Could Access Requirements Stifle Your Research?

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DOI: 10.1126/science.1167234 · Source: PubMed
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As the rules for foreign access to biological resources are being negotiated, academic researchers and organizations should make their opinions known.
cientists from developed and developing
countries have expressed concerns about
overly restrictive government-imposed
requirements to gain access to biological
resources needed for academic research (15).
Indian scientists, for example, have been con-
cerned that exceedingly burdensome inter-
national access regulations are driving away
international collaborators in fields such as tax-
onomy, where India has enormous biological
potential but limited domestic expertise (6).
Scientists globally expressed outrage in 2007
when the primatologist, Marc van Roosmalen,
was sentenced to almost 16 years in prison in
Brazil for possession of monkeys at his rehabil-
itation center without appropriate permits (7).
The Association for Tropical Biology and Con-
servation circulated a petition on his behalf,
signed by over 250 scientists from 31 countries,
condemning the sentence and calling van
Roosmalen’s situation “indicative of govern-
ment restrictions on scientists.Whether such
problems are ameliorated or exacerbated in the
future may depend on results of the Convention
on Biological Diversity’s (CBD’s) ongoing
negotiations to develop an international “re-
gime” for access and benefit-sharing (ABS).
While other nongovernmental stakeholders
such as indigenous groups and trade associa-
tions have been active participants in the ABS
discussions, to date, academic scientists have
been relatively silent. Participation does not
guarantee that new guidelines will reflect all
aspects of scientific concern; however, it
would be unfortunate if decisions were made
in the absence of scientific voices highlighting
how future rules will affect the academic
research community. With the negotiations
on the ABS regime due to conclude in 2010,
the window for scientific
input in the process is
quickly closing.
The CBD aims not
only to conserve biologi-
cal diversity but also to
address sustainable devel-
opment–related conser-
vation issues. Specifi-
cally, the CBD aims to
negotiate rules that facili-
tate foreign access to
genetic resources in bio-
diversity-rich countries
and to ensure that local
communities and govern-
ments that provide access
to those resources are
protected from commer-
cial exploitation by pow-
erful foreign interests. Providers of resources
would also be fairly compensated under the
future regime. These discussions mostly take
place in the Ad Hoc Open-Ended Working
Group on Access and Benefit-Sharing
(ABSWG), which was created in 2000 (see
figure). They focus on issues such as the fol-
lowing: (i) how to ensure prior informed con-
sent from knowledge holders or provider coun-
tries before accessing genetic resources and
associated traditional knowledge; (ii) how to
access genetic resources based on mutually
agreed terms between the user and provider
countries; and (iii) how sharing benefits aris-
ing from the use of these resources could take
place. In 2004, the CBD mandated its
ABSWG to negotiate an international agree-
ment related to ABS (8), and significant
progress has been made in the past year, with
many of the basic components starting to
come into focus (9). However, there are still
areas of controversy and areas where the
implications for the research community have
not been fully appreciated.
The most pertinent issue for research aca-
demics is whether or not the ABS regime will
allow exemptions for samples extracted exclu-
sively for noncommercial academic research.
Although this issue has been mentioned at var-
ious ABSWG meetings, the final decision has
not yet been made. The discussion suffers from
a lack of understanding about how academics
use biological resources and how to differenti-
ate noncommercial and academic research
from commercial research and development.
If an exemption for academic research is not
included, or conditions for exemption are so
strict as to exclude many researchers, three
additional issues are of particular importance to
the academic research community. First, ABS
negotiators are currently divided over whether
“derivatives” of biological material should be
subject to benefit-sharing rules and, if so, how
derivatives should be defined. In other words,
must benefits arising from the use of inter-
mediate research products (such as synthetic
processes or isolated gene sequences) as op-
posed to raw materials (such as plant specimens
collected directly from the field) be shared? A
broad definition of derivatives would subject
intermediate research products and possibly
final products, such as new biocatalysts, phar-
maceutical products, or even consumer goods,
such as coffee, to benefit-sharing obligations.
Further, under a broad definition, if derivatives
of noncommercial research become the basis
for future commercial utilization, researchers
could be held responsible for downstream
Second, ABS negotiators are divided over
whether or not biological material accessed
before 1992, when the CBD became legally
binding on its member governments, should
be covered. Its inclusion would likely require
burdensome compliance requirements, be-
cause, for example, the necessary information
to identify original suppliers of biological
material may not have been recorded. So far,
practical difficulties associated with this issue
have not been reflected in the working docu-
ment that is currently guiding the ABSWG’s
discussions (10).
As the rules for foreign access to biological
resources are being negotiated, academic
researchers and organizations should make
their opinions known.
