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Agriculture, genetic resources and traditional knowledge

Introduction

The relationship between agriculture, genetic resources, traditional knowledge and intellectual property rights is a contentious, on-going, issue of debate in several multilateral institutions. These include the World Trade Organisation (WTO), and the World Intellectual Property Organisation (WIPO), the Convention on Biological Diversity Conference of the Parties (CBD COP), and the United Nations' Food and Agriculture Organisation (FAO).

In this, the second of two case studies being undertaken for the project, the research will examine the role of NGOs in the debate on the relationship between intellectual property rights, agriculture, genetic resources and traditional knowledge. The research will gather evidence on NGO engagement with multilateral institutions on these issues.

The Issues
Genetic resources and traditional knowledge have made enormous contributions to the improvement of human livelihoods and to the technological advancement of society. Genetic resources and traditional knowledge also play a fundamental role in many contexts. In agriculture, for example, the conservation and development of genetic resources is crucial for the maintenance of key crops and the improvement of crop varieties and breeds and, ultimately, for food security. Moreover, the traditional knowledge of indigenous and farming communities continues to be a key factor in conserving and developing genetic resources.

The nature and terms under which genetic resources can be accessed have changed dramatically in recent years. The free flow and trade of genetic resources has been replaced by a wide range of national and international legal instruments that seek to regulate access, control and use of genetic biodiversity and to protect traditional knowledge. Of particular concern is the recent trend to extend intellectual property rights (patents and plant breeder’s rights) to plant genetic resources.

The possibilities for appropriation of genetic resources that underpin food and agriculture production have made plant genetic resources valuable tradable assets given their potential commercial use. Their exchange under commercial terms could potentially benefit the national economies of many countries rich in biodiversity, most of which are developing countries. Potentially, traditional communities could also reap gains from the exploitation of genetic resources. However, if access is not managed appropriately at the international level, it may also result in the misappropriation of biological and genetic resources and traditional knowledge (also known as “biopiracy”).

A particular concern for developing countries with regards to intellectual property rights, genetic resources and traditional knowledge is that the current intellectual property system allows for rights to be claimed over traditional knowledge when relatively minor or no changes have been made to such knowledge, while at the same time local communities do not have access to defensive mechanisms to protect their traditional knowledge or offensive mechanisms to claim such traditional knowledge.

In recent years, NGOs have been arguing that the current operation of the international intellectual property system is not preventing biopiracy, but instead is encouraging it. For example, they point to cases in developed countries where excessively broad patents have been granted over genetic biodiversity. Given that the major sources of gene biodiversity are found in developing countries, this is to their disadvantage. NGOs also argue that the current international intellectual property system has failed to provide for benefit sharing. They are pressing to introduce mechanisms into the international intellectual property system to address these issues.

Developing countries and NGOs also consider that there is an urgent need for an internationally binding system that prevents farmers’ rights being subordinated to those of plant breeders, and that prevents the misappropriation of genetic resources and traditional knowledge. However, to date, such a comprehensive international system has failed to materialise.

Some of the main elements that developing countries have been highlighting as part of the proposed arrangements include: (i) balancing the rights of breeders with the rights of local farmers in developing countries to save, share, sell, and replant seed; (ii) equitable sharing of benefits between plant breeders and farmers to take account of the latter’s contribution to innovations in plant breeding and plant patenting; (iii) the protection of genetic resources through measures which prevent the grant of patents over genetic resources; and (iv) the protection of the innovations of indigenous and other traditional communities and the recognition of their traditional knowledge.

The inter-relationship between international agreements
Currently, several international agreements touch upon the above-mentioned elements and thus their treatment of genetic resources and traditional knowledge is interrelated. These international agreements include: the Convention on Biological Diversity (CBD); the TRIPS Agreement; the International Convention for the Protection of New Varieties of Plants administered by the International Union for the Protection of New Plant Varieties (UPOV); and the FAO International Undertaking on the Utilisation of Plant Genetic Resources for Food and Agriculture, and the subsequent FAO International Treaty on Plant Genetic Resources for Food and Agriculture. The fact that several instruments touch on issues related to genetic resources and traditional knowledge ultimately complicates their implementation and allows for different interpretations of the obligations.

Developing countries, supported by several NGOs, have highlighted the need to create coherence between the various international agreements. However, to date the negotiations continue, with few substantial outcomes as regards introducing measures to ensure the defensive protection that developing countries seek in order to prevent the misappropriation of genetic resources and traditional knowledge.

The inter-relationship between international agreements is being addressed in several multilateral institutions, particularly the WTO TRIPS Council and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). Generally, developing countries and NGOs consider that the FAO agreements are in harmony with the CBD. The former cover the specific needs of agriculture, and are considered to hold the middle ground between the CBD that focuses on the protection of biodiversity and the TRIPS Agreement that extends proprietary rights over intangible assets, including plant genetic resources.

The need for coherence between TRIPS and the CBD
The relationship between the TRIPS Agreement and the CBD is one of the most contentious. While the TRIPS Agreement is seen by many developing countries and NGOs to be in tension with the CBD, many developed countries maintain that no conflict exists between the two instruments. NGOs emphasise the importance of implementing the CBD and creating coherence between the various international agreements that deal with genetic resources and traditional knowledge. They point, in particular, to the importance for developing countries of harmonising the TRIPS Agreement with the CBD in order to ensure the sustainable use of biodiversity and prevent misappropriation, and for the protection of traditional knowledge.

Both TRIPS and the CBD touch on issues concerning genetic resources and intellectual property. On the one hand, the CBD deals with access to genetic resources and creates an obligation for the fair and equitable sharing of benefits arising out of the utilisation of genetic resources on mutually agreed terms and informed consent. On the other hand, the TRIPS Agreement allows intellectual property rights to be extended to genetic resources. The Agreement obliges WTO Members to protect plant varieties, through a patent or through a sui generis regime, or through a combination of both. It does not however, mention benefit sharing or informed consent.

In order to create coherence with the CBD, the amendment to TRIPS that developing countries and NGOs envisage would primarily aim to address concerns about biopiracy. In this regard, developing countries, supported by NGOs, as part of their wider effort to create an international regime, seek to amend TRIPS in order to introduce internationally binding disclosure requirements in patent applications, including proof of consent and benefit sharing.

 
 

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by Duncan Matthews © Queen Mary, University of London
School of Law, Queen Mary, University of London, 67-69 Lincoln's Inn Fields, London WC2A 3JB