by guest contributors Carla Bengoa Rojas, policy advisor on biodiversity and intellectual property matters and Pag-Yendu M. Yentcharé, Postdoctoral Research Fellow at the Intellectual Property Unit of the University of Cape Town.
Multilateral Matters
An occasional blog on international developments related to intellectual property, innovation, development and public policy
Preface by Adjunct Professor Wend Wendland
In November 2018, Multilateral Matters #2 described the context and background to this negotiation, flagged the main intellectual property (IP) issues and described the process up to that time. At that stage, there was not yet a zero draft of the instrument. As of today, an Intergovernmental Conference on an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction has met three times, most recently in August 2019. The fourth session had been scheduled for March/April 2020, but the formal negotiations were interrupted by the COVID pandemic. The fourth, and formally the final, session is now scheduled for 2022. The latest draft of the text of an “agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” will be the focus of the continued negotiations.
In view of the imminent resumption of the negotiations, I invited two experts who have been following the process closely to provide a refresher on the main IP issues and an update on the process, Carla Bengoa Rojas and Pag-Yendu M. Yentcharé.
For readers who may not know, “BBNJ” is shorthand for “biodiversity of areas beyond national jurisdiction”.
Over to Carla and Pag-Yendu.
Let’s quickly recap
Since Multilateral Matters # 2 was published, two sessions of the BBNJ Intergovernmental Conference took place. During the second session (IGC-2), held from March to April 2019, the President’s Aid was discussed, which listed a series of issues, questions, and options in which most delegations converged at the meeting of the Preparatory Committee. The document organised all of these elements around the four thematic clusters being negotiated: marine genetic resources (MGRs); area-based management tools, capacity-building; and the transfer of marine technology. It served mostly to kick off the negotiations, allowing some countries to determine their preferred options and giving all of them some ground to propose text to develop a zero draft.
A first version of the zero draft was published by President (of the Intergovernmental Conference) Rena Lee (Singapore) in July 2019, permitting textual negotiations for the first time during the process. Based on the discussions held during the third session (IGC-3) in August 2019, and earlier proposals submitted by delegations, a revised draft text of an agreement[1] was produced and will be the basis for the next round of negotiations to take place during the fourth session (IGC-4), now postponed to 2022. In the meantime, the draft text of an agreement has served to inform dialogues held under virtual sessions of intersessional work carried out between September 2020 and March 2021, in preparation for IGC-4.
An intellectual property look into the BBNJ
Of the four clusters being negotiated under the BBNJ, MGRs and the sharing of the benefits arising from their utilisation is arguably the most challenging.[2] In fact, countries have encountered numerous difficulties to conciliate their diverse interests and positions about the definition of MGRs, the very idea of benefit-sharing, rules to enact it and the potential monitoring system to ensure its effectiveness. As a result, at what is meant to be the final stage of negotiations, we are still faced with a “sea of possibilities” of how to address this issue from a policy perspective.
This article aims at briefly presenting some of the main areas of discrepancy in the ongoing negotiations about the governance of MGRs beyond national jurisdictions. Specifically, we will try to pin down the implications that the different policy options currently on the table have on the IP arena. Our ultimate objective is to provide a snapshot of some of the key issues of the MGR discussions that those involved in the IP field should keep an eye on.
