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Micro B3 model agreement on access to marine microorganisms and benefit-sharing. Text and commentary.

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Micro B3 model agreement on access to
marine microorganisms and benefit-sharing.
Text and commentary.
Tom Dedeurwaerdere (FRS-FNRS/UCL)
Bibliographical reference
von Kries, C., Broggiato, A., Dedeurwaerdere, T., and Winter, G. 2015. "Micro B3 model agreement
on access to marine microorganisms and benefit-sharing. Text and commentary". In Chege Kamau, E.,
Stoll, P.-T., and Winter, G.(eds.) Research and Development on Genetic Resources. Public Domain
Approaches in Implementing the Nagoya Protocol. Routledge: 330–362.
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20 Micro B3 model agreement on
access to marine microorganisms
and benefit sharing
Text and commentary
Caroline von Kries, Arianna Broggiato, Tom
Dedeurwaerdere, and Gerd Winter
Objectives and legal background of the model agreement
The Micro B3 Project, together with the Ocean Sampling Day Initiative, aims at
studying marine microorganisms in different seas (their genetic diversity, their
functions, and their ecosystems), producing genomics sequencing to be shared in
an open source and open access database, and fostering commercial product devel-
opment. More specifically, Micro B3 offers improved tools to achieve facilitated
access to the research results, including genomic and environmental data, and to
integrate data of different marine scientific projects through an innovative and
interactive informatics system. Further, the project offers tools for specific capacity
building to the research community.
As planned research is based on the taking of samples within internal waters,
the territorial sea, and the exclusive economic zone of coastal states, the Conven-
tion on Biological Diversity (CBD) applies. According to the CBD the coastal
state may, by its national legislation, require its prior consent to the taking and
utilization of its genetic resources and ask for the sharing of benefits drawn from
the genetic resources. These requirements have been specified by the Nagoya
Protocol (NP), which entered into force on 12 October 2014. The conditions of
access and benefit sharing (ABS) are normally determined through a contract
concluded between a research institution and the coastal state. This Micro B3
Model Agreement on ABS (in the following: Model Agreement) shall be a tem-
plate for such contract. It is recommended that Micro B3 partners use this Model
Agreement, unless the coastal state insists in the use of its own template.
However, neither prior consent nor benefit sharing is required if the Provider
State does not make use of its sovereign rights under the CBD and the NP. The
Provider State is free to decide not to establish an ABS regime and thus allow for
free research and development activities concerning its genetic resources. In this
case the Model Agreement does not apply.
Whether a Provider State has established an ABS regime or not can only be
determined by examining its domestic legislation and practices. According to
upcoming rules of User States, a due diligence obligation applies in such cases.
This means that the researcher has to take due care to find out the domestic
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Micro B3 model agreement 331
procedure of the Provider State, if any exists. He/she is not required to carry out
an in-depth legal analysis. Rather, it is sufficient diligence if he/she seeks advice
at the national focal point on ABS of the Provider State. The latter is bound to
notify the CBD secretariat under Article 4 NP. A list of national focal points is
available at the CBD website (www.cbd.int).
Through minor changes in the text the Model Agreement can also be used for
other projects, such as those on genetic resources other than marine microorgan-
isms. The aim of the Model Agreement is thus to serve as model contractual
clauses for mutually agreed terms according to Article 19 of the Nagoya Protocol.
In this way, it hopefully assists in a worldwide harmonization of procedures for
access and benefit sharing in international collaboration frameworks for genomics
research.
Non-commercial and commercial options within
the model agreement
The Model Agreement applies to full commercial, hybrid, and full non-commercial
use at the point of access. This agreement can cover three situations:
PUBLIC DOMAIN: only public domain uses of genetic resources are envi-
sioned when the resource is accessed. Therefore, only conditions for public
domain uses are negotiated at the moment of first access (Article 4.2). If
desired, commercial uses can be envisioned in a later stage of the research
process. Such commercial uses are permitted, but the conditions of this
should be negotiated at the point of change of intent (consent clause under
Article 4.4).
(B) HYBRID: public domain uses of some genetic resources/some use of
genetic resources are envisioned, and it is clear at the time of access that
some potential commercial uses for other genetic resources/other uses of
the accessed genetic resource exist.
(C) PROPRIETARY: commercial uses for all the accessed genetic resources
are envisioned. Benefit-sharing conditions for commercial uses upon the
access of the genetic resources. In this case only Article 4.3 applies (Arti-
cles 4.2, 4.4 are to be deleted).
The commentary will be structured as follows: The Model Agreement will be
commented Article by Article. The Article concerned is set in front, then follows
an overview of its content. Subsequently, the reader learns about the legal back-
ground of what is mainly regulated by the Article. In a last paragraph the Article
is explained in detail.
The preamble to the Model Agreement is not commented. It is an opening
paragraph introducing the goals of the Micro B3 Project, the main aspects of ABS
regulation in the Model Agreement, and the legal texts that contain provisions
on ABS. As such, it does not need to be explained, since later in the commentary
AuQ02
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332 Caroline von Kries et al.
the provisions on ABS reappear in the Articles. The preamble has only a declara-
tory character and its content does not bind the Parties to the agreement.
Preamble
Considering that the European Union–funded research project Micro B3
(hereinafter the “Micro B3 Project”) is a scientific research program with the
following objectives:
to cooperatively sample marine microbial biodiversity at various sites, includ-
ing through global coordinated actions called “Ocean Sampling Days”
to generate large-scale knowledge on marine microbial genomes in an
environmental context and on actual or potential biotechnological
applications
to develop innovative bioinformatics approaches for the large-scale integration
of genomic data of marine microbes with environmental and ecosystems data
to make the resulting knowledge accessible for the research and develop-
ment community for policy makers and the public at large,
Recalling that access to and utilization of genetic resources taken from
the marine internal waters, the territorial sea, the exclusive economic
zone, or the continental shelf of coastal states should be consistent
with the provisions of the Convention on Biological Diversity (CBD),
taking into account their specifications by the Bonn Guidelines on
Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits arising from their Utilization, and, where appropriate, the
Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits arising from their Utilization to the
Convention on Biological Diversity, as well as with the United
Nations Convention on the Law of the Sea (UNCLOS) and the
customary law expressed by UNCLOS,
Recalling that according to these provisions access to and utilization of
genetic resources taken from the above-described maritime zones is
subject to the prior informed consent of the coastal state and mutu-
ally agreed terms if the coastal state so requires,
Recalling that according to these provisions coastal states have the right
to regulate, authorize, and conduct marine scientific research in their
territorial sea, exclusive economic zone, and on their continental
shelf; and that in the case of research undertaken by other states
or international organizations the coastal state has the right, if it so
desires and if practicable, to participate or be represented in the
marine scientific research project and to access data and samples and
receive preliminary reports and final results,
Recalling that according to these provisions non-monetary and/or mon-
etary benefits from the utilization of the genetic resources shall be
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Micro B3 model agreement 333
shared with the Provider State if the same so requires and as it is
set out in mutually agreed terms,
Recalling that according to these provisions the transfer of genetic resources
to third parties shall be set out in a material transfer agreement,
Recalling that according to these provisions measures on access for non-
commercial research purposes shall be simplified with a view to
contribute to the conservation and sustainable use of biodiversity,
and
Acknowledging that research and development on genetic resources can
be for the public domain or for proprietary purposes.
Head section of the agreement and article 1:
Objective of the agreement
1.1 The agreement sets out the terms for the access to genetic resources
found in/on the Provider State’s marine internal waters, territorial sea,
exclusive economic zone, or continental shelf, for the utilization and
transfer to third parties of the accessed genetic resources, for the man-
agement and transfer to third parties of associated knowledge, and for
the sharing of benefits drawn from the same.
1.2 The agreement is part of the Micro B3 Consortium Agreement.1 Its
rights and obligations extend to all Micro B3 partners.
1.3 The Parties agree to release a copy of the agreement to the registered
users of the web portal built by the Micro B3 Project.
1. Overview of the Article
The Parties have to fill in their full names, addresses, and contact persons in the
head section of the Model Agreement. This initial requirement is necessary for
their identification and their definition throughout the agreement (“Provider”
and “Recipient”).
Article 1.1 introduces Parties to the principal issues addressed by the Model
Agreement. These are:
the access to genetic resources found in/on the Provider State’s internal
waters, territorial sea, exclusive economic zone, and continental shelf,
the utilization and the transfer to third parties of the accessed genetic
resources,
the management and the transfer to third parties of associated knowledge,
and
the sharing of benefits drawn from the utilization.
1 The Consortium Agreement is publicly accessible at the Micro B3 website www.microb3.eu
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334 Caroline von Kries et al.
