SUMMARY NOTE

Intellectual Property Rights

Introduction

The global movement of forest tree germplasm is vital to the development and maintenance of a healthy and productive forestry sector in many countries, especially those dependent on exotic tree species. This has long been recognized by forest administrators and researchers. Indeed, the progress of tree improvement programmes is closely related to the available level of genetic diversity for such programmes.

For most of the 20th century, the international movement of tree seed was subject to minimal legal impediments and regulations, other than those related to quarantine. Today, however, there are increasing public and political pressures to regulate the movement of all kinds of germplasm. These may stem from the need to protect national assets and promote conservation, or from concerns about profiteering by unscrupulous bio-prospecting.

Tree seed has been supplied free of charge through donor-supported programmes at ICRAF, however, legal issues have arisen from increasing recognition of the importance of plant genetic resources for agriculture and forestry. One of them being Intellectual Property rights. It is in this regard that ICRAF formulated IPR to deal with germplasm exchange between regions made applicable to date.

IPR History

Intellectual property rights were of limited relevance to plantbreeding activities. IPRs were not appliedto plants and animals, private-sector firms had little incentiveto engage in plant breeding activities (except in crops wherehybridization requires new seed production for each crop). Public-sectorplant breeding programs in both national agricultural researchsystems (NARs) and international agricultural research centers(IARCs) were (and remain) the chief producers of improved cropvarieties.

In the 1960s and 1970s, PBRs were implementedin many developed economies and this encouraged an expansionof private-sector plant breeding programs. In the 1990s, stronger patent rights(and other IPRs) have been incorporated into world trade agreements,requiring many developing countries to address IPR issues forthe first time.

IPR’s legislation.

It covers

  • Patents (in the form specified by the Paris Convention);
  • Protection of plant varieties under either patent or sui generis systems such as the International Convention for the Protection of New Varieties of Plants.

The oldest typeis the specialized "plant patent." Plant Patent Act provided patent-like protection to asexuallyreproduced plants. This right gives the holder the "right toexclude" (without permission) others from reproducing the protectedmaterial. These rights have been important primarily for ornamentalplants.

Of wider usage are PBRs. The Plant Variety Protection Act. Plant breeders'rights have been strengthened in recent years in many countries.An international convention, the Union Pour la Protection desObtentions Vegetales (UPOV) covers these rights and facilitatesrecognition of PBRs in other member countries. These rightsallow the holder to exclude (without permission) others fromreproducing and selling the protected "variety" (standards ofuniformity and distinctiveness must be met). These rights donot allow the holder to exclude others from using protectedmaterial for research (the research exemption). They also allowfarmers purchasing a protected variety to save seed for theirown use (farmers' exemption). Recent changes have tightenedup both the farmers' exemption and the research exemption.

About CBD

The CBD entered into force on 29 December 1993, 90 days after being ratified by 30 countries. The objectives of the Convention are the conservation of biodiversity, the sustainable use of genetic resources, and the fair and equitable sharing of benefits derived from this use. They also include appropriate access to genetic resources and transfer of relevant technologies, taking into account all rights over these resources and technologies, and appropriate funding

Changes in IPRs

Changing concepts and increasing global sensitivities over IPRs of crop/tree germplasm have introduced new factors that have had a range of different influences on the evolution ofour IPR policy on germplasm. These include; 

  • The 1993 Convention on Biological Diversity (CBD), which changed the status of

Plant genetic resources from being a global heritage of mankind to being subject

to national sovereignty open to IPRs, invalidated fundamental tenets of the

CGIAR that the unrestricted free exchange and exploitation of plant genetic

resources (PGR) were acceptable activities to facilitate poverty alleviation.

  • The progressive introduction of national and/or regional legislation on plant

variety protection (PVP) to provide for the legal designation of IP ownership and

IPR protection for new and/or traditional varieties in the country or region

concerned.

  • The need to form partnerships with the private sector and the consequent need to

formalize and possibly even claim ownership of IP and protect IPRs.

  • The need for at least defensive IPR protection to prevent misappropriation of

germplasm by others.

  • The need for transparency and accountability to demonstrate that we are not

misappropriating germplasm.

  • The International Undertaking on Plant Genetic Resources (IUPGR; 1983 and

revised in 1989, 1991, and 1993; which began

with early guidelines for the fair collection of germplasm and later introduced the

concept of “In Trust” germplasm collections with obligatory defensive material

transfer agreements (MTAs), in an attempt to retain the status of PGR in CGIAR

genebanks as GPG, despite the CBD.

  • The 2004 International Treaty on Plant Genetic Resources for Food and

Agriculture (ITPGRFA; which comes into

force on 29 June 2004. This is an intergovernmental agreement on the exchange

of germplasm in harmony with the CBD, which will introduce additional changes?

that will require corresponding adjustments in our IPR policy.

The key issue for ICRAF has been to respond to these changes without compromising our

primary mission to enhance the livelihoods of the poor through sustainable improvement

in Agroforestry farming. To this end, we still seek to produce and disseminate germplasm and knowledge with the fewest constraints possible, but only with due respect for the rights other individuals, organizations, and nations recognized by the new international

agreements.

ICRAF and IPR’s

We are paying the highest attention to the evolution of the IPR landscape

Internationally, and are scrutinizing every item adopted into our research programs for

ownership and IPR issues. We are striving to make sure that our internal IP management

functioning efficiently and effectively and that our standards for handling IPRs are

impeccable. Internal audits on technology in use are becoming routine. (e.g. use of SMTA’s is now being fully applied to all germplasm exchanged through ICRAF centers)

We have placed high emphasis on application of IPR-related issues, to the regional centres and the NAR’s partners.({Please see ICRAF IPR policy guideline series 10). Some further points regarding the MTA include:

  • The MTA is consistent with the spirit and content of the CBD. Most of the countries with which ICRAF regularly exchanges seed are signatories to the CBD and accept its guiding principles.
  • The MTA is consistent with other similar instruments currently in use by the other CGIAR centres.
  • The MTA is based on the extensive experience of ICRAF in sharing forest genetic resources, and reflects the existing practice of seed recipients providing information on species' performance.
  • The mutually agreed terms are reasonable and within the scope of existing practice.
  • There is no provision for financial benefit sharing.
  • There is no reference to actual ownership other than broadly to the national interest.

Summary

IPR concepts, particularly for tree germplasm, have changed dramatically during

the past decade, but ICRAF together with National stakeholders has worked hard to adjust its IPR policies on germplasm to the evolution of developments tied to the 1993 Convention on Biological Diversity, the International Undertaking on Plant Genetic Resources, and, most recently, the 2004 International Treaty on Plant Genetic Resources for Food and Agriculture.

Reference

  • Gollin, D. 1998. Valuing farmers' rights. In R.E. Evenson et al. (ed.) Agricultural values of plant genetic resources. CAB Publ., Wallingford, UK.
  • Gollin D., Evenson R.E. Genetic resources, international organizations, and rice varietal improvement. Econ. Develop. Cultural Change 1997;45(3):471-500.
  • Huffman W., Evenson R.E. Science for agriculture. Ames, IA: Iowa State Univ. Press, 1993.
  • Boland, D. J. & Thomson, L. A. J. (1999) SPRIG: A RegionalForest Genetic Resource R&D Aid Project in the South Pacific. Paper presented at an ACIAR-NARI workshop held in Lae, Papua New Guinea, 30-31 March 1999.
  • Bragdon, S. H. (2000) Moving forward with the International Undertaking: legal mechanisms to alleviate mistrust. Issues in Plant Genetic Resources No. 9, International Plant Genetic Resources Institute, Rome