Dipping a toe in the water
Since the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to Biodiversity Beyond National Jurisdictions was created in 2004, experts have identified multiple issues that are crucial for the regulation of MGRs from areas beyond national jurisdictions.[3] However, the starting point of the discussions to develop an International Legally Binding Instrument (ILBI) is, without a doubt, the legal nature of these resources.[4] Are MGRs from areas beyond national jurisdictions part of the common heritage of mankind or covered under the freedom of the high seas principle?[5]
On one side, developed countries tend to defend a position in which MGRs beyond national jurisdictions fall under the principle of the freedom of the high seas. This principle essentially means that access to MGRs for scientific research purposes should be free.[6] Therefore, IP rights deriving from their exploitation should be exclusively vested in the individuals or companies responsible for such research. This position is consistent with the interests of many companies in those countries that own IP rights, including patents on inventions based on or derived from MGRs.[7] It is also consistent with the historical posture of many developed States that had endorsed the positions of private companies located in their territories and advocated for the construction of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) which essentially reflected their ethical values and commercial interests.[8] On the opposite side, developing nations (mostly), with limited capacities to undertake marine bioprospecting activities, argue in favour of the applicability of the common heritage of mankind principle to MGRs. In this scenario, such advocation to vest rights to MGRs in humankind forbids their acquisition by private actors or the exercise of countries’ sovereignty over them. It however fosters their governance through a common management regime, translated in the creation of appropriate institutions, in which developing countries have a say along with developed countries.[9]
At a first glance, this position may seem contradictory in light of the principle they defended in the context of negotiations on the access and benefit-sharing of terrestrial genetic resources. During the international negotiations that led to the adoption of the Convention on Biological Diversity (CBD) in 1992, developing countries denounced the fact that terrestrial genetic resources were considered part of the common heritage of humanity. Such a situation constituted for them an environmental injustice because the users of these genetic resources, primarily located in developed countries, could have access to them free of charge, without being required to pay anything in return and with the freedom to resell at a high cost the fruits of the innovation produced related to the genetic resources collected.[10] Benefit-sharing was then justified on the ground of another principle, that of state sovereignty over natural resources based in their territories.[11] However, benefit-sharing from the utilisation of natural resources is now considered the most novel – yet still controversial – feature of the principle of the common heritage of mankind.[12] For obvious geographical reasons, the principle of state sovereignty over natural resources is – under the BBNJ forum – inoperable to sustain developing countries’ legitimate interests (in fact, there is a prohibition for countries to exercise their sovereignty over high seas where MGRs are found).
This lack of consensus on which principles should guide the governance of MGRs (and what precisely the principles actually mean) has remained at the centre of the discussion for over a decade and has important repercussions on the sharing of the benefits arising from the utilisation of MGRs beyond national jurisdictions, and their potential appropriation through IP rights.[13]
Comparing intellectual property and access and benefit-sharing regimes
When regulating genetic resources and their associated traditional knowledge (TK), access and benefit-sharing and IP regimes often overlap. Despite there being a tight link between these two regimes, it is worth highlighting the clear distinction between them.
IP regimes (patents, copyrights, trademarks, etc.) offer property-like protection to intellectual creations. Patents protect inventions that are novel, non-obvious (represent an inventive step) and industrially useful. For example, patents can protect the process of making a vaccine against the coronavirus, and the vaccine itself. Innovation in the life sciences -such as vaccines- is sometimes inspired by or builds on the properties of genetic resources. Most types of IP are limited in time. Once inventions are ready to be commercialised, trademarks help differentiate a company’s products from its competitors’ products. Therefore, in order to be protected, trademarks must be distinctive. IP is often the crowning achievement of research and development processes, which are sometimes subjected to access and benefit-sharing regimes.
Access and benefit-sharing regimes are mechanisms instituted in the realm of international environmental/human rights law as a way to provide for fairness and equity in the enjoyment of natural resources and associated TK. In a nutshell, these regimes establish rules to access genetic resources and/or associated TK, including obligations to share monetary and non-monetary advantages with their providers (as established in the CBD and its Nagoya Protocol) or the society at large (possible scenario should the eventual BBNJ instrument include a reference to the common heritage of mankind principle).
Access and benefit-sharing rules have been deemed necessary by the international community for several reasons, among which some of the most important are the need to incentivise providers in conserving biological diversity and associated TK for their continued use, and the necessity to avoid the misappropriation of genetic resources and associated TK, also known as biopiracy. Biopiracy typically happens when genetic resources and/or associated TK are illegally accessed and used to develop innovations, which are subsequently protected through IP tools like patents.
Now let’s move on to the IP nitty-gritty
The common heritage of mankind principle goes hand in hand with the establishment of an access and benefit-sharing mechanism for the use of MGRs beyond national jurisdictions. There is yet not full agreement on the inclusion of access and benefit-sharing modalities in the ILBI. However, as shown below in the current text of draft articles 10 and 11, there seems to be some leaning towards their inclusion.
