Draft Access and Benefit Sharing (ABS) Law for Pakistan

7/31/2019 Draft Access and Benefit Sharing (ABS) Law for Pakistan

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ABS DRAFT ACT v12 26 July 2012

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ISLAMABAD, [date]

PART I

Acts, Ordinances, Presidents Orders and Regulations

SENATE SECRETARIAT

Islamabad, [date]

No. [insert text]

Act No. [number] of 2012

An Act to provide for facilitating access to genetic resources and their derivatives for

environmentally sound uses, protecting traditional knowledge associated with them, equitably

sharing benefits derived from them, and promoting technology transfer and building scientificknowledge and technological capacity associated with them;

WHEREAS it is necessary to recognize the historical contribution that communities

throughout Pakistan have made to the conservation, development and sustainable utilization

of biological resources of the country;

AND WHEREAS, Pakistan is a Party to the United Nations Convention on Biological

Diversity (CBD) and to the International Treaty on Plant Genetic Resources for Food and

Agriculture (ITPGRFA) whose implementation requires, among other things, the enactment

of legislation governing access to genetic resources and equitable sharing of the benefits

resulting from their use;

AND WHEREAS, it is necessary to protect and encourage the customary use of genetic

resources by communities throughout Pakistan, and protect against their misuse, in order to

ensure the in-situand ex-situconservation and sustainable use of biological resources;

AND WHEREAS, it is necessary to recognize and protect the traditional knowledge

generated and accumulated by custodians and communities with respect to the conservation

and utilization of genetic resources and promote the wider application of such knowledge

with the involvement and approval of such custodians and communities and the equitable

sharing with such custodians and communities of any benefits resulting from the use of their

traditional knowledge;

AND WHEREAS, in order to realize these objectives, it is necessary to determine by law the

manner of access to genetic resources and traditional knowledge associated with them, and

to provide for the rights of custodians and communities to equitably share in benefits

resulting from the use of their traditional knowledge, and of genetic resources of which they

are the owners;

It is hereby enacted as under:-


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Chapter 1

(Preliminary)

1. Short title, extent and commencement.-

(1) This Act shall be called the Pakistan Access to Genetic Resources and

Benefit-sharing Act, 2012.

(2) It shall extend to the whole of Pakistan.

(3) It shall come into force at once.

2. Definitions.-

In this Act, unless there is anything repugnant in the subject or context,

(1) Access means obtaining, from any source, and using, genetic resources

or their derivatives and any associated traditional knowledge for purposes

of conservation, research, or commercialization.

(2) Access agreement means the agreement entered into between the ownerof the biological resource or the custodian of the traditional knowledge (asthe case may be) and the Applicant.

(3) Access permit means the permit issued by the permitting authority underSection 11(19) of this Act.

(4) Applicant means a person seeking access to genetic resources and their

derivatives and any associated traditional knowledge.

(5) Benefit sharing means the equitable distribution of the results of access to

genetic resources and their derivatives and any associated traditional

knowledge and includes both monetary and non-monetary benefits.

(6) Biodiversity or biological diversity means the variability among living

organisms from all sources including, among other things, terrestrial,

marine and other aquatic ecosystems and the ecological complexes of

which they are a part; this includes diversity within species, between

species and of ecosystems.

(7) Biological resources includes genetic resources, organisms or parts

thereof, populations, or any other biotic component of ecosystems with

actual or potential use or value for humanity, excluding human genetic

resources.

(8) Biotechnology means any technological application that uses biological

systems, living organisms, or derivatives thereof, to make, or modify

products or processes for any specific use.

(9) Certificate of compliance means the access permit which certifies that a

genetic resource or derivative and any associated traditional knowledge


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have been accessed in accordance with prior informed consent and that

mutually agreed terms have been established.

(10) Community means a human population that defines itself, and whose

members are dependent on each other and share physical space whether

living in a distinct geographical area or moving seasonally from place to

place.

(11) Confidential Information means all know-how, financial information and

other commercially valuable or sensitive information in whatever form,

which a party marks as confidential or proprietary and discloses to the

other party. The following are exceptions to such information:

a. information which is lawfully in the public domain prior to itsdisclosure to a party by another party;

b. information which enters the public domain otherwise than as aresult of an unauthorised disclosure;

c. information which is or becomes lawfully available to the recipient

party from a third party who has the lawful power to disclose suchinformation to the recipient party on a non-confidential basis; and

d. information which is rightfully known by the recipient party (asshown by its written record) prior to the date of disclosure.

(12) Court means any Courts established by or under any laws of the Islamic

Republic of Pakistan.

(13) Custodian means the person or community that holds traditional

knowledge.

(14) Derivative means a naturally occurring biochemical compound resulting

from the genetic expression or metabolism of biological or genetic

resources, even if it does not contain functional units of heredity.

(15) Ecosystem means a dynamic complex of plant, animal and micro-

organism communities and their non-living environment interacting as

functional unit.

(16) Environmental impact assessment means an environmental study

comprising collection of data, prediction of qualitative and quantitative

impacts, comparison of alternatives, evaluation of preventive, mitigatoryand compensatory measures, formulation of environmental management

and training plans and monitoring arrangements and framing of

recommendations and such other components as may be prescribed.

(17) Ex-situconservation of genetic resources means the conservation of

genetic resources outside the natural habitats of the biological resources

of which they are a part or the surroundings where they have developed

their distinctive properties.

(18) Ex-situfacility means gene banks, seed banks, sperm banks, and othertypes of storage services for genetic resources including those that may

be maintained by the private sector, universities, zoos, botanical gardens,


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herbaria and other similar national institutions, and international

organizations.

(19) Field research means preliminary investigation in in-situconditions into

biological resources and any associated traditional knowledge.

(20) Genetic resources means any material derived from plants, animals, fungior microorganisms which contains functional units of heredity and which

has actual or potential value for humanity.

(21) Government means the person or persons authorized by law to administer

executive Government in Pakistan, or in any part thereof.

(22) In-situconservation of genetic resources means conservation of the

biological resources of which they are a part, in the natural habitats of the

biological resources, and, in the case of domesticated or cultivated

species, in the surroundings where they have developed their distinctiveproperties. In-situconservation of plant genetic resources means

conserving the plants where they grow naturally. In-situconservation of

animal genetic resources means conserving the animals in their natural

habitats.

(23) Initial environmental examination means a preliminary environmental

review of the reasonably foreseeable qualitative and quantitative impacts

on the environment of a proposed project to determine whether it is likely

to cause an adverse environmental effect, requiring preparation of an

environmental impact assessment.

(24) Intellectual property rights means rights established by any statute or

customary law over any property created through intelligent activity of the

human mind, in the form of patents, trademarks, design, protection of plant

varieties and animal breeds, copyrights, and traditional knowledge.

(25) IPO means the Intellectual Property Organization of Pakistan organized

and existing under the Intellectual Property Organization of Pakistan

Ordinance, 2005 or any modifications thereof.

(26) Material transfer agreement means the agreement used to exchange

genetic resources and derivatives between two ex-situfacilities.

(27) Mutually agreed terms means the conditions for access to genetic

resources and any associated traditional knowledge and the way in which

monetary and non-monetary benefits from their use will be shared, as

freely decided between an Applicant, the owner of a biological resource,

the custodian of any associated traditional knowledge, and the permitting

authority.

(28) No Objection Certificate means a document issued by the permitting

authority pursuant to Chapter 3 Section 11(4) of this Act.


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(29) Permit holder means the person to whom an access permit is issued and

the person who receives genetic resources or derivatives as a party to a

material transfer agreement.

