Abstract
Genetic resources are considered goods that embody a “private value beyond the simple and immediate resource-use value” (OECD 2003a: 31). In contrast to other biological resources, commercial use does not focus upon the material itself but rather upon the genetic information it contains (Small 1998: 1).
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References
Outside of the CBD, the term natural resources is used. According to the understanding in economics, natural resources represent goods that are provided by nature to directly or indirectly satisfy human needs. This term includes factors of production, as well as consumption goods (Siebert 1983: 2f.). Since natural resources include (nonrenewable) mineral resources, as well as (renewable and nonrenewable) gaseous resources, biological resources represent only a subset of natural resources.
Botanical medicine refers to medicinal products of plant origin that are used in a crude or processed form. In contrast to pharmaceuticals, the use of botanical medicine does not include the isolation of single genetic compounds. Frequently, the term phytomedicine is used synonymously to describe botanical medicine, although it refers more to products based upon herbs, while botanical medicine may include nonherbal ingredients (EC-CHM 2005).
Alternatively, information and material can be classified as phenotypes, i.e., individual plants, animals, or other organisms, versus genotypes, i.e., information contained in the genetic constitutions of the species (Sedjo 1992).
Generally, resource users can be described according to the number and types of rights they possess. Their position can be classified as owner, proprietor, claimant, or authorized user (Schlager and Ostrom 1992).
More precisely, these are those resources for which the country is the country of origin or that are acquired in accordance with the access provision of the CBD (CBD Art. 15(3)).
These guidelines also represent a kind of harmonization of national access and benefit regulations and, in this regard, address fears that regulatory competition between supplier countries could eventually lead to lax national provisions that in the end would inhibit fairness and endanger the commonly agreed upon objectives of the CBD (ten Kate 2002).
In addition, since many genetic materials have not yet been discovered or at least not described, it is difficult to define property rights to goods whose quality is not yet known (Sedjo 1988).
The implementation of national IPR systems with regard to biotechnological goods has been described and analyzed in several studies (Dunleavy and Vinnola 2000; OECD 1996, 2002).
Indigenous knowledge is considered to be knowledge that somehow is assigned to a specific group or community considered “indigenous.” Traditional knowledge, in turn, refers to the creation of knowledge in the past and its transfer from generation to generation. (Wolfrum et al. 2001: 42f.) In this respect, indigenous knowledge can represent traditional knowledge simultaneously, i.e., it represents a subset of traditional knowledge (Mugabe 1998).
Well-known examples are the turmeric patent, the ayahusca patent, or patents related to the neem tree (Downes 2002; Prakash 2000).
Empirical evidence for expanded private R&D activities can be observed for the area of plant breeding and for research with microorganisms (Swanson and Goeschl 2000; Aylward 1995).
A typical example is the use of traditional plant varieties, which are increasingly being replaced by new plant varieties. As a consequence, unique genetic information is irreversibly lost and evolutionary processes in in situ habitats are disturbed or interrupted. The extent to which the replacement is indeed attributable to IPRs needs to be investigated, as does the extent to which replacement is responsible for the loss of genetic information (Zilberman et al. 2004; Dutfield 1999).
It is difficult to verify the implied relationship between stronger IPR and technology transfer empirically. The empirical literature has previously focused upon the relationship between IPR enforcement and inward flows of foreign direct investment. Although a positive link between the two is not rejected, it is suggested that a complex network of many factors, such as market structure and national policies with regard to market liberalization, determines the extent of the technology transfer (Maskus 2000, 2005).
About 97 percent of all patents belong to residents in the developed countries. Developed countries even hold 80 percent of the patent rights granted in developing countries (Butler 1998; UNDP 1999: 67f.).
The IU represents a nonbinding, international agreement on the conservation and use of plant genetic resources (Bragdon and Downes 1998).
As for the CBD, the objectives of the IT-PGRFA confer (1) the “conservation and [(2)] sustainable use” of PGRFA and (3) the “fair and equitable sharing of the benefits arising from their use.” This should be obtained “in harmony with the [CBD]” and “for sustainable agriculture and food security” (Art. 1.1 IT-PGRFA) (Linarelli 2004).
The intention is that commercial breeders who make use of materials provided by the Multilateral System and who have obtained exclusive patent protection for their plant variety should make payments to the financial mechanism (Bradgon 2003; Helfer 2005).
It is claimed that, as criteria for the classification of an individual crop in this respect, its importance for “food security,” as well as the “interdependence,” is considered. Finally, a precise definition of these criteria is not given. Moreover, the current scope of the system is determined in a political process (Fowler 2000).
Furthermore, in the past, technical capacity constraints in the maintenance and ex situ reproduction have led to resource scarcity and resulted in (partial and/or temporal) access restrictions (FAO 1998: 284).
This is obtained by making the effectiveness of an innovative trait dependent upon the application of an “initiator,” i.e., a specific complementary material that, in turn, is in the exclusive possession of the inventor (Swanson 2002; Stoll et al. 2004).
Currently, the use of patents to protect plant varieties is implemented in Australia, Japan, and the United States (Fowler et al. 2001).
The recent IT-PGRFA addresses IPRs to plant varieties with regard to materials provided within the Multilateral System (Helfer 2005; Stoll et al. 2004).
