Assessment of existing practices, models and mechanisms




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ASSESSMENT OF EXISTING PRACTICES, MODELS AND MECHANISMS (For Non Monetary Benefit Sharing)1




Introduction


In this section, we have reviewed the provisions on non-monetary benefit sharing as provided in 27 different access and benefit-sharing laws (7), regulations (13) and agreements (7).
Different categories can be distinguished, according to their scope, the parties involved, and their level of detail:

  • Access and benefit-sharing laws and regulations developed and adopted by national governments, often in relation to the implementation of the provisions of the Convention on Biological Diversity, and providing a context for the following two categories.

  • General ‘framework agreements’ between institutions, established as collaborative agreements with a wide object coverage.

  • ‘Transaction-specific agreements’ between institutions.

From the analysis of all 27 cases the following conclusions can be drawn:



  • No single approach exists on how to specify and agree on non-monetary benefits.

  • Technology transfer, capacity-building and information exchange are often mentioned but usually without detailed provisions.

  • The level of detail of non-monetary benefit-sharing arrangements is highest in transaction-specific agreements and lowest in national laws and regulations.

National laws and regulations


Although many countries have established some form of access and benefit-sharing regulations, explicit references to non-monetary benefit-sharing arrangements were found in the legislation of only seven countries:

  • Argentina (Law on Access to Genetic Resources: Art. 18).

  • Bangladesh (Biodiversity and Community Knowledge Act (Art 13, 14,16).

  • Bolivia (Supreme Decree No. 24676: Art. 40a-d).

  • Brazil (Provisional measure No. 2.186-16: Art. 25).

  • Costa Rica (Decree No. 31514-MINAE: Art. 6m).

  • India (The Biological Diversity Bill: Art 21:2b-f).

  • The Philippines (Executive Order No. 247: Section 5).

In contrast to the monetary benefit-sharing clauses, most references to non-monetary benefit-sharing remain relatively unspecific. Brazil and Bolivia mention “technology access and transfer”, “unrestricted licensing” and “training of human resources” without further specifications. Bangladesh and Costa Rica have a broader focus on non-monetary benefit-sharing, and include economic, environmental, scientific-technological, social or cultural benefits.


Most specific is the Executive Order of The Philippines, stipulating that collectors must sign either an Academic Research Agreement or a Commercial Research Agreement. As such, the Philippine legislation well exceeds the average national access and benefit-sharing regulation in providing for highly detailed non-monetary benefit-sharing clauses (Sections 5h,i,l).
The laws and regulations cited above provide frameworks and specific points of reference for any implementing arrangement, whether or not involving the government directly as a party to such agreements.
In addition to these laws providing for the conclusion of bilateral contracts, none of the investigated national non-monetary benefit-sharing regulations refer to agricultural practice per se.

Agreements

Institutional framework agreements

The 13 institutional ‘framework agreements’ examined are more detailed than national access and benefit-sharing regulations, and they provide more room for non-monetary benefit-sharing clauses. However, most framework agreements contain relatively unspecific non-monetary benefit-sharing clauses on the ‘exchange of research results’, the ‘supply of training and trainers’, and other forms of support that help to strengthen collaboration between the parties involved. The supply of equipment and other facilities are the subject of only very few framework agreements.

Transaction-specific agreements

All seven specific transaction agreements examined contained explicit provisions on exchange of information, training, research, the supply of collection and research facilities, and the dissemination of research results. It is to be noted that only two of the agreements were linked to agricultural source materials:

  1. In 1997 an agreement was concluded between UC Davis (USA), the University of Mali and the Bela community (Mali) on the access to and benefits from the wild rice gene Xa21 (derived from O.longistaminata). A special Genetic Resources Recognition Fund was founded to finance fellowships at UC Davis for students from source countries, giving priority to Mali. The agreement specifies that farmers in developing countries will be able to acquire seeds of UC Davis' transgenic lines at the same cost as traditional parental lines2.

