Intellectual property rights (IPRs) are legal rights granted by governmental authorities to control certain products of human intellectual effort and ingenuity. (OECD 1996, p. 12). An in-depth discussion of the philosophical and policy goals served by granting legal protection to these products is beyond the scope of this study. However, a basic familiarity with these goals is necessary to grasp how national and international intellectual property systems and institutions have evolved into their present forms and to understand the constraints that those systems and institutions place on governments seeking to implement competing policy objectives in tension with IPRs.
Two broad philosophical approaches underlie the decision to grant IPRs in the products of human intellectual effort and ingenuity. Elements of these two approaches can be found to different degrees in all national laws and international agreements relating to IPRs.
The first approach to IPR protection predominates in many civil law legal systems, including continental Europe. It takes the position that the products of the human mind are stamped with the personality of their creator, inventor or author, thus endowing him or her with a moral as well as an economic claim to exploit those products to the exclusion of third parties. Under this view, legal protection flows from a state’s commitment to protect human rights, a fact reflected in the wording of article 27 of the Universal Declaration of Human Rights, which guarantees to everyone "the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." Legal protection also rewards creators, inventors and authors for their intellectual efforts as well as their expenditures of time and money. From these underlying premises flows a desire to provide robust intellectual property protection that includes, for example, a broad and expansive range of exclusive rights, long terms of protection, limits on mandatory licensing and narrow exceptions and limitations to exclusive rights.
The second approach to IPR protection takes as its starting premise an instrumental view of intellectual property. Legal protection for the products of human intellectual effort and ingenuity is granted not because of a moral commitment to compensating creators or innovators, but rather because the products they create enrich a society’s culture and knowledge and thus increase its welfare. Perhaps the most well-known manifestation of this approach is found in the Intellectual Property Clause of the United States Constitution, which authorizes the United States Congress "[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
This instrumentalist philosophy shapes the structure of many national intellectual property systems. The grant of IPRs in nations following an instrumentalist approach is intended to provide adequate incentives for creators, inventors and authors to invest the time, resources and intellectual capital needed to create intellectual property products. In the absence of a grant of exclusive rights over those products, so-called "free riders" who have not made such investments could exploit inexpensive distribution and reproduction technologies and sell others’ intellectual property products at a much lower cost.
However, the ultimate goal of legal protection is not remunerative reward for creators but the enhancement of social welfare through access to the ideas and information contained in their products. Instrumentalist intellectual property systems often tailor the scope of legal protection to achieve this goal, for example by placing certain limits on the scope of protection or recognizing situations in which consumers or second-generation creators may access and use intellectual property products for socially valuable purposes.
The policy goals of granting IPRs to plant varieties are grounded principally on an instrumentalist approach to IPRs. This is true both for patents and plant breeders’ rights.
Under this instrumentalist approach, new plant varieties are afforded legal protection to encourage commercial plant breeders to invest the resources, labour and time needed to improve existing plant varieties by ensuring that breeders receive adequate remuneration when they market the propagating material of those improved varieties. In the absence of a grant of exclusive rights to breeders, the dangers of free riding by third parties would be considerable. This is because the genetic material within plants that specifies their distinctive and commercially valuable features is naturally self-replicating, for example by reproduction of seeds or other propagating material. Self-replication makes innovations incorporating biological material particularly susceptible to exploitation by parties other than the innovator.
IPRs in plant varieties thus provide some assurance to breeders that they will be able to recoup the risks and costs of a value-added innovation that is based upon an underlying biological resource. (Lesser 1997; OECD 1996)
Ultimately, however, the grant of exclusive rights to plant breeders is designed to benefit the society granting the rights. It provides an incentive for private research and development into new breeding techniques, thereby reducing the need for government funding to subsidize these activities. It encourages the development of new and beneficial plant varieties for use by farmers and consumers. And it furthers the society’s development of agriculture, horticulture and forestry.
