Presentation on theme: "Genetic Resources, Traditional Knowledge and Science: an Institutional Economics Framework for Analysing Policy and Defining Rights and Rules Pierluigi."— Presentation transcript:
1Genetic Resources, Traditional Knowledge and Science: an Institutional Economics Framework for Analysing Policy and Defining Rights and RulesPierluigi BozziEnvironmental EconomicsFaculty of EconomicsUniversity of Rome “La Sapienza”
2Genetic Resources Traditional Rural Societies collective knowledges and collective innovationsScientific-Industrialized Worldprivatised Knowledges and privatised innovationsGenetic Resourcesgive rise to a meeting/clash between the scientific-industrialised world and traditional rural societies - between different behaviours, modes of production, consumption and investment
3Ecosystems and Human Integrated Systems Genetic Informations Knowledge BiotechnologyGenetic sequencesEcosystems and Human Integrated SystemsGenetic Informations KnowledgePharmaceutical IndustryGenetic ResourcesMoleculesApplied use of phenotypeAgro-industryThe uniqueness of genetic resources, and the consequent complexity of managing them, results from their two-fold nature: on the one hand, they are natural material resources, strongly linked to, and integrated into, “local” life cycles of ecosystems; on the other hand they are also sources of, and containers of, scientific information and knowledge - non-tangible assets that are completely detachable from the local context to which they belong.The information and knowledge set in motion by genetic resources are divided up into innumerable “fragments” of knowledge, and they are utilized “apparently detached” from the natural systems in which the genetic resources originate.
4Ecosystems and Human Integrated Systems Genetic Resources Knowledge G.M.O.BiotechnologyNew DrugsEcosystems and Human Integrated SystemsMarketGenetic Resources KnowledgePharmaceutical IndustryMarketImproved Varietes“Innovative” Agricultural PoliciesAgro-industryBut in fact these “fragments” re-enter this site of origin, transported by market forces. They take the form of improved, or genetically modified, plant varieties, of new pharmaceutical drugs, or, more simply, of innovative agricultural policies which have been fabricated in the international markets
5International Market D i s t o r t i o n s Local MarketsInternationalEcosystemsUse of Genetic Resources KnowledgeDynamics of Genetic EvolutionGenetic ResourcesD i s t o r t i o n sHuman Integrated SystemsMarketLocal MarketsIn this way distortions are introduced into the local markets, and these have repercussions on the use of natural resources - on those practices and traditional knowledges which have enabled human systems and natural systems to co-evolve. The dynamics of genetic evolution, which is strictly tied to the socio-economic structure of the locality, is influenced negativelyHow can this viscious circle be transformed into a virtuous one that produces benefits both for local systems and for megadiverse countries?
6give rise to unprecedented types of relationships involving How can the seeming contradictions between conservation and innovation - between the knowledge and “traditional science” of rural societies and the “industrialized science” of the international markets - be tackled?Scientific Industrialized WorldTraditional Rural SocietesGenetic ResourcesKnowledge EconomyEconomy of the LivingThe meeting between the knowledge economy and the “economy of the living”The increasing interdependence of the marketsThe high rates of technological innovation in the knowledge economy, tied to a “return” to exploitation of the “land” (i.e. genetic resources) factor of production for the generation of high profitsThe absolute novelty of a natural resource – the genetic material - as an independent source of production and reproduction of information-knowledge-innovationThe meeting/clash between the scientific-industrialized world and the traditional worlds of “informal sciences”give rise to unprecedented types of relationships involvingCultural sphereSocial sphereEconomic sphere
7new Policies new Rights new Rules Fundamental reform of the institutional structures upon which the market operates is therefore necessary. A three-stage innovative institutional framework is required:new Policies new Rights new RulesHow should we operate in the institutional arena of economic policy?Institutions are a society's “game rules”, or, more formally, the constraints that humans have defined to discipline their relationships (North, 1994)The methodology of institutional economicsevolution and development of the economic systemformal institutionsinformal institutionsScientific-Industrialised WorldTraditional Rural SocietiesGenetic ResourcesTraditional rural societies tend to be characterised by a structure based on informal institutions: behaviours derived from the cultural traditions, moral codes etc. Industrialised societies are characterised by formal institutions: constitutional, political and economic rules and contractual regulations
8Two institutional systems Two distinct productive processes in the life cycle of genetic resources and innovationScientific Industrialised WorldTraditional Rural SocietesGenetic ResourcesTraditional rural societies are characterised by:informal institutionsbehavior deriving from cultural traditionscommon and collective laws“public domain” and social networks for the production and transmission of knowledge and “informal traditional science”absence of financial capital investment and the dependence on “natural capital”aversion to riskThe industrialized society is characterised by:formal institutionsbehavior modeled on the rules of the marketprivate lawprivate laws of intellectual property and commercial channels of production and purchase knowledge, “formal industrialized science”dependent on financial capital and risk capital (venture capital in biotechnology)propensity for risk
