Document(s) 11 of 12

Introduction

The conservation and use of plant genetic resources is described as a "system" wherein different agents play distinct roles. The creation of knowledge by indigenous/traditional farmer communities is characterized and compared to knowledge production in the "science" and "technology" systems. Intellectual property rights are currently applicable to downstream activities, while knowledge generated upstream is deemed to be in the public domain, despite its economic value. Numerous approaches aim to extend or develop alternatives to intellectual property rights. It is argued that many proposals are grounded in a conception of "natural rights," which provides an inadequate justification for a positive regulation of plant genetic resources and indigenous knowledge. An instrumental conception of intellectual property rights is needed to clarify the objectives that society pursues through protection (or other policies) and ensure that the established legal mechanisms are adequate to attain the intended goals. For this purpose, a number of clarifications and distinctions are necessary.

This chapter considers the concept of Farmers' Rights, still undefined with regard to its scope and content. It also addresses the difficulties inherent in developing special intellectual property rights for the protection of traditional farmers' varieties (landraces), as an extension of plant breeders' rights. Finally, an alternative legal approach is proposed based on a sui generis regime — inspired by the protection of trade secrets — that may be developed at the international level.

The plant genetic resources system

Conservation (in situ and ex situ), research and development, and utilization of plant genetic resources are components of a complex system in dynamic interaction. Such an interaction is based on market and non-market relationships among different types of agents with specific functions within a system called the "Plant Genetic Resources System" (Figure 10.1). Agents in the plant genetic resources system include traditional farmers and indigenous communities, collectors and curators (conservation subsystem), research institutions (research and development subsystem), breeders and seed companies (commercial breeding/production subsystem), and farmers (agricultural use subsystem). Each of these groups performs different functions within a particular framework of customary and legal rules.

Figure 10.1 The PGR system.

Among the different agents who are directly involved with plant genetic resources are indigenous peoples, collectors, research institutions, breeders, seed companies, and farmers. Indigenous peoples and traditional farmers both conserve and use plant genetic resources system. The value of plant genetic resources is preserved and enhanced by their utilization for planting, seed production, and continuous selection of the best adapted local varieties (landraces). They generally interact among themselves on the basis of barter or exchange across the fence.

Collectors and curators collect and/or conserve and manage plant genetic resources, specifically with regard to their characterization, cataloging, evaluation, and pre-breeding. They interact with traditional farmers, research institutions, breeders, and seed companies. In most cases, such an interaction is based on non-market transactions. Traditional farmers are not paid a price for the value they deliver; breeders and seed companies are not charged a price for the samples they obtain. Research institutions utilize plant genetic resources to undertake basic and applied research, including agrobiotechnology, and to enhance existing varieties and the availability of genepools. Interaction with other agents in the system (traditional farmers, curators, breeders) is generally on a non-market basis. However, a strong trend toward protection of research results and increased linkages with private companies is the introduction of market-based transactions.

Breeders utilize plant genetic resources in breeding programs. They obtain materials and scientific information from traditional farmers and research institutions, generally on a non-market basis, and produce new or improved varieties for sale in the market. Intellectual property rights, wherever available, strengthen their market position and their ability to recover development expenditures. Seed companies utilize breeding results to propagate and sell seeds. They operate entirely within the market. Plant genetic resources are one of the intangible inputs in seed production, although these resources are not attributed a particular value, except where protected by intellectual property rights.

Finally, farmers who utilize improved varieties are at the end of the research/production chain. They benefit from the work realized, remunerated or not, within other subsystems. Their relationship with seed suppliers is market-based. Farmers both use and produce seeds, which they can reuse freely or in the framework of the "farmer's privilege,"¹ where applicable.

The indigenous/traditional knowledge system

The information and materials generated and used upstream in the in situ conservation subsystem are presently considered free goods. They belong to the public domain in that they are available to anyone without the permission of the developer/conserver and without any remuneration. The fact that indigenous/traditional knowledge belongs to the public domain does not mean that it is developed without intellectual effort, or that it is deprived of any value. Such knowledge is the result of a structured system of understanding, and certainly has an economic value although not necessarily a commercial value in a market.

