Biodiversity and Intellectual Property Law

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• Biodiversity and Intellectual Property Law 
• The Stake of a Theory of Reflexive Governance

Tom Dedeurwaerdere   Centre for Philosophy of
Law www.cpdr.ucl.ac.be
Research funded through Belgian Federal
Government (IAPV) European Union
(FP5-IHP-KA1-2001-1) National Foundation for
Scientific Research, Belgium (FNRS)
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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere

• Background
•  
• Results of the first FP5 seminar on Biodiversity
  (Berlin, 2003)
•  
• Insufficiency of the existing incentive
  mechanisms from a governance perspective
•  
• from the point of view of efficiency of the rule
• does not adequately address the question of the
  option value of biodiversity
• the focus on the extraction value even can
  undermine existing conservation efforts
  contributing to the option value
• from the point of view of legitimacy of the rule
• incapacity of the existing legal resources to
  combine different orders of legitimacy cf.
  conflict between Intellectual Property Rights and
  Traditional Knowledge
• recourse to means of bypassing the international
  regime

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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere
Introduction Focus of this contribution
critical evaluation of alternative mechanisms of
regulation proposed in the ongoing negotiations
on ABS

• Current mechanism
•  
• Incentive for innovation through
  intellectual property rights for the users of the
  genetic resources in the plant breeders and
  pharmaceutical industry
• Protection of the providers right through
  clauses of Prior Informed Consent and Access and
  Benefit Sharing in the contract
•  
• Hypothesis Double innovation in the
  proposed measures
•   (reference Institute of Advanced Studies of
  United Nations University, 2003)
• Developing an action on the innovation
  potential of the whole production chain
• Developing an action on the maximization
  of future options of development, beyond the
  question of allocation of existing resources.

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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere
Objective of this contribution

• Evaluation of the new means of regulation from
  the point of view of a double criticism
  within governance theory attempting to overcome
  the division between the normative ambition of
  the new modes of regulation and their practical
  acceptance from the point of view of the users.
• Contribution to the debate on the efficiency of
  the rule
• evolutionary criticism of law and economics
• Contribution to the debate on the social
  legitimacy of the rule
• systemic sociology of law

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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere

• The contrbution from the evolutionary criticism
  of law and economics
• Reference Driesen, the economic dynamics of
  environmental law
• static conception of efficiency optimal
  allocation of existing resources under ideal
  conditions of perfect rationality
• dynamic conception of efficiency acquisition of
  new knowledge and new competences in order to
  maximize the future choices of development

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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere

• 1. 1. The sub-optimal character of investment
  in innovation
• Autonomous dynamics of natural evolution of the
  genetic resources
• Incremental character of the decision process
• 1. 2. The reaction of the law
• From a simple adaptation within the existing
  static conception
• shortening the patents
• multiplication of specific regimes for each
  sector of activity
• To a dynamic conception
• liability rules (Reichman)

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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere

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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere
Susceptibility of Wheat Varieties as a Function
of Usetime

AUD
Years
10
20
30
Years
Source Singh and Rajaram 1991
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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere

• The contribution of the systemic sociology of law
  
• Double condition for the effective implementation
  of the new proposed means of regulation
• (Gunther Teubner)
• ? 1. the adjustment of the legal system in
  reaction to its effect on different
  socio-economic systems
• ? 2. effective implementation will depend on the
  cooperative interaction between the plurality of
  soci-economic subsystems
• Condition 1 Reflexivity of the legal system
• ethical codes of conduct
•  
• MOSAIC Microorganism Sustainable Use and Access
  Regulation
• Royal Kew Gardens London
• Glaxo Welcome, Novo Nordisk, Xenova, Shaman
  Pharma, Bristo-Myers Squibb
• voluntary mechanisms of benefit sharing
•  

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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere

•  
• Condition 2 Reflexivity on the conditions of
  cooperative interaction regulation of
  self-regulated activities
• International system for the monitoring of the
  flow of genetic resources
•  
• Harmonisation of procedures of prior informed
  consent and mutually agreed terms
• Global Bio-Collection Society
• Monitor the compliance with the objectives of the
  Convention on Biological Diversity and the
  International Undertaking on Plant Genetic
  Resources
• Incentives
• Reduction of transaction costs for the industry
• Balance the asymmetry in the parties legal
  resources for the local communities

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Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere
Recapitulation of the evaluation of the proposed
measures

• Step A allowing for new strategies for
  regulation in a dynamic conception
• Step B considering reflexivity of the legal
  system with regard to the problems of collective
  action created by the new tools
• Remaining problem emergence / enabling of the
  reflexive capacities
• Step C intermediary organisations allowing to
  articulate A and B
• Ex. critical evaluation of the new institutions
  from the point of view of a broad set of actors
  involved in the new strategies for regulation
• Example democratic bargaining in dialogic
  webs (Drahos)