
tem of requirements for disclosure of information in the patent
system. A majority of certif‌icate proposals envisage a system
of checkpoints at which disclosure of the certif‌icate of origin
would be required for the purposes of processing IP applica-
tions, among other things. Compliance with disclosure require-
ments would be facilitated where an internationally recognized
certif‌icate could act as evidence of conformance with national
and international law.60
However, the certif‌icate, depending on its design, may raise
other international trade issues. Some rules of the trade system
might apply to it, especially those related to technical barriers
to trade. In this regard, considering that the certif‌icate could be
a document attached to the transfers/export (international trade)
of gene tic resources it also should be analyzed in the context
of the relevant rules of the WTO regarding non discrimination
(the Most Favored Nation Principle and the National Treatment
Principle) as well as the appropriate measures contained in the
Agreement on Technical Barriers to Trade (“TBT”), which
governs the elaboration and use of technical regulations, stan-
dards, and conformity assessment procedures in a way that do
not create unnecessary obstacles to international trade. The cer-
tif‌icate could be considered a technical regulation and it must
take into account the relevant provisions of the TBT Agreement,
especially article 2.2: technical regulations shall be no more
restrictive than necessary to fulf‌ill a legitimate objective and
the requirement that technical measures shall be the less trade
restrictive in light of applicable risks.61
• Technolo gy transfer as an element of the benef‌it-sharing
component of the IR.
Annex I to Decision IX/12, under section III. B. on “Fair
and equitable benef‌it-sharing” also includes as a component to
be further elaborated, the access and transfer of technology. A
technology transfer measure could be developed in the context
of the benef‌it sharing component of the IR.62 The Draft Protocol
provides (article 18 bis) that:
In accordance with Articles 15, 16 and 19, Parties
shall collaborate, cooperate and contribute in scientif‌ic
research and development programmes, particularly
biotechnological research activities, as a means to gen-
erate and share benef‌its in accordance with Article 4 of
this Protocol. This shall include measures by developed
country Parties that provide incentives, to companies
and institutions within their jurisdiction, to promote
and encourage access to technology by, and transfer
of technology to, developing countries, including the
least developed among them, in order to enable them
to create a sound and viable technological base. Where
possible, such collaborative activities shall take place
in the country providing genetic resources.63
It is outside the scope of this article to analyze the rela-
tionship between IPRs in general, and TRIPS in particular, and
technology transfer in the context of the CBD. However, it is
clear that technology transfer is a key element of the ABS CBD
provisions64 and of the IR. As one study has pointed out “The
provisions of the Convention on technology transfer ref‌lect the
consensus of the international community laid down in key inter-
national policy documents, that the development, transfer, adap-
tation and diffusion of technology and the building of capacity is
crucial for achieving sustainable development.”65 For instance,
technology transfer could be one element of structuring mutu-
ally agreed terms and benef‌it sharing arrangements.
At the same time, transfer of technology (e.g. protected by
IPRs) may create some links between the IR and TRIPS provi-
sions on this matter.66
FACTUAL OVERVIEW OF RELEVANT PROVISIONS/
DEVELOPMENTS/PROCESSES AT UPOV67
The International Convention for the Pro tection of New
Varieties of Plants was signed in Paris in 1961 and entered into
force in 1968. It was revised in 1972, 1978, and 1991. The 1991
Act of the UPOV Convention entered into force in 1998. The
purpose of the UPOV Convention is “to ensure that the members
of the Union acknowledge the achievement of breeders of new
varieties of plants, by granting to them an intellectual property
right, on the basis of a set of clearly def‌ined principles.”68 Thus,
the Convention provides a sui generis form of intellectual pro-
tection specif‌ically adapted to the process of plant breeding and
developed with the aim of encouraging breeders to develop new
varieties of plants. To be eligible for protection, varieties have
to be: (i) distinct from existing, commonly known varieties;
(ii) suff‌iciently uniform; (iii) stable; and, (iv) new in the sense
that they must not have been commercialized prior to certain
dates established by reference to the date of the application for
protection.69 The Convention offers protection to the breeder,
30SPRING 2010
in the form of a “breeder’s right,” if his plant variety satisf‌ies