An international system of IPR protection for plant varieties expands these benefits by facilitating access to new varieties created in other states. Once breeders are assured that their rights will be protected in other states, breeders will be more willing to make their new varieties available in those states (assuming they have access to a distribution and marketing infrastructure). This benefits farmers, consumers and researchers in many more jurisdictions. (Lesser, 1997, pp. 8 and 10)
The different policy objectives underlying the protection of IPRs have shaped the structure and evolution of the international intellectual property system. Most early domestic intellectual property laws provided no legal protection to intellectual property products created in other nations, thereby permitting those products to be exploited by free riders operating outside the state in which the products were created. The unfairness of this result prompted governments in the late nineteenth century to consider an international approach to protect IPRs.
The drafters of the first multilateral intellectual property treaties quickly realized, however, that there was insufficient political support for reconciling many of the differences that existed among national IPR laws. For this reason, the drafters abandoned the idea of harmonizing diverse national laws to create a single, international IPR applicable in all signatory states. They fashioned instead a system that creates a limited set of treaty-based obligations that each member state of that system is then required to implement in its national IPR laws.
Implementation of treaty-based obligations in national IPR laws can occur in one of two ways. In some nations (often referred to as "automatic incorporation" states), treaties become binding as a part of domestic law as soon as formal ratification procedures have been adopted. In these nations, treaties are considered to be "self-executing" or capable of being given "direct effect" in domestic law such that courts and administrative agencies can construe the treaty directly and enforce the rights it grants to the owners of intellectual property products. In other nations, however (often referred to as "legislative incorporation" states), treaties are considered to be "non-self-executing" and can only become binding in domestic law once the parliament or legislature has adopted legislation to implement the treaty. In these nations, owners of intellectual property products rely on this domestic legislation rather than on the treaties themselves when they seek to enforce rights granted to them under the treaties.
Because of the limited scope of international IPR agreements, there are to this day (with the limited exception of the European Union) no international IPRs available to inventors and creators who seek to market their products across borders; rather, IPRs are territorial in nature and are acquired and enforced on a country-by-country basis under territorially-circumscribed national IPR laws.
Thus, for example, the inventor of a genetically enhanced variety of corn who seeks patent protection for that variety must apply for protection in each country in which he or she hopes to sell the corn. The inventor must comply with all of the requirements that each country imposes for granting patent rights to the new variety. Similarly, once protection is granted, issues such as the scope of the exclusive rights the inventor enjoys in the patented plant variety, the term of patent protection and the limitations imposed on the inventor’s rights are all determined by the different national laws. Recent international agreements have achieved some modest forms of procedural harmonization, but they have not altered the fundamental premise that national laws rather than international treaties are the immediate source of nearly all private rights in intellectual property products.
Two basic principles flow from this territorial approach to protecting IPRs. First, where national laws differ as to the scope or content of the protection they provide to intellectual property products, the rights enjoyed by the owners of those products will vary in different national jurisdictions. Second, territoriality implies that each nation has the right to decide on the form of IPR protection to be granted within its own borders, provided that it complies with the obligations contained in international IPR agreements to which it is a party.
Although territoriality thus gives governments some autonomy to set national IPR policies within their own borders, states often view the policies other governments choose as a subject of concern. Indeed, the global reach of markets for intellectual property products makes this concern a necessity. To take just one example, most patent laws grant inventors owning patents within a state the right to prevent the importation into that state of products created in other nations that contain the patented invention. Thus, where distribution markets transcend national borders, an industry may find itself precluded from distributing products in other jurisdictions as a result of patent rights, as occurred when Indian cotton producers were precluded from importing certain forms of transgenic cotton into the United States. (Correa, 2000, p. 176).
The territorial approach to IPR protection appears at first to present myriad difficulties for creators and owners of intellectual property products. In fact, however, the content of each nation’s IPR laws are often quite similar since they have been shaped by international IPR agreements ratified by many states. In addition, the obligations these agreements impose have expanded over time, thus narrowing (although by no means eliminating) the differences among national intellectual property systems. The following sections briefly explain the core obligations contained in most international IPR agreements. More detailed information concerning the rights and obligations contained in specific IPR agreements relating to plant varieties is provided in Part II below.
1.3.3.1. National treatment
One of the cornerstones of international IPR agreements is the national treatment principle. National treatment bars discrimination against foreign IPR owners by requiring that each state provide the same IPRs to private parties from other member states as are provided to the state’s own nationals. National treatment levels the playing field among treaty parties and prevents a state from giving its own creators and inventors unfair advantages over foreign creators and inventors. In the absence of national treatment, for example, domestic firms could freely exploit intellectual property products created in other member states while simultaneously enjoying legal protection within their own domestic markets.
