Agrobiodiversity under different property regimes (2016)

This chapter discusses property rights in new varieties of crops and methods of producing these, paying particular attention to their consequences for agricultural diversity, technological progress, biodiversity conservation, pricing and market structures. Before doing this, however, background information will be provided about how and why there has been a significant switch from a common pool approach to the accessibility of germplasm in agriculture to primarily a private property approach.

In recent years, growing economic globalisation has been accompanied by rising social support for market systems as a means of managing resource-use. In turn, the free market movement considers definite and secure property rights (especially private rights and, sometimes, communal rights) in resources to be the necessary basis for a desirable market system. Global policies for managing the Earth’s genetic resources have been influenced by this approach. As outlined in this article, there has been a global expansion of property rights in genetic resources, and further extensions have been advocated. In order to assess the possible social benefits and costs of granting property rights in genetic resources, these are classified. This classification is shown to be useful in discussing economic and legal reasons for granting or denying property rights in genetic resources. Furthermore, this classification is demonstrated to be pertinent to the consideration of market failures that may accompany the granting of property rights in genetic resources and which limit the potential social economic benefits from establishing property rights in these resources. It is concluded that many of those who advocate the management of genetic resources by means of secure property rights and market systems have been overly optimistic about the economic potential of this policy, its social benefits, its impact on the conservation of biodiversity, and its workability. There is a need for more informed debate on these matters before concluding that wholesale global extension of property rights in genetic material is desirable. In addition to the above, this paper compares and assesses the approach on property rights in wildlife and nature adopted in the Convention on International Trade in Endangered Species (CITES) with that advocated in the international Convention on Biological Diversity.

The Earth's plant genetic resources are a common inheritance of all humankind, which should be held in shared trust for a common future. A key component of the global genetic commons is agricultural biodiversity. Our food and livelihood security depend on the sustained management of these diverse biological resources that are important for food and agriculture. Whilst agricultural biodiversity originates in specific farming communities, it has been shared widely and is considered by many to be part of the muchthreatened global commons. This book is about the creation, management and use of the global crop commons. It focuses primarily on the legal and administrative construct that provides the basis of the global crop commons, that is, the multilateral system of access and benefit-sharing created by the International Treaty on Plant Genetic Resources for Food and Agriculture. This is particularly significant because it transcends the traditional dichotomy between privatization and total governmental control. It came into effect in 2006 and the book describes its origins and implementation since then, showing how many international organizations and some developing countries are moving quickly with implementation, while other countries are moving slowly and some multinational corporations are expressing misgivings about the system overall.

2010

See for example Elfrieda Pschorn-Strauss and Rachel Wynberg 'The seeds of neo-colonialism: genetic engineering in food and farming' (2002) GroundWork, and Mariam Mayet 'The new green revolution in Africa: Trojan horse for GMOs?' (2007). 17 See in this regard the European Group on Ethics in Science and new Technologies to the European Commission 'Ethics of modern developments in agriculture technologies Opinion No 24' (17 December 2008) and the COGEM Report 'Socio-economic aspects of GMOs: building blocks for an EU sustainability assessment of genetically modified crops' CGM/090929-01. 18 This is referred to as the concept of dual knowledge in which a single 'discovery' may contribute to both scientific research and to a useful commercial application. Dual knowledge is often exploited in what is known as patent-paper pairs in which a publication is coupled with the patent. Empirical research shows a citation rate decline for such papers after formal IP rights have been granted, thus suggesting that IP rights may have a negative impact on the diffusion of scientific knowledge. Murray, Fiona and Stern, Scott 'Do formal intellectual property rights hinder the free flow of scientific knowledge? An empirical test of the anti-commons hypothesis' (2007) 63 Journal of Economic Behaviour & Organization 648-687. The pursuit of a dual knowledge strategy was enabled in the US by the Bayh-Dole Act of 1980 and is likely to become the practice in South Africa once the Intellectual Property Rights from Publicly Financed Research and Development Act 51 of 2008 becomes operational. Researchers in the developing world already face a host of barriers to effective research. See for example Forero-Pineda, Clemente and Jaramillo-Salazar, Hernan 'The access of researchers from developing countries to international science and technology' (2002) 54 International Social Science Journal 129-140. '[P]lant germplasm is a resource that reproduces itself, and a single 'taking' of germplasm could provide the material base upon which whole new sectors of production could be elaborated.' Jack R Kloppenburg First the seed: the political economy of plant biotechnology (1988) at 154 cited in 'Weeds, seeds & deeds' (note 25) at 262. 28 Mgbeoji questions the applicability of the common heritage concept during the colonial era, as the 'transfer of germ plasm from the colony to the mother country was more or less perceived as "an internal affair" of the colonial empires'. Ikechi Mgbeoji 'Beyond rhetoric: state sovereignty, common concern, and the inapplicability of the common heritage concept to plant genetic resources' (2003) 16 Leiden Journal of International Law 821 at 823. 29 The implications of the burgeoning regime for developing countries and for public sector research are discussed in Wright and Pardey 'Changing IP regimes: implications for developing country agriculture' (2006) 2 Int J Technology and Globalisation 93-114. broader environment (soil, water supply, etc). 37 From a social and economic perspective, there are concerns about food security and safety, cultural heritage, freedom of choice, and economic welfare. 38 These concerns are diverse and are often regulated in seemingly discreet areas of law which together spin an intricate web of rules, a complex regulatory regime, around PGRs. 39 1.2.2 A complex regulatory regime A proliferation of international organisations and instruments over the past few decades has given rise to 'an array of partially overlapping and nonhierarchical institutions governing a particular issue-area.' 40 These 'regime complexes' are in turn reflected in the provisions of domestic law.

