-
The 14 February 1998 issue of New Scientist contained an editorial and
leading article on the alleged biopiracy of two Australian agricultural
agencies. The two agencies: Agriculture Western Australia and the Grains
Research and Development Corporation (GRDC) had apparently applied for
Plant Breeder's Rights (PBR) under the Australian Plant Breeder's Rights
Act, 1994 (the Act), in relation to two species of chickpea which had been
bred from material which had been provided by the International Crop Research
Institute for the Semi-Arid Tropics (ICRISAT). These PBR applications had
to meet the statutory tests prescribed in s.43 of the Act; that the new
variety has a breeder, that it is distinct, uniform and stable and that
it has not been or has only recently been exploited. The Australian Plant
Breeder's Rights Office did not have an opportunity to make a determination
on these matters because the furore caused by these applications led to
their withdrawal, prior to determination.
-
The New Scientist editorialised that "it was hard to imagine what two Australian
government agricultural agencies thought that they were up to when they
applied for property rights on chickpeas grown by subsistence farmers in
India and Iran".[1] A feature article
in the New Scientist carried an accusation from a spokesperson from the
South Asian Network on Food, Ecology and Culture which described the PBR
applications as "blatant biopiracy" by "privatising seeds that belong to
our farmers and selling them back to us".[2]
-
Since ICRISAT is a member of the Consultative Group on International Agricultural
Research (CGIAR), this controversy prompted other CGIAR members to examine
their own intellectual property arrangements. Coincidentally this examination
threw up other Australian PBR applications made by the Centre for Legumes
in Mediterranean Agriculture in relation to a peavine and a lentil which
had been bred from genetic stock obtained from the International Centre
for Agricultural Research in the Dry Areas (ICARDA). ICARDA was accused
by the Rural Advancement Foundation International (RAFI) of fundamentally
"misinterpreting its authority" by allowing its genetic stock to be utilized
in patent claims.[3]
-
These controversies impelled an examination of the legal status of the
material held in the genebanks of international agricultural research institutes
and an examination of the management practices applied in relation to the
intellectual property rights generated from that material.
2. Germplasm
Collections of the Centres of the Consultative Group on International Agricultural
Research (CGIAR)
2.1 Structure
-
The GGIAR, established in 1971, is an informal association of 57 public
and private sector members that supports a network of 16 international
agricultural research centres.[4] The
mission of the CGIAR is to contribute through its research to promoting
sustainable agriculture for food security in the developing countries.
The CGIAR is co-sponsored by the World Bank, the Food and Agricultural
Organization of the United Nations (FAO), the United Nations Development
Programme (UNDP) and the United Nations Environment Programme (UNEP). A
key administrative organ within the CGIAR system is the Technical Advisory
Committee (TAC)[5]. The Executive Secretary
of TAC is appointed by the FAO, following consultations with members of
the CGIAR. The TAC, supported by its own Secretariat located at FAO in
Rome, comprises a group of distinguished scientists and experts from developed
and developing countries. The TAC is intended to provide independent advice
and judgements on strategic issues and on the quality of the scientific
programmes supported by the CGIAR. Among the principal functions of the
TAC is to monitor the compliance of centres with approved plans and CGIA
priorities.
-
One of CGIAR's principal research objectives is to contribute to the preservation
of biodiversity by establishing an ex situ collection of plant genetic
resources. This collection currently comprises over 600,000 accessions
of more than 3,000 crop, forage and pasture species.[6]
In addition to ICRISAT and ICARDA, the agricultural research centres of
CGIAR which maintain genebanks include: Centro Internacional de Agricultura
Tropical (CIAT), Center for International Forestry Research (CIFOR), Centro
Internacional de Mejoramiento de Maiz y Trigo (CIMMYT), Centro Internacional
de la Papa (CIP), International Center for Living Aquatic Resources Management
(ICLARM), International Center for Research in Agroforestry (ICRAF), International
Livestock Research Institute (ILRI), International Institute of Tropical
Agriculture (IITA), International Plant Genetic Resources Institute (IPGRI),
International Rice Research Institute (IRRI) and the West Africa Rice Development
Association (WARDA).
2.2 Mid-Term
Meeting, Brasilia, 25-29 May, 1998
-
The controversy surrounding the allegations of bio-piracy, mentioned above,
formed a back-drop to CGIAR's Mid-Term Meeting in May 1998. Prior to this
meeting CGIAR had published a report, The Use of Proprietary Biotechnology
Research Inputs at Selected CGIAR Centers[7]
which identified the necessity for a more rigorous approach by CGIAR centres
to the management of intellectual property rights arising from the use
of CGIAR materials.[8] At the meeting
a comprehensive audit of the Material Transfer Agreements (MTA) of CGIAR
centres was agreed upon, together with a common approach to be taken when
a MTA has been breached.[9] Additionally,
the meeting agreed on a review of the intellectual property policies of
centres and the formulation of "Guiding Principles on Intellectual Property
Rights and Genetic Resources".
