Digital sequence information as a marine genetic resource under the proposed UNCLOS legally binding instrument

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The Convention on Biological Diversity and its supplementary agreement the Nagoya Protocol, the International Treaty for Plant Genetic Resources for Food and Agriculture and the Pandemic Influenza Preparedness Framework all establish schemes for access and benefit sharing (ABS) biological materials. A key contentious and unresolved question is how to deal with information like digital sequence information (DSI) – a placeholder term for genetic information about biological materials. The same issues are under consideration at the negotiation of an ABS scheme for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction in the international legally binding instrument under the Convention on the Law of the Sea . If DSI is to be addressed and included in this ABS scheme, then the essential choices available to negotiators are: (1) To consider DSI is already included within the current definitions of genetic resources; (2) Expressly include DSI within the definition of (marine) genetic resources; (3) Include DSI as a derivative of (marine) genetic resources; or (4) Seek alternative ways to compensate for DSI not being a resource. The article concludes that including information like DSI within the ABS transaction challenges the current practices of science research with detrimental consequences for the progress of open science, and that now would be a good time to reconsider alternative ways to deliver benefits.