The ever-growing demand for genetic materials for pharmaceutical products has increased the economic value of genetic resources. However, this bio-prospecting and international trade has not brought much economic benefit to the countries and communities who host these resources. A benefit sharing strategy for exploitation of pharmaceutical biodiversity resources should have the following goals: a.) The adoption of global norms on transparency and public participation in decisions related to genetic resources, and b.) the acceptance of the principle of free and prior informed consent by local communities before states allow access to genetic resources.

Benefit-sharing arrangements should be specifically designed to include those that would benefit communities from which the genetic resources are taken, and while there NGOs, governments, and companies recognize that benefit sharing should include benefits for local and indigenous communities, most of the debate still focuses on benefit sharing at the national level. This includes technology transfer, scientific capacity building, and so forth. To ensure benefits at the local level there should be:

1. Up-front payments to local communities for samples collected in their territories and/or cash “milestone” payments pegged to stages in the development of a product where its value increases, as well as:

reform of public forestry concession pricing, license fees, reforestation fees, and royalties eco-labeling discontinuation of below-cost sales biodiversity prospecting deals international franchise agreements

An example can be found with the San community who receive six percent of all royalties received by the CSIR from Phytopharm as a result of the successful exploitation of products. The San also receive eight percent of the milestone income received by the CSIR from Phytopharm when certain performance targets are reached during the product development period.

2. Transfers of locally-useable technology and local capacity-building, so that the source community may bring added value to its genetic resources.

agricultural land set-aside schemes public or grant-aided land purchase cost-sharing/ management agreements

3. Earmarking of funds for conservation of biodiversity and genetic resources in a community’s territory. Examples include:

species enhancement schemes customary cultivation of biodiversity international biodiversity transfers

4. Co-ownership of patents and other intellectual property rights where indigenous knowledge associated with collected genetic resources contributes to the discovery of a useful compound and/or development of a commercial product.

tradable development rights property-right mechanisms

5. Support for infrastructural developments desired by a community in whose territory samples are collected.

schools, water supplies, roads full appraisal of forest benefits debt-for-nature swaps

Currently, there are many issues challenging benefit-arrangements for the local level. Many local and impoverished communities reject the patenting of ‘life forms’, and the ownership of knowledge of living products and life processes. Further, developing intellectual property rights for these life forms is difficult at the local level, as certain legal, financial and administrative resources are needed that many communities do not have. The present IPR systems and TRIPSs does not affectively address the collective nature of traditional knowledge, both within and among generations of indigenous and local communities, and how to create monopolistic rights over knowledge and biological resources. IPRs are subject to manipulation by economic interests that wield the most political power, and indigenous peoples lack the legal means for protecting their knowledge. IPRs can also be expensive, complicated, and time-consuming to obtain, and even more difficult to defend, and can encourage theft.

Therefore it is crucial that new IPRs allow indigenous communities to refuse access to traditional knowledge and for them to be able to apply for IPR protection under the name of the community. There must also be written prior informed consent for access and application of traditional knowledge, and co-ownership of research data, patents and products derived from the research

without the community having to pay patent fees. Communities must also be able to nullify any application. Costa Rica and Brazil have developed Acts that cover these rights.

To achieve this, there needs to be the creation of an international certification system tracing the genetic flows of material obtained and utilized. The legislation should also require, for both domestic and international access to biodiversity, prior informed consent, mutually agreed terms, and burden of proof on the applicant.

To protect indigenous knowledge, while developing innovation and practices, the benefit sharing mechanism should include:

a. IT application to deal with informational asymmetries in the formal and informal knowledge systems.

b. IPR system reform to make them accessible for small grassroots innovators.

c. Green venture promotion funds and incubators for converting innovations into enterprises.

d. Obligatory international agricultural and natural resource management institutions to accord priority to adding value to local innovations.

To achieve this mechanism, there must be the establishment of an autonomous authority, with local community representatives as the majority members. They could be entrusted with access to all contracts, which will be assessed to ensure that the management plans for sustainable extraction of diversity involves scientifically appropriate methods. Penalties will be imposed for non-sustainable extraction of the ‘genes’ by domestic and external extractors.

