The property regime of biodiversity and traditional knowledge : institutions for conservation and innovation
(2006)
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- In view of the utility and the erosion of biodiversity and traditional knowledge, the new property regime initiated by the Convention on Biological Diversity aims at conserving and providing access to these inputs of innovation so as to ensure innovation in bio-industries for today and tomorrow. The objectives of this dissertation are: (i) the identification and description of the solutions that have been tested or discussed; (ii) an assessment of whether these solutions fulfill (or are likely to fulfill) the objectives and an identification of their limits (iii) an explanation of the causes of these limits, (iv) and suggestions for possible solutions. To fulfill these objectives, I adopted a comparative and theoretical approach and I examined whether the discussions on genetic resources and traditional knowledge were examples of broader phenomena that have already been observed and theorized. Because the solution considered by the Convention on Biological Diversity consists of granting exclusive rights as an incentive to conserve pieces of useful information (biodiversity and traditional knowledge), I turned to the branch of law that typically regulates the production and use of knowledge, i.e. intellectual property law. Accordingly, in the first part of this dissertation, I use the work of a group of law and economics scholars to reconstruct an historical account of the evolution of the intellectual property system and the evolution of its underlying economic theories. The function of the first part is twofold. First, it provides me with a theoretical framework to look at genetic resources and traditional knowledge issues. Second, it highlights important analogies between the evolution of the system of intellectual property, the property regime of genetic resources and the discussions on traditional knowledge; the three parts of the dissertation are written like three parallel histories. Very schematically, this comparative and theoretical approach highlights the following common issues, common engines of change, and common institutional solutions. The first common issue concerns the provision of public goods. Because knowledge is a public good, the market alone will not provide sufficient quantities of it. The difficulty comes from two characteristics of public goods "non exclusiveness and non-rivalry" that call for contradictory measures. Non-exclusiveness calls for the creation of an exclusionary mechanism to internalize the benefits of the provision of public goods, whereas non-rivalry suggests that knowledge should be freely available. These contradictory characteristics create the knowledge dilemma that is often resolved by a two-part balance. The first part of the balance consists of identifying the best mix of two solutions to produce knowledge: the creation of temporary exclusive rights to knowledge or public financing of knowledge production. Knowledge production can be seen as an innovation chain. Classically, public provision is used for the first stages of the chain, the upstream part; while IPRs are used for the last stages of the chain, the downstream part. The second part of the balance concerns the definition of intellectual property rights: the conditions for protection must identify intellectual achievement for which the benefits of the incentive effect produced by IPRs will exceed the costs (society is prevented from practicing the invention and using it as an input to future discoveries without permission from the inventor). However, this two-part balance is provisional and could be disrupted by a series of changes. Changes are partly due to the evolution of the technological context that modifies the costs and benefits of creating and enforcing property rights. They may also come from amendments within the innovation and conservation policies. Those changes may elicit new issues both for economic agent and scholars. A second issue common to the three parts becomes as important as the provision of public goods: the need to coordinate exchanges of knowledge and property rights. The first solution for the coordination of knowledge and IPRs exchanges consists of relying on the market. However, due to important transaction costs, it quickly becomes clear that the market alone may not always ensure an efficient coordination of knowledge and IPR exchanges. One possible solution is to resort to government intervention to overcome transaction failure. This possibility can be examined in light of the entitlement theory initiated by Calabresi and Melamed. Another solution, in certain circumstances, involves economic agents setting up institutional arrangements that reduce transactions costs and facilitate exchanges; a careful observation reveals the presence of a multitude of scenarios involving self-regulation that are articulated with the formal legal system. These self-regulatory experiences can be examined in light of new institutional economics . Hopefully, this dissertation offers a valuable contribution to the discussions on biodiversity and traditional knowledge. The primary and general contribution is to offer some clarity to an oft confused topic. A secondary contribution is to provide some guidance to the ongoing discussions. Regarding the definition of property rights, especially on traditional knowledge, this dissertation suggests a reasoning to design well-defined property rights. It suggests a detailed solution for at least a part of TK (ethnobotanical knowledge), and supports TK holders that are undertaking valuable experiences by setting up databases to protect traditional knowledge. This dissertation highlights the growing importance of a major issue: the coordination of exchanges of knowledge and the role of transaction costs in intellectual property regimes in general and in particular in the property regimes of genetic resources and traditional knowledge. In a context of collective and cumulative innovation, one has to consider not only the relationship between the producer and the consumer, but also the relationship between the producer and its competitor, and the relationship between owners of complementary pieces of knowledge that must be combined to develop a final product. Highlighting this new issue helps to examine the role of the state (law) in the reduction of transaction costs either by designing the most efficient property right or by solving individual transaction failures by ad hoc intervention (compulsory licenses). Above all, it helps to capture the importance of forms of self-regulation through which economic agents might modify their rights in order to adapt to the specificities of their technological context. These self-regulatory mechanisms may reduce transaction costs as between the parties, and create new forms of property regimes, aside from the usual opposition between the public domain and individual private property. I believe that if participants and observers of the discussions on genetic resources and traditional knowledge were more aware of this new issue, they would consider more effective solutions. In addition, they would take note of practical experiences in which economic agents try to create or adapt property regimes tailored to the characteristics of their activities. These practical experiences are worth looking at for three reasons. First, practical experiences can be valuable sources of inspiration for international law makers. Second, if international negotiators want to anticipate the future effects of the regime they are negotiating, they should be aware of how economic agents are likely to modify the rights they are granted. Third, efficient solutions to foster the conservation, use and exchange of genetic resources and traditional knowledge are likely to be situations that articulate law and forms of self-regulation. This dissertation also calls for future work. Intellectual property scholarship has made important progress in relaxing its legal or state-centric view of appropriability and its illusionary belief in the efficiency of the only market-like form of decentralization. Further, Intellectual property scholarship has made progress in observing that self-regulation may make an important contribution to defining property regimes and regulating exchanges of knowledge. This work should be continued by further integrating lessons of the literature on self-regulation and "co-regulation" into intellectual property scholarship, and simultaneously documenting emerging experiences in the field of intellectual property, genetic resources and/or traditional knowledge.
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Brahy, N. (2006). The property regime of biodiversity and traditional knowledge : institutions for conservation and innovation. https://hdl.handle.net/2078.5/79545