The knowledge of indigenous and traditional farmer communities encompasses a set of different components (Box 10.1) that are part of a "traditional" knowledge system with its own epistemological foundations and practitioners (Shiva 1996:21). It is "an "organized, dynamic system of investigation and discovery that is of critical value to the sustainable maintenance of earth's diversity" (Shiva 1996:13). A main feature of this system is that knowledge is produced collectively. Innovation is "accretional" and "informal" and takes place over time. "The knowledge evolves as it modifies, adapts and builds upon the existing 'knowledge' "(Shiva 1996:23).

Box 10.1 Components of Traditional/Indigenous Knowledge

(a) Technologies and know-how relevant to the identification characterization and monitoring of ecosystems, species, and genetic resources:

(i) traditional knowledge about local ecosystems

(ii) traditional knowledge about ecosystem function

(iii) traditional knowledge of territories and habitats

(iv) traditional and advanced taxonomies

(v) uses, both traditional and current

(vi) traditional knowledge of technologies to determine species and genetic resource status and of population norms over time

(vii) traditional techniques for communication and information transmittal

(b) Technologies appropriate for the in situ conservation of components of

(i) traditional knowledge and technologies for in situ conservation

(c) Technologies for sustainable use of biological diversity and its components:

(i) spiritual and cultural uses

(ii) traditional medicine production techniques

(iii) natural resource management with the use of indigenous knowledge and technologies

(iv) methodologies for evaluation of biological diversity, including non-economic values such as existence, religious, ethical, and cultural values.

Source: UNEP/CBD/COP/ /3/19,1996, p. 11.

There are many clear differences between the "traditional" knowledge system and the "scientific" and "technological" systems as they are known today (see Gibbons et al. 1994). Such differences relate to factors such as the process of creation of knowledge, the kind of creators, the methods used, the systems of compensation and validation, the level of codification (formalization) of knowledge, the existence of property rights, and the modes of diffusion. As illustrated in Table 10.1, there are, however, also some similarities. The term Science and Technology (S&T) is used forthwith to refer to these scientific and technological systems.

Table 10.1 Knowledge Creation in the Traditional, Science, and Technology Systems

Knowledge creation and compensation in the traditional,
science, and technology systems

A comparison of the "traditional" system with the two other systems indicates clear differences with regard to who creates knowledge and the methods of validation, compensation, and appropriation. Traditional knowledge, as mentioned above, is created by communities, while science and technology are developed by individuals, teams of researchers, or employers hired by firms. Traditional knowledge is validated by the use of knowledge within communities, while scientific knowledge is validated by peer evaluation, and technology by its use and success in the market. There is no formal reward mechanism in the traditional system, whereas reputation given by first discovery is the dominant means of reward in science, and appropriation of rents in the technology system.

In other aspects, however, some similarities between traditional and S&T knowledge creation emerge. For instance, the creation of technology in both is essentially cumulative in nature. Technology advances both by means of "radical" innovations as well as minor, "incremental" innovations that play a key role in technological change, including, for example, dynamic areas such as electronics. Technology sources include both scientific inputs as well as empirical inputs that generally result from "learning by doing." Important components of technology often are not codified but maintained in a "tacit," informal form (Cassiolato 1994:279). Finally, in both the traditional system of knowledge and in modern science, public, nonproprietary knowledge is created. In neither case is created knowledge appropriated under intellectual property rights; diffusion of knowledge is free and without restrictions. In other words, science in S&T and traditional knowledge are in the realm of public domain. How much of the public domain will survive in an era of expanding intellectual property protection is an important issue to be further investigated.

Economic value

The economic value of indigenous/traditional knowledge is receiving growing recognition. Knowledge about medicinal uses of plants, for instance, saves substantial research costs to pharmaceutical companies and provides insight into unique therapeutic options (Shiva 1995:130). Indigenous/traditional knowledge has economic value, although the economic value of biological diversity for agriculture is difficult to assess (Brush 1994). A comprehensive theoretical framework and solid empirical evidence are missing. Some fragmented evidence is available on the benefits obtained by recipients of plant genetic resources. For instance, a detailed study on the value of rice landraces to Indian agriculture showed that they contributed 5.6% to India's rice yields, with an estimated value of $75 million (National Research Council 1993).

