Title: Biodiversity and Intellectual Property Law
1- Biodiversity and Intellectual Property LawÂ
- 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)
2Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere
- Background
- Â
- Results of the first FP5 seminar on Biodiversity
(Berlin, 2003) - Â
- Insufficiency of the existing incentive
mechanisms from a governance perspective - Â
-
- 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
3Biodiversity 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
- Â
- 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 - Â
- Hypothesis Double innovation in the
proposed measures - Â (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.
4Biodiversity 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
-
5Biodiversity 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 -
6Biodiversity 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)
7Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere
8Biodiversity 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
9Biodiversity 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
- Â
- 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
-
- Â
10Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere
- Â
- 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 - Â
- 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
11Biodiversity 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)