In Article 1.2 it is set out that the Model Agreement is embedded in the Micro
B3 Consortium Agreement. This implies that the Micro B3 Consortium Agree-
ment will be amended by a clause obliging all Micro B3 partners to agree to the
terms of the present Model Agreement. In particular, if Micro B3 partners receive
genetic resources (GR) from the Recipient researcher they are bound to the per-
tinent provisions of this Model Agreement when utilizing the GR, reporting on
results and generating benefits.
Article 1.3 is a formal publication requirement: the Parties shall provide a copy
of the contract to the web portal of the Micro B3 Project. This requirement helps
in tracking back the obligations of the initial agreement, if needed.
2. Legal background
The Model Agreement is based on Article 15 of the Convention on Biological
Diversity (CBD) and the Nagoya Protocol (NP).2 While Article 15 of the CBD
contains the principles of access to genetic resources (GR) and the sharing of
benefits drawn from the utilization of the resources (ABS), the NP elaborates the
details of the transactions. The NP assumes that negotiations about access and
benefit sharing principally take place bilaterally between the “Party providing
such (genetic) resources” and the “Party that has acquired the genetic resources,”
e.g. Article 6.1 NP. In the Model Agreement they are referred to as “Provider”
and “Recipient.”
Figure 20.1 Legal relationships between MicroB3 actors
Source: Authors
Provider Recipient
Model Agreement (MA)
MB3 Consortium
Member
Third Party
Auxiliary
Services
Art. 1.2 MA and Consortium Agreement
Article 3.3 MA
Article 5 MA
2 Secretariat of the Convention on Biological Diversity, Nagoya Protocol on Access to Genetic Resources
and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological
Diversity. Montreal: CBD Secretariat, 2011
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Micro B3 model agreement 335
Articles 5 and 6 NP are the core provisions of the Protocol since they regulate
the principal mutual rights and obligations between the Parties: Article 6.1
requires that the Provider State shall be asked to give prior informed consent to
User States seeking access to and utilization of genetic resources; Article 5.1
requires that the benefits arising out of the utilization of genetic resources shall be
shared in a fair and equitable way according to mutually agreed terms. In addition,
according to Article 6.3 (g) (iii) NP the Provider State may also require that the
provisions of the agreement shall extend to third parties to whom genetic resources
are transferred for further use.
The maritime zones are mentioned in Article 1 of the Model Agreement in
order to identify those parts of the waters over which the coastal state is entitled
to exercise sovereign rights concerning genetic resources. The different zones and
their sovereign rights regimes are determined by the UNCLOS. In relation to
research and development (R&D) on genetic resources, these determinations
largely coincide with those of the CBD and the NP (Articles 4 (a), 22.1 CBD).
Internal waters are subject to the full sovereignty of the coastal state (Article 2.1
UNCLOS), which includes the regulation of R&D activities on genetic resources.
With certain exceptions, full sovereignty applies also within the territorial sea which
covers a breadth of 12 nm measured from the baseline, i.e. the low-water line. This
includes exclusive rights on and the regulation of R&D on genetic resources (Arti-
cles 2.1, 3, 245 UNCLOS). Within the exclusive economic zone which forms a belt
of 200 nm from the baseline, limited sovereign rights of the coastal states are
acknowledged, once again including exclusive rights and the regulation of R&D on
genetic resources (Articles 56, 246 UNCLOS). On the continental shelf beyond
the 200 nm baseline, reaching a maximum of 350 nm, sovereign rights may also be
exercised in the subsoil and on the seabed, but only for the exploration and exploita-
tion of natural resources, i.e. only for commercial R&D (Article 246.6 UNCLOS).
The remaining ocean is made up of the so-called areas beyond national jurisdic-
tion (ABNJ; Article 86 UNCLOS) which break down into the Area and the High
Seas. States do not have sovereign rights in these zones. Therefore, the access to
and the utilization of genetic resources taken from the ABNJ is free (Articles 87,
256 UNCLOS), but limited by the respect of the conditions laid down by
UNCLOS, and by the respect of the interests of other States and of the right
under the convention with respect to activities in the Area (Article 87). No
access agreement needs to be, nor can be, concluded. Therefore the Model Agree-
ment does not address the taking of samples in the ABNJ.
3. Explanation of the article in detail
The components of the agreement’s head section clarify who shall be the Parties
to the agreement. They are called the “Provider” and the “Recipient” and are the
institutions competent to regulate the subject matter of the agreement. They are
the legal persons that bear the rights and duties of the agreement.
The signatory on the Provider side will normally be a governmental authority.
The competence may however be delegated to a research institution. This depends
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336 Caroline von Kries et al.
on the domestic law of the Provider State. In order to identify who is the compe-
tent authority to sign an ABS agreement, the researcher should consult the
national focal point on ABS of the Provider State. Further clarity can be obtained
from the international ABS Clearing-House which shall be established according
to Article 14 NP (not operational as of now). Its mission is to provide information
on the national focal point and/or the national authority competent for access
and benefit-sharing decisions. At the time of the composition of this commentary
(December 2014), the Clearing-House is entering the pilot phase. Meanwhile,
however, researchers may directly consult the website of the CBD (www.cbd.int),
which provides links to relevant national websites on ABS.
On the Recipient side, the signatory will normally be a legal (public or private)
entity such as a research organization or an industrial enterprise. The Recipient
shall not be the individual researcher but the institution that employs the
researcher. This ensures that the agreement survives changes of personnel and
that its implementation is surveyed.
The principal content of the agreement is the regulation of access to genetic
resources (Article 3), their utilization (Article 4) and their transfer to third parties
(Article 5.1), the management (Article 6 – dissemination of knowledge) and
transfer to third parties of associated knowledge (Article 5.2), and the sharing of
benefits drawn from the utilization. Benefits are regulated in Article 7 (acknowl-
edgement of the role of scientists), Article 8 (recording and reporting), Article 9
(sharing of information), Article 10 (scientific collaboration with the Provider
State and capacity building), and Article 11 (monetary benefits). A detailed
analysis follows under the respective Articles.
It is also necessary to define the geographical scope applicable for the Recipi-
ent’s collection of genetic resources: the Provider State’s internal waters, territo-
rial sea, its exclusive economic zone (EEZ), and its continental shelf. It is thus
clear that the ABNJ is outside the scope of the agreement.
The geographical scope helps in fencing the realm where the Recipient has to
seek PIC before accessing and taking samples from the marine waters. It is not
relevant for the other rights and obligations under the Model Agreement. This is
due to the fact that the utilization and the benefit-sharing activities usually do not
take place on the sea (in situ) unless, for example, the genetic material is analyzed
in research laboratories on the research vessel directly after taking the sample
(utilization) or the User State collaborates with scientists of the Provider State
on the expedition boat (benefit sharing). Relevant activities mostly take place
outside the Provider State’s sovereign realm (ex situ, e.g. in the User State).
Article 2: Definition of terms
1. Overview of the article
Article 2 contains the definitions of the key terms used throughout the agreement.
The definitions help the contracting Parties to understand the content of the
contractual clauses.
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Micro B3 model agreement 337
2. Legal background
The terms and their definitions partially reflect those of the relevant interna-
tional treaties, especially CBD, NP, and UNCLOS, also including informal
texts such as recommendations by the CBD Secretariat. In drafting the Model
Agreement, many of the authoritative and widely accepted terms and defini-
tions have been adopted (such as, for example, the definition of genetic
resources drawn by the CBD); however, more terms and definitions had to be
introduced, taking into account the context and the objectives of the Micro
B3 Project.
3. Explanation of the article in detail
a) Access means collecting genetic resources from the location where they are found.
The definition of access focuses on the core activity of sampling. It is clear from
the term “collecting” that this may consist of various activities such as surveying
and using equipment to search for genetic resources.
b) Accessed genetic resources means the genetic resources collected on the basis
of this agreement.
The term “accessed genetic resources” guarantees the identification of those
genetic resources which are subject to the agreement (see Articles 3.1 and 3.2)
and thus produces legal certainty for both Provider and Recipient on what shall
be the exact objective of utilization, transfer, and – in case of breach of contract
(Article 16.4) – destruction.
c) Associated genetic knowledge means any experimental or observational data,
information, and other findings on the composition, life conditions, and functions
of the accessed genetic resources.
This is a newly introduced term that is crucial for distinguishing between:
the knowledge which is directly linked to the accessed genetic resource –
then the Provider may claim control of its use, ask for PIC before its transfer,
or solicit benefit sharing; and
the knowledge which is not directly related to the accessed GR but may
have been generated with its help (e.g. by comparing genes and functions
or by developing a new theory on sleeping genes won at the occasion of
research with an accessed GR) – then the Provider is neither entitled to
control its use nor to claim benefit sharing.
The latter shall not be the object of the agreement since the Recipient may
freely decide on its use.