1.3.3.2. Reciprocity
The provisions of several intellectual property treaties contain a limited exception to national treatment known as reciprocity. Where a treaty permits reciprocity, State A may condition the grant of legal protection to intellectual property products from State B upon State B’s granting of legal protection to intellectual property products from State A. Reciprocity is often applied to new IPRs as means of encouraging other nations to recognize the new rights and extend their protection to foreign nationals. Once a large number of states have recognized the new IPR, they may revise the treaty to eliminate the reciprocity option and impose a national treatment obligation.
1.3.3.3. Most favoured nation treatment
The most favoured nation ("MFN") principle is a common feature of international trade agreements but has only recently been applied to IPRs. The principle extends the national treatment rule by compelling a government that provides a privilege or benefit to one state within a treaty system automatically to grant that same privilege or benefit to all states within the same system. The MFN principle thus prevents a subset of states within a larger treaty system from entering into bilateral or other special agreements among themselves, unless they grant the rights contained in those agreements to all other parties within the larger treaty system.
1.3.3.4. Subject matter and eligibility requirements
Intellectual property agreements specify the subject matter characteristics of the products that are eligible for legal protection. In the context of patents, for example, a treaty may specify the types of inventions (such as products and processes) to which states parties must grant legal rights. These subject matter requirements are generally drafted using language that instructs member states concerning the basic characteristics that a product must possess for it to merit protection under domestic IPR laws, while preserving sufficient flexibility for states to tailor the details of protection to the particularities of their national legal systems.
1.3.3.5. Exclusive rights
Where an intellectual property product satisfies a treaty’s subject matter eligibility requirements, states parties are required to grant an enumerated set of exclusive rights with respect to that product. These exclusive rights grant to the product’s owner the power to exclude all third parties from engaging in the activity that the right covers (such as reproducing or modifying the product or distributing it to others). It is the exclusivity of the rights granted that allows IPR owners to recoup the investment of time, money and resources required to create intellectual property products. The particular exclusive rights mandated by IPR agreements differ depending on the specific type of IPR product at issue. They are drafted with greater or lesser degrees of specificity depending on the degree of consensus among member states’ national IPR laws, thus affording varying levels of discretion to governments to implement the rights in their domestic legal systems.
1.3.3.6. Terms of protection and the public domain
Intellectual property agreements also specify for their states parties the minimum term of years during which intellectual property products must receive legal protection. Once that term has expired, the treaties do not require states to grant legal protection to the products. Thus, unless the state adopts a longer term of protection, after the expiration of the initial term of protection the product may be freely used by anyone for any purpose, including as a source for creating new products or simply for consumption. A corollary of this rule is that national IPR laws do not permit putative inventors and creators to claim IPRs in materials as they are found in nature or where they are already part of the public domain.
1.3.3.7. Exceptions and limitations to exclusive rights
International IPR agreements constrain the ability of national governments seeking to restrict the exercise of IPRs to achieve competing social or policy objectives, such as access to information, research, education and cultural development. Restrictions designed to achieve these objectives are generally known as "exceptions and limitations" to exclusive IPRs. These exceptions and limitations generally appear in two forms. The first form permits third parties to engage in specified uses of intellectual property products without the permission of the rights holder and without the payment of remuneration. The second form is known as a "compulsory licence." Compulsory licences allow third parties to use intellectual property products without the owner’s permission, but only upon the payment of adequate compensation. To prevent both forms of exceptions and limitations from eviscerating IPRs altogether, intellectual property agreements impose specific constraints the ability of member states to adopt them.
1.3.3.8. Enforcement provisions
The grant of IPRs in national laws would be meaningless without adequate and effective mechanisms to enforce those rights. For this reason, recent intellectual property agreements specify the types of enforcement provisions that member states must adopt in their national laws. These provisions include the imposition of civil and criminal penalties against any person who engages in acts of exploitation reserved to the owner of an intellectual property product without the owner’s authorization. The penalties include civil judicial proceedings for monetary damages or an injunction to prevent the continued unauthorized use of the product and criminal proceedings commenced by the government itself.