3. International
Undertaking on Plant Genetic Resources
3.1
Introduction
-
In 1983 the Conference of the FAO adopted the International Undertaking
on Plant Genetic Resources (the Undertaking) as a non-legally binding instrument.
The Undertaking provides for the exploration and collection of genetic
resources (Art.3), for conservation in situ and ex situ (Art.4), for the
availability of plant genetic resources (Art.5), for international cooperation
in conservation, exchange and plant breeding (Art.6), for international
coordination of genebank collections and information systems (Art.7) and
for funding (Art.8). By September 1996 the Undertaking had attracted the
subscription of some 111 countries, excluding the USA.[10]
3.2 The
International Undertaking and Plant Breeder's Rights
-
The Undertaking was originally predicated on the principle that plant genetic
resources should be freely exchanged as a "heritage of mankind" and should
be preserved through international conservation efforts. In subsequent
years the principle of free exchange was gradually narrowed. In November
1989 the 25th Session of the FAO Conference adopted two resolutions providing
an "agreed interpretation" that plant breeders' rights were not incompatible
with the Undertaking. [11] The
acknowledgement of plant variety rights obviously benefited industrialised
countries, which were active in seed production. In exchange for this concession,
developing countries won endorsement of the concept of "farmers' rights".
This was a moral commitment by the industrialised countries to reward "the
past present and future contributions of farmers in conserving, improving
and making available plant genetic resources particularly those in centers
of origin/diversity. These rights are vested in the International Community,
as trustee for present and future generations of farmers."[12]
-
A further narrowing of the free-flow principle occurred at the 26th Session
of the FAO Conference in November 1991 which in Resolution 3/91, while
reaffirming that plant genetic resources were the common heritage of mankind,
subordinated it to "the sovereignty of states over their plant genetic
resources".
3.3
The International Undertaking and the CBD
-
In November 1993 the 27th Session of the FAO Conference unanimously adopted
Resolution 7/93 calling for The Commission to undertake "the adaptation
of the International Undertaking on Plant Genetic Resources in harmony
with the Convention on Biological Diversity" which had been concluded by
the Rio Earth Summit the previous year. The Resolution instructed the Commission
to consider "the issue of access on mutually agreed terms to plant genetic
resources including ex situ collections not addressed by the Convention"
and "for the realization of Farmers' Rights". [13]
Negotiating Texts have been considered by the Commission in a series of
sessions between 1994 and 1997. Its 1997 sessions have prepared a simplified
draft text concentrating on articles: 3 (Scope), 11 (Availability of Plant
Genetic Resources) and 12 (Farmers' Rights).[14]
3.4 Fifth
Negotiating Session, 8-12 June 1998
-
The draft text was considered in a negotiating session between 8-12 June
1998. The negotiation divided on North-South lines, in which the South
conceived of access to the genetic resources of developing countries in
terms of an exchange of nature for debt and maintained the right of farmers
to save, exchange and enhance seed as a traditional right.[15]
Malaysia, speaking on behalf of the developing economies of Asia, "emphasized
that the revision of the International Undertaking had to recognise; (i)
facilitated access, (ii) benefit sharing, (iii) Farmers' Rights, and (iv)
the international fund as inseparable components of equal importance".[16]
The EU and European States proposed the establishment of "a mechanism to
promote and better channel the flow of funds from available sources" to
developing countries and economies in transition.[17]
This was supported in principle by the countries of the North American
Region, Japan and the Republic of Korea.
-
The position taken by the Australian delegation at the Negotiating Session
was trenchantly criticized by a RAFI report on the proceedings.[18]
The Australian delegation was castigated for suggesting that Farmers' Rights
was a mere concept and for asserting that the country was "too young" to
have traditional agricultural practices.[19]
RAFI reported that the negotiations were stalled when Australia refused
to withdraw its proposed text, suggesting that "the Australian position
amounted to a filibuster. There had been modest progress to that point.
When the Aussies refused to back down, that progress ground to a halt".[20]
RAFI concluded that "combined with the country's inexcusable string of
public sector biopiracies, there is no longer any credible support for
allowing the delegation to remain in the negotiations. Neither the European
Region nor the South would want to join any club that would admit Australia
as a member".
-
RAFI delivered a report on global instances of biopiracy to the negotiating
session, stating that "every State in Australia except the Northern Territory
was involved in possible abuses along with several universities and research
centres".[21] Even discounting RAFI's
traditional polemic, it would appear that Australia has aligned itself
against the bloc of developing countries and may find itself isolated even
within the industrialised world.
4. FAO Global
System for the Conservation and Utilization of Plant Genetic Resources
for Food and Agriculture
-
In 1983 the FAO Conference had established the Commission on Plant Genetic
Resources as a permanent intergovernmental forum to deal with questions
concerning plant genetic resources. The International Undertaking on Plant
Genetic Resources was adopted as the formal framework for its activities.