The economic value of plant genetic resources may be analyzed, in marginal terms, on the basis of the opportunity cost of the conversion of biodiversity to specialized production. The rationale for this approach is that, while conserving landraces, traditional farmers are deprived of obtaining higher productivity and income associated with the use of modem varieties. There is, hence, a global value determined by the differential in the average yield between the use of land in a traditional versus a specialized form of production (Swanson et al. 1994:25). The value of genetic diversity, however, is not limited to the opportunity cost borne by traditional farmers. Maintenance of biological diversity in farming systems generates value for the global community which is determined by three additional components:

1. "portfolio effect," the static value of retaining a wide range of varieties and methods of production, which reduces the risk of variable production;
   
   
2. "quasi option value," based on the value of the future flow of expected information to be generated by the retained diversity;
   
   
3. "exploration value," or the value of retaining the evolutionary processes of varieties and the opportunity to discover new traits and characteristics (Swanson et al. 1994:26).

The availability of germplasm enables farmers to face changes in the environment, or occurrences of disease or pests ("quasi option" value). The "exploration value" may be of particular importance for biotechnology-based industries, which can exploit genes of particular agronomic interest. Consumers, finally, benefit from a reduced risk of variability in production ("portfolio value") and from improved and increased production.

Farmers holding landraces, thus, create an economic value. They are currently, however, unable to appropriate it for the purposes of generating revenue as income. In economic terms, they generate externalities as providers of a "public good." This does not mean that other agents could not benefit and eventually appropriate downstream the values so created. The direct beneficiaries of the value created by the nonconversion of land from traditional to specialized uses are those able to utilize the germplasm so conserved, including farmers and breeders of all countries — not only of the country where the relevant landrace is located. There is a strong interdependence among countries with respect to plant genetic resources, and in most cases these resources are found in several countries; distribution is not constrained by national boundaries. From an economic point of view, plant genetic resources have a "global" value, the realization of which benefits farmers, breeders, and consumers all over the world. Thus, plant breeders and seed companies may capture the rents of plant genetic resources, which they have incorporated into new or improved varieties that become protected by intellectual property rights.

Intellectual property rights downstream

Only a minor portion of the materials maintained in situ or in ex situ collections enter the research and development subsystem. If this is the case, and depending on the characteristics of the research and development results, plant genetic resources that have been distributed from ex situ collections may — but not necessarily — give rise to claims of intellectual property rights. Thus, public institutions have generally produced improved varieties, including hybrids, which were released for free use by farmers. Recent trends toward "privatization" of agricultural research and the need to secure funds for sustaining research and development projects have led, however, to a growing use of the intellectual property rights system by public institutions.

Intellectual property rights play an important role in the commercial breeding/production subsystem. The availability of intellectual property rights may stimulate the development of "modern," "commercial" varieties which comply with the requirements (particularly stability and uniformity) imposed by breeders' rights regimes. In theory, the availability of intellectual property rights stimulates research to benefit the public by the release of improved crop varieties. In this way, private crop breeding can both complement and compete with public crop breeding in national and international research.

Intellectual property confers, in general, exclusive rights with respect to the use of information in different areas of knowledge. Some types of intellectual property rights are particularly relevant to agriculture. These rights include breeders' rights, patents, utility models, trade secrets, and geographical indications. Each of these types of intellectual property rights applies to different subject matter as described in Table 10.2.

Principal intellectual property rights applicable
to agriculture

Table 10.2 Main Intellectual Property Rights as Applicable to Agriculture

Breeders' rights are a type of intellectual property related to propagating materials of plant varieties. They constitute the single specific, sui generis protection available in the field of agriculture. Breeders' rights have been adopted by most developed countries but by only a few developing countries.² The UPOV (Union for the Protection of Plant Varieties) Convention provides an international framework for the protection of said varieties. The World Trade Organization (WTO) rules and, in particular, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs Agreement) will, however, lead to the creation of intellectual property rights regimes, including breeders' rights, in all countries that join these agreements. Few countries will remain outside of WTO and the TRIPs Agreement. The impact of the introduction of breeders' rights on seed production and research and development is still relatively unexplored (see Jaff and van Wijk 1995).

