DSI – What?!

The use of DSI (Digital Sequence Information) is one of the hot topics discussed at the Conference of the Parties to the Convention on Biological Diversity (COP 16), taking place over the last two weeks in Cali, Colombia. As DSI is a rather technical subject – familiar to biologists, but rather not to international law experts – it did not catch much attention from international law scholars so far. In particular, the topic did not seem to have the interest of those scholars who research minority rights and social justice. Yet, looking at it more closely reveals that legal questions relating to DSI being currently discussed at COP 16 are closely linked to the rights of marginalized communities and social and ecological justice.

What Is DSI and What Is It Used For?

Digital Sequence Information is one of the terms used for genomic digital data, which means data of deoxyribonucleic acid (DNA) and ribonucleic acid (RNA) and related data. DNA and RNA store and transmit genetic information and therefore the characteristics of an organism, whether it is a virus or a tree. The DNA and RNA information is acquired by breaking down the structure, the sequence of the nucleotides – the elements forming the DNA and RNA ­– by using actual biological material. DSI refers to the digitized DNA and RNA data. The term is not widely used by science but is a policy term referring to the subject. Although “there are divergent views on digital sequence information on genetic resources with regard to its scope under the Convention on Biological Diversity”, the concept of DSI will be used for the purpose of this contribution, as it is the concept referred to under the CBD (e.g. in the language of the Kunming-Montreal Global Biodiversity Framework).

The DSI data has been stored in large public repositories among databases run by private companies. Three large public databases form the International Nucleotide Sequence Database Collaboration (NSDC) which is widely used by researchers. So far, public databases can be accessed freely by researchers from all over the world.

Scientists access those databases for either academic or commercial interests. They combine large DSI datasets in order to learn about proteins and metabolites that form the DNA or RNA and detect new organisms and species, their specificities, and interactions. Scientific findings – the new data – are being uploaded to those databases again, a process which has been leading to an exponential growth of the datasets in the databases in the past years. Why does this matter for COP 16? DSI is important for biodiversity monitoring and conservation. It is also essential for commercial use in biotechnology, to detect and develop new fabrics, pharmaceuticals, cosmetic products, vaccines, and so on.

Why Is It Discussed at CBD COP 16?

DSI regulation has no normative basis within the CBD itself, adopted as one of the three Rio Conventions in 1992, although databases already existed at that time. Neither is the concept of DSI featured in the Nagoya Protocol (NP), the prevalent legal instrument that was designed ten years ago to halt biopiracy and regulate access to and the sharing of benefits arising from the utilization of genetic resources.

DSI is part of Goal C (to be achieved by 2050) and Target 13 (to be implemented by 2030) of the Kunming Montreal Global Biodiversity Framework (KMGBF) which was adopted at COP 15 in 2022. That framework sets long-term goals and “action-oriented global targets“ for the conservation of biological diversity, the sustainable use of its components, and the sharing of its benefits. According to the KMGBF, benefits arising from the utilization of genetic resources, traditional knowledge associated with genetic resources and digital sequence information on genetic resources have to be shared in a fair and equitable manner. In particular, target 13 of the KMGBF requires state parties to “ensure the fair and equitable sharing of benefits that arise from the utilization of […] digital sequence information on genetic resources[.]”

Decision 15/9, adopted at COP 15 in 2022, established a multilateral mechanism on DSI (para. 16) as part of the KMGBF. Decision 15/9 does not provide a definition of digital sequence information but recognizes “divergent views” on the concept in its preamble. The decision aims at a global instrument that would be applicable across jurisdictions and regulate the use of DSI, including a global fund serving the restoration and conservation of nature. The mandate to discuss the multilateral mechanism on DSI at COP 16 arises from that decision. In that regard, the topic is related to the ongoing negotiations on agenda item 11 on resource mobilization and a financial mechanism for the KMGBF.

What Does Benefit Sharing Mean? How Does This Relate to the Rights of Indigenous People and Local Communities?

Within the rationale of the NP benefits resulting from the use of genetic resources are to be shared fairly and equitably with the countries that provide the genetic resources. Furthermore, the benefits have to be shared with the indigenous and local communities who hold these genetic resources and the rights thereon (see in particular Article 5 NP). This process includes not only monetary benefits which would be shared by payment, but also non-monetary aspects. Sharing of non-monetary benefits could therefore include the transfer of knowledge and technology, access to scientific information, as well as capacity building within local communities. As DSI is stored in databases and, to a certain extent, detached from actual genetic resources and specific locations of origin, benefits arising from their use are often shared unequally or not shared at all. For that reason, benefit sharing needs to be governed by a multilateral mechanism. The rights of indigenous people and local communities holding traditional knowledge relating to genetic resources – also referred to as “biocultural meta-data” – are especially emphasized throughout the KMGBF. The latter aims at strengthening indigenous people and local communities – as well as people of African descent if so decided at COP 16 or later – as guardians of the ecosystems around them. These groups often live in places of extraordinary biological diversity and therefore play a crucial role in the conservation of nature and its sustainable use. Therefore, their well-being is at the heart of questions relating to the KMGBF implementation. Here, when considerations about monetary allocation arise. What is at stake?

To put it briefly, the following matters will be decisive: how the use of DSI will be regulated by the multilateral mechanism, how monetary resources will be mobilized, especially by defining who will be made to pay for the use of DSI and how much, and how those fundings will be allocated.

Referring to the establishment of a global MLM, Preambular paragraph 12 of decision 15/9 states: “Recognizing also that a solution for benefit-sharing from the use of digital sequence information on genetic resources is also a wide-ranging solution for the mobilization of resources to support the conservation and sustainable use of biological diversity”. This statement does not only make reference to Article 20 of the CBD but also gives a hint about the possible scope of the DSI regulation.

Firstly, the MLM could be a tool to generate financial resources for a global fund for the protection and restoration of biodiversity. Secondly, payment obligations for companies – as foreseen in current drafts –  could mark a paradigm shift with regards to big companies – “big pharma” corporations in particular, as they have not so far paid for digitized data originating from genetic resources. A decision that would oblige companies to pay for the data they use would acknowledge that natural resources, data gained from it, and the associated traditional knowledge do not come for free. Their use has a price we will all pay if biodiversity is not conserved and aligned on par with human and biocultural rights.

Conclusions

I consider the negotiations as an opportunity for a paradigm shift in social and ecological justice. A global mechanism of benefit sharing marks a possible means of redistribution of wealth between those who have been exploiting natural resources and indigenous people and local communities in particular who have been serving as guardians of nature.

Yet, it remains disputed, what would be within the scope of the “use of DSI”. There is no agreement on the exclusion of non-commercial, conservation-oriented research from mandatory payment – something that scientists are advocating for. It remains highly disputed which companies – small, medium, large – would have to pay, how much, and based on which criteria. Contributions could also be voluntary. All of those questions remain “bracketed text” in the language of the negotiators.

What is still left unclear is, how the income to the global fund will be allocated, through capacity-building programs or, for example, by direct funding to indigenous people and local communities. Currently, it seems that a final decision on DSI will not be adopted during this COP 16. DSI and the related matters will rather be reconsidered in the intersessional period ahead of COP 17. Despite this, negotiators have the opportunity to set a tone regarding a seemingly technical matter with meaningful implications for biodiversity conservation and biocultural rights.

Catharina Caspari is attending the ongoing COP 16 negotiations as part of the German Research Foundation (DFG) delegation and works as a research assistant to Prof. Dr. Sabine Schlacke on the DFG SKBV working group on access and benefit sharing. This text reflects only her academic perspective and not the views of the DFG.