[Article 10 [Collection of] [and] [Access to] marine genetic resources of areas beyond national jurisdiction]
(…)
[5. States Parties shall take the necessary legislative, administrative or policy measures, as appropriate, to ensure that activities with respect to marine genetic resources of areas beyond national jurisdiction that may result in the utilization of marine genetic resources found in areas both within and beyond national jurisdiction are subject to the prior notification and consultation of the coastal States [and any other relevant State] concerned, with a view to avoiding infringement of the rights and legitimate interests of [that] [those] State[s].]
[6. States Parties shall take the necessary legislative, administrative or policy measures, as appropriate, to ensure that marine genetic resources of areas beyond national jurisdiction utilized within their jurisdiction have been [collected] [and] [accessed] in accordance with this Part.]
[Article 11 [Fair and equitable] sharing of benefits]
[1. States Parties, including their nationals, that have [collected] [accessed] [utilized] marine genetic resources of areas beyond national jurisdiction [shall] [may] share benefits arising therefrom [in a fair and equitable manner] with other States Parties, with consideration for the special requirements of developing States Parties, in particular, least developed countries, landlocked developing countries, geographically disadvantaged States, small island developing States, coastal African States and developing middle-income countries [, in accordance with this Part].]
[2. Benefits [shall] [may] include [monetary and] non-monetary benefits.]
[3. Benefits arising from [the collection of] [access to] [the utilization of] marine genetic resources of areas beyond national jurisdiction [shall] [may] be shared at different stages, in accordance with the following provisions:
[(a) Monetary benefits [shall] [may] be shared against an embargo period for [marine genetic resources in silico] [digital sequence information] [genetic sequence data] or upon the commercialization of products that are based on marine genetic resources of areas beyond national jurisdiction [in the form of milestone payments]. The rate of payments of monetary benefits shall be determined by the Conference of the Parties. [Payments shall be made to the special fund];]
[(b) Non-monetary benefits [, such as access to samples and sample collections, sharing of information, such as pre-cruise or pre-research information, post-cruise or post-research notification, transfer of technology and capacity building,] [shall] [may] be shared upon [the collection of] [access to] [the utilization of] marine genetic resources of areas beyond national jurisdiction. Samples, data and related information [shall] [may] be made available in open access [through the clearing-house mechanism [upon [collection] [access] [after […] years]]]. [[Marine genetic resources in silico] [Digital sequence information] [Genetic sequence data] related to marine genetic resources of areas beyond national jurisdiction [shall] [may] be published and used taking into account current international practice in the field.]]
[4. Benefits shared in accordance with this Part shall be used:
[(a) To contribute to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction;]
[(b) To promote scientific research and facilitate [the collection of] [access to] marine genetic resources of areas beyond national jurisdiction;]
[(c) To build capacity to [collect] [access] and utilize marine genetic resources of areas beyond national jurisdiction [, including through common funding or pool funding for research cruises and collaboration in sample collection and data access where adjacent coastal States [shall] [may] be invited to participate, taking into account the varying economic circumstances of States that wish to participate];]
[(d) To create and strengthen the capacity of States Parties to conserve and use sustainably marine biological diversity of areas beyond national jurisdiction, with a focus on small island developing States;]
[(e) To support the transfer of marine technology;]
[(f) To assist developing States Parties in attending the meetings of the Conference of the Parties.]]
[5. States Parties shall take the necessary legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from [the collection of] [access to] [the utilization of] marine genetic resources of areas beyond national jurisdiction by natural or juridical persons under their jurisdiction are shared in accordance with this Agreement.]
In a scenario in which an access and benefit-sharing regime might be put in place, IP rights can have a key role in encouraging inventors to share the benefits arising from the utilisation of MGRs beyond national jurisdictions.[14] In this line, various States have pushed to include a mandatory disclosure requirement of the origin of MGRs in patent applications.[15] (Multilateral Matters #2 includes a brief explanation of this kind of requirement.) This proposal is based on the conviction that a formal link between a new treaty and the patent system is necessary to ensure benefit-sharing.[16] Countries such as Algeria, Argentina, Iran, Fiji, Papua New Guinea and the Pacific Small Island Developing States (PSIDS) have supported this proposal over the past four years.[17] An attempt to lay the ground for a mutual supportiveness between benefit-sharing and IP regimes on MGRs is included in draft articles 12.1 and 12.3, as shown below:
[Article 12 Intellectual property rights]
[1. States Parties shall cooperate to ensure that intellectual property rights are supportive of and do not run counter to the objectives of this Agreement , and that no action is taken in the context of intellectual property rights that would undermine benefit-sharing and the traceability of marine genetic resources of areas beyond national jurisdiction].]