Patents are conferred in many countries to protect inventions relating to plants and animals (including genetic materials). There are, however, important differences among national laws on the subject matter of protection. The TRIPs Agreement allows member countries to exclude plants and animals from patentability, but plant varieties need to be protected either by patents, by an "effective sui generis" regime or by a combination of both. Developing countries have a transitional period of 5 years to comply with the standards of the TRIPs Agreement.

The application of patents to plant parts, including cells and genes, has been accepted in many countries. This remains, however, a controversial issue, particularly with regard to the patentability of materials that pre-exist in nature and are just isolated and purified, or slightly altered, in order to be claimed as an "invention." Patents may also apply to many other products (e.g., agrochemicals, equipment) used in agriculture, including biotechnology-based products such as vaccines and biopesticides (Wegner 1994). Patents, in sum, may have a wide impact on various aspects of agricultural activities.

Utility models are relevant for the protection of functional improvements in agricultural machinery and other tools. The requirements to be met in order to obtain these titles, in terms of novelty and inventiveness, are normally lower than those for patents: utility models apply to "minor" innovations. Unlike patents, such models are generally applied for and conferred to nationals of the countries of registration, rather than to foreigners.

Trade secrets protect undisclosed information of commercial and technical nature, as long as it remains secret and the possessor has taken reasonable measures to prevent its disclosure. As in the case of patents, trade secrets apply to many products relevant to agriculture, including the processes involved in the production of many biotechnology-based products. One of the main fields of application of trade secrets in agriculture relates to hybrids, such as maize. In this case, "technical protection" (Jullien 1989) is high, in the sense that pertinent information cannot be easily obtained from the product itself (unlike the case of self-pollinating varieties). Though a trend toward the protection of parental lines via breeders' rights can be observed, trade secrets are still the principal means of protection for such types of seeds.

Finally, it is necessary to mention geographical indications among the intellectual property rights relevant to agriculture. A geographical indication consists of the name of a locality, region, or country, which is used by producers located therein to indicate the geographical origin of certain products. Such a use is subject to different requirements under existing domestic legislation. In order to be protectable, the characteristics or reputation of the products needs to be essentially attributable to a given origin (Bérard and Marchenay 1996).

Extending intellectual property rights
to indigenous/traditional knowledge

As described above, despite its economic value, indigenous/traditional knowledge belongs today to the public domain. Intellectual property rights are only relevant in downstream activities, even if they benefit from values created upstream. The question to be addressed is whether intellectual property rights should be extended upstream to such a knowledge and, in that case, for what purpose, for whose benefit, and under which conditions. Thus far, the analyses and discussion are not generally clear with respect to the foundations and objectives sought with an eventual extension of intellectual property rights. As mentioned above, indigenous/traditional knowledge is composed of a number of different elements (Box 10.1), the application and value of which vary significantly. This frequently creates confusion about the specific knowledge component for which the creation of such rights is advocated.

There are both ardent proponents and critics of extending intellectual property rights to the knowledge of indigenous and traditional communities, including landraces. Those who are reluctant to create or who oppose the idea of creating a new form of intellectual property rights offer arguments based on both principles and practical reasons. Some indicate, for instance, that bringing communities and their resources into the fold of the market economy could overwhelm and ultimately destroy those societies (Nijar 1996a:24). This might be overcome by a "rights regime which reflects the culture and value-system of these communities" (Nijar 1996a:24).

It has also been argued that, given the difficulties inherent in establishing intellectual property rights protection for indigenous/traditional knowledge, legislation and international conventions should ensure that such knowledge, biological materials, and their derivatives are not subjected to any kind of property rights (Montecinos 1996:22). They should remain a part of "public domain" everywhere. This would imply that such knowledge and materials should be declared unpatentable in all countries, including those that currently permit the protection of different forms of biological inventions. Other analysts question the instrumental value of intellectual property rights in the field of indigenous/traditional knowledge. Brush, for instance, has noted that,

[T]he sheer volume of different farmer varieties, the fact that genetic diversity crosses national boundaries, and the large amount of genetic resources already collected and placed into the international public domain pose serious difficulties for anyone farm group or nation seeking to claim novelty or distinctiveness. .... Landraces are likely to have very little commercial value because of breeders'strong preferences for well known genetic material rather than exotic and unknown material.