  2. The Memorandum of Understanding (1998) between USDA, the Paraguayan National University of Asunción, the Ministry of Agriculture and Livestock, the Instituto Agronómico Nacional (IAN), and IPGRI describes the terms under which the USDA can access chilli pepper (Capsicum) germplasm in Paraguay. The source country is offered a security backup of the collection in Paraguay at the USDA National Storage Laboratory, training to IAN scientists, an inventory of wild crop relatives native to Paraguay, and an analysis of in situ preservation of Capsicum3.

It can be concluded from an analysis of these seven agreements that information exchange, technology transfer and capacity building are strongly linked and form elements of benefit-sharing that can not be effectively separated.

Practices, models and mechanisms for non-monetary benefit-sharing

Information exchange

Information exchange is the simplest form and can be realised without significant cost.

Practices. The exchange of results of research is often central and usually takes place on a bilateral basis between the provider and the user. Information exchange might also entail, inter alia, the establishment of inventories or local databases, and the production of joint publications.

Models and mechanisms. Information exchange may involve many partners and can be multilateral by default, especially if the internet is used as an instrument. Electronic publications, including electronic journals and web-based databases, form logical instruments for multilateral information exchange. In a multilateral context, well-accessible web-based databases on genebank holdings such as the System-Wide Information Network for Genetic Resources (SINGER), the Germplasm Resources Information Network (GRIN) and the European Plant Genetic Resources Search Catalogue (EURISCO) are also highly important means of information exchange.
Technology transfer

Practices. Technology transfer forms a part of most institutional framework and transaction-specific access and benefit-sharing agreements, including those dealing with agricultural use. The 20 cases of institutional framework agreements and transaction-specific agreements analysed include only collection building, fermentation and pre-screening activities regarding micro-organisms. However, the use of specific molecular markers and of genomics technology, including the use of large-scale high-throughput analytical tools, as well as DNA-sequencing technology and software to analyse DNA sequences on structure and function, are likely to form part of future access and benefit-sharing arrangements for agricultural use as well. It can also take the form of broad licences offered by universities and industry that provide for royalty free use of protected biological tools and products (e.g., the humanitarian use licenses on Golden Rice and the rice genome information).

Models and mechanisms. The use of genomics and similar technologies are often protected by intellectual property rights. Technology transfer by the private sector under bilateral contracts may involve the transfer of research and product development activities to daughter companies or collaborating national companies and institutes in developing counties. This form of transfer does not necessarily imply a change in ownership of the technology, but does bring employment and raises the expertise in those countries. The Future Harvest Centres of the CGIAR already offer a major mechanism of (multilateral) technology transfer to developing countries and through capacity-building for the use of those materials.

Capacity building

Practices. The cases analysed include university fellowships, training of personnel (including IPR-related training) either in the source country or at the user institution, and training of other users or persons involved in accessing or maintaining germplasm in situ. Furthermore, the establishment of facilities, such as for collection maintenance, and of equipment to enable the application of technologies transferred, form part of access and benefit-sharing agreements. Long-term capacity-building may take the form of institutional development.

Models and mechanisms. Mechanisms may include multi-party programs involving public institutions as well as private companies. The regular training programs and the Challenge programs of the CGIAR form major vehicles for multilateral capacity development. Strengthened university curricula could also make an important contribution including in a multilateral setting using the internet e.g. the Global Open University initiative of the CGIAR.

Table 2. Bilateral model ABS Agreements containing NMBS clauses

Country

Sector

Title of model agreement

NMBS-clauses

Nigeria

Pharma

Model agreement between NIPRD, and “consultant herbalists”

Article 19 stipulates that the NIPRD may render any “assistance” or “concessions” improve the “productivity, efficiency and capability” of the herbalist “whether by way of training or otherwise”.

Australia

“Queensland Biodiscovery Industry”


Model Biodiscovery Benefit-Sharing Agreement was prepared by the State of Queensland, Australia to facilitate the development of the Queensland Biodiscovery Industry

  • Investment in capacity of Q-based biotech. industry

  • Technology transfer to Q-based entities

  • Creation of employment in Q

  • Formation of collaboration with Q-based entities

  • Investment in Q-based entities

  • Investment in R&D infrastructure in Q

  • Conducting field and clinical trials in Q

  • commercial production, processing or manufacture

  • Creation of alternative industries or crops in Q

  • Improved knowledge of Q’s biodiversity

  • Improved knowledge of Q’s natural environment

  • Lodgment of specimens with Q Museum or Herbarium

USA

Pharma

Model Letter of Collaboration: Developmental Therapeutics Program, National Cancer Institute and a Source Country Government or Orghanisation

Article A3: “DTP/NCI will assist . . to develop the capacity to undertake drug discovery and development, including capabilities for the screening and isolation of active compounds from plants, microbes and marine organisms.”

