Ending Unauthorised Access To Genetic Resources (aka Biopiracy): Bounded Openness

Ending Unauthorised Access To Genetic Resources (aka Biopiracy): Bounded Openness

“Access to genetic resources” and “the fair and equitable sharing of benefits arising from their utilization” have beleaguered all thirteen Conferences of the Parties to the 1993 United Nations Convention on Biological Diversity (CBD). The expression in quotes constitutes the third objective of the Convention and is intertwined with the first two, conservation and sustainable use. It goes by the acronym “ABS”. Despite 25 years of efforts and an annual bio-economy of nearly one trillion dollars, [1] few contracts have ever been concluded.[2] And of those very few, the monetary benefits are so low that contracting parties are loathe to disclose them. The “Brazilian ABS Law” of 2015, which came into effect on 6 November 2017, even allows royalties on net sales to be as low as one tenth of one percent.[3] In the words of one distinguished legal scholar, Users are paying “peanuts for biodiversity.”[4]

The failure to achieve fairness and equity is usually attributed to the general failure of Provider governments. Although authorizing access to genetic resources can be cumbersome, bureaucracy does not explain the peanuts. Economics does. Genetic resources are not matter, as widely misinterpreted by Parties to the CBD, but information. Economics teaches that competition will drive the price of anything down to the marginal costs of production, be it for matter or for information. Efficiency ensues for the former but for the latter, bankruptcy. So economists have long justified monopoly intellectual property as the legal mechanism to recover the fixed costs of creating artificial information.[5] The analogous argument for natural information is oligopoly protection through Article 10 of the Nagoya Protocol to the Convention,[6] which contemplates a Global Multilateral Benefit-Sharing Mechanism.[7]