“Genetic resources are defined as material of plant, animal or microbial origin that contains hereditary functionalities, that is, DNA; and whose use can allow a new use and new properties, both scientifically and commercially”, explains the Franco-Peruvian lawyer Patricia Cuba-Sichler.
Since the entry into force in 2014 of the Nagoya Protocol, signed by 127 countries, its use has been regulated. However, in recent years with scientific and technological development, it has been possible to sequence the DNA of plants and animals from all over the planet and put them online.
With databases accessible from a simple computer, researchers or companies no longer need to physically have the plant or animal they need, but it is enough for them with their genetic sequencing to develop synthetic molecules that they later use in the creation of their products. These Banks have become very important for sectors such as agri-food, pharmaceuticals or cosmetics.
“This was not foreseen in the Nagoya protocol, so it becomes a neuralgic point of debate and discussion to the extent that there is access but it escapes all control and all regulations,” says Patricia Cuba-Sichler, who advises to companies linked to the use of genetic resources originating in Latin America.
A kind of legal vacuum because there are two basic principles of the Nagoya protocol that cannot be applied to this digitized genetic data.
“One is the one that establishes that access must be made within what is called informed consent,” Cuba Sichler points out, but indeed in the case at hand it does not apply, since it is freely accessed by Internet, you no longer have to travel to the country of origin to have access to the plant or animal in question.
“The other, very important part is the part of the remuneration, because when it escapes control, the conditions that are normally negotiated for benefits are no longer set,” adds the expert who is currently negotiating between companies and governments around 1% of the benefits net of intellectual property rights or sales.
That is why for Latin America it was extremely important to address this issue. “What was agreed is the creation of a multilateral mechanism for the exchange of information and a remuneration fund, precisely to be able to have a fair and equitable remuneration for the country of origin,” explains Patricia Cuba-Sichler, who is confident that companies will respect the rules of the game.
“The companies that work with genetic resources are today in a logic of compliance and I believe that beyond the binding written value of the standard, there is also that vision”, the expert concludes.