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This chapter explores whether and how genomic resources can be protected by the communities from, or countries in which they are accessed. Specifically, it asks whether the Nagoya Protocol on Access and Benefit-Sharing can be an effective mechanism to reassure communities about the sharing of gene sequencing data. These questions are of particular importance to Indigenous peoples and local communities, as many have troubling historical experiences with colonization and associated natural resource exploitation. Many Indigenous and local communities (ILCs) live in developing countries, which are particularly sensitive to access and benefit-sharing (ABS) issues. Different but equally serious challenges exist for Indigenous peoples in developed countries like Canada, Australia, New Zealand and elsewhere. Until outcomes of implementation of the Nagoya Protocol are captured, Indigenous peoples and Local Communities (IPLCs) remain in a quandary as to how to protect digitized genetic resources within their territories or under their jurisdiction. To advance our understanding of legal and regulatory options, this chapter integrates normative and positive perspectives on the mechanisms for access and benefit-sharing in the age of digital biology.
Why is an authorized copy of a Hollywood film worth $15 in the United States offered for sale at the same price in a much poorer country like India? Factoring in purchasing power parity, is it really surprising that consumers refuse to pay the roughly $641 price tag and turn instead to piracy to satisfy their understandable demand for access to foreign culture? What is being done in developing countries, effectively or ineffectively, to enforce laws designed to deal with such dilemmas? Maybe more importantly, if enforcement efforts succeeded in stamping out piracy, what would happen to the jobs, income and gray market spinoffs generated in the informal sectors where this activity mostly takes place? Could these losses be offset by net social or economic gains through innovation or formalization in low-income countries that better comply with the legal standards set by the world's most developed nations?
And might this debate be different if we were talking about education instead of entertainment? For example, how do students in Senegal behave when confronted with conflicting information about acceptable practices for photocopying textbooks and other educational materials? How should they behave? They're explicitly asked to photocopy books instead of taking them home or tearing out the pages but, at the same time, by so doing, they learn that most copy shops around post-secondary campuses, not to mention their own libraries, operate illegally. Do students at the wealthiest South African universities or researchers at renowned institutions like the Bibliotheca Alexandrina in Egypt face similar challenges?