As part of the Earth’s biome, viruses are part of its biodiversity, but has consideration been given as to whether anyone can ‘own’ or should benefit from COVID-19?
Given that access to the COVID-19 virus for research and development appears to be central to creating an anti-COVID-19 vaccine, it is timely to consider this question.
This enquiry touches on the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity (Nagoya Protocol). The Nagoya Protocol provides guidelines for the third objective of the United Nations Treaty for Convention on Biological Diversity (CBD) – “the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources”. Once ratified in a jurisdiction, the Nagoya Protocol creates legal certainty and transparency with respect to sharing of benefits for providers (jurisdictions, specifically including First Nations’ peoples) and users (accessors) of a genetic resource. Many countries, including Australia and New Zealand, have committed to implementing the Nagoya Protocol, but are yet to formally ratify it. The complexity of ratification is maybe best highlighted by Brazil, home to 15 – 20 % of the world’s biological diversity, suggesting an imperative need to ratify the Nagoya Protocol, yet taking over nine years to do so.
Although Australia signed the Nagoya Protocol, it is yet to be ratified. Nationally, through the Environment Protection and Biodiversity Conservation Act 1999 (Cth), access to any biological resource that is on Commonwealth land requires a permit, but does not extend to non-Commonwealth land, for example state-owned or privately-owned land. At the state level, Queensland is the only state to have enacted legislation compliant with the Nagoya Protocol, recently amending its Biodiscovery and Other Legislation Amendment Act 2020 (Qld).
Amendments to Queensland legislation introduce an obligation for users of traditional knowledge in biodiscovery to share benefits arising from that use, thus providing protection for and benefit to First Nations’ peoples. Interestingly, this amendment was driven by the business community to facilitate trade with countries that have ratified the Nagoya Protocol. To that end, we are aware of businesses establishing themselves in Queensland to ensure that they have access to Nagoya Protocol compliant certificates to facilitate such trade. It seems that businesses in other states and territories should consider applying similar pressure on their respective governments. Perhaps the Commonwealth could adopt the Queensland state legislation at the federal level to avoid duplication of legislation across states and territories.
New Zealand is also considering how to reconcile the Nagoya Protocol with Māori rights in light of the Waitangi 262 (Wai262) Report. The two key issues arising from the Wai262 Report are the review of the Plant Variety Rights Act 1987 and the proposal to require a ‘disclosure of origin’ for patent applications. Ratification of the Nagoya Protocol, it would seem, could deal with these issues because it would provide a legal framework ensuring Māori rights and traditional knowledge are acknowledged (possibly through a Māori ethics or advisory board). This is similar to what already exists for New Zealand patents and trade marks. Currently, the government response to the Wai262 Report has been delayed due to COVID-19.
Returning to our question, is it possible anyone could (or maybe would want to) lay claim to ‘provider’ rights over COVID-19? China first sequenced the virus from a patient and deposited the sequence in GenBank. Australia was the first to culture the virus in a laboratory and sequence the virus outside of China, depositing the sequence with the Global Initiative on Sharing All Influenza Data (GISAID).
The Australian effort isolated the virus from a foreign citizen who arrived in Melbourne. Under the Nagoya Protocol (if ratified), could Australia claim COVID-19 as its genetic resource? Or would it be the genetic resource of the citizen’s jurisdiction? What if the subject from whom COVID-19 had been cultured was an Australian citizen, but infected in a foreign jurisdiction? If a potential provider was to deny origin of the COVID-19 virus in its jurisdiction, would that preclude it from claiming COVID-19 as its genetic resource? If a provider did lay claim to COVID-19 as its genetic resource, could it restrict access to COVID-19? For vaccine development, could the provider restrict users to the COVID-19 virus ‘provided’ by that jurisdiction or demand a share of benefits?
Although the Nagoya Protocol aims to solve problems relating to benefit sharing with respect to genetic resources, in our global society, there appears to be many questions left unanswered that need further thought. This is especially true where it is difficult to ascertain the origin/jurisdiction of a genetic resource that is later exploited commercially.