9Scientific Industrialised World Traditional Rural Societes Genetic ResourcesInterest in the conservation of biodiversity and in the maintenance of ecological niches having an “insurance value”local markets with a multiplicity of diversified “ecological-commercial niches”a group of highly-substitutable goods (a multiplicity of available local variety to satisfy similar or alternative uses)a natural adaptive-evolutionary dynamic of freely available scientific innovation and outputInterest in the fragmentation of biodiversity and of related knowledge, to make possible, by means of financial instruments, the withdrawal, the purchase, and the industrial management of a single resource, without territorial-environmental limitsinternational markets offering a limited range of homogeneous goodsa group of minimally-substitutable goods (think of the scarcity and vulnerability of the plant varieties available on international agro-industry markets)scientific-industrial dynamics of innovation. Scientific output is “enclosed” by the law of privacy of intellectual property and by the rules of industrial secrecy
10Scientific Industrialised World Traditional Rural SocietesGenetic ResourcesThe productive economic organization is inseparable from the socio-institutional-environmental organizationEntrepreneurial economic organization is independent of socio-environmental organizationThe socio-economic structure of rural society optimizes biodiversity conservationTransference of industrial scientific modes of production to traditional rural societies is not conceivable
11How to link the two worlds and the “two sciences”? Scientific Industrialised WorldTraditional Rural SocietesGenetic ResourcesIn the formulation of policy we must therefore tackle the following questions:How to link the two worlds and the “two sciences”?How to avoid the distortions and failures of the market from inevitably contaminating traditional systems?How to benefit from the advancement of “formal science” in connection with the evolution of the “informal science” of rural systems, in order to reach the goals of conserving biodiversity and reducing poverty?In other terms, how to optimize the benefits for society?
12promote the “local integrated systems” of biodiversity and knowledge Scientific Industrialised WorldTraditional Rural SocietesGenetic ResourcesThe need arises of creating a unified policy for science and for conservation in order topromote the “local integrated systems” of biodiversity and knowledgeexploit the comparative advantages offered by the wealth of biodiversity, of endemism, of ecosystems and of integrated human systems, which effectively are unique “intergenerational high technology scientific laboratories” that cannot be found elsewhereoppose the distorting power of international markets by means that derive from the conservation of, and utilization of, local resources – both natural and social. These may include incentives and utility in addition to monetary profits accruing to others
13International Market D i s t o r t i o n s Local Markets Ecosystems Use of Genetic Resources KnowledgeDynamics of Genetic EvolutionGenetic ResourcesD i s t o r t i o n sHuman Integrated SystemsMarketLocal MarketsThe power of international markets, as an offer of an improved variety on behalf of agro-industry, can be stopped only ifthe production of local varieties are directly more competitive, in terms of price and/or utility valueand/or if the life cycle of local varieties involve clear and measurable external economies for the entire structure of the socio-economy of the area; if, that is, the local integrated system is more competitive in its totality in comparison to what agro- industry can offer, because it receives more benefits, even of a different nature and not only monetary, from the maintenance of the production of this local variety
14But the two conditions can come about if: The same considerations can be made for medicinal plants or for non-timber forest productsScientificIndustrialisedWorldEcosystemsEntireSocio-EconomicStructureD i s t o r t i o n sCollectiveRightsPrivate Intellectual Property RightsHuman Integrated SystemsBut the two conditions can come about if:A) the entire socio-economic structure of the area is respected and conserved, legitimating the institutional order, “the rules of the game” that supports that community, with a consequent form of recognition of collective-community rights and of customary law on genetic resources and on the related knowledge
15+ Biodiversity Research Trajectories Rights Rules Official Decentralised ScienceScientific CapabilitiesBiodiversity Research TrajectoriesRights Rules+Traditional KnowledgePower of NegotiatingB)If there is the adoption of a policy and institutional organization for a “official decentralized science”, that accompanies the evolution of “informal science”, responding to the needs of the community and local markets,if the “innovation in situ” is the result of the participation of farmers, or healers, “informal researchers” that know, experiment and spread scientific findingsif the research trajectories are delineated in function of the wealth of biodiversity of the areaif there are economic-institutional regimes, contractual laws and rules:that consent to the acquisition of the scientific capabilities that are necessary to overcome the gap which penalizes the traditional rural societies and of non-industrialized countries andthat give to local communities and non-industrialized countries, the power of negotiating and the tools to reduce the cost of transactions and asymmetrical information, in order to keep, in international markets, commercial exchange relationships that are fair and equal