[2. [Marine genetic resources [collected] [accessed] [utilized] in accordance with this Agreement shall not be subject to patents except where such resources are modified by human intervention resulting in a product capable of industrial application.] [Unless otherwise stated in a patent application or other official filing or recognized public registry, the origin of marine genetic resources utilized in patented applications shall be presumed to be of areas beyond national jurisdiction.]]
[3. States Parties shall take the necessary legislative, administrative or policy measures, as appropriate, to ensure that:
(a) [Users of] [Applicants for patents on inventions that utilize or have utilized] marine genetic resources of areas beyond national jurisdiction disclose the origin of the marine genetic resources that they utilize;
(b) Intellectual property rights applications related to the utilization of marine genetic resources of areas beyond national jurisdiction that do not comply with this Part are not approved.]
The second paragraph of draft article 12 also reflects the common approach for countries to protect bio-based innovations through patent law. In a nutshell, natural products, including MGRs cannot be protected as such, unless they are modified by human intervention. In the latter case, they still have to fulfil procedural conditions (i.e., to be an invention and not merely a discovery) and substantive conditions (i.e., as mentioned above, to be new, involve an inventive step and be capable of industrial application).
A disclosure requirement is not the only transparency obligation related to the IP system that countries are considering introducing into a new instrument. Back in 2016, countries like Argentina proposed that a track and trace mechanism, such as the internationally recognised certificate inspired by Article 17 of the Nagoya Protocol, be also implemented (IISD, 2016: 5)[18]. If a mechanism such as this is incorporated in a new instrument, it is most likely that IP offices would have an important role in monitoring and ensuring compliance with any newly agreed ABS obligations[19]. The monitoring mechanism mentioned can be found, between brackets, in article 13 of the draft text of the agreement.
Or should we get into IP at all?
The European Union, Canada, the United States of America, Switzerland, Norway, the Holy See, Japan, the Republic of Korea, the Russian Federation and Australia, among others, strongly oppose addressing IP rights in the instrument.[20] In view of these countries, regulation on IP would only deter ocean-related research and development. What is more, according to them, is that the BBNJ process would not be the appropriate forum to discuss such issues since institutions such as World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) already do so.[21] On this matter, it should be noted that, although the protection of genetic resources is indeed subject to negotiations at WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, the scope of the international agreement being developed in this WIPO forum is still under discussion. Moreover, excluding genetic resources beyond national jurisdictions from the implementation of the agreement’s provisions is currently an option on the table.
Finally, a position has emerged which goes beyond just questioning whether matters of IP rights should be addressed by the instrument.[22] According to this position, IP rights over MGRs of areas beyond national jurisdiction should explicitly be precluded,[23] and even over innovations based on such resources. This approach attempts to promote innovation by keeping discoveries and research results and even innovations relating to MGR freely accessible to the public.[24] The regulatory option derived from this position cannot be found in the current draft text of the agreement but was included in article 12.2 of the first version.
Adding one more layer of complexity
The controversies outlined above become even more intricate when the debate on the scope of the definition of MGRs is introduced. While some States, mostly developing countries, contend that the definition of MGRs should be as wide as possible to also include Digital Sequence Information (DSI); others, like the United States of America, oppose this, based on the benefits that freely accessible DSI could mean to society.[25] At the bottom of this discussion lie two different views of how DSI should be understood: as associated with tangible and physical resources tied to a place, or as information that cannot be attached to a geography. Adhering to one or the other understanding has important implications on the possibility to conceive an access and benefit-sharing regime for MGRs from areas beyond national jurisdictions.[26] Similarly, it entails practical consequences related to the feasibility of protecting DSI through IPRs.[27]
Digital Sequence Information (DSI)
The term “digital sequence information” is currently undefined, still not used in a uniform way, and interpreted differently by different stakeholders. For present purposes, it refers to immaterial, electronically saved data on genetic resources, including other related information such as annotations and interpretation of such data. In a narrower definition, “digital sequence information” covers only sequence data, i.e., the information obtained through the process of determining and documenting the order of nucleotides or nucleobases in a given fragment of DNA or RNA, which are the building blocks of the chromosomes of organisms”.[28]
Typically, the genetic material was sourced by physically accessing plants, animals or microorganisms in which they were found. However, with recent developments in fields such as bioinformatics, such physical access is becoming more and more obsolete. In fact, it is now easier to access and utilize genetic resources through accessing digital sequence information stored in open-access databases for research and development purposes.[29]
These developments are disrupting existing legal and regulatory frameworks, including ABS regimes. They are being actively analysed in international fora, such as in the context of the CBD, the United Nations Food and Agriculture Organization (FAO), the World Health Organization (WHO) and the WIPO,[30] all of which are likely to significantly impact ongoing negotiations, such as the BBNJ negotiations discussed here and the negotiations underway at WIPO.
