Liability is the only mech that avoids hoarding if no profit

The economic logic underlying this model is that the providers of microbial materials would presumably obtain more potential reciprocity benefits from the vast upstream research opportunities generated by the semicommons than would accrue from operating in isolation. But fears of losing unknown future commercial opportunities could undermine the prospect of these potential research gains, so we address this concern directly with a built-in provision for benefit sharing from unknown future downstream commercial applications. That is, we would build a so-called “compensatory liability rule” for downstream commercial applications into the system, yielding equitable compensation for the providers or their designate representatives under international law, while fulfilling international obligations under the CBD. This component thus gives providers a means of securing equitable compensation from future commercial applications, unknown or unlikely at the time of deposit, that ultimately resulted from research uses of the deposited materials. A liability rule means that one may freely take the materials for any research purpose, without need of any permission to use, on condition that a duty to pay equitable compensation arises if and when the application itself accrues commercial gains. It is neither an “absolute permission” rule (i.e., comparable to an exclusive property right) nor a pay-per-use rule; it is a “take and pay” rule, as I will explain in a moment.

Recall that only about one percent of the world’s existing microbial population has actually been identified. Most of those identified microbes possess largely unknown properties and characteristics of no commercial interest. Some of these are held by private industry in collections whose contents have not been publicly certified. One may accordingly describe the bulk of the holdings in existing public microbial collections as “pre-competitive” in the sense that they have elicited little active scientific interest at the present time and—perhaps for that very reason—have no known or likely high payoff commercial applications.

In other words, the bulk of the microbial materials currently and prospectively to be held in public collections may properly be characterized as building blocks of future knowledge. Yet, the existing MTAs applicable to these materials tend to impose restrictive conditions on use and reuse that make scientific research costly and difficult to conduct. Such constraints particularly impede collaborative research involving large and diverse microbial populations that may be subject to high-throughput screening or other advanced research methods (especially when computational biology and the use of automated knowledge discovery tools is envisioned).