In recent years, growing economic globalisation has been accompanied by rising social support for market systems as a means of managing resource-use. In turn, the free market movement considers definite and secure property rights (especially private rights and, sometimes, communal rights) in resources to be the necessary basis for a desirable market system. Global policies for managing the Earth’s genetic resources have been influenced by this approach. As outlined in this article, there has been a global expansion of property rights in genetic resources, and further extensions have been advocated. In order to assess the possible social benefits and costs of granting property rights in genetic resources, they are classified. This classification is shown to be useful in discussing economic and legal reasons for granting or denying property rights in genetic resources. Furthermore, it is shown to be pertinent to the consideration of market failures that may accompany the granting of property rights in genetic resources and which limit the potential social economic benefits from establishing property rights in these resources. It is concluded that many advocates of managing genetic resources by means of secure property rights and market systems have been overly optimistic about the potential of this policy, its social benefits, its impact on the conservation of biodiversity, and its workability. There is a need for more informed debate on these matters before concluding that wholesale global extension of property rights in genetic material is desirable.

Journal of Peasant Studies, 2013

To cite this article: St ephen B. Brush (2013): Agrobiodiversit y and t he law: regulat ing genet ic resources, f ood securit y and cult ural diversit y, The Journal of Peasant St udies, 40: 2, 447-449

Anuario Mexicano de Derecho Internacional, 2010

Ser gio PEÑA-NEIRA** * Artícu lo re ci bi do el 19 de mayo de 2008 y acep ta do para su pu bli ca ción el 5 de agos to de 2008. ** Pro fes sor of Law en la Uni ver si dad Artu ro Prat, Vic to ria, Chi le; Uni ver si dad de Chi le, San tia go de Chi le, y Uni ver si dad del Mar, Viña del Mar-Val pa raí so, Chi le. L. L. L., L. R. I., M. A. (Amster dam), Ph. D. (c) (Gand). Alum ni Insti tu te of Advan ced Studies, Uni ted Na tions Uni ver sity. E mail ad dres ses: ser gio pe [email protected], spe na@re na re. uchi le.cl y spe na@udel mar.cl. 1 Las well, Ha rold, Po li tics: Who gets what when and how, Cle ve land, Me ri dian Book, 1968.

World Development, 1992

Agriculture and Human Values, 1995

New Genetics and Society, 2009

Can genomics working with crop genetic resources, which can be relevant for developing countries, contribute in reducing the gap between rich and poor countries in using modern biotechnologies? In this paper we concentrate on the extent to which benefit sharing of genetic resources can be a mechanism to harness genomics for development and to reduce the “biotechnology divide” or “genomics divide”. First we analyze the existing arrangements (Convention on Biological Biodiversity, the International Treaty on Plant Genetic Resources for Food and Agriculture, FAO 2001) and we conclude that these presuppose predominantly a concept of commutative justice, which is at the basis of considerable drawbacks. Secondly we propose arrangements founded on another concept of justice, distributive justice, which forbids enhancing (existing) inequalities. Upstream benefit sharing of genetic resources is proposed as an interesting alternative, which connects with several coalitions of scientists and poor farmers in the third world. These alternatives offer good prospects to contribute to the reduction of the “genomics divide”.