|
||
|
TWN
Info Service on Biodiversity and Traditional Knowledge (Apr25/04) Plant Treaty: Africa and Asia call for treatment of DSI in Material Transfer Agreement Kochi, 14 April (TWN) – The African Region and some countries from Asia strongly call for mandatory obligations on the use of digital sequence information/genetic sequence information on plant genetic resources for food and agriculture (PGRFA) and the benefits arising from such use. They stressed that such issues should be decisively dealt with under the Standard Material Transfer Agreement (SMTA) of the International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty). The SMTA is a standard, legally binding contract regulating the transfer of PGRFA included in the Multilateral System (MLS) of the Treaty, and the fair and equitable sharing of benefits arising therefrom. They made these demands at the third and final days of negotiations at the Ad Hoc Open-ended Working Group (WG13) to Enhance the Functioning of the Multilateral System, which met from 1 to 4 April 2025. [The Plant Treaty is an international treaty with the objectives of conservation, sustainable use, access and benefit sharing from the utilization of PGRFA, meaning seeds and other propagating materials for research and breeding.] To promote facilitated access to seeds and other propagating materials, and benefit sharing from their use, on a mutually reinforcing basis, the Treaty had established the MLS. Once holders of seeds and other propagating materials notify that these resources are to be part of the MLS, anyone wishing to receive them for research and breeding can seek them from the holders, free of charge or at nominal charges covering only costs, under the SMTA adopted as part of the MLS. Parties are obligated to register the SMTA with the Food and Agriculture Organization (FAO) and provide some information. The recipients of the seeds and other propagating materials through the MLS are also required to make monetary contributions to a benefit sharing fund established by the FAO, when they commercialise their subsequent newly developed seeds and other propagating materials but do not make these available for further research and breeding. These shared seeds and other propagating materials cannot be made the subject matter for research for non-feed and non-food purposes such as for pharmaceutical or bioenergy uses. Digital sequence information/genetic sequence data (DSI/GSD) from such shared seeds and other propagating materials can also be generated and used once the materials are shared. Some recipients even transfer the PGRFA to sequencing service providers to generate high quality genomic sequence information. Unfortunately, the Plant Treaty and its SMTA say nothing about PGRFA DSI/GSD specifically, since this was not an issue at the time of their negotiation and adoption. However, such information may be considered as included in the non-descriptive information shared by the provider with the recipient or by the recipient with the FAO. On one hand, this legal scenario has led to a disturbing situation where PGRFA DSI/GSD is generated and uploaded online in such a manner that anyone can access these even anonymously and use it for any purposes, including those outside the scope of the Treaty. On the other hand, the governance and transparency of the MLS is not efficient, and this has worsened the situation. For instance, the CGIAR Genebanks Accelerator Policy Team conducted a recent Patent Landscape Report on Inventions Based on Plant Genetic Resources for Food and Agriculture and Related Digital Sequence Information / Genetic Sequence Data and made a presentation to the Working Group on 31 March 2025. They claimed that it is “impossible to assess how many patented inventions are based on PGRFA materials from the Multilateral System”. Co-Chairs propose soft obligations for benefit sharing from DSI use The INB Co-chairs, in their package of measures, proposed that the issue of PGRFA DSI/GSD be addressed in the draft Resolution dealing with enhancement of the MLS, rather than as part of proposed amendments to the Annex (a part of the Plant Treaty) or the SMTA. [The package of measures for enhancement of the MLS has three parts: first, amendment proposals on the Plant Treaty; second, amendment proposal on the SMTA; and third, draft resolution adopting these proposals along with a few other measures. Amendments to the Plant Treaty and SMTA are legally binding in nature, once they enter into force, while a resolution and measures contained therein are only advisory in nature.] Essentially, the argument is that DSI/GSD cannot be regulated under the Treaty or under the SMTA, because there is no definition of DSI/GSD which Parties to the Treaty agree to. Therefore, the Co-chairs proposed to deal with the issue in the draft Resolution, from paragraphs 45 to 61. This means that the Co-chairs’ proposal adopts a soft law approach (i.e. no obligation or obligation without legal force) to share benefits from the use of DSI/GSD, while a hard law approach (i.e. obligatory and