Governing International Commons: Sharing genetic and other scientific and knowledge resources Global Governance Program, European University Institute,

Governing International Commons:Sharing genetic and other scientific

and knowledge resources

Global Governance Program, European University Institute, Firenze, 16th-19th November 2011

Tom DedeurwaerdereUniversité catholique de Louvain

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Global commons caught between intellectual property, open access and

pooling of shared resources

Introduction

Economic opportunities from shared use and conservation of genetic resources

Global seed exchange network (source : Byerlee et al., 2010)

Improvement of traditional races (source: Label rouge)

Microbial Biocontrol (Source : M. Höfte)

Source : slide from Tine De Moor, presentation Utrecht Studium Generale, 16th of May 2011,

The way we think about commons is rapidly evolving

Common property (pre-1990)

Common-pool resources (1990+)

Commons (2000+)

(reference : slide from Charlotte Hess, NAS symposium, 9 october 2009, also the previous slide on the new commons)

• Definition of Commons in « Knowledge as a Commons » (MIT Press, Hess and Ostrom, eds.) :

< any resource that is shared by a discrete group of people at any level, whether local or global

Introducing the research question

• Research question : how to create a better fit between the formal institutional arrangements (law, contracts and policies) and the normative practices and needs of genetic resources commons ?– Examples of « crowding out » of productive norms and

practices by focus on monetary values alone : • national ABS rules’ impact on bioprospecting

• anticommons effects of patents, …

Part 1. Economics of governing genetic resource commons

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1. Genetic-resources : the last frontier of the global commons

No Belgian beer without the commons

No Friesian horses without the commons

How to deal the wealth of genetic resources with unknown or unlikely commercial potential but

high research and high environmental pay-offs ?

Global common pools of genetic-resources as an alternative to green gold

Microbial commons

Animal breed societies

Common pool of plant genetic resources

Overview

First case study : governing rare breed / small herdbook societies as a commons

Second case study : governing microbial commons

Third case study : governing the global crop commons

Case study on animal rare breed / small herdbook societies

What kind of commons are the breeding societies ?

The animals are owned by the farmers

The genetic resources are managed collectively by the members of the breeding society

Measures for facilitated access to genetic resources within the pool

How to govern the breeding societies ?

Question 1 : how to prevent the disappearance of the breed ?

Question 2 : How to use traditional breeds for globally

sustainable agriculture ?

Use and improvement of Indian Zebu in Brasil

Maximum rent or

Sustainable development ?

How to Govern the common breeding pools ?

• Limits on genetic exchange with the livestock kept by other social groups

• Collective breeding goals : not on the « optimal productive » animal, but a an optimal herd composed of different lineagages (adaptive value, and not just productive value)

Case study on microbial commons

What kind of commons is the microbial commons ?

A commons of natural resources

The gene banks do not own the resources : materials held in trust for the humankind

Well established boundaries around the common pool : only certified materials for research and identification services

Green gold or

Research commons ?

How to Govern the microbial commons ?

Question 1 : supporting the market or the research value ?

99 % of the materials : used in the scientific research commons

1 % of the microbial materials : potential blockbuster commercial application

Question 2 : How to promote informal exchange networks ?

Distribution forms

Accession form

Accession form

Accession form

Case study on the global crop commons

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Source : Byerlee and Dubin, International Journal of the Commons, 2010

Global seed exchange network (source : Byerlee et al., 2010)

2. Theory of mixed motivations in social production systems

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Reference (for the 2 following slides) : Stephan Meier. 2006. The economics of non-selfish behaviour. Edward Elgar.

Empirical data on voluntary contributions to social funds

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Decision situation : On paying the compulsory tuition fee, students at university of Zurich are asked every year if they wish to contribute to a social fund (offering low-interest loans to students in financial difficulties) and/or a foreigner fund (support for foreigners).

Results : •Between 1998-2002, on average > 69% of the students contributed to at least one fund, > 62% to both funds.

•Over the years, students either always contribute or never contribute.

•> 75% does not tell friends whether they contributed or not.37

Framing effect : change in way of asking in 1998 (asking explicitly to contribute, and offer choice) lead to an increase in people contributing to both funds from 44% to 62 %

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Group identification effect : upon first registration before attending the University 73% contributes at least to one fund, after increases to 76% in the second semester, drops to 61% in the last semester, compared to 63% in the next to last and 64% in the semester before that.