The relative abundance of germplasm in public institutions also lessens the possibility that breeders will purchase crop germplasm from farmers. ... The abundance of collected germplasm thus undermines a market based on intellectual property for crop genetic resources. There seems to be little chance that users will pay for unknown germplasm when they can obtain it without cost from international and open collections (Brush 1994:25–26).

Different alternatives to intellectual property rights have been proposed to deal with indigenous/traditional knowledge or some components thereof. This is the case, for instance, of proposals relating to "tribal" or "communal" rights (Greaves 1996), "community intellectual rights" (Gebre Egzibher, 1996a:38), "traditional resource rights" (Posey and Dutfield 1996), and, most notably, to Farmers' Rights as a means of compensating traditional farmers for their contributions to the in situ conservation of plant genetic resources.

The recognition of Farmers' Rights is one alternative, introduced by the FAO International Undertaking on Plant Genetic Resources, to compensate traditional farmers. FAO Resolution 5/89 defines Farmers' Rights as:

[R]ights arising from the past, present and future contribution of farmers in conserving, improving and making available Plant Genetic Resources, particularly those in the centres of origin/ diversity. These rights are vested in the International Community, as trustees for present and future generations of farmers, for the purpose of ensuring full benefits of farmers and supporting the continuation of their contributions.

One of the objectives of Farmers' Rights, in accordance with the same Resolution, is to "allow farmers, their communities, and countries in all regions, to participate fully in the benefits derived, at present and in the future, from the improved use of Plant Genetic Resources, through plant breeding and other scientific methods." In developing this concept, the FAO Commission on Plant Genetic Resources has agreed that a number of questions remain open and need to be addressed. These include:

• the nature of the funding (voluntary or mandatory);

• the question of linkage between the financial responsibilities and the benefits derived from the use of plant genetic resources;

• the question of who should bear financial responsibilities (countries, users, or consumers);

• how the relative needs and entitlements of beneficiaries, especially developing countries, would be estimated; and

• how financial and local communities would benefit from the funding.

The concept of "Farmers' Rights" has received wide acceptance, as indicated by the results of the Leipzig Conference on the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture (17–23 June 1996), where the concept was reaffirmed. After considerable debate a general compromise was reached on this issue (Gebre Egzibher 1996a:6) but no firm and clear commitments have been made with regard to the form of implementation of such rights at the international, regional, and national levels.

The content and scope of Farmers' Rights has not yet been fully defined. Their eventual assimilation to intellectual property rights has been questioned, as the latter might undermine the free sharing of knowledge and resources among local communities and the world community. Furthermore, this is recognized as incompatible with the collective nature of innovation at the community level (Gebre Egzibher 1996a). Farmers' Rights are regarded as "some counterbalance to ' formal' intellectual property rights which compensate only for the latest innovation, without acknowledging that, in many cases, these innovations are only the last step in cumulative inventions carried out over many human generations, in different parts of the world" (Esquinas Alcazar 1996:4). For those who advocate the establishment of intellectual property rights, their argument recognizes intellectual property rights as an ethical imperative and/ or a necessary tool to preserve biodiversity and prevent further erosion thereof. Within this line of thought, two trends may be identified. First, there are many proposals to extend the application of current modalities of intellectual property rights, or to amend existing laws and practices, in order to include certain components of indigenous/traditional knowledge. Such proposals include:

1. the application of geographical indications, copyright (protection of folklore) or other intellectual property rights (Correa 1994);
   
   
2. increasing the flexibility of the requirements for the protection of traditional plant varieties, by applying, for example, a broader concept of "uniformity" than that which is generally accepted under UPOV-like plant breeders' rights; and
   
   
3. introducing new requirements into existing laws, such as the obligation to declare in a patent application the origin of materials used to develop the invention.

Alternatively, there are proposals to develop options to existing intellectual property rights. Under this approach, different variants and new modalities of intellectual property rights, differing both in scope and possible forms of implementation, also exist. Their aim is the establishment of a general, comprehensive, sui generis regime on indigenous and traditional communities' knowledge, covering knowledge on, inter alia, medicinal plants, materials useful for agriculture, and cultivation practices.