Could Access Requirements
Stifle Your Research?
Sikina Jinnah
and Stefan Jungcurt
Watson Institute for International Studies, Brown University,
Providence, RI 02912, USA; sikina_
International Institute for Sustainable Development,
Winnipeg, R3B 0Y4, Canada;
Access. Delegates of the African Group and other biodiversity-rich countries
seeking common ground on conditions for access to genetic resources during
a meeting of the ABSWG in Geneva in January 2008.
Published by AAAS
on December 28, 2009 www.sciencemag.orgDownloaded from
Finally, of critical importance to researchers
is the question of whether the CBD should
develop international ABS standards, or should
allow contracts to be negotiated on a case-by-
case basis, subject to minimum standards in
different sectors. This issue is one where scien-
tists’ field experience would be of tremendous
value, as it was during the negotiations of the
2002 International Treaty on Plant Genetic
Resources for Food and Agriculture (ITP-
GRFA) (1115). The research community
could provide similar practical guidance as to
the benefits and drawbacks of harmonized,
case-tailored, or hybrid approaches to negotiat-
ing access to biological research materials.
How can academic scientists get involved?
The first step is raising awareness within the
academic community about how they may be
affected by the results of the negotiations. The
CBD secretariat posts documents that detail
the issues to be discussed before any ABSWG
meeting on its Web site (16). During ABSWG
meetings, the International Institute for Sus-
tainable Development’s Earth Negotiations
Bulletin provides daily coverage of what is
discussed during the meeting, as well as a
summary and analysis of the meetings’ out-
comes (17). Finally, various nongovernmental
organizations, such as Botanic Gardens Con-
servation International, Bioversity Internat-
ional, or the Swiss Academy of Sciences, reg-
ularly post informational materials on their
Web sites (1820).
Second, researchers should engage more
actively in the negotiation process. Research
institutions and international academic organi-
zations can participate as observers in meet-
ings of the ABSWG. The scientific community
should develop a harmonized voice on ABS
issues by using existing informal networks and
professional associations, such as the Assoc-
iation for Tropical Biology and Conservation.
These groups can both continue lobbying
domestic governments responsible for negoti-
ating the ABS regime and directly participate
in the international negotiations. Bodies quali-
fied in the fields of biodiversity conservation
or sustainable use can register as observers at
most CBD meetings (21). Although observers
do not have voting rights, they are encouraged
to take the floor at meetings to voice their opin-
ions. More important, these venues provide
scientists direct access to their countries’ nego-
tiators to discuss their views.
In addition, frequently, CBD member gov-
ernments request submissions on a specific
issue from both member governments and
“other stakeholders.” Observer organizations
can submit documents in these situations,
which the CBD secretariat will make available
to member governments before an upcoming
meeting. For example, at the most recent CBD
Conference of the Parties (COP) in May 2008,
member governments requested relevant
stakeholders to submit views, proposals, or
operational text and supporting rationales on
the potential components of the regime (22).
Although documents submitted in response to
this request are not yet publicly available on
the CBD Web site, they might include sugges-
tions for definitions, or practical mechanisms
to facilitate access, benefit-sharing, compli-
ance, and capacity building. This is an oppor-
tunity for scientific professional organiza-
tions, such as the Society for Conservation
Biology, to pool member experience and to
prepare a paper on, for example, experiences
with overly restrictive access requirements,
such as those faced by entomologists in India,
when a collaborative project to study the
insects of the Western Ghats was derailed by
the Indian National Biodiversity Authority for
biopiracy concerns (23).
This is not to say to that scientists necessar-
ily have a unified voice on this topic. For
example, historical collaborative asymmetries
between developed- and developing-country
scientists with regard to funding priorities, divi-
sion of labor, and authorship benefits (24) have
highlighted some of the legitimate reasons why
provider-country scientists may be reluctant
to support open access (25). Nevertheless,
this debate has been notably absent from the
ABSWG’s discussions.
Further, CBD member governments also
decided to convene three expert meetings to
assist in technical aspects of the regime. The
first meeting, held in December 2008, was of
particular interest to research scientists because
noncommercial research, including how such
research might be affected by a future ABS
regime, was one of the topics for discussion
(26). Participating experts for these meetings
are typically nominated by member countries.
A good way to be considered for participation
is by attending international negotiations,
meeting with home-country delegates, and
expressing interest in participation.
In addition, a workshop on ABS in Non-
Commercial Biodiversity Research, organized
by the Barcode of Life Initiative and other sci-
ence organizations, was held in November 2008.