To those who see DSI as an intangible asset, measures such as obtaining prior informed consent (PIC) and sharing benefits on mutually agreed terms (MAT), would be impossible because of the way that DSI is produced, stored and transmitted. Meanwhile, those who think of DSI as a material element argue that it could be regulated through contractual measures and, thus, should be included in an access and benefit-sharing regime. And, even though proponents of the latter view acknowledge both the difficulties of regulating DSI as well as the benefits of open access, they refuse to accept that DSI continues to be accessed freely.[31]
Yet, even those who do agree that DSI is an immaterial good do not necessarily see eye to eye on whether DSI should be able to be protected through IP rights such as patents, copyright or trade secrets. On this issue, once again, two positions have emerged. One of the positions states that DSI should be subject to an open source regime, in which biological data is freely accessible and shared in order to foster rapid discoveries. The other position poses a more traditional approach, consisting of allowing the IP system to protect DSI to create incentives for innovation as well as returns for financial investments.[32] It is worth noting that, in countries such as the United States of America and Australia, judicial courts have already ruled against patent protection for isolated genomic DNA, short sequences of synthesised complementary DNA and some longer sequences of synthesised complementary DNA that do not comply with the patentability requirements.[33]
Last but not least
Lastly, the extent to which traditional knowledge associated to marine areas beyond national jurisdictions will be regulated is another discussion that increases the complexity of the issues related to MGRs being negotiated at the BBNJ process. States such as the Federal States of Micronesia have suggested that indigenous communities in coastal States be required to provide PIC and receive benefits for the utilisation of their traditional knowledge (TK) about resources in areas beyond national jurisdictions.[34] Such a regulatory proposal can be found in draft article 10bis and it virtually mirrors Article 5(5) in the Nagoya Protocol, which provides that “Each Party shall take legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilisation of traditional knowledge associated with genetic resources are shared in a fair and equitable way with indigenous and local communities holding such knowledge. Such sharing shall be upon mutually agreed terms”. It is, however, not clear whether this proposal will be persuasive for negotiating Parties. On the one hand, it should demonstrate that coastal States’ indigenous communities are custodians of and/or have developed valuable TK associated with MGRs. On the other hand, this TK should inspire researchers to use MGRs for developing new cosmetic, food or pharmaceutical products.
Conclusions
International negotiations to regulate the utilisation of MGRs beyond national jurisdictions have proved to be extremely difficult due to the lack of consensus on whether the principles of the freedom of research on the high seas or the principle of the common heritage of humanity should guide their governance.[35] Whether access and benefit-sharing rules will be adopted is still uncertain, which – at the moment – leaves multiple potential IP-related scenarios and a range of policy options open.
Interestingly, this overview of the current draft text of an agreement so far suggests that no exceptionally new IP consideration has arisen under the BBNJ process. On the contrary, the main ideas under discussion are already being addressed in several other arenas. To name a few, proposals for the (mandatory) disclosure of origin of genetic resources have been made several years ago and are currently under negotiation in the framework of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore; and benefit-sharing derived from the utilisation of DSI is being analysed in the context of the CBD.
