WHAT IS ABS?

Access and benefit-sharing (ABS) refers to a set of rules and principles governing the use of biological resources, or in other words, the way in which biological resources may be accessed, and how users and providers of biological resources reach agreement on the fair and equitable sharing of benefits that might arise from their utilisation.

WHY IS ABS IMPORTANT?

ABS can ensure that the method used to access and utilise biological resources maximizes the benefits for users, providers, the ecology and communities where the biological resources are found. Users, for example, access biological resources to perform scientific research to develop commercial products such as pharmaceuticals or cosmetics. Providers, on the other hand, grant users access to biological resources in return for a fair and equitable share of benefits that result from their use. The benefits can be in the form of monetary or non-monetary.

In the case of accessing biological resources using traditional knowledge of Indigenous People and Local Communities (IPLCs), the value of this knowledge is recognized by the rules of ABS where it requires users to obtain permission from the IPLCs who own the knowledge to use it (known as Prior Informed Consent – PIC), and to share any benefits that result from its use.

Access to biological resources, in some instances, also depends on the traditional knowledge (TK) of IPLCs. TK associated with biological resources provided by the IPLCs may provide valuable information to researchers regarding particular properties, value and potential use of the biological resources for the development of new medicines, cosmetics and etc.

NAGOYA PROTOCOL

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization is a supplementary agreement to the Convention on Biological Diversity (CBD). The Nagoya Protocol on ABS was adopted on 29 October 2010 to support the implementation of the third objective of the CBD: the fair and equitable sharing of benefits arising from the utilization of genetic resources. It entered into force on 12 October 2014.

Malaysia as a party to Nagoya Protocol on February 2019, recognises that an operational national law on ABS is important for the effective implementation of ABS at the domestic level. It will ensure that:

1. a transparent framework exists to facilitate access to biological resources, and to make sure that benefits are shared equitably and in a fair manner;
2. users shall negotiate mutually agreed terms with the providers prior to accessing any biological resource of interest; and
3. help to curb bio piracy activities in Malaysia.

ACCESS TO BIOLOGICAL RESOURCE IN MALAYSIA

According to the Act, person is said to have access to a biological resource if:

the taking of a biological resource from its natural habitat or place where it is kept, grown or found including in the market for the purpose of research and development; or
there is a reasonable prospect as determined by the Competent Authority that a biological resource taken by the person will be subject to research and development.

For the purpose of this Act, access to a biological resource shall not include the following activities:

1. fishing for commerce, recreation or game;
2. taking animals or plants for food;
3. taking biological resource that has been cultivated or tended for any purpose other than the purpose of research and development;
4. taking natural produce including oils and honey for any purpose other than the purpose of research and development;
5. collecting plant reproductive material for propagation;
6. carrying out commercial forestry;
7. in relation to indigenous community and local community, for the use and exchange of the biological resource among themselves in the exercise of their traditional and customary practices;
8. taking of a biological resource by any person that is:
   • a living modified organism as defined in the Biosafety Act 2007 [Act 678] for which intellectual property rights have been granted and subsist; or
   • a plant variety for which a breeder’s right has been granted and subsists under the Protection of New Plant Varieties Act 2004 [Act 634];

For all interested parties, especially researchers, "take" is interpreted in the Act includes:

1. in relation to an animal, to harvest, catch, capture, trap and kill or obtain in any other way;
2. in relation to a plant specimen, to collect, harvest, pick, gather and cut or obtain in any other way;
3. in relation to other biological resources including microorganisms, to collect, pick or obtain in any other way; or
4. to obtain a biological resource in any other way.