The future of information under the CBD, Nagoya Protocol, Plant Treaty, and PIP Framework

DOIhttp://doi.org/10.1111/jwip.12118
AuthorMichelle Rourke,Fran Humphries,Charles Lawson
Date01 July 2019
Published date01 July 2019
Received: 17 April 2018
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Revised: 19 September 2018
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Accepted: 31 January 2019
DOI: 10.1111/jwip.12118
ORIGINAL ARTICLE
The future of information under the CBD, Nagoya
Protocol, Plant Treaty, and PIP Framework
Charles Lawson
1
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Fran Humphries
1
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Michelle Rourke
1,2
1
Law Futures Centre and Australian Centre
for Intellectual Property in Agriculture
Griffith Law School Griffith University, Gold
Coast, Queensland, Australia
2
Australian Defence Force Malaria and
Infectious Disease Institute, Enoggera,
Queensland, Australia
Correspondence
Charles Lawson, Australian Centre for
Intellectual Property in Agriculture Griffith
Law School Griffith University, Gold Coast,
QLD 4222, Australia.
Email: c.lawson@griffith.edu.au
Abstract
The United NationsConvention of Biological Diversity (and
the Nagoya Protocol on Access to Genetic Resources and
the Fair and Equitable Sharing of Benefits Arising from their
Utilization), the Food and Agriculture Organisation of the
United NationsInternational Treaty for Plant Genetic
Resources for Food and Agriculture, and the World Health
Organisation of the United Nations(WHO) Pandemic
Influenza Preparedness Framework all set out schemes for
access and benefit sharing (ABS) some biological materials.
This article addresses the apparent conflict between the
general obligations in these agreements to disclose and
exchange information and dealing with information as a
resource derivative within the ABS transaction. This latter
dealing is a closed domain for information under the ABS
schemes where information is a resource derivative that is a
part of the ABS transaction. Treating information as a
resource derivative within the ABS transaction is likely to
impose unnecessary and inefficient burdens on ABS trans-
actions. After reviewing the recent developments, the article
postulates a risk framework for valuing information as a part
of the ABS transaction, or alternatively, a charge, tax, or levy
to externalize the costs so that information remains
available to be disclosed and exchanged promoting more
and better science and research.
KEYWORDS
ABS, CBD, information, Nagoya Protocol, PIP Framework, Plant
Treaty
© 2019 The Authors. The Journal of World Intellectual Property © 2019 John Wiley & Sons Ltd
J World Intellect Prop. 2019;22:103119. wileyonlinelibrary.com/journal/jwip
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INTRODUCTION
The United NationsConvention of Biological Diversity (CBD, 1992), the Nagoya Protocol on Access to Genetic
Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on
Biological Diversity (CBD, 2010b) as a supplementary agreement to the CBD, the Food and Agriculture
Organisation of the United NationsInternational Treaty for Plant Genetic Resources for Food and Agriculture
(Plant Treaty, 2001), and the World Health Organisation of the United Nations(WHO) Pandemic Influenza
Preparedness Framework (WHO, WHA64.5, 2011) all set out schemes for access and benefit sharing (ABS) some
biological materials (CBD, Art 15; Nagoya Protocol, Art 6; Plant Treaty, Art 12; PIP Framework, Art 5.1; see
Lawson, 2012, pp. 125239). Each of these schemes provides for an agreement between the resource holder and
the party seeking access, being an individually negotiated agreement under the CBD (Art 15) and the Nagoya
Protocol (Art 6), or standard material transfer agreements (SMTAs) under the Plant Treaty (Arts 12.4 and 15.1;
FAO, 2006, [12] (Resolution 2/2006) and Appendix G) and PIP Framework (Art 5.4 and Annexes 1 and 2). Under
the CBD and the Nagoya Protocol, these biological materials are genetic resourcescomprising any material of
plant, animal, microbial, or other origin containing functional units of heredity(CBD, Art 2; Nagoya Protocol, Art 2;
CBD (2008), [18] and Annex [3]). In practice, however, this definition has a very flexible meaning and those
implementing the CBD and Nagoya Protocol generally apply the term broadly to include most biological materials
and derivatives (CBD, 2010a; see also CBD, 1996, [35][37]). [1] The Plant Treaty applies to biological materials
that are any genetic material of plant origin of actual or potential value for food and agriculturewhere genetic
materialmeans any material of plant origin, including reproductive and vegetative propagating material,
containing functional units of heredity(Art 2). The Plant Treaty then narrowly addresses only materials that are
available for facilitated access in the Multilateral System (Arts 10 and 11), and these are primarily a list of
agriculturally important Annex 1materials that have been identified as publicly available (Art 11). The PIP
Framework only applies to a narrow range of pandemic influenza viruses comprising human clinical specimens,
virus isolates of wildtype human H5N1 and other influenza viruses with human pandemic potential; and modified
viruses prepared from H5N1 and/or other influenza viruses with human pandemic potential developed by [the]
WHO(Art 4.1).
The CBD, Nagoya Protocol, Plant Treaty, and the PIP Framework also include general information obligations
independent of the ABS contracting obligations (CBD, Arts 16.1, 17.1, 17.2, 18.3; Nagoya Protocol, Art 14; Plant
Treaty, Art 17; PIP Framework, Art 5.1.3). These general information obligations are intended to promote the
disclosure and exchange of information. They are, however, different and contrast with the information treated as a
derivative of the materials within the ABS transaction itself, which becomes a distinct commodity with a value that
ABS attempts to translate into definable benefits. The concern of this article is the conflict between information as
an element of ABS (so a resource derivative) and the general information obligations to make information broadly
available. The following quote captures the concern in the context of sharing virus genetic sequence data(GSD)
under the PIP Framework where information that falls within the general information obligations substitutes for
the physical materials that are otherwise a part of the ABS transaction, in effect, eviscerating the benefit sharing
within the ABS transaction:
GSD and physical materials are dealt with differently under the PIP Framework GSD is not included in
the definition of PIP Framework biological materials, and there is no mechanism (trigger) to operationalize
the requirement for benefitsharing from GSD. Thus, there is a dissonance between the way the PIP
Framework treats GSD and the reality in which it is used by scientists. This dissonance, if not resolved soon,
could threaten the relevance of the PIP Framework because the sharing of GSD largely operates outside the
virus sharing and benefit sharing rules of the PIP Framework (WHO, 2017, Annex [p. 49]).
Each of the CBD, Nagoya Protocol, Plant Treaty, and the PIP Framework governing bodies have started to
address this problem in the context of digital sequence informationunder the CBD, Nagoya Protocol, and Plant
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LAWSON ET AL.

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