1. Common Pools in Aquaculture – Sui Generis and Other Options for Benefit Sharing Morten Walløe Tvedt and Ane Jørem Senior research fellow, lawyer, and researcher Fridtjof Nansen Institute Seminar on Conservation and Sustainable Use of Marine Biodiversity beyond National Jurisdiction, Bonn, 1.-3. December 2011

2. FNI’s ABS Project Team FNI political science and law Studied biological diversity policy and law for almost 20 years Private independent Norwegian research institute Competence centre on biodiversity policy and law Capacity builiding and implementation consultations for countries: latest Bhutan 2011 and portugues-speaking African counties Looking at international law in a high number og foras: Patent law, IPR, WIPO, FAO, ITPGRFA, CGR etc Team of 7 researchers: Peter Johan Schei, Regine Andersen, Kristin Rosendal, Ole Kristian Fauchald, Morten Walløe Tvedt, Tone Winge, Ane Jørem

3. FNI’s ABS Project Team FNI’s role in ABS: reseach in political science and law Studied biological diversity policy and law for almost 20 years Private independent Norwegian research institute Competence centre on biodiversity policy and law Capacity builiding and implementation consultations for countries: latest Bhutan 2011 Looking at international law in a high number og foras: Patent law, IPR, WIPO, FAO, ITPGRFA, CGR etc Team of 7 researchers: Peter Johan Schei, Regine Andersen, Kristin Rosendal, Ole Kristian Fauchald, Morten Walløe Tvedt, Tone Winge, Ane Jørem

4. Components of the project:  The first research area is international regulation of bioprospecting : What are the options for regulating rights and access to genetic material from the high seas, which is the area beyond national jurisdiction, the exclusive economic zone and in Antarctica, south of 60 degrees South.  The second research area for this project is open source for marine-based innovation : the research question is how innovation may be stimulated and balanced in the marine sector by the use of an open source-based legal system for innovation.  The third research area is to look at potential regulations of collections of marine genetic resources by discussing the particular situation of Marbank and research projects in bioprospecting: How to regulate access to and use of marine genetic resources from such collections in a manner that stimulates research, innovation and investment in this field?

5. Topic for today:  Concept of common pools  The multilateral approach of the ITPGRFA  Concept of farmers’ rights under the ITPGRFA  ABS licensing

6. Topic for today:  Applicability of ABS as we know it from the CBD  Concept of common pools  The multilateral approach of the ITPGRFA  Concept of farmers’ rights under the ITPGRFA  ABS licensing  Some ideas on institutions

7. Applicability of ABS as we know it from the CBD: Rational for ABS:  Counter-balance the IPR/ privatisation tendency of plant sector  Create a revenue for conservation and sustainable use  Stop privatisation from the global common of PGR  Developing countries quid pro quo for conservation Searching a rational for ABS in the ABNJ:  Need for a revenue?  Fairness? Equitable?  Formally open to all – de facto possible to the few ones

8. Applicability of ABS as known from CBD: Character of ABS in CBD and NP  Sovereign rights  Access legislation  Contracts  Genetic resources as an undefined object  Freedom and flag state  Open access  No obvious contracting partner  Activity rather than object Regulatory ‘freedom’ – learning from others  Scope of activity and Clear trigger points  Developed rational (convince counties that status quo should be altered) for A and/or BSh

9. Patent system: Invention eligible for patent protection  Novel – in the technical sense  Inventiveness  Technical effect  Cover the same use by others even found in nature  Relevant to establish private exclusive rights to objects found in the oceans

10. Concept of common pools: Theoretical explainations  Common pools could imply that there is a resources which in one way or another are kept in a non-exclusive or partially exclusive manner among a more or less defined group of legal persons.  Sui generis – undefined general concept, and will necessarily be subject for a more profound analysis and application to the particular features of the aquatic sector.  Open source as a legal concept historizes from the branch of software development and production, as an alternative to strict exclusive patent rights and copyrights.

11. common pool: Topics to deal with if a pool is to be established:  entry into the pool: raw material or innovation and results of innovation? ABS relevant genetic resources IP protected inventions  the pool-participants Open to all Club-thinking  conditions for removing objects from the pool  drawing economic benefits from the pool

12. common pool: Is the International Treaty on Plant Genetic Resources a good example of a common pool?

13. The multilateral approach of the ITPGRFA:  The MLS applies to a group of genetic resources  The MLS applies to material in the public domain and under the control of the parties  The MLS applies for specific uses.  The MLS applies in a group of countries.

14. The multilateral approach of the ITPGRFA:  The MLS applies to a group of genetic resources  Specified to be certain defined species of food and feed  The MLS applies to material in the public domain and under the control of the parties  Public collections and what is brought thereto  The MLS applies for specific uses.  Food and agriculture – not other uses  The MLS applies in a group of countries.  Should a national from a non-member country access?

15. Concept of farmers’ rights under the ITPGRFA: Not very suited for securing the rights of an inventor Lack of legal certainty Lack of exclusivity

16. ABS licensing: Who shall issue the ABS license? Incentives to get a license Certification of equity or sustainability

17. NP ART 10 GLOBAL MULTILATERAL BENEFIT-SHARING MECHANISM: Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilisation of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally. (FNI Report 10/2011 http://www.fni.no/doc&pdf/FNI-R1011.pdf)

18. NP ART 10 GLOBAL MULTILATERAL BENEFIT-SHARING MECHANISM: Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilisation of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally. (FNI Report 10/2011 http://www.fni.no/doc&pdf/FNI-R1011.pdf)

19. NP ART 10 GLOBAL MULTILATERAL BENEFIT-SHARING MECHANISM: Parties shall consider the need for and modalities of a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilisation of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally. (FNI Report 10/2011 http://www.fni.no/doc&pdf/FNI-R1011.pdf)

20. sui generis :  How can access to marine GR be secured also for the future?  How can the investments put into products from marine bioprospecting be secured in a fair manner?

21. open source system:  Learning from software (huge differences as number of developers larger than in GR- research discussion)  The previous contributors to the state  What should be subject to openness) Genetic material, knowledge and innovation  How to capture relative contribution  IP: the patentee takes it all – is it possible to establish a system being ‘fair and equitable’ based on caculating contributions

22. open source system:  Clear copying – high degree of payment back  Technological difficulties in assessing dependence  Factual problems  Legal challenges  International aspects  Challenge to all open source systems: the chance of free riders and even more severe persons appropriating from the pool  Who will control?

23. Some ideas - Challenges in ABNJ: Challenge: the marriage of MPA and benefit sharing from GR A problem or a possibility? Bridge between conservation to sustainable use and benefit sharing Ex situ and in situ as conservation strategies Perhaps: ABS could be the ex situ and MPA be the in situ strategy? CG centre for global deposit of marine genetic resources – living samples and dead samples

24. Some ideas on institutions: ABNJ challenges:  Freedom of the high seas – quite difficult to amend  Introduce jurisdiction at a level above flag state jurisdiction  There are a some challenges which requires global solutions Bioprospecting Protect particular areas Pollution  A non-binding safeguarder of the common interest (ombundsmann or learning from the Brazilian system of ‘procurador’) Recommendations biology, law and sustainability Non-binding but autonomous – outside the scope of nations Initiative: own, by others (states, privates and organisations)

25. Thank you for the attention! mwt@fni.no www.fni.no