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. These countries may take the position that sequence information should be or even is covered by the Protocol, leading to an uncertain legal position.
The term ‘Digital Sequence Information’ is undefined and interpreted differently by different stakeholders (as can be seen from the CBD AHTEG report linked to below). From the Museum / Gardens point of view we are focussing on sequence data.
This area is being considered by ABS experts in NHM and RBG Kew, who are keeping a watching brief on developments and advising where 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 the issue of whether DSI should be included within the CBD or not (COP XIII/16 and MOP 2 decision 14). The MOP decision references the COP decision, to avoid duplication. The decisions set out a process of fact-finding and production of information, including (1) soliciting views from Parties and other stakeholders; (2) commissioning a study; and (3) setting up and Ad Hoc Technical Expert Group (AHTEG). The report of the AHTEG will be considered 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 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.
The results of the process so far can be found on the CBD site here. This includes:
Information submitted to the Secretariat as a response the request for information and views can be found on a website dedicated to the issue, including submissions from CETAF and from NHM, RBG Kew and RBG Edinburgh.
The Scoping report (with comments from NHM).
The report of the AHTEG.
The document to be considered by SBSTTA in July is available 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.