Crisis Averted On Whether to Include a Definition of Biopiracy

Definition of BiopiracyImage by John & Mel Kots via Flickr

Definition of Biopiracy
8th ABS Working Group Meeting
Montreal, Canada
13 November 2009
Day 4 Update
Crisis Averted On Whether to Include a Definition of Biopiracy
By Elpidio Peria

MONTREAL, Canada – 12 November 2009 – Negotiations for the International Regime on ABS nearly got unraveled today, when the EU insisted that its proposed definitions on misappropriation/misuse be included in the negotiations on the text of compliance, but eventually a compromise was arrived at by inserting a footnote in the text that this can be done later after the Montreal meeting of the ABS Working Group.
It was difficult for the LMMC to agree to the compromise but the agreement had the effect of unblocking one of the impediments to the negotiations.

During the plenary this morning another key negotiation impediment clarified involved the so-called “parking lot” and subheadings in the text currently before the delegates.
This so-called “parking lot” was the term used by the various contact groups this week to refer to the destination of various texts on compliance, traditional knowledge, access and benefit-sharing which they cannot agree to place within the existing subheadings and components in the current text of the International Regime on ABS.

The Co-Chairs decided there are three categories of these “parking lots” at the moment, one category refers to operative text on a main component but should belong to another component.
An example of this is the the African Group proposal made on the component on traditional knowledge involving disclosure requirements in applications for intellectual property rights, product registration and plant variety registration but should properly belong to the component on compliance.
Another type of “parking lot” involved text that does not belong in the contact group which took it up, but does not also belong either to any other component but one Party wants it taken up and for this type of “parking lot”, a category was created called “implementing and other operative text for further discussions and negotiations”.

The Co-Chairs clarified that this category can be dealt with later in the subsequent negotiations of the International Regime, but the text in this category will not be negotiated at this stage.
The Mexican proposal made in the compliance contact group creating an international compliance mechanism patterned after a similar mechanism under the Cartagena Protocol is an example of text belonging to this “parking lot”.

Finally, the Co-Chairs referred to “bridging elements” containing cross-over issues, which require further thought but difficult to approach in a compartmentalized fashion.
The EU proposal made in the compliance contact group on the definition of misappropriation/misuse can belong to this category of “parking lot” but the EU is insisting that its proposal rightfully belongs in the compliance component of the International Regime.

The fluidity of the negotiations and the challenges of dealing with the various concepts and ideas on how to deal with the key issues of the International Regime is challenging negotiators here in Montreal, but these things will eventually sort itself out in the last day of this meeting.
This is true on the issue of subheadings, which has somehow become superfluous in the negotiations on the text on capacity-building, but is still useful for giving precision to the discussions on compliance and on access and benefit-sharing, while giving some headaches to the negotiations in the text on traditional knowledge for being repetitive.

This appears to be the reason for the EU to keep on insisting that it be retained, to prevent the emergence of a clear form and content of the International Regime.

These subheadings were the “bricks and bullets” previously arrived at during the 6th meeting of the ABS Working Group in Geneva in January 2008, which proved crucial in clarifying the consensus of the Parties then on what may constitute the various components of the International Regime.
In the 7th ABS Working Group meeting in Paris, France in April 2009, these “bricks and bullets” were deemed also to be an impediment to the negotiations as it gave unequal status to the proposed text to those that have consensus among the Parties and those which did not.

By the end of this negotiations, there could be a decision whether it is ripe to have another breakthrough on this issue of sub-headings.

In the contact group on capacity building, the Philippines was given a chance to re-insert its proposal for a capacity-building measure involving training in tracking the use of biological resources and genetic resources across sectors including understanding cases of biopiracy and the 'digitalization of biopiracy'.

These proposals came out from the conference organized recently by the ASEAN Center for Biodiversity in Singapore in September 2009.

There was a lot of consternation among delegates on what “digitalization” meant but this was understood by the proponent to refer to the burgeoning field of bioinformatics, where fragments of genes and compounds are being placed in various databases that are used and exchanged among research centers worldwide and developed into something more useful, like diagnostic kits for certain diseases or a new medicine to deal with emerging diseases, or simply to advance the frontiers of biological/genetics research which have evolved into the various “omics” field- genomics, proteomics, metagenomics, etc.

Another proposal raised by Philippines for capacity-building involved the use by academia and research institutions of alternatives to intellectual property rights systems such as open-source licenses and a study of their impacts on realizing benefit-sharing.

As is usual in these meetings, these new concepts are bracketed by other delegates which gives it time to be further reflected and studied upon until the next meeting of the ABS Working Group.
In the contact group on traditional knowledge, the Philippines tried to push the concept of 'traditional knowledge associated with genetic resources' as one of the concepts that will be taken up when definitions are dealt with, but this caused a lot of dismay among developed country delegates that it was eventually withdrawn.

The delimitation of the concept of traditional knowledge to this category, that it is only “associated with traditional knowledge' is seen as an attempt to chop the concept of traditional knowledge and genetic resources into several pieces when it is an accepted notion in bioprospecting, that where plants and other biological material are explored for their medicinal and other industrial uses, they cannot be identified unless the traditional knowledge of indigenous peoples have been tapped to determine where they may be located.
It is also a fact that there are also chemical compounds, like the ones taken from marine species, that are identified without the use of traditional knowledge.

This is also important to clarify the eventual scope of the International Regime, considering that the General Assembly of the World Intellectual Property Organization or WIPO, has given a renewed mandate to the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore or IGC, to negotiate a legal instrument to deal with the misappropriation and misuse of traditional knowledge.

These and other matters will get sorted out in the subsequent meetings of the ABS Working Group which is now said to have been transferred to Rome, Italy, and not anymore in Colombia.
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