Using Licensing Contracts to Protect Holders of Traditional Knowledge Related to Genetic Resources: A Reflection on ICBG Projects

Abstract

During recent decades, role of traditional knowledge (TK) in biotechnology development has become increasingly important. The benefits resulting from TK exploration can be tremendous. Due its significant economic and healthcare contribution society, owners of TK (local and indigenous communities) should be sufficiently compensated for use of their knowledge and their rights on TK should also be properly protected. Contracts are considered be one of major means ensure fair benefit-sharing based on mutually agreed terms between TK users and holders. Contractual agreements are not novel in transactions involving access genetic resources and benefit sharing. The most famous and earliest case was Merc-INBio agreement. TK has always been only part of such agreements - usually mentioned under prior informed consent - or else it has simply been omitted. Indigenous peoples (or their representatives) have seldom become a party such contracts. Still, history of TK exploration revealed several more or less successful cases, where TK holders acted as rightful parties associated transfer of genetic resources. The International Cooperative Biodiversity Group (ICBG) Program was established in 1992 by National Institute of Health (NIH), National Science Foundation (NSF) and U.S. Agency for International Development (later replaced by Department of Agriculture (USDA)) run multidisciplinary projects addressing drug devlopment, biodiversity conservatio and economic growth. More than a dozen projects in 18 countries in Aisa, Africa and Latin America have been supported under Program. Seven International Cooperative Biodiversity Groups (awards) are currently being financed. The source of funding in ICBG projects can be from both public and private sectors. Another essential goal of Porgrams is to develop models for sustainable and equitable commercial use of biodiversity-rich ecosystems. According collaboration agreement, bioprospectors obtain access biological material (including genetic resources) and are required share benefits derived from use of these resources and associated TK with biosuppliers and TK holders. A critical point of ICBG Program is the development of ethically sound partnerships among diverse collaboration agreement is verified comply with principles of prior informed consent (PIC), access and benefir-sharing (ABS) and a number of intellectual property rights issues. Each project under ICBG is a kind of bridge or a collaborating forum that brings together interested parties for formulation of an agreement and provides a mechanism for negotiations. The ICBG Program ensres a relatively integrated and successful international licensing scheme of collaboration between indigenous communities, research institutions and private entities (U.S., international or multinational), which assists development of creative potential solutions for anti-biopiracy and efficient exploitation and sustainable use of biological resources and associated TK. An ICBG project usually involves a multinational pharmaceutical coporation, a nongovernmental organization, a reseach university and collaborating partners from source country (research institute, indigenous communities or their representatives). ICBG projects are characterized by direct involvement of TK holders, or their legal representatives in contractual agreement as rightful parties. Prior infromed consent and associated measures are a mandatory part of all ICBG projects. Nevertheless, this article points out difficulties TK holders and their representative may envounter and how they can overcome limitations in a contractual arrangement, such as an imbalance of bargaining power and difficulties in enforcement. In following section, we will address general structure and main features of ICBG progects. In second part of this article, we will discuss three contractual agreements of ICBG projects, including Peru-ICBG, Maya-ICBG and UIC-Vietnam-Laos-ICBG, and address their mechanisms of TK protection. In third part, we will summarize thes three programs. In fourth part, we will discuss advantages and flaws of contractual arrangement with regard TK protection. Finally, we will present our suggestions and solutions.