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338 Caroline von Kries et al.
It is recommended not to list and define “data” and “information” as extra
categories but to introduce the umbrella term “knowledge” which is supposed to
cover data and information as well as results and other findings.
Scientists normally understand “data” to be the characterization of the genetic
resource and its life conditions (which are also called meta-data) referring to the
immediate technical description, and “information” as a reference to research
results on data. The term knowledge is introduced as a generic term covering both
data and information.
d) Derivative means a naturally occurring biochemical compound resulting from
the genetic expression or metabolism of biological or genetic resources, even if it
does not contain functional units of heredity.
The definition is taken from Article 2 (e) of the NP. Derivatives are objects of
technological applications (“biotechnology”) and as such, they are objects of “uti-
lization” as defined in paragraph l of the present Article.
e) Genetic resources means any material of plant, animal, microbial, or other
origin containing functional units of heredity which is of actual or potential
value.
This definition of genetic resources is a compilation of the definitions of “genetic
material” and “genetic resources” in Article 2 CBD. It thus simplifies the use of
the term “genetic resource.”
f) Micro B3 partner means an institution that is a Party to the Micro B3 Con-
sortium Agreement.
Micro B3 partners shall have a special status vis-à-vis the Parties to the agreement.
They are not third parties (see definition i).
As they are Parties to the Micro B3 Consortium Agreement they are bound by
the rights and obligations of the Model Agreement as provided in Article 1.2.
They may receive genetic resources and associated knowledge from the Recipient
without the requirement of PIC from the Provider.
g) Ocean Sampling Days are simultaneous sampling campaigns in the world’s
oceans, as part of the Micro B3 Project, aiming at providing insights about the
microbial diversity and the identification of novel ocean-derived biotechnologies.
The Model Agreement is principally addressed to the participants and drafted for
the objectives of the Ocean Sampling Days that are organized by the Micro B3
Project. The Ocean Sampling Days are aimed to be a worldwide endeavour to take
samples of marine microorganisms at various locations, analyze them, and feed the
knowledge primarily into the public domain.
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Micro B3 model agreement 339
h) Provider State means the coastal state from whose marine internal waters, territorial
sea, exclusive economic zone, or continental shelf genetic resources are collected in situ.
The Model Agreement sometimes addresses the “Provider” and sometimes the
“Provider State.” When the term “Provider” is used it means the Provider as a
Party to the agreement (“the authority,” see head section of the agreement), being
a representative of the Provider State and, according to the Provider State’s
national law, vested with the power to sign the agreement. By contrast, the term
“Provider State” is used
a) when the territory is described (Article 1);
b) when the contribution is acknowledged because there may be more
contributing institutions than the authority subscribing to the agree-
ment (Article 7.2);
c) where training and capacity-building shall be agreed (Article 10); and
d) in the clause on the applicable law (Article 14).
i) Third party means any institution other than Micro B3 partners.
Third parties are relevant in the context of transfer of genetic resources and asso-
ciated knowledge. They must be distinguished from Micro B3 partners (see Arti-
cle 1.2). Institutions or individuals that are “contractually bound with the
Recipient to provide specified assistance concerning the utilization of the accessed
genetic resources” (see Article 3.3) are also not third parties, because they are
commissioned to provide specified auxiliary services, but are not entitled to con-
duct their own R&D activities on the accessed GR.
j) Utilization for proprietary purposes means research and development that aims
at protecting the associated knowledge, including products and processes developed,
by patent rights, keeping the resulting knowledge secret, making the resulting
knowledge accessible at more than incremental costs for dissemination, and/or
bringing the products and processes developed from the accessed genetic resources
on the market.
This definition will be explained in conjunction with paragraph k of this
Article.
k) Utilization for the Public Domain means research and development that aims at
making the associated knowledge, including products and processes developed, publicly
available at no more than incremental costs for dissemination, and without being
protected by patent rights or further restricted by other intellectual property rights.
It is a difficult task to define criteria for the distinction of the two forms of utiliza-
tion, but it is indispensable because different obligations are attached to them.
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340 Caroline von Kries et al.
One may use a substantive criterion that distinguishes between basic research and
applied research/development of products. However, results from basic research
(such as genes and their function) may already be patented and thus “commercial-
ized.” Alternatively, an institutional criterion may be chosen by asking whether
the research institution and financial background belong to the public or private
sector. But public research institutions are not necessarily confined to non-
commercial research while private ones may sometimes work for public benefit.
For the objective of this Model Agreement it is suggested that the question of
functionality of the utilization – meaning the dimension of public availability of
the associated knowledge – best distinguishes the two realms from each other: If
the Recipient intends to make the knowledge publicly available without property
protection or further restriction by other intellectual property rights, then the
Recipient asks for access to the GR for the purpose of utilizing them for the public
domain. If the Recipient’s purpose is to protect the knowledge by patent rights or
trade secrets and to limit or make costly public availability, it asks for access to
the GR with the purpose to utilizing them for proprietary purposes.
l) Utilization of genetic resources means research and development on the genetic
and/or biochemical composition of genetic resources, including through the applica-
tion of biotechnology, which is any technological application that uses biological
systems, living organisms, or derivatives thereof, to make or modify products or
processes for specific use.
This is a compilation of the definitions of the terms “utilization of genetic
resources” in Article 2 (c) NP and “biotechnology” in Article 2 (d) NP. According
to Article 2 (c) NP, utilization means research and development. In other words,
applied research and development of products or processes is implied in the term
utilization. This is also indicated by the definition of biotechnology which includes
the making or modifying of products and processes. Not included in the term is,
however, the application and commercialization of developed products (cf. Arti-
cle 5 NP). R&D can however aim at application and commercialization. This
would imply the privatization of R&D results and thus be, in the terminology of
this Model Agreement, a case of utilization for proprietary uses.
Article 3: Access to genetic resources
3.1 The Recipient shall be entitled to collect samples as follows:
a) Kinds of samples,3 including the kind of genetic resources,4 if known:
__________________________________________________________
3 E.g. seawater, sediment.
4 The kind of genetic resources to be extracted from the sample, e.g. virus, bacteria, fungi,
microorganisms.
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Micro B3 model agreement 341
b) Number and quantity of samples:
__________________________________________________________
c) Geographical location of collection:5
__________________________________________________________
d) Time period for collection:
__________________________________________________________
3.2 The Recipient shall within . . . [time period to be specified by the Par-
ties] after collection of the samples notify to the Provider the kinds of
genetic resources the Recipient intends to utilize. The Provider may,
within . . . weeks [to be specified], raise objections in which case the
Parties will seek agreement on the kinds of genetic resources allowed to
be utilized.
(This clause is to be crossed out if not applicable)6
3.3 The Recipient shall be entitled to move the accessed genetic resources
to its premises and, subject to Article 1.2 of this agreement, to the
premises of other Micro B3 partners, as well as to an institution or
individual which is contractually bound with the Recipient to provide
specified assistance concerning the utilization of the accessed genetic
resources.7
3.4 The Recipient shall deliver a portion of the accessed genetic resources to
the Provider or an institution designated by the same:
_____________________________________________________________
The samples shall be delivered in the following form:
______________________________________________________________
(This clause or part of it is to be crossed out if not applicable)
3.5 The Recipient shall bear all the costs incurred in accessing and delivering
the genetic resources.
1. Overview of the article
The objective of Article 3 is the regulation of access to marine genetic resources
as agreed by the Provider and the Recipient; it regulates the conditions of
access and the rights and obligations of the Parties directly connected with the
access.
These rights and obligations may be divided into principal performance obliga-
tions (obligation of the Provider to grant access; obligation of the Recipient to
access the maritime zones under the agreed parameters: the agreed kind of sample,
5 E.g. GPS coordinates.
6 Not applicable if the kind of genetic resources included is known ex ante under Article 3.1.a)
7 All other transfers are considered transfers to third parties and bound by the conditions under
Article 5.
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342 Caroline von Kries et al.
the agreed number and quantity of the samples, within the agreed geographical
area, within the agreed time period) and secondary performance obligations (right
of the Recipient to move the genetic resources to the premises of his/her own and
to individuals and institutions offering auxiliary services; obligation of the Recipi-
ent to send a sample to the Provider State).
2. Legal background
The obligations of the Provider State in relation to the permission of access to its
genetic resources are regulated in Article 6 NP. Article 6.1 NP acknowledges the
sovereign rights of Provider States to require prior consent and, by implication,
to set conditions for the access, such as conditions concerning the sampling and
the moving of the sample. If a Provider State has made use of these rights, the
Model Agreement serves to specify such conditions in the individual case. Arti-
cle 6.3 NP strives for legal clarity by requiring State Parties to take the necessary
legislative, administrative, and policy measures to “provide for information on
how to apply for prior informed consent” (c) and to “set out criteria [. . .] for
obtaining prior informed consent” (e). Normally, Provider States ask for both the
obtainment of an access permit and the conclusion of an access contract. They
may however also simplify procedures by providing the access permit as part of the
access contract. This solution is suggested in the Model Agreement: If the Pro-
vider signs an agreement, including Article 3 as it is, it thereby grants prior con-
sent to the access. The Model Agreement does not however preclude the Provider
State granting a permit in addition to it.
