THE IU: TIME TO DRAW THE LINE ON IPRS

THE IU: TIME TO DRAW THE LINE ON IPRS

March 2001

In the June 2000 issue of Seedling, GRAIN published an article on the renegotiation of the International Undertaking (IU) on Plant Genetic Resources for Food and Agriculture. The IU is a 20-year old voluntary agreement, impl-emented though the UN’s Food and Agriculture Organisation (FAO), that aims to rewrite the rules of the North-South game with respect to the conservation, exchange, and benefits from the world’s crop germplasm.

For too long the South’s agricultural biodiversity has been flowing freely into the hands of the North, which then exploits it and patents it with no returns to the South. Several years ago, the IU was opened up for renegotiation in order to turn it into a legally-binding instrument and bring it in line with the Convention on Biological Diversity (CBD).

In the article "Last chance for an open access regime?" GRAIN argued that governments must take these negotiations much more seriously, because the world’s crop gene pool is fast being privatised by corporations in countries that allow for monopoly rights on life forms. Such monopoly rights include patents and plant variety protection. Since then, a Contact Group of government representatives that carry out these negotiations has met three times: in August 2000 in Teheran (Iran), in November 2000 in Neûchatel (Switzerland), and in February 2001 in Rome (Italy). The meeting in Teheran made a good deal of progress on different fronts – which fired people with enthusiasm – but the one in Neûchatel almost caused a total breakdown of the talks over the controversial issues of sharing of the benefits from crop genetic resources and whether to allow property rights over them. The most recent meeting in Rome did move the process forward – albeit in slow motion – but it did so by avoiding a lot of the contentious issues.

The next meeting of the Contact Group is now set for late April in Spoleto (Italy). Most observers now concur that unless agreement on a number of core issues is reached there, the negotiations will grind to a halt. This will mean that the chance to set up a multilateral system for that part of the world’s biodiversity that feeds us – the genes in crops and other food plants – will vanish. But if countries do come to some common understanding during that session, then the expectations are that a new Undertaking could be agreed upon before the year is over.

The central aim of the negotiations is to establish a multilateral system in which as many countries as possible agree to common rules on cons-ervation, exchange and benefit sharing in relation to crop genetic resources. The most important and controversial question on the table is whether and to what extent the international community should allow intell-ectual property rights (IPRs) on the crop genetic resources included in the system. To many observers, the answer seems obvious. If the main objective of the Undertaking is to enable the free flow of crop germplasm – which all parties agree is central for any agricultural development and crop improvement efforts – then a clear ban on IPRs should not even be questioned. The very nature of IPRs, which are exclusive commercial monopoly rights, limits access to genetic resources when they are applied to life forms.

But inevitably, pressures from various quarters make the equation more complicated. Indus-trialised countries are keen to keep patent options wide open, for the benefit of their biotech and breeding corporations. Their message to the South basically boils down to: "Please don’t limit our access to your rich biodiversity for the benefit of humanity. But we reserve the right to patent and monopolise it whenever an interesting commercial application appears in our labs."

The other hot issue is the question of how to share the benefits generated through the commercial use of the materials covered by the IU. An agreement was reached in principle last year that holders of patents on "new" crop varieties and other plant material developed as a result of facilitated access to the system’s germplasm should pay back some "equitable royalty" to the international community. This proposal actually came from the industry association ASSINSEL (International Asso-ciation of Plant Breeders). On the surface, it might seem like a fair thing to do: to ensure that part of the profits that the North makes on the South’s germplasm flow back to the South. But there is a lethal trap built into this scheme. Money will only come out of it if all countries accept the principle of IPRs on life. The more patenting, industry says, the more financial benefit. The countries that are echoing this position in the IU negotiations are actually advocating a strategy that will reduce access to biodiversity for everybody. This defeats the very objective of the IU. What is often forgotten in the FAO talks is that by allowing – promoting, in fact – the patenting of crop germplasm covered by the IU, a steadily increasing flow of valuable material will actually leave the multilateral system to become the private intellectual property of a few powerful corp-orations. This is the very gene-drain from the public to the private sectors that the IU negotiations are meant to reverse.

No IPRs has to be the bottom line. Clear boundaries must be drawn to ensure that intellectual property rights cannot be exercised on the genetic resources covered by the IU. Resolution of this issue lays the cornerstone which the remainder of the negotiations rest upon. The key is the Undertaking’s Article 13, which regulates access to the genetic materials covered by the system. Governments are contemplating three possibilities for this article:

(1) There should be no intellectual property or other restrictive rights on the plant genetic resources in the form received from the Multilateral System.

This is the language a number of industrialised countries are pushing, but is generally recog-nised as a non-starter, empty of any substance. Any material received from the system could not be protected as such by IPRs anyway – since the material would not be new – so this wording would not restrict IPRs at all.

(2) There should be no intellectual property or other restrictive rights on the materials in the form received from the Multilateral System or on their parts and components.

This adds some substance. It extends the proposed limitation on IPRs beyond the materials as such to their genes, cells, tissues, etc. However, it still retains the "in the form received" qualifier. Under this construction, if breeders develop new materials from the germplasm received, it would arbitrarily be left to each country to permit IPRs on that material or not, depending on national legislation. This leaves a lot of loopholes, especially as patent offices in some industrialised countries regard the mere act of isolating and purifying a gene as the production of "new" material. It also raises the question of how to ensure that such IPR-protected "new" material remains part of the IU and bound to the facilitated access rules.

The difference here from the previous option is that the qualifier "in the form received" is deleted. In this scenario, any of the germplasm or its parts is clearly marked "hands off!" with respect to IPRs. This is the most reasonable and clear cut construction, because it means that breeding of basic food crops can continue freely throughout the world, with no threats, block-ages, extra costs or legal headaches generated by lawyers. It would not ban all plant patenting, as the IU will only cover a limited number of crops. But it would effectively establish an IPR-free zone for the most important food crops.

Governments have to agree on some cons-truction within this span of principles ranging from "all IPR" to "no IPR" as soon as possible. It is common knowledge that IPRs restrict access to genetic resources and undermine the central role of public institutions and local farmers in crop improvement. If they are allowed to be exercised with no restriction on the multilateral pool of germplasm, then the IU has little to contribute – and probably no real reason to exist. If, on the other hand, the negotiators have the wisdom and courage to look beyond the short-term interests of a few, agree on a multilateral system that is free from monopoly rights and which promotes the conservation and improvement of crop germ-plasm by all actors, then they will create a valuable instrument for food security at all levels, now and in the future.

The importance of the successful conclusion of the IU renegotiation cannot be underestimated. Likewise, the urgency of pressuring govern-ments into the best deal for agriculture and plant breeding worldwide (all plant breeding by all actors, not only genetic engineering by a few companies) cannot be exaggerated. At stake is the world’s access to a central component of biodiversity: the part that feeds us.

For more information:

* GRAIN (2000), "Last chance for an open access regime?," Seedling, June 2000. www.grain.org/publications/jun00/jun001.htm

* RAFI (2001), "The Other BioSafety Protocol," GenoTypes, 20 February 2001. RAFI regularly follows the IU negotiations and produces briefing materials that can be found on their website at www.rafi.org

* The International Institute for Sustainable Development reports in journalistic fashion from the scene of the IU negotiating sessions. www.iisd.ca/biodiv/iu.html

* The UK Agricultural Biodiversity Coalition is also actively involved in making press and campaign materials about the IU negotiations available on its website. www.ukabc.org/iu2.htm

* Official papers from the negotiations are available from the website of the FAO Commission on Plant Genetic Resources for Food and Agriculture. www.fao.org/ag/cgrfa/IU.htm