This area is being considered by ABS experts in NHM and RBG Kew with a view to putting forward information to the CBD when appropriate. We have already made a submission to Defra on the subject with RBG Edinburgh, which can be seen here.
Currently sequence information downloaded from public databases is not covered by the Nagoya Protocol. However, some countries, such as Brazil, have in their domestic Access legislation clauses exerting their rights over digital sequence information even if held outside their borders.
In December 2016 the 13th Conference of the Parties to the CBD and the 2nd Meeting of the Parties to the Nagoya Protocol agreed decisions to address this issue (COP XIII/16 and MOP 2 decision 14). The MOP decision references the COP decision, to avoid duplication. The decisions set out a process:
1. Parties, other Governments, indigenous peoples and local communities, and relevant organizations and stakeholders will be invited to to submit views and relevant information to the Executive Secretary on the potential implications of the use of digital sequence information on genetic resources for the three objectives of the Convention;
2. The Executive Secretary will:
- Prepare a compilation and synthesis of the views and information submitted, including the information gathered from engagement with relevant ongoing processes and policy debates;
- Commission a fact-finding and scoping study, subject to the availability of financial resources, to clarify terminology and concepts and to assess the extent and the terms and conditions of the use of digital sequence information on genetic resources in the context of the Convention and the Nagoya Protocol;
3. An Ad Hoc Technical Expert Group will be established with the following terms of reference:
The ad hoc technical expert group shall:
- Consider the compilation, synthesis and the study referred to in paragraph 3(a) and (b) of the decision in order to examine any potential implications of the use of digital sequence information on genetic resources for the three objectives of the Convention and the objective of the Nagoya Protocol and implementation to achieve these objectives;
- Consider the technical scope and legal and scientific implications of existing terminology related to digital sequence information on genetic resources;
- Identify the different types of digital sequence information on genetic resources that are relevant to the Convention and the Nagoya Protocol;
- Meet at least once face-to-face, subject to the availability of financial resources, prior to the fourteenth meeting of the Conference of the Parties and make use of online tools to facilitate its work, as appropriate;
- Submit its outcomes for consideration by a meeting of the Subsidiary Body on Scientific, Technical and Technological Advice to be held prior to the fourteenth meeting of the Conference of the Parties.
4. The Subsidiary Body on Scientific, Technical and Technological Advice will consider the outcomes of the AHTEG and make a recommendation on the potential implications of the use of digital sequence information on genetic resources for the three objectives of the Convention for the consideration of COP14.
According to Notification Ref.: SCBD/SPS/DC/VN/jh/86317 (Issued 23 Feb 2017), available here, the AHTEG will meet in the first quarter of 2018 (tentative date), and the 22nd meeting of the SBSTTA, which will discuss the outcomes of the AHTEG, is tentatively set to meet in the third quarter of 2018. A further notification, available here, has set out a more detailed timeline and asked for submissions, with a final date of September 8th.
The CBD Executive Secretary will set up an Ad Hoc Technical Expert Group to discuss Digital Sequence Information, and nominations need to be made by the 1st September. The relevant Notification can be seen here with the call for nominations here. The constitution of the AHTEG was decided in October 2017 and can be found here.
Information submitted to the Secretariat as a response the the request for information and views can be found on a website dedicated to the issue on the CBD site here.
Relevant discussions will also be taking place in three other fora:
- CBD AHTEG on Synthetic Biology. This will be making recommendations which are bound to have a bearing on digital sequence data. Decision COPXIII/17 relating to this can be accessed here.
- The International Treaty on Plant Genetic Resources for Food and Agriculture is considering the issue. A relevant background document can be accessed here. The IISD summary of the 16th session, which included considerable discussion on digital sequence data and proposed synergistic activities with the CBD, is available here.
- The United Nations Convention on the Law of the Sea is developing an International Instrument on Biodiversity Beyond National Jurisdiction. This will include an element on ABS relating to Marine Genetic Resources. There has been some discussion in the first two Prepcoms on digital sequence data but so far no firm recommendations. However, these are likely.
