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TWN
Info Service on Biodiversity and Traditional Knowledge (Aug24/05) Montreal, 14 August (Nithin Ramakrishnan) – Developed country Parties have made it clear on the second day of the Ad Hoc Open-ended Working Group on Benefit-sharing from the Use of Digital Sequence Information (DSI) on Genetic Resources (Working Group) meeting that they would not want any obligations to share the benefits arising from the use of DSI. Neither do they want measures to establish accountability in the sharing of DSI. Despite the calls for legally-binding benefit sharing obligations by developing country Parties on the first day of the meeting, the first non-paper which was issued by the Co-Chairs of the Working Group continues to use language which does not create obligations to share benefits fairly and equitably. It also neglects the demand by developing country Parties to establish a CBD sequence database. The 2nd meeting of the Working Group, mandated to develop a CBD multilateral mechanism on DSI is happening in Montreal, between 12th and 16th of August. The first non-paper is based on the Co-Chair’s proposed elements contained in the document WGDSI/2/2. No binding language on benefit sharing Following the developed country Parties’ demands, there have been no changes in the language of the co-chairs’ proposed elements which would indicate any legally-binding obligations to share benefits. The African Group’s call for a legally-binding benefit sharing obligation is yet to be reflected. In the meantime, an option C has been added to paragraph 2 of the proposed elements to reflect the proposal of the African Group for monetary benefit sharing: “Contribution of one percent of the retail value of all products and services linked to the utilization of biological resources”. However, there are no details about this proposal in the non-paper, such as who will be obligated to make monetary contributions, through which legal instrument and at what time the monetary contributions will be made to the global fund. Parties such as Japan and Switzerland further watered down the language in the non-paper by proposing to delete soft law verbs such as “will” and “should” and to replace them with “are encouraged”. This was supported by other developed country Parties such as Australia, Canada and the United Kingdom. Norway further stated that it did not want to see the verb “shall” used anywhere in the document that would indicate that there is a legal obligation to share benefits. One of the Co-Chairs yielded, albeit with slight sarcasm, stating, “we shallmake efforts not to use ‘shall’ anywhere in the document”. Similarly, Canada argued that there cannot be any obligation to share non-monetary benefits in particular for the transfer of technology, unless the provision is accompanied by the phrase, “mutually agreed terms”. “We cannot expropriate rights from the rights holders” it said, likely forgetting that there is no expropriation involved in benefit sharing, because at the time of access, users contractually obligate themselves to share benefits such as technology arising out of or developed using DSI, in a fair and equitable manner. No accountability and transparency in sharing of DSI The non-paper also makes very little effort to ensure accountability in the sharing of DSI. It neglects the demand for the establishment of a CBD sequence database and data governance framework, as proposed by developing country Parties on the first day of the meeting. It only offers several new provisions in consolation. For example, instead of providing for the establishment of a CBD sequence database that will be accountable to Parties, the non-paper provides an option of establishing a national or global database as part of a list of non-monetary benefits that might be shared under the multilateral mechanism. Instead of calling for public accountability and transparency, and for Parties sponsoring and hosting databases to ensure minimal accountability standards that respect the rights of provider Parties, the non-paper includes a new paragraph 4bis: “The entities operating public databases are further encouraged to require, where possible, the provision of information on the country of origin of DSI and to apply the findability, accessibility, interoperability and reusability (FAIR) and collective benefits, authority to control, responsibility, ethics (CARE) principles to governance of data.” Interestingly, the non-paper avoids references to the UNESCO Recommendation on Open Science 2021, which is an unanimously adopted legal instrument by the States under the aegis of UNESCO. In contrast, the FAIR and CARE principles were developed outside of an intergovernmental framework. Although discussions on this paragraph were not yet open on the second day, Egypt, on behalf of the African Group, made text proposals for a draft decision that establishes a sequence database accountable to the Parties. It made it very clear that without such a database there will be no effective remedies to the Parties when their national laws are violated by the users of DSI. The text proposed is as follows: “1. Request the Executive Secretary to take immediate steps to enhance the effectiveness of the Clearing-House Mechanism (CHM) by: a. Establishing a centralized database for Digital Sequence Information (DSI) under the CHM framework; b. Ensuring that this DSI database facilitates transparent monitoring of access and utilisation of DSI; c. Supporting non-monetary benefit-sharing through this database by enabling capacity building, technology transfer, and information sharing among all Parties, particularly developing countries. 