Governing International Commons - BIOGOV

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Governing International Commons:
Sharing genetic and other scientific
and knowledge resources
Tom Dedeurwaerdere
Université catholique de Louvain
Global Governance Program, European University Institute,
Firenze, 16th-19th November 2011
1
Introduction
Global commons caught between
intellectual property, open access and
pooling of shared resources
Economic opportunities from shared use and
conservation of genetic resources
Global seed exchange network
(source : Byerlee et al., 2010)
Improvement of traditional
races (source: Label rouge)
Microbial Biocontrol
(Source : M. Höfte)
Source : slide from Tine De Moor, presentation Utrecht Studium Generale,
16th of May 2011,
The way we think about
commons is rapidly evolving
Common property (pre-1990)
Common-pool resources (1990+)
Commons (2000+)
(reference : slide from Charlotte Hess, NAS symposium, 9 october 2009, also the
previous slide on the new commons)
• Definition of Commons in « Knowledge as a
Commons » (MIT Press, Hess and Ostrom,
eds.) :
< any resource that is shared by a discrete group
of people at any level, whether local or global
Introducing the research
question
• Research question : how to create a better fit
between the formal institutional arrangements
(law, contracts and policies) and the normative
practices and needs of genetic resources
commons ?
– Examples of « crowding out » of productive norms
and practices by focus on monetary values alone :
• national ABS rules’ impact on bioprospecting
• anticommons effects of patents, …
Part 1. Economics of governing
genetic resource commons
9
1. Genetic-resources : the last
frontier of the global commons
No Belgian beer without the commons
No Friesian horses without the
commons
How to deal the wealth of genetic resources with
unknown or unlikely commercial potential but
high research and high environmental pay-offs ?
Global common pools of genetic-resources as an
alternative to green gold
Microbial commons
Animal breed societies
Common pool of plant genetic
resources
Overview
First case study : governing rare breed / small
herdbook societies as a commons
Second case study : governing microbial
commons
Third case study : governing the global crop
commons
Case study on animal rare
breed / small herdbook societies
What kind of commons are the
breeding societies ?
 The animals are owned by the farmers
 The genetic resources are managed collectively by the
members of the breeding society
 Measures for facilitated access to genetic resources
within the pool
How to govern the breeding
societies ?
Question 1 : how to prevent the
disappearance of the breed ?
Question 2 : How to use
traditional breeds for globally
sustainable agriculture ?
Use and improvement of Indian
Zebu in Brasil
How to Govern the common
breeding pools ?
Maximum rent or
Sustainable development ?
•
Limits on genetic exchange with the livestock kept
by other social groups
•
Collective breeding goals : not on the « optimal
productive » animal, but a an optimal herd
composed of different lineagages (adaptive value,
and not just productive value)
Case study on microbial
commons
What kind of commons is the
microbial commons ?

A commons of natural resources

The gene banks do not own the resources : materials held in trust for the
humankind

Well established boundaries around the common pool : only certified materials for
research and identification services
How to Govern the microbial
commons ?
Green gold or
Research commons ?
Question 1 : supporting the market or the
research value ?
1 % of the microbial
materials : potential
blockbuster commercial
application
99 % of the materials : used in
the scientific research commons
Question 2 : How to promote informal
exchange networks ?
Distribution
forms
Accession
form
Accession
form
Accession
form
Case study on the global crop commons
32
Source : Byerlee and Dubin, International Journal of the
Commons, 2010
Global seed exchange network
(source : Byerlee et al., 2010)
2. Theory of mixed motivations
in social production systems
35
Empirical data on voluntary contributions
to social funds
Reference (for the 2 following slides) : Stephan Meier. 2006.
The economics of non-selfish behaviour. Edward Elgar.
36
Decision situation : On paying the compulsory tuition fee,
students at university of Zurich are asked every year if they
wish to contribute to a social fund (offering low-interest loans to
students in financial difficulties) and/or a foreigner fund
(support for foreigners).
Results :
• Between 1998-2002, on average > 69% of the students
contributed to at least one fund, > 62% to both funds.
• Over the years, students either always contribute or never
contribute.
• > 75% does not tell friends whether they contributed or not.
37
Framing effect : change in way of asking in 1998 (asking
explicitly to contribute, and offer choice) lead to an increase in
people contributing to both funds from 44% to 62 %
Group identification effect : upon first registration before
attending the University 73% contributes at least to one fund,
after increases to 76% in the second semester, drops to 61%
in the last semester, compared to 63% in the next to last and
64% in the semester before that.