(30) Permitting Authority means the governmental authority responsible for

granting access to genetic resources and regulating matters associatedtherewith under this Act.

(31) Person means a natural or juridical person.

(32) Plant genetic resources for food and agriculture means any genetic

material of plant origin of actual or potential value for food and agriculture.

(33) Prior informed consent means the basis on which the owner, the custodian

and the permitting authority, properly supplied with all the required

information, agree to permit access to biological resources, anyderivatives of genetic resources, and any associated traditional

knowledge.

(34) Protected area means a geographically defined area which is designated

or regulated and managed to achieve specific conservation objectives.

(35) Traditional knowledge means knowledge, practices, innovations or

technologies created, developed and held by a custodian thereof and

handed down through generations by long standing traditions, oral or

written transmission.

3.Scope of Application.-

(1) This Act shall apply to access to genetic resources found in in-situ or ex-situ

conditions and traditional knowledge associated therewith and to the equitable

sharing of benefits resulting from their use.

(2) Notwithstanding the provision of Sub-section (1) of this Section, provisions of this

law shall not apply to:

(a) the customary use and exchange of genetic resources and traditional

knowledge by and among communities;

(b) the customary or commercial exchange of biological resources for

processing or direct consumption, that does not involve the use of the

genetic resources thereof;

(c) human genetic resources; and

(d) genetic resources governed by the International Treaty on Plant Genetic

Resources for Food and Agriculture (ITPGRFA).

4. Ownership.-

(1) Ownership of genetic resources shall be vested in owners of the biological

resources from which the genetic resources are derived, subject to title of

ownership being established under the applicable laws. Where no such title exists

or where the biological resources are owned by the State, ownership of genetic


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resources shall be vested in the people of Pakistan and be administered by the

Government in trust for the people of Pakistan.

(2) The ownership of traditional knowledge shall be vested in the custodian thereof.

Chapter 2(Community Rights)

5. Principle.-

Communities shall have the following rights over the traditional knowledge of which they

are custodians:

(1) the inalienable right to use their traditional knowledge in their customary ways;

(2) the right to regulate the access to their traditional knowledge;

(3) the right to share the benefits arising out of the utilization of their traditional

knowledge.

6. Use right.-

Communities shall have an inalienable right to use and exchange among themselves

genetic resources and any associated traditional knowledge in the course of sustaining their

livelihoods in accordance with the applicable laws.

7. Right to regulate access to traditional knowledge.-

(1) The right of communities to regulate access to their traditional knowledge shall

include the following:

(a) the right to give or withhold their prior informed consent for access to their

traditional knowledge;(b) the right to withdraw or restrict any prior informed consent they have

given for access to their traditional knowledge where they find that such

consent is likely to be detrimental to their socio-economic life or their

natural or cultural heritage;

(c) the right to demand the suspension or revocation of their prior informed

consent as expressed in the access permit.

(2) The conditions and the procedure in accordance with which an Applicant may

approach communities to secure prior informed consent for access to their

traditional knowledge shall be specified by rules and regulations made under this

Act.

8. Right to share benefits.-

Communities shall have the right to share in all benefits arising out of the utilization of

traditional knowledge that they hold as custodians and any such benefits shall be equitably

shared among all members of the concerned communities.

9. Protection of community rights.-

(1) The rights of communities over biological resources of which they are the owners

and any associated traditional knowledge of which they are the custodians shall

be protected.


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(2) Traditional knowledge shall have the like protection of undisclosed information

and secret under Section 67 of the Trade Marks Ordinance 2001, and any

modification thereof.

(3) Any use of traditional knowledge that is not explicitly authorized by the custodian

shall constitute an act of unfair trade practice cognizable under the Trade Marks

Ordinance 2001, any modification thereof, or any other applicable laws.

(4) The publication or oral description of traditional knowledge associated with any

given genetic resource, or the existence of documentation of traditional

knowledge associated with any genetic resource held in an ex-situ facility, shall

not affect its protection under Sub-sections (1), (2) and (3) of this Section.

Chapter 3

(Permits and Procedures)

10. Consent and permit required.-

(1) Access to genetic resources shall be subject to the prior informed consent of

the owner of the biological resource and to mutually agreed terms set out in an access

agreement, which is attached as Schedule I of this Act.

(2) Access to traditional knowledge shall be subject to the prior informed consent

of the custodian and to mutually agreed terms set out in an access agreement.

(3) No person may commence field research related to access to genetic

resources and traditional knowledge unless in possession of a No Objection Certificate(NOC) from the permitting authority and no person may access biological resources in in-situ

conditions and any associated traditional knowledge unless in possession of an access

permit issued by the permitting authority.

(4) Public and private national universities and research institutions that are not

associated with a non-national Applicant may be eligible for an expedited permitting

procedure, which may be set out in the Regulations to this Act.

(5) No person shall be eligible to export genetic resources out of Pakistan unless

in possession of:

(a) an access permit issued by the permitting authority;

(b) a duly executed material transfer agreement, for transfers between ex-

situfacilities of genetic material not governed by the ITPGRFA, which

is attached as Schedule II of this Act; or

(c) a duly executed standard material transfer agreement as required

under the ITPGRFA.

(6) No person shall import into Pakistan genetic resources that are not

accompanied by a certificate of compliance from the country of origin, or a material transfer

agreement as specified in Section 13.


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(7) All permit applications shall be made in prescribed form and shall be subject

to non-refundable fees. Renewals of permits may be subject to a reduced fee. Applicable

fees shall be notified from time to time by the permitting authority.

(8) In addition to the fees prescribed in sub-Section 7, all costs of the procedures

prescribed in this Act are the responsibility of the Applicant.

(9) A non-national Applicant must submit proof of its formal association with a

national public or private entity with capacities or activities in fields related to access to

genetic resources.

(10) A non-national Applicant must be accompanied in all activities carried out

under an access permit by a representative of the national entity with which it is associated

for the purposes of this Act.

11. Procedure for access to genetic resources from in-situconditions

(1) An Applicant shall submit to the permitting authority a formal expression ofintent to carry out field research related to access to genetic resources and traditional

knowledge.

(2) On receipt of such expression of intent, the permitting authority shall inform

the authorities of the province or provinces involved.

(3) The authorities of the province or provinces involved shall cause public notice

of the expression of intent to be disseminated, in particular using media that are accessible

to the community or communities that may be involved.

(4) If there is no objection to the research activity described in the formal

expression of intent, the permitting authority shall issue the NOC.

(5) In the event that there is an objection, the permitting authority shall conduct a

public hearing, giving all parties involved an opportunity to be heard, and based on the

material and records presented, shall make a just order either by issuing the NOC or by

denying such issuance and shall communicate the reasons to all parties in writing. Following

a rejection, an Applicant may submit a new expression of intent which reflects and addresses

the reasons for the rejection.

(6) Any NOC issued for the purposes of this Act shall be final and binding on all

concerned government authorities.

(7) When, on the basis of the results of field research conducted under a valid

NOC, an Applicant determines that it wants to enter into an access agreement or

agreements with owners of biological resources and custodians, it shall notify the permitting

authority, which shall notify the provincial authorities concerned, and proceed to negotiate

the access agreement.

(8) An access agreement shall use one of the formats which are attached as

Schedules I-A, I-B, and I-C to this Act, as appropriate.


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(9) An access agreement may be entered into between the Applicant and:

(a) a person who is both the owner of the biological resource and the

custodian of the associated traditional knowledge;

(b) the owner of biological resource and the custodian of the associated

traditional knowledge; or

(c) a custodian only.

