Plants, genes and justice : an inquiry into fair and equitable benefit-sharing

Since the advent of biotechnology, plant genetic resources have become more valuable as possible sources for new products and inventions. With knowledge about the genetic make-up and functioning of a plant, biotechnologists can identify and isolate genes with interesting traits which, after long research trajectories, may result in new medicines, improved crops or other products. The initial leads towards such new products are sometimes provided by the traditional knowledge that local and indigenous communities have acquired about their natural environment over centuries. At the other site of the spectrum, Intellectual Property Rights (IPRs) play an important role in stimulating the research and development process of new biotechnologies and products, by providing innovators with time-limited exclusive rights to exploit their inventions. Altogether, the biotechnology industry has grown rapidly over the last decades. The question, however, is whether also we have all benefited from it. Unfortunately, we have to conclude that, as with most other new industries and technologies, biotechnology has not provided many benefits to the poor up to now. Notwithstanding the repeated promises that biotechnology can – and will – improve global health and food security, almost all research to date has focused on the development of medicinal and food products for commercial markets, mostly in the developed world, with very few serious investments having been made in order to tackle the major diseases and improve crops in the poorer parts of the world. This is despite the fact that many of the genetic traits that are used in new products and biotechnologies find their origin in the enormous biodiversity of developing countries, and/or the rich knowledge of this diversity of local communities in these countries. For this reason, developing countries and indigenous communities have become increasingly vocal in demanding compensation for the use of their plant resources in the new biotechnology industry. This demand became backed by international law in 1992, as the UN Convention on Biological Diversity (CBD) declared that access to genetic resources is subject to “sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources.” (Article 15.7). With respect to the knowledge, innovations and practices of traditional communities, the CBD also proclaims that each country, subject to its national legislation, shall “encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices” (Article 8j). Since then, a total of 191 countries have become signatories to the Convention and committed themselves to these objectives. Few of these, however, have implemented this legislation effectively in such a way as to actually enable and facilitate the sharing of substantial benefits. Furthermore, the negotiations on an International Regime on Access and Benefit-Sharing, which was called for by the Parties to the CBD in 2002, are progressing very slowly. What are the reasons for this lack of progress in the national implementation and international negotiations on Access and Benefit-Sharing (ABS)? This question has been subject of discussion in a growing number of studies that aim to analyze the legal, practical, or socio-political difficulties involved in current ABS regulations and agreements. Very few studies, however, have focused on the ethical problems and challenges. Even though questions about who decides which benefits are to be shared with whom and in what way are obviously ethical concerns, the current problems with ABS have rarely been approached from an ethical perspective. This research project aims to improve this situation by investigating and initiating debate on some of the ethical dimensions of benefit-sharing in the field of plant genetic resources, related knowledge and IPRs, with special attention given to the agricultural and public research sector. Taking a pragmatist ethics point of view, this research project focuses primarily on analyzing the normative positions and argumentations within the current debates on benefit-sharing, and reflecting on the meaning of, and possibilities for, fair and equitable benefit-sharing. Direction and guidance for the project are facilitated through research questions focusing attention on: the origination of the concept and purpose of benefit-sharing; the major difficulties complicating the present situation in respect of benefit-sharing policies; the normative positions and objectives incorporated in international legislation, organizational policies and stakeholders’ perceptions of benefit-sharing; the relationship between benefit-sharing and intellectual property rights; and the question of fair and equitable benefit-sharing itself. The research is based on extensive literature studies, complemented with over 75 semi-structured interviews in Kenya, Peru and the Netherlands, and visits to meetings of the CBD, the UN Food and Agriculture Organization (FAO), and international workshops on ABS in Germany and India. Furthermore, an international conference was organized in the Netherlands to examine and discuss with relevant stakeholders the impact of IPRs on the possibilities for public research institutes sited in developed countries to share their knowledge and technologies with partners in poorer countries. Altogether, this has resulted in five articles that have been either published in or submitted to peer-reviewed journals, and two conference documents, which together with an introductory and concluding chapter are presented in this thesis. Vicissitudes of benefit-sharing of crop genetic resources: Downstream and upstream Following an introductory first chapter, Chapter 2 sets out with a historic overview of the origin and development of the concept of benefit-sharing in international law. We see that benefit-sharing was initially included in