Taken together, these core provisions of international IPR agreements impose significant legal obligations on member states. The agreements do not, however, purport to definitively address all of the issues raised by the grant of legal protection to intellectual property products. For this reason, the treaties are often referred to as "minimum standards" agreements in that they create only a basic floor of legal protection to which all member states must adhere.
There are three important consequences of this minimum standards framework. First, it allows member states the discretion to interpret and apply those provisions of the treaties that are ambiguous or that reasonably permit more than one construction. Second, a minimum standards approach permits, but does not require, states to grant additional IPR protections within their national laws. And third and perhaps most importantly, the framework leaves member states free to enact laws that serve other political, economic or social objectives, even where those objectives are in tension with IPRs, provided that those laws are not inconsistent with the terms of IPR agreements.
In the last five years, however, an increasing number of developing countries have entered into bilateral or regional trade and investment treaties with the United States or with the European Community. These treaties often contain higher standards of intellectual property protection than those specified in multilateral intellectual property agreements. (Drahos, 2001; GRAIN, 2001) They thus restrict the minimum standards approach contained in the multilateral agreements, for example, by requiring states to enact specific intellectual property protection rules in their national laws or by requiring developing countries to follow the standards contained in multilateral agreements to which they are not parties. (For a more detailed discussion, see para. 2.3.1.6 below.)
The minimum standards framework (as limited by bilateral or regional treaties requiring higher standards of protection) provides a methodology for analysis but not a solution for every potential clash between IPRs and other governmental policies. This is particularly true for plant varieties and plant breeders’ rights, an area of intellectual property protection regulated by several international IPR agreements and subject to diverse standards of legal protection under different domestic laws. To understand how national governments can reconcile competing and sometimes conflicting domestic laws and objectives consistently with the obligations imposed by different international IPR agreements, it is first necessary to examine other international agreements and international institutions relating to plant genetic resources that have promulgated policies in tension with IPRs.
Before turning to a more detailed discussion of policy objectives, it is important first to identify the principal international institutions and international agreements that generate legal rules and standards relating to IPRs in plant varieties and plant genetic resources, as well as the institutions and agreements that generate rules and standards in tension with IPRs. Although a comprehensive discussion of these institutions and agreements is beyond the scope of this study, a basic familiarity with their most important elements is necessary to understand the legal regime of intellectual property rights in plant genetic resources for food and agriculture. (For a more detailed analysis, see Helfer, 2004, pp. 34-42)
1.3.5.1. World Intellectual Property Organization ("WIPO")
The World Intellectual Property Organization ("WIPO") is a specialized agency of the United Nations charged with "promot[ing] the protection of intellectual property throughout the world." (WIPO Convention, art. 3(i)). The WIPO Secretariat undertakes wide variety of activities relating to IPRs, including hosting diplomatic conferences of government representatives seeking to negotiate new international treaties. WIPO’s staff also provide technical assistance and training to member states and their national intellectual property offices, especially in developing countries. More recently, WIPO has created standing, expert and intergovernmental committees that conduct studies on particular intellectual property topics and generate nonbinding guidelines and recommendations for consideration by WIPO members.
WIPO’s recent activities in the area of plant genetic resources have been considerable. Issues relating to the intersection of IPRs and PGRs have been raised during the negotiation of two multilateral patent agreements (the Patent Law Treaty and the Substantive Patent Law Treaty) and have been a principal subject of discussion and study in the recently created Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore ("IGC").
