Part III. Responses, Observations and Prospects8. Responding to Change: International Development Research Centre

Chapter 8 draws together some of the responses from civil society to the changing rules and concerns arising from them, particularly how the IP rules are shaping the direction of research and development. Chapter 9 reflects on the earlier chapters and makes some observations based on those reflections. Finally, Chapter 10 discusses the nature of global negotiations and various alternative futures and the roles the rules will play in influencing them.

Introduction

The growing mix of global rules affecting food and agriculture has made life more complicated for governments, researchers, industry and civil society groups. The various international agreements, treaties, conventions and protocols discussed in Part II of this book are not the end point – they are part of a process of framing and reframing rules to address changing concerns, and inevitably they suit certain interests. Once the agreements are reached and treaties signed, negotiations do not stop. Further pressures arise in interpreting and implementing what was agreed or to amend rules if they do not produce desired outcomes.

The increasing complexity of rule-making and the growing web of agreements requiring follow-up is a problem in itself for civil society and governments. For many poorer countries and groups – from farmers' and peasants' organizations, to small and medium-sized enterprises, to officials and negotiators – the capacity to deal with the global negotiations and rules, or influence them so that they reflect their interests, is very limited. For many, the application of new global rules to their area of activity came as a surprise; this was particularly the case with those on IP – even some governments signing up to the World Trade Organization (WTO) in 1994 were unaware of the far-reaching implications of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) regime.

For those who wanted stronger global IP rules through the TRIPS Agreement, there have been unintended consequences. One of these has been raising the profile of what were esoteric, complex legal issues in the public consciousness and on the front pages of newspapers – initially most notably in developing countries over the question of the impact of the IP regime on access to medicines. As mentioned in Chapter 3, TRIPS itself is partly an unintended consequence of an earlier struggle by developing countries to seek a new international economic order, in which developing countries failed to have various IP rules adjusted to fit more closely with their needs. A few global industries subsequently succeeded in creating global rules that suited them. Part II of the book showed that the consequences of that failure fed into negotiations on other issues.

The Convention on Biological Diversity (CBD), in the way it is structured, is, perhaps, also a consequence of the anger felt in developing countries that biological and genetic resources originating and taken from them were used in creating products netting billions of dollars, no share of which accrued to them. The Convention has produced a complex regime, still far from being implemented, with much uncertainty about how far it is able to achieve its goals and with continuing pressures for stronger provisions on access and benefit sharing (ABS), labelling of living modified organisms (LMOs), and liability and redress. The tension and anger over broader economic injustices and the conflicts between those able to use the privileges granted through patents and other forms of IP and those who have developed and sustained agricultural biodiversity also spilled over into the negotiations of the International Treaty on Plant Genetic Resources for Food and Agriculture (the Treaty) at the UN Food and Agriculture Organization (FAO), with battles over access, farmers' rights and IP running through the negotiations. All this has resulted in a very unbalanced set of international institutions, with only the WTO having a strong dispute settlement mechanism backed by cross-sectoral sanctions.

Those who promoted the IP rules are still seeking to expand and strengthen them further and increasingly to criminalize infringement of these private rights. Criminalization shifts the costs of enforcement from those private parties who benefit from the privileges to states and therefore taxpayers. Currently, this expansive approach is holding sway through many bilateral free trade and investment agreements (see Chapter 7). But as awareness has grown, so too have the reactions and responses. This chapter focuses on civil society responses and then looks at how the new rules impact on R&D for food and farming. Responses vary according to which group is involved. Some are trying to accommodate to the new rules in the least damaging way, others to inform those affected and to empower them to challenge or resist, remake or rebalance them. A few seek to rethink the rules entirely.

The capacity of different groups to engage with and respond to the changes in the international regulatory regime is very varied. So too is the ability of different groups to deal, in particular, with IP matters, where having deep pockets to pay for expensive lawyers and lobbyists is a major advantage. Competing in the patent game, for example, requires considerable resources – both to take out and maintain patents – and legal expertise to defend them. Unless patent holders are able to defend them, at least in the major markets, they are useless. According to Blakeney (2001, Note 60), 'a single patent application, carried to completion in key markets, costs an estimated US$200,000. Defending a patent application costs at least this amount again'. Most small players look for larger companies to license their inventions or buy them out and acquire the rights to use the patent portfolios they hold.

In the area of food, many of the responses so far have focused on the effects on farming and biodiversity rather than the processing and distribution side of the food system, although other forms of IP play a major role there too (Box 8.1).

Box 8.1 Trademark '™' power

While most attention has focused on the patent and plant variety protection regimes, other forms of IP are important in the food system. One form, which is relatively poorly studied, is trademarks. These are of vital importance for firms dealing with consumers and also for marketing products to farmers as they underpin brand-based marketing strategies.

As Bill Kingston has pointed out in raising concerns about tobacco advertising, given its health impact there are no grounds for refusing trademark applications, such as the product being trademarked being injurious to health, and a very lax approach to what is being allowed to be trademarked is developing (Kingston, 2006).

An example of their power and this laxity arose in the UK in May 2007. As various British media reported, a small, family-run pub (a bar serving food) in Northern England was told by Kentucky Fried Chicken (KFC) to remove the words 'family feast' from its menu. The American fast food company's lawyers said that the pub landlords were using a term the company had registered as a trademark and so were infringing it.

The pub serves their 'family feast' at Christmas and uses the term to describe their Christmas menu, which includes Guinness and Stilton pâté, roast turkey and Christmas pudding. KFC uses the term to describe a cardboard bucket of fried chicken and chips, coleslaw, potato and gravy, with a 1.25-litre bottle of a fizzy drink.

A company spokesman reportedly said:

'Family Feast' is a registered trademark of Kentucky Fried Chicken (Great Britain) Limited. KFC devotes significant resources to promoting and protecting its trademarks. This particular instance is being dealt with by our solicitors.

The pub's managers at first thought it was a joke and then received offers of help to fight the case once it got a lot of national publicity in the UK. Subsequently, the company decided it would not take the case any further.

While there was much comment on the case, very few questioned what is and is not allowed to be trademarked. Stricter trademarking criteria would prevent trivial or obvious wording being given a trademark in the first place and avoid this kind of problem. Additionally, for Kingston, a key issue is to change trademark registration rules to curb the worst excesses by not giving the privilege of registration where this is for harmful products. Denying registration would not prevent anybody from making and selling cigarettes or drink or junk foods, or from advertising them, but the power of this advertising and other marketing ploys to shape culture would be much reduced. Compulsory arbitration, which he also advocates, would also eliminate intimidation of small businesses by larger ones.

Sources: http://news.bbc.co.uk/1/hi/england/north_yorkshire/6641819.stm; http://business.timesonline.co.uk/tol/business/law/article1769516.ece; www.thepublican.com/story.asp?storyCode=55352 – all accessed 17 May 2007.

Civil Society Critiques

The changing international regimes have brought about several levels of response. Some, by international non-governmental organizations (NGOs) and activist groups have focused on a critique of the changes, highlighting their implications, producing information materials and working to support developing country negotiators dealing with the international regimes. Some grew up from or focused more on grass roots level work with farmers', peasants' and consumers' organizations, while others have focused on monitoring effects in the field and working with national governments to strengthen their capacity to deal with IP, biodiversity and food, and related issues.