Considering the law of the seas, Articles 245, 246, and 248 UNCLOS acknowl-
edge the same sovereign rights for coastal states as Article 6 NP.
3. Explanation of the article in detail
In Article 3.1 the Parties to the agreement may define, through negotiation, the
kinds of samples to be accessed (including the kind of genetic resources if known),
the number and quantity of samples, the geographical location of sampling, and
the time period for sampling.
See as examples:
a) Kind of sample: Sediment
b) Number and quantity of sample: a minimum of 50 samples of sediment of 50
mL
c) Geographical location of collection: GPS coordinates
d) Time period for collection: 22nd June – 29th June 2014
Submitting this information to the Provider serves the interest of both parties;
it provides legal certainty about the limits of the operation regarding the object,
the amount of collection, the location, and the time period.
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The second paragraph (3.2) was inserted because at the time of conclusion of
the agreement the Recipient will not necessarily know which kinds of genetic
resource it will actually be able to extract from the sample. In that case, it is suf-
ficient to generally describe the sample (water, sediment, macroorganisms
(sponges, algae, etc.)) in Article 3.1; and, as a second step, to specify what kinds
of genetic resources (virus, bacteria, prokaryotes, other microbial eukaryotes) shall
be utilized as soon as this becomes clear from a screening of the sample. The Pro-
vider may in that case raise objections to subsequent utilization.
The third paragraph (3.3) regulates where the samples may be moved: to the
premises of the Recipient, to the premises of Micro B3 partners, and to the prem-
ises of institutions or individuals that provide auxiliary services such as sequencing
etc. These latter transfers do not need a prior informed consent of the Provider
for the following reasons: first, Micro B3 Partners are bound by the Consortium
Agreement and therefore also bound by the Model Agreement; second, the insti-
tutions or individuals are engaged by the Recipient to provide specific technical
assistance in the research and development process. This engagement shall not
be burdened with too-heavy administrative requirements (e.g. PIC of the Pro-
vider) in order not to hamper the research process.
The fourth paragraph (3.4) regulates the obligation of the Recipient to share
the collected samples with the Provider. This requirement enables the Provider
to supervise the R&D process by tracing the resulting knowledge to the genetic
resource. It also enables the Provider to develop its own research activities.
The fifth paragraph (3.5) declares the Recipient responsible for all the costs
incurred from accessing and delivering the samples.
Article 4: Utilization of genetic resources
4.1 The Recipient shall be entitled to the utilization of the accessed genetic
resources.
Specifications, if deemed necessary:
__________________________________________________________
4.2 The utilization of the accessed genetic resources shall be for the public
domain.
Specifications, if deemed necessary:
__________________________________________________________
(This clause is to be crossed out if not applicable)
4.3 The Recipient shall be entitled to utilize part/all (please cross out) of
the accessed genetic resources for proprietary purposes:
Specifications, if deemed necessary:
__________________________________________________________
(This clause is to be crossed out if not applicable)
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344 Caroline von Kries et al.
4.4 Should the Recipient, after the conclusion of this agreement, intend to
utilize the accessed genetic resources and/or use the associated genetic
knowledge for proprietary purposes, the Recipient shall seek the consent
of the Provider.
Specifications of the consent procedure, if deemed necessary:
__________________________________________________________
4.5 Should the Provider, after the conclusion of this agreement, intend to utilize
the accessed genetic resources and/or use the associated genetic knowledge
for proprietary purposes, the Provider shall enter into amicable negotiations
with the Recipient on the modification or termination of this agreement.
(This clause is to be crossed out if not applicable)
1. Overview of the article
Article 4 focuses on the steps following access in the chain of valorising the genetic
resources. The Parties may here define the scope of utilization permitted to the
Recipient. Basically, the Parties should regulate what kinds of research and devel-
opment are to be allowed, and whether the utilization shall be exclusively for the
public domain or if part or all of it may be carried out for proprietary purposes.
2. Legal background
Article 4 of the Model Agreement is based on Articles 5.1 and 6.1, 6.3 (g) NP
which acknowledge the sovereign rights of Provider States to set conditions for
access and benefit sharing and thereby prepare the ground for access permits and
mutually agreed terms. These conditions may limit the allowed content and pur-
pose of utilization of the accessed genetic resources. Rules similar to this follow
from Articles 245, 246, and 248 UNCLOS.
3. Explanation of the article in detail
The Article provides the opportunity to set mutually agreed terms concerning the
utilization of the accessed genetic resources. This allows the Parties to individually
balance their interests in negotiating special conditions of utilization.
In Article 4.1 the Parties may specify what kinds of research and development
activities will exactly be carried out, which research methods may be used, etc.
They may however also agree that any R&D shall be allowed and thus leave the
space for specifications unfilled.
In Articles 4.2 and 4.3 the Parties shall agree on the functional objective of the
utilization activities: Does the Recipient intend to submit the associated knowl-
edge resulting from the utilization of the GR exclusively to the public domain or
is its intention to keep (part/all of) the knowledge for proprietary purposes?
The decision pro or contra public domain utilization necessarily entails respec-
tive follow-up obligations: the conditions of dissemination of associated
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Micro B3 model agreement 345
knowledge, of reporting and sharing of information, and of benefit sharing may be
different in the two cases.
Article 4.4 contains a clause regarding change of intent by the Recipient. If the
Recipient, after the conclusion of an agreement that limits all or part of the uti-
lization of the resources to the public domain, decides to utilize the GR (or part
of it) or use the associated knowledge for proprietary purposes, it must seek the
prior consent of the Provider. Under “specifications” it may be agreed if, in that
case, a simple notification is sufficient or if a formal authorization is needed. Other
specifications such as benefit-sharing arrangements are regulated under Arti-
cles 11.3, 11.4.
A “change of intent” clause for the Provider is introduced by Article 4.5: It
might happen that, after the Recipient has shared the sample and the knowledge
with the Provider (Articles 3.3, 9.1), the Provider discovers a potential commer-
cial application of the genetic resource or the associated knowledge and would
like to prevent the same from being submitted to the public domain. In that case,
the Model Agreement does not give the Provider a one-sided right to withdraw
its consent, but rather enables it to renegotiate the contract. This solution is mir-
rored in the case of change of intent of the Recipient in case of which mutual
consent must equally be obtained.
As an alternative, the Provider may waive its intention to renegotiate from the
onset, for instance in exchange for an upfront payment. In that case Article 4.5
should be disregarded.
Another possibility for the Provider to reserve a share in the commercialization
activities ex ante, is to use renegotiations according to Article 4.4 to reach condi-
tions on benefit sharing.
Article 5: Transfer of genetic resources to third parties
5.1 The Recipient may transfer to a third party the accessed genetic resources,
or parts of them, provided that the third party agrees with the Recipient,
to apply to the transferred genetic resources Articles 4 to 16 of this
agreement.
5.2 If the Recipient intends to transfer to a third party the associated genetic
knowledge which is not yet or shall not be submitted to the public domain
according to Article 6, the third party shall agree with the Recipient, to
apply to the transferred knowledge Articles 4 to 16 of this agreement.
5.3 In case of transfer to a third party, the Recipient needs the prior informed
consent of the Provider, under one of the following modalities:8
8 NOTE OF CAUTION: The Parties should be aware that too-heavy PIC requirements could sig-
nificantly complicate the research and development process during the non-commercial stage con-
sidered in this contract (defined as public domain). A facilitated PIC procedure for non-commercial
use (public domain use) as proposed here would also be to the advantage of the Provider State,
because this allows the Recipient to transfer GR or knowledge during the non-commercial stages
more easily and thus might lead to increased commercial product development in later stages, in
which a new negotiation with the Provider State is initiated according to the renegotiation clause
in article 4.4.
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346 Caroline von Kries et al.
a notification of the transfer to the Provider or an institution des-
ignated by the same, along with the sending of a copy of the transfer
agreement, will be considered as proof of prior informed consent.