(10) A community that wants to enter into an access agreement with an Applicant

may be represented by a community based organization, whether incorporated or not, which

is empowered to bind its members for the performance of their obligations and enjoyment of

the rights under any such agreements.

(11) A community custodian or an individual custodian that wants to enter into an

access agreement with an Applicant may be assisted by a duly registered non-governmental

organization. Such support shall be arranged by the permitting authority and shall be

provided at the expense of the Applicant. The permitting authority shall, by notification,

stipulate the conditions for supporting individual custodians in negotiating an accessagreement with an Applicant.

(12) The provincial government or governments concerned must review and endorse

all access agreements, in consultation with the community or communities involved, in order

to ensure that community concerns and demands are safeguarded.

(13) An access agreement is not an access permit and is only valid when it is

annexed to a permit issued by the permitting authority.

(14) Once an access agreement has been concluded, an Applicant may submit tothe permitting authority an application for an access permit, in the form which is attached as

Schedule III to this Act.

(15) On receipt of an application, the permitting authority shall inform the

authorities of the province or provinces involved, taking into account any request from the

Applicant not to disclose confidential information made under Section 12.

(16) On receipt of information from the permitting authority under sub-Section 15 of

this Section, the authorities of the province or provinces involved shall cause public notice of

the application to be disseminated, using a mode of public communications that is readily

accessible by the concerned community or communities.

(17) On receipt of an application for an access permit, the permitting authority, in

consultation with the provincial authorities and, where applicable, the communities

concerned, shall determine:

(a) Whether the activities involved in the access applied for require an

initial environmental examination or environmental impact assessment

and, if so, direct the Applicant to fulfill such requirements prior to

proceeding with the access permit application process;

(b) Whether the application requests access to biological resources that

are protected under any Pakistani law and, in particular, under any law

or regulations implementing Pakistans obligations under the


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Convention on International Trade in Endangered Species of Fauna

and Flora (CITES);

(c) Whether the application requests access to biological resources that

are found in a protected area;

(d) Whether the activities involved in the access applied for may cause

adverse impact on the environment in general and biodiversity in

particular, including but not limited to ecosystem degradation; and(e) Whether the activities involved in the access applied for may have

adverse effects upon human health and the livelihoods of the

concerned community or communities.

(18) If the permitting authority determines that there is an issue arising under sub-

Sections (b), (c), (d), or (e) of sub-Section 17 of this Section, the permitting authority shall

request the Applicant to submit in writing further information demonstrating measures it will

take to avoid or mitigate such impacts.

(19) On receipt of all required information, the permitting authority shall:(a) issue the access permit, in the form which is attached as Schedule IV

to this Act; or

(b) reject the application and provide written justification for such rejection

to the Applicant. Justification for rejecting an application may include,

but is not limited to, a finding by the permitting authority that the

additional information requested under Section 18 of this Section does

not resolve an issue arising under sub-Sections (b), (c), (d), or (e) of

sub-Section 17 of this Section.

(20) The permitting authority shall cause public notice of the permit to bedisseminated, taking into account any request from the Applicant not to disclose confidential

information under Section 12, and send a copy of the permit to the concerned provincial

authorities, resource owners, and custodians.

(21) The permitting authority shall cause public notice of rejection of an application,

the justification for the rejection, and the invalidation of any access agreement entered into

for the purposes of the application, to be disseminated and shall communicate the same

information to the concerned provincial authorities, resource owners, and custodians.

(22) Any access permit issues for the purposes of this Act shall be final and

binding on all concerned government authorities.

(23) The access permit shall serve as the international certificate of compliance.

(24) Where a permit holder is in full compliance with all terms and conditions, an

access permit may be renewed at the discretion of the permitting authority.

(25) Detailed procedures for applications and renewals, including timelines for

responses by the permitting authority, shall be notified by the permitting authority.

12. Confidential information

No information shall be disclosed to the public which relates to:


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(f) Profit-sharing in case of commercialization;

(g) Special fees to be paid to trust funds supporting conservation and

sustainable use of biodiversity;

(h) Salaries and preferential terms where mutually agreed;

(i) Research funding;

(j) Joint ventures;

(k) Establishment of a venture capital fund to support in-country researchand development.

(4) Non-monetary benefits may include, but shall not be limited to:

(a) Sharing of research and development results;

(b) Collaboration, cooperation and contribution to scientific research and

development programmes, particularly biotechnological research

activities, where possible in the province or district providing genetic

resources;

(c) Participation in product development;

(d) Collaboration, cooperation and contribution in education and training;

(e) Access to international ex-situ facilities and databases;(f) Transfer to the provider of the genetic resources of knowledge and

technology under fair and most favourable terms, including on

concessional and preferential terms where agreed, in particular,

knowledge and technology that make use of genetic resources,

including biotechnology, or that are relevant to the conservation and

sustainable utilization of biological diversity;

(g) Strengthening capacities for technology transfer;

(h) Institutional capacity-building including, but not limited to, donation of

research equipment;

(i) Human and material resources to strengthen the capacities for theadministration and enforcement of this Act, and any Rules and

Regulations thereunder;

(j) Training related to genetic resources with the full participation of the

provinces and communities countries providing genetic resources, and

where possible, in such provinces and communities;

(k) Access to scientific information related to the genetic resources

accessed and also to information relevant to conservation and

sustainable use of biological diversity, including biological inventories

and taxonomic studies;

(l) Contributions to the local economy, including locating research and

production facilities in the province or district where genetic resources

or traditional knowledge are accessed, where appropriate;

(m) Research directed towards priority needs, such as health and food

security, taking into account domestic uses of genetic resources by the

community providing genetic resources;

(n) Institutional and professional relationships that can arise from an

access and benefit-sharing agreement and subsequent collaborative

activities;

(o) Food and livelihood security benefits;

(p) Social recognition;

(q) Joint ownership of intellectual property rights.


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15. Benefit sharing.-

(1) In cases in which there is an access agreement for access to genetic

resources in-situ and associated traditional knowledge and the custodian of

the traditional knowledge is also the owner of the biological resources:

(a) not less than sixty (60) per cent of any monetary benefits shall be

distributed to the custodians for use of their traditional knowledge as

set out in the access agreement;(b) not less than twenty-five (25) per cent of any monetary benefits arising

from use of genetic resources shall be allocated in equal shares to the

province or provinces in which the biological resources were accessed,

and shall be allocated by that province or those provinces for

conservation of biodiversity and traditional knowledge and the social

welfare of the communities involved;

(c) up to fifteen (15) per cent of any monetary benefits shall be allocated

to the permitting authority for the operation of the permitting and

monitoring system for access to genetic resources and benefit sharing.

(2) In cases in which there is access to genetic resources in-situand associated

traditional knowledge and the custodian of the traditional knowledge and the

owner of the biological resources are different persons:

(a) not less than forty (40) per cent of any monetary benefits shall be

distributed to the custodians for use of their traditional knowledge as

set out in the access agreement;

(b) not less than twenty-five (25) per cent of any monetary benefits shall

be allocated to the owner of the biological resources;

(c) Not less than twenty (20) per cent of any monetary benefits arising

from use of genetic resources shall be allocated in equal shares to theprovince or provinces in which the biological resources were accessed,




(d) up to fifteen (15) per cent of any monetary benefits shall be allocated


monitoring system.

(3) In cases in which there is access to genetic resources in-situand no access to

traditional knowledge:


allocated to the owner of the biological resources;

(b) not less than twenty-five (25) per cent of any monetary benefits arising

from use of genetic resources shall be allocated in equal shares to the

province or provinces in which the biological resources were accessed,




(c) up to fifteen (15) per cent of any monetary benefits shall be allocated


monitoring system.