Developing states first sought to raise issues relating to the intersection of IPRs and PGRs during the WIPO-sponsored negotiation of the Patent Law Treaty in 1999. They proposed the addition of an article in the treaty requiring applicants for inventions derived from genetic resources to demonstrate that they had received permission to access those resources from the country of origin. Industrialized countries opposed the proposal, arguing that it addressed substantive law issues that were inappropriate for inclusion in a treaty largely devoted to procedural issues. As a compromise, the WIPO Secretariat proposed the creation of a new intergovernmental committee (the IGC) to study the intellectual property aspects of genetic resources and traditional knowledge. (Helfer, 2004, pp. 69 and 70)
During the IGC’s first five sessions between April 2001 and July 2003, WIPO members have supported a wide-ranging work programme for the Committee, including: (1) creating a searchable database of clauses in contracts that regulate access to genetic resources or require benefit sharing; (2) studying technical issues raised by the disclosure of biodiversity-related information in patent applications; (3) creating databases of traditional knowledge; (4) identifying ways to document genetic resources and traditional knowledge in the public domain; and (5) studying the appropriate legal rules to protect traditional knowledge. Most recently, the WIPO General Assembly extended the IGC’s mandate and authorized it to accelerate its work, which may include the development of new international agreements. (Helfer, 2004, pp. 70 and 71)
1.3.5.2. World Trade Organization ("WTO")
The WTO is a global intergovernmental organization dealing with the rules of trade between nations. It was established in 1994 at the conclusion of the Uruguay Round of trade negotiations held under the auspices of the General Agreement on Tariffs and Trade ("GATT"). As of July 2004, 147 states and customs territories ("WTO Members" or "Members") had joined the organization. The WTO’s substantive obligations are contained in a series of treaties relating to international trade, including agreements on trade in goods, services, agriculture, sanitary and phytosanitary measures, trade-related investment measures, technical barriers to trade, textiles and clothing and intellectual property rights. These treaties are linked together as annexes to the Agreement Establishing the WTO. Disputes between WTO Members relating to any of these treaties are to be resolved by the WTO Dispute Settlement Body, which is composed of ad hoc dispute settlement panels and a standing Appellate Body of trade experts. A WTO Member whose national laws or practices are challenged by another WTO Member and found to be incompatible with its WTO treaty obligations by the Dispute Settlement Body must modify those laws or practices or face the prospect of trade sanctions.
A more detailed discussion of the dispute settlement process in the context of the Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPs" or "TRIPs Agreement"), is provided in paragraph 2.3.1.3.3 below. TRIPs is the WTO agreement that addresses IPRs. It is discussed in detail in section 2.3 below.
1.3.5.3. Convention on Biological Diversity ("CBD")
The CBD was opened for signature in 1992 and entered into force in 1993. As of July 2004, 188 states had ratified this agreement.
The CBD’s main objectives are the conservation of biological diversity, the sustainable use of its components, the fair and equitable sharing of benefits arising out of the utilization of genetic resources and the preservation of indigenous knowledge. (art. 1) The CBD also recognizes that nation states have the sovereign right to exploit their own resources and the authority to determine the conditions of access to them. (arts. 3 and 15)
One of the mechanisms by which the CBD achieves its objectives is in situ conversation of plant genetic resources. Conservation in situ involves the preservation of ecosystems and natural habitats and the maintenance of viable populations of species in those settings. Such conservation occurs, for example, where farmers and indigenous communities safeguard traditional plant varieties in the locations where they grow naturally or are cultivated.
Although the CBD does not expressly refer to any international IPR agreements, it contains numerous provisions relating to IPRs, principally in article 16. In particular, article 16(5) recognizes that IPRs "may have an influence on the implementation" of the CBD. The article obliges member states to cooperate in order to ensure that IPRs are "supportive of and do not run counter to" the treaty’s objectives. Other provisions make clear that the CBD is to be interpreted so as to preserve the rights of IPR owners recognized in international law. For example, articles 16(2)-(4) state that the transfer of technology and measures taken to gain access to such technology shall be consistent with the adequate and effective protection of IPRs recognized in international law. Thus, for example, where a government encourages foreign direct investment in industrial technologies (such as a biotechnological process used to insert new genetic sequences into existing plant varieties), it must respect any patent rights that the owner of that technology has acquired to protect it.
Over time, the biodiversity regime’s approach to intellectual property protection has evolved beyond the text of the CBD. The Conference of the Parties (COP) - the convocation of CBD members that determines how the Convention should be applied and implemented - has given detailed attention to harmonizing IPRs with the CBD’s objectives. In particular, developing countries active in the COP, together with the support of nongovernmental organizations, have expressed concern about the adverse effects of IPRs and have sought to harness intellectual property rules to promote compliance with the Convention.
