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Fair and equitable benefit-sharing within the International Treaty on Plant Genetic Resources for Food and Agriculture:
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The View of the Berne Declaration
Presenation by Bernhard Herold on world food day 2003 |
1. Introduction
I was asked by the organizers of this symposium to present the NGO viewpoint on how the
benefit-sharing provisions of the International Treaty on Plant Genetic Resources for Food
and Agriculture (IT) should be practically applied for all parties concerned and what the
main ingredients for the determination of the term “fair and equitable” with respect to
benefit-sharing would be. But let me first make some introductory remarks:
First, I should point out that there is not one NGO viewpoint on this issue and that I therefore
only speak on behalf of the Berne Declaration, a medium size Swiss NGO which since 1968
promotes fairer, more equitable, sustainable and democratic relations between developing
countries in the south and the industrialized countries in the northern hemisphere. We do this
mainly through advocacy work, research and public education. The Berne Declaration has
been quite strongly involved in the whole process surrounding the implementation of the
Convention on Biological Diversity (CBD) in Switzerland, in particular with respect to access
and benefit-sharing provisions and the relationship to intellectually-based monopoly
privileges – IMPs (I prefer to use this expression, introduced before by Geoff Tansey,
because it reflects more accurately what they are about than the term “intellectual property
rights”).
Second, I can inform you that during the recent internal consultation process in Switzerland
concerning the ratification of the IT the Berne Declaration – like all other stakeholders which
participated in the process – in principle welcomed the Treaty and recommends the Swiss
Government and Parliament to ratify it. But at the same time we pointed out to some
problematic aspects of the IT in particular with respect to farmers rights and intellectuallybased
monopoly privileges – IMPs (or IPRs).1 The points we made were taken up by a
number of other NGOs and political parties but it remains to be seen if they will be taken into
consideration by the Swiss Government and its representatives in the future Governing Body
of the IT. It is no secret that we have had many disagreements with the Swiss Government
and in particular its Federal Institute of Intellectual Property on these topics.
We have been particularly disappointed by the fact that while the Swiss Delegation has often
worked constructively in many areas in the negotiations concerning the CBD (and the Bonn
Guidelines) as well as the IT, at the end of the day IMPs (IPRs) always became crucial and
the Swiss Delegation fought for provisions which boiled down to emptying the agreements of
their original goals. To give you a typical example: The day the IT was adopted at the 31st
FAO Conference (3 November 2001) the Swiss Delegation made an extremely problematic
declaration with respect to Article 12.3d, the famous article of the IT which says that
“Recipients shall not claim any intellectual property or other rights that limit the facilitated
access to the plant genetic resources for food and agriculture, or their genetic parts or
components, in the form received from the Multilateral System”. The Swiss Delegation stated
in its declaration that this Article does not aim at reducing the protection through patents at
the international level.
Does Benefit-sharing depend on the Granting of Patents ?
The main point I want to make here today – and I can’t stress it enough – is that it is
erroneous to link benefit-sharing to patents, be it in the framework of the CBD or the IT.
This is an argument which is put forward constantly by the pharmaceutical, agrochemical and
seed industry (including Syngenta). They always say that without patents there are no profits
and thus no benefits to be shared. I’ve heard this again and again. The industry actually uses
– I would even go further by saying misuses – both the CBD’s and the IT’s benefit-sharing
provisions to advocate patents on plants or parts thereof. If these agreements are used to
push further the industry’s patenting-of-life-agenda, then we are really on the wrong track
and must reflect if these agreements will not turn out to be counterproductive.
At a meeting in Hyderabad, India last June a number of civil society organisations and NGOs
from Africa, Asia, Europe and Latin America adopted a declaration which says: “We have
come to the conclusion that the concept of access and benefit-sharing must be understood in
its own right without a linkage to patents.” (for the entire declaration see Annex)
When speaking of benefit-sharing the IT actually shows clearly, that one may not limit
oneself to a monetary concept. The first point the Contracting Parties make in Article 13 of
the IT is that they “recognize that facilitated access to plant genetic resources for food and
agriculture which are included in the Multilateral System constitutes itself a major benefit of
the Multilateral System and agree that benefits accruing therefrom shall be shared fairly and
equitably in accordance with the provisions of this Article.”
They then go on in listing four specific mechanisms through which the benefits arising from
the use of PGRFA under the Multilateral System shall be shared fairly and equitably:
- exchange of information,
- access to and transfer of technology,
- capacity-building,
- and the sharing of monetary and other benefits arising from commercialisation.