The 1995 FAO Conference adopted Resolution 3/95 which broadened the Commission's
mandate to embrace all components of biodiversity of relevance to food
and agriculture. This broader mandate was reflected in the renaming of
the Commission as the Commission on Genetic Resources for Food and Agriculture.
The FAO considered that this would "facilitate an integrated approach to
agrodiversity".[22] The statutes for
the broadened Commission provide for cooperation between the FAO and other
governmental and non-governmental bodies, in particular the Conference
of the Parties to the Convention on Biological Diversity (CBD). The Commission
was specifically required to cooperate with the CBD in the area of genetic
resources of relevance to food and agriculture.
-
In the discharge of its mandate, the Commission has coordinated the development
of the Global System for the Conservation and Utilization of Plant Genetic
Resources for Food and Agriculture. The objectives of the Global System
are "to ensure the safe conservation and promote the availability and sustainable
utilization of plant genetic resources by providing a flexible framework
for sharing the burdens and benefits".[23]
The Global System mediated through the International Undertaking on Plant
Genetic Resources comprises three elements. The first element consists
of voluntary codes of conduct for plant germplasm collecting and transfer
and on biotechnology, as well as the 1994 FAO/CGIAR Agreement on Genebanks.
The second element is a "Global Mechanism" comprising A World Information
and Early Warning System, networks of ex situ and in situ and on farm collections
and crop specific networks. The third element consists of three global
instruments: an inventory of the "State of the Worlds Plant Genetic Resources",
a "Global Plan of Action on Plant Genetic Resources" and the "International
Fund for the Implementation of Farmers' Rights".
-
The Global Plan of Action on Plant Genetic Resources was adopted by the
Intergovernmental Fourth International Technical Conference on Plant Genetic
Resources held in Leipzig, 17-23 June 1996.[24]
The Leipzig Declaration, adopted by the conference, emphasized the importance
of completing the revision of the International Undertaking and the adjustment
of the Global System in line with the Convention on Biological Diversity.
5. United
Nations Convention on Biological Diversity
-
The Rio Earth Summit, which was convened in June 1992, promulgated the
Convention on Biological Diversity (CBD), The Rio Declaration on Environment
and Development and Agenda 21. Agenda 21 was the strategic plan of the
Rio participants for achieving sustainable environmental and developmental
goals into the next century.[25]
5.1 General
Principles
-
The Convention on Biological Diversity represented an attempt to establish
a programme for the preservation of the world's biological resources.[26]
Article 1 declared the objectives of the Convention to be "the conservation
of biological diversity, the sustainable use of its components and the
fair and equitable sharing of the benefits arising out of the utilization
of genetic resources". The Convention noted in Art.3 the sovereign right
of nations "to exploit their own resources pursuant to their own environmental
policies", but in Art.15 requires contracting parties to "endeavour to
create conditions to facilitate access to genetic resources for environmentally
sound purposes" by other contracting parties on mutually agreed terms and
conditions on the basis of "prior informed consent". A detailed code of
access to biotechnology is prescribed in Art.16. Access and transfer is
stated to be "provided on terms which recognize and are consistent with
the adequate and effective protection of intellectual property rights".
The Article provides that developing countries which provide genetic resources
shall be granted "access to and transfer of technology which makes use
of those resources". Article 19.2 provides for the grant of access on a
fair and equitable basis and on mutually agreed terms, to contracting parties,
"particularly developing countries, to the results and benefits arising
from biotechnologies based upon genetic resources provided by those contracting
parties".
-
It has been noted that the Convention distinguished between genetic resources
collected prior to 29 December 1993, when the Convention entered into force,
and subsequently collected genetic resources.[27]
Thus Art.15.2 limits sovereign rights to genetic resources which a country
of origin provides, or other countries acquire in accordance with the Convention.
"Country of origin" is defined in Art.2 as the country which possesses
the genetic resources in in situ conditions.
-
After originally proposing a convention on biological diversity at the
14th Governing Council Meeting of the United Nations Environment Council
(UNEP) at Nairobi in June 1987, the USA had declined to accede to the Convention.
This refusal was attributable to the widespread criticism of US biotechnology
policy, largely by developing countries and the resultant access regime
contained in the Convention.[28] Some
measure of comfort for the US position was assured by Art.16.5 which provides
for the harmonization of the Convention with national legislation and international
law concerning intellectual property rights.
5.2
Traditional Resource Rights
-
The Rio Declaration in Principle 22 stated that 'Indigenous peoples and
their communities...have a vital role in environmental management and development
because of their knowledge and traditional practices'. Chapter 26 of Agenda
21 detailed the relationship which conference participants recognised between
indigenous peoples and their lands. The Agenda, at para.26.3(a), required
governments
to establish a process to empower indigenous peoples and their communities'
through measures that include:
* recognition of their values, traditional knowledge and resource
management practices with a view to promoting environmentally sound and
sustainable development;
* enhancement of capacity- building for indigenous communities based
on the adaptation and exchange of traditional experience, knowledge and
resource-management practices, to ensure their sustainable development;
* establishment, where appropriate, of arrangements to strengthen
the active participation of indigenous peoples and their communities in
the national formulation of policies, laws and programs relating to resource
management and other development processes that may affect them.