In response to this concern, official COP statements have stressed the need to "promot[e] increased mutual supportiveness and integration of biological diversity concerns and the protection of intellectual property rights." (CBD Decision IV/15, para. 9) Members of the COP have worked toward this objective by gathering information, commissioning case studies, holding workshops and drafting guidelines and recommendations. For example, in April 2002, the COP adopted the "Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising Out of their Utilization." (CBD Decision VI/24, App. II, Annex, Part C) The Guidelines’ most important recommendation encourages applicants for IPRs such as patents or plant breeders rights to disclose the country of origin of the genetic resources or the traditional knowledge upon which those IPRs are based. The Guidelines advocate these disclosures to monitor whether applicants for IPRs have obtained the prior informed consent of the country of origin and complied with the conditions of access (if any) that that country has adopted. (Id.)
Although the COP members adopted the Bonn Guidelines by consensus, the Guidelines’ reliance upon intellectual property laws to promote compliance with the obligations of the CBD remains controversial. For example, a 2003 Communication from the European Commission to the European Parliament on the EC’s implementation of the Bonn Guidelines considers whether to adopt "a self-standing disclosure requirement" for patent and plant variety protection applicants. (EC Implementation of Bonn Guidelines, COM (2003) 821) If adopted, such a disclosure requirement would not, however, be incorporated into national or European intellectual property laws. To the contrary, the failure to comply with the new disclosure requirement would, according to the EC Communication, "only have consequences outside the field of patent law." (Id., p. 5) However, the EC Communication also states that the EC and its member states "should be ready to discuss, in the relevant international fora, the possibility of introducing under intellectual property law the same disclosure requirement... as a formal condition for patentability and not only as a self-standing obligation." (Id., p. 19, emphasis added)
1.3.5.4. The Consultative Group on International Agricultural Research ("CGIAR")
CGIAR is an informal association of public and private donors founded in 1971 that supports an international network of agricultural research centres, each with its own governing body. CGIAR’s mission is to engage in research, in partnership with other public and private entities, to promote sustainable agriculture in developing nations. With respect to plant genetic resources, CGIAR’s principal method for achieving this objective is ex situ conversation. Networks of gene banks within CGIAR store and conserve seeds and propagating materials outside of their natural habitat for future use by farmers, researchers and breeders. The CGIAR network holds the world’s largest ex situ collection of plant genetic resources for food and agriculture.
1.3.5.5. International Plant Genetic Resources Institute ("IPGRI")
IPGRI is the world’s largest international institute dedicated to the conservation and use of plant genetic resources. Founded in 1974, IPGRI focuses on conservation, management and preservation of the diversity of plant genetic resources, through domestic, regional and international programmes and research initiatives.
1.3.5.6. The International Undertaking on Plant Genetic Resources (the "Undertaking")
FAO has helped to generate several nonbinding international instruments relating to plant genetic resources. The Undertaking, the first of these instruments, was adopted in 1983. As of 2000, 113 states were signatories to the Undertaking, thus pledging themselves to implement the recommendations it contains. For many years, the Undertaking served as the central legal instrument in FAO’s global system for plant genetic resources, a system that includes a fund for the equitable sharing of benefits and a mechanism to give early warning about genetic resources under threat.
The Undertaking’s principal objectives are to ensure that the need for conservation is globally recognized and that sufficient funds for this purpose are made available; to assist farmers and farming communities in the protection and conservation of PGRs and of the natural biosphere; and to allow farmers, their communities and countries to participate fully in the benefits derived from improved uses of PGRs, including through plant breeding. (WT/CTE/125, para. 11)
In its initial formulation, the Undertaking challenged a private property rights approach to plant genetic resources by declaring that all such resources, whether as cultivated by farmers in the field or modified through breeder innovations, were part of the "common heritage of mankind and consequently should be available without restriction." (art. 1). An interpretation issued adopted by FAO in 1989, however, clarified that plant breeders’ rights were not incompatible with the Undertaking. (Resolution No. 4/89 adopted by FAO Conference 25th Session, Rome, 11-20 November 1989) It also recognized the interrelationship between the rights of traditional farmers (whose practice of saving seeds provided the raw genetic materials for innovation) and the rights of plant breeders (who use technology to achieve that innovation).