The institution shall be the following [if applicable]:
__________________________________________________________
other [specification of the modality]:
__________________________________________________________
[This clause is to be crossed out upon agreement that the consent is not
required]
1. Overview of the article
Article 5 describes the conditions under which the Recipient is allowed to transfer
the accessed genetic resources and/or the associated genetic knowledge to third
parties. The Article introduces the so called “viral licence clause” for such trans-
fers. The viral licence concept means that the originally signed contract between
the Provider and the Recipient travels with the resource and the associated
genetic knowledge upon transfer to a second and a third Recipient: that is to say,
the subsequent recipients are bound by the same obligations that were imposed
on the (first) Recipient in the contract concluded with the Provider. The Provider
is therefore reassured that the conditions he/she had negotiated will be respected
further down in the transfer chain. This is an important clause given that, usually,
Provider States’ legislations tends not to facilitate access to genetic resources for
research purposes due to legal uncertainty regarding the transfer to third parties
and the treatment of materials and knowledge produced out of it by them.
2. Legal background
Article 6.3 (g) (iii) NP acknowledges that the Provider has sovereign rights to
establish the conditions for transfer of the GR to third parties. This is commonly
implemented by domestic legislation requiring prior consent of the Provider to
material transfers to third parties.
The inclusion of the viral licence clause into the Model Agreement was inspired
by the experience made with the Material Transfer Agreement used by the Euro-
pean Culture Collections (ECCO MTA). Under this MTA the transfer of the
material
a) between scientists working in the same laboratory,
b) between partners in different institutions collaborating on a defined joint
project for non-commercial purposes, or
c) between public service culture collections for accession purposes
is allowed provided that the MTA conditions for further distribution are equiva-
lent to those that were agreed upon for the initial transfer of material. Article 5
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Micro B3 model agreement 347
of the Model Agreement however somehow differs from the ECCO MTA: Scien-
tists working in the same laboratory (above a.) are bound by internal rules of the
institution that signs the contract on the Recipient side. And collaborating part-
ners (above b.) are already bound by Article 2.1 of the Model Agreement, because
they are Micro B3 partners. Article 5 therefore focuses on transfers to genuine
third parties (which may also include culture collections (above c.).
3. Explanation of the article in detail
The Model Agreement offers a viral licence clause in Article 5.
This clause guarantees that all obligations of the initial ABS agreement (Arti-
cles 4–16) will be imposed on any third party receiving the material and/or the
knowledge associated with the GR (Article 5.1). The Recipient is allowed to
transfer the material and/or the knowledge to a third party only under the condi-
tion that the third party agrees to respect the conditions of the initial ABS agree-
ment (Article 5.2). This can be implemented by the third party signing an MTA
that the initial ABS agreement shall be binding on it.
Article 5.3 provides two modalities of procedures, one of which the parties may
choose:
The Recipient notifies the Provider of any transfer to third parties. In this
case the general prior consent the Provider grants by signing the Model
Agreement is completed by targeting a specific transfer.
The Parties introduce additional modalities: they define a period within
which the Provider may raise objections or they introduce a requirement
that the Provider must give its explicit consent.
It is recommended that the first option shall be chosen for public domain uses in
order to avoid too-heavy administrative burdens (see also footnote to Article 5).
A third option which is even less burdensome would be to disregard Article 5.3.
In this case the general prior consent would be regarded as sufficient.
Article 6: Dissemination of knowledge
6.1 The Recipient shall make the associated genetic knowledge publicly
available at no more than incremental costs of dissemination. The dis-
semination can be through online media, print media, or delivery upon
request. The recommended forums for online dissemination are the Micro
B3 Information System (www.microb3.eu) and existing databases and
information networks such as the Global Biodiversity Information Facility
(GBIF), SeaDataNet, Pangaea, and the International Nucleotide Sequence
Database Collaboration (INSDC).
6.2 Such knowledge shall be made available as soon as possible after its
generation unless otherwise specified. No embargo period is allowed for
the raw sequence data and the oceanographic data associated to the
samples collected upon the Ocean Sampling Day.
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348 Caroline von Kries et al.
Specifications if deemed necessary:
__________________________________________________________
6.3 The Recipient shall make reasonable efforts to ensure that the release
of associated genetic knowledge through online media, print media, or
delivery upon request will be organized such that users are bound not
to use the associated genetic knowledge taken from the portals for pro-
prietary purposes unless they have obtained prior informed consent of
the Provider.
6.4 Paragraphs 1–3 of this Article do not apply to associated genetic knowl-
edge used for proprietary purposes specified under Articles 4.3 and 4.4.
6.5 The Recipient shall make reasonable efforts to ensure that the users of
knowledge accessed from the Micro B3 Information System provide to
the System the knowledge from their own research in such form and
format as the System will reasonably require in order to promote the
objectives of the utilization for the public domain.
1. Overview of the article
The objective of Article 6 is to illustrate the different options for the dissemina-
tion policy concerning the associated genetic knowledge and consequently the
obligations of the Recipient in that regard. The dissemination policy differs
according to the objectives of utilization of the accessed GR that have been agreed
upon by the Parties under Article 4. If the utilization is exclusively for the public
domain, the Recipient has to make the accessed genetic knowledge available in
the public domain as soon as it has been generated. If the utilization is for propri-
etary purposes, the Recipient is not bound by dissemination obligations under
Article 6.
2. Legal background
The legal grounds for establishing such obligations for the Recipient is the prin-
ciple of mutually agreed terms reaffirmed by Article 6.3 (e) of the NP.
Article 6 addresses issues of data management that have not yet been discussed
in-depth in the ABS context. Neither the CBD nor the NP nor UNCLOS have
specific provisions addressing the way the sovereign rights of Provider States
entitle them to monitor and codetermine the processing of knowledge derived
from R&D on accessed genetic resources. One important provision framing such
rights is Article 5 NP, which ensures that any “benefits arising from the utilization
of genetic resources as well as subsequent applications and commercialization”
shall be shared with the Provider State. “Arising” also includes processes of
knowledge generation from the R&D on the “original” material and for “new”
material (such as products). If the phase of knowledge generation involves the
submission of results to the public domain, this entails the risk that the Provider
State loses track of subsequent steps towards commercialization. It is therefore
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Micro B3 model agreement 349
in the interest of the Provider to control the process to some extent. On the other
hand, the Provider State is, according to Article 8 (a) NP, under the duty to
facilitate non-commercial research, which is hereby understood as research for
the public domain. Article 6 attempts to strike a balance between the freedom
of public domain research and the legitimate rights of provider states to control
the valorisation chain.
3. Explanation of the article in detail
Article 6 illustrates the dissemination obligations of the Recipient in the cases
where the genetic resources (or part of them) are accessed for utilization for the
public domain as stated in Article 4.2 (or in Article 4.3). In these cases, the
Recipient commits itself to make the accessed genetic knowledge publicly avail-
able at no more than incremental costs for dissemination and as soon as possible
after its generation. The delivery of such knowledge upon request is also consid-
ered to be a variant of publication. A fee for access may be included, but this shall
not exceed “incremental” costs. This is to be understood as costs for the storage
and the technical means of transfer of knowledge.
Several forums for the online dissemination are recommended: the Micro B3
Information System (once it is in place and running) and some existing databases
and information networks that have a strong reputation among scientists working
on genomics.
Article 6.2 introduces an embargo period for dissemination: The Recipient
shall publish the knowledge “as soon as possible” after its generation, but the Par-
ties are free to further specify the embargo period.
No embargo period is allowed for the raw sequence data and oceanographic data
associated with the samples collected within the Ocean Sampling Day (OSD)
initiative. This aims at ensuring that the pools of data collected through the initia-
tive will be publicly available immediately, as this is one of the main objectives of
the initiative. It is also an important step to identify the participants to the OSD
initiative and to ensure that the participants respect the OSD data policy.
In Article 6.3, the Model Agreement confers on the Recipient the responsibil-
ity to observe third-party use of the knowledge. Users should not take knowledge
from the public portal and use it for proprietary purposes unless they have obtained
prior informed consent from the Provider. De facto, the monitoring of such
requirements will however be difficult since the Recipient who has submitted
knowledge to a database has no stakes in taking legal action against commercial
uses. Nor is it feasible for the database operators to ensure that PIC has been
obtained. For this reason databases normally ask users to agree with a disclaimer
which frees the database from any liability vis-à-vis a right holder. These disclaim-
ers need to be reconsidered in relation to Provider rights on genetic resources, but
this will require more discussion and a longer learning process that cannot be
predetermined by strict clauses in the present Model Agreement. Therefore, a
goodwill clause rather than an obligation for the Recipient has been drafted using
the softer formulation “shall make reasonable efforts to ensure.”
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350 Caroline von Kries et al.
However, since the Model Agreement aims at serving as a template also beyond
the Micro B3 Project and the Ocean Sampling Days, the proprietary utilization
of the GR allowed by Articles 4.3 and 4.4 needs to be granted legal protection by
the agreement as well. Therefore, if a respective clause negotiated with the Pro-
vider allows for the utilization of part or all of the accessed GR for proprietary
purposes, according to Articles 4.3 and 4.4, these public domain dissemination
obligations will cover only the associated genetic knowledge produced from the
part of GR accessed for the public domain, if any. Otherwise no dissemination
obligations bind the Recipient, and Articles 6.1–6.3 do not apply.