In sum, several alternatives to deal with indigenous/traditional knowledge have been put forth. They range from explicitly and universally excluding the appropriation of biological materials and related knowledge, to the development of completely new rules. The following section discusses the grounds for new approaches and potential changes in the legal systems.

Grounds for new rules

The establishment of new rules or of a sui generis regime for the protection of knowledge held by indigenous and traditional farmers has often been grounded on the need to recognize pre-existing rights of indigenous/traditional communities (Tilahun and Edwards 1996). Such rights would seem to exist, under this approach, before and independently from positive law. Thus, the law would not create such rights, but only provide for the conditions under which such rights should be recognized and exercised. This type of approach has certainly brought attention to the issue, stimulated a wide discussion, and prompted many proposals. This approach, however, generally fails to define the purpose and rationale for the protection. "Natural rights" theory is incompatible with a positive, non-confessional conception of law. It reassembles current claims by industrialized countries against copying and "piracy" as grounded on rights beyond political frontiers and economic systems (Oddi 1996:424). The "natural rights" theory has been widely criticized and dismissed both as a general justification of law (Kelsen 1991), as well as a specific ground for the granting of intellectual property rights (Penrose 1974; Oddi 1996:431).

With regard to intellectual property rights, for instance, summarizing Jefferson's views on patents, the U.S. Supreme Court in Graham v. John Deere Co. recalled that Jefferson:

... rejected a natural right theory in intellectual property rights and clearly recognized the social and economic rationale of the patent system. The patent monopoly was not designed to secure to the inventor(s). .. natural rights(s) in (their) discoveries. Rather it was a reward, an inducement, to bring forth new knowledge (Government of India 1995).

The "natural rights" theory, therefore, does not provide a solid justification as to why the society should establish protection. An alternative theory is needed to elucidate the intended objectives of such a protection and subsequent benefits for society. A number of objectives may be defined. One objective may be, for instance, to reduce or avoid conversion from traditional to commercial varieties. In this case, a system that compensates farmers for lost income may be required. Swanson argues that in the absence of a compensation mechanism, traditional/indigenous farmers would tend to substitute their own varieties with higher yielding commercial varieties (Swanson et al. 1994). Under this conception, property rights would not be intended to "reward" communities for their contribution, to the maintenance and development of landraces, or to create incentives for investments. In Swanson's view, protection would be mainly justified to avoid conversion to modern varieties. It is, hence, a "conservationist" theory, based on protection as a means to maintain the current levels of conservation.

If the objective were to motivate farmers to invest and innovate more than they currently do (for instance, in crops of particular importance), any potential regime should not limit itself to compensation for lost income. Where public goods are created, investments for producing them necessarily tend to be suboptimal, since their producers are unable to benefit from the rents such goods may generate. This is a typical market failure that justifies public intervention, as illustrated by the case of basic science (Nelson 1971). Another objective may be to obtain a fair share of the benefits generated by the use of communities' knowledge. This may generate new income and bring a necessary element of justice, but the mechanism in and of itself would not ensure that the funds needed to make a certain level of investments are created.

In summary, there is no doubt about the justice of proposals aiming at some kind of compensation or protection for indigenous/traditional knowledge. However, it is necessary to clarify what society would intend to reach through protection, and how such goals can be realized. Once these aims are clarified, property or other rights may be devised as instruments to attain them. An instrumental approach to the issue means that the establishment of property or other rights should be considered as a means to effectively reach the proposed goals.

Intellectual property rights and conservation

Consideration of intellectual property rights and in situ conservation for agricultural purposes requires a number of additional conceptual distinctions. First, the protection of varieties maintained and improved by local/indigenous communities needs to be distinguished from the protection of unmodified genetic sequences as such. While the former relates to materials that have been improved over time, the latter refers to information which exists in nature and which constitutes a "natural capital" of countries where the respective resources reside. The establishment of a new category of "informational rights" to protect these has been proposed (Swanson 1995:169; Walden 1995:191).