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(4) In cases in which there is access to genetic resources ex-situand access to

associated traditional knowledge:


distributed to custodians for use of their traditional knowledge as set

out in the access agreement;

(b) not less than twenty-five (25) per cent of any monetary benefits shall

be allocated to the ex-situ facility;(c) up to fifteen (15) per cent of any monetary benefits shall be allocated

to the permitting authority in the jurisdiction where the ex-situfacility is

located.

(5) The non-monetary benefits arising from access to genetic resources and

associated traditional knowledge shall be determined:

(a) by the parties to an access agreement; and

(b) by the permitting authority and set out in the access permit.

16. Benefit distribution.-(1) The permit holder shall transfer benefits directly to custodians, resource

owners, provincial governments and the federal government, as stipulated in the access

permit.

(2) The permit holder shall distribute monetary benefits in the shares stipulated in

Section 15 and shall, on the date of transfer of the funds, provide to each beneficiary a

written account of the allocation and distribution thereof.

(3) Non-monetary benefits shall be shared and distributed as stipulated in the

access agreement and access permit.

17. Amendment, suspension or revocation of permit.-

(1) The permitting authority may at any time amend, suspend or revoke any

permit on the following grounds:

(a) Evidence of incomplete or false information in the original application;

(b) Non-compliance with or violation of any of the conditions of the access

permit or material transfer agreement;

(c) Refusal to allow inspection;

(d) Suspension or revocation of an import license or export license for

genetic material;

(e) Suspension or revocation of any license for research and for engaging

in any type of commercial or industrial activity related to genetic

resources and traditional knowledge;

(f) Conviction of the permit-holder for a violation of this Act or other

applicable legislation;

(g) Demand by a community to revoke its prior informed consent as

expressed in the access agreement;

(h) Availability of new information indicating that the activities involved in

access may create risks to livelihoods and the environment, including

but not limited to genetic erosion and degradation and depletion of the

resource which cannot be feasibly averted; and


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(i) Any other grounds as may be notified by the permitting authority from

time to time.

(2) Where the permitting authority decides to amend, suspend or revoke an

access permit, it shall communicate same to the concerned provincial authorities, resource

owners, and custodians, where applicable.

Chapter 4

(Compliance Monitoring)

18. Inspection and reporting.-

(1) The permitting authority shall monitor compliance with access permits and

material transfer agreements through the following mechanisms:

(a) inspection;

(b) periodic progress and status reports by permit holders;

(c) a report or complaint by any other person; and

(d) any other mechanism deemed appropriate.

(2) The permit holder shall submit to the permitting authority periodic reports on

the activities specified in the access permit or material transfer agreement, the progress of

any research, and the findings therefrom, and the distribution of benefits during the reporting

periods, and shall, no later than thirty (30) days from the date of publication, submit to the

permitting authority paper and electronic copies of any publications resulting from the

activities being carried out under the permit.

(3) In the case of a non-national permit holder associated with a national

institution, the permit holder and the associated national institution shall jointly submit thereport required in sub-Section 2, specifying the activities and results produced by each.

(4) The permitting authority shall transmit the reports required under this Section,

and copies of any publications, to the concerned provincial authorities, which shall be

responsible for appropriately disseminating to the concerned resource owners and

custodians in their respective provinces the information contained in the reports and

publications.

19. Community policing.-

(1) The permitting authority shall be responsible for coordinating with provincial

authorities and other enforcement authorities to ensure that community policing is

appropriately incorporated into mechanisms for monitoring compliance with this Act and with

the terms of access agreements and access permits.

(2) Community policing in the context of access to genetic resources includes, but

is not limited to, establishing a basis for:

(a) guaranteeing the conservation of biological resources and the

sustainability of their use;

(b) protecting traditional knowledge and its custodians; and

(c) collaborating between governmental enforcement authorities and the

community to ensure that the provisions of this Act are not violated.


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Chapter 5

(Information, Awareness, Public Participation, and Capacity Building)

20. Communication with Clearing-house Mechanism.-

The permitting authority shall be responsible for communicating to the national focal

point of the CBD Clearing-house Mechanism all information concerning the implementationof this Act as required by the CBD Clearing-house Mechanism.

21. Public education, awareness, and participation.-

(1) The permitting authority shall collaborate with the appropriate federal and

provincial authorities to ensure that issues related to access to genetic resources and benefit

sharing are appropriately integrated into the curricula of primary, secondary, and university-

level education in Pakistan.

(2) The permitting authority shall be responsible for coordinating with the

appropriate federal and provincial authorities to promote public awareness of access togenetic resources and associated traditional knowledge and benefit sharing in Pakistan.

(3) The permitting authority shall be responsible for ensuring public participation

in the decision making processes concerning access to genetic resources, traditional

knowledge and benefit sharing.

22. Professional capacity building.-

The permitting authority shall be responsible for:

(1) coordinating with the appropriate federal and provincial authorities to create

opportunities in the country for professional capacity building in fields related to access to

genetic resources, traditional knowledge and benefit sharing;

(2) ensuring that non-monetary benefits supporting professional capacity building,

in-country and abroad, in fields related to access to genetic resources, traditional knowledge

and benefit sharing are included in access permits.

Chapter 6

(Research and Technology Transfer)

23. Research.-(1) The Government shall promote the creation of domestic research and

development capacity in the field of genetic resources and shall promote domestic research

in support of the preservation of traditional knowledge and shall prepare regulations to

govern conduct of research and development involving genetic resources in Pakistan.

(2) The permitting authority shall:

(a) in cooperation with all appropriate federal and provincial authorities,

promote national research programmes which contribute to the conservation and

sustainable use of biological resources;


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(b) coordinate cooperation in international programmes to conduct

research and develop methods for conserving and sustainably using biological

resources and for conserving and protecting traditional knowledge;

(c) coordinate with the Higher Education Commission, national research

institutions, and other appropriate federal and provincial institutions, to ensure the

creation of research programmes that are relevant to the objectives of this Act;

(d) ensure that provisions for non-monetary benefits that facilitate and

support the creation of domestic research and development capacity in the field of

genetic resources and their derivatives are included in access permits.

24. Technology transfer.-The permitting authority shall:

(1) coordinate with the appropriate federal and provincial authorities to createeconomic and fiscal opportunities in the country that facilitate the transfer of biotechnology

and other technologies, and technical information, to support the development of domestic

capacity for research and development in fields related to genetic resources and their

derivatives;

(2) ensure that non-monetary benefits facilitating and supporting transfer of

biotechnology and other technologies in fields related to genetic resources and their

derivatives are included in access permits.

Chapter 7

(Administration of Access)

25. Powers and functions of the permitting authority.-

(1) Without prejudice to the powers delegated to it in other provisions of this Act,

the permitting authority shall have the powers to:

(a) initiate inquiries and investigations into issues arising from access to

biological resources, genetic resources, and derivatives, at its own

discretion or on complaint from any person;

(b) require any person to furnish any information or data relevant to its

functions;

(c) establish panels comprising of technical experts, of which at least halfof the members shall be drawn from scientific, academic, legal, andnon-governmental organization sectors, to analyze and advise asneeded, on issues arising from the implementation of this Act;

(d) initiate, with the approval of the Federal Government, requests for

foreign assistance in support of the purposes of this Act and enter into

arrangements with foreign agencies and organizations for the

exchange of material or information;

(e) initiate, with the approval of the Federal Government, requests for

repatriation of information related to genetic resources of which

Pakistan is the country of origin;

(f) initiate legal action against persons who have committed violations of

this Act; and


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(g) any other power that may be delegated to it by the Federal

Government.