Participants from 10 national science agencies
and international organizations exchanged
views on the issues to be addressed by the
expert meetings, such as ways to distinguish
commercial and noncommercial research. The
views and recommendations of the workshop
have been submitted to the CBD expert meet-
ings (27). Such meetings and workshops pro-
vide excellent opportunities for scientists to
participate more actively in the ABS negotia-
tions. There are also opportunities now for peer
review of studies on technical and legal issues
that have been commissioned by the CBD.
There are, of course, many other avenues
for participation in the international ABS nego-
tiations. We have described here those entry
points that have the highest potential for influ-
ence given the short time-line for conclusion of
the negotiations by 2010. There are three more
meetings of the ABSWG scheduled (28) before
the regime is signed and sealed. Industry, envi-
ronmental, and indigenous organizations are
certain to continue making their voices heard.
Why not academics too?
References and Notes
1. M. D. Madhusudan et al., Curr. Sci. 91, 1015 (2006).
2. K. ten Kate, Science 295, 2371 (2002).
3. K. S. Bawa, Curr. Sci. 91, 1005 (2006).
4. R. Pethiyagoda et al., Curr. Sci. 92, 426 (2007).
5. A. Revkin, New York Times, 7 May 2002, p. F1.
6. K. T. Prathapan et al., Curr. Sci. 94, 170 (2008).
7. E. Check, T. Hayden, Nature 448, 634 (2007).
8. The ABSWG deals with ABS requirements for international
users, not domestic ABS requirements that would apply
to in-country scientists.
9. See Earth Negotiations Bulletin reports in vol. 9, no. 398
(2007); no. 416 (2008); and no. 452 (2008), from the
International Institute for Sustainable Development,
Winnipeg, Canada; available at
10. See Annex of CBD COP9 Decision IX/12;
11. C. Fowler, Science 297, 157 (2002).
12. R. Sauvé, J. Watts, Agric. Syst. 78, 307 (2003).
13. S. Jungcurt, Institutional Interplay in International
Environmental Governance: Policy Interdependence and
Strategic Interaction in the Regime Complex on Plant
Genetic Resources for Food and Agriculture (Shaker,
Aachen, Germany, 2008).
14. H. D. Cooper, Rev. Eur. Community Int. Environ. Law 11,
1 (2002).
15. C. Fowler, Genet. Resour. Crop Evol. 51, 609 (2004).
16. Access and Benefit-Sharing, CBD,
17. Available at
18. Botanic Gardens Conservation International,
19. Bioversity International,
20. Access and Benefit-Sharing,
21. To register, the chief executive or president of an organi-
zation must submit an official letter to the CBD executive
secretary indicating names, titles, and contact details of
proposed attendees.
22. CBD COP9 Decision IX/12,
23. K. S. Jayaraman, Nature 452, 7 (2008).
24. J. Gaillard, Knowl. Technol. Policy 7, 31 (1994).
25. E. Masood, SciDevNet News, 15 April 2004; www.scidev.
26. This Technical Expert Group convened 2 to 5 December
2008 in Windhoek, Namibia. For further information
27. The workshop was held 16 to 19 November 2008 in Bonn,
Germany. Submissions are available at
28. Tentative dates and venues for these meetings are ABS7:
2 to 8 April 2009, Paris, France; ABS8: 9 to 15 November
2009, Kuala Lumpur, Malaysia; and ABS9: 1 to 7 April
2010, Bogotá, Colombia.
29. Supported by NSF, University of California (U.C.) at
Berkeley Institute for International Studies, U.C. Institute
for Global Conflict and Cooperation, Soroptimist Inter-
national, German Foundation for Nature Conservation
(DBU). We thank our colleagues of the Earth Negotiations
Bulletin and its donors, as well as ABSWG Cochair T. Hodges,
B. Fraleigh, and P. Chasek.
10.1126/science.1167234 SCIENCE VOL 323 23 JANUARY 2009
Published by AAAS
on December 28, 2009 www.sciencemag.orgDownloaded from
  • ... Given the open access norms for genetic resources and genetic sequence data, it is not surprising when scientists recoil at the specter of restrictive access to resources that were previously easily accessible (Jinnah and Jungcurt 2009), or express reticence in dealing with a system that could slow or otherwise impede access (Cressey 2017). The opposition to ABS is especially fervent when access requirements stand to obstruct access to genetic resources of public health concern. ...
    ... There have been suggestions to exempt noncommercial research from the international ABS regime altogether (see e.g. Jungcurt 2011;Jinnah and Jungcurt 2009). This could alleviate some of the problems addressed in this article. ...