Many criticisms directed at the IP system basically revolve around the limitations it places on access to knowledge and knowledge products, thereby tipping the balance increasingly in favour of private (commercial) interests to the detriment of public policy objectives. Civil society movements have sprung up around this theme, targeting diverse sectors such as software, medicines, seeds, research, music and the media. What unites these movements are concerns that the IP system curtails the freedom to:

Civil society groups have argued that the implications of the IP system on public policy objectives related to food security, livelihoods and biodiversity conservation include:

These concerns are clearly interlinked, and many civil society groups often focus on several aspects of the issue with differing degrees of emphasis depending on their institutional goals, focus and constituencies. Underlying many of the concerns are fundamental differences in opinion over who owns or should own genetic resources and associated TK – individuals, communities, nation states or humankind – and how knowledge and innovation have been or should be generated – collectively or through rewarding individual efforts. While the different systems of ownership and knowledge generation might feasibly be able to exist in parallel, the expanding scope and reach of the IP system is seen increasingly to reduce that possibility.

The debates are further coloured by concerns over the changes in social and cultural dynamics and structures that a strong IP system is feared to bring. The concerns are particularly acute for food security and agricultural production and the livelihoods that depend on it. Small-scale, informal agricultural production systems in developing countries – developed by farmers and public research institutions and made possible through the sharing of knowledge and seeds – are seen to clash with formal systems in developed countries dominated by large-scale agricultural production and significant commercial interests that rely on IPRs to protect their market position. Thus it is ultimately the vision of the world that we see ourselves living in that is driving many of these concerns and related debates (see Chapter 10).

Corporate control

The corporate sector has seen a remarkable consolidation over the past few years. Just ten multinational companies – dubbed 'genes giants' by the Action Group on Erosion, Technology and Concentration (ETC Group) – are estimated to account for half of the world's commercial seed sales (ETC Group, 2005). This trend is particularly apparent in the agricultural biotechnology sector, where six companies – Aventis, Dow, Du Pont, Mitsui, Monsanto and Syngenta – control 98 per cent of the global market for patented biotech crops (ActionAid, 2003).

Patents and plant variety protection are widely seen as one of the key driving forces behind this trend. Compared to many other goods, seeds do not easily lend themselves to commodification as they are easily reproduced and may not require repeat purchase (FEC, 2002). IPRs have provided the legal mechanism to control the use of seeds in an effort to protect ever-growing investments. In the US, for instance, over half of the private-sector-held agricultural biotech patents granted between 1982 and 2001 are owned by five companies, namely Monsanto, Dupont, Syngenta, Bayer and Dow (Graff et al, 2003).

With control over the seeds – as the first link in the food chain – comes growing control over the world's agricultural production, which is seen as increasingly subjected to the commercial interests and market manoeuvres of the corporate sector (ETC Group, 2005). Much of the focus has been on the need to protect farmers' rights to save, use, exchange and sell farm-saved seed – as reflected in the International Treaty on Plant Genetic Resources for Food and Agriculture (Chapter 6). In many developing countries, where small-scale farmers continue to provide for the bulk of agricultural food production and livelihoods, such farmers' rights are seen as a prerequisite for survival. Restrictions on seed use from a mixture of plant variety protection, patents and seed laws threaten to force farmers into dependency on purchased seeds while driving up the price of seeds. In addition to IP, contracts with farmers are also used that effectively mean that the seller is licensing a technology embodied in the seed so that farmers cannot do whatever they want with it, since they do not actually own the seed when they buy it (see Chapter 1, Box 1.6).

Related to these concerns are potential impacts on agricultural biodiversity and consequently the long-term sustainability of food production (FEC, 2002). The expansion of patents and plant variety protection, with their various requirements for uniformity and industrial applicability (or 'utility' in the US), is feared to encourage agricultural systems that are further dominated by large-scale monoculture cropping, often primarily for export and are genetically vulnerable to pest, pathogen or environmental changes. The genetic erosion resulting from the replacement of local plant varieties by uniform modern varieties could lead to the loss of varieties that are adapted to local conditions along with valuable genes for further breeding. Such varieties are being replaced by a narrow selection of uniform varieties, thereby increasing crops' susceptibility to single pathogens and thus requiring the use of pesticides and other inputs. As the FAO has reported:

This is one reason why many civil society organizations want to see more emphasis on in-situ conservation through sustainable use of these local farmers' varieties. Similar concerns are being raised by those focusing on animals. In commercial poultry, for example, 'Between 1989 and 2006, the number of companies supplying poultry genetics at a global scale has reduced from 10 to 2 in layers and from 11 to 4 in broilers' (Gura, 2007).

Proposals for specific amendments to the IP system are also driven by civil society movements that draw on fundamental human rights and the Millennium Development Goals to back their case (see Chapter 7). Moreover, a campaign for greater 'food sovereignty' has emerged out of broader concerns over the globalization of the world's food system (GRAIN, 2005a). Launched by the peasants' movement Via Campesina at the 1996 World Food Summit, the concept of food sovereignty has emphasized, among other things, prioritizing local agricultural production, safeguarding the right of farmers to produce foods and ensuring populations' right to make agricultural policy choices (Box 8.2). It has also become a focus for resistance to the expansion of IP in agriculture.

The TRIPS Agreement and the International Union for the Protection of New Varieties of Plants (UPOV) have come in for particular criticism. The TRIPS Agreement's requirement for WTO Members to provide minimum standards of IP protection, including the patenting of life in the form of micro-organisms and some form of IP protection for plant varieties – either through patents or sui generis systems – is seen to limit countries' flexibility to decide for themselves what level of protection they deem necessary for their particular agricultural context. It also does not explicitly provide for a farmers' exemption, leaving it open to what extent such an exemption could be legally integrated in a sui generis system.

Similarly, the UPOV Convention is thought to provide excessive rights for plant breeders without any benefit sharing requirements. Its plant variety protection (PVP) criteria, in particular the requirement for uniformity, have been criticized for being adapted to the needs of commercial, professional plant breeders rather than farmers who rely on diversity to cope with agricultural and climatic complexities. In particular, the 1991 revision – which any country acceding after 1999 is required to sign up to – has been attacked for further undermining farmers' rights (GRAIN, 1998), since it only provides an option to allow farmers to reuse seeds on their own holdings.

While the CBD and the International Treaty aim to address some of these concerns at the multilateral level, many feel that these efforts have not been able to keep pace with the continuously expanding IP system. Countries have been slow to implement the Convention's provisions, which provide for fair and equitable benefit sharing based on mutually agreed terms, and the US – the world's key player in the biotech field – has yet to ratify it.

While many welcome the International Treaty's valiant attempt to redress the balance by incorporating farmers' rights and provide for the sharing of benefits derived from plant genetics resources for food and agriculture accessible under the Treaty primarily to farmers, some are concerned about its practical implications (GRAIN, 2005b). The implementation of farmers' rights, for instance, is left to the discretion of national governments rather than enshrining them as universally applicable rights. Moreover, benefit sharing is only mandatory in cases where the commercialization of the product restricts its availability for use in further research and breeding (for example through patenting).

Box 8.2 Six pillars of food sovereignty

In February 2007, a gathering of over 500 representatives, from more than 80 countries, of peasants/family farmers, artisanal fisherfolk, indigenous peoples, landless peoples, rural workers, migrants, pastoralists, forest communities, women, youth, consumers, and environmental and urban movements met in the village of Nyéléni in Sélingué, Mali, to strengthen a global movement for food sovereignty. They identified six key pillars of food sovereignty, namely that it:

1 Focuses on food for people: Food sovereignty puts the right to sufficient, healthy and culturally appropriate food for all individuals, peoples and communities, including those who are hungry, under occupation, in conflict zones and marginalized, at the centre of food, agriculture, livestock and fisheries policies; it rejects the proposition that food is just another commodity or component for international agribusiness.