international treaties on the moon (1979) and the sea (1982), in which it was linked to the notion of a common heritage of humankind and referred to equitable distribution – i.e. distributive justice. Because the resources of the moon and deep seabed were considered not to be the property of any State or individual, it was decided that the benefits that are derived from those resources should be shared with humankind as a whole. With its introduction in the CBD, however, benefit-sharing has mainly become an instrument of compensation and refers to the idea of commutative justice – i.e. justice in exchange. Based on the principle that countries have sovereign rights over their own biological resources, States can regulate access to their resources and negotiate the accompanying benefit-sharing conditions. It is shown, however, that this model does not suit most plant genetic resources – and certainly not crop genetic resources. On the contrary, it has had harmful effects on the agricultural sector insofar as it has functioned to obstruct the international transfer of genetic resources on which the agricultural sector historically depends. In order to better meet the needs of the agricultural sector, the FAO developed a Multilateral System of Access and Benefit-Sharing, which was introduced in the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) in 2001. In line with the general objectives of the ITPGR, but also of the CBD, we argue that benefit-sharing should not be based merely on the idea of justice in exchange, but rather on a broader model, one that is grounded also in the concept of distributive justice. This has repercussions for the application of benefit-sharing. By distinguishing between ‘downstream’ models of benefit-sharing, in which benefits are shared at the end of the research and development pipeline, and models where ‘upstream’ in the research process stakeholders try to balance their interests with respect to the benefits that will be shared later on, we show that benefit-sharing may well be a tool to contribute to world food security and global justice. A diversity of approaches to benefit-sharing Chapter 3 provides an overview of, in total, seven fundamentally different approaches to the issue of benefit-sharing in the field of plant genetic resources. The approaches portray the different ideas that exist about benefit-sharing, about its underlying principles, its goals and the preferred mechanisms to reach these goals. These different approaches are based on the following perceptions, or motivations: - The South-North imbalance in resource allocation and exploitation - The need to conserve biodiversity - Biopiracy and the imbalance in intellectual property rights - A shared interest in food security - An imbalance between IP protection and the public interest - Protecting the cultural identity of traditional communities - Protecting the interests of the biotechnology industry in ABS negotiations. By comparing the different approaches in the second part of this chapter, the major stumbling blocks in the current ABS negotiations (at both national and international levels) become apparent. This comparative analysis shows that the variety of motivations leads to widely differing mechanisms for benefit-sharing and significantly different expectations of the nature and value of the benefits to be shared. A further complicating factor in this is that the different approaches cannot be simply translated one-to-one into stakeholder positions. Stakeholders often assume to employ a combination of two or more different approaches. However, by explicating the different approaches, the article aims to increase insight into the different viewpoints that people and institutions adopt, in order to contribute to a better informed and more balanced debate in which policy-makers and other stakeholders have a raised awareness of the various interests involved and issues at stake. What is fair and equitable benefit-sharing? Chapter 4 builds upon these different approaches insofar as it aims to investigate what exactly is understood by “fair” and “equitable” benefit-sharing, and how a fair and equitable benefit-sharing mechanism might best be realized. The different approaches to benefit-sharing outlined form the basis of a philosophical reflection and are discussed in parallel with the main principles of justice involved. These include the principle of commutative justice and, under the domain of distributive justice, the principles of entitlement, desert, need and equity. In addition to these criteria that may guide the allocation of benefits, the principles of procedural and cognitive justice also are discussed, as essential to the promotion of fair and equitable benefit-sharing. An important conclusion resulting from this reflection is that the bilateral exchange model of ABS in the CBD is in need of fundamental change. At present, it is practically impossible for countries and communities to secure a fair exchange for the plant genetic resources found within their territories, or for the traditional knowledge present in their culture. As an alternative, a model is proposed in which benefit-sharing obligations are not based on the specific exchange of these resources, but on their utilization. An advantage of such model is that it emphasizes the responsibilities for benefit-sharing at the user side. This is further supported by the principle of equity, elemental to benefit-sharing, which holds that the strongest parties have the biggest responsibilities to make a fair and equitable benefit-sharing mechanism work. Between sharing and protecting: Public research on genetic resources in the year of the potato Chapter 5 analyses the policies and environment of two public research institutes working with potato genetic resources, the International Potato Centre (CIP) in Peru and Wageningen University and Research Centre (Wageningen UR) in