Protecting marine biodiversity by understanding intellectual property rights

Commonly called the ‘high seas’, marine areas beyond national jurisdiction (ABNJ) are parts of the ocean that for which no one nation has full control, or responsibility. Two thirds of the world’s ocean lie in these areas which are home to a wide range of unique species and delicate ecosystems.

The biodiverse plants, algae, animals, and other organisms found in ABNJ, also called ‘Marine Genetic Resources’ (MGR), can be used to develop new drugs and medical treatments for human disease such as cancer, pain, and heart disease.

Sharing benefits of marine biodiversity

Although this marine biodiversity is hugely valuable and vital for medical advancement, it is also highly vulnerable and at risk of degradation, partly due to the fragmented legal frameworks currently in place to manage ABNJ.

There are many competing views over how MGR should be managed in international waters, which has led to tension between different states as they attempt to balance the need for MGR-based research and the impact this research would have on the environment. There are also ongoing discussions around the best way to equally share the benefits of MGR and how to enhance the transfer of information and technology between organisations.

Researchers at the University of Aberdeen are playing a key role in supporting the United Nations process that is working towards agreeing a common set of rules on the use of MGR in areas beyond national jurisdiction.

A new law

Combining their multi-disciplinary expertise in law and marine biodiscovery, Professor Abbe Brown and Professor Marcel Jaspars’ collaborative approach is providing recommendations on a new law that is to be incorporated into the United Nations Convention on the Law of the Sea.

The UN Law of the Sea is an international agreement that was adopted in 1982 and sets out how the world’s ocean and seas are regulated and governed. The new addition, Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ), was launched by the UN General Assembly in 2004 to assess the status of conservation and sustainable use of marine biodiversity in ABNJ, investigate the potential need for further international cooperation and determine how benefits from MGR can be shared equally. It aims to provide a global framework that will conserve and sustain these vast parts of the ocean and find a solution for regulating the use of marine biodiversity, providing a fair and clear means through which scientists can work with MGR, notably to make new pharmaceutical drugs.

Understanding intellectual property rights

A potential barrier to implementing an effective solution is intellectual property (IP). IP allows private entities to hold power over the results of innovation. This means the IP owners would be able to control the use of the innovation, which could limit the benefit of research and development of MGR found in ABNJ.

Professor Brown and Professor Jaspars have been raising awareness of the issue of IP with states, international governmental organisations and non-governmental organisations involved in the negotiations at the UN, and suggesting workable solutions which would ensure that the BBNJ negotiations engage appropriately with IP to allow innovation based on MGR to benefit health and science, and for the benefits to be shared fairly.

“Intellectual property rights must be considered in the BBNJ negotiation process as they give the right to control the results of innovation and creativity. IP rights encourage and reward innovation and creativity, but it can also mean that the results can be the subject of too much private control. We continue to inform and assist country delegates and wider stakeholders at the UN negotiations to stimulate debate and progress on this important issue.”
Professor Abbe Brown

Developing an effective approach

In the early stages of the BBNJ process, negotiators and others involved demonstrated a limited understanding of the impact of IP rights, but Professor Brown and Professor Jaspars have sought to address this by bringing together their globally-recognised expertise in IP rights, law and marine biodiscovery to build a detailed understanding of the scientific aims of the BBNJ process and identify the need for engagement with IP.

Additionally, they have shaped an approach that restricts the power of IP rights, traces the use of MGR and encourages the open sharing of MGR analysis results, to ensure that the benefits of information and ecologically sustainable technologies gained from ABNJ can be shared widely.

“We have engaged with policy makers at the EU and UN level to provide impartial advice that aims to find a pragmatic solution to the competing views that exist over the best way to manage marine resources in international waters. By combining our expertise, we have suggested a practical approach that aims to balance the different views of nations, while ensuring that every nation benefits from the discovery of new biological resources.”
Professor Marcel Jaspars

Engaging the public

Another important part of their work has been public engagement, to raise awareness of the need to protect the ocean and the health benefits that can arise from working with MGR.

Based on their research, Professor Brown and Professor Jaspars collaborated with composer Professor Paul Mealor and poet Dr Grahame Davies to raise further public awareness of the importance of the ocean for us all. This led to the ‘Song of the Ocean' which was sung by a community choir of representatives from across the University to highlight the major issues of environmental impacts upon our oceans, sustainability and planet protection.

Professor Brown said: “A major theme in the negotiations is the benefits that can be obtained from the ocean in developing new medicines and other products, but it’s important that we understand how this can be brought about in a sustainable way and how key medicines, information and technology can be shared widely. Initially there was a limited understanding of the challenges and opportunities that different approaches to intellectual property could offer within the agreement but by working closely with the UN and raising awareness with the public, we have changed the landscape of the BBNJ negotiations and developed solutions beneficial to all.”

Performance of 'Song of the Ocean'

Impact

The combined expertise, activity and influence of Professor Brown and Professor Jaspars regarding IP and science has changed the negotiating landscape of the emerging BBNJ agreement and has led to IP being embedded in the BBNJ process.

By hosting and contributing to a large number of events for the UN, national governments, non-governmental organisations and other bodies, Professor Brown and Professor Jaspars contributed directly to commentary on the evolving agreement and their contributions have informed delegates, negotiators, intergovernmental organisations, non-governmental organisations, and industry experts about the problems and opportunities that can arise from IP rights.

In 2020, funding was obtained from the Royal Society of Edinburgh (RSE) to undertake engagement activities with negotiators and others involved in the BBNJ process, as well as the wider public. Funding was obtained from the Wellcome Trust to support the creation of online content (podcasts, online explainer videos) and engagement activities (a musical composition and performance) to promote the reasoning behind ideas and explain how they could be used by government and business and how the wider public could use its influence.

The public engagement activities have provided a complementary form of pressure on BBNJ negotiators to consider the importance of engaging with intellectual property as a way of developing effective and viable solutions within the confines and realities of international agreements.

On 22 January 2020, a public event was held to explore IP, science and public campaigning and was accompanied by a workshop at the RSE, supported by the RSE, the University of Aberdeen, Atlas and iAtlantic and the Deep Ocean Stewardship Initiative. Held on a Chatham House basis, the event was attended by diplomats, policy makers, academics, activists, intergovernmental organisations, non-governmental organisations, and industry and explored and challenged possibilities.

Informed by Professor Brown and Professor Jaspars' research, the ‘Song of the Ocean’ was composed by Professor Paul Mealor with words by Dr Grahame Davies, to highlight the issues of deep sea biodiversity. In summer 2021 the song went global, in collaboration with the Deep Ocean Stewardship Initiative for World Ocean Day.