2 Values food providers: Food sovereignty values and supports the contributions, and respects the rights, of women and men, peasants and small-scale family farmers, pastoralists, artisanal fisherfolk, forest dwellers, indigenous peoples, and agricultural and fisheries workers, including migrants, who cultivate, grow, harvest and process food; it rejects those policies, actions and programmes that undervalue them, threaten their livelihoods and eliminate them.

3 Localizes food systems: Food sovereignty brings food providers and consumers closer together; puts providers and consumers at the centre of decision making on food issues; protects food providers from the dumping of food and food aid in local markets; protects consumers from poor quality and unhealthy food, inappropriate food aid and food tainted with genetically modified organisms; and resists governance structures, agreements and practices that depend on and promote unsustainable and inequitable international trade and give power to remote and unaccountable corporations.

4 Puts control locally: Food sovereignty places control over territory, land, grazing, water, seeds, livestock and fish populations on local food providers and respects their rights. They can use and share these resources in socially and environmentally sustainable ways which conserve diversity. It recognizes that local territories often cross geopolitical borders and ensures the right of local communities to inhabit and use their territories; it promotes positive interaction between food providers in different regions and territories and from different sectors that helps resolve internal conflicts or conflicts with local and national authorities; and it rejects the privatization of natural resources through laws, commercial contracts and IPR regimes.

5 Builds knowledge and skills: Food sovereignty builds on the skills and local knowledge of food providers and their local organizations that conserve, develop and manage localized food production and harvesting systems, developing appropriate research systems to support this and passing on this wisdom to future generations; it rejects technologies that undermine, threaten or contaminate these, for example genetic engineering.

6 Works with nature: Food sovereignty uses the contributions of nature in diverse, low external input agro-ecological production and harvesting methods that maximize the contribution of ecosystems and improve resilience and adaptation, especially in the face of climate change; it seeks to heal the planet so that the planet may heal us. It rejects methods that harm beneficial ecosystem functions and that depend on energy-intensive monocultures and livestock factories, destructive fishing practices and other industrialized production methods which damage the environment and contribute to global warming.

These six pillars embrace most of the elements of food sovereignty and all six need to be incorporated into any sets of policies or practices that aim to realize food sovereignty.

Source: Taken from the synthesis report of the Nyéléni meeting. Full documents can be found on the forum website, www.nyeleni2007.org

For many national and regional civil society organizations, too numerous to mention here, the focus is on empowering farmers' and peasants' movements to enable them to resist corporate control. They often lack the resources to work internationally and may focus policy work in helping national policymakers understand the implications of global rules. One example of a regional group working at various levels is the Southeast Asia Regional Initiatives for Community Empowerment (SEARICE – Box 8.3).

Box 8.3 SEARICE – Southeast Asia Regional Initiatives for Community Empowerment

SEARICE works primarily to strengthen farmers' seed systems and to advocate for farmers' rights to plant genetic resources as essential components of sustainable agricultural systems in Southeast Asia. SEARICE believes that farmers' rights emanate from basic human rights to life and to development and are essential to promoting the general welfare and interests of farmers.

It recognizes the need to build and support a farmer-led advocacy to enhance the capacity of farmers themselves to protect and promote their rights to plant genetic resources amid current threats and challenges. It aims to help facilitate farmers' access to, and to broaden and create political spaces for their engagement in, plant genetic resources conservation, development and use in various arenas at the local, national, regional and international levels. In the process, SEARICE intends to enable farmers to assert their rights in addressing issues of access to and control of plant genetic resources in light of political, economic and technological trends.

Its policy and information unit is involved in lobbying, advocacy and networking mainly oriented at policy impacts and actions around the issues of IPRs, new technologies (in seeds and agriculture) and farmers' rights in general. SEARICE implements community-based plant genetic resources conservation, development and use projects in Vietnam, Lao PDR, Thailand, Bhutan and the Philippines.

Source: Adapted from www.searice.org.ph

Traditional and indigenous knowledge

The rights of indigenous peoples and the role of traditional and indigenous knowledge have been controversial and complex issues in most of the negotiating fora, as discussed in Chapter 7, and have not been addressed to indigenous people's satisfaction in the new agreements (Box 8.4). There is an enormous diversity of peoples and situations involved, and most groups lack resources. Moreover, there is often a lack of political will on the part of governments of states in which these groups live to recognize all their concerns and involve them in negotiations at national and international levels. Unsurprisingly, as the results of what has often been agreed with little or no involvement on their part become known, more and more groups want to be involved in shaping these decisions and in some cases in resisting proposed changes. Some international and national NGOs, as well as governments and international institutions, support work to inform and assist these groups to engage them with what is going on. Others, however, fear indigenous peoples being drawn into accommodating individual IP-based approaches to dealing with their concerns rather than building on communal- and customary-law-based approaches that do not rely on IP.

Patenting life

Conflict over the patent system and its application to living organisms lies at the heart of many concerns about IP in agriculture, which deals with biological systems rather than the mechanical systems for which patents were designed. For many critics a system developed for inanimate objects should never have been extended to living organisms or their parts, especially as the functions of genes, for example, are far from understood, as more research is showing (Egziabher, 2002; Caruso, 2007). Such critics want to see new methods for balancing public and private interests dealing with innovation involving biological systems, rather than the extension of the patent system to them, and see this extensions as the core issue from which many of the problems arise. For others, the distinction is meaningless and anything people do in any sphere that involves invention and innovation should be patentable. Moreover, as the patent system has come to be increasingly about protecting investment rather than promoting innovation, they see this as a necessary thing if the private sector is to continue investing in these areas.

Balancing private and public interests

For many civil society organizations and academics, the balance between public and private interest has swung too far away from the public to the private in the current global regime. In the UK, following concerns raised by civil society organizations and feedback from developing countries about the impact of IP on development, in 2001 the government set up a Commission on Intellectual Property Rights, which reported in 2002 (IPRs Commission, 2002; see also Chapter 3). The six members of the Commission came from Argentina, India, the US and the UK. In a widely praised report it made a number of recommendations for agriculture and genetic resources, including that developing countries:

Box 8.4 Indigenous peoples want rights but question patents and an ABS regime

In May 2007, 44 indigenous people's groups meeting in New York issued the following declaration:

Declaration on Indigenous Peoples' Rights to Genetic Resources and Indigenous Knowledge

We, the undersigned indigenous peoples and organizations, having convened during the Sixth Session of the United Nations Permanent Forum on Indigenous Issues, from 14 to 25 May 2007, upon the traditional territory of the Onondaga Nation, present the following declaration regarding our rights to genetic resources and indigenous knowledge –

• Reaffirming our spiritual and cultural relationship with all life forms existing in our traditional territories;

• Reaffirming our fundamental role and responsibility as the guardians of our territories, lands and natural resources;

• Recognizing that we are the guardians of the indigenous knowledge passed down from our ancestors from generation to generation and reaffirming our responsibility to protect and perpetuate this knowledge for the benefit of our peoples and our future generations;

• Strongly reaffirming our right to self-determination, which is fundamental to our ability to carry out our responsibilities in accordance with our cultural values and our customary laws;