-
The Preamble to the CBD recognised the
...close and traditional dependence of many Indigenous and local
communities embodying traditional lifestyles on biological resources, and
the desirability of sharing equitably arising from the use of traditional
knowledge, innovations and practices relevant to the conservation of biological
diversity and sustainable use of its components.
-
Article 8(j) of the Convention required each signatory
...subject to its national legislation, respect, preserve and maintain
knowledge, innovations and practices of indigenous and local communities
embodying traditional lifestyles relevant for the conservation and sustainable
use of biological diversity and promote their wider application with the
approval and involvement of the holders of such knowledge, innovations
and practices and encourage the equitable sharing of the benefits arising
from the utilization of such knowledge, innovations and practices.
-
In February 1992 the Commonwealth, State and Territory Governments had
already signed the Intergovernmental Agreement on the Environment (IGAE)
in which they formally recognised that "biological diversity is a major
and valuable component of the environment and should be protected". Pursuant
to this Agreement a Task Force on Biological Diversity was established
by the Australia and New Zealand Environment and Conservation Council (ANZECC)
to report on the implications and manner of implementation of the Convention
on Biological Diversity. Pursuant to the recommendations of the Task Force,
the Committee on Australian Government (COAG) in December 1992 agreed to
implement a National Strategy for Ecologically Sustainable Development,
one of the central objectives of which is "to protect biological diversity
and maintain essential ecological processes and life support systems".[29]
-
A National Strategy for the Conservation of Australia's Biological Diversity
was drafted by an Advisory Committee which was established for this purpose.
Recommended Action 6.1.7 of the strategy highlighted the importance of
the knowledge of indigenous people in enhancing knowledge and understanding
of biological diversity:
Recognise the value of traditional knowledge and practices of Aboriginal
people and Torres Strait Islanders and integrate this knowledge and those
practices into biological diversity research and conservation programmes
by:
* encouraging the recording (with the approval and involvement of
the indigenous people concerned) of traditional knowledge and practices;
* assessing their potential value for nutritional and medicinal
purposes, wildlife and protected area management and other purposes; and
* applying traditional knowledge and practices in ways which ensure
the equitable sharing of the benefits arising from their use
-
The House of Representatives Standing Committee on Environment Recreation
and the Arts in its report Biodiversity. The Role of Protected Areas observed
that the identification of traditional practices and culture was much more
than an exercise in information gathering as it raised "questions of authenticity,
knowledge and power".[30]
-
The Committee proposed that the first dot point of Recommended Action 6.1.7
be amended to provide that indigenous communities be encouraged "to undertake
or otherwise collaborate in research projects which utilise traditional
knowledge and practices in the study of biodiversity and in conservation".[31]
-
The Task Force on Biological Diversity, which had been established by the
ANZECC, had recommended that a Commonwealth, State and Territory Working
Group be established to investigate and report on the strengthening of
existing controls governing access to genetic resources including legislation.
This Working Group was established in February 1993 with the task of ensuring,
inter alia, that Australia's national and international obligations are
honoured.
-
To assist informed debate on these matters the Coordination Committee on
Science and Technology (CCST) in March 1994 prepared a discussion paper
Access to Australia's Biological Resources. This discussion paper high-lighted
the significance of the ILO Convention No. 169, The Convention on Biological
Diversity, Agenda 21 and the Rio Declaration on Environment and Development
and the United Nations Working Group on Indigenous Populations in recognising
the obligations owed to indigenous peoples for the contributions made by
them in promoting environmentally sound and sustainable development.
-
The discussion paper observed that although only the Convention on Biological
Diversity imposed legal obligation on Australia the other instruments could
not be ignored with impunity.[32]
It stated that:
Together these instruments represent important manifestations of
current international thinking on the subject of the rights of indigenous
peoples and Australia, as part of the international community, has actively
contributed in several international forums to the development of the views,
ideas and ideals expressed in these instruments. Moreover, to the extent
that certain common themes appear in these instruments, they reinforce
each other and inevitably have the effect of exerting greater pressure
upon Governments to implement the obligations contained therein.[33]
-
Among the common themes identified in the discussion paper were the need
to :
* respect, preserve and maintain knowledge, innovations and practices
of indigenous relevant to the conservation and sustainable use of biological
diversity
* promote the wider application of such knowledge, innovations and
practices with the approval and involvement of indigenous peoples; and
share equitably benefits arising from the use of traditional knowledge,
innovations and practices with indigenous peoples.[34]
-
Pursuant to the need to harmonise the CBD with other international intellectual
property conventions, a fact-finding mission of the World Intellectual
Property Organization (WIPO) visited Australia in June 1998, to examine,
inter alia,
* the role of intellectual property rights in the preservation,
conservation and dissemination of global biological diversity;
* the intellectual property rights aspects of biotechnology; and
the use of intellectual property rights in the transfer of technology under
multilateral environmental agreements.