Conditional cooperation effect : people presented with information of others being cooperative (by giving the % of contributors) are more likely to contribute, at least if they are in the category of people “doubting” to contribute

Motivational crowding out effect : monetary incentives decreasing the level of provision of public goods (example of blood donation, choice of pollution sites)

Cheap talk / face to face communication sometimes more effective than imposing a fine

Interactions between intrinsic / social motivationsand monetary incentives

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Common pool resources (Ostrom)< social norms of reciprocity and trust, social sanctions

Pooling of exclusive assets (Allarkhaia)< direct reciprocity benefits

Voluntary contribution (Benkler)< reputational benefits

Voluntary coordination for governing exclusive assets (Sabel)< overcoming information asymmetries, social learning

Models of mixed motivations in local and global collective action

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3. Analysing the Genetic-resource commons

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Successful governance of genetic-resource commons has to combine design rules of natural resource commons (Ostrom) and digital resource

commons (Benkler)

Research hypothesis for the genetic-resource commons

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  Microbial genetic resources

Plant genetic resources Animal genetic resources

Biophysical properties High genetic variation within a species and high mutation rates 

Well defined varieties andhigh degree of genetic stability 

Relatively well defined breeds

Characteristics of the user groups

Type of users Mix of public and private Mostly public sector Mostly private sector

Main non-market motivations

Contribution to scientific research ethosConservation of biodiversity

Food securityContribution to training and research

Animal healthConservation of genetic variety

Features of the Governance arrangements

Governing bodies Global and regional federations

Secretariat of international treaty

National and local breeding organisations

Organization of distributed collaboration

Shared resources amongst a distributed network of microbial collections

Shared resources amongst plant breeders, centralized collections for key species

Shared resources amongst farmers of a same breed

Forms of exchange Mix of formal and informal

Mainly formal Mix of formal and informal

Main challenges to the commons-based exchange

Restrictive license policies in high commercial value collections

Broad patents on plant genetic resources

Vertical integration of breeding operations in transnational companies

Reference (for the 2 following slides) : Benkler, 2006. The Wealth of Networks. Yale University Press.

4. Other social production strategies of knowledge commons

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Non-exclusive market strategies

•Sharing in house : sharing research results and know-how in a firm

< incentive : improvement of the quality of the delivered goods

•Sharing with similar organisations : firms where engineers and scientists from different firms attend professional societies, joined information gathering by newspapers.

< incentive : making money from early access to information (lead time) •Sharing publicly : bands giving music for free as advertisement for touring (living from performances), open source software developers living from customizing it to particular clients

< incentive : attracting clients45

Non-exclusive non-market strategies

•Sharing in house : sharing research results and know-how in a laboratory

< incentive : improvement of the quality of the delivered scientific outputs, to attract more government funding for the laboratory

•Sharing with similar organisations : early release of a paper to colleagues for comments.

< incentive : improving the knowledge•Sharing publicly : give away information for free, give away innovations with high social value

< incentive : reputation, status, intrinsic motivations

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Part 2. Regulation of the global commons (formal and informal rules)

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1. The historical impetus of open source software licenses

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Selected IBM revenues 2000-2003

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Source : Benkler, 2006. The Wealth of Networks. Yale University Press.

2. The need of legal hybrids for governing the genetic resource commons

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Open Source licenses in software are based on copyright.The proposed open source models in biotechnology are based on patents (Cambia, Humanitarian use licenses);

However : innovation in the genetic resource commons is too specific to be protected under copyrights (specific technological purpose) but too incremental to be protected under patents (based on cumulative incremental innovation, no major research leap forward).

Therefore need of “legal hybrids” : building innovative license strategies combining both common use principles (so less then patents) and economic incentives for contributing to the shared pools (more than copyrights).

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VIRAL/STANDARD LICENSE IN THE POOL : a genetic resource can be shared amongst all the members of the pool under similar quality management procedures and under the same open access license conditions

EX-POST COMPENSATORY LIABILITY OUTSIDE THE POOL : if a recipient wants to use the resource in a commercial application, he has to pay a fixed compensation to the system (compensation which can go totally or in part to the original depositor of the resource or to a global trust fund for example)

•Major advantage : no commercial/non-commercial use distinction and incentive to contribute to the pool•Major constraint : need of a tracking of the use of the resource (which might be done through the viral license or a digital database)

Existing contractual tools for building the microbial science commons

3. Empirical evidence on the use and impact of common use licensing

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Reference (for the 6 following slides) : Wesley M. Cohen and John P. Walsh. Access – or not – in academic biomedical research. In R. C. Dreyfuss, H. First, D. L. Zimmerman. Working within the Boundaries of Intellectual Property. 2010.