The intention of Article 6.5 is that the users of knowledge from the Micro B3
Information System (once in place and running) give knowledge from their own
research back to the System in order to promote the objectives of the utilization
for the public domain. The Micro B3 Information System will set the forms and
formats under which the knowledge is to be provided. Of course, such an obliga-
tion is difficult to enforce, both by the database operators and by the Recipient.
For this reason the related obligation of the Recipient is framed in soft
language.
Article 7: Acknowledging the contribution of the provider state
7.1 When making associated genetic knowledge publicly available, the
Recipient shall indicate the country of origin of the utilized genetic
resource.
7.2 When making associated genetic knowledge publicly available, the Recipi-
ent shall acknowledge the role of scientists from the Provider State, and,
where any work, significant advice, or recommendations have been pro-
vided by such scientists, their (co-)authorship.
1. Overview of the article
The objective of Article 7 is to acknowledge the contribution of the Provider
State when the knowledge is made publicly available. First, it obliges the Recipi-
ent to indicate the origin of the accessed genetic resource and thus helps tracking
the origin of the associated knowledge. Second, it requires the Recipient to
acknowledge the role of scientists, especially in the case of significant contribution
to the research results.
These obligations bind the Recipient only in those cases in which the Provider
has granted access to its GR allowing their utilization for the public domain.
2. Legal background
The Bonn Guidelines require the users of genetic resources “to maintain all rel-
evant data regarding the genetic resources, especially documentary evidence of
the prior informed consent and information concerning the origin and the use of
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Micro B3 model agreement 351
genetic resources and the benefits arising from such use” (paragraph 16 (b) (vi)).
Moreover, paragraph 16 (d) (ii) requires the users of GR “to encourage the disclo-
sure of origin of the GR and of traditional knowledge (TK).”
In addition, the list of non-monetary benefits (appearing first as Annex II to
the Bonn Guidelines and then repeated in the NP) includes the following benefits
to be possibly shared:
“Collaboration, cooperation and contribution in scientific research and
development programmes, particularly biotechnological research activities,
where possible in the provider country”
“Social recognition”
“Joint ownership of intellectual property rights”
3. Explanation of the article in detail
Article 7 is applicable when knowledge generated from the utilization of accessed
genetic resources is published. Whether the publication is made as part of a public
domain or proprietary track is of no concern. Moreover, publications concerning
patented information are subject to the obligation to indicate the country of
origin and acknowledge the collaboration of scientists, including co-authorship.
Article 8: Recording and reporting
8.1 The Recipient shall maintain records concerning the storage and transfer
of the accessed genetic resources and allow access to such records to the
Provider or the authority designated by the same.
__________________________________________(insert name and address
of authority if applicable)
8.2 The Recipient shall report in writing to the Provider or the authority
designated by the same every __________ [insert duration] months,
beginning ____________ and ending __________, providing details of the
progress of utilization.
__________________________________________ (insert name and address
of authority if applicable)
8.3 With relation to associated genetic knowledge used for proprietary purposes
specified under Articles 4.3 and 4.4, the Recipient shall, when reporting
according to paragraph 2 of this Article, also report on any steps taken
towards obtaining or implementing intellectual property protection and
the selling of products or processes based on this knowledge.9
9 Subject to negotiation of the Parties, it could be agreed that the consent of the Provider is required
for certain steps of commercialization, such as the bringing on the market of the product.
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352 Caroline von Kries et al.
1. Overview of the article
The objective of Article 8 is to keep track of the accessed GR and their utilization
and to share this information with the Provider. This obligation helps monitoring
the compliance with the mutually agreed terms concluded in the agreement.
2. Legal background
Article 17 of the NP, on “monitoring the utilization of GR,” requires each Party
to take appropriate measures to monitor and to enhance transparency about the
utilization of genetic resources, in order to support compliance. Among these
measures each Party shall encourage “users and providers of GR to include provi-
sions in mutually agreed terms to share information on the implementation of
such terms, including through reporting requirements” (Article 17.1 (b) NP).
In addition, the obligation to report on the progress of utilization is a possible
non-monetary benefit listed in the annex of the Nagoya Protocol which reads as:
“sharing of research and development results.”
3. Explanation of the article in detail
The Recipient must keep track of the storage and the transfer of the accessed
GR and allow access to this information to the Provider upon demand. The
Provider can designate the authority competent to ask for access to these
records.
Moreover, the Recipient must report in writing to the Provider the details of
progress of utilization of the accessed GR. The Recipient and the Provider have
to agree on the timeframe for these reporting activities and the Provider can
designate the authority competent to receive the reports.
Finally, in the cases of associated genetic knowledge used for proprietary pur-
poses (see Articles 4.3 and 4.4), the Recipient shall also report on any steps taken
towards obtaining or implementing intellectual property protection and the sell-
ing of products or processes based on this knowledge.
These duties pursue a twofold objective: First, the Provider benefits from the
reports related to the content since they may include new scientific findings.
Second, the information enables it to regularly monitor if the Recipient complies
with the contractual obligations vis-à-vis the utilization of the accessed GR.
Article 9: Sharing of knowledge
9.1 The Recipient shall provide the Provider, or the authority designated by
the same, with the associated genetic knowledge and provide assistance
in their assessment or interpretation as reasonably requested.
______________________________________ (insert name and address of
authority if applicable)
9.2 Such knowledge shall, at the latest, be provided once it has been made
publicly available.
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Micro B3 model agreement 353
Specifications if deemed necessary:10 _______________________________
9.3 The obligation under paragraph 1 of this Article extends to associated
genetic knowledge used for proprietary purposes specified under Arti-
cles 4.3 and 4.4. When using the knowledge the Provider shall not
prejudice any use for proprietary purposes by the Recipient.11
Specifications, if deemed necessary:
_________________________________________
(This clause is to be crossed out if not applicable)
9.4 The Recipient shall furnish the Provider or the authority designated by
the same with ________ (insert number) copies of any publication based
on the utilization of the accessed genetic resources.
____________________________ (insert name and address of authority
if applicable)
1. Overview of the article
The objective of Article 9 is to provide for a non-monetary benefit sharing through
the sharing of the associated genetic knowledge with the Provider, applicable in the
case of public domain agreement as well as in the case of proprietary agreement.
2. Legal background
According to Annex to the NP, No. 2 (a), read together with Article 5 NP, the
sharing of research and development results belongs to the (non-monetary) ben-
efits that shall be shared with the Provider State.
Moreover, Article 6.3 (g) (ii) NP acknowledges that the mutually agreed terms
might include terms on benefit sharing.
3. Explanation of the article in detail
The Recipient is obliged to share with the Provider the associated genetic knowl-
edge at the latest when it is submitted to the public domain, if public domain is
agreed. The Recipient is also obliged to provide assistance in the assessment and
interpretation of such knowledge in respect of the needs of the Provider which
may vary according to the Provider’s scientific capacity.
10 It may be agreed between the Parties that the Provider shall be informed before publication. This
may allow the Provider to check if the requirements under Article 7 are fulfilled and/or if there is
reason for pursuing proprietary purposes according to Article 4.5. In this case the Provider shall
keep the knowledge confidential during the agreed period.
11 This clause will be negotiated along with the benefit-sharing arrangement: a Provider State will
prefer to have access to the information (even if the country keeps it confidential as specified under
9.3), but a company might prefer to give a higher upfront benefit sharing under article 11 as a quid
pro quo for crossing out this article.
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354 Caroline von Kries et al.
If the Model Agreement allows for proprietary uses of the GR (see Article 4.3
and 4.4) the Recipient is still obliged to share such knowledge with the Provider,
but in return the Provider commits itself not to prejudice any proprietary use by the
Recipient. This means that the Provider shall not obtain intellectual property rights
on the knowledge nor publish it but rather treat such knowledge confidentially.
Finally the Recipient is obliged to give to the Provider an agreed number of
copies of any publication based on the utilization of the accessed genetic resources.
This clause of the Model Agreement applies both to a public domain and to a
proprietary agreement. The clause is important from the point of view of scien-
tists: If they publish in academic journals, access to which is subject to a charge,
the clause will help scientists negotiate with publishers regarding their right to
release their publications for free.
Article 10: Scientific collaboration with the provider state
and capacity building
As part of the Micro B3 Project the Recipient agrees to collaborate with
scientists from the Provider State in the utilization activities based on
this agreement. Such involvement shall take the following forms:
______________________________________________________________12
(to be specified by negotiations)
1. Overview of the article
Article 10 introduces a non-monetary benefit to be shared by the Parties of the
agreement. It is a matter of negotiation between the Provider and the Recipient
to further specify details of collaboration.
