Digital Sequence Information and the Nagoya Protocol

ICC is very concerned about the current international discussions proposing to expand the scope of the CBD and the Protocol to include digital sequence information (DSI) as such or its use. DSI and its use are not within the scope of the CBD or the Protocol.

The increasing use of DSI to advance the conservation and sustainable use of biodiversity does however make a significant contribution to achieving the objectives of both the CBD and the Protocol. ICC is therefore of the opinion that creating new rules related to access to and use of DSI will seriously impede research and development, and as a consequence will hinder rather than help achieve the objectives of the CBD and the Protocol. As a way forward, priority should be given to the effective implementation of the Protocol based on its agreed scope and to putting in place national rules and infrastructure to safeguard the sustainable use of genetic resources and provide legal certainty for their access and use.

An expansion of the agreed scope to include DSI or its use would change a fundamental aspect of both the CBD and the Protocol, and would call into question the hard-won consensus which they represent.

The definition of a “genetic resource” – as provided by Article 2 of the CBD and referred to in Article 2 of the Protocol – is “genetic material of actual or potential value”. “Genetic material” is defined as ”material of biological origin containing functional units of heredity,” with genes recognised as the basic units of heredity. It follows from this definition that, in the absence of material, the resource in question does not qualify as a genetic resource under the CBD or the Protocol. Genetic resources are therefore understood to cover materials such as organisms, or parts thereof, in which genetic material is present (with the exception of material of human origin which has been explicitly excluded). In other words, the term refers to tangible genetic material which must physically contain genes. It therefore follows that intangible DSI as such cannot constitute a genetic resource as defined by the CBD.
Further expanding the definitions of “genetic resources” in the CBD and/or the “utilisation of genetic resources” in the Protocol to include DSI or its use would create legal uncertainty around the use of such information and as to how access and benefit obligations would apply. This would be contrary to the basic understanding of the aims of the Protocol negotiations, namely on the one hand to create legal certainty for access to genetic resources and on the other hand to provide for compliance mechanisms based on such legal certainty. This issue will be further exacerbated by the technical difficulty or material impossibility in many cases of establishing which species a genetic sequence comes from since genetic sequences can be common to several species.