- The WHO has been discussing Genetic Sequence Data in the context of influenza virus. Information can be found here. It includes a link to a report "Optimal characteristics of an influenza genetic sequence data sharing system under the pip framework"
Several relevant documents and papers are available:
Bagley, M.A., 2015, Digital DNA: The Nagoya Protocol, Intellectual Property Treaties, And Synthetic Biology. University of Virginia School of Law. Online here.
Bagley, M.A., 2017, Towering Wave or Tempest in a Teapot? Synthetic Biology, Access & Benefit Sharing, and Economic Development, in Susy Frankel and Daniel Gervais eds.THE INTERNET AND INTELLECTUAL PROPERTY: THE NEXUS WITH HUMAN AND ECONOMIC DEVELOPMENT (Victoria University Press, forthcoming 2017). Text available here.
Bagley, M.A., A.K. Rai (2013). The Nagoya Protocol and synthetic biology research: a look at the potential impacts, Wilson Center, Washington, DC. Available here.
Dedeurwaerdere T, P. Melindi-Ghidi, A. Broggiato (2016). “Global scientific research commons under the Nagoya Protocol: topwards a collaborative economy model for the sharing of basic research assets”, Environmental Science & Policy 55:1, 1-10. Available here
Dedeurwaerdere T., A. Broggiato, S. Louafi, E. Welch, F. Batur (2012). “Governing Global Scientific Research Commons under the Nagoya Protocol” in Morgera E., M. Buck, E. Tsioumani (eds) The Nagoya Protocol in Perspective: Implications for International Law, Martinus Nijhoff. Available here.
Garrity G.M., L.M. Thompson, D.W. Ussery, N. Paskin, D. Baker, P. Desmeth, D.E. Schindel and P.S. Ong (2009) Studies on Monitoring and Tracking Genetic resources. UNEP/CBD/WG-ABS/7/INF/2. (2013).
Hammond, E. (2016). Digital genebankers plan to ignore UN request on the impact of genomics and synthetic biology on access and benefit sharing, Third World Network, A preliminary Report, 4 April. Available here
Hammond, E., 2016. TWN briefing “Digital DNA” and Biopiracy: Protecting Benefit-Sharing as Synthetic Biology Changes Access to Genetic Resources. Available here.
Lawson, C. & Rourke, M., 2016, Open Access DNA, RNA and Amino Acid Sequences: The Consequences and Solutions for the International Regulation of Access and Benefit Sharing. Available for download here. Abstract: This article addresses how open access to DNA, RNA and amino acid sequences might be reconciled with the benefit sharing obligations under the United Nations’ Convention on Biological Diversity and its Nagoya Protocol, the Food and Agriculture Organisation of the United Nations’ International Treaty on Plant Genetic Resources for Food and Agriculture and the World Health Organisation’s Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits. Tracing the evolution of open access databases the article posits models for reconciling open access and benefit sharing, the article concludes, however, that none of the proposed solutions – monitoring and tracing, the contract model, and the copyright and database right model – provides a perfect solution. Each model does, however, suggest that open access to these sequences might be at least partially reconciled with benefit sharing.
Manzanella, D. 2016, The Global Information System And Genomic Information: Transparency Of Rights And Obligations. Background paper commissioned by the International Treaty on Plant Genetic Resources for Food and Agriculture (click on title to open).
Reichman, J.H., Paul F. Uhlir, P.F. & Dedeurwaerdere, T., 2016, Governing Digitally Integrated Genetic Resources, Data and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons. (Cambridge U. Press) Information on how to obtain the book here. [NB There is an option to read a pre-publication version; whever I have tried to access it my browserhas frozen]
Servick, K., 2016, Rise of digital DNA raises biopiracy fears. Science DOI: 10.1126/science.aal0395 Online here
There is a view in some quarters that the key issue is not DNA sequences per se but the distribution of ‘Natural Information’. For example:
Muller, M.R., 2015, Genetic Resources as Natural Information: Implications for the Convention on Biological Diversity and Nagoya Protocol. Routledge. 170pp. Available here.