1999 MOSAICC 2001 CBD BONN GUIDELINES compared to 2001 CBD BONN GUIDELINES Philippe Desmeth BCCM international cooperation officer Belgian Coordinated Collections of Micro-organisms

Bonn Guidelines on ABS / top down process 31 October 2001 publication of “Draft Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization” UNEP/CBD/COP/6/6. Remarkable convergence of top down and bottom up processes Bottom up approach finalised well before top down results Both in favour of the development of MTA CBD, Rio de Janeiro, 5 June 92 As of March 2002, ratified by 185 States Legally binding international agreement but because it is worded very generally it loses its binding nature. For instance, phrasing such as «as far as possible and as appropriate» (CBD Art.5 & 7 to 11), «as appropriate» (CBD Art.13 b) or «if necessary» (CBD Art.12), while it gives a large decision autonomy to each party, does not help the parties in having converging national policies. Art. 15.1: sovereign rights of States over their natural resources (authority to determine access to genetic resources) Art. 15.2: states must facilitate access to genetic resources Art. 15.7: fair and equitable sharing of scientific and commercial benefits. Such sharing shall be upon mutually agreed terms. Art. 8(j): equitable sharing of the benefits arising from the utilization of [traditional] knowledge, innovations and practices [with indigenous and local communities ] Uruguay Round Final Act 153 members on November 2008. Agreement having impact on transfer and use Annex 1A Multilateral Agreements on Trade and Goods Annex 1C Trade-related Aspects of Intellectual Property Rights (TRIPS agreement) (Marrakech, 15 April 94). Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure Budapest, 28 April 77 modified 1980. As of April 15, 2008, 68 States and 3 intergovernmental bodies Remark : There is convergence between CBD, WIPO and OECD approaches WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore proposes : to draw guidelines for contractual practices including model IPR clauses in MTA to set up non binding legal provisions OECD suggest the compulsory use of Material Transfer Agreements with appropriate IPR provisions MOSAICC / bottom up process Stands for «Micro-Organisms Sustainable use and Access regulation International Code of Conduct » Since 1999, at http://www.belspo.be/bccm/mosaicc

Relationship with other int’l regimes Objectives To provide Parties and stakeholders with a transparent framework to facilitate access to genetic resources and ensure fair and equitable sharing of benefits; MOSAICC purposes: to facilitate access to microbial genetic resources (MGR) and to help partners to make appropriate agreements when transferring MGR. Key features The guidelines are voluntary MOSAICC is a voluntary code of conduct Key features These guidelines may serve as inputs when developing and drafting [ …] contracts and other arrangements under mutually agreed terms for access and benefit-sharing. The guidelines are voluntary and were prepared with a view to ensuring their:voluntary nature, ease of use, practicality, acceptability, complementarity, evolutionary approach, flexibility. MOSAICC purposes: to facilitate access to MGR and to help partners to make appropriate agreements when transferring MGR. MOSAICC is a way to translate the principles of the Convention on Biological Diversity (CBD) into practical procedures for transferring microbial genetic resources (MGR) […] Relationship with other int’l regimes The guidelines should be applied in a manner that is coherent and mutually supportive of the work of relevant international agreements and institutions. […] MOSAICC is a way to translate the principles of the CBD into practical procedures for transferring MGR; taking into account the TRIPS agreement and the Budapest Treaty.

Prior Informed Consent Prior informed consent for access to in situ genetic resources shall be obtained from the Contracting Party providing such resources, through its competent national authority(ies),... MOSAICC Prior Informed Consent procedure for in situ sampling: apply to competent authority for authorization. Material Transfer Agreement The following principles or basic requirements could be considered for the development of mutually agreed terms: […] developing standardized material transfer agreements. MOSAICC operating principles: […]: b) transfer of MGR occurs under Material Transfer Agreement the terms of which are defined by both recipient and provider. Suggested elements for MTA: “type of genetic resources”, commercial use or not, “mechanisms of benefit-sharing”, “monetary and non-monetary benefits”, ... MTA contents check list: Basic terms: description of MGR Use specific terms: commercial or non commercial use Benefit-sharing terms: monetary and non-monetary

Belgian Coordinated Collections of Micro-organisms From MOSAICC to MTA at the Belgian Coordinated Collections of Micro-organisms

Characteristics of BCCM MTA http://bccm.belspo.be/services/bccm_mta.php Neither the first nor the only MTA Combine CBD, TRIPS and other relevant international conventions Objectives: To enable tracking* of microbial resources and allow benefit sharing To preserve intellectual property rights of inventors To guarantee quality of microbial resources and related information To protect culture collections by limiting their liability First MTA, from 2004 to 2007 - Second MTA, since 2007 Main change between 1st and 2nd version: no difference made between commercial and not for profit purposes * For tracking solutions see Integrated Conveyance System report at http://bccm.belspo.be/projects/mosaics/reports/index.php