(2) Without prejudice to the functions assigned to it in other provisions of this Act,

the permitting authority shall have the functions to:

(a) administer and implement the provisions of this Act and the rules and

regulations made thereunder;(b) assist local and provincial authorities in carrying out the functions

assigned to them under this Act;

(c) collect, analyze and as necessary appropriately disseminate

information on all issues matters arising under this Act;

(d) recommend to the Federal Government the adoption of financial and

fiscal programmes, schemes or measures for achieving the purposes

of this Act, including but not limited to:

(i) incentives, prizes awards, subsidies, tax exemptions, rebates

and depreciation allowances; and

(ii) taxes, duties, cesses and other levies; and(e) any other function that may be assigned within the scope of this Act.

Chapter 8

(Appeals, Offences and Penalties)

26. Appeals.-

Any person aggrieved by any order or direction of the permitting authority under any

provision of this Act and its rules and regulations may, within thirty (30) days of the date of

communication of the impugned order or direction to such person, prefer an appeal before

the court having jurisdiction.

27. Offences and penalties.-

(1) Any person who:

(a) accesses genetic resources or traditional knowledge without obtaining

an access permit from the permitting authority;

(b) provides false information in the access permit application or in the

course of subsequent monitoring of an access permit or material

transfer agreement;

(c) breaches in any respect the terms and conditions of the access permit,

including the access agreement;

shall, without prejudice to the confiscation of the biological resource accessed

and any materials and equipment used in the commission of the offense, the

cancellation of the access permit, and the civil liability arising therefrom, be

punished, depending on the gravity of the circumstance, with rigorous

imprisonment of not more than three (3) years and a fine of not more than

three hundred thousand rupees (Rs. 300,000./-).

(2) Where the offence committed involves biological resources endemic to

Pakistan or which are protected under any national law or listed pursuant to any

international agreement, the punishment shall be, depending on the circumstance,

rigorous imprisonment of not more twelve (12) years and a fine of not more than four

hundred thousand rupees (Rs. 400,000./-).


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Chapter 9

(Miscellaneous Provisions)

28. Import and export.-

No customs officer shall:

(1) accept a permit for export of genetic resources, or biological resources to be

used for the purpose of accessing genetic resources, that is not accompanied by an accesspermit issued by the permitting authority; and

(2) allow the import into Pakistan of genetic resources that are not accompanied

by an international certificate of compliance.

29. Power to make rules.-

The Federal Government may, by notification in the official Gazette, make rules for

carrying out the purposes of this Act.

30. Power to make regulations.-For carrying out the purposes of this Act, the permitting authority may, by notification

in the official Gazette and with the approval of the Federal Government, make regulations not

inconsistent with the provisions of this Act or the rules made thereunder.

31. Power to amend the Schedules.-

The permitting authority may, by notification in the official Gazette, amend the

Schedules to this Act so as to add any entry thereto or modify or omit any entry therein.

32. Duty to Cooperate.-

(1) Every person shall have the duty to cooperate with the permitting authority, all

concerned provincial authorities, communities, custodians and biological resource owners in

the implementation of this Act and all permits, Rules, Regulations and notifications issued

hereunder.

(2) The permitting authority is responsible for coordinating cooperation on access

to genetic resources with the appropriate authorities of other countries, particularly those that

are countries of origin of biological resources for which Pakistan is also a country of origin.

33. Inapplicable laws.-

The provisions of this Act shall have effect notwithstanding anything inconsistent

therewith contained in any other law, regulation, directive or practice with respect to matters

provided for by this Act.

Asif Ali Zardari,

President


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Schedule 1-A Access Agreement

20

SCHEDULE I-A

ACCESS AGREEMENTTo be used when the custodian of traditional knowledge and owner of biological resources

are the same person (Article 11(9)(a)

THIS AGREEMENT is made on the _____________ day of _____________, the year______

BETWEEN______________________________, hereinafter referred to as the Owner/Custodian ofbiological resources and associated traditional knowledge which term shall be deemed toinclude, as the case may be, his respective community, successors, officers, employees,contractors, agents and assigns, located at ______________________________,

REPRESENTED BY

______________________________, [insert legal name of organization representing theCustodian/Owner] hereinafter referred to as the Representative of the Custod ian/Owner,which term shall be deemed to include its respective successors, officers, employees,contractors, agents and assigns, having its office at ______________________________,and whose designated representative is ______________________________, [insert title ofthe designated representative of the organization representing the Custodian/Owner]

AND__________________________________, hereinafter referred to as the Applicant whichterm shall be deemed to include the Applicants successors, officers, employees,contractors, agents and assigns, located at ______________________________.

RECITALS:

Whereas the Custodian/Owner is in the possession and ownership of a biological resourceor biological resources and traditional knowledge associated therewith, as detailed inclauses 3.1 and 3.2, respectively, of this Agreement, and seeks to facilitate access to thesaid biological resources and associated traditional knowledge for gainful and beneficialpurposes keeping in mind the conservation of biodiversity, the sustainable use of itscomponents, and equitable sharing of benefits derived from its use; and

Whereas the Custodian/Owner is willing to give the Applicant access to the said biologicalresources and traditional knowledge associated therewith; and

Whereas the Applicant is interested in gaining access to the said biological resource(s) andthe traditional knowledge associated therewith;

This Agreement sets out the terms that the parties agree to apply to the taking and use ofthe biological resources and associated traditional knowledge.

Now this Agreement witnesseth as under:-

1. DEFINITIONS & INTERPRETATION1.1 Definitions

(1) ABS Act means the Pakistan Access to Genetic Resources and Benefit-sharing Act,2012.


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(2) Biological resources includes genetic resources, organisms or parts thereof,populations, or any other biotic component of ecosystems with actual or potential useor value for humanity, excluding human genetic resources.

(3) Commencement date means the date of the access permit to which this AccessAgreement is annexed.

(4) Confidential information means all know-how, financial information and othercommercially valuable or sensitive information in whatever form, which a party marksas confidential or proprietary and discloses to the other party. The following areexceptions to such information:(a) information which is lawfully in the public domain prior to its disclosure to a party

by another party;(b) information which enters the public domain otherwise than as a result of an

unauthorised disclosure;(c) information which is or becomes lawfully available to the recipient party from a

third party who has the lawful power to disclose such information to the recipientparty on a non-confidential basis; and(d) information which is rightfully known by the recipient party (as shown by its

written record) prior to the date of disclosure.

(5) Custodian means the person or community that holds traditional knowledge.

(6) Derivative means a naturally occurring biochemical compound resulting from thegenetic expression or metabolism of biological or genetic resources, even if it doesnot contain functional units of heredity.

(7) Intellectual property rights means rights established by any statute or customary law

over any property created through intelligent activity of the human mind, in the formof patents, trademarks, design, protection of plant varieties and animal breeds,copyrights, and traditional knowledge.

(8) Mutually agreed terms means the conditions for access to genetic resources and anyassociated traditional knowledge and the way in which monetary and non-monetarybenefits from their use will be shared, as freely decided between an Applicant, theowner of a biological resource, the custodian of any associated traditionalknowledge, and the permitting authority.

(9) Results means all information and tangible objects arising from the Applicants use ofbiological resources and associated traditional knowledge and any derivatives,including information published in accordance with clause 3.11 of this Agreement.

(10) Traditional knowledge means knowledge, practices, innovations ortechnologies created, developed and held by a custodian.

1.2 Interpretation(1) Headings are for convenience only and do not affect interpretation.

(2) The singular includes the plural and conversely, and a gender includes all genders.

