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 Sui Generis Rights:
From opposing to complementary approaches
 By
 Niels P. Louwaars
 
 
 
Keywords:  Farmers' rights; Plant breeders' rights; Access to genetic resources.
Correct citation: Louwaars, N. P. (1998), "Sui Generis Rights: From opposing to complementary approaches." Biotechnology and Development Monitor, No. 36, p. 13-16.

This article provides an integrated analysis of most of the different options presented in this current Monitor issue concerning the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the Convention on Biological Diversity (CBD). Intellectual Property Rights (IPR), the access to and remuneration for plant genetic resources seem contradictory in their objectives and practices. In the international arena, the TRIPS Agreement and the CDB are largely perceived to be incompatible. They could be made compatible by linking IPR laws with non-IPR access and remuneration systems for plant genetic resources. These adjustments could also benefit local seed systems and in situ conservation.

The TRIPS Agreement of the World Trade Organization (WTO) has globalized the debate on the property protection of living organisms and plant varieties in particular. The objective of IPR is "to contribute to the promotion of technological innovation and to the transfer and dissemination of technology (...) and to balance the rights and obligations" (TRIPS Art.7).
TRIPS is welcomed in the South by those who expect to curb declining financial support of public sector plant breeding. At the same time, the danger of transnational corporationsí monopolistic tendencies in commercial plant breeding is recognized. Even though the TRIPS Agreement refers to development objectives, there is no reference in either the wording or the intention of TRIPS to the conservation of biodiversity.
The TRIPS Agreement, however, greatly influences ongoing discussions on Traditional Resource Rights, Community and Farmersí Rights. These discussions focus on equity and balancing the rights of commercial innovators with those of the innovators and inheritors of local knowledge and (agro-)biodiversity. The CBD defines the sovereign rights of nations over their genetic resources and the non-binding International Undertaking on Plant Genetic Resources for Agriculture (IU) defines Farmersí Rights. Both these agreements aim at regulating access to and remuneration for plant genetic resources in order to increase equity and to stimulate conservation. Moreover, the Draft United Nation (UN) Declaration on the Rights of Indigenous Peoples states that "Indigenous peoples (...) have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources (...) "
Some of the discussions have concentrated on possibilities to make these concepts as legally binding as IPR, as defined by the Paris Convention for the Protection of Industrial Property, and the amendments thereon by the Conventions of the International Union for the Protection of New Varieties of Plants (UPOV) to accommodate plant varieties. Other suggestions only deal with taxing commercial seed trade to create funds for conservation without granting property rights to farmers.

Breeding and conservation objectives
One of the main objectives for the conservation of agro-biodiversity is for its future use in plant breeding. Therefore, breeders have an interest in conservation. Commercial breedersí primary interest, however, is to have an advantage over their competitors with regard to the materials themselves and/or the knowledge about it. In situ conservation strategies in which materials are available to all, and in which the materials are not systematically analysed, are not the prior interest of breeders. Access restrictions and benefit sharing rights do not seem to increase the breedersí enthusiasm for either Farmersí Rights or Prior Informed Consent (PIC) systems. Strong access restrictions could, on the other hand, create an enormous advantage for the largest breeders: if communities want to optimize their remuneration they might make their resources available only to the highest bidder.
In the farmersí fields the conflict has other dimensions. Modern plant breeding has concentrated on creating genetic uniformity in line with the needs of modern farming methods to minimize or level off natural diversity. Such methods include mechanical cultivation, irrigation, fertilizer application and chemical pest control. Hence, stimulating conventional breeding almost automatically leads to reduced genetic diversity at field level. Commercial breeders necessarily have to work on varieties that have a sufficiently large market to recover their investments in Research and Development (R&D). The result is that one variety or hybrid may be found in many countries. Breeders claim however that they add to the genetic diversity at the crop level by recombining traits and using wild relatives in their programmes.
Alternative breeding strategies concentrate on specific adaptation and on improving local varieties instead of replacing them by modern ones. When executed as participatory plant breeding programmes, they may also empower the cooperators to develop improved materials themselves. Such strategies are likely to suffer from the introduction of IPR that limit the access of farmer-breeders to valuable materials. Furthermore, reduced public investment in plant breeding is likely to force public breeders to concentrate on the commercial farmers who need uniform varieties, at the cost of breeding for diversity.