16Genetic Resources Knowledge Intellectual Property If then the economic-institution reference framework is that of collective rights of the traditional rural society, how do we define the rights and rules of international relations, where the opposite regime of private law of intellectual property is currently the propulsive platform of the economic system?To confront this question we need to analyze the function and the effects of private intellectual propertyMarketGenetic Resources KnowledgeIntellectualPropertyIntellectual PropertyGenetic ResourcesKnowledgeThe market can operate if there are defined and assigned property rights on the goods subject to exchange. If in nature the genetic resources (subject and container of knowledge) are freely available, the regime of intellectual property becomes the instrument that makes possible the fragmentation, the appropriation and the exchange.
17Genetic Resources Knowledge Intellectual Property MarketIntellectualGenetic Resources KnowledgePropertyIntellectual PropertyGenetic ResourcesKnowledgeIntellectual property rights create for the owner“an artificial monopoly”that determines an extra-profitjustified as incentive-remuneration of the creativity and of the innovation (or of the investment necessary for its production)and by the presupposed of continual spill over of knowledge and creative capability fed by this mechanism and otherwise not realizableIn other words the real objective of intellectual property would be that of generating a constant dynamic process of the production of knowledge and invention to the benefit of society
18Genetic Resources Knowledge Intellectual Property MarketIntellectualGenetic Resources KnowledgePropertyIntellectual PropertyGenetic ResourcesKnowledgeBut problems arise from the rigidity and standardized way this model is imposed upon all economic sectors, both industrial and agricultural, upon all the sciences, and, indiscriminately, upon all countries. It is done as if the methods of education, training and scientific advance in the aerospace industry, for example, were identical to those in the agricultural industry; as if the way research was organised in both industries were identical, as if both required the same time periods to develop an innovation, and had identical requirements regarding investment funding. It is done as if the level of scientific research and the need to protect inventions were identical in Nepal and in JapanThe respective realities in each of these case are, of course, anything but identical, but in spite of this, the obligatory application of the same model is envisaged.
19Genetic Resources Knowledge Intellectual Property MarketIntellectualGenetic Resources KnowledgePropertyIntellectual PropertyGenetic ResourcesKnowledgeThe model of exclusive private property rights (absolute ownership) over inventions gives the following entitlements:The power of an individual to use, or not to use, an invention, and as a consequence, to use or not to use, a “body, or pathway, of knowledge”the power to transfer ownership of an invention to othersthe power to prevent others from using that “body, or pathway, of knowledge”, thereby blocking any form of further scientific investigation, or alternative lines of research, with regard to it. The patent holder may therefore block any alternative research that is not in accordance with its business strategy, even if the research would prove useful to the country of origin of the resourceOwnership for a fixed term (20 years in the majority of cases), rather than variable, as logic would demand, according to the different modes of operation, or the different rates of technological innovation, or the unequal times required for returns on investment in the different marketsAll of these are factors that not only vary between industry and agriculture, but can also be completely different even within the same sector, or for the same plant variety in different geographical areas
20Genetic Informations Knowledge Intellectual Property ??Genetic Informations KnowledgeIntellectual PropertyResearch??And above all, what follows from this is the impossibility of the society or state to control how and if these scientific findings and resources are used.In other words, a community or country loses control over their own resources, over the scientific and commercial potential of these resources. But happens specifically in the biologic-biotechnology field? A farmer in agriculture is “field researcher”, an industrial aerospace worker is not a researcher.In other words, if the real objective of the intellectual property model would be that of generating a constantly dynamic productive process of knowledge and invention for social benefit, in biologic-biotechnological sector this model is not applicable because this objective is attained in completely different way that in other sciences