(3) Where the Owner/Custodian or the Applicant is comprised of more than one personthe Owner/Custodians and the Applicants obligations apply to each person jointlyand severally.


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(4) A reference to any legislation or to any provision of any legislation includes anymodification or re-enactment of it, any legislative provision substituted for it and allregulations and statutory instruments issued under it.

2. COMMENCEMENT OF AGREEMENTThis Agreement commences on the date of issue of the access permit to which this AccessAgreement is annexed and shall remain valid for one (1) year unless terminated earlier orrenewed by the Permitting Authority prior to the expiration date.

3. MUTUALLY AGREED TERMS

3.1 Resources to be accessed

If more than one biological resource is to be accessed, add rows to the table below and

provide the specified information for each biological resource.

Biological resource

(a) Scientific classification:(b) Local language name(s):

(c) English language name:

(d) Characteristics for which the resource issought:

3.2 Traditional knowledge to be accessed

Insert a comprehensive description of the traditional knowledge associated with each

biological resource for which access is sought. If more than one biological resource is to be

accessed, add rows to the table below and provide the specified information for each

biological resource and the associated traditional knowledge.

Biological resource Associated traditional knowledge

3.3 Site(s) where access will be carried out

If access activities will be carried out in more than one site, add rows to the table below and

provide the specified information for each site.

Site

(a) Village/community:

(b) District:

(c) Province:

(d) Geographic location (longitude and latitude):

(e) GIS coordinates:

(f) Attach map

3.4 Activities to be carried out

Insert a comprehensive description of the activities to be carried out. If more than one

activity will be carried out for collection of biological resources and/or compilation of


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traditional knowledge, add rows to the table below and provide the specified description for

each activity.

Activity

Collection of biological resources:

Compilation of traditional knowledge:

3.5 Intended use and foreseen results

Insert a comprehensive description of the intended use of the biological resources and

associated traditional knowledge and of the foreseen results.

Intended use:

Foreseen results:

3.6 Custody, transfer and storage

(1) The Applicant must not, without the prior written permission of the

Owner/Custodian:

(a) use the biological resources and the associated traditional knowledge or the

results for any purpose other than the intended use and foreseen results

described in clause 3.5 of this Agreement;

(b) sell, loan, or otherwise provide the biological resources and the associated

traditional knowledge or the results to any third party; or

(c) use or store the biological resources and the associated traditional knowledge

in any location where they are not under the direct supervision of the

Applicant or the Applicants legally-designated representative.

(2) The Owner/Custodian acknowledges that the biological resources accessed

under this Agreement will be of limited quantity and may be exhausted during the

intended use.

3.7 Compensation and benefit-sharing

(1) The Applicant undertakes to bear all costs, expenses, fees, levies and taxes

incurred by the Owner/Custodian in entering into this Agreement.

(2) The Applicant undertakes to bear all costs, expenses, fees, levies and taxesincurred in accessing the biological resources and associated traditional

knowledge specified in this Agreement, including:

(a) Salaries and other costs of persons hired to assist with the activities to be

carried out as specified in clause 3.4 of this Agreement (specify amounts of

salaries and of each other cost):

(b) Costs incurred by the Representative (specify each cost):

(3) The Applicant undertakes to provide the following benefits, regardless of

commercialization of any results:

(select one or more, provide specifics related to this particular accessagreement, delete the options that are not used)


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(a) Up-front payment (specify or delete):

(b) Milestone payments (specify or delete):

(c) Contributions to local livelihood security and the local economy (specify or

delete):

(d) Contributions to health and food security in the community or communities

where access activities are carried out, taking into account domestic uses ofbiological resources by the community or communities providing the

resources (specify or delete):

(e) Public recognition of the contribution of the Owner/Custodian and of the

members of the community or communities where access activities are

carried out (specify or delete):

(f) Donation of tools and equipment (specify or delete):

(g) Sharing information gathered during the access activities described in clause

3.4 of this Agreement, in a language and format that is accessible to and

usable by the Owner/Custodian and members of the community or

communities where access activities are carried out (specify or delete):(h) Training to enable the Owner/Custodian and members of the community or

communities where access activities are carried out to participate in the

activities described in clause 3.4 of this Agreement (specify or delete):

(i) Funding for educational opportunities in-country and abroad for the

Owner/Custodian and members of the community or communities where

access activities are carried out, particularly in fields relevant to conservation

and sustainable use of biological diversity, including biological inventories and

taxonomic studies, biotechnology, and maintenance of traditional knowledge

(specify or delete):

(j) Training and funding for educational opportunities to enable theOwner/Custodian and members of the community or communities where

access activities are carried out to participate in research and development of

products using biological resources and associated traditional knowledge


(k) Any other benefit (specify or delete):

(4) In the event of commercialization of any results, the Applicant undertakes to

provide the following benefits to the Owner/Custodian:

(select one or more, provide specifics, and delete the options that are not

used)(l) Payment of royalties (specify or delete):

(m) License fees (specify or delete):

(n) Profit-sharing (specify or delete):

(o) Establishment of a trust fund to support conservation and sustainable use of

biological resources at the access site(s) (specify or delete):

(p) Funding to enable the Owner/Custodian and/or other members of the

communities at the access sites to participate in research (specify or

delete):

(q) Joint venture (specify or delete):


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3.8 Ownership and licensing of the biological resources and associated traditional

knowledge

(1) All property rights in and in relation to the biological resources and the associated

traditional knowledge are vested in the Owner/Custodian.

(2) The Owner/Custodian gives no warranty that any use of the biological resourcesand the associated traditional knowledge will not infringe the intellectual property

rights or other rights of any third party.

(3) The Owner/Custodian hereby grants the Applicant a non-exclusive license to use

the biological resources and associated traditional knowledge only as described

in clause 3.5 of this Agreement.

(4) Nothing in this Agreement shall give the Applicant any rights whatsoever in and in

relation to the biological resources and the associated traditional knowledge that

are the subject of this Agreement.

3.9 Ownership of intellectual property rights in results

(1) Nothing in this Agreement shall give the Applicant any intellectual property rights

in results arising directly or indirectly from the intended use of the biological

resources and the associated traditional knowledge described in clause 3.5 of

this Agreement.

(2) The Applicant must immediately notify the Owner/Custodian of any unforeseen

use of the biological resources and the associated traditional knowledge and of

any unforeseen results not described in clause 3.5 of this Agreement.

(3) Where the Applicant wishes to commercialise any results or apply for intellectual

property rights arising from the intended or unforeseen use of the biological

resources and the associated traditional knowledge and any intended and

unforeseen results, it must first enter into an appropriate agreement with the

Owner/Custodian who agrees to negotiate non-exclusively in good faith with a

view to concluding such an agreement on terms acceptable to the parties.

3.10 Confidentiality

For sub-clause (1), choose one and delete the one not selected

(1) The Owner/Custodian stipulates that the traditional knowledge described in

clause 3.2 of this Agreement must be protected as confidential information.

or

(1) The Owner/Custodian does not require protection as confidential information

for the traditional knowledge described in clause 3.2 of this Agreement.

(2) The Applicant must restrict access to the biological resources and the associated

traditional knowledge, the results, and all unpublished reports required under the

conditions of the access permit, to those persons who are legally designated by the

Applicant and placed under an obligation to observe the terms of this Agreement.


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(3) Each party must respect the confidentiality of all information designated as

confidential by the other party under the ABS Act and this Agreement, and must not

to disclose any such confidential information to any third person without prior

approval in writing from the other party.