Second, a distinction should be made between the protection of landraces, i.e., improved materials useful for agriculture, from the protection of traditional knowledge held by local/indigenous communities about the possible uses of certain plants, particularly for medicinal purposes. In the case of the former, the subject matter is well defined (even if lacking stability) and protection would be dependent on the physical and actual existence of a variety. In the latter, however, what is at stake is knowledge on the use of materials, and eventually on procedures to extract or apply them (such as in the case of the neem tree, the seeds of which have been used as a pesticide in India for hundreds of years). The problems posed by the protection of this type of knowledge are quite different from those relating to plant varieties as such.

Third, while considering an eventual form of intellectual property rights protection for landraces, the objectives of the protection sought should be clarified, as mentioned before. Intellectual property rights provide a tool for the appropriation of rents based on different kinds of intellectual efforts. If the objective of the protection were, for instance, to remunerate for past contributions made to mankind by traditional farmers, intellectual property rights will not necessarily be the appropriate tool. Even if the objective were to reward investments and facilitate the diffusion of innovations (more in line with the typical foundations of intellectual property rights), it is important to note that intellectual property rights are not the unique or necessarily the best (both privately and socially) means to achieve such an objective. Finally, the need to conserve plant diversity on-farm seems to be well accepted. There are, however, some major pending questions. The desirable amount and composition of diversity to be conserved is unclear. Should traditional farmers remain limited to traditional varieties that preserve and enrich genetic diversity, but which are normally inferior to commercial varieties in terms of productivity and income generation? The adoption of commercial varieties has certain negative effects on biodiversity, but some undeniably positive economic and social effects as well. The question is, therefore, how to develop an agricultural policy, including intellectual property, that does preserve the required amount and composition of plant biodiversity, and at the same time allows poor, traditional farmers to benefit from higher yielding varieties.

Intellectual property rights for traditional varieties?

Should a specific form of intellectual property rights be recognized for traditional varieties (see Correa 1994)? To determine the feasibility and potential content of intellectual property rights for traditional varieties, the principal legal issues are examined below.

Definition of subject matter

Although modem techniques such as molecular markers allow for a detailed description of the heritable material of plants and plant populations, it seems difficult (if not impossible) to define individual landraces, which continuously evolve. If adopted, a system of protection should be based on the material existence of certain germplasm (as in the case of breeders' rights).

Under the UPOV regime, a variety cannot be protected if it was commercialized for more than 1 year before protection is sought, in the country where the application is filed (article 6). Therefore, the applicability of a UPOV-like standard of novelty to landraces is problematic since the land-races in question may have been used by communities long before any protection is sought. The UPOV uniformity requirement also poses a great obstacle. By their nature, traditional varieties are continuously evolving; they lack the stability and uniformity characteristic of modem varieties. The uniformity requirement may be relaxed to some extent, as in the case of the Austrian law (1993) on plant breeders' rights. According to this law, a plant variety is homogeneous when flits individuals, as a whole or with respect to a given distribution, are sufficiently uniform in the expression of each relevant characteristic, notwithstanding a small number of variations." Landraces typically present a high degree of diversity, which prevents a proper identification of the eventually protectable subject matter.

Territorial validity of rights

Patents and breeders' rights are territorial rights, in the sense that they only are valid in the countries where registration has been obtained. The main problem in this respect is the occurrence of the same landraces in several countries. To whom should the rights be accorded? Identifying the title holder is likely to be one of the main problems of developing intellectual property rights protection for landraces. Landraces generally have no single origin and they result from the interaction of multiple landraces over time.

A second problem created by territoriality is that in order for a community holding a right to obtain protection outside its own country, it would have to obtain similar protection in the third country, if recognized. This poses an operative burden of how to secure protection abroad. The effectiveness of any system of protection would depend on its recognition at the international level, and not only in one or a few countries.

Operationalizing the system?

Issues such as examination and registration of landraces should be further analyzed. If a regime of protection for "landraces" based on the concept of breeders' rights were developed, it would require the establishment of administrative structures for examination and registration of protected materials, resulting in potentially high transactions costs for governments and users of the system.

Availability to potential beneficiaries

Another key issue is the extent to which a system of protection would actually operate in favor of its intended beneficiaries. If the requirements of novelty or uniformity under breeders' rights legislation were relaxed to allow for the protection of "landraces," greater benefits may accrue those who are well positioned technically and financially. For example, seeds and biotechnology industries are likely to gain more from a system based on breeders' rights than indigenous communities.