• Strongly reaffirming our commitment to the United Nations Declaration on the Rights of Indigenous Peoples as adopted by the Human Rights Council, including Article 31, which establishes that:

1 Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, TK and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their IP over such cultural heritage, TK and traditional cultural expressions;

2 In conjunction with indigenous peoples, states shall take effective measures to recognize and protect the exercise of these rights;

• Recalling the Declaration of Indigenous Organizations of the Western Hemisphere of Phoenix, Arizona, in February 1995, which asserted, 'Our responsibility as indigenous peoples is to ensure the continuity of the natural order of all life is maintained for generations to come. … We have a responsibility to speak for all life forms and to defend the integrity of the natural order. … We oppose the patenting of all natural genetic materials. We hold that life cannot be bought, owned, sold, discovered or patented, even in its smallest form;

• Recalling the Beijing Declaration of Indigenous Women, issued at the United Nations Fourth World Conference on Women in Beijing, which stated that, 'We demand that our inalienable rights to our intellectual and cultural heritage be recognized and respected. We will continue to freely use our biodiversity for meeting our local needs, while ensuring that the biodiversity base of our local economies will not be eroded. We will revitalize and rejuvenate our biological and cultural heritage and continue to be the guardians and custodians of our knowledge and biodiversity';

• Recalling the Ukupseni Declaration at Kuna Yala, Panama, of 12–13 November 1997, which declared that, 'We reject the use of existing mechanisms in the legalization of intellectual property and patent systems use of existing mechanisms including intellectual property rights and patents to legalize the appropriation of knowledge and genetic material, whatever their source, and especially that which comes from our communities';

• Recalling the International Cancun Declaration of Indigenous Peoples at the 5th WTO Ministerial Conference in Cancun, Quintana Roo, Mexico on 12 September 2003, which stated, 'Stop patenting of life forms and other IPRs over biological resources and indigenous knowledge. Ensure that we, indigenous peoples, retain our rights to have control over our seeds, medicinal plants and indigenous knowledge';

• Concerned by the accelerated elaboration and negotiation of an international regime on ABS under the auspices of the Convention on Biological Diversity and the nation-states who are Parties to the Convention's failure, to date, to recognize the rights of indigenous peoples to control access to, and utilization of, the genetic resources that originate in our territories, lands and waters –

Urge the United Nations Permanent Forum on Indigenous Issues to:

1 Prepare a legal analysis on states, peoples and sovereignty and their relationship, scope and application, to assist the parties to the Convention on Biological Diversity in understanding sovereignty in the context of the Convention and the role of sovereignty in developing an international regime on ABS;

2 Recommend to the Convention on Biological Diversity that, consistent with international human rights law, states have an obligation to recognize and protect the rights of indigenous peoples to control access to the genetic resources that originate in their lands and waters and associated TK. Such recognition must be a key element of the proposed international regime on ABS.

3 Prepare a report on the social, cultural and economic impacts of commercialization of genetic resources and indigenous knowledge on indigenous peoples.

4 Disseminate this Declaration and the above recommended reports to all relevant UN fora.

Note: See also United Nations Permanent Forum on Indigenous Issues (UNPFII) at www.un.org/esa/socdev/unpfii.

The strengthened patent regime is not going unchallenged even in the industrialized countries driving the process forward. As Keith Maskus noted in his study of the economics of IP in 2000:

Patenting practice in the US – and the pressures for others to adopt similar approaches – is a major concern. The granting of biotechnology patents on fragments of DNA, the loosening of the definition of 'utility', the way inventive step and novelty are applied in patent applications, and an apparent willingness to leave it to the courts to decide the validity of patents are bringing the system into disrepute. Some see a risk of the US system turning into a patent application registration system, as opposed to a patent granting one. US practice is fuelling concern and resentment globally about the acquisitive tactics of US firms. It also prompts industry elsewhere to drive European, Japanese and other industrialized countries to follow suit. Biotechnology is seen largely as an industrial competition issue, with the US, EU and Japan each determined to be a major player.

Maskus has also argued that the US has misguidedly strengthened the IP system for over 20 years to the detriment of the innovation it is supposed to deliver and is forcing inappropriate standards on developing countries through its bilateral trade agreements (Maskus, 2006). He argues this has resulted in:

These recent trends have worked against the cross-fertilization of ideas and the ability to build on the work of predecessors – both essential elements in innovation.

Such concerns are not restricted to the US, however. Questions about the appropriateness of the system led the European Patent Office (EPO) to engage in a major exercise to examine possible future scenarios (Box 8.5). The aim was to examine possible uncertainties that might arise in a complex and turbulent environment. To their surprise:

Box 8.5 Patent scenarios for 2025

The European Patent Office project ended up with four scenarios to help think about the future:

1 Market rules: A world where business is the dominant driver

This is a story of the consolidation of a system so successful that it is collapsing under its own weight. New forms of subject matter – inevitably including further types of services – become patentable and more players enter the system. The balance of power is held by multinational corporations with the resources to build powerful patent portfolios, enforce their rights in an increasingly litigious world and drive the patent agenda. A key goal is the growth of shareholder value. Patents are widely used as a financial tool to achieve that end. In the face of ever-increasing volumes of patent applications, various forms of rationalization of the system occur and it moves to mutual recognition of harmonized patent rights. The market decides the fate of the system, with minor regulation of visible excesses. Patent trolling, anti-competitive behaviour and standards issues all come under scrutiny.

2 Whose game? A world where geopolitics is the dominant driver

This is the story of a boomerang effect which strikes today's dominant players in the patent world as a result of changing geopolitical balances and competing ambitions. The developed world increasingly fails to use IP to maintain technological superiority; new entrants try to catch up so they can improve their citizens' living standards. But many developing world countries are excluded from the process and work instead within a 'communal knowledge' paradigm. Nations and cultures compete, with IP as a powerful weapon in this battle. The new entrants become increasingly successful at shaping the evolution of the system, using it to establish economic advantage, adapting the existing rules as their geopolitical influence grows. Enforcement becomes increasingly difficult and the IP world becomes more fragmented. Attempts are made to address the issues of development and technology transfer.

3 Trees of knowledge: A world where society is the dominant driver

In this story, diminishing societal trust and growing criticism of the IP system result in its gradual erosion. The key players are popular movements – often coalitions of civil society, businesses, concerned governments and individuals – seeking to challenge existing norms. This 'kaleidoscope society' is fragmented yet united – issue by issue, crisis by crisis – against real and perceived threats to human needs: access to health, knowledge, food and entertainment. Multiple voices and multiple world-views feed popular attention and interest, with the media playing an active role in encouraging debate. This loose 'knowledge movement' echoes the environmental movement of the 1980s, initially sparked by small, established special interest groups but slowly gaining momentum and raising wider awareness through alliances such as the A2K (Access to Knowledge) movement. The main issue is how to ensure that knowledge remains a common good, while acknowledging the legitimacy of reward for innovation.

4 Blue skies: A world where technology is the dominant driver

The final story revolves around a split in the patent system. Societal reliance on technology and growing systemic risks force this change; the key players are technocrats and politicians responding to global crises. Complex new technologies based on a highly cumulative innovation process are seen as the key to solving systemic problems such as climate change, and diffusion of technology in these fields is of paramount importance. The IP needs of these new technologies come increasingly into conflict with the needs of classic, discrete technologies. In the end, the patent system responds to the speed, interdisciplinarity and complex nature of the new technologies by abandoning the one-size-fits-all model: the former patent regime still applies to classic technologies while new ones use other forms of IP protection, such as the licence of rights. The patent system increasingly relies on technology, and new forms of knowledge search and classification emerge.