5.3 Commonwealth-State
Working Group on Access to Australia's Biological Resources
-
The Commonwealth-State Working Group on Access to Biological Resources
(CSWG) was established in 1994 to formulate a national approach on access
to Australia's biological resources, to identify benefits from a national
approach, to develop management principles and "to suggest mechanisms which
could be used to govern access, collection, processing, development and
export of Australia's indigenous biological resources"[35]
In 1998 the CSWG released its discussion paper: Managing Access to Australia's
Biological Resources: Developing a Nationally Consistent Approach.[36]
As the title of the discussion paper indicates, the CSWG considered that
in the face of administrative and political difficulties in securing a
national policy on access to genetic resources, a nationally consistent
approach on the part of States and Territories was the preferred option.[37]
The CSWG promulgated 12 principles, derived from the CBD, to guide the
management of access to genetic resources in Australia. These principles
were:
1. Facilitate access to, and use of Australia's biological resources,
in ecologically sustainable ways.
2. Foster a balanced approach to access to biological resources
which promotes the conservation of biological diversity and which encourages
the development of ecologically sustainable uses of biological resources
for the benefit of Australia.
3. Ensure that Australia captures appropriate economic and other
benefits from access to its biological resources and ensure the widest
possible sharing of those benefits.
4. Ensure that administrative and regulatory practices are transparent,
consistent and minimise duplication and regulation, building wherever possible
on existing regulatory mechanisms.
5. Ensure continued access for Australia to biological resources
in other countries for research and commercial purposes by developing an
approach which Australia would be prepared to comply with if the same approach
was used by other countries.
6. Be based on consultation with affected communities who should
be given sufficient information to make informed decisions.
7. Be comprehensive, in terms of the coverage of biological resources
on Australian territory and in waters under Australian sovereignty....
8. Take into account with the interests of Aboriginal and Torres
Strait Islander peoples, rural communities and rural landholders/owners.
9. Be consistent with: -Australia's responsibilities and interests
in international instruments such as the Convention on Biological Diversity,
the United Nations Food and Agricultural Organization (FAO) International
Undertaking on Plant Genetic Resources and the United Nations Convention
on the Law of the Sea. -The Intergovernmental Agreement on the Environment
-National Competition Policy and the Trade Practices Act.
10. Provide for sharing of information between the Commonwealth,
States and Territories on biological resources and their conservation and
management.
11. Provide adequate mechanisms for monitoring and enforcing the
requirements of contracts and permits.
12. Where possible, provide opportunities for active participation
by Australia in all stages of the development of biological resources,
including collection, screening, research and product development.[38]
-
As a mechanism to govern access, collection, processing, development and
export of Australia's indigenous biological resources, the discussion paper
proposes an multi-purpose contract system (MSC). This was proposed on the
basis that it would require minimal changes to existing legislation, that
it was consistent with Australia's international obligations and was flexible
and cost-effective.[39] The development
of a MSC to cover all aspects of access to biological resources was recommended
as a means of eliminating the existing complicated system of permits. Despite
its suggestion that a nationally consistent approach is preferable to a
national approach, it is difficult to see the MSC device working without
the exercise of national sovereignty over biological resources.
-
In relation to the recognition of the rights of indigenous peoples, the
discussion paper rejects intellectual-property style protection in favour
of bioprospecting contracts entered into prior to the divulging of traditional
knowledge.[40]
5.4 Proposed
Commonwealth Biodiversity Act
-
In February 1998 the Commonwealth Minister for the Environment issued a
Consultation Paper Reform of Commonwealth Environment Legislation. The
Consultation Paper foreshadows three new Commonwealth Acts; an Environment
Protection Act, a Biodiversity Conservation Act and new heritage legislation.
These proposals arise out of an Agreement on Commonwealth/State Roles and
Responsibilities for the Environment which was settled at the November
1997 meeting of the Council of Australian Governments (COAG). The central
tenet of the Agreement was that "the Commonwealth should be focussed on
matters of national environmental significance".[41]
Consequently, the Minister announced the withdrawal of the Commonwealth
"from matters of only local or State significance".[42]
The question of access to biological resources was not directly identified
in the COAG Agreement as a matter of national significance. The Consultation
Paper refers to the unified national approach on access to biological resources
which is being developed by the CSWG.
-
In a chapter of the Consultation Paper on the question of access it is
stated that "the Commonwealth Government currently has no specific legislative
ability to implement the provisions of the Convention on Biological Diversity
dealing with the control of access to biological resources" and that the
Biodiversity Conservation Act will provide it with that ability "by allowing
regulations to be made in relation to the management of access to biological
resources on Commonwealth land and in marine environments under Commonwealth
control".[43] The Consultation Paper
provides no hints as to the form or scope of these regulations.