1.3.5.7. The International Treaty on Plant Genetic Resources for Food and Agriculture ("ITPGR")
On 3 November 2001, an intergovernmental conference sponsored by FAO adopted the text of a legally binding international agreement on plant genetic resources. The ITPGR entered into force on 29 June 2004. As of July of that year, the treaty had been ratified by 55 states and signed by an additional 50 countries. The ITPGR not only codifies and updates the nonbinding principles set out in the Undertaking and its subsequent revisions, but also contains provisions relevant to IPRs in plant genetic resources and plant varieties. Because of its importance to the subject of this study, an extended discussion of the ITPGR appears in section 4.3 below.
Having identified the principal institutions and agreements relating to plant genetic resources, the next sections address specific critiques of IPRs as applied to plants and plant varieties and the policy arguments that inform those critiques.
1.3.6.1. Preserving genetic diversity
Granting IPRs to plant breeders has uncertain consequences for preserving plant genetic diversity. Given the incentives that IPRs create for private parties to invest in research and breeding techniques relating to new plant varieties, it might be thought that IPRs would lead to an increase in plant genetic diversity over time.
A number of commentators have argued, however, that diversity is eroded rather than enhanced by granting IPRs to plant breeders. According to this view, in situ conservation by indigenous farmers diminished as they began to rely on commercial plant breeders for seeds and other propagating material. Rather than using informal breeding techniques to experiment with the creation of new varieties suitable for local growing conditions, indigenous farmers came to depend upon third party plant breeders to provide them with seeds possessing uniform genetic characteristics. The plant varieties that have come to dominate agriculture as a result of this dependence may possess many beneficial characteristics, but they do not enjoy the adaptive abilities of less well known and informally bred varieties. (Fowler, 1994, p. 118)
To evaluate these competing assertions about the effects of IPRs on plant genetic diversity, empirical testing would be useful. Unfortunately, empirical studies of the causal impact of IPRs on plant genetic diversity are difficult to devise because of the uncertainty of screening out other relevant causal variables. Empirical studies that do exist often focus on industrialized countries rather than developing states and tend to rely on anecdotal evidence. As a result, the broader applicability of their conclusions is uncertain and often controversial. (See IP/C/W/175 reporting results of national plant variety protection studies in Argentina, Kenya and the United Kingdom)
1.3.6.2. Farmers’ rights
A second challenge to IPRs concerns the relationship between farmers’ rights and IPRs in plant varieties. The concept of farmers’ rights was developed to reflect the contributions that traditional farmers, particularly in the developing world, have made to the preservation and improvement of plant genetic resources. FAO Resolution 5/89 defines farmers’ rights as "rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources, particularly those in centers of origin/diversity." (Resolution No. 5/89 adopted by FAO Conference, 25th Session, Rome, 11-20 November 1989) Such rights are also recognized in article 9 of the ITPGR.
Farmers’ rights are in tension with IPRs for plant breeders because many farmers and farming communities do not claim exclusive rights in the cultivated landraces (also known as traditional cultivars, see Dutfield, 2000, p. 50) and plant varieties they have cultivated over time. Moreover, the subject matter requirements of existing IPR laws, which as explained below are designed to protect innovations in new and clearly distinguishable plant varieties, often cannot accommodate contributions of individual farmers using more informal methods to select for better crops or sought-after plant characteristics.
Advocates of farmers’ rights have developed different approaches to address this situation and to reward farmers for their contributions to plant genetic diversity. The first approach involves situating the traditional practices of farmers as exceptions to the exclusive rights of plant breeders under existing IPR laws. In other words, breeders are precluded from demanding payment from farmers who engage in certain farming practices, such as saving seeds and planting seeds saved from prior purchases, or informally exchanging seeds. A second approach seeks to modify existing IPR laws so as to permit farmers themselves to claim exclusive rights in the plant varieties they cultivate informally. A third approach involves recognizing farmers’ rights not through IPRs but through benefit sharing mechanisms, such as financial payments and technology transfers, that compensate farmers for their contributions to plant genetic diversity. This last approach - which is recognized in article 9 of the ITPGR - questions whether farmers in fact have "rights" as that term is understood within an intellectual property paradigm, while acknowledging the need to reward their contributions to plant genetic diversity. (Blakeney, 2002, pp. 9-11)
1.3.6.3. Traditional knowledge
An issue closely related to farmers’ rights is the recognition and protection of the plant-related knowledge, innovations and practices of indigenous and local communities. (Cottier & Panizzon, 2004) Advocates assert that those claiming IPRs in plant genetic resources and plant varieties often utilize such knowledge without adequately acknowledging the contributions of the communities who possess it. Mechanisms to redress this problem are similar to those discussed above relating to farmers’ rights, a linkage reflected in article 9 of the ITPGR. They include modifying existing IPR laws to recognize traditional knowledge as a form of intellectual property and protecting traditional knowledge through sui generis national laws that recognize the communal ownership of much of traditional knowledge. In the fall of 2000, the World Intellectual Property Organization (WIPO) established a new Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore to study these issues. (See para. 1.3.5.1 above)
1.3.6.4. Regulating access to plant genetic resources
Plant breeders and others seeking to develop plant-related innovations need access to existing stocks of plant germplasm for breeding, research and development. Access issues arise for both in situ and ex situ collections of seeds and plant propagating material.