the above conditions. The scope of the breeder’s right is, how-
ever, limited by two important exceptions in Article 15. Th e
f‌irst exception, known as the “breeder’s exemption” allows the
use of the propagating material of the protected variety, with-
out prior authorization, for the purpose of breeding other vari-
eties. The breeder’s exemption optimizes variety improvement
by ensuring that germplasm sources remain accessible to all
breeders. The second exception concerns the right of farmers to
use farm-saved seed for replanting. This is known as the “farm-
ers’ privilege” and seeks to safeguard the common practice of
farmers saving their own seed for the purpose of re-sowing.70
However, the Convention requires that the farmers’ privilege be
regulated “within reasonable limits and subject to safeguarding
of the legitimate interests of the breeder.” As of August 1, 2004,
55 States were a Party to the UPOV Convention. The mission of
UPOV is “to provide and promote an effective system of plant
variety protection, with the aim of encouraging the development
of new varieties of plants, for the benef‌it of society.”71
• Relationship to access and benef‌it-sharing
In response to notif‌ications by the Executive Secretary
inviting relevan t inter national organizations to contribute to
the work on access and benef‌it-sharing, the Vice Secretary-
General of UPOV provided detailed replies highlighting the
access and benef‌it-sharing aspects of the UPOV Convention.
The UPOV submission is included in the compilation of submis-
sions by Parties, international organizations, and other relevant
stakeholders.72
In these communications, UPOV highlighted the impor-
tance of access to genetic resources to ensure progress in plant
breeding. It also pointed to the concept of the breeder’s exemp-
tion in the UPOV Convention which ref‌lects the view of UPOV
that the worldwide community of breeders needs access to all
forms of breeding material to sustain progress in plant breeding
and hence maximize the use of genetic resources for the benef‌it
of society. The communications also include reference to the
inherent benef‌it-sharing principles of the UPOV Co nvention,
in the form of breeder’s exemption and other exceptions to the
breeder’s right. Concern is expressed with respect to any other
measures for benef‌it-sharing that could introduce unnecessary
barriers to progress in breeding and the utilization of genetic
resources. Finally, UPOV urges the Working Grou p on Access
and Benef‌it-Sharing to recognize these principles in its work and
to ensure that any measures it develops are supportive of these
principles and of the UPOV Convention.
UPOV is of the opinion that the Convention on Biologi-
cal Diversity and the UPOV Convention should be mutually
supportive and the international regime on access to genetic
resources and benef‌it-sharing should be designed so that the
mutual supportiveness of the UPOV Convention and the CBD
will not be af fected. The views of UPOV with respect to the
work of the Working Group on Access and Benef‌it-Sharing,
adopted by the Council of UPOV at its thirty-seventh ordinary
session on October 23, 2003, were provided to the Secretariat
prior to the second meeting of the Working Group. These views
provide a useful overview of i ssues related to the interna tional
regime from the perspective of UPOV.73
A further contribution was provided by UPOV in prepara-
tion for the fourth meeting of the Working Group on Access and
Benef‌it-Sharing and was made available in a document that high-
lights that the UPOV Convention is not an instrument relating to
access and benef‌it-sharing.74 As further detailed in the UPOV
contribution, it was requested that “consideration is made that
any measures pursued in the international regime do not under-
mine plant variety protection according to the UPOV Conven-
tion. For its part UPOV supports the view that the Convention
on Biological Diversity and relevant international instruments
dealing with intellectual property rights, including the UPOV
Convention, should be mutually supportive.”75
UPOV has also prepared a study76 on the impact of plant
variety protection and its report is now available on UPOV’s
website. The study indicates that “the UPOV system of plant
variety protection provides an effective incentive for plant
breeding in many different situations and in various sectors, and
results in the development of new, improved varieties of benef‌it
for farmers, growers and consumers” and that “farmers, grow-
ers and breeders have access to best varieties produced by the
breeders throughout UPOV member territories.”77
The position of the UPOV Council on access to genetic
resources and benef‌it-sharing related to plant breeders’ rights
(“PBR”) (adopted by the UPOV Council in its thirty-seventh ses-
sion, on October 23, 2003), mentioned above, needs to be brief‌ly
presented here to fully understand the options and scenarios.