-
The Consultation Paper infelicitously expresses the legislative ability
of the Commonwealth in this area. Legislation pursuant to the external
affairs power in placitum 51(xxix) of the Constitution would permit the
Commonwealth to implement the access provisions of the Biodiversity Convention
in full force. Indeed, as the joint submission on the Consultation Paper
of the Australian Conservation Foundation and others points out on the
subject of threatened species, the Consultation Paper states "This provision
will apply to all of Australia and its waters. It will not be restricted
to Commonwealth areas".[44] The joint
submission also addresses the issue of the prior informed consent of traditional
and other owners as the cornerstone of access to biodiversity.[45]
6. World Trade
Organization Agreement on Trade Related Intellectual Property Rights (TRIPs)
and the International Convention for the Protection of New Varieties of
Plants (UPOV)
-
Paralleling the formulation of the Convention on Biological Diversity were
the negotiations of the Uruguay Round of the General Agreement on Tariffs
and Trade. Attempts by the World Intellectual Property Organization to
revise the Paris Convention on Industrial Property, 1883, which deals with
the international patents, industrial designs and trade marks regime, had
foundered on the irreconcilability of the position of developing countries
and industrialised countries on the compulsory licensing of patents.[46]
For this and other reasons, the US proposed that the GATT formulate legislative
norms for intellectual property protection and that it require the introduction
of a range of mechanisms for the enforcement of intellectual property rights.[47]
The resultant Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPs) was annexed as a condition of membership to the Agreement
Establishing the World Trade Organization (WTO).[48]
-
Article 27.3 of the TRIPS Agreement permits signatories to exclude from
patentability "plants and animals other than micro-organisms, and essentially
biological processes for the production of plants or animals, other than
non-biological and microbiological processes". However, the provision requires
that "Members shall provide for the protection of plant varieties either
by patents or by an effective sui generis system or by any combination
thereof". Article 65.2 permits developing countries a period of five years
for compliance with TRIPs commencing from the date of entry into the WTO
Agreement, in April 1994. Least developed countries are permitted an additional
five years for the implementation of TRIPs.
-
In all probability, to comply with this TRIPs obligation, countries will
introduce legislation based on the International Convention for the Protection
of New Varieties of Plants (UPOV), which was amended in March 1991. The
UPOV Convention provides for the registration and grant of intellectual
property rights[49] in relation to
new, distinct, stable and uniform plant varieties. Article 6 of the UPOV
Convention deems a variety to be new if at the date of filing the application,
"propagating or harvested material of the variety has not been sold or
otherwise disposed of, for purposes of exploitation of the variety" earlier
than one year within the date of filing the application in the territory
of the contracting party, or earlier than four years, or in the case of
trees and vines, earlier than six years in a territory of a non-contracting
party. This formulation of novelty, which is much more liberal than the
requirement of novelty under patent law, facilitates the acquisition of
plant variety rights in relation to germplasm acquired from CGIAR centres.
7. Intellectual
Property Rights and the Obligations of Trustees of CGIAR Genebanks
-
A paramount issue raised by the recent controversies concerning the Australian
agricultural research institutes which utilized germplasm from ICRISAT
and ICARDA in developing registrable plant varieties, concerns the legal
status of the germplasm collections of the CGIAR agricultural research
institutes. This issue arises in two principal contexts. First, what will
happen to these genebanks upon the dissolution of the relevant centre and,
secondly, what authority do the centres have to permit third parties to
exploit their genetic resources. The starting place for these inquiries
commences with an analysis of the legal status of these institutes themselves.
-
The legal status of these collections has always been problematic. In 1986
the FAO had conducted a review of the legal status of all national and
international institutions operating genebanks.[50]
In relation to the CGIAR centres, the FAO report concluded that as control
over their operation was shared between national and international representatives,
they were not international in the strict sense, as they were not created
by any international instrument or organization. On the other hand the
report concluded that because they were not either in the private sector
or under the control of any State or national authority, the CGIAR centres
were sui generis. Consequently, the report reached no firm conclusion on
the ownership of the genetic resources controlled by the Centres.
-
A similar study by the TAC suggested that genebanks established as a result
of international collaboration should be considered to be held on trust
for CGIAR purposes.[51] This study
highlighted the importance of the agreements of genebanks with their host
countries and recommended that where necessary these agreements be amended
to provide that in the event of closure of a research institute the geneplasm
be transferred to an alternative institution to be held on trust, as recommended.
This trustee concept was adopted as CGIAR policy in 1989. Its 1989 policy
statement on plant genetic resources, under the heading "ownership", states
that "it is the CGIAR policy that collections assembled as a result of
international collaboration should not become the property of any single
nation, but should be held in trust for the use of present and future generations
of research workers in all countries throughout the world".
-
A joint meeting of the TAC and CGIAR Directors' Working Group on Intellectual
Property in January 1992 issued a statement on intellectual property, biosafety
and the conservation of plant genetic resources. It recommended that the
distribution of germplasm to other than national agricultural research
centres should be on the basis of material transfer agreements (MTAs).