Conservation and current IPR
Monopolization is an aspect of any property right. Restrictions to the rights, such as compulsory licences, are included in IPR systems, to balance the interests of the innovator and society. The specific nature of agriculture and living organisms has resulted in Plant Variety Protection (PVP) systems, harmonized by UPOV. These PVP systems have introduced the unrestricted availability of protected varieties for further breeding (breedersí exemption) as an additional mechanism to avoid monopolization of breeding materials. Also the right of farmers to multiply a protected variety for private and non-commercial use (farmersí privilege) may be regarded in this respect. These exemptions relate to the use of protected varieties only. They build on non-codified law in agricultural communities worldwide that genetic materials can be freely used by farmers. Saving seeds on-farm and free exchange of materials among farmers, together with the knowledge of these materials form the basis of in situ management of agro-biodiversity.
Recent developments in IPR law have created limitations of these fundamental exemptions. The UPOV Convention of 1991 restricts the farmersí privilege to farm saving and outlaws the "over-the-fence" exchange. The patent system that is dominating the field of genetics does not recognize farmersí privileges or breedersí exemptions. In this way, strict implementation of IPR does threaten farmersí age-old practices which have been responsible for crop domestication and the creation of the genetic diversity which forms the basis of modern plant breeding.
However, these developments show that it is possible to allow for continuation of farmersí practices in the presence of sui generis IPR. Such a sui generis system may not stimulate conservation, but at least will not oppose it.

IPR to promote conservation?
In the discussions on national sovereignty and Farmersí Rights one point of view is to promote the use of IPR systems. Farmersí varieties could fall under a sui generis system based on copyright or a deposit mechanism that would grant rights to the farmer or community (see the atricle by Wood). This could be a strong mechanism to secure remuneration and could put farmers and modern breeders on a more equal footing.
This proposal attempts to introduce a system that, even though conceptually right for a western mind, might not work for the following reasons:
Firstly, an IPR is only valuable when it can be defended. Copyright does not stop plagiarism. It works only when someone realizes that something has been copied illegally and is able to go to court. Granting rights to farmer-breeders is the easy part. However, having the right is useless when there is no mechanism to detect if other farmers in different regions or countries are illegally multiplying the variety, and as long as the farmer-breeder has no lawyers for court cases.
Secondly, in order to support diversity, rights have to be granted on heterogeneous varieties. This is technically possible when the levels of diversity can be described. As a result, only a limited number of varieties can be registered because different local varieties in a particular area will overlap. Furthermore, a valuable feature of landraces is that they are unstable. This allows them to respond to changing conditions. If a deposit system is used for protection it is clear that no claims can ever be honoured because at the time of a court case the materials "stolen" are very likely to be different from those deposited. A real danger of introducing heterogeneous varieties in the IPR system is that also large breeding companies can register strategically combined mixtures and claim that any selection from those mixtures is essentially derived. This opens the way for strategic monopolization of genepools.
Thirdly, this concept is based on the fact that IPR is a private right, which may cause problems when a community is the holder of the right. This problem is likely to be resolved in the discussions on Traditional Resource Rights legislation, in which communities and not individuals may be defined as the right holders. However, this will happen after the TRIPS implementation.

Minimizing negative impacts of TRIPS
While the TRIPS Agreement Art. 27.3.(b) offers member countries the possibility to exclude "plants and animals other than micro-organisms" from patentability they have to "provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof." The sui generis option makes nations aware of the need to define clear policies with regard to stimulating commercial plant breeding and access to foreign varieties and (bio-)technologies. Countries have the option to exclude plant varieties from patentability. They may even exclude parts of plants such as genes, or reduce the scope of patent protection in such a way that plant varieties cannot be protected through a biotechnological patent. Countries may in addition decide to offer a very weak protection to plant varieties. Leskien and Flitner (1997) have suggested a PVP seal, which allows the holder of the right to use a unique seal on seed packages of a protected variety. Once the seed has been purchased, all other actions with the seed are free. Such an approach towards TRIPS 27.3.(b) is however not likely to promote investments in plant breeding and access to technology. However, it leaves operators within the country to "freely pirate" any material or technology. This strategy has proven to be useful for many years in some European countries with regard to the production of patented pharmaceutical products. It is in line with TRIPS, which in its preamble recognizes "the needs of the least-developed-country Members in respect of maximum flexibility in the domestic implementation of laws" .
Nations that want to design systems in support of commercial plant breeding may create their own sui generis system or make use of the UPOV system as a basis. The latter option has some significant advantages:

For many developing countries full membership of UPOV may not be necessary, especially since the National Treatment clause of TRIPS obliges member states to grant nationals of other member states the same privileges as to their own nationals. This replaces the reciprocity in UPOV according to which breeders can obtain rights in fellow UPOV member countries.
A very important result of the above analysis is that where countries have different objectives for different crops, they may apply different levels of protection. It can be envisioned that a country, on the one hand, may want to apply full protection for export products such as flowers. At the same time, it could provide for a wide range of farmersí privilege for self-pollinating food crops for which farmersí seed production is the main method of conservation and technology dissemination.
To reduce the negative effects on conservation, countries may concentrate on the farmersí privilege, the breedersí exemption, and the standards for registration (distinctness, uniformity, stability, novelty). It must be noted, however, that the uniformity standards of UPOV are far less strict than most seed certification standards in most countries. The argument that PVP yields in excessively uniform varieties is in many cases not valid. This observation leads to the need to review standard national laws that regulate variety release and seed certification.