So, the benefit-sharing option in form of a payment into the trust account foreseen in Article
19.3f is only one of the options, and in my opinion definitely not the most important form of
benefit-sharing in the framework of the IT.
And even this option isn’t necessarily linked to patents. In a comment Susan Bragdon from
the IPGRI, recently made in “Bridges” the publication of the ICTSD, she wrote that “Benefitsharing
in the form of a payment into an international fund at FAO will be mandatory when
genetic material from the MLS is used to produce a “product that is a PGRFA” (e.g., a line or
cultivar) that is commercialised, unless this product is made available without restriction for
2 The exact wording of the Swiss declaration is: „Notre délégation tient à préciser que, selon son
interprétation, l’article 12.3 (d) du traité n’impose pas de nouvelles obligations qui seraient contraires aux engagements internationaux que notre pays a contractés. Nous considérons que cet article ne
vise pas à réduire la protection par brevet au plan international.“
While this is legally speaking not a reservation (Article 30 prohibits Parties from making any reservations) it is clearly politically a very questionable act which raises many doubts on whether the Swiss Government is really willing to apply the IT in the right spirit. Other industrial countries unfortunately made similar declarations. The Swiss
further research and development. In effect, patenting will likely trigger the benefit-sharing
mechanism, plant breeders’ rights probably will not.”
If we look at the Article in question – Article 13.2d(ii) – it says that “a recipient who
commercialises a product that is a plant genetic resource for food and agriculture and that
incorporates material accessed from the Multilateral System, shall pay to the mechanism
referred to in Article 19.3f, an equitable share of the benefits arising from the
commercialisation of that product, except whenever such a product is available without
restriction to others for further research and breeding, in which case the recipient who
commercialises shall be encouraged to make such payment.”
Now, a patent clearly restricts the availability so it triggers the paying mechanism, as Susan
Bragdon pointed out in the paper cited above. But in many cases plant variety protection
schemes also restrict the availability to others for further research and breeding. I only need
to refer to Article 14 of the 1991 version of UPOV, which extends breeders’ rights to
“varieties which are essentially derived”. So, in many cases breeders’ rights should, in my
view, also trigger off the payment mechanism, not only patents.
And then there is the reference in Article 13.2d (ii) that in cases in which the product is
available without restriction, the recipient is “encouraged to make such a payment”. Now, this
sounds like a totally voluntary requirement, and as such one might have just as well left it out
all together.
But further down the IT goes on to say that the Governing Body “may also
assess, within a period of five years from the entry into force of this Treaty, whether the
mandatory payment requirement in the MTA shall apply also in cases where such
commercialised products are available without restriction to others for further research and
breeding.” I interpret this as a sort of Damocles sword hanging over the recipients: If they
refuse to make the (voluntary) payments, which they are “encouraged” to make in cases
where the commercialised products are available without restrictions, the Governing Body
will come under pressure to make payments also mandatory under such cases.
So, to sum up, the point I made is that patents are not necessary – or in fact desirable – for
the triggering of benefit-sharing because a) the IT foresees non-monetary forms of benefitsharing
and b) even the monetary option does not depend on patents, it can also be
triggered off by plant breeders’ rights.
3. Practical Application of the IT’s Benefit-sharing Provisions
The benefit-sharing provisions of the IT have already been presented by Alwin Kopse from
the Swiss Federal Office for Agriculture. Obviously the practical application of the IT’s
benefit-sharing provisions will depend on the exact wording in the standard material transfer
agreement (MTA), which shall be adopted by the Governing Body and contain the provisions
of Articles 12.3a, d and g, as well as the benefit-sharing provisions set forth in the before
mentioned Article 13.2d(ii) and other relevant provisions of the Treaty.
Now, Article 12.3d contains, as many of you know, one of the most controversial passages of
the Treaty. It says that “recipients shall not claim any intellectual property or other rights that
limit the facilitated access to the plant genetic resources for food and agriculture, or their
genetic parts or components, in the form received from the Multilateral System.”
How will this be interpreted in the MTA? Obviously the term “in the form received” can not
refer only to plant genetic material received as such, but also to parts of the form the material
was received in.
The material as such, be it entire PGRFA or parts therof, can in any case
not be patented, as it doesn’t fulfil the basic criteria for patentability, since it is no invention.
So this can not have been meant. The term only makes sense if it refers also to parts of the
form the material was received in, e.g. genes or gene sequences of PGRFA received from
the system. If these are not modified in a substantial way, they are obviously still “in the form
received”. Isolating and purifying them does not change them. And discovering the function
of a gene or gene sequence is, obviously, a discovery and not an invention and can therefore
not contribute to patentability.
