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Biodiversity and Intellectual Property Law

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Title: Biodiversity and Intellectual Property Law


1
  • 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)
2
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

3
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.

4
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

5
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

6
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)

7
Biodiversity and Intellectual Property Law
Tom Dedeurwaerdere

8
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
9
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
  •  

10
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

11
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)
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