Addressing the conservation and sustainability of the oceans is an increasing need of society. The international community is responding to this through the ongoing negotiations, under the UN Convention on the Law of the Sea, for an internationally legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The University of Aberdeen (Abbe Brown (Law) and Marcel Jaspars (Chemistry)), the International Union for the Conservation of Nature (IUCN) and the Deep Ocean Stewardship Initiative (DOSI) continued their cooperation (see these University of Aberdeen resources here and here) in a side event on 22 August 2019 “Developing Mare Geneticum: notifying, sharing rewarding and sustaining”.
This built on the Mare Geneticum proposal [link to this ] by (amongst others) two of the speakers, Thomas Vanagt and Marcel Jaspars. Mare Geneticum developed a pragmatic means of delivering access and benefit sharing in respect of Marine Genetic Resources (MGR) (for example, plankton) to support scientific research, address the needs of developing states and respect private sector investment. Mare Geneticum set out proposals for prior electronic notification of cruises; the sharing, with all, of the MGR samples and raw data obtained on cruises through a public repository; the option for a exclusivity period for researchers to work on the material, with a payment made to a biodiversity contribution fund; and compliance to be checked by a system of identifiers. Technology and some attitudes have evolved since the proposal was first put forward and new (and established) questions are being raised by negotiators in the ongoing Third Intergovernmental Conference. The side event provided the opportunity to develop and reflect on it.
The well-attended event was chaired expertly by Lydia Slobodian of IUCN, who encouraged everyone to reflect on how, together, we could press forward to develop a solution to the balance of interests involved in MGR. Dr Judith Gobin of DOSI and the University of the West Indies explored the benefits which can arise from research and commercial development with MGRs, particularly regarding aquaculture, pharmaceuticals and biorefineries. Commercial development was, however, noted to be uncertain and to take a long time. More imminently, therefore, she called for global access to MGR (including through databases but with a warning as to the costs that this could entail) and also for increased opportunities for scientists from developing countries to take part in research cruises.
Muriel Rabone of the Natural History Museum then identified the need for careful consideration of the definition of key terms in the draft instrument. She demonstrated the different approaches which could be taken to derivatives, to DNA, digital sequence data and to value, and for the need for solutions to be reached which reflected scientific realities and the risks which could arise from not doing this. She also called for solutions to ensure that MGR and information about it is available on an open access basis and that a Fair Accessible Interoperable and Reusable approach is taken to data.
Marcel Jaspars discussed the biodiscovery pipeline from MGR collection to commercialisation, and how the Mare Geneticum proposals regarding prior notification and regarding identifying how MGR is used across publications, are consistent with scientific best practice and existing databases. He also noted the challenge of the taxonomy of the unknown species which are being discovered as the area beyond national jurisdiction is explored. This can take many months, depending on the resource available, and he noted the importance of reflecting this reality in final provisions. On the place of periods of exclusivity, he also noted a contemporary debate, with some arguing this was needed to encourage and reward scientists and others considering that there should be immediate fee free access for all.
Negotiating an agreed approach to this involves practical questions, and also those of principle, which underly the MGR debate and which warrant further exploration. This issue also underpinned the contribution by Abbe Brown. She provided an overview of intellectual property (IP) rights and trade secrets, and identified potential places for them in the MGR debate: the prospect of patents over the MGR in its physical and information form, IP rights over information in databases and software which operates the databases, and the meaning of the terms "open access" and "open source". She argued for debate about the appropriate balance between the benefits afforded by IP in encouraging innovation and rewarding innovation, and the limits it can impose on research by others. She suggested that solutions can be found using existing legal possibilities, which can avoid the prospect of the private power of IP rights having unforeseen impact on solutions developed to bring about benefit sharing in respect of MGR. She also raised the prospect of varying approaches being taken to benefit sharing in respect of IP rights building on MGR in the context of different types of innovations (say detergents or cosmetics), and the consequences for encouraging innovation and investment and on delivering the most productive sharing of benefits, while reflecting the conservation and sustainability goals of the negotiations.
Thomas Vanagt of ABS Int closed the presentations by welcoming the debate on Mare Geneticum. He stressed that the most important thing was to focus on delivering access and benefit sharing within the wider package of the instrument on marine biodiversity beyond national jurisdiction.
Valuable questions followed, and discussion with and between participants and speakers. Key themes were evolving technologies enabling, notably, the genetic sequence information of the MGR to be obtained directly from the sea and the need for this to be addressed in definitions (present drafts distinguish in situ access and the genetic sequence information being identified later from working with the physical sample); the extent to which this information and material could and should be seen as property, of what kind, and whether it should be the subject of private control or open to all, particularly given the impact they can have on addressing societal challenges; and the impact of increasing private funding of research activity and of the attitudes which may be taken by private sector investments in commercial entities who are likely to be involved in the final stages of product development.
Further negotiations on all aspects of the instrument, including benefit sharing and IP, will take place in August 2019 and then there will be two further meetings in 2020. Perhaps reflecting some of the themes identified in the side event, there are at present some diverging positions regarding MGR: broadly one more focussed on compulsory sharing, monetary benefit sharing and engagement with IP, and one on non-monetary benefit sharing on a voluntary basis with no engagement with IP. The goal of this side event was to continue to develop the Mare Geneticum message that a workable pragmatic solution can be found between these approaches. All speakers look forward to the opportunity to have further dialogue with those involved in negotiations.
