“Undoing the Knot in A&BS Transactions: In Search of Amicable Solutions” Introduction Gerd Winter

Art. 2 CBD "Genetic material" means any material of plant, animal, microbial or other origin containing functional units of heredity. "Genetic resources" means genetic material of actual or potential value. Genetic resource material of plant, animal, microbial or other origin containing functional units of heredity of actual or potential value Any biological material can be regarded as genetic resource if acceded and used for its containing functional units of heredity of value. If not, i.e. if used eg for consumption goals (e.g. wood, crops) biological material escapes the special regime of Art. 15 CBD

Art. 15 CBD Access to genetic resources 1. Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation. 2. Each Contracting Party shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention. 4. Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article. 5. Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party. Art. 8 CBD In-situ conservation The Contracting parties shall... (j)... respect, preserve and maintain knowledge... of indigenous and local communities... relevant for the... sustainable use of biological diversity and promote their wider application with the approval... of the holders of such knowledge... and encourage the equitable sharing of the benefits arising from the utilization...

Authority to determine access Geographical dimension (“their”) –Genetic resource must have genuine link to a state –no leaving of the country without respect for the access requirements (if enacted) Substantive dimension (“genetic ressource”, TK) –appropriation of material –use of services –appropriation of genetic potential of material –use of genetic potential of material Not covered: information about genetic resources, except TK: material (except TK) its services (except TK) technology how to extract services (except TK) hereditary traits of value (genes and their functions)

Demand for access Commercial: demand sometimes overestimated, but significant health and medicine: mainly via intermediaries botanical medicine: substantial quantity of plant material imported cosmetics and personal care: minor demand for GR agriculture, plant breeding: widely based on ex situ collections pest control: access to GR needed horticulture: mostly based on ex-situ collections biotechnology: high demand. Focus on microorganisms which rarely have a genuine link acquaculture, ornamental fishery: rising demand Science, botanical gardens: high demand of GR

Dialectics of property and common space GR common good „by nature“ –Genetic resources created by nature and society –Knowledge about genetic resources created by society Privatisation as a stimulans and reward for industrial innovation/investment => extending to life forms –Patent rights –Breeders´ rights –Trade marks –Trade secrets Communalisation as a means to ensure access and use of everybody –Public space –Narrow scope and content of IP (eg discoveries/inventions, no IP in life forms, compulsory licensing)

Privatisation by developing states/ farmers/ traditional communities –PIC –Benefit sharing –Sui generis protection Difficulty of privatising the per se „communal“ –What is and whose is traditional knowledge? –To whom belongs a genetic resource if found in several states? –Whose is disseminated knowledge? –How not to hinder basic research? Two basic options: –Back to communalisation –the private as a trust

Communalisation: Concept of fair commons –Model: Convention on Plant Genetic Resources; Science Commons Project; MOSAIC –Data banks describing genetic resources (plants, animals, microorganisms) –Data banks on knowledge about genetic resources (genes, functions, etc.) –Claims for genuine link; procedure of recognition (multiple TK possible) –Royalties on any use of genetic potential –Fund –Allocation of funds to claim holders for preservation measures for empowerment of grass roots

The private as a trust: search for concordance between 5 interests property claims of grass roots appropriation claims of modern sector sovereignty claim of developing states claim of need for common space for resources and knowledge Interest in protection of natural resources Search for new ideas Not so much for international harmonisation But for horizontal dissemination of national regulatory ideas

Eg PIC of traditional communities => anthropological study Disseminated knowledge => funds Authorisation => streamlining; differentiation MAT, MTA => model contracts and provisions Data banks (negative/positive); sui generis regimes public spaces: basic research, botanic gardens EIA Certificate of origin Trade mark Breeders´rights: allowing for farmer´s exceptions Patenting: Disclosure of origin Enforcement of PIC and MAT contracts in user countries Rules of research foundations Certificate of compliance

Structure of workshop as planned –Identifying rights in GR and TK –Comparative regulatory approaches –New ideas –International moves Structure as emerging: –mix of rights and regulation analysis, –mix of analysis and reform –Mix of national and international law Suggestion: focus on new problems and reform suggestions. Collect core ideas and discuss them at the end of each of the two days Summary to be submitted to COP 9 Book (deadline end of may)

Organisation –Dinner: Restaurant STAENDIGE VERTRETUNG, Böttcherstrasse. Meeting at hotels 8.15 p.m –Reimbursement