    Many scientists in the biological disciplines require access to genetic resources to conduct research. In 1992 the Convention on Biological Diversity (CBD) affirmed that genetic resources, previously deemed the ‘common heritage of humankind’, are in the sovereign domain of nation-states. In accordance with the CBD and its Nagoya Protocol, scientists who previously enjoyed relatively unfettered access to genetic resources must now enter into access and benefit-sharing (ABS) agreements with the providing nation to use their genetic resources. The overarching objective of ABS is to channel the benefits of research and development to provider nations and to encourage the conservation and sustainable use of genetic resources. Unfortunately, ABS has not delivered substantial benefits and has had the unintended consequence of impeding scientific research. This article addresses the barriers encountered by non-commercial research scientists who are likely to apply to use minute quantities of genetic resources. Scientists typically pose no existential threat to the genetic resources they wish to study, yet they are often expected to meet the same regulatory requirements as bioprospectors with commercial intent. There is growing evidence that, as a result, academic scientists are altering their research practices to accommodate or avoid ABS regulations. It is reasonable to expect that those who generate profits from research activities share those benefits with the nations providing essential genetic inputs. However, the international ABS regime as it is currently organized is inefficient at sharing benefits and discourages scientific research. It is time to consider more efficient models of benefit-sharing that reduce the legal barriers to accessing genetic resources for non-commercial research purposes.
  • ... In light of this new Namibian ABS law, what happened in India may happen in Namibia. Apart from the imprisonment of scientists, outrage against ABS laws revolves around the lack of clarity regarding derivatives of ethno-genetic material, legislation of genetic resources that were obtained before passing ABS laws, and whether the CBD should follow international ABS standards or allow a case-by-case determination [132]. ...
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    Many countries in Africa provide ethnobiological resources (more especially ethnomedicinal plants), which are converted by companies and users from developed countries into biopharmaceutical products without any monetary benefits to the countries of origin. To mitigate the lack of benefits, African countries are beginning to enact access and benefit-sharing (ABS) legislation, though their wheels turn very slowly. Since many African ABS laws have not been appraised for their feasibility, this paper presents a contextual analysis of Namibia’s new ABS law: The Access to Biological and Genetic Resources and Associated Traditional Knowledge Act No. 2 of 27 June 2017. Even if several international conventions on ABS and local institutional structures guided the evolution of the 2017 Act, the main drivers for the enactment of the ABS legislation in Namibia are: Inequitable sharing of monetary benefits from the green economy, putative, but unproven cases of biopiracy, and political power contestations over ethnobiological resources. A critical analysis of important challenges faced by Namibia’s new ABS law include: Lack of adequate participatory consultations and technical capacity at the local level, discount of the non-commodity cultural value of TK, ambiguous and narrow definition of the term ‘community’, lack of a clause on confidentiality, and assertions that the new ABS law negatively impacts research in Namibian universities and botanic gardens. In contrast to South Africa’s ABS law, Namibia’s law is more onerous because it does not differentiate between commercial and non-commercial research.
  • ... So, while domestic access and benefit-sharing policies were intended to support, rather than hinder, the sharing of PGRFA (Wynberg et al., 2012), this was often not the case. Adverse effects of CBDbased domestic ABS regulations on biodiversity research and international collaboration have been reported by various authors (Jinnah and Jungcurt, 2009;Neumann et al., 2018;Prathapan et al., 2018). ...
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    Since the 1990s, the exchange of genetic resources has been increasingly regulated. The Convention on Biological Diversity (CBD), the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the Nagoya Protocol recognize that countries have sovereign rights over their genetic resources and provide a framework for domestic legislations on Access and Benefit-Sharing (ABS). However, within the rules of these international agreements, countries can follow their own interpretations and establish their own rules and regulations, resulting in restricted access to genetic resources and limited benefit-sharing, effects that are contrary to the objectives of these agreements. Although the ITPGRFA’s Multilateral System of Access and Benefit-Sharing provides opportunities for easier access to plant genetic resources for food and agriculture (PGRFA), plant genebanks face increasing complexity in their operation. Adding material to genebank collections has become more difficult, not only because collecting missions need to be negotiated with national and local authorities, but also because acquiring material from other collections is only possible if the origin of the material is properly documented and is done in compliance with regulations. Genebanks may only provide access to their own collections if the material that is to be released is distributed in compliance with a) the conditions under which the material was received and b) the national laws of the country where the genebank is located. The only way genebanks can deal with this new complexity, apart from ceasing to add or distribute material, is by setting up proper procedures to document the origin of every accession and the conditions for their use and further distribution. To prevent a further decrease in access to PGRFA, complexity must be fought. Applying the ITPGRFA’s Standard Material Transfer Agreement (SMTA) only, even for material that does not fall under the ITPGRFA, would simplify matters. The scope of the ITPGRFA could be expanded to include all crops. Furthermore, certain ambiguities (e.g. regarding in situ material and wild species) could be resolved. Finally, compliance with the ITPGRFA should be improved and better monitored.
