By clarifying the relationships between suppliers and users of genetic resources, the Access and Benefit Sharing (ABS) concept helps in fighting biopiracy. The formalization of these relationships also helps in restoring confidence between partners by providing a framework for governing the biodiversity prospecting activities.
The Access and Benefit Sharing (ABS) concept does not only refer to the companies on one hand and the traditional communities on the other. It must be taken into consideration in the broader context of relationships between all the countries, whether under development or industrialised. Schematically, the first host most of biodiversity prospecting activities, carried out by the latter. The situation is actually more complex, since all countries are both suppliers and users of these genetic resources.
"Biodiversity prospecting" is thus the exploitation of a country's genetic resources for commercial or non-commercial purposes (for example for scientific research). Countries “repatriate” the exploitation and commercialisation of genetic resources and make sure their investments are safe by registering patents (90% of all registered patents come from Japan, Europe or the United States). Often, there is absolutely no benefit for the countries and communities that owned the original genetic resources.
What can be patented?
In order to be patented, an invention must be:
• New: it should not be part of the knowledge funds existing in the relevant technical field.
• Inventive (or non-obviousness): it must not be obvious to a person with average knowledge of the relevant technical field.
• Useful: it must be applicable in the industry. This criterion is especially used to exclude works of art and crafts.
When biodiversity prospecting assumes an illegal character, it is known as "biopiracy". Biopiracy generally means the appropriation of genetic resources or traditional knowledge without the consent of the country of origin (or the community holding the knowledge), with private firms then limiting the ability to exploit those resources and knowledge by registering patents so as to give themselves exclusive rights to that living material.
Biopiracy also refers to the practice of not dividing up the benefits between the patent holder and the community from which the knowledge was confiscated in this way.
In order to protect biodiversity and its genetic resources while at the same time continuing to profit from their use, in particular for commercial purposes, several key steps have set up milestones for determining an international framework to organise access to genetic resources and the division of benefits resulting from their use.
See Biopiracy: the example of the neem tree.