When the BBNJ process resumes, we can only hope that a consensus is reached between State Parties to this multilateral environmental agreement. However, regardless of the outcomes of these negotiations, it should be remembered that the international IP regime has already been successful in enabling legal and policy environments supportive of biotechnology innovations. Efforts are also made to support regimes that protect the rights of holders of genetic resources and associated traditional knowledge, by making, where appropriate, strategic use of existing IP tools (for example, using geographical indications or trademarks to protect TK-based innovations). Maybe countries (especially developing countries) could draw on such a strategic approach rooted in international intellectual property law to harness the benefits of MGR in areas beyond national jurisdictions.
This blog is written exclusively in the author(s)’s capacity. Any views expressed are those of the author(s) alone and do not necessarily represent the views of any organisation or institution. This blog was written in September/October 2021.
Endnotes
[1] Revised Draft Text, A Conf. 232/2020/3, dated November 18, 2019, https://undocs.org/en/a/conf.232/2020/3 (accessed May 30, 2021).
[2] Rabone, Muriel, et al, «Access to Marine Genetic Resources (MGR): raising awareness of best-practice through a new agreement for Biodiversity Beyond National Jurisdiction (BBNJ)» Frontiers in Marine Science 6 (2019): 520 at page 2.
[3] Chiarolla, Claudio, «The Work of the World Intellectual Property Organization (WIPO) and its possible relevance for global ocean governance» (2016) Comprehensive study on effective and sustainable global ocean governance: UN specialized agencies and global ocean governance, IMO (International Maritime Organization)/IMLI (International Maritime Law Institute) research report to the Nippon Foundation, at page 8-9.
[4] Chiarolla, Claudio, «The Work of the World Intellectual Property Organization (WIPO) and its possible relevance for global ocean governance» (2016)Comprehensive study on effective and sustainable global ocean governance: UN specialized agencies and global ocean governance, IMO (International Maritime Organization)/IMLI (International Maritime Law Institute) research report to the Nippon Foundation. See also De Lucia, Vito, «The Concept of Commons and Marine Genetic Resources in Areas beyond National Jurisdiction» (2018).
[5] Chiarolla, Claudio, «The Work of the World Intellectual Property Organization (WIPO) and its possible relevance for global ocean governance» (2016) Comprehensive study on effective and sustainable global ocean governance: UN specialized agencies and global ocean governance, IMO (International Maritime Organization)/IMLI (International Maritime Law Institute) research report to the Nippon Foundation. See also Wright, Glen, et al, «The long and winding road: negotiating a treaty for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction» (2018) Paris: IDDRI.
[6] Chiarolla, Claudio, «Intellectual property rights and benefit sharing from marine genetic resources in areas beyond national jurisdiction: current discussions and regulatory options» (2014) Queen Mary Journal of Intellectual Property 4.3, 171-194. See also Chiarolla, Claudio, «The Work of the World Intellectual Property Organization (WIPO) and its possible relevance for global ocean governance» Comprehensive study on effective and sustainable global ocean governance: UN specialized agencies and global ocean governance», IMO (International Maritime Organization)/IMLI (International Maritime Law Institute) research report to the Nippon Foundation (2016); Correa, C., «Access to and benefit-sharing of marine genetic resources beyond national jurisdiction: Developing a new legally binding instrument» (2017) Routledge handbook of biodiversity and the law. Routledge, 157-174; Mendenhall, E., et al. «A soft treaty, hard to reach: the second inter-governmental conference for biodiversity beyond national jurisdiction» Marine Policy 108 (2019): 103664; and Wright, Glen, et al, «The long and winding road: negotiating a treaty for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction» (2018) Paris: IDDRI.
[7] Robert Blasiak et al, « Corporate control and global governance of marine genetic resources » (2018) 4:6 Science advances eaar5237.
[8] See New York Times, « Stealing from the Mind » (1989) Section A, at p. 23. See also Daniel J Gervais, The TRIPS agreement: drafting history and analysis, 4th ed éd, London, Sweet & Maxwell, 2012 à la p 14; Jean-Frédéric Morin, Le bilatéralisme américain : la nouvelle frontière du droit international des brevets, Bruxelles, Larcier, 2007 at pages 105‑116.
[9] In the scenario advocated by developed countries (i.e., the principle of freedoms of high seas), the private actor who appropriated MGRs or the country with sovereignty over them would decide alone of their use.