Access to genetic resources: “UPOV considers that plant
breeding is a fundamental aspect of sustainable use and devel-
opment of genetic resources. It is of the opinion that access to
genetic resources is a key requirement for sustainable and sub-
stantial progress in plant breeding. The concept of the “breeders’
exemption” in the UPOV Convention, whereby acts done for the
purpose of breeding other varieties are not subject to any restric-
tion, ref‌lects the view of UPOV that the worldwide community
of breeders needs access to all forms of breeding material to sus-
tain greatest progress in plant breeding, and thereby, to maxi-
mize the use of genetic resources for the benef‌it of society.”78
Disclosure of origin: “. . . UPOV encourages information
on the origin of the plant material, used in breeding of the vari-
ety, to be provided where this facilitates the examination [for
compliance with the conditions of protection], but could not
accept this as an additional condition of protection since the
UPOV Convention provides that protection should be granted
to plan t varieties fulf‌illing the conditions of novelty, distinct-
ness, uniformity, stability and a suitable denomination and does
not allow any further or different conditions for protection . . . .
Thus, if a Country decides, in the frame of its overall policy, to
introduce a mechanism for the disclosure of countries of origin
or geographical origin of genetic resources, such a mechanism
should not be introduced in a narrow sense, as a condition for
plant variety protection. A separate mechanism from the plant
variety legislation, such as that used for phytosanitary require-
ments, could be applie d uniformly to all activitie s concerning
31 SUSTAINABLE DEVELOPMENT LAW & POLICY
the commercialization of varieties, including, for example, seed
quality or other marketing related regulations”79
Prior Informed Consent: “. . . UPOV encourages the prin-
ciples of transparency and ethical behaviour in the course of
conducting breeding activities and, in this regard, the access to
the genetic material used for the development of a new variety
should be done respecting the legal framework of the country
of origin of the genetic material. However, the UPOV Conven-
tion requires that the breeder rights should not be subject to any
further or different conditions than those required to obtain pro-
tection. UPOV notes that this is consistent with article 15 of the
CBD, which provides that the determination of access to genetic
resources rests with the national governments and is subject to
national legislation. . . .”80
Benef‌it-sharing: “UPOV would be concerned if any mecha-
nisms to claim the sharing of revenues were to impose an addi-
tional administrative burden on the authority entrusted with the
grant of breeder’s rights and an additional f‌inancial obligation
on the breeder when varieties are used for further breeding.
Indeed, such an obligation for benef‌it sharing would be incom-
patible with the principle of the breeder´s exemption established
in the UPOV Convention whereby acts done for the purpose of
breeding other varieties are not, under the UPOV Convention,
subject to any restriction and the breeders of protected varieties
(initial varieties) are not entitled to f‌inancial benef‌it sharing of
varieties developed from the initial varieties, except in the case
of essentially derived varieties. . . .”81
Access and PBR: The legislation on access to genetic mate-
rial and the legislation dealing with the grant of breeders’ rights
pursue different objectives, have different scopes of applica-
tion, and require a different administrative structure to monitor
their implementation. Therefore, it is considered appropriate to
include them in different legislation, although such legislation
should be compatible and mutually supportive.82
Later, the UPOV Council, at its twent y-f‌ifth extraordinary
session held in Geneva on April 11, 2008, decided to request the
COP IX to include in the IR decisions the following paragraphs:
“Recognizing that UPOV supports the view that the Convention
on Biological Resources and the UPOV Convention should be
mutually supportive” and “Further Instructs the Ad-hoc Open
Ended Working Group on Access and Benef‌it Sharing that any
provisions which it develops for an international regime on
access and benef‌it sharing should ensure mutual supportiveness
with the UPOV Convention.”83
THE RELATIONSHIPS BETWEEN UPOV AND THE IR
UPOV has a direct relevance for the sustainable use of plant
genetic resources and for the CBD objectives. However, in the
light of the current IR negotiations, the most relevant issues con-
necting the IR and UPOV are the disclosure of origin/certif‌icate
and its relationship with UPOV provisions, and the technology
transfer measures related to Plant Breeders Rights. A potential
disclosure requirement/check point for the certif‌icate would be
the plant breeders’ right applications,84 but UPOV is of the opin-
ion that this could not be an additional condition of protection.