(4) The obligations of the parties under this clause shall not be taken to have beenbreached where such confidential information is legally required to be disclosed.

(5) The obligations of the parties under clauses 3.10(1) and 3.10(3) shall survive the

expiration or termination of this Agreement.

(6) The obligations of the parties under clause 3.10(2) shall continue in effect for a

period of three (3) years after the date of expiration or termination of this Agreement.

3.11 Publication(1) The Applicant must not publish or publicly disclose details of traditional

knowledge that the Owner/Custodian has stipulated as confidential in clause

3.10(1) of this Agreement.

(2) The Applicant must transmit to the Owner/Custodian electronic and paper copies

of any publication arising out of the Applicants use of the biological resources

and the associated traditional knowledge that are the subjects of this Agreement.

(3) In any publication arising out of the Applicants use of the biological resources

and the associated traditional knowledge that are the subjects of this Agreement,the Applicant must identify Pakistan as the country of origin and must

acknowledge:

(a) that the biological resources and the associated traditional knowledge were

obtained in accordance the laws of Pakistan;

(b) the role of Pakistani scientists; and,

(c) any contribution or co-authorship of a Pakistani scientist or scientists.

(4) The Applicant shall immediately notify the Owner/Custodian of any inquiries

received from any third party regarding rights in, or the use, copying, or

distribution of information concerning results published or publicly disclosed in

accordance with this Agreement.

3.12 General provisions

(1) The Applicant may access the biological resources and the associated traditional

knowledge only at the site or sites identified in clause 3.3 of this Agreement.

(2) The Applicant agrees to use the biological resources, associated traditional

knowledge and results:

(a) as specified in this Agreement and in the access permit; and

(b) in accordance with the laws of Pakistan and of the country where the

Applicant is domiciled.


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(3) The Applicant must notify the Owner/Custodian immediately of any change in its

address or designated representative as specified in this Agreement

(4) Any notice under this Agreement may be served by hand delivery or by being

forwarded by registered post, or first class courier, to the address of the party or

to such other address as may be notified in writing by the party from time to timeand in the case of service by post is deemed to have been received upon receipt.

(5) This Agreement contains the entire understanding of the parties with respect to

its subject matter. It sets out the only conduct relied on by the parties and

supersedes all earlier agreements, oral or written, by the parties with respect to

its subject matter.

(6) This Agreement may be varied only by written agreement signed by the parties.

(7) No waiver by the Owner/Custodian of any right, remedy or power and noamendment to this Agreement, shall be effective unless it is in writing signed by

the Owner/Custodian and any such waiver shall be effective only in the specific

instance and for the specific purpose for which it is given.

(8) No failure or delay by the Owner/Custodian to exercise any right, remedy or

power under this Agreement or to insist on strict compliance by the Applicant with

any obligation under this Agreement, and no custom or practice of the parties at

variance with the terms of this Agreement, shall constitute a waiver of the right of

the Owner/Custodian to demand full compliance with this Agreement.

(9) If any provision of this Agreement is unenforceable or invalid for any reason, the

relevant provision shall be deemed to be modified to the extent necessary to

remedy such unenforceability or invalidity or, if this is not possible, then such

provision shall be severed from this Agreement, without affecting the

enforceability or validity of any other provision of this Agreement.

(10) This Agreement is governed by the laws of Pakistan without regard to

conflicts of laws principles, and the parties submit to the non-exclusive jurisdiction

of the courts of Pakistan.

(11) Each signatory to this Agreement warrants that he has authority to bind to this

Agreement the party that he is stated to represent.

IN WITNESS WHEREOF the parties have set their respective hands and signatures on the

day and the year written above.

Owner/Custodian Representative

____________________________________

_

____________________________________

_

Name: Name:


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Title: Title:

Witness Witness

____________________________________

_

____________________________________

_

Name: Name:

Date: Date:

Applicant Affiliated national institution (if applicable)

____________________________________

_

____________________________________

_

Name: Name:

Title: Title:

Witness Witness

____________________________________

_

____________________________________

_

Name: Name:

Date: Date:


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Schedule 1-B Access Agreement

29

SCHEDULE I-B

ACCESS AGREEMENTTo be used when the custodian of traditional knowledge and owner of biological resources

are NOT the same person (Article 11(9)(b)

THIS AGREEMENT is made on the _____________ day of _____________, the year______

BETWEEN

_________________________hereinafter referred to as the Owner of biological resourceswhich term shall be deemed to include, as the case may be, his respective community,successors, officers, employees, contractors, agents and assigns, located at______________________________,

AND

______________________________, hereinafter referred to as the Custodian oftraditional knowledge, which term shall be deemed to include, as the case may be, hisrespective community, successors, officers, employees, contractors, agents and assigns,located at ______________________________,

REPRESENTED BY______________________________, [insert legal name of organization representing theCustodian] hereinafter referred to as the Representative of the Custodian, which term shallbe deemed to include, as the case may be, its respective successors, officers, employees,contractors, agents and assigns, having its office at ______________________________,

AND__________________________________, hereinafter referred to as the Applicant whichterm will be deemed to include his successors, officers, employees, contractors, agents andassigns, located at ______________________________.

RECITALS:

Whereas the Owner is in the possession and ownership of a biological resource or biologicalresources, as detailed in clause 3.1 of this Agreement, and seeks to facilitate access to thesaid biological resource(s) for gainful and beneficial purposes keeping in mind theconservation of biodiversity, the sustainable use of its components, and equitable sharing of

benefits derived from its use; and

Whereas the Custodian is in possession and ownership of traditional knowledge associatedwith the biological resources of the Owner, as detailed in clause 3.2 of this Agreement, andseeks to facilitate access to the said traditional knowledge for gainful and beneficialpurposes keeping in mind the conservation of biodiversity, the sustainable use of itscomponents, and equitable sharing of benefits derived from its use; and

Whereas the Owner is willing to give the Applicant access to the said biological resource andthe Custodian is willing to give the Applicant access to the traditional knowledge associatedtherewith; and

Whereas the Applicant is interested in gaining access to the said biological resource and thetraditional knowledge associated therewith;


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This Agreement sets out the terms that the parties agree to apply to the taking and use ofthe biological resources and associated traditional knowledge.

Now this Agreement witnesseth as under:-

1. DEFINITIONS & INTERPRETATION1.1 Definitions

(1) ABS Act means the Pakistan Access to Genetic Resources and Benefit-sharingAct, 2012.

(2) Biological resources includes genetic resources, organisms or parts thereof,populations, or any other biotic component of ecosystems with actual or potentialuse or value for humanity, excluding human genetic resources.

(3) Commencement date means the date of the access permit to which this AccessAgreement is annexed.

(4) Confidential information means all know-how, financial information and othercommercially valuable or sensitive information in whatever form, which a partymarks as confidential or proprietary and discloses to the other party. Thefollowing are exceptions to such information:

a. information which is lawfully in the public domain prior to its disclosure toa party by another party;

b. information which enters the public domain otherwise than as a result ofan unauthorised disclosure;

c. information which is or becomes lawfully available to the recipient partyfrom a third party who has the lawful power to disclose such information tothe recipient party on a non-confidential basis; and

d. information which is rightfully known by the recipient party (as shown byits written record) prior to the date of disclosure.

(5) Custodian means the person or community that holds traditional knowledge.

(6) Derivative means a naturally occurring biochemical compound resulting from thegenetic expression or metabolism of biological or genetic resources, even if itdoes not contain functional units of heredity.

(7) Intellectual property rights means rights established by any statute or customarylaw over any property created through intelligent activity of the human mind, inthe form of patents, trademarks, design, protection of plant varieties and animalbreeds, copyrights, and traditional knowledge.