Conditional cooperation effect : people presented with
information of others being cooperative (by giving the % of
contributors) are more likely to contribute, at least if they are in
the category of people “doubting” to contribute
38
Interactions between intrinsic / social motivations
and monetary incentives
Motivational crowding out effect : monetary incentives
decreasing the level of provision of public goods (example of
blood donation, choice of pollution sites)
Cheap talk / face to face communication sometimes more
effective than imposing a fine
39
Models of mixed motivations
in local and global collective action
Common pool resources (Ostrom)
< social norms of reciprocity and trust, social sanctions
Pooling of exclusive assets (Allarkhaia)
< direct reciprocity benefits
Voluntary contribution (Benkler)
< reputational benefits
Voluntary coordination for governing exclusive assets (Sabel)
< overcoming information asymmetries, social learning
40
3. Analysing the
Genetic-resource commons
41
Research hypothesis for the geneticresource commons
Successful governance of genetic-resource
commons has to combine design rules of natural
resource commons (Ostrom) and digital resource
commons (Benkler)
42
Microbial
resources
Biophysical properties
genetic Plant genetic resources
High genetic variation Well defined varieties and Relatively
within a species and high degree of genetic breeds
high mutation rates
stability
Characteristi Type of users
Mix of public and private
cs of the Main
non-market Contribution to scientific
user groups motivations
research ethos
Conservation
of
biodiversity
Features of Governing bodies
the
Governance
Organization
of
arrangement
distributed collaboration
s
Forms of exchange
Animal
resources
Global and
federations
Mostly public sector
Food security
Contribution to
and research
regional Secretariat
international treaty
genetic
well
defined
Mostly private sector
Animal health
training Conservation of genetic
variety
of National
and
local
breeding organisations
Shared
resources Shared
resources Shared
resources
amongst a distributed amongst plant breeders, amongst farmers of a
network of microbial centralized collections for same breed
collections
key species
Mix of
informal
formal
Main challenges to the commons- Restrictive
based exchange
policies
in
commercial
collections
and Mainly formal
Mix of formal and informal
license Broad patents on plant Vertical integration of
high genetic resources
breeding operations in
value
transnational companies
43
4. Other social production strategies
of knowledge commons
Reference (for the 2 following slides) : Benkler, 2006. The
Wealth of Networks. Yale University Press.
44
Non-exclusive market strategies
• Sharing in house : sharing research results and know-how in
a firm
< incentive : improvement of the quality of the delivered
goods
• Sharing with similar organisations : firms where engineers
and scientists from different firms attend professional
societies, joined information gathering by newspapers.
< incentive : making money from early access to
information (lead time)
• Sharing publicly : bands giving music for free as
advertisement for touring (living from performances), open
source software developers living from customizing it to
particular clients
< incentive : attracting clients
45
Non-exclusive non-market strategies
• Sharing in house : sharing research results and know-how in
a laboratory
< incentive : improvement of the quality of the delivered
scientific outputs, to attract more government funding for
the laboratory
• Sharing with similar organisations : early release of a paper
to colleagues for comments.
< incentive : improving the knowledge
• Sharing publicly : give away information for free, give away
innovations with high social value
< incentive : reputation, status, intrinsic motivations
46
Part 2. Regulation of the global
commons (formal and informal rules)
47
1. The historical impetus of open source
software licenses
48
Selected IBM revenues 2000-2003
Source : Benkler, 2006. The Wealth of Networks. Yale University Press.
49
2. The need of legal hybrids for governing the
genetic resource commons
50
Open Source licenses in software are based on copyright.
The proposed open source models in biotechnology are based
on patents (Cambia, Humanitarian use licenses);
However : innovation in the genetic resource commons is too
specific to be protected under copyrights (specific
technological purpose) but too incremental to be protected
under patents (based on cumulative incremental innovation, no
major research leap forward).
Therefore need of “legal hybrids” : building innovative license
strategies combining both common use principles (so less then
patents) and economic incentives for contributing to the shared
pools (more than copyrights).
51
Existing contractual tools for building the microbial
science commons
VIRAL/STANDARD LICENSE IN THE POOL : a genetic resource can be
shared amongst all the members of the pool under similar quality
management procedures and under the same open access license
conditions
EX-POST COMPENSATORY LIABILITY OUTSIDE THE POOL : if a recipient
wants to use the resource in a commercial application, he has to pay a
fixed compensation to the system (compensation which can go totally or
in part to the original depositor of the resource or to a global trust fund
for example)
•Major advantage : no commercial/non-commercial use distinction
and incentive to contribute to the pool
•Major constraint : need of a tracking of the use of the resource
(which might be done through the viral license or a digital database)
3. Empirical evidence on the use and impact of
common use licensing
53
Empirical data on the Science Commons in
Biomedical research
Reference (for the 6 following slides) : Wesley M. Cohen and
John P. Walsh. Access – or not – in academic biomedical
research. In R. C. Dreyfuss, H. First, D. L. Zimmerman.
