African model legislation
The annually awarded Nobel prize is certainly well known. Less well known is the alternative Nobel prize, which is granted - also annually - in a sociocultural and environmental context. A recent prize winner was Tewolde Gebre Egziabher from Ethiopia. He received the prize in 2000 for his work in developing the biosafety protocol for biodiversity and agrobiodiversity.
Together with Johnson Ekpere from Nigeria, Tewolde Gebre Egziabher devised a model law for the Organization of African Unity (OAU) to regulate third party access to genetic resources (often the biotechnical industry) and sharing the benefits. According to the model law, no genetic resources may leave the country "alive" without a permit. In addition to the government authorities, local administrations must give their approval so that the rights of the community can be protected and at the same time firms are able to access biological resources. As a basis for negotiations, there are demands for cancellation of patents on native plants and animals, which are considered to be "implicit theft" and a "sell-out of Africa’s soul". The law is entitled: "African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources". The OAU law is intended to serve as a model for the creation of national laws, required for the signatories of the Convention on Biological Diversity (CBD).
Farm animal genetic resources - the potential value of single genes
For more than two decades genetic resources have been of high interest to the biotechnical industry. Economically interesting genes are studied in order to discover their potential uses for industrial production by transferring them into bacteria. Farm animal genetic resources (AnGR) are known for their health and vigour ("fitness") and their adaptability. The agricultural industry’s great interest in AnGR is concentrated on genes that could confer general "fitness" or resistance to diseases. These genes are to be transferred to the high-performance livestock in industrialized countries whose breeding-related or performance-related illnesses and susceptibility to illnesses have greatly increased.
The prophylactics and therapies needed, together with illness-related production losses, are a substantial cost factor in business. That is why industrial and government research institutes expect a large market with strong purchasing power for transgenic animals that demonstrate enhanced fitness and/or higher resistance to diseases. High-performance animals are widespread beyond the boundaries of industrialized nations and disease-related problems are increasing in these countries, too. Therefore, even larger markets in the agricultural sector are expected for transgenic animals. However, because of major technical and biological problems, as yet there are no transgenic animals in commercial agriculture worldwide.
Patents on life
Although research in this area is limited, the situation of animal breeders/farmers in developing countries is already strongly affected by expectations connected with genetic engineering, since legal developments are running ahead of biological-technical progress. Genes and genetic engineering processes have been patented since the mid-1980s, and since the end of that decade animals produced using genetic engineering processes have also been patented. A patent grants the patent owner the exclusive right of commercial exploitation: process patents confer rights with respect to the process involved, and product patents on the products resulting from the process. Only those holding a licence and paying licence royalties may use the patented goods.
While the profits from such livestock production are expected to increase, these interventions and investments generally do not improve the livelihoods of animal farmers in the communities in which these breeds were originally bred. Instead, the further development of biological and genetic research together with patenting practice could in future restrict the access of the original breeder-communities to farm animal genetic resources and their use of them even more.
Farm animal genetic resources and the threat of extinction
At present, however, the greatest threat to unrestricted access of local communities to their animal genetic resources does not lie in restrictions of a legal kind, but instead in the fact that their animals are threatened by extinction and/or the fact that their farming and further breeding are no longer viable as a result of altered framework conditions. The prime condition for maintaining continued free access therefore lies in comprehensive surveying and evaluation of the multifunctionality of animal genetic resources, taking into account their contribution to food security and their potential for sustainable development.
Compared with most publications on the subject, the OAU’s model law does not take into account any special requirements for conserving farm animal genetic resources, in contrast to plant genetic resources. Genetic heterogeneity dominates in animal populations. Special, individual significance is thus accorded to each father and mother animal. Where there are no records, only a few (key) persons know the pedigrees of the animals and the relationships within the herd and the population. A further difference can also be seen in the fact that the (possible) storing of various plant seeds has no equivalent where animal genetic resources are concerned. Although biotechnical processes frequently play a role in storing seed material, animal germinal cells, in contrast, can only be obtained, stored and later used with the aid of special bioengineering techniques. The time factor must also be considered. Productive livestock species require longer periods for reproduction than plants.
Prior informed consent (PIC)
A major question concerns the conditions under which access can be given to third parties. The OAU model law has foreseen the decision on two levels: the national level and the community level. It makes the use of AnGR by third parties dependent on the prior informed consent (PIC) of the state and the local communities concerned. Before PIC is given, probable impacts - positive and negative - should be identified. In a spirit of participation, criteria for informed consent concerning the use of AnGR by third parties must be developed with animal farmers.
Solutions are needed for possible negative impacts that can be caused by third parties. As granting access often means the loss of genetic material for further breeding, local animal farmers should give their PIC only if granting access does not endanger their breeding objective for the local breeds. In this respect, criteria for risk and harm regarding the conservation and sustainable use of AnGR must be identified, especially in the case of local breeds that are adapted to the specific geographic and climatic conditions of their environment. The main harm would be the tendency to lose vitality, fitness and fertility - especially when it comes to the sometimes extreme and hard conditions of the environment. In such a case the community concerned should have the right of veto. The answer to the question of harm will probably be very different from country to country, from community to community, from breed to breed and so on. Therefore, it is important to encourage and support local animal farmers and breeders to develop criteria for what they consider to be risks for future breeding.
Benefit-sharing
Among the defined farmers' rights, breeders and keepers of AnGR have to obtain an equitable share of the benefits arising from their use. According to the OAU model, a breeder would have to pay licence fees for using biological resources, with fee levels being oriented to the commercial success of the new plant variety. The proceeds should then flow into a fund from which local community projects benefiting sustainable development, conservation and use of biological resources would be financed. The loss of genetic diversity among farm animals that have developed over thousands of years poses a risk for sustainable development and future research worldwide. It is probable that the use of third parties will usually not have the objective of enhancing the local situation regarding the sustainable use of a breed. More likely is research on special proteins in the milk of a particular breed, for the consumption of human babies or diseased persons.
The development of commercial products originating from genetic resources usually takes a very long time, with the risk that the endangered breed could become extinct in the meantime. Therefore, and because successful commercialization is not guaranteed, short-term benefits - monetary and non-monetary - should always be included in negotiated benefit-sharing arrangements. If the use of AnGR by third parties is not contributing to sustainable development in the region of origin, the granting of access should be made conditional on the provision of short-term and long-term benefits by the resource users for appropriate research to support sustainable development locally. This could be backed up by a requirement that the origin of genetic resources be indicated when applying for commercialization of a product: it would then be in the interests of the resource user to obtain a certificate of origin from the resource provider. The patents granted for tree products and basmati rice provoked protests against patents on life all over the world. This was because the persons concerned and a large part of the public became aware of the risks involved in the unregulated use of genetic resources by third parties. The fact that some of these patents were withdrawn after several appeals has proved that protests can be both necessary and successful.