Linking a sui generis system with CBD and IU
Current IPR systems concentrate on promoting the interests of inventors. The current patent and PVP systems have no relations to, and may even seem incompatible with Farmersí Rights and PIC systems. It is not yet clear how CBD and IU requirements will be implemented. It is therefore the task of the legislator, who is bound to the time frame of TRIPS, to design an IPR in which future developments in this field can be accommodated.
Next to the different objectives of TRIPS and CBD, this is another reason to arrange IPR and the remuneration for genetic resources in different but well linked laws. The main issues in a CBD compatible sui generis IPR are to avoid misappropriation of farmersí varieties and to cater for future benefit sharing mechanisms. A recent example of misappropriation was the claim for PVP in Australia on genebank materials of the International Crops Research Institute for Semi-Arid Tropics (ICRISAT).
In the future this could be avoided by better definitions and less biased interpretation of existing IPR laws. The main tool to avoid undue appropriation is the strengthening of the rule that an IPR can only be granted exclusively to the originator(s) of the novel invention(s).

Such rules can be introduced in an eligibility clause of a UPOV compatible system, or described in more detail in a separate sui generis arrangement that is in line with TRIPS. For flexibility it may be worded in such a way that obligations will be specified by a ministerial regulation to the law.
These measures should be accompanied by control mechanisms, such as the possibility of a registrar to check the research administration of the applicant, in cases of doubt. Penalties should be applied to breeders who misinform the registrar, even if evidence is given several years after the application. Molecular techniques are currently not precise enough to provide actual evidence of the use of a particular parent in a complex crossing scheme. However, future improvements of these techniques should discourage present fraudulent statements.
Breeders have been very wary of such additional obligations of presenting methods and materials used in breeding. It would force them to present their methods to the competitors. There are basically two ways to deal with this:
Firstly, the methods and materials of new varieties are presented in detail only to the registrar. The registrar then will make the information public in a general way.
Secondly, it may be assumed that presentation of materials and methods at the time of registration may not be very interesting for competitors, because the competitors would need several years to copy the varieties.
Furthermore, to avoid undue appropriation, all genebank accessions could be declared as "materials of common knowledge", which makes them unprotectable in current PVP systems. An additional procedure based on the essential derivation concept of UPOV may be introduced, to reduce the protection of simple selections from such accessions. However, this would necessitate the genebank descriptors to be readily accessible to PVP registrars, and possibly even fully harmonized with PVP description formats.

Combining different approaches
The options for adhering both to TRIPS and CBD as described in the various contributions in this Monitor issue include:

For all these options a balance has to be found between cost and benefit, and between access and monopoly. This balance relates both to IPR for modern varieties under TRIPS, and Farmersí Rights and national sovereignty under CBD and IU.
Complicated and expensive systems of granting PBR or patents necessarily lead to a bias towards financially strong parties. If communities have to describe their property themselves, they will definitely lose. If access requirements under CBD become too complicated, the farmer-breeders and the small commercial breeders will suffer more than the powerful breeders. The more a Farmersí Rights system resembles a full IPR, the more Farmersí Rights will bear the problems associated with IPR.
The same applies to monopoly. Where PVP in the style of UPOV includes various rules to curb monopolistic tendencies, such as the breedersí exemption and the farmersí privilege, there is a risk that CBD introduces such tendencies through national sovereignty and PIC. In the end every monopoly will end up to be favourable for the strongest party. Some communities may win but many will lose because they are the main users of germplasm.
The contributions to this edition of the Biotechnology and Development Monitor present various options as to how to arrange these different issues in formal legislation. Very different objectives are to be combined, such as promotion of commercial R&D, conservation of (agro-)biodiversity, and equity in natural resource distribution. This necessarily leads to complicated and rigid procedures. However, problems may arise when too many issues are to be regulated in one system.
In addition, there is a strong time-pressure for the TRIPS requirements to be implemented, whereas the CBD has not resulted in a widely accepted set of requirements and a procedure for its implementation. While working on these access and remuneration procedures, it is very important to leave room in sui generis IPR systems for any outcome of this debate, and to avoid any kind of misappropriation in the mean time.
Access and remuneration in relation to plant genetic resources is not only a matter of balancing IPR on plant materials, which puts TRIPS and CBD in an opposing position. The CBD provides for arguments to look at access and remuneration as a right over a natural resource that is independent from IPR over new inventions. This offers a chance to look at technical solutions in a complementary, instead of an opposing way.
Niels P. Louwaars

Centre for Plant Breeding and Reproduction Research (CPRO-DLO), P.O. Box 16, 6700 AA Wageningen, the Netherlands. Fax (+31) 317 418 094; E-mail n.p.louwaars@cpro.dlo.nl

Sources
D. Leskien and M. Flitner (1997), "Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System." Issues in Genetic Resources, No. 6. Rome, Italy: IPGRI.

R. Tripp (1997), New seeds and old laws. Regulatory reform and the diversification of national seed systems. London, UK: Intermediate Technology Publications.



Contributions to the Biotechnology and Development Monitor are not covered by any copyright. Exerpts may be translated or reproduced without prior permission (with exception of parts reproduced from third sources), with acknowledgement of source.

 


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