Control over Genetic Resources
John Mugabe and Evans Ouko
Keywords:  Access to genetic resources; Intellectual property rights; Technology transfer.
Correct citation: Mugabe, J. and Ouko, E. (1994), "Control over Genetic Resources." Biotechnology and Development Monitor, No. 21, p. 6-7.

The Convention on Biological Diversity partly resolved the developing countries' concern regarding national sovereignty over their genetic resources. But many questions remain unanswered. Who controls genetic resources, on what terms should access be granted, and who receives the benefits?

Until the Convention on Biological Diversity came into force in 1992, the world's genetic resources were considered to be the common heritage of humankind, i.e. open to access without restrictions. However, most developing countries were opposed to the principle of common heritage to genetic resources. They questioned the fairness of developed countries obtaining genetic resources from developing countries, protecting the products through patents and plant breeders rights and selling these protected products at high prices to the country where the material was collected. In the negotiations for the Convention, developing countries successfully argued for national sovereignty over their genetic resources.

The Convention gives a basis that developing countries may use to negotiate for benefits from biological diversity. It is up to the individual countries, however, to formulate regulatory and legislative measures to achieve these benefits. Unless developing countries, particularly the local communities in these countries, benefit from these resources, the political will to invest in conservation will be less than might otherwise be the case.
Countries need to develop registers of biological resources, harmonize their national laws with the provisions of the Convention and create specific institutions to enforce the regulatory measures. Additionally, indigenous knowledge, innovations and practices should be recognized and protected. Although the Convention provides that contracting parties should be subject to national legislation (article 8j), it is premised on the understanding that the indigenous and local communities traditionally managed biological resources within their boundaries with great care, in recognition of the fact that their very survival depends on these gifts of nature.

Sharing benefits: local level
Based on this understanding, an issue which is gaining recognition in international debate, is how to share the benefits of biological resources with indigenous and local communities. This is especially important when it is realized that these groups over the centuries have played an important role in the selection and propagation of current genetic resources.
However, there are no established institutions that safeguard the rights of indigenous and local communities. Additionally, national legal regimes pertaining to biodiversity and intellectual property protection are silent about the rights of indigenous and local communities. This weakens the ability of the communities to derive benefits from the conservation of biological diversity and to assert their rights over genetic resources, knowledge and innovations.

Sharing benefits: national level
Article 15 on access to genetic resources has opened up three possibilities to the developing countries: (a) to derive actual economic gains from their biological resources; (b) to apply this provision to restrict free access to their genetic resources by public and private actors from the industrialized countries; and (c) to govern access to genetic resources.
But since article 15 requires prior informed consent, the implementation of this provision requires countries to develop policies and legislation which include the establishment of designated national agencies that serve as focal points for defining the scope of prior informed consent. The countries providing genetic resources will have to improve the protection measures that are in place so as to prevent unlawful collection of genetic resources. Furthermore they need to put in place mechanisms for improved record­keeping, linking collections with patents, and for the regulation of transfer of collected materials to third parties. This will lead to more beneficial relationships between the owners of the genetic resources and the recipients.

Link with technology transfer
Questions of access to genetic resources have been linked to the issue of access to and transfer of technology. During the negotiations leading to the Convention, most developing countries argued that access to genetic resources by (firms from) industrialized countries, should facilitate access for the South to products arising from the genetic resources, as well as technologies pertaining to the conservation and use of the resources.
Developing countries were successful in pushing for this to a certain extent. The Convention recognizes the links between access to genetic resource and transfer of technology. Article 1b of the Convention offers developing countries new opportunities for building up their capabilities to conserve and sustainably utilize biodiversity. Countries providing genetic resources should "participate in research and development activities carried out on the basis of such resources and to share in a fair and equitable way the benefits arising from their commercial and/or other utilization."