Working within the Boundaries of Intellectual Property. 2010.
54
Use of patents to deny access to published
findings
20% of human genes have at least one patent associated with
them, and many have multiple patents.
Only 1% of academic researchers report having to delay a
project, and non abandoned a project due to others’ patents
Only 5% of the academic scientists surveyed regularly check
for relevant patents.
Suggests unlicensed used of patented technologies. However,
as reputation is important for industry, aggressive enforcement
of patent rights may undermine the goodwill that is essential to
others’ future cooperation.
55
Use of secrecy to withold unpublished
findings
7% of academic biomedical researchers acknowledged that, in
order to protect the commercial value of an invention or
discovery, they delayed publication of their research results for
more than one month at least once in the last two years
4 % reported that they, at least once, decided not to publish a
result in order to protect the commercial value of their findings.
56
Restricting access through control over
materials
As reported by those making requests, 19% of recent requests
were not fulfilled
8% projects delayed due to inability to get timely access to
research materials
28% of all geneticists reported they had difficulty replicating
published results and 24% had their own publication
significantly delayed
1/9 had to abandon a project each year due to an unfulfilled
request for materials or information
57
Reasons for restricted access
Industry funding is consistently associated with delayed
publication.
Greater scientific competition (number of labs competing for
publication priority) associated with lower probability for
providing access.
Idem : for a prior history of commercial activity
Being asked to sign an MTA : associated with a greater
likelihood of receiving the material or information.
58
Summary of the findings
Strength of the sharing practice: average academic researcher
in the biomedical field is making 3 or 4 requests per year,
about 80% of which are fulfilled.
< impressive : knowing that compliance involves
costs (for example for copying materials) and the risk of
losing competitive advantage
< academics might benefit from such sharing, or
community norms regarding disclosure or data sharing
might play a role (however not considered yet in broad
empirical studies)
However, studies in physics, mathematics and experimental
biology show that secrecy has increased from the 1960s to the
1990s, along with concern over scientific competition.
59
Some implications
Possible role of government, science funding bodies and
journals’ policies
< however often with limited enforcement
< can have some impact, but this impact will depend on
the balance between incentive effects from
appropriability on the one hand and from knowledge
exchange on the other
Institutionally mediated exchanges might also favour the
sharing practice of materials, data and research results
< for example the building of shared repositories of high
quality materials
60
Case study of common use licenses in the
microbial commons
Low impact of contractual
formalisation on sharing practices
Need of viral license approach
Total number of new accessions in
2005 in the 119 public culture
collections : approximately 10.000
Academic and
hospital research
collections
Own collecting
effort
From other public
culture collections
Total number of strains delivered in 2005
by the 119 public culture collections :
approximately 120.000
30%
23%
45%
Survey amongst 119
public culture
collections
20%
None of these categories
(for example dying
industry collections)
58%
To academia research
collections
To private sector
10%
To other public
culture collections
5%
9%
None of these
categories (to
hospitals and for
teaching mainly)
Part 3. Analyzing the commons (epistemological
limitations and importance of context)
64
Epistemological limitations
65
Semantic limitations of legal models
The strong intellectual property paradigm does not fit to all the
intended application contexts of the plant improvement cycle.
