Déjà Vu, All Over Again? Thickets, Webs and Contractual Governance Arising Out of the Protection of Traditional Knowledge Under the Nagoya Protocol

Pharmaceutical and biotechnological researchers have expressed fears that the access and benefit-sharing rights to traditional knowledge associated with genetic resources created by the Nagoya Protocol to the Convention on Biological Diversity may cause “chilling” effects on pharmaceutical and biotechnological development. In seeking to understand to what degree such fears may be justified, this discussion questions of the nature of these rights, whether they are likely to form matrices of interlinked rights and, if so, the pattern such matrices may take. In doing so, it investigates comparisons with the structures of patent “thickets” arising in sequential complex technology areas and in the fields of pharmaceuticals and biotechnology. It goes on to investigate whether there is any potential for contractual governance approaches to ameliorate any chilling effect of such access and benefit sharing rights.