mandatory) is chosen for the Parties to expand the scope of seeds and other propagating materials in the MLS. Apart from these stark double-standards, there were several other gaps in the proposed paragraphs, starting with a failure to address benefit sharing arising from the use of PGRFA DSI/GSD in a meaningful manner, to attempting to decide for other international fora like the Convention on Biological Diversity (CBD). The proposal even failed to refer to the unanimously adopted UNESCO Recommendation on Open Science 2021 and its principles. There was also no reference to accountability and transparency of databases that share PGRFA DSI. Neither was there a recognition of the need to put access and benefit sharing principles on an equal footing. Regarding benefit sharing from the use of DSI/GSD, the Co-chairs’ proposal said: “Acknowledges that mandatory benefit-sharing payments under the subscription mechanism of the revised Standard Material Transfer Agreement contained in Appendix 1 to this Resolution also reflect any contributions to the development and commercialization of products that are plant genetic resources for food and agriculture from the use of digital sequence information/genetic sequence data and address any expectations for monetary benefit-sharing from their use; …” (Paragraph 50). Further they proposed voluntary benefit sharing from the use of DSI/GSD, which was rejected outright by Parties in the Working Group “Affirms that voluntary benefit-sharing payments into the Benefit-sharing Fund, amounting to [xx]% per year of the Sales of products that are Plant Genetic Resources for Food and Agriculture would also address any expectations for monetary benefit-sharing from the use of digital sequence information/genetic sequence data on plant genetic resources for food and agriculture for that specific year; …” (Paragraph 51). Interestingly, although Parties called for the deletion of paragraph 51, there has been no other concrete proposal regarding how those who are not accessing seeds from the MLS, but use PGRFA DSI/GSD, could be subjected to an obligation to share benefits. Paragraph 50 talks about mandatory benefit sharing through a subscription system to the MLS, which is part of the SMTA. However, neither the SMTA nor the subscription terms say anything about PGRFA DSI/GSD. The package of measures even has another important proposal that appears to exceed the mandate of the Working Group. Paragraph 59 of the draft Resolution states: “Acknowledges that the functioning of the Multilateral System is enhanced in a manner as to meet expectations for monetary benefit-sharing from the use of digital sequence information on genetic resources under other relevant fora and instruments, especially the Convention on Biological Diversity and its Nagoya Protocol;…” The proposed paragraph is stating as a matter of fact that the current package of measures is enhanced, and it also seems to pre-empt (even substitute for) the expectation of monetary benefit sharing from the use of the DSI/GSD in general (not just that of PGRFA DSI/GSD) in other relevant international fora such as the CBD and its Nagoya Protocol. The paragraph is legally untenable as neither the Working Group nor the Plant Treaty’s Governing Body can undermine rights and obligations established outside the scope of the Treaty. The CBD has 196 Parties, while the Plant Treaty has only 154 Parties. Africa and Asia demand PGRFA DSI/GSD be dealt under the SMTA Both African and Asian members in the Working Group (except Japan and Korea) demanded several times over the course of the meeting that DSI/GSD generated from PGRFA shared through the MLS be dealt with under the SMTA. Africa insisted on inserting two paragraphs in the preamble of the SMTA: “Recalls Resolution 16/2022, in which it noted that it had not yet decided on the official terminology for digital sequence information / genetic sequence data and therefore uses “DSI/GSD” until new terminology is agreed; Affirms that the sharing of data on plant genetic resources for food and agriculture, including digital sequence information/genetic sequence data, and the fair and equitable sharing of benefits arising from the use of DSI/GSD on PGRFA on equal footing, is important for reaching the objectives of the International Treaty;…” Asia emphasised operating provisions under the SMTA to deal with PGRFA DSI/GSD. They pointed out the need to address the same under Article 6 of the SMTA dealing with the rights and obligations of the recipients of the PGRFA, as well as various provisions regarding withdrawal from the SMTA. Asia also proposed expanded definitions for “sales and commercialization”, to include benefits arising from the use of PGRFA DSI/GSD. Under Article 6, Asia took the floor on the last day of the negotiations to support a text proposal made by civil society organisations (CSOs) at the meeting. This reads: “New 6.12. If the Recipient generates DSI/GSD from the Material received, and decides to make it publicly available or share it with third party, they shall do so under any