  • ... These regulations address multiple issues including threats of bioterrorism, biopiracy, bioethics, conservation of biodiversity and intellectual property (Esquinas-Alcázar, 2005;Rosendal, 2006a, b;Ten Kate and Laird, 1999;Toledo and Burlingame, 2006). Although the various policies respond to important stakeholder demands, they have the potential to significantly alter the ways in which individual scientists engage in research and innovation by constraining or limiting the sharing of biological materials (Atlas, 2003;De Greef, 2004;Grajal, 1999;Jinnah and Jungcurt, 2009;Martinez and Biber-Klemm, 2010;Welch et al., 2013;Welch et al., 2017). ...
    Academic scientists who access and use biological materials are embedded in an increasingly complex arrangement of conflicting scientific, commercial, regulatory and ethical institutional logics. This paper examines how scientists navigate and respond to these conflicting institutions. Using in-depth interviews with 40 academic scientists in four fields (marine biology, entomology, agricultural studies, ecology), we undertake a grounded theory approach to identify key categories of individual responses and the drivers of those responses. We find that scientists adopt one or more of five strategies in response to regulatory pressures: acquiescence, compromise, avoidance, defiance, and manipulation. We then leverage the institutional work literature to 1) propose a scientist response framework for understanding how individuals respond to competing logics and changing regulations and 2) demonstrate how individual cognition and effort by academic scientists reconciles (or not) conflicting institutions. We outline implications for policy and practice and conclude with a discussion of future research opportunities.
  • ... We discuss these mechanisms in the next paragraphs. et al. 2009;Plucknett and Smith 1984). This is particularly important in developing countries where many research centers lack human and technical capacity for conducting genetics and genomics research, and have limited access to financial resources ( Knoben and Oerlemans 2006). ...
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    In recent years, international and national policies have intensified monitoring and control over the access, exchange and use of biological materials. New regulative institutions addressing concerns about ownership and safety, as well as fairness and equity, are increasingly intermingled with informal practices and norms of exchange, raising the barriers to access that scientists face. Drawing from unique survey-based ego-centric network data collected from U.S. and non-US scientists engaged in international collaborative research at the USAID Feed the Future Innovation Labs, this paper investigates how regulative institutions, organizational and regional norms (meso-level institutions), and inter-personal networks facilitate or challenge access to biological materials for research. Our results show that while regulative institutions hinder access, meso-level institutions are important access facilitators in an international context. Network ties reduce the delays and blockages to access of biological material, but they do not eliminate them. 3
  • ... that rely on such resources as inputs (e.g. Jinnah and Jungcurt 2009). In order to engage with this general critique, we examine the relationship between plant genetic resources and intellectual property. ...
    This chapter explores how the regulation of plant genetic resources intersects with legal regimes granting intellectual property rights in Mexico. Our analysis is directed towards addressing the argument that regimes governing access to plant genetic resources and the sharing of benefits derived from their commercial exploitation could discourage research and innovation in fields that rely on such resources as inputs. To engage with this critique, we examine the relationship between plant genetic resources and intellectual property, because trends in intellectual property protection may elucidate research and innovation dynamics. Our findings surrounding applications for patents and plant breeders’ rights in Mexico indicate that intellectual property activity related to plant genetic resources can intensify even as new frameworks for the governance of these resources are designed and popularized. However, it is important to note that it is still unknown whether the implementation of a national regime based on the Nagoya Protocol in Mexico might impact the activities of users and providers of genetic resources, including in relation to intellectual property protection.
  • ... As a result, research on local plants will be much easier where there no access regulation and more difficult and longer in other countries where there are. The outcome of these constraints has had a paradoxical effect on some research programmes with some researchers shying away from biodiversity studies in countries with tough access rules because of the red tape (Pethiyagoda 2004;Jinnah and Jungcurt 2009;Gilbert 2010;Howes 2018). ...
    In Rio de Janeiro, in order to preserve biodiversity a virtuous circle was set up in 1992: The sustainable use of biodiversity (genetic resources) will generate benefits which will then be used to preserve biodiversity. The Nagoya Protocol elaborated in 2010 was designed to bring clarification and allow the practical implementation of this virtuous circle of access and benefit sharing. The scope was clarified: research on genetic and biochemical content of plants, animals, fungi and microorganisms. Since many countries have now implemented access rules, it is important for academic and industrial users of biological resources to be fully aware of the regulations and to respect them.
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