Initiative for the Prevention of Biopiracy, Research Documents, Year IV, No. 11
79 Pages Posted: 25 Jul 2009 Last revised: 14 May 2014
Date Written: July 23, 2009
Parties to the Convention on Biological Diversity are entering the final stages of the negotiation of an international regime on access to genetic resources and benefit-sharing to address the problem of biopiracy of genetic resources and traditional knowledge. As the negotiations move towards the expected adoption of the framework for the international regime at COP10 in Nagoya, Japan, in October 2010, debates can be said to be poised between two extremes. The first is represented as business as usual in the form of purely voluntary measures that will fail to address the problem of biopiracy or misappropriation and enable the benefit-sharing provisions of the Convention. The second is represented by assertions of state sovereignty as ownership of both genetic resources and traditional knowledge at the expense of the underlying rights of indigenous peoples and local communities, the access provisions of the Convention and the non-commercial research sector. As a consequence one inequitable situation may well be exchanged for another.
This discussion paper argues that people, peoples and communities should be at the heart of the international regime. Specifically the paper argues that the international regime should facilitate choices for ordinary providers, such as indigenous peoples and local communities, in making knowledge and resources available. The argument in favour of the enablement of choices is based on the growing success of commons and open source licensing in the realm of software, creative works and their increasing application in the realm of biology. Drawing on the principle of reciprocity in economic anthropology and experiences with open source and commons licensing the discussion paper provides the outline for what could be called an 'access and benefit-sharing commons' to be based on licensing provisions for three categories of utilization of genetic resources and traditional knowledge within the existing negotiating text. These categories are: a) non-commercial research and development; b) commercial research and development, and; c) commercialization.
In drawing attention to the possibility of opening up the middle ground in access and benefit-sharing the discussion points to the importance of focusing on actual values of biodiversity and traditional knowledge as articulated in exchange relationships predicated on the principle of reciprocity rather than grasping ever harder at potential value. Open source and commons licensing models provide important opportunities to construct an international regime that is respectful of actual values and at the same time allows potential value to be realised for the generation of public goods.
Operational text proposals to enable this approach in the negotiating text are provided in the Appendix. The discussion paper is also available from the CBD website as UNEP/CBD/WG-ABS/8/INF/3 and the Appendix containing operational text is accessible through the CBD website on the ABS submissions section under the ESRC Centre for Economic and Social Aspects of Genomics (Cesagen).
Keywords: access and benefit sharing, convention on biological diversity, open source biology, open source, creative commons, science commons, biopiracy, international regime on access to genetic resources and benefit-sharing, intellectual property, patents, traditional knowledge, economic anthropology
JEL Classification: A14, F13, H41, H77, K11, K33, N5, O19, 034
Suggested Citation: Suggested Citation
Oldham, Paul D., An Access and Benefit-Sharing Commons? The Role of Commons/Open Source Licences in the International Regime on Access to Genetic Resources and Benefit-Sharing (July 23, 2009). Initiative for the Prevention of Biopiracy, Research Documents, Year IV, No. 11. Available at SSRN: https://ssrn.com/abstract=1438027 or http://dx.doi.org/10.2139/ssrn.1438027
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