Strong IP paradigm (post-1992
UPOV protection and weak
patentability requirements)
Fields of
application of
the paradigm
Transgenics
Conformity with
the expected
effects on
innovation
Area of best fit
Controlled
Molecular biology research Mass selection
hybridization tools (molecular markers,
genomic databases)
Systematic
Partial paradigm breakdown
breakdown
• Patent tickets
• Major steps
• Market development • Far from innovation frontier • for in situ
agrobiodi• Upstream research
versity
Pragmatist limitations of the legal models
No best choice between the 2 legal paradigms based on
scientific/empiric criteria alone
Strong IP paradigm (post-1992
UPOV protection and weak
patentability requirements)
Fields of
application of
the paradigm
Conformity with
the expected
effects on
innovation
Transgenics
Area of best fit
Partially open innovation systems
(breeders’ excemption and strong
patentability requirements, sui
generis regime for landraces)
Controlled
Molecular biology research Mass selection
hybridization tools (molecular markers,
genomic databases)
Partial paradigm breakdown
Area of best fit
Semantic and pragmatist limitations of the
governance models
No best choice between the various governance paradigms
based on scientific/empiric criteria alone
Existing
commons based
MODELS
Pool
(Allarkhaia)
MTA
Clearing
House
(Sabel)
Reconstruct Open Access
ed Commons (Benkler)
(Benkler/Ostr
om)
Based on private
ownership
yes
yes
yes
No (example preCBD situation)
Set up agreement
yes
no
no
No
Administering
entity
no
Yes
yes
No
Effect
Exchange
within pool
Transparenc
y
Sharing (in
the
commons),
Liability
(outside the
commons)
Common heritage
Evaluation /
contextual
limitations
Full use
restricted to
members
only
Competiton
for more
open license
conditions,
but no viral
licence
Reconstructs
a global
public domain
Only applies
outside national
sovereignity
Post-normal science
72
Example of frame conflicts in global
genetic resource governance
Breeders’ rights
(private sector)
The Yecoro wheat
(right) cultivar, sensitive
to salinity, source : US
agricultural research
Service
Farmers’ rights (local
communities)
Quinoa producing
communities of the Southern
Bolivian Altiplano, source
Damiana Astudillo-Eterno
Participatory research in the global genetic
resource commons : from Breeding high yielding
varieties to sustaining livelihoods
Example of Bioversity International :
* International non-profit research organization
* Role of broker between user communities and international organizations
* Building research capacity on needs of user communities (set of questions on
livelihoods not addressed systematically in peer reviewed literature)
Improvement of traditional
races (source: Label rouge)
Global seed exchange network
(source : Byerlee et al., 2010)
Microbial Biocontrol
(Source : M. Höfte)
4. Concluding comments
Genetic resource commons : in between the digital resource
commons (Benkler) and the common pools of natural
resources (Ostrom)
However the governance principles and legal models of the
genetic resource commons also potentially of relevance for
other local and global commons :
• Cultural commons
• Scientific research infrastructures
• Digital repositories of publications and pre-publication data
75
Some future activities
1st Global Thematic IASC conference on the
knowledge commons
• “Governing Pooled Knowledge Resources in a
World of Rapid Social and Technological
Change. Building Institutions for Sustainable
Scientific, Cultural and Genetic Resource
Commons”
• 12-14th September 2012, Louvain-la-Neuve,
Belgium
• Thank you for you attention …
Some References
•
•
•
•
•
•
•
Designing the Microbial Research Commons, Jerome Reichman, Tom
Dedeurwaerdere, Paul Uhlir, manuscript on file with the authors
Tom Dedeurwaerdere, Maria Iglesias, Sabine Weiland, Michael Halewood, Use and
Exchange of Microbial Genetic Resources Relevant for Food and Agriculture, Report
(under review at the Commission on Genetic Ressources)
Per Stromberg, Tom Dedeurwaerdere, Unai Pascual, The Contribution of Public
Networks to Knowledge Accumulation (under review at Research Policy)
www.microbialcommons.org ; june 2008 conference proceedings (special issue
forthcoming in the International Journal of the commons, January 2010)
Robert Cook-Deegan et Tom Dedeurwaerdere, “The Science Commons in Life
Science Research: Structure, Function and Value of Access to Genetic Diversity”,
dans International Social Science Journal, vol.188, 2006, pp.299-318.
Peter Dawyndt, Tom Dedeurwaerdere et J. Swings, “Explorating and exploiting
microbiological commons: contributions of bioinformatics and intellectual property
rights in sharing biological information. Introduction to the special issue on the
microbiological commons”, dans International Social Science Journal, vol.188, 2006,
pp.249-258.
Tom Dedeurwaerdere, “The institutional Economics of sharing Biological Information”,
dans International Social Science Journal, vol.188, automne 2006, pp.351-368.
Acknowledgements
• Participants to the expert workshops of 18-19 Feb 2009 et
25-26 March 2009
• Researchers of IAUP V/23, IAUP VI-06, REFGOV : Per
Stromberg, Maria-Jose Iglesias, Sabine Weiland
• Co-authors of the FAO report : Maria-Jose Iglesias,
Michael Halewood and Sabine Weiland
• Co-authors on the microbial commons project : Jerry
Reichman, Paul Uhlir
• Credit for the slides (for the illustrations) :Ahmed Amri,
Nina Chanishvili, Nelson Lima, Annick Wilmotte
Credits for the illustrations (under creative commons license CC BYNC-ND 2.0 unless otherwise specified)
•
•
•
•
http://www.flickr.com/photos/platform3/3823892608/sizes/o/in/photostream/
http://www.flickr.com/photos/sheyne/282358087/sizes/m/in/photostream/
http://www.flickr.com/photos/schubi74/4000339895/
http://www.flickr.com/photos/doubleray/3225036640/sizes/o/in/photostream/ (S15)
Licence
This power point presentation is licensed under a creative
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(derivative works allowed), license CC BY-NC 2.0
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