21Scientific Industrialised World Traditional Rural SocietesGenetic ResourcesField ResearchIn the biologic-biotechnological area, research and development experience a constant forced reciprocity:with field researchwith the organisms that contain genetic materialwith their natural environmentwith the selective knowledge-experimentation-pressure accumulated in time by the local populationA dynamic human evolution mutation-selection-adaptability-innovation natural-innovation that makes up the research and development engine that is not repeatable in the laboratory.An ecological niche cannot be “moved to a research centre”.In the biological disciplines the confining of knowledge and of invention in the closed areas of intellectual property and industrial secrets is contrary to the scientific dynamism and to the same interests of “official science”
22Scientific Industrialised World Traditional Rural SocietesGenetic ResourcesEnormous opportunities are offered by this exceptionality of biologic- biotechnology science: non-industrialized countries and rural societies in general, perhaps for the first time in history, can possess the “scientific structure and capacity of high technology”.An ecosystem, integrated with the cultural diversity of the place, has the same meaning, for the biological disciplines, of a “technological pole of excellence” with researchers specialized in nuclear physics.In so much as there exists an organization and institutional order, laws and rules, that optimize this potentiality. But what happens in the negotiations relative to genetic resources and traditional knowledge?Bio-prospecting contracts, or other similar agreements, are subject to the intellectual property regime, to which they are directed: and therefore guarantee to those who perform the research (i.e. international companies) the exclusive ownership of future scientific results
23Genetic Resources Knowledge Intellectual Property MarketIntellectualGenetic Resources KnowledgePropertyIntellectual PropertyGenetic ResourcesKnowledgeTherefore the companies are interested, once the contract is signed, in not disclosuring the research goals and activity, and to keep them under the protection of “industrial secrets”. But companies are interested in “maintaining industrial secrets” in general on all scientific knowledge and commercial information that they possess.More information about contractual dealings on the other side, the community or provider country, would empower them in the negotiating process.“The market” before being “a place” where goods are exchanged is “a market of information”, that is, a place where information is exchanged in order to evaluate the different benefits of the commercial exchanges. “Asymmetric information” favours unjustly, and inefficiently economically, only one side in comparison to the other, who can never conclude just and equal contracts.All of the resources that the sides possess can never be adequately utilized and therefore the benefits for the whole society cannot be optimized
24Genetic Resources Knowledge Intellectual Property MarketIntellectualGenetic Resources KnowledgePropertyIntellectual PropertyGenetic ResourcesKnowledgeThis interest in “maintaining industrial secrets” is extended to scientific knowledge and to all commercial information relative to plant variety and to molecular and genetic sequencing that is not yet subject to contractual agreements, but which can in the future become part of the business strategy of the company.And then why disclosure information that favours the competition?In other words, the bio-prospecting agreements are subject to the contractual power of the “strong side”, which currently comes from the scientific industrialized world.But wasn’t the objective of intellectual property that of generating a constantly dynamic production of knowledge and invention?What spill over of knowledge and creative capacity can ever be achieved between the industrial world and the traditional rural systems?
25International Market D i s t o r t i o n s Local Markets Ecosystems Use of Genetic Resources KnowledgeDynamics of Genetic EvolutionGenetic ResourcesD i s t o r t i o n sHuman Integrated SystemsMarketLocal MarketsIn this framework, the international companies, or the centres of specialized research, do not control the genetic resource material, nor of the indispensable “traditional scientific capabilities” of rural society, but they exploit the consequential distortions of an inappropriate and inefficient regime of intellectual property rights in order to perpetrate an “artificial comparative advantage”.In these cases the same rules of the market economy prescribe a correction of the inefficiency by means of institutional economic policy intervention that defines new policies, new rights and new rules
26One amongst a variety of possible work strategies is as follows: Value ofLocal Integrated SystemsRichnessofBiodiversityScientificCapabilitiesFirst StagePolicies and Objectives:As we noted earlier, a unified policy for science and conservation should aim to:recognize the value of, add value, and promote local integrated systems of biodiversity and knowledge.exploit the comparative advantages accruing to richness of biodiversity, of endemism, of ecosystems and of human integrated systems.acquire the scientific capabilities needed to bridge the gap (reduce the inequalities) penalizing traditional rural societies and non-industrialised countries.oppose the distorting power of the international markets, by means deriving from the conservation of and utilization of, local resources, both natural and social (these may include incentives and use values accruing to some biodiversity products, in addition to monetary profits accruing to others).
