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Benefit-sharing

Slide What are my benefit-sharing obligations?

 

Benefit-sharing in the academic sector
Benefit-sharing agreements
Using model clauses
Other useful resources

Benefit-sharing in academic research

Benefit-sharing is about giving something back to those people/countries who provide material (and associated traditional knowledge) for research purposes.

Some academic researchers think that benefit-sharing has nothing to do with them – wrong! Benefit-sharing obligations can also apply to non-commercial and basic researchers!

What types of benefits are shared in the academic research sector?

Benefits shared by academic researchers typically flow from the research process and outputs of research. These types of benefits are often “non-monetary” and common examples include:

  • collaboration and/or joint publication with local scientists

 

  • training for local scientists and students

 

  • sharing data and results

 

  • study exchanges

 

For real-life examples of benefit-sharing by German institutions, you can check out our ABS Stories.

In many countries, the types of benefits that can or should be shared are listed in the relevant regulations. You should check these!

Exactly which benefits will be shared has to be negotiated. You should always check that the benefits you agree to are consistent with your grant agreement and that you can deliver on your commitments – don’t make promises you can’t keep!

Benefit-sharing agreements

A benefit-sharing agreement is a legally binding agreement  – it is a contract.

You should check with your institution about whether you are permitted to create legal obligations on its behalf! You may not be the person authorised to make decisions about benefit-sharing or to sign the agreement!

Mutually Agreed Terms – MAT

In the ABS world, benefit-sharing agreements are referred to as Mutually Agreed Terms, or MAT for short. MAT should be, as with most contracts, in writing and may include (among other things):

  • arrangements for benefit sharing including, for example,  intellectual property rights;

 

  • a dispute settlement clause;

 

  • terms on subsequent third-party use of material;

 

  • terms on changes of intent, i.e. where the material is to be used for a different purpose, such as the transition from non-commercial to commercial research.

 

The people who sign the MAT will depend on who you are required (by law) to share benefits with. This could, for example, be a government authority, a research institution in the country where the material comes from or a representative of a local community.

 

Material Transfer Agreement – MTA

Mutually Agreed Terms, i.e. MAT, should not be confused with the your material transfer agreement, or MTA.

Many researchers are familiar with MTAs. Institutions involved in research collaborations often use these instruments to determine under which conditions they will transfer material, the rights and obligations of the recipient and provider of the material etc.

Caution! A material transfer agreement (in the absence of any accompanying ABS documentation) will not be sufficient to satisfy your due diligence obligations in Germany.

Using Model Clauses

What are model clauses?

Model clauses are standardised contractual clauses that can be used as a basis for benefit-sharing agreements.

A number of model clauses have been developed to support the implementation of the Nagoya Protocol, e.g. by professional associations and the governments of countries that provide biological material for research.

If you are using model clauses, don’t forget to review them carefully and make sure that they are appropriate for your needs.  They may need to be adapted.

Model clauses are not a substitute for legal advice and you should contact the legal department of your institution for assistance before signing anything.

Model clauses used by provider countries

Nagoya Protocol countries are encouraged to develop and use of sectoral and cross-sectoral model contractual clauses for mutually agreed terms.

Some countries have already developed model agreements. Examples of model clauses used by countries include Benin (in French), South Africa und France (in French).

Some model agreements can be found under the country profile in the ABS Clearing House.

The World Intellectual Property Organization also lists a number of contracts.

When you contact the provider country, ask them first whether they have a model benefit-sharing agreement that they use.

Model clauses for academic researchers

Several professional associations have developed model clauses to help non-commercial researchers with establishing benefit-sharing agreements.

Some examples come from the Deutsche Forschungsgemeinschaft (DFG) and the Swiss Academy of Science.

The Consortium of European Taxonomic Facilities (CETAF) has developed a Code of Conduct and Best Practices that is recognized as best practice by the European Commission. In Annex 6 of this document, there are four different model material transfer agreements (MTAs) for the following situations: temporary loans, transfers of material into and out of the collection with changes of ownership and for situations involving guest/external researchers who bring material with them. These MTAs also address ABS issues.

The German Federal Agency for Nature Conservation also has several model agreements on its website, including an agreement between the recipient of the material and a provider country, an agreement between the recipient of the material and a landowner, and an agreement between the recipient and an indigenous or local community.

When you contact the national authorities of the provider country (national focal point and/or competent national authority), ask whether they use a model agreement.

Other useful resources

Model MTAs:
The ABS Information Forum has a collection of links to model Material Transfer Agreements.

See the Annex of the Consortium of European Taxonomic Facilities’s Code of Conduct and Best Practice.

Model benefit-sharing agreements:
The ABS Information Forum has a collection of links to model benefit-sharing agreements. 

The Swiss Academy of Sciences has created a toolbox for drafting Mutually Agreed Terms.

Model clauses from the Deutsche Forschungsgemeinschaft (DFG)

Sample contracts on the website of the World Intellectual Property Organization.

More information about benefit-sharing:

This ABS Information Forum page gives a further explanation on what benefit-sharing means as well as some useful things to keep in mind.

 

The German Nagoya Protocol HuB is financed by the Federal Agency for Nature Conservation (Bundesamt für Naturschutz) with funds from the Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection (Bundesministerium für Umwelt, Naturschutz, nukleare Sicherheit und Verbraucherschutz)

 

 

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  • Some countries also have ABS laws even though they are NOT Party to the Nagoya Protocol. You still must comply with these laws!
  • Some countries in the EU also have specific national ABS laws.
  • If your research will involve traditional knowledge, you must take into account the national ABS rules in this regard.