Whether the benefit-sharing provisions of the IT are applied in a “fair and equitable” manner
will, in my view, depend among other on how the Contracting Parties will interpret this term.
Because if it is interpreted in a way, which actually allows receiving PGRFA from the
multilateral system, isolating a gene and/or discovering its function and than patenting it, then
this could not be considered as “fair and equitable” because it would constitute nothing less
than an act of “biopiracy”.
With respect to the practical application of the IT’s benefit-sharing provisions there are further
points which are difficult to interpret. I would only mention Article 13.2b(iii) where reference is
made to the transfer of technology, including that protected by IMPs to developing countries,
which shall be provided and/or facilitated under fair and most favourable terms. The last
sentence of the Article reads: “Such access and transfer shall be provided on terms which
recognize and are consistent with the adequate and effective protection of intellectual
property rights.” What do the words “adequate and effective” mean here We have made
some bad experience with the word “effective”. In the case of Article 27.3b of the TRIPSAgreement
for example many industrialised countries interpret the reference to a “effective
sui generis system” as practically calling for an adoption of the UPOV convention. From our
point of view it is absolutely central, that the interpretation of this sentence does not
undermine farmers rights. Otherwise this option of benefit-sharing can not be considered as
“fair and equitable”.
4. Main Ingredients for the Determination of the Term “Fair and Equitable”
The term “fair and equitable benefit-sharing” has been central in all discussions since the
CBD was negotiated. The term is also used in the IT and in the Bonn guidelines. There are
very many papers which refer to the term (e.g. the numerous official contributions made in
the context of the review of Article 27.3b of the TRIPS-Agreement), but I haven’t seen many
papers which actually tried to interpret the term.
In a study commissioned by the Swedish Scientific Council on Biological Diversity and
published in 19994, the three authors Marie Byström, Peter Einarsson and Gunnel Axelsson
Nycander tried to interpret the term “fair and equitable”, as it is used in the CBD. The two
words are usually used together and it can be assumed that “fair” refers more to the distribution
process, while “equitable” focuses on the outcome of the distribution process.
Interestingly, in the IT the two words are not always consequently used together. For
example in Article 13.2d(ii) the term “equitable” is used alone. But this makes sense as there
obviously the outcome is meant, since the process is practically given by the Material
Transfer Agreement (MTA). So it is important, that the process through which the MTA is
negotiated is fair.
“Fair and Equitable: Sharing the benefits from use of genetic resources and traditional knowledge” by
Marie Byström, Peter Einarsson and Gunnel Axelsson Nycander, September 1999.
It is obvious that what is “fair and equitable” will always be a question of individual ethic
judgement. The authors of the study mentioned above have drawn up a list of criteria for the
assessment of benefit-sharing in the framework of the CBD. Adapted to the situation of the IT
the criteria to assess whether the benefit-sharing mechanism envisaged (i.e. the
mechanisms listed in Article 13 of the IT) can be considered as “fair and equitable” would be
the following:
The mechanism envisaged should contribute to strengthening the situation of the less
powerful party/parties at all levels in the sharing relation. So if we look at e.g. the
commercial option in the IT we should evaluate whether this form of benefit-sharing
contributes to the strengthening of the situation of the farmers who have initially provided
PGRFA to the multilateral system.
The mechanism should contribute toward, or as a minimum not counteract, the other
objectives of the IT, i.e. “the conservation and sustainable use of plant genetic resources
for food and agriculture” (Article 1 of the IT).
?? The mechanism must respect basic human rights (e.g. the “right to adequate food”
presently discussed within the FAO).
The mechanism must respect value and legal systems across cultural borders, including
customary law. So, in the context of the IT the granting of an intellectually-based
monopoly privilege (IMP or IPR if you prefer) on a plant which in the culture where the
PGRFA originally comes from is viewed as unethical would not fulfil this criteria. With
other words: No patents for such things as Basmati or Jasmine Rice (or any other rice for
that sake), because this is considered as unethical by most of the population in the
countries of origin.
The mechanism must allow democratic and meaningful participation in policy decisions
and contract negotiation by all stakeholders, including stakeholders at the local level. This
criteria should, in my opinion, be taken into account in particular with respect to the
negotiation process for the IT’s “Material Transfer Agreement”.
The mechanism must include provisions for independent third party review.
The mechanism must make information about agreed terms publicly available.
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