Access and Benefit Sharing
A public service collection perspective
David Smith CABI and WFCC
ABS, Japan

Summary

The issues
Ownership
Aims of an MTA
Types of MTA used bycollections
The ECCO MTA

Microorganisms
preserved incollections foruse
Algae, bacteria, archaea,
cyanobacteria, fungi –including yeasts, protozoa,
phages and viruses andtheir replicable parts e.g.
genomes, plasmids, cDNAs● Often considered ubiquitous
but properties depend upon
the environment in which
they evolved●CBD implementation debate
What is the collection’s role and responsibilities within the CBD?
Should the ultimate responsibility not rest with the depositor andend user?
How can collections comply without damaging accessions andsales or income streams?
National responsibility to implement but CC’s have a role
● Need minimum acceptable policies● MOSAICS project established to deliver uniformity● Certificates of origin – tracking possible via WDCM registeredcollections – unique identifiers● How is it to be monitored?

The problemz Bonn Guidelines: a voluntary code to facilitate access andzzzz

benefit sharing – therefore implementation notcompulsory
Lack of conformity on implementing the CBD - Fewcollections have implemented policy to comply andthere is no single common approach
Lack of information e.g., Country authorities granting Prior
Informed Consent (PIC) – deposits in collections withoutPIC
A tracking system necessary for biological resources
Willingness in collections to address issues but mostexchanges of material are between individuals notcollections and implementation of control reduces collectionuseSolutions
Micro-Organism Sustainable use and Accessmanagement Integrated Conveyance System(MOSAICS) setting the benchmark and a system foroperation
European Culture Collection designing a commonMTAWFCC and the WDCM can provide a system thatlinks the culture collections of microorganisms andcell lines system of strain numbering to a global
unique identifier system

WDCM - Registration of living
collections● Use system of unique acronyms for each member

collection● Strains recognised by individual and unique
numbers within the collection● Therefore can identify the origin of every strain held
● The WFCC encourages all microbial and cell culturecollections to join the WFCC or register with theWDCM● The unique strain number links to deposits in othercollections, publications and strain information

The Issues“Ownership of the material”
Art. 15 replaces the principle of ‘common heritage‘ andaccepts sovereign rights of states to their naturalresources
Who owns the culture?
- isolator or depositor- collection(s)- user, do they buy it if owned by the country?
- all or none of these
Ownership of IP
The discoverer/inventor

CABI unique position
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Intergovernmental organization, most of whose member
governments are signatories to the CBDCABI considers that all the deposits are held on behalf of thecountry of origin
CABI adds value to biological material
CABI assumes the right to benefit from generated IP
Member/owner countries (45) agreed CABI can utilise
income generated to deliver its mission
1996 CABI MTA reduced usage of the collection (1000 plus
regular customers down to 250 and culture supply from open
collection 4-5000 down to 364 in 2006

Issues
Rights of a recipient over use of a culture
Accessions of type or reference materials- deposit of type cultures: role of IJSEM- exchange of materials between collections: ATCC MTA
In view of recent legal action by the ATCC in violation of third
party usage of cultures supplied in breach of its MTA, are
we entering a new era of litigation where both collections
and their users face the potential of financial ruin?

Ownership debate
z No one person or entity “owns” the culturez The vial bought by the client is his to use within
permissible limits, he “owns” the contents of thevial subject to certain restrictions. In other words
he has no copyrightz Neither does an individual collection “own” aculture – it may be deposited in several different
collections – they cannot all lay claim to“ownership.”z Collections are “custodians” of the strain with aright or “license” to reproduce copies for supply
z Transfer of rights

MTAs have been developed to serve differing purposes:

The CBD

Variousotherlegislative
demands

Requests ofindividualdepositors

Individual
wishes /requirementsof CCsRights ofcountriesof origin

Handling,transport,import,export,patents ..

To agree toa release, ..

Conditions ofsupply
Royalties, …

The MTA required by the CBD● prior informed consent/ mutually agreedterms● transfer agreements● restrictions of use (if any) as detailed inPIC● obligations of end user to benefit sharing● responsibilities of various parties

Conditions of sale (supply)● acceptance of terms of supply● prices● delivery/loss in transit● banking details● terms of payment● general responsibilities

Transfer of materials● purchasers rights and responsibilities● collections rights and responsibilities● restrictions of transfer● intellectual property● limit to uses
● safety and handling data
● limitation of liabilities

Commercial vs. academic usage

Compound MTAOverarching catch all covering:
general conditions of sale, safety,
CDB , IP, transfer of material,warranties, responsibilities andlimitation of liabilities - mainly geared
towards protecting the collections
legal position in a number of areas

Aims of the ECCO MTAAn MTA:- with commonalities between collections- that does not unduly restrict the flow ofaccessions, sales, legitimate scientificexchange, or bona fide research- which pays due attention to benefit
sharing and illegitimate or unlicensed
duplication or commercialisation by thirdparties

Summary●●●●●

CBD implemented to different extent in each nation
Collections still receiving microorganisms without PIC
MTA’s being implemented to achieve different goals
No common culture collection approach
Need clarification on rights and obligations ofcollections and recipients● Certificates of origin difficult to apply in microbiology● Need for unique identifiers for tracking but mustacknowledge the WDCM system