Breeding material made available to users in industrialised countries,
whether private or public, could be the subject of plant variety protection
"provided (a) it did not restrain the future use of the material by the
Centres, and (b) financial gains were paid into an international fund for
the benefit of developing countries".[52]
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A number of Centres have adopted policies which provide for the use of
MTAs in the transfer of germplasm. These are outlined below.
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In 1994 twelve of the CGIAR centres entered into Agreements in 1994 with
the FAO which placed their collections into an International Network under
the auspices of the FAO. Through these agreements, the centres accepted
that their designated germplasm was held "in trust for the international
community" and that they would not "claim ownership, or seek intellectual
property rights over the designated germplasm and related information".
-
Reacting to the biopiracy controversy, which reached its climax in February
1998, CGIAR called for a moratorium on the granting of intellectual property
rights over plant germplasm held in its centres. CGIAR Chairman, Dr Ismail
Serageldin, explained the call for a moratorium as "the strongest signal
the CGIAR can send governments to ensure that these issues be resolved
and the materials in the CGIAR remain in the public domain".[53]
8 Trusteeship
and the Legal Status of the Gene Collections of Individual CGIAR Centres
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The trusteeship principle adopted by CGIAR in 1989 admits of a number of
problems. A threshold, but not insuperable problem was the fact that the
concept of the trust, although well defined in legal systems deriving their
law from the equity courts of English origin, was largely unknown in the
civil law system. This may be remedied in large part by the negotiation
in 1984 of the Hague Convention on the Law Applicable to Trusts and on
Their Recognition.[54] This Convention
provides for the recognition of trust principles such as the sanctity of
trust property, and the binding obligations of trustees. Thus, for example,
genebanks established as trusts for CGIAR purposes could not be used for
purposes inconsistent with CGIAR principles. This Convention has not yet
secured wide support. To date the only non-common law countries which have
ratified it are Italy, Luxembourg and the Netherlands. However, it has
also been signed by the United Kingdom and the USA, which should attract
greater support for the instrument.
-
A more difficult problem is the fact that a number of the CGIAR agricultural
research institutes, such as CIAT, CIMMYT, IITA,IRRI and WARDA, predate
the establishment of CGIAR. This presents a problem in ascertaining the
legal status of their gene collections established prior to their membership
of CGIAR. In 1994, each CGIAR centre placed its genebank under the superintendency
of FAO, through the administration of the Commission on Plant Genetic Resources.[55]
An additional question raised by this 1994 action is the status of dispositions
of genetic material prior to 1994. An illustration of this problem is the
transmission by ICARDA of the Syrian legumes to the Australian Centre for
Legumes in Mediterranean Agriculture, which became the subject of an Australian
Plant Breeder's Rights Application. The director General of ICARDA was
reported to have defended its actions by explaining that the legumes were
sent to Australia prior to the implementation of the 1994 Agreement.[56]
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Another problem with the CGIAR policy on plant genetic resources is that
it does not specifically define the obligations of trustees of CGIAR genebanks.
The CGIAR policy contains the general statement that genebanks should be
held in trust "for the use of present and future generations of research
workers in all countries throughout the world". CGIAR policy is silent
on the use which these workers would make of this resource. A reasonable
interpretation would be that these workers would be allowed to use CGIAR
geneplasm for purposes within CGIAR's general objects, for example, to
make the agriculture of developing countries more productive and to protect
the environment and to preserve biodiversity. As trustee, could a CGIAR
centre permit a third party to secure intellectual property rights over
geneplasm held by the centre?
-
Under the trust concept a trustee is under a duty both to keep control
of and to preserve trust property. Should a third party be permitted to
obtain intellectual property rights, for its own benefit, over geneplasm
held by a centre, a breach of trust could be argued. On the other hand,
if those intellectual property rights were held for the benefit of the
centre of for the benefit of CGIAR objectives, this may well be consistent
with the trustee's obligations to secure the preservation of geneplasm.
However, it is difficult to conceive of a situation where a third party
will assume the very considerable trouble and expense of intellectual property
protection in order to preserve plant genetic resources for CGIAR purposes.
This is conceivable where, for example, a patentee might waive its rights
in developing countries. But to accomplish this the rights owner would
have to have secured those rights in the country in which they are to be
waived, which is not likely to occur.
-
The more usual situation will be that the geneplasm will be modified by
the third party and intellectual property protection will be sought to
permit the commercial exploitation of the modification. In this situation
any payment by the third party to the CGIAR centre for the use of its geneplasm
would, in augmenting the centres revenues, support the attainment of CGIAR
objectives. The production of a modified organism could also be argued
to be supportive of the preservation of genetic diversity.
-
Where the genetic modification is sufficiently novel to satisfy the requirements
of patents or plant breeder's rights laws, the underlying geneplasm would
still be available to other researchers to devise their own modifications.