Also TT provisions to be included in the IR could be related to
Plant Breeders’ Rights.
It does not seem that the current IR components as set forth
in Annex to Decision IX/12 or in the Draft Protocol could nega-
tively impact the basic principles of UPOV, including the freedom
to use developed varieties that are protected solely by PVP for
further breeding without the consent of the breeder (the breeder
exemption),85 except for the issue of disclosure of origin drafted
as a condition for protection. However, depending on the form of
any future amendments or recommendations and resulting obliga-
tions, there may still be the potential to impact UPOV principles.
OPTIONS AND SCENARIOS
THE IR AND THE WTO
There are three relevant aspects of the IR which may have
an impact on the WTO rules: the disclosure of origin; the cer-
tif‌icate of compliance; and technology transfer. The follow-
ing paragraphs explore the different scenarios and options.86 It
should be pointed out again that the current text of the Draft
Protocol is entirely open to further negotiations and nothing of
its content can be considered agreed.
• Disclo sure requirements/certif‌icate of compliance devel-
oped in the CBD IR negotiations and its relationship to the
WTO provisions.
The inclusion and discussion of disclosure requirements and
the use of the certif‌icate in patent applications have both been con-
tentious issues during the IR negotiations.87 However, one poten-
tial scenario would be the inclusion of some form of disclosure
requirement in the IR negotiations. In this regard, it has been sug-
gested that the inclusion of mechanisms such as the disclosure of
origin of genetic resources and traditional knowledge, or the cer-
tif‌icate in patent or other IPR f‌iling procedures as proposed, would
strengthen mutual supportiveness between the WTO’s IPR sys-
tem and the CBD ABS IR. Due to the nature of a legally binding
instrument of the ABS Protocol, the countries should develop—in
their national legislation—disclosure of origin requirements to
comply with the international obligations. While there may be
some variances with regard to the scope, consequences, and prac-
tical operations of these requirements, some experts agree that88
in general the requirements of disclosure do not run counter to the
international IP agreements (with regard to the UPOV Conven-
tion, see paragraph 78) and the TRIPS agreement in particular.89
In addition, there are ongoing negotiations regarding disclosure at
the WTO and no f‌inal decision has been made yet whether or not
to accept the disclosure requirements in the TRIPS Agreement.
Alternatively, a “soft version” of the disclosure could also be
developed at the CBD to encourage the adherence of some coun-
tries that are already opposed to disclosure requirement (both in
the WTO and the CBD).90 However, some delegations and stake-
holders do not support any disclosure requirements in IP appli-
cations, and support alternative mechanisms to address concerns
regarding misappropriation. In their view, new patent disclosure
requirements will be ineffective in promoting the objectives
sought and will introduce uncertainties into the patent system.
32SPRING 2010
Under this scenario (the development of disclosure require-
ments in the IR), the IR negotiations could promote more clar-
ity on relevant issues, such as the meaning and implications of
prior informed consent (“PIC”) and benef‌it-sharing require-
ments. Some of the objections to the disclosure provisions are
related to the lack of clarity about the exact scope and the legal
implications of the terms used. A number of terms and concepts
that are central to the ABS regime, such as “fair and equitable
benef‌it sharing,” “traditional knowledge,” and “access to genetic
resources” are not def‌ined in the CBD. The def‌inition of terms
is an ongoing process in the CBD and was included in the man-
date of prior ABS Working Group meetings.91 The IR could
clarify issues of PIC, benef‌it-sharing, certif‌icate of origin, etc. It
also could offer guidance on key
topics, such as the scope of the
terms “genetic resource” and
“biological resource.”