With respect to in situ collections, a number of states have enacted national access laws and regulations to control third party access. These access controls are consistent with the CBD, which grants states the sovereign right to control their plant genetic resources. They also further the CBD’s benefit sharing objectives by conditioning access upon the current or future payment of compensation or the transfer of technology to the state providing access. (OECD, 1996, p. 27) The specific conditions of access are often specified in Material Transfer Agreements ("MTAs") entered into between the entity (whether governmental or private) that owns or controls the germplasm and the entity (usually private) that seeks access to it. (Barton & Siebeck, 1994)
Similar access issues arise with regard to ex situ collections of plant germplasm, including the seed banks maintained under the auspices of CGIAR (see para. 1.3.5.4 above). Although pursuant to a 1994 agreement between CGIAR and FAO the autonomous agricultural research centres under CGIAR's auspices each create their own access regulations, certain designated germplasm is to be held by the centres "in trust for the benefit of the international community." (art. 3(a)) With respect to IPRs, the 1994 agreement provides that a centre "shall not claim legal ownership over the designed germplasm, nor shall it seek any [IPRs] over that germplasm or related information." (art. 3(b)). The centres also commit to apply the same restrictions on IPRs in MTAs with third parties to whom the centre transfers designated germplasm. (art. 10)
1.3.6.5. "Biopiracy" and property rights in unimproved plant materials
Issues of access to plant genetic resources are linked to larger controversies concerning the propriety of granting IPRs in the raw materials accessed.
Under settled principles of intellectual property law, unimproved plant germplasm already in the public domain cannot be removed and privatized. Nevertheless, there are several reported cases and one empirical study which indicate that plant breeders and commercial entities have on occasion been granted IPRs in wild plant varieties or in germplasm found in CGIAR seed collections. It is unclear whether such rights were granted because of inadvertence, insufficient or inaccurate information provided by the IPR applicant or particularities in national laws that limit the sources to which granting authorities may refer in determining what materials are in the public domain. (Correa, 2000, pp. 188-189; Plant Breeders Wrongs, 1999) Where such rights have been granted, however, states and interested NGOs have often succeeded in petitioning the authorities in other nations to remove legal protections they had previously granted. (Dinwoodie, Perlmutter & Hennessey, 2001, p. 1418; Blakeney, 2002, p. 12)
Attempts to claim IPRs in unimproved plant genetic resources have often been labeled as a form of "biopiracy." (Correa, 2000, p. 172) Biopiracy is not a legal term of art, however and has been loosely used to refer to any act by which a commercial entity seeks to obtain IPRs over biological resources, including plant varieties, that are seen as "belonging" to developing states or indigenous communities. (CEAS Consultants, 2000, p. 70) Thus, even where an IPR claim relates to improvements to raw plant materials, certain governments and NGOs have labeled the entity seeking legal protection as a biopirate if it has not provided a fair return to those who granted access to the raw materials.
1.3.6.6. Plant breeders’ research interests.
Even as between groups of plant breeders, the scope of IPRs in plant varieties can be controversial. Tensions arise between first generation breeders who have secured legal protection for new varieties and second generation breeders who seek to utilize those new varieties to develop still more varieties. As with farmers’ rights, it is possible to use the exceptions and limitations provisions of national IPR laws to permit second generation innovators to engage in such activities without the authorization of first generation breeders.