Capacity­building levels
The issue is how developing countries can best invoke or apply these provisions to build up their capacities and benefit from their genetic resources. One way is to link the supply of genetic resources to the access of those technologies which make use of the genetic resources. This involves establishing partnerships between institutions in the countries supplying genetic resources and corporations from the recipient countries. Under the partnerships, institutions or nations could bring together their genetic and technological resources in collaborative ventures.
Although partnerships as such could be a useful mechanism for facilitating access to genetic resources, transfer of technology and technological capacity­building in developing countries, this mechanism remains underutilized. Often the owners of the genetic resources have taken the wrong approach in the implementation of the partnerships. This is due to the following.
The partnership can comprise different levels. At the lowest, the owner of the genetic resources simply looks to acquire technical equipment, and at the highest the main concern is improvement of the technical capacities of the manpower, and the creation and improvement of existing institutions involved in biological resource utilization. Unfortunately, in this hierarchical representation, the owners of biological resources have tended to concentrate much more on the lower than on the higher levels. That is, they have tended to preoccupy themselves more with the acquisition of sophisticated equipment than with manpower and institutional development.
This preoccupation is due to the perception that technology transfer is the flow of equipment, skills and managerial competence and technical specifications from the North to the South, in relation to the production of goods. It should be noted also that the preoccupation with this technology transfer is misplaced, as many of the technologies appropriate to the developing countries are already in the public domain and as such already accessible. The problem is that developing countries have not properly recognized their needs and consequently do not realize that the information and necessary equipment can be obtained easily. The developing countries should concentrate on building technological capabilities through processes such as institutional formation and development, human resource development, scientific research, information exchange, and technical co­operation.

Another issue is that the partnerships will work well if there is overall control of the whole process by a single co­ordinating entity: a so­called clearing­house. The control will be necessary not only within a single country but may be required for a whole region. This is because a foreign genetic resource prospector can easily move to a new country or region where he/she feels that less stringent conditions prevail. This clearing­house would involve the creation or modification of an existing institution to co­ordinate all (inter­regional) activities dealing with the access to genetic resources and the sharing of benefits. If there are existing institutions already involved in such an enterprise, the clearing house could co­ordinate their activities. Additionally, a clearing­house should deal with issues such as information exchange, the sharing and training of manpower, the development of institutional capacity and the encouragement of co­operation between member countries on scientific matters.

IPR and technology transfer
Questions of intellectual property rights (IPR) are still controversial. So far there is no formulated ideal model of the form or shape IPR should take in both the developed and developing countries.
What is needed are programmes in training, information exchange and access to the available information on patented material. There is a need to review and revise the many ambiguous patent laws existing in developing countries, which do not consider the rights of the suppliers of genetic material. In the revisions, it is important that these rights are recognized and protected. A protocol covering cultural property rights of indigenous peoples will strengthen the provision on indigenous knowledge within the Convention. The technical capacity of indigenous people also needs to be built up and national policies should incorporate this aspect.

Adding value to genetic resources
The value of genetic raw materials can be enhanced if the material is put through a process of identification, collection and screening by the owners of the biological resources before presenting it to a potential recipient. Developing countries should establish a reputation as a reliable partner in the screening process. The National Biodiversity Institute (INBio) project in Costa Rica stands out as a good example in the effort of biodiversity prospecting as a result of a long period of reliability, and indeed developed countries have imitated the highly computerized system that the INBio project has employed (see also Monitor nr.15). The Costa Rican example serves to show that a developing country can indeed succeed in this so called 'technology­intensive' venture with the right attitude and the right policies.

Taking measures
As it stands, the Convention addresses many important issues concerning the regulation of access to genetic resources, but falls short in actually giving concrete measures for the implementation of the provisions. It can be strengthened by:Considering the negotiation of a protocol on the basis of some principles already developed in instruments such as the FAO Code of Conduct for Plant Germplasm Collecting and Transfer.

John Mugabe/Evans Ouko (ACTS)

C. Juma and J. Mugabe (1994), Technological Development and the Convention on Biodiversity: Emerging policy issues. Nairobi: ACTS. Discussion paper prepared for the Group of 77 and China.

C. Juma, J. Mugabe and J.R. Ojwang (1994), Access to Genetic Resources: Policy and institutional issues. Outline prepared for the Stockholm Environmental Institute, Sweden.

H.K. Khalil, W.V. Reid and C. Juma (1992), Property Rights, Biotechnology and Genetic Resources. ACTS Biopolicy International Series no. 7. Nairobi: ACTS Press.

J.B. Ojwang (1994), "National Domestification of the Convention on Biological Diversity". In: V. Sanchez and C. Juma (eds.), Biodiplomacy: Genetic resources and international relations. Nairobi: ACTS Press, pp.304­308.

W.V. Reid (1994), "Biodiversity Prospecting: Strategy for sharing benefits". In: V. Sanchez and C. Juma (eds.), Biodiplomacy: Genetic resources and international relations. Nairobi: ACTS Press, pp.241­268.

A. Yusuf (1994), "Technology and Genetic Resources: Is mutually­beneficial access still possible?" In: V. Sanchez and C. Juma (eds.), Biodiplomacy: Genetic resources and international relations. Nairobi: ACTS Press, pp.233­240.

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