This scenario would pres-
ent two main disadvantages:
the condition of non-CBD
Party United Sta tes, a relevant
IP country, and diff‌iculties for
the integration of the disclosure
requirements into the IP system
if the provisions would be inte-
grated in the CBD.92
In relation to the certifi-
cate, the IR could provide the
necessary practica l and opera-
tional details for its use in IPR
applications. The certif‌icate as
such has not been discussed
at the WTO, but the develop-
ment of appropriate provisions
on the certif‌icate under the IR
could facilitate the use of the
certif‌icate for disclosure of ori-
gin purposes. It is clear that the certif‌icate has a broader scope
and objectives than merely serving as an instrument to promote
disclosure.93 However, a certif‌icate system that serves merely to
demonstrate compliance with the requirements of the laws of the
providing country, and a legal title to use of the resources and
identify the rights and limitations attached to the access and use,
would not appear to run counter the WTO rules. It would depend
on how the certif‌icate, if agreed, is f‌inally designed. The certif‌i-
cate, if it is designed in a non discriminatory fashion, could be
in harmony with the trade system and both instruments could be
developed in a mutually supportive manner.
• Disclosure of origin/source at the WTO.
A different scenario is the incorporation of disclosure provi-
sions at the WTO (in this case through a legally binding amend-
ment to the TRIPS Agreement). The exact scope and precise
content of a potential amendment of the WTO is still uncertain
(whether or not sanctions for non-compliance will be outside the
patent law or not; the necessity of proving compliance with PIC
and benef‌it-sharing; etc) as well as the amendment per se. This
scenario would also create mutual supportiveness between the
IPR system of the WTO and the CBD ABS IR.
In addition, under this scenario the disclosure could con-
tribute to the “defensive protection” 94 of traditional knowledge
(“TK), therefore supporting the TK component as well as the
compliance component under the IR. Requirements for dis-
closure of the origin of traditional knowledge associated with
genetic resources may assist in ensuring prior informed consent
and equitable benef‌it-sharing with regard to both traditional
knowledge and the associated genetic resources.
Considering the large membership of the WTO and its eco-
nomic relevance for the Contracting Parties, this amendment
would promote a better and wider
integration of the disclosure of
origin in the IP system (and in
the national laws) and would
promote broad implement ation
of the instrument. In this case,
the CBD may provide assistance
and coordination in developing
and implementing disclosure
requirements by clarifying terms
and instruments, including the
certif‌icate role in the disclosure.
A reference and description of
the disclosure mechanism in the
context Protocol could also be
established, but the substantive
provisions would be integrated
into the TRIPS agreement.
No disclosure requirements in
either instrument.
Anot her sc enario would
be the absence of disclosure
re quir emen t pr ovis ions in
both the CBD IR and in the WTO. In this case there will be
no conf‌lict between the IR and WTO, but, in the view of some
countries and experts, an opportunity to promote mutual sup-
portiveness between the WTO IPR system and the CBD ABS IR
could be lost. However, some countries and stakeholders sup-
port this approach because it would avoid the alleged negative
consequences of new patent disclosure requirements mentioned
before. These delegations and stakeholders support other mech-
anisms to address concerns regarding misappropriation.
• Technology transfer provisions developed in the IR
Technology transfer provisions could be specif‌ically devel-
oped in the context of the IR benef‌it sharing component in line with
the current provisions and language of the CBD itself. This actually
has been included in the current Draft Protocol (article 18 bis).95
However, considering that the current text is open for nego-
tiations, TT provisions could end up in different forms in the
f‌inal version of the Protocol. The IR could set minimum require-
ments for benef‌it-sharing to be included in the mutually agreed
The effective
implementation of the
international regime
will demand input and
collaboration from a
range of organizations
and fora to ensure that
all cross-sectoral
issues are given due
consideration and effect.
