I had an interesting discussion a few days ago with prof. Carl-Gustaf Thornström ( Division of legal affairs, finances and H&R and dept. for Plant Biology and Forest Genetics), executive director of the Sida sponsored programme: Genetic Resources and Intellectual Property Rights (GRIP) and member of the CGIAR Genetic Resources Policy Committee. The discussion was centralized around how intellectual asset management (IAM) in the public sphere differs from IAM in a private- or academic setting, where prof Thornström has close to 30 years of experience in the former. One of the main differences resides in the fact that asset portfolios of plant genetic material are intended to be held and managed in the public sphere as a benefit for society without any dependencies, biases or promoting any self-interests. Beneficiaries in this public domain constitute a multi-stakeholder consortium with actors from everything between private multinational corporations, non-profit organizations to individual farmers in third world countries.
Who's responsibility should it be to maintain these portfolios of gene diversity?
This question easily slips into a philosophical discussion about power positions between state versus private capital. However, my intention is not to go into a political discourse but rather explain why management of these portfolios are in the interest of more stakeholders than just the private sector. Prof Thornström uses Sweden as an illustrative example (in the Swedish University of Agricultural Sciences' blog: Forskarbloggen) for the purpose of showing the importance of maintaining plant breeding in a sustainable way. The Swedish state co-financed national plant breeding until the end of the 90's when it left this responsibility with the only Swedish plant breeding company - Weibull-Svalöf. In 2006, due to fiercer international competition the company had to discontinue its breeding of a number important annual crops, e.g. rye, malt barley and potatoes, which severely weakens Swedish agriculture for these crops. This is because of the high environmental dependence (e.g. hours of sun light, soil, weather, temperature, etc.) of each crop that makes a plant variety bred in south of Italy unsuitable for the conditions in Germany, which even applies between varieties bred in the south of Sweden and the mid-north. In the long-term, this could mean that traditionally grown crops such as rye would have to be imported from countries where plant breeding is still being carried out since domestic yields wouldn't be price competitive compared to international equivalents.
How open is this public domain?
Well, it depends on the perspective from which you are approaching this. It may be argued that assets in this domain are fully accessible and that this provides an open platform contingent upon that the accessing party accepts terms and conditions that this material may be attached to. However, contemplate the Convention of Biological Diversity (CBD), which was adopted in 1992 in Rio de Janeiro. The convention provides national sovereignty over genetic resources and access conditions for other sovereign parties. This means that there are different procedures and rules to access material in the many countries that are parties of the CBD. Can genetic material still be thought of as being openly available in a public domain? In 1996 in South America, the Andean Community founded a close to draconian legislation and access conditions for foreign scientists wishing to conduct research on genetic material in this region, which may severely inhibit valuable research. Other countries have bureaucratic procedures that takes more than 5 years from the time of application (compare this to Hernando de Soto's findings of how long some of developing countries' property systems take in the Mystery of Capital) which obviously risks leading to illegal material exchanges that could have dramatic repercussions for universities and others.
Other legislation in the genetic policy landscape to take into account include;
• TRIPS, adopted in Marrakesh in 1994, provides a minimum IP protection standard for biological matter such as plant varieties, microorganisms, and microbiological processes.
• ICGTK was set up in 2001 by WIPO to discuss IP issues relating to access to genetic resources and the protection of traditional knowledge, including disclosure requirements in patent applications.
• UPOV provides legal protection for plant varieties fulfilling the NDUS criteria (new, distinct, uniform, and stable), while including a breeder’s exemption and farmer’s privilege.
• The International Treaty on Plant Genetic Resources for Food and Agriculture, adopted in Rome in 2001, provides a multilateral system of access and benefit sharing under a revised material transfer agreement (MTA) in relation to some 35 defined crops.
• The Global Crop Diversity Trust, set up in 2002, is an attempt by the Food and Agriculture Organization (FAO) of the United Nations and the World Bank to establish a trust fund for global ex situ collections of germplasm of relevance for food and agriculture.
• The Cartagena protocol, adopted in Montreal in 2000, provides rules for the transfer of genetically modified living organisms across borders.
• In 2002, the CBD adopted the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising out of their Utilization. A voluntary supplement to the CBD, the Bonn guidelines offer basic information about the rules on access and concrete procedures (or protocols) to follow.
(The list above - emphasis has been added- is borrowed from CG. Thornström's article Access and Benefit Sharing: Understanding the Rules for Collection and Use of Biological Materials, chapter 16.2 (or p.1462) in the IP Handbook)
Conclusions
As the legislative landscape is growing denser (alongside patent thickets), I think that there will be a need within the agribio sector for open platforms where stakeholders from all spheres can come together and form clearing house mechanisms together to ensure that agricultural biotech innovations/technology and valuable germplasm are available and accessible on a broader level. Not the least for economic development and welfare! One of the key challenges, among many, will be to ensure that this can be achieved at a high enough level since the CBD evidently will require national anchoring. This will take a long time if this is to happen solely from the wills of people in an administrative and governmental arena, and I therefore think that it will be crucial that there will be some sort of push from academic institutions and private entities to speed up this process. During CIP FORUM 2009 we spoke about how research utilization and company output will be increasingly dependent upon effective open & early innovation, and this is a case-in-point where the two come together. The future of genetic access is ours to shape!
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