Article A4: “...DTP/NCI agrees to invite a senior technician or scientist … to work in the laboratories of DTP/NCI.”

Article A5: “Once an active agent is approved . . . . will discuss participation by SCI scientists in the development of the specific agent.”


USA

Education

Proprietary Material Transfer Agreement

Article 10: The recipient agrees to send the provider of the material a copy of any such publications at the time of submission or publication.

USA Cameroon Nigeria

Pharma

The ‘Benefit Sharing Plan’ of the International Cooperative Biodiversity Group (ICBG)

The General Principles of the Benefit Sharing Plan identify:

Revenues from the project are used a.o. for “the economic well being of rural communities”

African members of the ICBG are involved in “all stages and in all the aspects of the drug development process”.

A scientific partnership has been established.

Individuals who provided information . . . . must be acknowledged in all publications and patents arising.


Nigeria


Pharma

Fund for Integrated Rural Development and Traditional Medicine

BDCP established a.o. a “Benefits Allocation Committee”, a “Training Committee”, and an “Educational Committee” consisting of local, national and international experts in the relevant fields.

Nigeria

Pharma

Agreement of Principles

Sponsoring of workshops and conferences; conservation training programmes; supply of ethnomedical field research materials and botanical collection supplies; orior informed consent with scientists of University of Nigeria; visit of Nigerian scientists to Shaman Phar. Laboratories

India

Pharma

Know How Licensing Agreement: Tropical Botanic Garden and Research Institute, Kerala and The Arya Vaidya Pharmacy (Coimbatore) Ltd.

TBGRI will in compensation for payments:

Hand over relevant technical documents.

Demonstration of relevant know-how.

Arrange training sessions for the contracting party.

Delivery of qualified personnel.


Sri Lanka

Agriculture

Agreement for the Testing of Plant Extracts

The Company agrees to grant the University of Peradeniya in connection with the project a fellowship for the period of three years.

Switzer-

land

China

Agriculture

Research Agreement between Syngenta Crop Protection AG, and HUBEI Academy of Agricultural Science

IP-related training, technology transfer, exchange of results, etc.

Funding of strain collection, fermentation and prescreening activities in China, transfer of assay technologies and know-how to China, training of Chinese scientists and technicians in Switzerland.



PhilippinesUSA

Pharma

MSI anti-cancer agreement

Complete set of all specimens deposited at UP-MSI

Close collaboration between UP-MSI and University of Utah.



Costa Rica

Pharma

INBio-Merck agreement

Merck provided funding for laboratory material to INBIO

INBio established necessary facilities in Costa Rica for the collection and processing of plants, insects and environmental samples.

INBio hires and trains personnel needed for collection and processing.

Merck provides training for INBio personnel or whomever INBio appoints.



Lebanon United Kingdom

Agricultural

ABS agreement between the Lebanese Agricultural Research Institute and The Board of Trustees of the Royal Botanic Gardens, Kew, United Kingdom

Accession of a representative, viable portion of the Material into the collections at the Seed Bank;

Acknowledgement of LARI as the source of Material in research publications;

Joint authorship of publications, as appropriate;

Ensuring that the parties provide each other with copies of the results of all such scientific study, research and publications;

Informing each other of any relevant opportunities for training and/or study by appropriate staff personnel;

Encourage appropriate staff personnel at LARI or Kew take up any such opportunity for training and/or study.





1 extracted and abridged from: Bert Visser, Robin Pistorius, Rob van Raalte, Derek Eaton, and Niels Louwaars, 2005. Options for non-monetary benefit-sharing: an inventory. ftp://ext-ftp.fao.org/ag/cgrfa/BSP/bsp30e.pdf


3 Williams, 1998


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