Further, an Ethical Committee within the Authority should be established. The Committee would ensure that cultural and other values of important biological resources and materials are not ignored. It would also negotiating transfer of rights to national and international bodies and individuals. The Committee should see to it that genetic materials are not meant only for human benefits but have significant ecological values. The Committee should ensure that local communities receive the market prices. The market price itself should be based on sustainable rates of extraction, land use and water resource availability. The appropriate national biodiversity agencies should scrutinize market approval for products/ processes; and oversee the patent application for anything derived from biological resources/ knowledge of local community.

Biodiversity must be made into an attractive and accessible investment opportunity. Joint arrangements and partnerships between the public, commercial and community sectors should be developed in research, subsidies, etc. Efforts can be made to attract charitable donations through trusts, foundations and endowments. These trust funds structure local award schemes to maximize conservation incentives. The Trusts associated with the ICBGs are most often disbursed by committees that represent communities and national interests. Examples include, small-scale credit and grant-making facilities such as the community targeted Wildlife for Development Fund in Kenya. To implement this in other communities, detailed transparent accounting procedures would be needed, with formal requests for distribution of funds approved by a Trust, detailed budgets and plans, and traceable bank accounts. Also, one option for funders may be to begin with small planning grants for source country organizations, as established source country partnerships can take advantage of international funding opportunities and be more attractive to private companies.

Tax relief or publicity to contributors can also encourage involvement. A common way of using fiscal instruments as incentives for biodiversity conservation is to manipulate the market prices of different products through the application of selective taxes and subsidies. One example of this can be found in Eritrea, where energy taxes and subsidies are used as incentives to encourage the use of forest-saving technologies Fiscal instruments are also widely used as tools to encourage land uses which contribute to biodiversity conservation. For example, in Brazil, the government provides a property tax exemption to encourage the creation of reserves on private lands. Further, bio-prospecting should be linked to knowledge and skill identification within the village committees and appropriate rewards for existing local knowledge be devised through benefit sharing on a case by case basis. One way is to make sure that the prices and markets for biological resources themselves incorporate efficiency and scarcity concerns.

To effectively achieve these partnerships, contractual agreements among bio-prospecting partnerships would be best, and would assist in securing benefits for the source country. In contrast to patent law, agreements can be used to define the types and amounts of benefits and can target recipient populations and conservation objectives. These contracts for benefit sharing can be structured in various ways, but the best may be a wheel-like or overlapping structure, like the Latin America ICBG and the Suriname and Africa projects. Bi-lateral agreements are much easier to negotiate than multi-lateral ones, and the stability for the group is greater even if one of the partners or the terms of a specific agreement change, and it would allow local communities to directly participate in the licensing agreements with commercial collaborators. Know-How Licenses, an industrial agreement that provides the licensee with exclusive or nonexclusive rights to use informal knowledge should also be utilized in conjunction with the contracts, allowing local peoples recognition and protection in their contracts.

Engagement in the global processes by local stakeholders needs sustained engagement at the national and regional level. At the global level, local and impoverished communities must build alliances among themselves and with sympathetic constituencies, including with scientists, environmental organizations, and other civil society organizations. Alliances with other stakeholder groups working on agriculture and food security issues, intellectual property and trade are also crucial for success.

Sources:

http://www.icbg.org/pub/documents/oecdub.pdf

http://planningcommission.nic.in/aboutus/committee/wrkgrp11/tf11_socio.doc

http://www.cbd.int/doc/meetings/abs/abswg-06/other/abswg-06-cs-07-en.doc

http://gupea.ub.gu.se/bitstream/2077/3240/1/anales_5_posey.pdf

http://pdf.wri.org/lavina_abs_workingpaper.pdf

http://data.iucn.org/dbtw-wpd/edocs/PDF-2000-002.pdf

http://www.idrc.ca/imfn/ev-28704-201-1-DO_TOPIC.html