The point of the scenarios is not to suggest that any one is specifically going to happen but that by looking at possible scenarios from different perspectives they 'aim to provide the right questions for input into the policymaking process'.

Source: EPO (2007)

For those looking at the future of food and farming this kind of exercise should give much food for thought.

For the larger players in industry, however, the IP regime has become central to their way of doing business. Both individually and through various lobby groups – some newly set up to defend their interests in the CBD and WTO against implementation of disclosure of origin and other requirements in patent applications – they are lobbying to maintain and strengthen the system and see it enforced globally. While firms are, in some cases, willing to make concessions for food crops with no significant commercial markets in poor countries, questioning the system itself and seeking new business models is not on the agenda.

At the EPO discussions of the scenarios, it seems the most strident proponents of the IP system were the lawyers – and the more IP there is, the more lawyers there are – and the industry associations. Internationally, industry lobbyists have focused on the negotiations where their interests might be most threatened, such as in the creation of the Biosafety Protocol to the CBD and subsequently over biosafety labelling, liability and redress elements, and more recently on the ABS regime and disclosure of origin issues at both the CBD and the WTO.

Some legal and academic experts are also keen to redress the imbalance between large countries and firms promoting and able to use IP, on the one hand, and small countries and small and medium-sized enterprises, public bodies and civil society organizations with very limited capacity to do so, on the other. This has led to various initiatives, including one to provide a global IP resource (Box 8.6)

Box 8.6 Public Interest Intellectual Property Advisors, Inc.:
A US patent attorney's response

IP laws are neither inevitable nor immutable … there must be a balance between the freedom of an IP owner to exclude others and the freedom of others to access the innovation. (Gollin, 2008)

Michael Gollin is a patent attorney and partner at Venable, a major US law firm. He has many years' experience with both the US system and developing countries. He sees IP as a driving force affecting innovation but he also sees a constant need to rebalance the system, and he is far from sure the current balance is right. His concern about the lack of capacity of developing countries and those promoting access to medicines and agricultural innovations led him to propose a new approach to make sure legal expertise was available to all.

For Gollin, one of the biggest problems is complexity itself. The topics of IP, food and biodiversity involve complicated legal, technical and economic issues. No one is expert in all three topics, though a few people may be in two. It therefore necessarily requires the combined expertise of several experienced people to analyse the problems and formulate and advance a policy or legal position at the international or national level. The same is true in forming a strategy and implementing it within an individual organization, whether non-profit or for-profit. Experienced people are easier to find in wealthier countries, and by people with money to pay them. Gollin believes that one way to help balance the problem of access to expertise is to mobilize volunteers who will help developing country organizations deal with IP issues at the international and national level and with individual organizations. That is the business model for Public Interest Intellectual Property Advisors, Inc. (PIIPA), which seeks to be a global non-profit resource for developing countries and public interest organizations needing expertise in IP matters to promote health, agriculture, biodiversity, science, culture and the environment. PIIPA provides worldwide access to IP professionals who can advise and represent such clients pro bono publico (as a public service). PIIPA volunteers have worked in many projects involving food and agriculture, including freedom to operate analysis for Public Intellectual Property Resource for Agriculture (PIPRA), defining trademark rights for local growers in developing countries, invalidating patents that were improperly awarded, negotiating ABS agreements and counselling Haiti, the Philippines, Vietnam and Sierra Leone on national IP legislation. PIIPA is working to build an international network of hubs that will bring together developing country organizations with IP professionals knowledgeable about both local and global issues to help shape innovation in a way that benefits developing countries.

Sources: Interview with Michael Gollin and www.piipa.org

Changing Face of R&D

Farmers using and sharing knowledge – and seeds – gained from experience and trial and error experimentation have been behind innovation and development in agriculture for millennia. That experience has been supplemented and expanded by an organized, state-supported, science-based research effort for about 150 years. Agricultural research has been carried out by public bodies – and freely spread to farmers – largely for the public good, since those needing its results are too small to do scientific research themselves, and the benefits flowing from improved agriculture go to society as a whole through improved food security. It was this approach that lay behind the 'green revolution', which was largely made possible through public research efforts to improve varieties in wheat and rice and agricultural techniques, as was the introduction of hybrid rice in China (Box 8.7).

Box 8.7 China's hybrid rice

In the 1970s, Professor Yuan Longping developed the first hybrid rice varieties, now widely grown in China and other countries. This work was funded by the government, which also promoted widespread use of the rice by farmers, with IP playing no part. Farmers have to get new seed to plant each year, and this has created a potentially huge hybrid rice seed market, since hybrid seed is planted on about half of China's rice growing area.

With decreasing agricultural land area in China, rapid urbanization and growing rural unrest, officials expect a need for greater use of science and technology to increase production from the remaining land. Now that China is a member of the WTO and subject to its minimum IP standards, however, there is concern about the impact of IPRs on future patterns of agricultural development and the rural population. There are therefore ongoing discussions in China about the future of agricultural R&D and whether to give more public good R&D or private IPRs-based incentives. The results of these discussions will be very important to small farmers. There is also growing concern about the impact on farmers that an opening up to private seed businesses under the new IP regime might have.

Sources: Personal communications; Longping (2004); www.worldfoodprize.org/laureates/Past/2004.htm; www.chinaculture.org/gb/en_aboutchina/2003-09/24/content_26399.htm; www.grain.org/research/hybridrice.cfm?lid=159

In recent decades, there has been a change in the nature of research (RAFI, 2000; Pardey and Beintema, 2001). The private sector has played a growing role in R&D in the industrialized countries, with their small farming populations and wholly commercial farming systems, but focuses on areas where it can ensure returns on its investment. The public sector has traditionally focused more on farm-level technologies to increase agricultural productivity, often made freely available; more recently it has also increasingly focused on post-harvest and food safety. There has also been a move away from public funding for applied agricultural research of direct use to farmers in some industrialized countries, notably the US, the UK and The Netherlands, with that being left to the private sector, and a greater focus on basic research. In the US, the focus of private agricultural R&D has changed from agricultural machinery and post-harvest food-processing research (about 80 per cent of the total in 1960) towards plant breeding and veterinary and pharmaceutical research. Some 70 per cent of the chemical research related to agriculture is done in just three countries – the US, Japan and Germany. Private research priorities are also being driven by the need to compete in the oversaturated food markets in industrial countries, for instance by expanding production of 'functional' foods with health-promoting and/or disease-preventing properties.

Several factors lie behind these changes, including a major scientific revolution in biology and legal changes, initially in the US, permitting the patenting of living organisms (see Chapter 1). These attracted new firms, many formerly in agrochemicals, into plant breeding R&D, as they saw opportunities to enter and dominate markets. Technological innovation has long been a way of entering an industry, and genetic engineering in particular has allowed new firms to enter the seed industry and promote innovations in agricultural production. Patent-protected innovation has been used as a means of gaining legal quasi-monopolistic control of certain products and sectors since the 19th century: even at that time, by institutionalizing innovation in R&D labs, 'large corporations sought to control technological change as a means of protecting and fortifying their positions in the industry' (Jenkins, 1975).