2. Legal background
According to the Bonn Guidelines and the Nagoya Protocol the “cooperation and
contribution in scientific research and development programmes, particularly bio-
technological research activities” is one of the possible non-monetary benefits to
be shared that can be negotiated through mutually agreed terms.
Article 15.6 of the CBD states that “each contracting Party shall endeavour to
develop and carry out scientific research based on GR provided by other Contract-
ing Parties with the full participation of, and where possible in, such contracting
Parties.”
12 It should be noted that in the normal case of scientific collaboration the partners conclude a research
collaboration contract/project (however usually the research collaboration is more a project rather
than a contract, and it is not legally binding) in which the details of the collaboration are laid out.
The ABS agreement should not be overloaded with such details. It will be advisable that the Parties
to the ABS agreement make a reference to the research collaboration agreement/project.
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Micro B3 model agreement 355
Beyond foreseeing collaboration in a mutual relationship, the Parties to the
Nagoya Protocol are required, as a general commitment, to engage in collabora-
tion and cooperation in technical and scientific research and development pro-
grammes and to promote access to and transfer of technology to countries with
less-developed economies (Article 23 of the NP).
3. Explanation of the article in detail
Within the framework of capacity building, the Model Agreement foresees col-
laboration between the Recipient and scientists from the Provider State. Since
the collaboration is related to the utilization activities and given that the defini-
tion of utilization (see Article 2) includes research and development, Article 10
implies that the collaboration may extend to all the utilization activities.
The Parties have to indicate the actual level of involvement of the scientists of
the Provider State from the sampling activities to the analyzing phase. This is left
to the mutually agreed terms of the Model Agreement. However, given the shared
research ethos of the Micro B3 Project, it is expected to create the conditions for
a strong collaboration between scientists. Moreover, it is important to notice that
the Micro B3 Project offers limited possibilities to attend training courses and
summer schools on different relevant disciplines. This possibility could also be
mentioned in the “specifications” of the Article, if agreed by the Provider and the
Recipient.
Article 11: Benefit sharing in case of utilization
for proprietary purposes
11.1 The Recipient agrees to pay an up-front compensation of . . . (amount to
be specified) to the Provider, if the Recipient utilizes the accessed genetic
resources for proprietary purposes. The payment is due to the Provider
within . . . months (term to be specified) after consent on the kinds of
genetic resources to be utilized has been reached under Article 3.2. The
payment shall be transferred to the following account of the Provider:
___________________________________________________
(This clause is to be crossed out if not applicable)
11.2 If the Recipient utilizes the accessed genetic resources or uses the
associated knowledge for proprietary purposes according to Articles
4.3 and 4.4, he/she must fairly and equitably share with the Provider
any monetary benefit obtained.
11.3 The share shall be determined by further negotiations between the
Parties to this agreement.
11.4. (Alternatively to 11.3) The share shall be ___________ percent of the
revenue from sales of the product or process based on the accessed
genetic resources. It shall be paid on the basis of a financial report to
be sent to the Provider or an authority designated by the same at the
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356 Caroline von Kries et al.
end of any year of any revenue generation to the account designated
by the same.
___________________________________________________________
(Insert authority and account details if applicable)
11.5 If the Recipient utilizes the accessed genetic resources or utilizes the
associated genetic knowledge for proprietary purposes without being
entitled according to Articles 4.3 or 4.4, and therefore in breach of
the conditions of this agreement, he/she must share with the Provider
any monetary benefit obtained from such utilization or use. The share
shall be ___________ percent of the revenue from sales of the product
or process based on the accessed genetic resources. It shall be paid on
the basis of a financial report to be sent to the Provider or an authority
designated by the same in due time upon request by the same.
___________________________________________________________
(Insert authority and account details if applicable)
(This Article or single paragraphs of it are to be crossed out if not
applicable)
1. Overview of the article
Article 11 determines the sharing of monetary benefits in cases of proprietary
utilization of the accessed genetic resources. It covers those forms of proprietary
utilization that were agreed upon between the Parties, and also forms of propri-
etary utilization that were not agreed and undertaken in breach of Articles 4.3
and 4.4.
2. Legal background
Article 15.7 of the CBD requires the Parties to “take legislative, administrative, or
policy measures the goal of which is the fair and equitable sharing of benefits with
the Contracting Party providing genetic resources.” The determination of benefits
that are to be shared is left to the negotiation of mutually agreed terms (Arti-
cle 15.3). The CBD also foresees different types of benefits to be shared, among
which are commercial or other benefits derived from utilizing the genetic resources
(Article 15.7). The Nagoya Protocol (in its Article 5.4) expressly recognizes that
there may be both monetary and non-monetary benefits derived from the utiliza-
tion of genetic resources. The Protocol’s Annex contains an indicative list of mon-
etary and non-monetary benefits, taken from Annex II of the Bonn Guidelines.
3. Explanation of the article in detail
In cases of utilization of the accessed GR for proprietary purposes, the Recipient
has to fairly and equitably share any monetary benefit obtained with the Provider.
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Micro B3 model agreement 357
Article 11.1 foresees the possibility of an up-front payment. It is suggested that
such payment shall preferably not be agreed because at the negotiation stage of
the agreement, the economic value of the genetic resources is unknown. While
this clause may therefore be crossed out, it is compulsory to regulate an ex post
compensation. The Parties may either decide to determine a posteriori the share
of the benefits by further negotiation (11.3) or to determine a priori the share (in
percentage) of the revenue from the sales of the products or processes based on
the accessed GR (11.4). This clause thus establishes the possibility for an ex ante
compensatory liability scheme.
The Article goes further to impose on the Recipient the share of monetary
benefits in cases where proprietary utilization of the accessed GR has been
undertaken with no prior informed consent of the Provider (if this would be
required according to the Provider’s legislation), in breach of the agreement.
For such cases of breach the Parties are required to define a priori the percentage
of the share.
Article 12: Other laws to be respected
The Recipient shall ensure that the collection, storage, transfer, utilization, and
exportation of the genetic resources complies with all applicable laws of the
Provider State on the protection of human health and the environment, on
taxes, on customs and on any other concern.
1. Overview of the article
According to this provision, the Recipient is required to respect the domestic law
of the Provider State, especially the law on the protection of health and the envi-
ronment, on taxes and customs in the course of collecting, storing, transferring,
utilizing, and exporting the genetic resources, as long as the activity is carried out
in the sovereign realm of the Provider State.
2. Legal background
According to the international customary principle which says that a state has
sovereignty over its territory, the Recipient must in any case respect the legal
framework of the Provider State. Thus, the contractual clause is only of declara-
tory importance but it alerts the Recipient of this principle.
3. Explanation of the article in detail
The Article brings attention to the Recipient about the fact that in the course of
sampling, utilizing, and moving of the genetic resources it might be confronted
with certain domestic legal requirements protecting different public interests such
as human health, the environment, or fiscal concerns.
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358 Caroline von Kries et al.
Article 13: Duration of the agreement
The agreement is of unlimited duration, except for the obligations under Arti-
cles 8.2 and 10 which shall end on [date to be inserted; e.g. 2 years after the
termination of the Micro B3 Project]:
_____________________________________________________________
1. Overview of the article
The Article specifies the duration of the contract distinguishing between clauses
of unlimited and limited duration.
2. Legal background
The Article reflects requirements of general contract law. Any contract must
decide on its duration.
3. Explanation of the article in detail
Most of the provisions of the Model Agreement shall be of unlimited duration
because the utilization of the accessed genetic resources is of unlimited length.
Some of the provisions will however be exhausted after implementation, such as
the right to take specific samples under Article 3. Two clauses are limited in time
because they are connected to project activities within the Micro B3 framework,
i.e. Article 8.2 (Report on steps of utilization) and Article 10 (Scientific
collaboration).
In addition, the agreement may terminate under the conditions of Article 16
(termination by mutual agreement and by default). The Parties are required to
agree on a time limit for the obligations regulated in these two provisions. A pos-
sible time limit would be “two years after the termination of the Micro B3
Project.”
Article 14: Applicable law
14.1 The applicable law on any matters relating to the interpretation and
the application of the present agreement shall be:
____________________________________________________________
14.2 The competent court for dispute settlement shall be:
____________________________________________________________
1. Overview of the article
The provision requires the contracting Parties to choose the applicable law relat-
ing to the interpretation and application of the agreement and the place of juris-
diction for disputes arising directly or indirectly out of the agreement.
