Documento(s) 12 de 20

The creation of new global rules and the higher profile given to intellectual property (IP) has led to growing attention being paid to these than before. The impact of IP on many aspects of life – from food to health, from education to artistic endeavours – has led to a growing concern about whether the new rules strike the right balance between private and public interest and between countries with very different levels of wealth, power, agricultural practices and technological capacities.

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).

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:

• access information and the products that embody the information;
  
  
• use the information for private purposes or further development; and
  
  
• share the knowledge and the products derived from it.

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:

• intellectual property rights (IPRs), especially in agricultural biotechnology, facilitating corporate control over the world's seed supply and agrifood production at the expense of traditional farmers;
  
  
• the TRIPS Agreement and other IP rules favouring commercial interests over public research efforts that address food security concerns and ensure sustainable livelihoods;
  
  
• IPRs providing an incentive for the misappropriation of genetic resources and associated TK, an issue that has been picked up by governments, as discussed in Chapter 7; and
  
  
• bilateral and regional trade agreements imposing TRIPS-plus requirements on developing countries that further limit flexibilities in implementing measures to address public policy objectives (also discussed in Chapter 7).

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

Today control over agricultural biotechnology is effectively limited to a few multinational corporations who integrate seeds, agrichemicals and biotechnology. This disturbing consolidation of power is matched with a trend towards 'me-too', big-ticket 'innovations' of remarkable dullness. How many herbicide-tolerant big acreage crops are enough? (Jefferson, 2007)

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:

One of the main causes of genetic vulnerability is the widespread replacement of genetically diverse traditional or farmers' varieties by homogeneous varieties. … The main cause of genetic erosion in crops, as reported by almost all countries, is the replacement of local varieties by improved varieties or exotic varieties and species. (FAO, 1998)

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).

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).

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

[T]he scientific community will need to rethink some long-held views about what genes are and what they do, as well as how the genome's functional elements have evolved. (Francis S. Collins, Director, National Human Genome Research Institute)¹

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:

• do not allow patenting of plants and animals;
  
  
• develop different forms of sui generis PVP;
  
  
• Strengthen public research focused on poor farmers and ensure that public sector varieties are available to provide competition for private sector varieties; and
  
  
• rapidly ratify the ITPGRFA and implement its provisions on farmers' rights and not allowing IPRs on materials transferred under the multilateral system.

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:

There are legitimate reasons to be concerned about the highly protective standards that have emerged recently in the US and the EU. These laws and judicial interpretations provide broad patent protection for software and biotechnological inventions. They also promote extensive rights in the formulation of databases, which could have a negative effect on scientific research. It remains to be seen whether such standards tilt the balance within those jurisdictions towards the private rights of inventors and away from the needs of competitors and users. It is not too early to claim that they are inappropriate for developing economies and net technology importers. (Maskus, 2000, pp 237–8)

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:

• mushrooming litigation costs to defend against infringement lawsuits;
  
  
• patents that are overly broad or unclear about the breadth of protection; and
  
  
• a laissez-faire antitrust policy that allows firms to use patents to actively exclude potential competitors.

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:

What had started as a small institutional exercise rapidly grew into a larger more comprehensive overview of the whole IP system. It became clear that the system of IP required comprehensive examination, at multiple levels, ranging from the global to the regional (European), national and institutional. (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)

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).

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:

… a major IPR change that is threatening the operations of the international agricultural research system comes from public, not private sector, research institutions. To promote technology transfer and product development in the US, the 1980 Bayh-Dole Act gave universities and other public-funded research institutions the right to obtain patents on and commercialize inventions made under government research grants. Similar arrangements have emerged in most other industrialized countries. The result is that while many biotechnology discoveries (for example knowledge of gene function and gene regulation) and enabling technologies (for example agrobacterium and biolistic transformation methods) are generated with public funding in research institutions and agricultural universities, these discoveries are no longer being treated as 'public goods'. Rather, they are being patented and licensed, often exclusively, to the for-profit sector (Graff et al, 2003). Such discoveries now primarily flow from the public sector to the for-profit sector. If they flow back out, it is usually under material transfer agreements (MTAs) that significantly restrict their use (usually for research purposes only), limit further sharing and often include reach-through provisions to capture results of future research.

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:

These investments will provide a long-term solution to the problem of food security and poverty. … Contrary to conventional wisdom, investments in low-potential lands generally produced higher returns for agricultural productivity growth than those in high-potential lands. (IFPRI, 2002)

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

Private research will not and cannot assume the burden of ensuring the food supply of the world's poor. Even in the developed countries, the now-dominant private-sector research efforts are concentrated on a small number of traits in crops with high commercial value. … [I]n agricultural biotechnology, the very IPRs associated with the surge of private biotechnology research now threaten to block public and non-profit researchers. … Plant breeders in developed countries increasingly find their access to essential innovative inputs uncertain, unduly expensive or, in some reported cases, blocked altogether. … Unlicensed production in the South of a crop only protected in the North is both legal and moral per se. (Binenbaum et al, 2003)

For the future, how the World Trade Organization's TRIPS Agreement is implemented with respect to plant-breeding technology, domestically and in important export markets, is a crucial issue for developing-country policymakers. Where patenting of plant and other life forms is allowed, the patenting of key biotechnologies in the South will grow, threatening developing-country researchers' freedom to operate and freedom to trade in developing-country agricultural products, both South–North and South–South. This issue ranks with implementation of farmers' rights as an important policy concern for plant breeders, farmers, and

the food consumers of the South. But domestic freedom to operate is generally the relevant IPR issue; exports of food staples that dominate agriculture are not important growth drivers in most developing countries. (Pardey et al, 2003)

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).

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 maintenance of present-day yield levels for major food crops will depend on combining many genetic traits, found in materials of a wide variety of origins, that must be placed into a wide range of varieties and used in many different locations. Future food security depends on it and international public goods deliver it. (Petit et al, 2001)

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).

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

Ecosystem approaches applied to food and agriculture tend to place humans more explicitly at the centre of the management strategy and give greater emphasis to goals related directly to human wellbeing, and on the social and economic advantages that result from their application. (FAO, 2007)

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).

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.

Documento(s) 12 de 20