The trust obligations discussed above assume that the genetic resources
of individual CGIAR centres can be impressed with trust obligations. Where
a centre predates the establishment of the CGIAR system and it has not
been reconstituted to subject itself to the over-riding authority of the
CGIAR, the rights of the centre may well be governed by the laws of the
host country or by intergovernmental agreements.
9. Intellectual
Property Policies of CGIAR Centres in Relation to Germplasm
-
The Commission on Genetic Resources for Food and Agriculture is currently
examining the status of germplasm acquired by CGIAR centres prior to the
establishment of CGIAR and also prior to their subscription to CGIAR authority.
This status will be determined in part by the instrument establishing the
centre and any agreement between the centre and the host country. Following
a number of meetings of Centre Directors, mentioned above, some CGIAR Centres
have adopted policies which deal with intellectual property rights arising
from germplasm distributed to third parties. Probably the touchstone intellectual
property policies are those which have been developed by the International
Rice Research Institute (IRRI).
-
Pursuant to an agreement between IRRI and CGIAR dated 26 October 1994,
the Board of IRRI placed its collections of plant germplasm under the auspices
of FAO. The following year IRRI promulgated its Policy on Intellectual
Rights which purports to implement the agreement with the FAO. To implement
its intellectual property policy, IRRI adopted four protocols on intellectual
property rights. Protocol I comprises general principles concerning intellectual
property rights and plant genetic resources. This protocol provides
1. The rice genetic resources maintained in the genebank at IRRI
are held in trust for the world community.
2. IRRI adheres to the unrestricted availability to the rice genetic
resources it holds in trust (except germplasm held in "black box storage"
on which the donor of germplasm has placed distribution restrictions) including
related information.
3. IRRI will not protect the rice genetic resources it holds in
trust by any form of intellectual property protection.
4. IRRI is opposed to the application of patent legislation to plant
genetic resources (genotypes and/or genes) held in trust.
5. The rice genetic resources held in trust by IRRI will be made
available on the understanding that the recipients will take no steps which
restrict their further availability to other interested parties.[57]
-
This protocol forms part of IRRI's Policy on Intellectual Property Rights[58]
and under this policy IRRI has declared that it will supply its genetic
resources under MTAs which are subject to the principles propounded in
its Protocols. Protocol II concerns intellectual property rights in breeding
lines, elite germplasm and parental lines of hybrid rice emanating from
its conventional breeding programme. This protocol reiterates IRRI's policy
of free availability and declares that this material will be provided to
both public sector institutions and private organizations on the understanding
that:
a. The material is not intended for exclusive use by any single organization.
b. IRRI retains the right to distribute the same material to other
organization.
c. The use of IRRI materials will be publicly recognized when a
derived variety or hybrid is released.[59]
-
This protocol is stated not to apply to materials derived from genetic
engineering. This subject matter is covered in part by Protocol III concerning
intellectual property rights and inventions and materials derived from
biotechnology. Where these are derived through collaboration, Protocol
III provides that "IRRI will seek to ensure free access to the products
of research". To "ensure the availability to developing nations of advanced
biological technologies or biological materials such as microbiological
strains", this Protocol envisages that IRRI may exceptionally apply for
intellectual property protection or provide them to a collaborator on a
restricted basis "but only after a specific judgement that such arrangements
best serve IRRI's client developing nation farmers".
-
Similar intellectual property policies are being developed by the other
CGIAR Centres, thus, for example, the Centro International de Mejoramiento
de Maiz y Trigo (CIMMYT) on 31 March 1993 adopted a Policy on Intellectual
Property requiring that "plant genetic resources held in trust will be
made available to recipients who agree to take no steps that restrict the
further availability of those resources in their original form to other
interested parties".
-
In August 1993 CIMMYT issued a "Policy on Use of Bread, Wheat, Durum Wheat,
Triticale and Barley Germplasm Distributed by CIMMYT" under which genebank
material is freely available. In relation to breeding material, segregating
populations (F2-F5) are distributed without conditions. Advanced lines
(F6 and higher) are distributed on condition that no Plant Breeder's Right
will be obtained without CIMMYT's permission. Similarly, the Intellectual
Property Policy of Centro International de Agricultura Tropical (CIAT),
formulated in April 1993, provides for restrictions to be placed on the
utilization of germplasm in three situations: (a) to prevent appropriation
of CIAT research products; (b) to protect property of research collaborators;
and (c) to enable the commercialization of CIAT research products through
others. In the case of genebank material, CIAT permits the development
of new varieties to be protected under plant varieties protection laws.
This material will be distributed under MTAs on condition that it remains
in the public domain.
-
New impetus for the development of a common CGIAR intellectual property
policy has been precipitated by the biopiracy controversy. The expert drafting
group appointed following the CGIAR Mid-Term Meeting in Brasilia in May
1998 is following the model provided by IRRI and this will be integrated
with draft standard form material transfer agreements.