Concerns over IP and R&D

Ironically, one of the problems to arise has come from the public sector in the US, as Gary Toenniessen and Deborah Delmer (2005) from the Rockefeller Foundation argue:

Since crop genetic improvement is a derivative process, each incremental improvement made through biotechnology now comes with a number of IP constraints, with new IP added with each transfer or further improvement (Barton and Berger, 2001). IP is used to protect biotechnology tools and reagents; genes and gene sequences; regulatory sequences; processes of transformation, regeneration and diagnosis; and the resulting modified plants. It is in part to deal with this thicket of patents, and to gain 'freedom to operate' (FTO), that the private sector is becoming greatly centralized through a large number of mergers, acquisitions and cross-licensing agreements.

Many civil society groups, researchers and foundations are concerned that the extension and strengthening of IPRs could inhibit the use of R&D processes and products, including biotechnological, which would benefit people in developing countries. Another concern is that the current focus on biotechnology, which is partly driven by IP, is skewing the overall research effort away from other approaches to improve farming, especially for poor and marginalized farmers, such as better water management, more appropriate equipment and integrated pest management techniques.

The need for agriculture R&D to benefit the poor and marginalized has not gone away. Research by the International Food Policy Research Institute (IFPRI) and Indian and Chinese researchers has highlighted the importance of public investment in rural areas, especially low-potential lands in Asia, and the fact that R&D is one of the three key areas for investment, along with education and roads. While the better-favoured areas need existing levels of investment, additional investment is needed in the less-developed areas. In many poorer countries, especially in Africa, there has not been sufficient investment in the high-potential lands either. Moreover, the researchers argue:

Most developments in agriculture have happened in a very different environment from today's IP-dominated and increasingly private-sector-led world. As Joseph Stiglitz pointed out when he was chief economist at the World Bank, when there is a shift in R&D to the private sector, 'relying on the private sector for agricultural research is likely to result in under investment from the point of view of society'. Basically, it will not work on things for poor farmers, who have no money, nor on things that can be freely copied and given away. Moreover, this applied research in industry relies on continued publicly funded basic research and has greatly benefited from past university and other public-sector research (Pinstrup-Andersen, 2000). In other words the public has subsidized, and continues to subsidize, private R&D. Moreover, private companies are not likely to work on those technologies, crops and traits that are of limited commercial value, but which are important to protect food security and livelihoods in developing countries. Commercialized biotech crops, for instance, have been targeted primarily at developed country producers, focusing on a limited number of commodities (soya beans, maize and cotton) and traits (insect resistance and herbicide tolerance) with a sufficiently large market to ensure financial returns on investments.

For those wanting to use the science in other ways, their concern is their freedom to do so.

Freedom to operate

Apart from the effects of publicly funded researchers patenting and licensing technologies, agricultural research companies are increasingly patenting basic research tools and processes, thereby limiting their use for other researchers (Jaszi, 2004). Furthermore, companies have employed so-called patent clustering (obtaining several interlocking patents on different components of a product) and bracketing (patenting information around a competitor's patent so that the competitor's patent cannot be commercialized without cross-licensing) (Dutfield, 2003a). These trends are feared to further limit public researchers' freedom to operate (in other words their ability to research, commercially produce, market and use their new product, process or service without infringing the IPRs of others). While this is probably true in the OECD countries, however, most international institutes and developing countries have more legal freedom than they think, although they may still lack know-how and/or resources.

Countries do have flexibility in how they interpret and use the existing agreements. Under TRIPS, for example, countries can exclude plants and animals from patentability and define the meaning of terms such as novelty, inventive step and utility. Indeed, some things that may be patented in the US may not in the EU. Patents are national and only valid in countries where they have been applied for. Many things subject to patent in richer countries are simply not patented in poorer countries and may be freely used there. Researchers, however, should be aware that contractual arrangements can impose more rigorous IP requirements on them than required by their national laws or licensing terms that restrict commercial use of what is developed from their research. Given the different standards of examination and approaches to patenting requirements, it may also be the case that many patents would be found invalid if challenged, as has happened on various occasions.

So countries and research institutions are free to use technologies and processes that may be patented in other jurisdictions but which are not patentable in theirs. They may also see them used in the field in producing crops. A problem may arise, however, when those crops, or products derived from them, are exported to places where the technology used in their production is patented and is detectable in the product. Then the patent owner can seek to block their import – as has happened over the export of GM soya from Argentina, where it is not patented, to Europe, where it is (Box 8.8). This would not apply, of course, to staple food crops that are not traded widely or to trade between developing countries with similar, minimal IP regimes. The three crops most likely to be involved are soya beans, bananas and rice. However, soya is not a staple food crop and the type of bananas that are staple food crops are generally not exported, but there have been problems with the Enola bean (Chapter 6, Box 6.7).

Increasingly complex IP protection has also led to high transaction costs in assessing researchers' freedom to operate, negotiating access to technologies and licence fees. This can be particularly problematic in the case of agricultural biotechnology, which relies on multiple and often interdependent technology components and processes that may be owned by several institutions. An assessment of the patents involved in producing 'Golden Rice' – a rice variety genetically modified to contain higher levels of beta-carotene – for example, found some 30 patents and 40 technical property rights in the form of material transfer agreements. This required extensive negotiations between the developer of the variety – researchers from the Swiss Federal Institute of Technology in Zurich and the University of Freiburg – and the patent holders, including Syngenta and Monsanto, who in the end agreed to make the technologies freely available for humanitarian use (Kryder et al, 2000). Many of these technologies, however, were not in fact patented in developing countries (Binenbaum et al, 2003). Anecdotal evidence also suggests subsidiaries in developing countries will not copy the inventions of the parent firms (and perhaps other firms too), even when they are not subject to patent in the developing country concerned (Dutfield, personal communication).

Box 8.8 Monsanto v. Argentina over soyameal imports into the EU

Carlos Correa ^a

One illustrative case of how patenting in different jurisdictions may be used is provided by the detainment (on the basis of an expansive interpretation of European Regulation 1383/2003) of shipments of soyameal exported from Argentina by customs authorities of The Netherlands, Denmark, the UK and Spain, and the litigation in course in those countries against soyameal importers.

Soya beans account for around 50 per cent of the total seeded area of oily cereals in Argentina, and is one of its main export items (over US$2 billion annually). Most soyameal is exported to Europe, which obtains around 50 per cent of its soyameal consumption (mainly for animal feed) from Argentina.

Monsanto did not obtain a patent on its herbicide resistant Roundup Ready (RR) technology in Argentina, as it filed the respective application after the expiry of the applicable legal terms. The RR gene in soya beans was first commercialized in 1996 and, thanks to the lack of patent protection, rapidly disseminated in the country. An estimated 95 per cent of soya beans produced in Argentina are derived from varieties incorporating the RR gene. Almost 200 varieties containing it have been developed since 1996 (only a fraction by Monsanto itself); these varieties were subject to plant variety protection in Argentina, without Monsanto's opposition.

The introduction of transgenic soya beans in Argentina without patent protection permitted Monsanto to rapidly disseminate them not only throughout Argentina but also to Brazil and other South American countries. Sales of RR seed also boosted sales of Monsanto's glyphosate herbicide Roundup.

