A second response was that, after 1992, the Convention on Biological Diversity (CBD) established the principle that genetic resources of every kind found within the territorial boundaries of nation-states are subject to the sovereign rights and control of those states. Under Article 15, access must be obtained on mutually agreed terms, subject to prior informed consent and to further obligations concerning benefit sharing and the transfer of end-use technology. Over time, the trend has been for developing countries to restrict access to their microbial resources for virtually all uses, including public research uses, and to assert ownership claims to resources held in the public collections of developed countries that were not obtained in conformity with the principles set out in the CBD.
Let us now ask what is fundamentally wrong with this picture? The growing trend on both sides of the development divide is to view each microbial resource as if it were potentially as valuable as gold. Sometimes, of course, when the proprietor has a known or likely commercial application for a specific microbe, strong restrictions on access, use, and reuse make sense. Some of the special collections deposited at ATCC provide examples of such a situation.
Generally speaking, however, the bulk of all microbial materials residing in public culture collections all over the world have no known or likely commercial applications whatsoever. In reality, the only value that the bulk of these materials possess is to serve as research materials, as inputs for basic scientific research. The hoarding and proprietary tendencies that increasingly predominate thus undermine and risk defeating the research potential of university research scientists everywhere. Academics depend on their ability to screen large collections of raw materials against leads developed in their laboratories either by phenotypical observations or by genetic analysis, or by some combination of the two. Needless to say, as we observed in an article regarding the hoarding of small molecule libraries (Rai et al. 2008), narrowed access to these upstream research resources actually leads to fewer commercial payoffs in the end, a situation in which everybody loses.
Not surprisingly, serious researchers have reportedly devised informal means of their own to ignore or avoid these restrictive practices. Such measures are especially prevalent at universities, which may hold a large amount of microbial resources at varying states of validation. To this end, single laboratories or research units informally exchange biological resources among themselves for public research purposes on the basis of mutual trust and reciprocally recognized quality controls, without entering into any formal legal undertakings. In effect, this informal network, which antedates the use of MTAs and reportedly still accounts for approximately 60 percent of all microbial materials exchanged, converts the private goods of the single participants into a type of "club goods" available to trusted members. This informal system thus tries to maintain the original sharing norms of the WFCC within a carefully selected group of likeminded researchers.
The result is an informal, closed semicommons based on “group loyalty” and reciprocity gains that drive a large but shrinking part of the research domain. Some characteristics of these informal exchanges are summarized as follows:
Ad hoc verbal agreements are usually preferred to MTAs; and the standard norm is “use in lab only." This practice likely violates the rules of university technology transfer offices and transnational regulations. There is little or no tracking or independent authentication (with concomitant risks).