Biodiversity and Intellectual Property Law : The Stake of a Theory of Reflexive Governance

1. Biodiversity and Intellectual Property Law : The Stake of a Theory of Reflexive Governance Tom Dedeurwaerdere Centre for Philosophy of Law www.cpdr.ucl.ac.be Research funded through Belgian Federal Government (IAPV) European Union (FP5-IHP-KA1-2001-1) National Foundation for Scientific Research, Belgium (FNRS)

2. Tom Dedeurwaerdere Biodiversity and Intellectual Property Law Background Results of the first FP5 seminar on Biodiversity (Berlin, 2003) • Insufficiency of the existing incentive mechanisms from a governance perspective • from the point of view of efficiency of the rule • does not adequately address the question of the option value of biodiversity • the focus on the extraction value even can undermine existing conservation efforts contributing to the option value • from the point of view of legitimacy of the rule • incapacity of the existing legal resources to combine different orders of legitimacy : cf. conflict between Intellectual Property Rights and Traditional Knowledge • recourse to means of bypassing the international regime • Proposition of a combined action on mechanisms of • collective learning in institutions • polycentric interaction between incentives addressed to a diversity of social values

3. Tom Dedeurwaerdere Biodiversity and Intellectual Property Law Introduction Focus of this contribution: critical evaluation of alternative mechanisms of regulationproposed in the ongoing negotiations on ABS • Current mechanism • Incentive for innovation through intellectual property rights for the users of the genetic resources in the plant breeders and pharmaceutical industry • Protection of the provider’s right through clauses of Prior Informed Consent and Access and Benefit Sharing in the contract • Hypothesis : Double innovation in the proposed measures   (reference : Institute of Advanced Studies of United Nations University, 2003) • Developing an action on the innovation potential of the whole production chain • Developing an action on the maximization of future options of development, beyond the question of allocation of existing resources.

4. Tom Dedeurwaerdere Biodiversity and Intellectual Property Law Objective of this contribution Evaluation of the new means of regulation from the point of view of a double criticism withingovernance theory attempting to overcome the division between the normative ambition of the new modes of regulation and their practical acceptance from the point of view of the users. • Contribution to the debate on the efficiency of the rule evolutionary criticism of law and economics • Contribution to the debate on the social legitimacy of the rule systemic sociology of law

5. Biodiversity and Intellectual Property Law Tom Dedeurwaerdere • The contrbution from the evolutionary criticism of law and economics Reference : Driesen, the economic dynamics of environmental law • static conception of efficiency : optimal allocation of existing resources under ideal conditions of perfect rationality • dynamic conception of efficiency : acquisition of new knowledge and new competences in order to maximize the future choices of development

6. Biodiversity and Intellectual Property Law Tom Dedeurwaerdere 1. 1. The sub-optimal character of investment in innovation • Autonomous dynamics of natural evolution of the genetic resources • Incremental character of the decision process 1. 2. The reaction of the law From a simple adaptation within the existing static conception • shortening the patents • multiplication of specific regimes for each sector of activity To a dynamic conception • liability rules (Reichman) • conservation funds (Swanson)

7. Biodiversity and Intellectual Property Law Tom Dedeurwaerdere

8. 1 4 0 0 1 2 0 0 1 0 0 0 8 0 0 6 0 0 4 0 0 2 0 0 0 O b s e r v e d L i n e a r - 2 0 0 0 1 0 2 0 3 0 Biodiversity and Intellectual Property Law Tom Dedeurwaerdere Susceptibility of Wheat Varieties as a Function of Usetime AUD Years Years 10 20 30 Source: Singh and Rajaram 1991

9. Biodiversity and Intellectual Property Law Tom Dedeurwaerdere • The contribution of the systemic sociology of law Double condition for the effective implementation of the new proposed means of regulation (Gunther Teubner) : → 1. the adjustment of the legal system in reaction to its effect on different socio-economic systems → 2. effective implementation will depend on the cooperative interaction between the plurality of soci-economic subsystems Condition 1 : Reflexivity of the legal system : • ethical codes of conduct • MOSAIC : Microorganism Sustainable Use and Access Regulation • Royal Kew Gardens London • Glaxo Welcome, Novo Nordisk, Xenova, Shaman Pharma, Bristo-Myers Squibb • voluntary mechanisms of benefit sharing

10. Biodiversity and Intellectual Property Law Tom Dedeurwaerdere Condition 2 : Reflexivity on the conditions of cooperative interaction : regulation of self-regulated activities • International system for the monitoring of the flow of genetic resources • Harmonisation of procedures of prior informed consent and mutually agreed terms • Global Bio-Collection Society • Monitor the compliance with the objectives of the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources • Incentives : • Reduction of transaction costs for the industry • Balance the asymmetry in the parties’ legal resources for the local communities

11. Biodiversity and Intellectual Property Law Tom Dedeurwaerdere Recapitulation of the evaluation of the proposed measures • Step A: allowing for new strategies for regulation in a dynamic conception • Step B: considering reflexivity of the legal system with regard to the problems of collective action created by the new tools Remaining problem : emergence / enabling of the reflexive capacities • Step C : intermediary organisations allowing to articulate A and B • Ex. : critical evaluation of the new institutions from the point of view of a broad set of actors involved in the new strategies for regulation Example : democratic bargaining in dialogic webs (Drahos)