In choosing to transfer its technology to Argentine seed producers, Monsanto voluntarily stimulated the production of transgenic soya beans there. Although Monsanto obtained royalties for the RR technology under private contracts with seed companies, it aimed at getting an additional payment from Argentine farmers, who refused to pay an additional charge for a technology that was in the public domain. Monsanto then targeted the importation of Argentine soyameal into Europe, on the basis of two patents (EP0218571 and EP546090) that protect the gene and gene constructs as such as well the transformed cells in a soya bean plant. Thus Monsanto attempted to use patents covering herbicide-resistant genes to prevent trade in industrially processed products where such genes cannot perform their function.

On 9 August 2006, the Directorate-General Internal Market and Services of the European Commission provided an interpretation of Article 9 of the Directive on Biotechnological Inventions (98/44/EC).^b It confirmed that derivative products, such as soyameal, are not covered by patent claims relating to genetic information which do not perform their function in such products. Although it may be reasonably predicted that this paradigmatic case of 'strategic litigation' will end up with Monsanto's legal defeat, the resources invested by the Argentine government (which requested the status of affected third party in legal proceedings) and importers are very substantial.

This case illustrates a significant attempt to expand the legal powers conferred by patents covering genes. If these attempts were successful, they could have a major adverse effect on the transfer to developing countries of materials with genes patent-protected in developed countries. Any derivative products (for example shirts made out of Bt cotton) would be potentially targeted by patent holders and imports encumbered or prevented in the developed countries where the genes are patented.

Notes: ^a Director of the Center for Interdisciplinary Studies on Industrial Property Law and Economics (CEIDIE) and of the Post-graduate Course on IP of the University of Buenos Aires. ^b In accordance with Article 9 of the Directive, the protection given by patents on a product containing or consisting of genetic information extends 'to all material, save as provided in Article 5(1), in which the product is incorporated and in which the genetic information is contained and performs its function' (emphasis added).

The TRIPS Agreement allows for limited exceptions for the use of patent-protected technologies and products without the authorization of the rights holder in some circumstances, for example in cases of national emergency or for non-commercial purposes (Articles 30 and 31). Such provisions have not yet been used for agricultural research, although compulsory licensing is now being used in some countries to ensure access to medicines.

Unlike a patented plant, a plant variety protected by plant breeders' rights under UPOV is not excluded from being used by others for further research and breeding. Plant breeders' rights may also be restricted for reasons of 'public interest', provided that 'all necessary measures' are taken to ensure equitable remuneration. However, the 1991 revision of the Convention has been criticized for limiting research rights by extending PVPs to include essentially derived varieties, in other words varieties that retain the essential characteristics of the parent varieties (GRAIN, 1998). As a result, some varieties that were previously considered new would now be treated as essentially derived and could not be exploited commercially without consent, although this change was aimed at preventing firms genetically engineering an existing variety to introduce a particular trait, such as herbicide resistance, and then gaining control of the variety through patents without the original breeder gaining any reward.

Broken bargains, sharing knowledge

The expansion of IPRs in plant breeding has fuelled a strong sense in developing countries and in some of those in the Consultative Group on International Agricultural Research (CGIAR) system that an implicit bargain has been broken – with germplasm used in breeding programmes largely provided by the South for free – being still in the public domain – but science becoming increasingly proprietary (Serageldin, 2000). It is a feeling echoed in many civil society critiques of changes taking place.

Access to genetic resources

The bilateralist approach in the CBD and the sense of unfulfilled promises the developing countries have about commitments made both in the CBD and TRIPS to transfer technology to them are fuelling development of national access laws that could seriously hinder the collection and dissemination of both the materials from germplasm collections and the materials being developed by the CGIAR Centres. The new International Treaty and its rules on the use of plant genetic resources for food and agriculture may help alleviate these problems. For the considerable number of food crops not included in the Treaty's multilateral system, there may be much greater transaction costs in using germplasm, which could adversely affect their development (Stannard, 2000). A study commissioned for the Global Forum on Agricultural Research (GFAR) in 2000 concluded that a 'scenario in which all germplasm exchange falls under bilateral agreements entails excessively high transaction costs' and felt that only for very few crops, such as industrial crops, might a bilateral approach to germplasm exchange have acceptable transaction costs (Visser et al, 2000).

The extension of IPRs in agriculture – both PVP and patents – is already having some effects on the exchange and use of plant genetic resources. In the US, public sector breeding programmes have found it harder to get materials from companies, which has interfered with their ability to release new lines and train students (Riley, 2000). Tim Reeves, former director of the International Wheat and Maize research Institute (CIMMYT) in Mexico, also said that the expansion of plant breeders' rights led to some collaborators no longer sending their best lines for use in the breeding programmes (Personal communication, at the GFAR-2000 Conference). Since the breeding programmes work by many partners exchanging material, everyone normally gets much more out of them than they put in, but if the quality of what is put in goes down, everyone will suffer.

Technology transfer and dissemination

One of the objectives of the TRIPS Agreement, also included in the CDB and ITPGRFA, is the promotion of the transfer and dissemination of technology to developing countries, and many feel more should be done about this. Various researchers and foundations have been attempting to do so in effect by trying to reinvent the open exchange system for agricultural research or provide developing countries' researchers with resources to overcome the problems created by a more privatized, IP-dominated research environment.

Reinventing open source agricultural R&D

Farming has been built on open exchanges and the copying of techniques that worked between farmers over millennia. Research too used to be much more open, with sharing of techniques, processes and knowledge. There is a certain irony, then, that now some in the research community have responded to the impact of the current trends by following in the footsteps of the 'open source' movement launched in the mid-1980 in software development. This made software freely available for use and adaptation, did not restrict any party from selling or giving away the software and required that the source codes were provided. An open source approach in agriculture is found in the Biological Open Source (BiOS) Initiative, set up by the Australia-based independent non-profit research institute CAMBIA (Box 8.9 and Jefferson, 2007). Others are also exploring 'open source biotechnology', which extends the principles of commerce-friendly, commons-based peer production exemplified by open source software development to the development of research tools in biomedical and agricultural biotechnology (Hope, 2008).

Box 8.9 The BiOS Initiative

The BiOS (Biological Open Source) Initiative aims to build a 'protected commons' of biological IP. To this end, the Initiative makes patented and non-patented technologies freely available under the terms of the BiOS licence, which stipulates that licensees must agree not to prevent other licensees from using the technology or improvements made to it. While the licences are free, for-profit licensees are asked to contribute to the cost of the supporting information technology.

BiOS is one of four tools CAMBIA (which means 'change' in Spanish and Italian) has been creating. These tools are aimed at fostering innovation and a spirit of collaboration in the life sciences and enabling people in disadvantaged communities and developing countries to choose their own methods to help themselves meet their own challenges in food security, health, and natural resource management. The other three are:

1 Patent Lens, which provides tools to make the world of patents and patent landscapes more transparent and to help focus paths leading to freedom to (co)operate;

2 BioForge, a prototype portal to a dynamic protected commons of enabling technologies, available to everyone who agrees to keep them available for sharing for improvement and use in innovations; and

3 CAMBIA's Materials, molecular enabling technologies designed, developed and delivered by CAMBIA with a focus on their use by disadvantaged communities in, for example, international agriculture and public health.

