Disentangling Rights to Genetic Resources Illustrated by Aquaculture and Forest Sectors

 

Morten Walløe Tvedt
Senior Research Fellow,
Fridtjof Nansen Institute (FNI),
P.O. Box 326,
1326 Lysaker, Norway
mwt@fni.no

 

 

 


 

This article explores perceptions of the object of different types of right in genetic resources law. Aquaculture and forestry are used as examples, being areas of GR law that have been studied intensively at the FNI in recent years. The thesis explored here is that there are differences among how these right systems have been set up, and that these differences are highly relevant for the respective success of these systems. ‘Ownership’ is understood as a right that is enforceable amongst private parties. Regulating and specifying ownership is one of several elements of exercising sovereign rights of countries under the Convention on Biological Diversity (CBD). The object for genetic resources contracts will be explored here. To what degree does the contract mechanism (Mutually Agreed Terms, MAT) of the Nagoya Protocol (NP) and the CBD capture or diverge from a substantial or functional understanding of the object of the right? Since a contract is binding only on the signatory parties, this mechanism allows for considerable flexibility. One basic element of such contractual discussion is that the subject matter is defined in the negotiation of the contract. There are institutional lessons to learn from details in the patent system, which it is argued here, are of value in the development of functional ABS systems.

 

ABS, contractual rights, functional rights, genetic resources, intellectual property rights, sovereign rights, substantive rights, theory of law.

 

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