In cases of non-compliance the National Authority (BfN) can:

  • confiscate the material.
  • prohibit further use and transfer of the material for research.
  • prohibit the publication or sharing of any results of utilization.
  • issue a fine of up to 50,000 EUR.

Check out more about the implications of non-compliance.

How do I check?

  • Start with the country profile in the ABS Clearing House (ABSCH).
  • Check out the legislative, administrative or policy measures section. If no measures can be found here, the interim reports might also contain relevant information. Tip! filter by country.
  • Be careful though. This information is not always complete or up to date. Some countries have ABS laws but they are not listed in the ABSCH.

To play safe and ensure legal clarity, always contact the ABS national focal point and/or the competent national authority. Tip! filter by country.

No answer?

  • Try contacting the national focal point of the Convention on Biological Diversity (CBD).
  • Ask collaboration partners in the country for help – easier for them to contact the authorities in their own country and language!
  • Ask colleagues who have worked in that country before.
  • Use the internet to find resources.
  • Contact the German Federal Agency for Nature Conservation (BfN). They have information about ABS and may be able to assist.

For research done in Germany, the German Federal Agency for Nature Conservation recommends using the DECLARE portal.

An account is required. Check with your institution as it may already have one.

This video and the user guide are very useful to start!

Starting your project before ABS permits have been granted is a violation of the EU Regulation and can get you in trouble if your institute is being checked by the German National Authority (BfN)!

In this regard, you have obligations under the EU ABS Regulation if:

  • You collected the material…
  • The collaborator who gave you the material collected it…
  • The material obtained from a collection was originally collected…
  • The shop or company where you bought the material collected it…

on or after 12 October 2014

This date is key because it is when the Nagoya Protocol entered into force.

When you obtain material from a collaborator, collection or trader, it is important to verify if there are benefit-sharing obligations linked to it.

For example: research on specific genetic or biochemical properties, gene function, gene expression, genetic modification, genome editing, breeding based on traits and their associated genes, among others.

The EU Regulation does not apply when research does not involve the study of the genetic or biochemical composition, e.g. storing biological materials in a collection, mere culturing of organisms, taxonomic identification, morphological or anatomical characterization, among others.

See the guidance document for more information and examples on “utilisation”.

Also check our FAQs section on it.

ABS obligations may or may not apply depending on the type of research. There could be exemptions for non-commercial or basic research.

Keep in mind that exemptions for local researchers may not apply if they conduct their research abroad (e.g. guest researchers bring material from their home country to study it in Germany).

Within the European Union, obligations stem from Regulation (EU) No 511/2014.

The EU Guidance Document contains information on scope, obligations and understanding whether your material/research is covered, including many practical examples. It is available in all EU languages and is a must-have resource.

Not all countries that are Party to the Nagoya Protocol regulate access, e.g. Germany. In such cases, you are free to use the genetic resources obtained from these countries without getting ABS permits.

You are obliged by the EU and German law to support user checks by the German Federal Agency for Nature Conservation.

Failure to support a user check is an administrative offence.

When you transfer the material to another person or institution:

  • Search if there are ABS documents relating to the material you have.
  • Check if the transfer to third parties is permitted.
  • Transfer also the information, e.g. a copy of the ABS permit or the number of the internationally recognized certificate of compliance (IRCC) published on the ABS Clearing House.

Having a good documentation system will save you headaches in the future.

Read the documents and understand your obligations as well as any conditions and restrictions on use of the material.

Keep in mind your commitments on benefit-sharing!

The due diligence declaration informs the competent authority in Germany that your research and material is Nagoya Protocol relevant and that you have complied with your ABS obligations.

Check out more about it!

“Derivative” means a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.

Some examples are: RNA, proteins (including enzymes), lipids, organic compounds (e.g. essential oils or resins) and other products of metabolism.

Also check our FAQs section on it.

In this regard, you have obligations in the EU if the country where the material comes from was a Party to the Nagoya Protocol and had ABS regulations at the time of access.

Why is ABS important?

Access and Benefit Sharing (ABS) measures ensure that research results support provider countries to:

  • Make informed decisions on conservation, sustainable use and management of their biodiversity.
  • Implement innovative solutions for productive activities, contributing to sustainable development.
  • Build capacities for national research.
  • Other benefits as agreed.

Even if ABS does not apply to your research project, you must be able to provide the German Federal Agency for Nature Conservation with the documentation that supports your conclusion. This will speed up possible compliance checks. Tip! save email correspondence with the provider country authorities on this regard.

For some countries, this can be determined by checking the date of entry into force of the national ABS legislation and compare it with when the material was collected in the field.  If you collected before the legislation went into force, you could be out of scope. However, in some countries “access” can also mean receiving material from an ex-situ collection or even when you start to use it (even if it was collected and left the provider country long ago). Keep this in mind!

Some laws only cover certain types of organisms or organisms collected in certain areas.

Check when:

  • you collect material outside of Germany
  • a collaborator gives you material from another country
  • you get material from a collection in Germany
  • you buy material from a shop or a company
  • traditional knowledge from indigenous peoples or local communities will be used for your research