The Australian Access and Benefit Sharing (ABS) framework: A model case for bioprospecting?
Despite a pioneering ABS legislation in Australia, there is still only one biodiscovery case involving commercial benefit sharing under Commonwealth legislation. One lesson is the need for improving the dynamic element in ABS contracts, building in a clearer trigger point for when the obligations to share are actualised and to reverse the burden of tracking and follow-up to the user rather than leaving it to the provider. Linking the ABS and IPR legislation through disclosure of the source of biological resources in patent applications can be an appropriate legal measure to track compliance. Fridtjof Nansen Institute (FNI) ABS expert researchers argue the outside world would also benefit from Australia being a party of the Nagoya Protocol because the country has learned many ABS lessons to be shared with other parties of which many will not have come nearly as far in their ABS experience. Among others, there are lessons about drawing up an effective regulatory system, but also about legal challenges for federal nations with mixed jurisdictions between the federal and state level. These lessons concern partnerships between public academic institutions and the private sector with great benefits for both parties, as well as difficulties in distinguishing scientific from commercial biodiscovery and defining roles.