The alternative is to transition to a global bio-colleting society

Collecting societies are common in the copyright area, where they serve copyright owners by reducing their transaction and enforcement costs. [FN17] *248 The proposal being put forward here, however, differs somewhat from the usual copyright collecting society model. Rather than having many bio-collecting societies at the national level, it would be better to have one global bio-collecting society ("GBS"). The operation of one GBS could be more easily scrutinized by the various interested actors than the operations of many national collecting societies. Better transparency, in short, would be one outcome of a GBS. It might also be argued that international organizations, for the most part, serve the interests of indigenous groups better than state organizations. States, not uncommonly, have been opponents of indigenous groups in the context of land claims and rights issues. Political-economic elites wielding the power of the state present the greatest danger to indigenous groups. [FN18]

Another important difference between copyright collecting societies, which tend to serve the interests of copyright owners alone, and a GBS would be that the GBS would be chartered in a way that attended to the broader purposes that are specified in the CBD and perhaps also the International Undertaking on Plant Genetic Resources. The protection of indigenous knowledge by a GBS would be a primary rather than absolute duty.

A GBS would be best established as a private organization outside the context of any treaty negotiation. The politicized waters of treaty negotiation make it difficult for any initiative to reach the shoreline. Funding for the GBS could come from the World Bank, which in recent times has become much more interested in the role of knowledge in economic development. [FN19] Importantly, membership would be open to both companies and indigenous groups and would be entirely optional. The idea would be that the GBS would stimulate a process of private ordering among companies and indigenous groups. If the services that the GBS provided turned out to be useful then corporations and indigenous groups would employ it. If not, then it would fold. The GBS could provide the following services:

(1) It could act as the repository for community registers of indigenous knowledge. [FN20] The GBS could assume the custody of a community register under strict obligations of confidentiality. There would be no registration system as such. A third party could find out that Indigenous Group X had notified a community register with the GBS, and any further details that had been agreed to by Indigenous Group X. This notification system would be designed to trigger a dialogue between the indigenous group and the third party

(2) The GBS could, if requested, provide assistance with any contractual negotiation between a third party and an indigenous group. The GBS could maintain a register of independent legal experts who were willing to assist indigenous groups in such negotiations.

(3) The GBS could provide a monitoring service for the use of indigenous knowledge. It can take from eight to fifteen years from the date of filing of a patent for a pharmaceutical product to its eventual release on the market. [FN21] The long time frames involved in the use indigenous knowledge make the provision of a monitoring service vital. Monitoring might involve regular checks of patent applications around the world or requiring parties to report on the use of the licensed knowledge.

(4) The GBS could have a dispute resolution function. As part of its structure it could have a committee, the members of which would be people of impeccable independence. They would publicly examine the conduct of the parties in the dispute and make recommendations. The aim of such a committee would be to gain the trust of industry and indigenous groups by virtue of its independence and impartiality. Failure to adhere to its recommendations would not be accompanied by any legal sanctions. A party ignoring its recommendations would be seen publicly to have done the wrong thing and in certain cases it might be excluded from the GBS altogether. Exclusion from this body would be a form of global shaming that might in fact act as a powerful deterrent to non-compliance with the committee's recommendations. A GBS dispute resolution procedure that operated in this way could conceivably avoid the "tyranny of lawyers

(5) The GBS could also have some sort of standard-setting function. It might, for example, develop an authoritative code of conduct for the negotiation of a biodiversity prospecting contract. For the purpose of standard-setting, it is important that the GBS have a tripartite process. [FN23] Standards would be agreed in a process involving representatives from industry, indigenous groups and representatives from states.

One advantage of establishing the GBS in the way being suggested is that it would side-step the need for an international treaty in relation to national indigenous intellectual property rights. Membership of the GBS would itself constitute an acceptance that national indigenous property rights were to be respected. It is conceivable that respect for the use of indigenous knowledge could be secured in this way even if the state to which the indigenous group belonged had failed to provide legislative protection for indigenous knowledge. Clearly, the success of the GBS would depend on the extent of its membership. If most indigenous and industry members participated, it could work. The question then is whether there are strong incentives for indigenous groups and companies to participate.

(1) Incentives for the life sciences industry. The life sciences industry wants in this field freedom of contract, low search and transaction costs, and certainty of use. At the moment there is a proliferation of CBD laws at the national level that is, as observed earlier, creating uncertainty. Dealing with the GBS rather than potentially many national bureaucracies administering laws protecting indigenous intellectual property would lower industry's transaction costs. The GBS, by bringing together indigenous groups and members of the life sciences industry, would lower the search costs of both.

The GBS would play a critical role in obtaining certainty of use for companies. A company that acquired permission to use indigenous knowledge through the GBS process would have a defence against any other claims to the ownership of that knowledge that might surface later. Assume, for example, that Indigenous Group X had notified their knowledge to the GBS and that Company Y had been given permission to use that knowledge. Some time later Indigenous Group Z claims that that knowledge also belongs to it. Assume that this is genuinely a case of independent origination of knowledge. Under the GBS procedures Company Y would have a defence against Indigenous Group Z. However, Indigenous Group Z might be able to claim some of the money that Company Y paid to the GBS for the use of the knowledge. The critical thing is that it would be the GBS that would be centrally involved in the collection and distribution of the royalties and lump sums being paid to it. It is vital to separate companies from very difficult distributional issues such as these.

The issues relating to freedom of contract are also complex. States might be tempted to impose a host of mandatory conditions on parties wishing to make use of indigenous knowledge. But it is open to question whether this would serve either the interests of industry or indigenous groups. If the conditions prove too onerous, companies will not invest in utilising indigenous knowledge. This result would be Pareto inferior and dynamically inefficient. Allowing the state to set mandatory conditions also carries with it the risk of strategic rent-seeking behaviour by the state. The state may end up over-pricing the use of the indigenous knowledge. A non-profit GBS would be in a much better position to recommend to parties contractual conditions that were genuinely efficient

Incentives for indigenous groups. The GBS would help indigenous groups to solve the problem of international free-riding by offering them some prospect that the rights over their knowledge would be recognized by companies irrespective of where those companies were located. It would also offer them a means by which to enforce their rights. The GBS could absorb the monitoring costs that the use of indigenous knowledge would bring with it in the pharmaceutical sector. One of the functions of the GBS would be to provide help to indigenous groups with the negotiation of licensing agreements. A GBS could *250 also, when it came to the collection and distribution of royalties, deal directly with indigenous groups, thereby avoiding state apparatuses. Bearing in mind the problem of systemic corruption in some developing countries this would, on the whole, be a good thing. [FN24] Indigenous groups have absolutely nothing to lose in experimenting with a new form of distribution since it has been estimated that "less than 0.001 per cent of the profits from drugs that originated from traditional medicines have ever gone to the indigenous peoples who led researchers to them"

The GBS would be in many ways a unique creature--a private global organization facilitating private ordering between international companies and local actors so as to champion the global public purposes for which it was chartered. The role that has been sketched for it here will no doubt raise as many questions in the minds of readers as it answers. But on the face of it at least there are enough reasons to think that a GBS might deal with some of the needs that face indigenous groups and the life sciences industry as they begin to forge partnerships in the commerce of biodiversity.