[10] R Jayakumar Nayar & David Mohan Ong, « Developing countries, development and the conservation of biological diversity » (1996) 235 International Law and the Conservation of Biological Diversity aux pp 237‑238; Jean-Maurice Arbour et al, Droit international de l’environnement, 3e édition éd, Montréal, Québec, Éditions Yvon Blais, 2016 at pages pp 411‑413.
[11] Permanent Sovereignty over Natural Resources General Assembly resolution, UNGA Res 1803 (XVII) Doc off AGNU, 17e sess. Supp n°17, Doc. NU A/5217 (1962) 15.
[12] John E Noyes, « The common heritage of mankind: past, present, and future » (2020) 40:1 Denver Journal of International Law & Policy 24 at page 449.
[13] Chiarolla, C., «Intellectual property rights and benefit sharing from marine genetic resources in areas beyond national jurisdiction: current discussions and regulatory options» (2014) Queen Mary Journal of Intellectual Property 4.3, 171-194 at page 173.
[14] Broggiato, A., et al. «Fair and equitable sharing of benefits from the utilization of marine genetic resources in areas beyond national jurisdiction: Bridging the gaps between science and policy» (2014) Marine Policy 49, 176-185. See also Chiarolla, C., «Intellectual Property from a Global Environmental Law Perspective: Lessons from Patent Disclosure Requirements for Genetic Resources and Traditional Knowledge» (2019) Transnational Environmental Law 8.3, 503-521 at page 8.
[15] Chiarolla, C., «The Work of the World Intellectual Property Organization (WIPO) and its possible relevance for global ocean governance» (2016) Comprehensive study on effective and sustainable global ocean governance: UN specialized agencies and global ocean governance», IMO (International Maritime Organization)/IMLI (International Maritime Law Institute) research report to the Nippon Foundation. See also Thambisetty, S., «Marine Genetic Resources Beyond National Jurisdictions: Components of a Fair, Informed and Progressive Internationally Binding Legal Instrument» (2018) Informed and Progressive Internationally Binding Legal Instrument (July 17, 2018).
[16] Thambisetty, S., «Marine Genetic Resources Beyond National Jurisdictions: Components of a Fair, Informed and Progressive Internationally Binding Legal Instrument» (2018) Informed and Progressive Internationally Binding Legal Instrument (July 17, 2018).
[17] International Institute for Sustainable Development (IISD), Earth Negotiations Bulletin (2019) 25:195. See also IISD, Earth Negotiations Bulletin (2019) 25:216.
[18] International Institute for Sustainable Development (IISD), Earth Negotiations Bulletin (2016) 25:118.
[19] International Institute for Sustainable Development (IISD), Earth Negotiations Bulletin (2019) 25:195. See also IISD, Earth Negotiations Bulletin (2019) 25:216.
[20] Chiarolla, C., «The Work of the World Intellectual Property Organization (WIPO) and its possible relevance for global ocean governance» (2016) Comprehensive study on effective and sustainable global ocean governance: UN specialized agencies and global ocean governance, IMO (International Maritime Organization)/IMLI (International Maritime Law Institute) research report to the Nippon Foundation at page 10. See also Thambisetty, S., «Marine Genetic Resources Beyond National Jurisdictions: Components of a Fair, Informed and Progressive Internationally Binding Legal Instrument»(2018) Informed and Progressive Internationally Binding Legal Instrument (July 17, 2018) at pages 7-8.
[21] IISD, Earth Negotiations Bulletin (2019) 25:195. See also IISD, Earth Negotiations Bulletin (2019) 25:187.
[22] Chiarolla, C., «The Work of the World Intellectual Property Organization (WIPO) and its possible relevance for global ocean governance» (2016) Comprehensive study on effective and sustainable global ocean governance: UN specialized agencies and global ocean governance, IMO (International Maritime Organization)/IMLI (International Maritime Law Institute) research report to the Nippon Foundation, at page 11. See also Leary, D., «Agreeing to disagree on what we have or have not agreed on: the current state of play of the BBNJ negotiations on the status of marine genetic resources in areas beyond national jurisdiction» (2019) Marine Policy 99, 21-29 at page 27; and Thambisetty, S., «Marine Genetic Resources Beyond National Jurisdictions: Components of a Fair, Informed and Progressive Internationally Binding Legal Instrument» (2018) Informed and Progressive Internationally Binding Legal Instrument (July 17, 2018) at page 7.
