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The licensing and use of IPR Again as IPR are, above all, a form of property right the owner of an IPR has the exclusive right to authorise third parties to use that right, usually through some form of contractual licensing agreement as well as the right to sell or otherwise assign that right. Copyright owners will usually not ‘sell’ their copyright as such (i.e. transfer their property rights), but licence the use of the copyrighted material. In relation to copyright, licensing means that the owner of the copyright retains ownership but authorises a third party (on an exclusive or non-exclusive basis) to carry out certain acts covered by his economic rights, generally for a specific period of time and for a specific purpose which is defined in the licence agreement. Depending on the purpose (commercial or otherwise), such use may be subject to payment. The extent to which, say a laboratory, authorises the use or re-use of data in respect of which it holds copyright/database rights will depend on its own specific IPR (data) policy. Similar observations apply as regards database rights. Commercial considerations will determine the extent to which patents are sold or their use licensed. For example in the context of the Blue Biotechnology a patent may be sold to a manufacturer which will then become the sole provider of the product that is covered by the patent. Alternatively a patent holder may license the patent to others for appropriate payment. This may be in the form of an exclusive licence (whereby a licence is granted only to one party) or a non-exclusive licence (whereby a licence is granted to more than one party). Sometimes, patent holders will enter into cross-licensing agreements, for instance if it appears that different essential aspects of a given product are covered by multiple patents held by different right holders. While IPR are a key means of promoting innovation, and although patent and copyright laws do typically contain certain exceptions allowing use for scientific research289, policies with regard to licensing the use of IPR can also slow the pace of research depending on the conditions imposed and also the level of the fee demanded. Moreover even if the owners of IPR are amenable to licensing the transaction costs can be high particularly if negotiations are lengthy. However these and other issues relating to the impacts of IPR on innovation (both positive and negative) are of general application to the biotechnology sector as a whole and are not specific to the Blue Biotechnology sector as such. One specific area of potential tension as regards IPR and the Blue Biotechnology sector does exist, however, and that concerns the relationship between IPR and marine genetic resources obtained from ABNJ. More specifically, article 244 of UNCLOS imposes a duty on States to make available for publication and dissemination knowledge resulting from marine scientific research. The article goes on to provide that States must ‘actively promote the flow of scientific knowledge resulting from marine scientific research…’. These provisions raise two specific questions. First of all, as mentioned above, the commercial imperative to keep information derived from marine genetic resources confidential both to protect it from potential competitors and to satisfy the need for novelty in terms of patent applications sits ill with the duty to promote knowledge flows. Second, the grant of a patent may further hinder such flows. While this may seem, at first sight, like an academic point the fact is that negotiations with regard to the marine genetic resources in ABNJ remain very much open. Consequently it is a point that is likely to be taken by developing countries, thereby contributing to legal uncertainty. 289 See Chiarolla, C., Lapeyre, R., Pirard, R. Biodiversity conservation: How can the regulation of bioprospecting under the Nagoya Protocol make a difference? (2013) Studies N°06/13, IDDRI, Paris, France. A research exemption is an exception to the exclusive rights granted by a patent that allows researchers to undertake experiments on the patented invention with the view to discovering unknown effects or making improvements on the invention without the prior consent of the patent holder. 206 Study in support of Impact Assessment work on Blue Biotechnology

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