The International Consortium on Agricultural Biotechnology Research (ICABR)
Professor of Intellectual Property,
Director, Queen Mary Intellectual Property Research Institute,
Queen Mary, University of London
The traditional knowledge of indigenous peoples throughout the world has played an important role in identifying biological resources worthy of commercial exploitation. Attention to date has focussed primarily on the value of pharmaceutical products derived from the traditional medicine of indigenous peoples. A similarly significant contribution has been made by the knowledge of indigenous peoples and traditional farmers in the development of new crop types and biodiversity conservation. These groups have been an important agency in the conservation of plant genetic resources and the transmission of these resources to seed companies, plant breeders and research institutions. They have not typically been paid for the value they have delivered, whereas breeders and seed companies have resorted to intellectual property rights to recover their development expenditures.
This paper examines a number of recent cases in which traditional agricultural knowledge has been converted into intellectual property rights and explores the discussions surrounding the creation of an international legal regime for the protection of this knowledge within the context of the Convention on Biological Diversity (CBD) and the WTO agreement on Trade Related Aspects of Intellectual Property Rights and within the context of the International Undertaking on Plant Genetic Resources.
Each of the case studies discussed in the paper involve the acquisition or attempted acquisition of intellectual property rights in relation to germplasm deposited with or developed by a number of the agricultural research centres comprising the CGIAR.
Germplasm ownership concerns were first raised in 1998 as a consequence of Plant Breeder's Rights applications made in Australia by a number of agricultural research institutes in relation to a peavine and a lentil which had been bred from genetic stock obtained from ICRISAT and ICARDA. The controversy which attended these applications resulted in the first assessment by the CGIAR of the effectiveness of the management of intellectual property generated by its centres.
A patent concerning bacterial blight resistance, obtained by UC Davis in 1996, arising from the work of one of its post doctoral fellows at IRRI, raised for the first time, the question of compensation for the traditional community, responsible for the conservation of the strain of plants, within which this resistance resided.
Finally, in 2000, CIP's Potato Germplasm Curator, alleged that the Centres distribution of five traditional Peruvian varieties of Yacon was in breach of its trust obligations. Its Genetic Resources Policy Committee, subsequently determined that there was no impropriety in this distribution.
The principal international legal instruments, which have a bearing on any intellectual property rights which might be generated from CGIAR Germplasm are the Convention on Biological Diversity (CBD) and the World Trade Organization on Trade Related Aspects of Intellectual Property Rights (WTO TRIPs Agreement).
The CBD acknowledges the contribution of traditional peoples to the conservation of biological diversity and contains articles on access to genetic resources; informed consent and the distribution of benefits of biotechnological innovations. But it also requires that access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights.
The WTO TRIPs Agreement in Article 17.3(b) requires countries to provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. There is currently a vigorous debate on the sorts of sui generis systems which might comply with Art.27.3(b). A number of developing country members of the WTO have suggested that such sui generis systems might include some of the protections which the CBD suggests for communities which provide access to genetic resources.
The World Intellectual Property Organization (WIPO) is currently examining the ways in which the two international agreements might be harmonised. The organization is currently engaged upon the business of encouraging its members to identify, catalogue, record and document genetic resources and traditional knowledge.
Finally, in anticipation of the preparatory meeting in New York in April 2001 for a conference to be convened on the tenth anniversary on the Rio Earth Summit, a group of NGOs have proposed a Treaty to Share the Genetic Commons. This Treaty proposes that the Earths gene pool, in all of its biological forms and manifestations be declared a global commons and immune from intellectual property protection.