Legal and economic perspectives on fair and equitable benefit sharing in the Nagoya Protocol.

Abstract

Adopted in 2010 as a supplementary agreement to the 1992 Convention on Biological Diversity, the Nagoya Protocol (NP) mandates the fair and equitable sharing of benefits arising from the use of genetic resources provided by Indigenous peoples. Member states must newly enact or amend domestic laws to align with the NP. Consequently, many countries are currently implementing legislative, administrative, and policy measures to ensure fair benefit sharing from the use of Indigenous genetic resources. We examined the inclusion of intellectual property (IP) protection in the sharing of benefits from research and development that utilizes Indigenous genetic resources. The NP does not specify guidelines for IP-related benefit sharing, leaving each member state to establish its own rules. We used an economics-based approach to explore the optimal scope and duration of IP protection for maximizing stakeholder interests, including those of Indigenous peoples, at the national level. The optimal duration of IP protection was when the marginal social cost and benefit of IP protection were equal. When this point occurred varied depending on various factors, such as the type of genetic resources in the country, existence of alternatives, number of users, and competing actors. The optimal scope of IP protection was when the social benefit of investment in fundamental research equaled the social benefit of application development. Likewise, this point of implementation also varied based on various factors, such as the type, uniqueness, potential for further discovery, and diversity of providers in the country.