Empirical data on the Science Commons in Biomedical research

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20% of human genes have at least one patent associated with them, and many have multiple patents.

Only 1% of academic researchers report having to delay a project, and non abandoned a project due to others’ patents

Only 5% of the academic scientists surveyed regularly check for relevant patents.

Suggests unlicensed used of patented technologies. However, as reputation is important for industry, aggressive enforcement of patent rights may undermine the goodwill that is essential to others’ future cooperation.

Use of patents to deny access to published findings

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7% of academic biomedical researchers acknowledged that, in order to protect the commercial value of an invention or discovery, they delayed publication of their research results for more than one month at least once in the last two years

4 % reported that they, at least once, decided not to publish a result in order to protect the commercial value of their findings.

Use of secrecy to withold unpublished findings

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As reported by those making requests, 19% of recent requests were not fulfilled

8% projects delayed due to inability to get timely access to research materials

28% of all geneticists reported they had difficulty replicating published results and 24% had their own publication significantly delayed

1/9 had to abandon a project each year due to an unfulfilled request for materials or information

Restricting access through control over materials

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Industry funding is consistently associated with delayed publication.

Greater scientific competition (number of labs competing for publication priority) associated with lower probability for providing access.

Idem : for a prior history of commercial activity

Being asked to sign an MTA : associated with a greater likelihood of receiving the material or information.

Reasons for restricted access

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Strength of the sharing practice: average academic researcher in the biomedical field is making 3 or 4 requests per year, about 80% of which are fulfilled.

< impressive : knowing that compliance involves costs (for example for copying materials) and the risk of losing competitive advantage

< academics might benefit from such sharing, or community norms regarding disclosure or data sharing might play a role (however not considered yet in broad empirical studies)

However, studies in physics, mathematics and experimental biology show that secrecy has increased from the 1960s to the 1990s, along with concern over scientific competition.

Summary of the findings

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Possible role of government, science funding bodies and journals’ policies

< however often with limited enforcement< can have some impact, but this impact will depend on the balance between incentive effects from

appropriability on the one hand and from knowledge exchange on the other

Institutionally mediated exchanges might also favour the sharing practice of materials, data and research results

< for example the building of shared repositories of high quality materials

Some implications

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Case study of common use licenses in the microbial commons

Low impact of contractual formalisation on sharing practices

Need of viral license approach

Survey amongst 119 public culture collections

Academic and hospital researchcollections

Own collecting effort

From other public culture collections

None of these categories (for example dying industry collections)

To academia research collections

To other public culture collections

To private sector

None of these categories (to hospitals and for teaching mainly)

30%

45%

20%

5%

58%

23%

10%

9%

Total number of new accessions in 2005 in the 119 public culture collections : approximately 10.000

Total number of strains delivered in 2005 by the 119 public culture collections : approximately 120.000

Part 3. Analyzing the commons (epistemological limitations and importance of context)

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Epistemological limitations

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The strong intellectual property paradigm does not fit to all the intended application contexts of the plant improvement cycle.

Semantic limitations of legal models

Strong IP paradigm (post-1992 UPOV protection and weak patentability requirements)

Fields of application of the paradigm

Conformity with the expected effects on innovation

Transgenics Controlled hybridization

Mass selectionMolecular biology research tools (molecular markers, genomic databases)

Area of best fit Partial paradigm breakdown Systematic breakdown• Patent tickets

• Far from innovation frontier• Upstream research

• Major steps• Market development • for in situ

agrobiodi-versity

No best choice between the 2 legal paradigms based on scientific/empiric criteria alone

Pragmatist limitations of the legal models

Strong IP paradigm (post-1992 UPOV protection and weak patentability requirements)

Fields of application of the paradigm

Conformity with the expected effects on innovation

Transgenics Controlled hybridization

Mass selectionMolecular biology research tools (molecular markers, genomic databases)

Area of best fit Partial paradigm breakdown

Partially open innovation systems (breeders’ excemption and strong patentability requirements, sui generis regime for landraces)

Area of best fit

No best choice between the various governance paradigms based on scientific/empiric criteria alone

Semantic and pragmatist limitations of the governance models

Existing commons based MODELS

Pool (Allarkhaia)

MTA Clearing House (Sabel)

Reconstructed Commons (Benkler/Ostrom)