27Definition of Rights: Legislation Contractual Collective of the Country ofOriginContractualRegulationsin InternationalDealingsSecond StageDefinition of Rights:Consequent upon the First Stage, the definition of rights requires the following:the “game rules” of the traditional rural society and local communities should be respected, with the recognition of collective community rights (including customary laws) over genetic resources and associated knowledge, treated as a single juridical entitythe national legislation of the country of origin of a genetic resource and related knowledge should be recognized as applying in all relationships/dealings (both scientific and commercial) at the national-international level regarding that resource:in order to render collective community rights “indirectly operative” at the level of international scientific and commercial relationships/dealingsin order to make the contractual provisions and regulations drawn up by the country of origin binding in scientific and commercial relationships/dealings at the international level. Such contractual provisions and regulations will be devised by the country of origin in accordance with its own interests and objectives concerning policies for science and conservation
28not allow private intellectual property rights over living matter; In the case that an international agreement on bioprospecting has been stipulated, even if the law of the country in receipt of the genetic material provides for patent rights over it, this can not be freely obtained, owing to the prohibition existing in the legislation of the country of origin.In other cases, a foreign company would have to respect the obligation, imposed by local legislation, of joint holding rights over the patent.Legislationof theCountry ofOriginDistortionsof theMarketLicencesof Useand/orResearchThird StageDefinition of RulesIn order to correct the distortions of the market and achieve its policy objectives regarding science, a provider country could provide for a reversal in the paradigm of the current regime of intellectual property rights, in such a way as to:not allow private intellectual property rights over living matter;allow only the granting of “licences of use and/or research” in national and international relationships/dealings.
29Licencesof Useand/orResearchFlexibilityDistortionsof theMarketFlexibleTime Periodto ProvideIncentivesThe granting of such licences would lead to greater flexibility, in contrast to the rigidity of the current system of intellectual property rightsThe concession of a license would bring about greater flexibility in comparison to the rigidity of the current system of intellectual property rights:A) for a time period:a) flexible and inferior to those foreseen by the current regimeb) with the possibility of creating concession time periods in order to provide incentives for research and commercialization.Give sufficiently short deadlines to force the company or specialized centre to really perform the research activity, without running the risk and uncertainties of the long time periods in the current regime of intellectual property
30ContextualLicenses onthe sameGeneticResourcesDistortionsof theMarketLicencesof Useand/orResearchImposedTrajectories ofResearchGreater flexibility in the possibility of conceding more contextual licenses on the same genetic resource, or to set different limitation on each one, according to the specific goals the country wants to achieve:in the different countries that receive the genetic materialin different ecosystemsin different industrial sectors (pharmaceutical industry or agro industry, interested in, for example, the same genetic sequence or in the same plant variety).the provider country could agree or impose in the negotiations specific trajectories of research otherwise not commercially interesting (we could imagine two trajectories of alternative research on the same molecules, one on a neglected disease of local interest and the other on a commercially viable pathology)
31Genetic ResourcesCommoditiesScientificIndustrialisedWorldProviderCountryTraditionalSocietiesScientificIndustrialisedWorldProviderCountryTraditionalSocietiesThe provider country could impose by legislation that in the bio-prospecting agreements there should be a compulsory provision for: the participation of local centres of research and researchers in the scientific activity, in situ and ex-situ, in order to control and lead the partnership in the research activity;financial and scientific assistance for the construction of research centres in situ and for the training of researchers.The inclusion in a single negotiation and in a single licensing contract of both the concessions for the use of the genetic resource as well as the acquisition of scientific capabilities would avoid other negotiations, other contracts, and the subsequently high cost of the transactions. But, above all, this would increase the negotiating power of the provider country or the local community in their claim to scientific compensation without having conceded anything in respect to their own resources
32These are just a few proposals for working strategies which, if re-interpreted and adapted to the specific circumstances of local communities and provider countries, could lead to the drawing up of environmental-economic policies directed not only towards "conservation in situ", but also towards "science in situ".Genetic resources are also scientific resources. “Access to resources” and “benefit sharing” can have a real significance if they are interpreted also as “access to science” and “sharing of the benefits of science”Conservationin situSciencein situAccess toGeneticResourcesAccess toScience