From Biopiracy to Equitable Bioprospecting: Constructing A Legal Regime for Medicine Research, Access, and Benefit-sharing

• Main Authors: Chuan-Yi Hsu, 許全義
• Other Authors: Kuei-Jung Ni
• Format: Others
• Language: zh-TW
• Published: 2007
• Online Access: http://ndltd.ncl.edu.tw/handle/29310622499669286015

碩士 === 國立交通大學 === 科技法律研究所 === 95 === The thesis has analysed the main issues in the design of national legal systems and institutions for bioprospecting. It focus on the economic exchange process of actors in bioprospecting and the structure of the drug industry as the main basis for conducting the analysis. In order to promoting optimal contracting for drug R&D, it has defined the right of the traditional knowledge. Using the theory of cumulative innovation and evidence listed in investigations of ethnobotany and ethnopharmacology, it argues for a narrower definition for traditional knowledge, in the sense of ethnobotanical knowledge in the case of drug research. It shows that when traditional knowledge is defined in this way, two main incentive effects accrue: to keep the knowledge pool in its entirety and the incentive to reveal valuable information. Thus defined, the right can take the form of either a trade secret or a community intellectual property right. This does not mean, however, that knowledge which falls outside the purview of ethnobotanical knowledge should not be protected. In fact, the thrust should be on conducting similar excercises in the case of traditional agricultural knowledge vis-��-vis agricultural biotechnology, traditional folklore vis-��-vis the music industry, and so on. However, a well-defined right with an easily segregable set of benificiaries is only the first step. A large onus rests on the design of institutions that will put this right into an enforceable framework. Whatever mode of intellectual property option is chosen for the right, the institutions have two major tasks: that of representing the communities effectively and of providing for rules of contract that take into account the difficulties of dealing with information as a resource. In other words, they should minimize principle-agent problems between communities and the access authority, and try to eradicate many of the market imperfections, especially related to information asymmetries and uncertainty. Access institutions could play a critical role in providing contractual mechanisms to deal with information asymmetries and uncertainty. They can help signal the quality of genetic resources and ethnobotanical knowledge, and can also screen for contract-worthy firms. It has been shown that when access institutions add value to in situ genetic diversity by way of creating inventories of genetic resources, and sort out the interface between ethnobotanical knowledge and modern drug research by investing in ethnobotanical databases, they can facilitate better bargaining conditions amongst parties. The problem of monitoring profits to ensure that the firm then still shares profits with the communities and the access authorities can be enforced through mechanisms such as the international certification systems and other contractual provisions, for example, adopting the contract mechanism of the optimal risk-sharing rather than the incentive-efficient one.