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Micro B3 model agreement 359
2. Legal background
The legal background of this Article is Article 18.1 (a), (b) NP. Mutually agreed
terms shall include a clause on the jurisdiction to which the Parties will subject
for dispute resolution and a clause on the applicable law. For the eventual
enforcement of contractual rights and obligations, the Parties shall thus agree in
this Article on the applicable law and the place of jurisdiction. This is no obliga-
tion, however. In the absence of an agreement, the question would be regulated
by international private law and international civil procedural law.
3. Explanation of the article in detail
In the Model Agreement, the Parties are free to determine if the law of the Pro-
vider State or the law of the State where the Recipient is based shall be applicable
to matters relating to the interpretation and application of the agreement. It is
recommended to make use of this choice as part of the negotiation of the mutually
agreed terms of the agreement. First, because if the Recipient is willing, for exam-
ple, to accept the Provider State as the place of jurisdiction, the Provider may
possibly partially renounce the benefits to be shared. Second, because regulation
by law (see above) and not by the Parties may be necessarily disadvantageous for
one of the Parties. Third, the Parties avoid disputes on the interpretation of rel-
evant provisions of international private law.
The place of jurisdiction does not necessarily have to be in the country of the appli-
cable law. However, it would ease proceedings if the judges at court can apply their
domestic law and are not constrained to engage in the apprehension of foreign law.
Article 15: Dispute settlement
15.1 No Party shall, in the event of a dispute arising from this agreement,
commence court proceedings (except proceedings for urgent interlocu-
tory relief) before searching for an amicable solution according to
paragraphs 2 and 3 of this Article.
15.2 A Party to this agreement claiming that a dispute has arisen under or
in relation to this agreement must provide the other Party with a writ-
ten notice specifying the nature of the dispute on receipt of which the
dispute resolution shall forthwith begin.
15.3 Any dispute arising from this agreement shall be resolved expeditiously
foremost by negotiation in good faith; failure to which the Parties shall
engage informal dispute resolution techniques, such as mediation and
arbitration or similar techniques, agreed upon by them.
1. Overview of the article
This provision addresses issues of dispute resolution. It strongly supports the idea
of finding amicable solutions. The dispute resolution process starts with the Party
claiming that a dispute has arisen and providing a written notice to the other
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360 Caroline von Kries et al.
Party. The dispute shall be solved by negotiation, and if negotiation fails the Par-
ties should apply informal dispute resolution techniques such as mediation and
arbitration. Court proceedings shall be the last means to the settlement of
disputes.
2. Legal background
This Article is inspired by Article 18.1 (c) of the NP. The Parties to the Protocol
shall include provisions in mutually agreed terms to cover “options for alternative
dispute resolution.”
3. Explanation of the article in detail
A dispute may be solved through a sequence of steps, indicating the degree of
involvement and engagement of a third party:
a) Written notice by the Party claiming to the other Party that a conflict arose
out of the agreement (formal requirement: the notice shall indicate the
nature of the conflict)
b) Resolution by alternative dispute settlement
aa) Resolution by negotiation (no third party involved)
bb) (if aa is not successful) Resolution by mediation (third party is a bridge
between the two parties and assists in the communication between the
Parties – more passive role)
cc) (if bb is not successful) Resolution by arbitration (third party reviews
the evidence in the case and imposes a decision that is legally binding
for both sides – both Parties must declare beforehand that they agree
to be bound by the decision)
c) (if b. is not successful) Jurisdictional proceedings
Article 16: Termination of the agreement
16.1 The agreement may be terminated at any time by mutual agreement in
writing.
16.2 The agreement may be terminated by default if the Recipient fails to
satisfy any of the following obligations under this agreement: Articles
4.2, 4.3, 4.4, 5.1, 5.2, 5.3, 6.1, 6.3, 7, 8, 9.1 and 9.3, 11.2 and 11.5.
16.3 In the case of default the Provider may immediately terminate this
agreement by giving written notice to the Recipient of the termination
provided that:
a) the Provider has given prior notice to the Recipient of the alleged
default; and
b) the Recipient fails to respond to the Provider within the period
specified by the notice (being not less than 20 business days and not
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Micro B3 model agreement 361
more than 60 business days) to rectify or explain to the satisfaction
of the Provider the reasons for the default.
16.4 If this agreement is terminated under paragraph 2 of this Article the
Recipient will not thereafter utilize or transfer the accessed genetic
resources or use or transfer associated genetic knowledge; and it will
transfer back to the Provider or destroy, at the Provider’s discretion,
all genetic resources or associated genetic knowledge. The operation of
this clause survives the termination of this agreement.
1. Overview of the article
Article 16 focuses on the forms and conditions of the termination of the agree-
ment before the mutual obligations have been fully implemented. There are two
possible forms of termination: termination by mutual agreement and termination
by default. In the first case (16.1), the Parties conclude a contract on the termina-
tion in which all the obligations that follow from the termination (handling of
the GR and the associated knowledge, terms) will be regulated. In the second
case the Recipient, in failing to satisfy one of his/her principal contractual obliga-
tions listed under 16.2, fulfils the conditions for the termination by default. In
consequence, the Provider has the right to terminate the contract unilaterally
under the formal conditions of 16.3. The Recipient must immediately stop fur-
ther utilization of the GR and use of the knowledge (16.4).
2. Legal background
The Article reflects requirements of general contract law. A contract must be clear
on its termination.
3. Explanation of the article in detail
Article 16.1 expresses the contractual freedom of the Parties to determine the
termination of the contract and the resulting obligations.
Article 16.2 lists the principal obligations of the Recipient the nonfulfillment
of which may lead to automatic termination under the formal conditions of 16.3.
The relevant obligations are:
Utilization for the public domain (4.2)
Utilization for proprietary purposes (4.3)
Change of intent (4.4)
Transfer of genetic resources (5.1)
Transfer of associated knowledge (5.2)
PIC before transfer (5.3)
Publication of associated knowledge (6.1)
Acknowledging the contribution of the Provider State (7)
Recording and Reporting (8)
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362 Caroline von Kries et al.
Sharing of knowledge for the public domain (9.1)
Sharing of knowledge for proprietary purposes (9.3)
Sharing of monetary benefits (11.2)
Sharing of monetary benefits in case of breach of Article 4.3 or 4.4 (11.5)
The Provider has to comply, in terminating the contract, with the formal condi-
tions under 16.3: It shall notify to the Recipient of the alleged default. Within an
agreed period, specified by the Parties, the Recipient may respond to the notice.
This reaction may allow for the possibility of finding an amicable solution as an
alternative to the termination of the contract. If the Recipient fails to respond
within the agreed period, the Provider may, without further delay, terminate the
agreement by giving written notice to the Recipient.
No penalty for the Recipient is prescribed for causing the termination of the
contract. However, the Recipient is bound by the prohibition to further utilize
and transfer the accessed GR or use and transfer the associated knowledge. Even-
tually, he/she is required to transfer back to the Provider or destroy, at the Pro-
vider’s discretion, the accessed GR.
6241-0881-P4-020.indd 362 4/9/2015 1:35:33 PM
... www.eccosite.org) and the model agreement adopted by the EU MICRO B3 Consortium for marine microbial research (von Kries et al., 2015). Second, the main motivational drivers of the research commons are related to norms and social networks, not to direct reciprocity. ...
Article
This paper aims to get a better understanding of the motivational and transaction cost features of building global scientific research commons, with a view to contributing to the debate on the design of appropriate policy measures under the recently adopted Nagoya Protocol. For this purpose, the paper analyses the results of a world-wide survey of managers and users of microbial culture collections, which focused on the role of social and internalized motivations, organizational networks and external incentives in promoting the public availability of upstream research assets. Overall, the study confirms the hypotheses of the social production model of information and shareable goods, but it also shows the need to complete this model. For the sharing of materials, the underlying collaborative economy in excess capacity plays a key role in addition to the social production, while for data, competitive pressures amongst scientists tend to play a bigger role.
... www.eccosite.org) and the model agreement adopted by the EU MICRO B3 Consortium for marine microbial research (von Kries et al., 2015). Second, the main motivational drivers of the research commons are related to norms and social networks, not to direct reciprocity. ...
Article
Full-text available
This paper aims to get a better understanding of the motivational and transaction cost features of building global scientific research commons, with a view to contributing to the debate on the design of appropriate policy measures under the recently adopted Nagoya Protocol. For this purpose, the paper analyses the results of a world-wide survey of managers and users of microbial culture collections, which focused on the role of social and internalized motivations, organizational networks and external incentives in promoting the public availability of upstream research assets. Overall, the study confirms the hypotheses of the social production model of information and shareable goods, but it also shows the need to complete this model. For the sharing of materials, the underlying collaborative economy in excess capacity plays a key role in addition to the social production, while for data, competitive pressures amongst scientists tend to play a bigger role.
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