Source: Jefferson (2007)

The Rockefeller Foundation has supported various groups trying to combat the trend to restrict access to technology by use of IP, including the Public Intellectual Property Resource for Agriculture (PIPRA) and the African Agricultural Technology Foundation (AATF). PIPRA began as a consortium of primarily US agricultural universities and plant research institutes, hosted by the University of California Davis, committed to strategically managing IP on behalf of its members, to enable the broadest commercial and humanitarian applications of existing and emerging agricultural technologies. In mid-2007, it had 45 members in 13 countries. The universities and institutes associated with PIPRA have generated much of the IP in crop biotechnology, but they have also entered into exclusive licensing agreements for this IP with the private sector. These agreements often eliminate their ability to share their technologies with each other or with other public-sector institutions such as national and international research centres that are working on new crop varieties for poor farmers in developing countries. The AATF, for example, is an Africa-based and -led organization, with an office in Nairobi, Kenya, that aims to promote public–private partnerships to use, usually under royalty-free licences, new technologies otherwise protected by IP for agricultural development in Africa (Toenniessen and Delmer, 2005).

Rethinking R&D and IP

For some civil society organizations these partnerships and licences are simply creating the way for large biotech-based transnational corporations to come in and take over any profitable areas of farming and introduced biotechnology and make farmers dependent. They and others want more radical rethinking and reorientation of R&D and the IP system that has been introduced into agriculture. A wider public movement among civil society groups promoting access to knowledge (A2K) has grown up and has been supported by librarians, who are concerned about the impact of changing copyright rules for people in developing countries. Here the concern is that developing country researchers will simply find it too difficult or expensive to access scientific and technical information being held in databases and journals. One response by some scientists to this has been the Public Library of Science – a non-profit organization of scientists and physicians committed to making the world's scientific and medical literature a freely available public resource. Others, such as Jamie Love of KEI/CPTech, are promoting a R&D treaty to make sure scientific knowledge and tools for medicine are available globally – something equally applicable to food and agriculture.

Some groups have been calling for the terms and conditions of patentability to be amended so as to facilitate agricultural research for development, such as limiting the patent period on research processes to five to six years or introducing a flat fee for use of patented processes (Tansey, 2002). Jerry Reichmann has developed this last idea for plant breeding, which usually involves relatively small-scale innovation and has to draw on the public domain for much of what lies behind each innovation. He calls for the creation of a compensatory liability regime. This would take away the monopoly from the privilege a patent holder has by denying the first inventor the right to exclude people from using the invention. Instead, it would involve an automatic licence for use of the protected item by someone else. If it was used within the first few years, there would be a set compensation fee payable, but this would be waived if the follow-on developer waited a set time. By that time, the knowledge would be considered freely available in the public domain as by then the inventor should have recouped any R&D cost either through his exclusive use of the innovation or from payments from others using it through the set fee arrangements (Reichmann, 2000).

Another approach to R&D

For many NGOs and civil society groups, such as those in the food sovereignty movement, the above approaches are fundamentally flawed. These groups see farmers themselves as innovators and the challenge being to support them. This is something the market-based approaches will not do as the poor and marginal have no income to spend. Moreover, following the patterns of innovation in the industrialized countries will rapidly push small farmers out of farming, whether they like it or not. Thus the nature of publicly funded R&D, especially in developing countries, and its linkages to local private or community-based innovation will greatly affect the options farmers have. Alternative products and practices geared to the real needs of small farmers, especially in marginal areas, could provide competitive, freely available and socially desirable products and practices that would enable them to increase their agricultural production in a sustainable manner, avoid debt traps and produce a surplus that could be used to generate income (Box 8.10).

Box 8.10 Ethiopia's farmers and scientists pioneering in-situ conservation and use

Today, in some of Ethiopia's diverse rain-fed environments, a partnership has developed between farmers and researchers from the national gene bank, a local NGO, Ethio-Organic Seed Action, and a Candian NGO, USC-Canada, in its Seeds of Survival (SoS) programme. Since the 1980s, as a result of both loss of sorghum seed in the drier lowlands during the famine, when people had to eat them to survive, and locally bred and adapted varieties of durum wheat being replaced in the wetter highlands by uniform 'high-yielding' (high input) bread wheats, many farmers' varieties (sometimes called landraces) have been lost.

The then head and founder of the national gene bank, Dr Melaku Worede, recognized that farmers knew more about the range and characteristics of varieties than he did. Farmers also had bred varieties well adapted to local environments using multiple selection criteria. These could stand the stresses from climate fluctuations and pests better than the more uniform modern varieties that were replacing them and which, with their increasingly expensive inputs, led farmers into debt and did not perform as well when conditions were poor.

When Dr Melaku met farmers who had been unhappy with the newly introduced bread wheat and wanted to reintroduce the heterogeneous farmers' varieties of durum wheats, he made some improvements to the farmers' varieties so that they yielded better but with little loss of biodiversity. This work, developed through a local farmers' association, now involves the establishment of community seed banks, seed multiplication and farmers' trials comparing compost-fed plots of the same farmers' variety with fertilizer-fed ones. Early results are showing greater yields at lower costs for the compost-fed wheats. The SoS programme has spread not just around the country but around the world. It links the breeding skills and capacity of farmers with researchers who can join with them to develop better products suited to local environments.

Ethiopia has a better chance than most countries to safeguard and develop its agriculture biodiversity because, according to Dr Tewolde Berhan Gebre Egziabher, director of Ethiopia's Environmental Protection Authority, 'the seed supply from research that tends to erode genetic diversity very fast is still very small so genetic diversity is fairly intact'. He feels that what makes Ethiopia so important today for genetic diversity is that, unlike in many other places, 'farmers themselves still continue generating and regenerating their seed'.

Sources: Research by Geoff Tansey during a visit to Ethiopia, November 2006; see also www.africanfarmdiversity.net/Case_Study_EOSA.html and www.usc-canada.org/?page_id=21

Some emphasize the need for participatory processes with small farmers and an agroecological approach to agricultural development in keeping with rural development needs. In this approach, biodiversity is viewed broadly, the importance of in-situ conservation and use stressed, and natural resource management strategies used to develop technologies with resource-poor farmers that support the agroecological conditions (Altieri and von der Weid, 2000). Genetically re-engineering plants is seen as a biologically dangerous and socially simplistic way of dealing with the 'complex realities facing small farmers' who have few resources other than knowledge of how to farm in difficult conditions. That knowledge needs to be nurtured and supported, rather than replaced. Many civil society groups would agree that the problems facing small farmers, especially in marginal areas, are not going to be solved first and foremost with technology. Where technology can contribute, alongside investments in infrastructure, healthcare, education and so forth, it may not be that the technology of most immediate importance is that of improved varieties.

This view also questions the ability of the existing international and national research systems to deliver on this approach. It sees seeds as an integral part of farmers' strategies for managing the land and risks, with farmers in the Andes, for example, using hedgerows as decentralized and farmer-managed in-situ gene banks. Agricultural biodiversity is not just about the genetic resources but about the economic and social systems that are essential to its creation, maintenance and further development. One response to this vision in Peru seeks a non-IPR-based way of safeguarding food security by creating a space for local communities to manage and develop their genetic resources – potatoes – within the framework of traditional and indigenous knowledge and practices.

Conclusion

The controversies and conflicts arising from the expansion of global rules on IP and their interactions with biodiversity, food security and rural people's livelihoods are not going to go away. Indeed, they look likely to become more intense in the face of growing uncertainty in the light of climate change and the various measures being promoted to combat it, including a rapid expansion of biofuels for vehicles (most people, of course, have relied on biomass as biofuel for centuries – wood, dung and crop residues). What observations may be made from negotiations about IP and from developments in the creation of these regimes to date? That is the question for the next chapter.