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Info Service on Biodiversity and Traditional Knowledge (Aug24/06) Third World Network, August 2024 Decision 15/9 recognizes the value of sharing digital sequence information (DSI) on genetic resources in public databases, but neither Decision 15/9 nor the proposed elements define what a public database is in the context of the Convention on Biological Diversity (CBD). Nor do they prescribe any criteria or conditions for their operations and governance, or whether or how databases would be accountable to Parties. In this context, it is important to ask which of the existing databases are truly “Public Databases”, within the context of the CBD. Can databases governed by few Parties or private entities be understood as Public Databases? If so, how do we hold them accountable to the rights of the Parties, Indigenous Peoples and Local Communities, Peasants and Farmers? So, looking at currently existing databases, here are some (potential) failures to fulfil decision 15/9. 1. No checks whether the rights holder consents to uploading the sequences In general, existing databases do not require a confirmation that the rights holder agrees to the uploading of DSI and making it publicly available. They might not even require any information about the country of origin. But at the same time, countries can have national regulatory arrangements for sharing benefits arising from the use of DSI that were extracted from their territory, for example their own national database. What happens if such sequences are uploaded in contravention of national laws? Does the country of origin have legal rights to retract this data? What if DSI is derived from genetic materials that were extracted without prior and informed consent of Indigenous Peoples and Local Communities? How will they get to know that their rights are violated? What legal remedies are available for them? Can we ensure that access is given only to DSI that is submitted in compliance with national laws or other international ABS regimes? Especially if these databases are not within the framework or jurisdictional reach of the CBD and its Parties? 2. No sharing of benefits with the countries of origin or through the multilateral mechanism Public databases have no system of obligating users to share benefits with the country of origin or through international ABS mechanisms, neither monetary nor non-monetary benefits. They are simply not set up for ABS purposes. The current document CBD/WGDSIG/2/2 acknowledges this fundamental shortcoming, but only proposes to encourage public databases to inform users about the multilateral mechanism and benefit sharing. But what happens if they don’t? More importantly, what happens even if they do inform users; are those users then obligated to share benefits? 3. Anonymous access Some databases, including the biggest sequence data collaborator, allow anonymous access. So there is no way of knowing who accessed or downloaded which sequences. Besides the issue of benefit sharing, such anonymous access also raises biosecurity concerns, if sequences of pathogenic materials become accessible. When R&D becomes more and more dependent on these databases, they start becoming easier targets of cyber-biosecurity threats including for data manipulation. Simple database logs that keep record of online activities of the user would significantly improve accountability, transparency, safety, security and transparency. 4. Data leaks undermine national laws and/or other benefit sharing regimes Data leaks can happen in a number of ways, and then sequences and other information become available outside of respective benefit-sharing frameworks. Such data leakages can be occur if somebody distributes downloaded information against the terms and conditions of a database. It can happen when somebody uploads data in violation of national laws of the country of origin or material transfer agreements under which they received the data. 5. No guaranteed access: accounts can be terminated All databases have terms and conditions, they are not run under an inclusive international mandate to guarantee open access. Most of them retain the unilateral right to suspend or terminate access with or without notices. Access can be restricted for specific users, for specific IP addresses, as well as for geographic regions and countries. If access is removed then there is often no clear, transparent way of challenging that. Reasons to restrict access can be political. There have been reported cases of scientists whose access to a virus database was restricted because in their research on the origin of COVID-19, they follow a theory that the maintainer of the database disagreed with. 6. No equal access: different functionalities can discriminate against users Not all users have equal rights and access. Non-transparent and non-inclusive governance structures of existing databases can discriminate between users. The business model of a database can include that specific tools or functionalities are only available to those who pay more or only to those who are from collaborator institutions, from sponsors or from countries that provide funding. This will only increase the gap between researchers with greater resources and those with less money to spend. So, the sequences in a database may come from biodiversity-rich developing countries, while the researchers from the very same countries may have less access, less tools to use them within such a database, compared to their colleagues in developed countries, in companies or institutions with big research budgets or in networks of the entity that manages the database. 7. Where do you go for legal remedies against data leakage or avoidance of benefit sharing? Databases have terms and conditions, and usually a place where legal action needs to be taken. So if your sequences end up in a database with headquarters or the physical storage equipment in some other country, then you probably need to go there for legal proceedings, and you have to follow the legal process of that country. And for obligations under the CBD: How will that work if these headquarters are in a country that is not a Party to the CBD?
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