Furthermore, since it is intended to make private contributions to the financial mechanism of the IT-PGRFA conditional on the market revenues the commercial breeders receive, a lack of intellectual property protection constrains the attainable revenues and, therefore, also the funds available for the preservation of PGRFA (Helfer 2005).
Currently, only certain countries, such as Australia, Japan, and the United States, implement patent protection for plant variety (Fowler et al. 2001).
Furthermore, it is argued that patent protection is awarded on a national level and, therefore, does not a priori confer worldwide property rights, even though the TRIP agreement calls upon its signatory countries to implement a national IPR system with regard to plant varieties. In effect, each national government has to approve a patent right within its country. Otherwise, the genetic material is freely available for research purposes (Fowler et al. 2001; Pardey et al. 2003).
The privatization of public resources in agricultural research is a complex topic. In practice, private breeding organizations often depend upon the technologies and resources that the public breeding organizations possess and vice versa. There is evidence of increasing private-public cooperation in this field. Consequently, privatization may occur when actors in the public sector exclusively provide genetic material or associated knowledge—with or without addressing IPRs (Stoll et al. 2004).
Considering the multistage production process, it is concluded that the current property rights regime on genetic resources virtually does not assign suitable rights to the “best investor” in that process, i.e., the provider in the initial stages. As a consequence, the current management regime lacks efficiency. In other words, a “property rights failure” prevails (Swanson and Göschl 2000; Hart and Moore 1990).
Since the design of the payment scheme also touches upon the issue of optimal risk sharing, only a second-best solution may be attainable (Samprath 2000).
Alternatively, “new” biotechnologies may be classified on a product level according to their biological-chemical constitution and the function of the output, for example, according to whether they are enzymes, biocatalysts, or polymerase products (ten Kate and Laird 1999: 228ff).
In some cases, the technical feasibility of biochemical reproduction occurs over time with ongoing R&D efforts (Day and Frivold 1993).
A sample of dry material corresponds to 50 kilograms of plant material or 7–13 kilograms of root material (Laird 1993).
Sometimes, the services for specific groups are arranged in individual contracts. As a consequence, the entire bioprospecting agreement represents an extensive network of individual bilateral contracts (Rosenthal 1997).
A special agreement between supplier and user has been concluded in Malaysia. Here, it has been shown ex ante that specific genetic information is promising for further development and commercialization. The commercial user, a biotechnology firm, has started a joint venture with the original supplier, a regional government in Malaysia (ten Kate and Laird 1999: 70).
Exotic materials are sometimes considered synonymously with unimproved materials (ASSINSEL 1996).
For major crops, an accession signifies approximately 500 to 1,000 seeds of the crop species (Virchow 1999b).
However, the technical capacities needed for the appropriate storage and reproduction are frequently of insufficient quality. This can be observed particularly for breeders and gene banks in developing countries. Accordingly, identical materials have repeatedly been acquired from the CGIAR and NARCs (Fowler 2004).
According to a simulation for payments for the genetic variety of the common bean, it turns out that the payments might be relatively modest in size and the net flows of payments are predominately from those developing countries with a small basis of genetic variety to other developing countries with a larger basis (Pachico 2001).
See also the discussion on genetic resources as imperfect substitutes (Kassar and Lasserre 2004; Polasky and Solow 1995).
Some studies use empirical estimates for success probabilities and apply these figures to the set of available research options (Barbier and Aylward 1996; Artuso 1996a; Pearce and Puroshothaman 1992). In this regard, it is important how the set of options is defined and what is considered as the basis of the success probability. As argued in PhRMA (2003), different probabilities can be assigned to material in the different stages of the screening process. In the SSR model, this problem is circumvented in that the authors argue that an upper limit of the value of a marginal species is described; a hypothetical success probability that maximizes the value is used in the simulation.
The original model distinguishes unskilled, skilled, and specialized labor as the only production inputs (Aghion and Howitt 1992). Goeschl and Swanson (2002a, 2003a) translate this classification into a classification of land endowments—with land for the production of intermediates, land for the final good production, and undisturbed natural land (biological reserve).
A key variable in the model is the productivity factor in the final production. In the original model, this variable increases with every innovation that is made, i.e., a “quality ladder” that can be climbed is assumed (Aghion and Howitt 1992). In contrast, Goeschl and Swanson (2002a, 2003a) allow for the possibility that the gain in productivity is offset because of the occurrence of biological responses to biotechnological products.
Finally, the problem of resistance is in turn related to overuse in medication (Smith et al. 2005; Goeschl and Swanson 2002b). In contrast to the framework in Goeschl and Swanson (2002a), biological adaptations to these pharmaceuticals are not dependent upon the allocation of land and biodiversity conservation.
Other values stem from increases in yield and income due to a diversification in the use of genetically diverse crops (e.g., Di Falco and Perrings 2003).
It turns out that the R&D firm appropriates 21 percent of the surplus (or about $50 million) in the first year the crop is introduced (Falck-Zapeda et al. 2000).
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(2008). Market-Based Incentives to Preserve Biodiversity: Commercial Use of, and Trade in, Genetic Resources. In: Environmental Policy Instruments for Conserving Global Biodiversity. Kieler Studien - Kiel Studies, vol 339. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-73748-3_3
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