SUSTAINABLE DEVELOPMENT LAW & POLICY33
terms, including TT. Technology transfer measures could also
be developed as a direct obligation for CBD Members. These
provisions could be similar to the ones already included in the
CBD (articles 15, 16, and 19).96
Both types of provisions could be drafted to be in harmony
and provide mutual supportiveness between the IR and the WTO/
TRIPS IPR provisions.97 These measures would be compatible
and mutually supportive of the WTO efforts and text regarding
technology transfer, including the Doha Mandate (par. 19).98
THE IR AND UPOV
Despite the UPOV Council position on the IR and the
UPOV Convention, some authors are of the opinion that a dis-
closure of origin requirement does not necessarily conf‌lict with
UPOV basic rules.99 At the same time, there are no known ini-
tiatives within UPOV to modify the UPOV Convention for the
inclusion of disclosure requirements. With regard to the WTO
discussions on disclosure, these take place in the context of the
patent system and would not affect PBR protection.100
• Disclosure/ce rtif‌icate requirements established for PBR in
the IR101
For these reasons, a potential option to include the disclo-
sure of origin in PBR as a result of the CBD IR negotiations
could conf‌lict with the UPOV interpretation of the compatibility
between the disclosure requirements and UPOV conditions for
protection,102 if the disclosure requirements were drafted as an
additional condition for protection.
Due to the fact that the IR negotiations outcome on disclo-
sure is to be contained in a legally binding instrument, a poten-
tial inconsistency between the two agreements would exist. Such
an approach could be a disincentive for the UPOV members to
become Parties to the legally binding IR.
Another option is to amend the UPOV Convention to
include a disclosure of origin condition for the protection of
Plant Breeders’ Rights. However, there is no information that
such a process has been suggested by UPOV members.
• Exclusion of PBR from the disclosure/certif‌icate or an alter-
native drafting
One option is to exclude PBR applications from the dis-
closure provisions or to create a different and special system,
taking into account both the legal and technical implications of
such system for the case of plant varieties. A special disclosure
requirement could be designed taking into account the legal
requirements and conditions established in the UPOV Conven-
tion and the process of the access and use of plant genetic mate-
rial for the breeding of new varieties.
• Technology transfer provisions and UPOV
There are not specif‌ic technology transfer provisions as
such in the UPOV Convention. However, similar arguments
and conclusions to the ones presented in the WTO section could
be made with regard to TT provisions developed in the IR and
UPOV.103 The IR could establish TT provisions related to plant
variety protection, which could co-exist in harmony and be
mutually supportive of the UPOV Convention.
• IR statement on mutual supportiveness with the UPOV
Convention
UPOV Council statements have called repeatedly for
mutual supportiveness between both instruments. In addition,
references to UPOV in the current IR negotiating text are found
under some of the options for the IR Scope. One possible option
is to expressly include a reference to the mutual supportiveness
between the UPOV Convention and the IR. However, it could
be objected to on the grounds that similar statements could also
be made for many other international instruments and processes.
CONCLUSION
There is a lot of space to strengthen mutual supportiveness
between the IR outcome and the WTO, WIPO, and UPOV pro-
cesses and instruments. In principle, the IR Protocol, could co-
exist in harmony with the other treaties or processes, taking into
account the arguments and options presented in this article.
The calls for mutual supportiveness between the CBD,
WTO, WIPO, and UPOV regimes can be read as implying the
need to make compatible multiple regimes with very different
objectives, approaches, and values demanding and claiming
legal protection.104
The effective implementation of the international regime
will demand input and collaboration from a range of organiza-
tions and fora to ensure that all cross-sectoral issues are given
due consideration and effect.105 Therefore, it is important to fos-
ter closer co-operation and co-ordination between the processes
of the WTO and UPOV and the Convention IR negotiations in
order to better capitalize on potential synergies between the pro-
spective international regime on ABS and the IP system.
1 U.N. Convention on Biological Diversity art. 15(1), June 5, 1992, 1760
U.N.T.S. 79, available at http://www.cbd.int/convention/convention.shtml.
2 Id. art. 1.
3 Id. art. 15(7).
4 Id. art. 15(4), (5).
5 Id. art. 8(j).
6 Sixth Ordinary Meeting of the Conference of the Parties to the Convention
on Biological Diversity, the Hague, Neth., Apr. 7-19, 2002, Access and benef‌it-
sharing as related to genetic resources, U.N. Doc. UNEP/CBD/COP/DEC/
Endnotes: The Relationship Between the Access and Benef‌it Sharing
International Regimen and Other International Instruments
the World Trade Organization and the International Union
for the Protection of New Varieties of Plants
Endnotes: The Relationship Between the Access and
Benef‌it Sharing… continued on page 50

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