2. Decides that the DSI database shall serve the following purposes: a. Provide a transparent mechanism for monitoring access to and utilization of DSI, ensuring that benefits derived from DSI are shared in a fair and equitable manner. b. Support the capacity of all Parties, especially developing countries, to engage with DSI by providing access to relevant data, training opportunities, and technology transfer. c. Facilitate the exchange of information on DSI and its uses, enhancing collaboration and cooperation among Parties. d. Assist in monitoring compliance with national and international regulations related to DSI, including the protection of traditional knowledge associated with DSI 3. Requests the Executive Secretary to report on the progress of these actions at the next meeting of the Conference of the Parties 4. Encourages Parties, other governments, and relevant organisations to actively participate in and support the development and utilisation of the DSI database, contributing to the shared goals of the Convention.” Egypt pointed to the fact that current existing database practices do not ensure that DSI uploaders have obtained the prior informed consent of the provider communities or the national biodiversity authorities of the Parties, before sharing the DSI publicly. Developed country Parties quickly lined up to oppose this move. However, the European Union and Australia suggested that they are willing to explore the question of the added value of such a database, as proposed by the African Group. Some actors from the scientific community argued that the establishment and maintenance of such a database would be a Herculean task. The DSI Network for example stated: “Setting up a new database would require the hiring of dozens of informatics staff, and the capacity to handle hundreds of petabytes (millions of gigabytes) in data and accompanying technological infrastructure. In addition, the database would need to manage inter-connectivity with thousands of other databases and data types, as well as thousands of submissions per week. The sheer volume of submissions also points to the fact that proposals to check each submission for compliance with national ABS measures is not only cost ineffective, it is likely to be impossible.” Bioinformatics experts have however informed the Third World Network (TWN) that the current situation is a world where existing databases are cutting down staff because big data systems and artificial intelligence are far more efficiently handling these tasks. “Why do we even talk about checking each submission for compliance when all you have to do is to mandate that the DSI uploader submit a machine-readable permit from the national biodiversity authority or the provider and the rest is taken care of by machines?” a scientific community member, on condition of anonymity, told TWN. Canada argued that it would not want to make databases responsible for “policing” the rights of indigenous peoples and local communities, as well as the sovereign rights of the States over the genetic materials and the DSI generated from it. An observer to the negotiations commented that Canada appears interested in protecting the intellectual property rights of its industries, but not in protecting the data rights of their indigenous peoples and local communities from expropriation. Norway and Japan argued that a “centralized” database could cause “fragmentation”, while ignoring the current proliferation of unaccountable databases posing as so-called open access databases, which undertake no responsibility to ensure access to users without any discrimination. The very same developed country Parties argue for accountability and transparency, reporting obligations and international fiduciary standards in the utilisation of benefits received by the Parties from the global fund, which in fact places further burden on developing country Parties. The argument seems to be quite strange, as Parties that are reluctant to invest in administrative efficiency for securing monetary and non-monetary benefits, are calling for investing in efforts that will create administrative burden for the utilisation of the benefits received. Japan argued that the shareholders of their companies would question them for making monetary contributions to the global fund, if the governments do not report back on the utilization of the funds and demonstrate their investment in biodiversity conservation. “Who should be governed? The private sector, which makes billions and millions of profit from biological resources bypassing obligations to share benefits under the Convention, or the governments that receive funds in return for providing access to their genetic resources?”, a developing country delegate lamented to TWN. +
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