the Netherlands. The two institutes are situated in totally different environments, but both are increasingly confronted with an array of (inter)national regulations, interests and perspectives that surround the genetic material, (traditional) knowledge and technologies with which they work. While CIP, as member of the Consultative Group for International Agricultural Research (CGIAR), aims to promote the sharing of potato genetic resources throughout the world for the sake of food security, it is situated in a country that is deeply ambivalent about the sharing goal and where concerns about biopiracy proliferate. Wageningen UR, on the other hand, is concerned with supporting the Dutch potato sector but it has to make sure that its IP and valorization strategies do not impede its research for development goals. Both institutes are continuously weighing up their own interests and those of the various stakeholders they work with in order to strike a balance between policies geared towards sharing and those aimed at protection. However, in the present context where poor but gene-rich countries and communities, as well as industrialized countries and biotechnology companies are all mainly concerned with protecting their resources in order to reap the benefits and preclude misappropriation, it is incumbent on public research institutes to dare to share. For that purpose, they have to develop new ways of sharing and protecting in order to adhere to their mission and best serve the public interest. Reconsidering intellectual property policies in public research: A symposium Chapter 6 contains the start document and report of the international conference on “Reconsidering Intellectual Property Policies in Public Research: Sharing the benefits of biotechnology with developing countries” organized at Wageningen UR in April 2008. The start document describes the increasing role of IPRs in biotechnology research and the difficult process that public research institutes face in seeking to obtain access to IP protected materials while working on biotechnologies destined for the poor. The problems involved range from analyzing complex IPR landscapes to negotiating free or affordable access licenses with parties that have little to gain from such deals. At the same time, however, public researchers are also increasingly stimulated to protect their own knowledge and inventions – so an important question for public research institutes is how they can (and should) go about preventing their IP policy from hampering innovation in poor countries. These issues were discussed at the international conference, which brought stakeholders together from fields as diverse as plant sciences, social and development studies, intellectual property offices, research funding organizations, the private seed industry, and civil society. The report describes the various discussions, presentations and main findings of the conference, which also focused on possible strategies to help public research institutes to secure their freedom to operate in the field of research for development, such as patent pools, humanitarian licenses and open-source biotechnology. Valorizing science: Whose values? Chapter 7 is a viewpoint article that reflects further upon the current trend towards valorization, i.e. the creation of economic value, in public research. It asks, more specifically, whether the focus on economic indicators is the optimal policy for science to contribute to society, or for the advancement of science itself. Hereby, it looks back on the Wageningen conference and its central subject matter, but now with special attention given to the organization process and the difficulties of bringing different stakeholders together to discuss complex problems and their possible solutions. The issue of valorization in public research involves a wide variety of easily conflicting views and interests, which requires continued input and dialogue between the different stakeholders in order to come to workable solutions. It is shown that this is not always easy to accomplish, for example because stakeholders may already disagree about the problem definition itself: a problem for one group may be a triviality or even benefit for another, and this even within the same institute. But as the current valorization trend influences and impresses upon the role of public research itself, the research institutes as well as individual researchers will have to invest the necessary time and effort to reflect on their impact and (long term) implications. Towards Justice in Benefit-Sharing Chapter 8 is the concluding chapter that brings the major findings of this research project together. Without repeating all the conclusions of the separate chapters, it aims to give an overview by reflecting on the research questions set out at the beginning in Chapter 1 and the general conclusions that have come out of this. Given the many practical (and ethical) complexities involved, and the easily diverging interests and perspectives when it comes to the sharing and/or protection of plant genetic resources, (traditional) knowledge and intellectual property rights, we can predict that benefit-sharing will continue to arouse much discussion and debate in the years to come. In this thesis, some fundamental changes to the current exchange model in the CBD are proposed in order to move away from the current deadlock in the international ABS negotiations, and to work towards a fair and equitable outcome. It must be clear that benefit-sharing entails burden-sharing, and that a successful implementation of fair and equitable benefit-sharing requires the continued commitment of all stakeholders involved on the international, national and local levels. But with such commitment, benefit-sharing can set a new standard of justice in how countries, companies, public research institutes and indigenous communities interact with each other.