[23] Lyons, Y., and D. Cheong, «The international legal framework for the protection and sustainable use of marine biological diversity» (2017) Routledge Handbook of Biodiversity and the Law. Routledge, 60-82 at page 74.
[24] Thambisetty, S., «Marine Genetic Resources Beyond National Jurisdictions: Components of a Fair, Informed and Progressive Internationally Binding Legal Instrument» (2018) Informed and Progressive Internationally Binding Legal Instrument (July 17, 2018) at page 8.
[25] Correa, C., «Access to and benefit-sharing of marine genetic resources beyond national jurisdiction: Developing a new legally binding instrument» (2017) Routledge handbook of biodiversity and the law, Routledge, 157-174, at pages 17-20.
[26] De Lucia, V., «The Concept of Commons and Marine Genetic Resources in Areas beyond National Jurisdiction» (2018) at page 12. See also Karger, E., P. du Plessis, and H. Meyer. «Digital sequence information on genetic resources (DSI): An introductory guide for African policymakers and stakeholders» Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH Bonn and Eschborn 19 (2019) at page 7; and Leary,D., «Agreeing to disagree on what we have or have not agreed on: the current state of play of the BBNJ negotiations on the status of marine genetic resources in areas beyond national jurisdiction» (2019) Marine Policy 99, 21-29 at page 27.
[27] Thambisetty, S., «Marine Genetic Resources Beyond National Jurisdictions: Components of a Fair, Informed and Progressive Internationally Binding Legal Instrument» (2018) Informed and Progressive Internationally Binding Legal Instrument (July 17, 2018) at page 2.
[28] Bagley, M, «De-materializing genetic RESOURCES: Synthetic biology, intellectual property and the ABS bypass» (2017) Routledge Handbook of Biodiversity and the Law. Routledge, 219-236.
[29] For further information, see Claudia Seitz, Digital sequence information–legal questions for patent, copyright, trade secret protection and sharing of genomic sequencing data , IOP Publishing, 2020; Kaspar Sollberger, Digital Sequence Information and the Nagoya Protocol. Legal Expert Brief on Behalf of the Swiss Federal Office for the Environment (FOEN), 2018.
[30] WIPO, Intellectual Property and Genetic Resources, Brief 10. Retrieved from https://www.wipo.int/edocs/pubdocs/en/wipo_pub_tk_10.pdf (accessed May 30, 2021).
[31] Stuart J Smyth, et al., Implications of biological information digitization: Access and benefit sharing of plant genetic resources, 23 THE JOURNAL OF WORLD INTELLECTUAL PROPERTY (2020) at page 276.
[32] Karger, E., P. du Plessis, and H. Meyer. «Digital sequence information on genetic resources (DSI): An introductory guide for African policymakers and stakeholders» Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH Bonn and Eschborn 19 (2019) at page 7. See also Thambisetty, S., «Marine Genetic Resources Beyond National Jurisdictions: Components of a Fair, Informed and Progressive Internationally Binding Legal Instrument» (2018) Informed and Progressive Internationally Binding Legal Instrument (July 17, 2018) at page 2.
[33] Bagley, M, «De-materializing genetic RESOURCES: Synthetic biology, intellectual property and the ABS bypass» (2017) Routledge Handbook of Biodiversity and the Law. Routledge, 219-236 at pages 221-222.
[34] Bagley, M, «De-materializing genetic RESOURCES: Synthetic biology, intellectual property and the ABS bypass» (2017) Routledge Handbook of Biodiversity and the Law. Routledge, 219-236 at page 222.
[35] Morgera, E., Tsioumani, E., and and D. Diz. Benefit-Sharing in marine areas beyond national jurisdiction:
where are we at? (Part IV) (2016). Retrieved from https://www.oceanactionhub.org/benefit-sharing-marine-areas-beyond-national-jurisdiction-where-are-we-part-iv-benelex
[36] Elisa Morgera, Fair and equitable benefit-sharing in a new treaty on marine biodiversity: a principled approach towards partnership building?, 5 MARITIME SAFETY AND SECURITY LAW JOURNAL (2018-2019) at page 50.