applicable law and in case of making it publicly available shall do so through the GLIS [Global Information System] established pursuant to the Article 17 of the Treaty.” The CSOs explained the sovereign rights recognized under the CBD as well as its Conference of Parties Decision 16/2 that allows the Parties to set terms relating to DSI/GSD generation, storage, use and benefit sharing from the use etc. at the time of sharing genetic materials. The proposal to add a new paragraph 12 to Article 6, was for operationalizing this right. Further, at the instance of Asia, the Co-chairs took note of the demand to address the implications of withdrawal from the SMTA, on PGRFA DSI/GSD in the final report of the meeting. The CGIAR representatives were also further supported by the African Group in their call to address issues relating to intellectual property rights (IPR) over DSI/GSD within the SMTA, in particular regarding disclosure of the source of DSI/GSD in the IPR applications. [CGIAR is the Consultative Group on International Agricultural Research.] Call for accountable databases and UNESCO Recommendation The CSO observer in the Working Group called for PGRFA DSI/GSD to be deposited only in databases that are accountable to the Plant Treaty and its Contracting Parties. This call was supported by the Asian (except Japan and Korea) and African countries. The proposal was to amend paragraph 46 of the draft Resolution in the following way: “Affirms
the importance of maintaining [ The text was proposed and supported without prejudice to the position of these countries and observers that DSI/GSD is an issue to be dealt with under the SMTA. CSOs cautioned against using the phrase “open access” which does not have an agreed meaning between States. Some entities and Parties misinterpret the concept as anonymous access and some others identify the concept as sharing of DSI/GSD without any benefit sharing conditions or commitments attached to it. Further, many of the current databases that claim open access do not guarantee access to researchers and scientists without discrimination. There has been known cases of unilateral suspension of access to databases to users. Citing all these problems relating to accountability, access, and benefit sharing, it was argued that there is a need for accountable and transparent databases for the Treaty and its Parties to maintain access to all registered users without discrimination. Asian developing countries had also emphasised previously that PGRFA and DSI/GSD cannot be diverted for purposes that are not covered by the Plant Treaty. In this regard, accountable and transparent systems are a must. Furthermore, the CSOs and Asian developing countries called for reference to the UNESCO Recommendation on Open Science and CARE Principles in Paragraph 54 of the draft Resolution. Norway also welcomed the reference to the UNESCO Recommendation and CARE Principles, albeit through a different formulation. [CARE is the acronym for Collective benefit, Authority to control, Responsibility, and Ethics in managing data.] The Co-chairs’ proposed paragraph read as follows: “Acknowledging the FAIR data management principles (findable, accessible, interoperable, reusable) and their respective subprinciples, urges encourages Contracting Parties, and invites natural and legal persons, who hold digital sequence information/genetic sequence data to make such information publicly accessible, such as by linking it to the Global Information System;” With the proposed changes, the paragraphs now read: “Acknowledging the FAIR data management principles (findable, accessible, interoperable, reusable), [CARE principles (collective benefits, authority to control, responsibility and ethics) as well as core values and guiding principles of UNESCO Recommendation on Open Science 2021] and their respective subprinciples, urges encourages Contracting Parties, and invites natural and legal persons, who hold digital sequence information/genetic sequence data to make such information publicly accessible, such as by linking it to the Global Information System;” CARE principles provide for collective benefits and authority to control data to indigenous peoples, when the same is generated from indigenous peoples. The UNESCO Recommendation on the other hand recognizes several values and principles of open science, including benefit sharing, as well as good data governance for open science infrastructure. The Recommendation also warns against using open science infrastructure for inequitable data extraction. Ultimately, the meeting could not decide on any of these issues. The Co-chairs adopted a compilation approach inviting every Party to suggest the language they intend to make on DSI/GSD. These proposals will be discussed in the next meeting that will take place in July, 2025 in Peru. The delegate from Ecuador asked the Co-Chairs to reduce the number of paragraphs during the intersessional period, to enable them to produce alternate text. However, the Co-chairs politely denied the request citing lack of time.+
|
||