Open Access (Benkler)

Based on private ownership

yes yes yes No (example pre-CBD situation)

Set up agreement yes no no No

Administering entity

no Yes yes No

Effect Exchange within pool

Transparency

Sharing (in the commons), Liability (outside the commons)

Common heritage

Evaluation / contextual limitations

Full use restricted to members only

Competiton for more open license conditions, but no viral licence

Reconstructs a global public domain

Only applies outside national sovereignity

Post-normal science

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Example of frame conflicts in global genetic resource governance

Breeders’ rights (private sector) Farmers’ rights (local

communities)

Quinoa producing communities of the Southern Bolivian Altiplano, source Damiana Astudillo-Eterno

The Yecoro wheat (right) cultivar, sensitive to salinity, source : US agricultural research Service

Participatory research in the global genetic resource commons : from Breeding high yielding

varieties to sustaining livelihoods

Example of Bioversity International :* International non-profit research organization* Role of broker between user communities and international organizations* Building research capacity on needs of user communities (set of questions on livelihoods not addressed systematically in peer reviewed literature)

Global seed exchange network (source : Byerlee et al., 2010)

Improvement of traditional races (source: Label rouge) Microbial Biocontrol

(Source : M. Höfte)

Genetic resource commons : in between the digital resource commons (Benkler) and the common pools of natural resources (Ostrom)

4. Concluding comments

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However the governance principles and legal models of the genetic resource commons also potentially of relevance for other local and global commons :•Cultural commons•Scientific research infrastructures•Digital repositories of publications and pre-publication data

Some future activities

1st Global Thematic IASC conference on the knowledge commons

 •“Governing Pooled Knowledge Resources in a

World of Rapid Social and Technological Change. Building Institutions for Sustainable

Scientific, Cultural and Genetic Resource Commons”

•12-14th September 2012, Louvain-la-Neuve, Belgium

• Thank you for you attention …

Some References• Designing the Microbial Research Commons, Jerome Reichman, Tom Dedeurwaerdere,

Paul Uhlir, manuscript on file with the authors• Tom Dedeurwaerdere, Maria Iglesias, Sabine Weiland, Michael Halewood, Use and

Exchange of Microbial Genetic Resources Relevant for Food and Agriculture, Report (under review at the Commission on Genetic Ressources)

• Per Stromberg, Tom Dedeurwaerdere, Unai Pascual, The Contribution of Public Networks to Knowledge Accumulation (under review at Research Policy)

• www.microbialcommons.org ; june 2008 conference proceedings (special issue forthcoming in the International Journal of the commons, January 2010)

• Robert Cook-Deegan et Tom Dedeurwaerdere, “The Science Commons in Life Science Research: Structure, Function and Value of Access to Genetic Diversity”, dans International Social Science Journal, vol.188, 2006, pp.299-318.

• Peter Dawyndt, Tom Dedeurwaerdere et J. Swings, “Explorating and exploiting microbiological commons: contributions of bioinformatics and intellectual property rights in sharing biological information. Introduction to the special issue on the microbiological commons”, dans International Social Science Journal, vol.188, 2006, pp.249-258.

• Tom Dedeurwaerdere, “The institutional Economics of sharing Biological Information”, dans International Social Science Journal, vol.188, automne 2006, pp.351-368.

Acknowledgements

• Participants to the expert workshops of 18-19 Feb 2009 et 25-26 March 2009

• Researchers of IAUP V/23, IAUP VI-06, REFGOV : Per Stromberg, Maria-Jose Iglesias, Sabine Weiland

• Co-authors of the FAO report : Maria-Jose Iglesias, Michael Halewood and Sabine Weiland

• Co-authors on the microbial commons project : Jerry Reichman, Paul Uhlir

• Credit for the slides (for the illustrations) :Ahmed Amri, Nina Chanishvili, Nelson Lima, Annick Wilmotte

Credits for the illustrations (under creative commons license CC BY-NC-ND 2.0 unless otherwise specified)

• http://www.flickr.com/photos/platform3/3823892608/sizes/o/in/photostream/ • http://www.flickr.com/photos/sheyne/282358087/sizes/m/in/photostream/ • http://www.flickr.com/photos/schubi74/4000339895/ • http://www.flickr.com/photos/doubleray/3225036640/sizes/o/in/photostream/ (S15)

This power point presentation is licensed under a creative commons attribution only, non-commercial use, license (derivative works allowed), license CC BY-NC 2.0

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