Access and Benefit Sharing of Marine Genetic Resources from Areas beyond National Jurisdiction: Intellectual Property--Friend, Not Foe

Table of ContentsI. Introduction 495II. The Established Past 497A. The Law of the Sea and Biodiversity 4971. The Area: common heritage of mankind (Part XI) 4972. Water column: freedom of the high seas (Part VII) 4983. Marine scientific research. 4984. Convention on Biological Diversity 499B. Intellectual Property Law: Patents and Copyrights 5011. Purpose and general principles 5022. Rules and minimum standards of IP protection in international law. ..503a) Copyrights on scholarly publications of marine scientific research andbioprospecting 504b) Patents on inventions deriving from marine genetic resources 505III. The Present and Its Controversies 507A. Some Questions of Relevance in the Law of the Sea Sector 508B. Intellectual Property-Misconceptions and Realities 509IV. The Enlightened Future: Moving Away from the Controversies 511A. Declaring the Source: Increased Disclosure Requirements 513B. New Possibilities for a Special IP Regime 5171. Commons Repository 5182. Commons Trust Fund: patent royalties 5183. Experimental and customary use exceptions 5204. Compulsory and commons licenses 5215. Shorter time window of exclusivity and technology transfer expiration ofprotection 522V. Conclusion 522I. IntroductionMarine genetic resources (MGRs) from areas beyond national jurisdiction are currently the focus of great interest in the fields of both science and international law. Scientists are attracted to the immense potential of this mostly untapped resource, notably for applications in the medical and pharmaceutical industries. Not surprisingly, the potential of these resources has also attracted much attention from the international and legal spheres with respect to the intellectual property protections that can be afforded to discoveries and inventions stemming from MGRs in areas beyond national jurisdiction.The value of these MGRs lies in their genetic material, particularly in the genetic variability of the material in question. Those variations codify the particular adaptations of every living organism. The genetic material, which makes them different, is also the genetic material that can be most useful.A momentous example of the value of deep-sea genetic resources is the discovery of the green fluorescent protein (GFP), from the bioluminescent Aequorea victoria jellyfish.1 GFP was developed into what many call the microscope of the twenty-first century.2 Indeed, GFP is essentially used as a biological highlighter, oftentimes to literally light up a particular protein produced by a specific GFP-tagged gene. GFP can illuminate growing cancer tumors, reveal the development of Alzheimer's disease in the brain, and show how HIV travels from infected to noninfected cells.3 Osamu Shimomura, Martin Chalfie and Roger Y. Tsien received the Nobel Prize in Chemistry for the discovery and development of GFP.4It is a longstanding scientific tradition to draw inspiration from nature. The genetic material of the living resources of the deep sea is particularly interesting because of their adaptability to extreme environments. It is also important to note that the abundant biodiversity of the deep sea may in fact rival tropical forests in species diversity, and it is believed that proteins having useful applications are more likely to be found in marine microbial life than terrestrial organisms.5 MGRs are therefore in the spotlight and may hold the key to many useful and beneficial discoveries. As an example, more than 150 natural products 1 Roger Y. Tsien, The Green Fluorescent Protein, 67 Ann. Rkv. Biochemistry 509 (1998).2 See, for example, Green Fluorescent Protein: A Molecular Microscope, http://www.photobiology.info/ Zimmer.html (last visited Nov. 13, 2013).3 Marc Zimmer, Glowing Genes (Prometheus Books 2005). …