(8) Mutually agreed terms means the conditions for access to genetic resources andany associated traditional knowledge and the way in which monetary and non-monetary benefits from their use will be shared, as freely decided between anApplicant, the owner of a biological resource, the custodian of any associatedtraditional knowledge, and the permitting authority.

(9) Results means all information and tangible objects arising from the Applicantsuse of biological resources and traditional knowledge and any derivatives,including information published in accordance with clause 3.11 of this Agreement.

(10) Traditional knowledge means knowledge, practices, innovations ortechnologies created, developed and held by a custodian.


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1.2 Interpretation(1) Headings are for convenience only and do not affect interpretation.

(2) The singular includes the plural and conversely, and a gender includes allgenders.

(3) Where the Owner, Custodian or Applicant is comprised of more than one personthe Owners, Custodians and Applicants obligations apply to each person jointlyand severally.

(4) A reference to any legislation or to any provision of any legislation includes anymodification or re-enactment of it, any legislative provision substituted for it andall regulations and statutory instruments issued under it.

2. COMMENCEMENT OF AGREEMENTThis Agreement commences on the date of issue of the access permit to which this AccessAgreement is annexed and shall remain valid for one (1) year unless terminated earlier or

renewed by the Permitting Authority prior to the expiration date.

3. MUTUALLY AGREED TERMS

3.1 Resources to be accessed

If more than one biological resource is to be accessed, add rows to the table below and

provide the specified information for each biological resource.

Biological resource

(a) Scientific classification:

(b) Local language name(s):

(c) English language name:

(d) Characteristics for which the resource issought:

3.2 Traditional knowledge to be accessed

Insert a comprehensive description of the traditional knowledge associated with each

biological resource for which access is sought. If more than one biological resource is to be

accessed, add rows to the table below and provide the specified information for each

biological resource and the associated traditional knowledge.

Biological resource Associated traditional knowledge

3.3 Site(s) where access will be carried out

If access activities will be carried out in more than one site, add rows to the table below and

provide the specified information for each site.

Site

(a) Village/community:

(b) District:(c) Province:


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(d) Geographic location (longitude and latitude):

(e) GIS coordinates:

(f) Attach map

3.4 Activities to be carried out

Insert a comprehensive description of the activities to be carried out. If more than oneactivity will be carried out for collection of biological resources and/or compilation of

traditional knowledge, add rows to the table below and provide the specified description for

each activity.

Activity

Collection of biological resources:

Compilation of traditional knowledge:

3.5 Intended use and foreseen results

Insert a comprehensive description of the intended use of the biological resources andassociated traditional knowledge and of the foreseen results.

Intended use:

Foreseen results:

3.6 Custody, transfer and storage

(1) The Applicant must not, without the prior written permission of the Owner and the

Custodian:

(a) use the biological resources and the associated traditional knowledge or theresults for any purpose other than the intended use and foreseen results

described in clause 3.5 of this Agreement;

(b) sell, loan, or otherwise provide the biological resources and the associated

traditional knowledge or the results to any third party; or

(c) use or store the biological resources and the associated traditional knowledge

in any location where they are not under the direct supervision of the

Applicant or the Applicants legally-designated representative.

(2) The Owner acknowledges that the biological resources accessed under this

Agreement will be of limited quantity and may be exhausted during the intended

use.

3.7 Compensation and benefit-sharing


incurred by the Custodian in entering into this Agreement.


incurred in accessing the biological resources, genetic resources, derivatives and

associated traditional knowledge specified in this Agreement, including:

(a) Salaries and other costs of persons hired to assist with the activities to be

carried out as specified in clause 3.4 of this Agreement (specify amounts

of salaries and of each other cost):


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(b) Costs incurred by the Representative (specify each cost):

(3) The Applicant undertakes to provide the following benefits, regardless of

commercialization of any results: (select one or more, provide specifics

related to this particular access agreement, delete the options that are not

used)(a) Up-front payment (specify or delete):

(b) Milestone payments (specify or delete):

(c) Contributions to local livelihood security and the local economy (specify or

delete):

(d) Contributions to health and food security in the community or communities

where access activities are carried out, taking into account domestic uses of

biological resources by the community or communities providing the

resources (specify or delete):

(e) Public recognition of the contribution of the Owner and the Custodian and of

the members of the community or communities where access activities arecarried out (specify or delete):

(f) Donation of tools and equipment (specify or delete):

(g) Sharing information gathered during the access activities described in clause

3.4 of this Agreement, in a language and format that is accessible to and

usable by the Owner, Custodian and members of the community or

communities where access activities are carried out (specify or delete):

(h) Training to enable the Owner, the Custodian and members of the community

or communities where access activities are carried out to participate in the

activities described in clause 3.4 of this Agreement (specify or delete):

(i) Funding for educational opportunities in-country and abroad for the Owner,the Custodian and members of the community or communities where access

activities are carried out, particularly in fields relevant to conservation and

sustainable use of biological diversity, including biological inventories and

taxonomic studies, biotechnology, and maintenance of traditional knowledge


(j) Training and funding for educational opportunities to enable the Owner, the

Custodian and members of the community or communities where access

activities are carried out to participate in research and development of

products using biological resources and associated traditional knowledge


(k) Any other benefit (specify or delete):

(4) In the event of commercialization of any results, the Applicant undertakes to

provide the following benefits to the Owner and the Custodian to be shared as

stipulated in the ABS Act: (select one or more, provide specifics, and delete

the options that are not used)

(a) Payment of royalties (specify or delete):

(b) License fees (specify or delete):

(c) Profit-sharing (specify or delete):

(d) Establishment of a trust fund to support conservation and sustainable use ofbiological resources at the access site(s) (specify or delete):


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(e) Funding to enable the Owner, the Custodian and/or other members of the

communities at the access sites to participate in research (specify or

delete):

(f) Joint venture (specify or delete):

3.8 Ownership and licensing of the biological resources and associated traditionalknowledge

(1) All property rights in and in relation to the biological resources are vested in the

Owner. All property rights in and in relation to the associated traditional

knowledge are vested in the Custodian.

(2) The Owner and Custodian give no warranty that any use of the biological

resources and the associated traditional knowledge will not infringe the

intellectual property rights or other rights of any third party.

(3) The Owner and Custodian hereby grant the Applicant a non-exclusive license touse the biological resources and associated traditional knowledge only as

described in clause 3.5 of this Agreement.

(4) Nothing in this Agreement shall give the Applicant any rights whatsoever in and in

relation to the biological resources and the associated traditional knowledge that

are the subject of this Agreement.

3.9 Ownership of intellectual property rights in results

(1) Nothing in this Agreement shall give the Applicant any intellectual property rights

in results arising directly or indirectly from the intended use of the biologicalresources and the associated traditional knowledge described in clause 3.5 of

this Agreement.

(2) The Applicant must immediately notify the Owner and the Custodian of any

unforeseen use of the biological resources and the associated traditional

knowledge and of any unforeseen results not described in clause 3.5 of this

Agreement.

(3) Where the Applicant wishes to commercialise any results or apply for intellectual

property rights arising from the intended or unforeseen use of the biological

resources and the associated traditional knowledge and any intended and

unforeseen results, it must first enter into an appropriate agreement with the

Owner and Custodian who agree to negotiate non-exclusively in good faith with a

view to concluding such an agreement on terms acceptable to the parties.

3.10 Confidentiality

For sub-clause (1), choose one and delete the one not selecte

Documents

Draft Access and Benefit Sharing (ABS) Law for Pakistan