Enforceability

Availability of rights is useless if the system is not enforceable. Enforceability depends on the ease with which material can be copied and on the capacity to monitor the use and eventual infringement of rights. An additional problem is financing the potentially high costs of administrative and judicial procedures required to stop infringement and obtain compensation for damages.

There are a number of complex issues to be considered for the extension of breeders' rights protection to landraces. The eventual establishment of exclusive, monopolistic rights, as conferred under plant breeders' regimes may, moreover, be essentially incompatible with communities' cultures and practices. A possible alternative to this approach, based on a non-monopolistic means of protection, is described in the following section.

A sui generis regime

The adoption of a sui generis regime on indigenous/traditional knowledge is conceivably one of the steps that may be taken at the national level and internationally to deal with the issues described above. The review of the TRIPs Agreement by the year 2000 (as noted in article 71.1) may provide an opportunity for developing international minimum standards on the matter. One of the legal foundations for such a regime may be found in article 8 (j) of the Convention on Biological Diversity adopted in 1992. In accordance with said article, traditional knowledge must be promoted and made more widely available, but knowledge must be used by others only with the "approval and involvement" of the original holders of that knowledge and the communities concerned. Communities should receive a fair share of the benefits from the use of their knowledge (Government of India 1995).

The definitional constructs of the TRIPs Agreement dismiss the knowledge systems and innovations of indigenous communities and farmers (Nijar 1996b). Nothing in the TRIPs Agreement, however, prevents member countries from establishing other forms of intellectual property rights protection (or even to increase the standards of protection). What members cannot do is provide protection below the minimum standards set forth by the Agreement. Thus, members may provide for the protection of utility models, a modality of intellectual property rights that is suitable to the type of innovations that prevail in developing countries, which was ignored in the TRIPs Agreement. In fact, many developed countries (e.g., Spain, Germany, Japan) and a growing number of developing countries (e.g., Brazil, Mexico, Uruguay, Argentina) provide this type of protection. Similarly, nothing in the Agreement prevents member countries from expanding the concept of plant varieties that may be protected under breeders' rights, or from establishing new forms of protection for indigenous and traditional farmers' knowledge.

With regard to the extent to which such rights are established on a national basis, member countries that recognize such rights could not enforce them in other member countries that do not. The same occurs, in fact, with a patent obtained in country A that has not been registered elsewhere. The invention simply belongs to the public domain, except in country A. This is a result of "territoriality" principle as applied to intellectual property rights.

The "informality" (non-codified), cumulative and predominantly incremental, nature of innovation in the traditional knowledge system is not a unique feature of this system. These characteristics are also present in the research and development system. Though patent rights do not apply when the created knowledge is not novel and non-obvious, other means of intellectual property rights protection, notably trade secrets (or "undisclosed information") regimes allow for the protection of routine, non-novel, non-codified (tacit) unregistered knowledge. Further, secrecy does not need to be "absolute," and protection lasts indefinitely, until the knowledge loses its secret nature. Trade secrets protection may apply to knowledge with both actual or potential commercial value.

The paradigm of trade secrets protection, therefore, provides a model on which a sui generis regime for protection of some kinds of traditional knowledge may be based. In some cases, knowledge (e.g., shamans' knowledge of medicinal plants) may qualify for straight protection as "undisclosed information" if it has been kept secret and other conditions for protection are met. In most cases, however, the knowledge may have been diffused to other communities, and no measures may have been taken to protect it from disclosure. Whether this knowledge would have any commercial value or not is difficult to ascertain because commonness and market value of traits are inversely related.

Developing a sui generis regime, faces important problems, as stated in a declaration of the government of India at the World Trade Organization Committee on Trade and Environment (Government of India 1995):

New legislation and codes of conduct, including changes in the notion of "trade secrets" may be needed to ensure that the communities that are the source of this knowledge receive benefits from its exploitation. This is admittedly a difficult task since traditional communities do not usually have a legal identity and the knowledge concerned may not be confined to a single village or group, posing problems of deciding precisely who should derive the benefits and how (Government of India 1995).

A sui generis regime, if developed, should be applicable to all kinds of knowledge on biological materials held by communities, to the extent that such knowledge is not diffused outside said communities. It should cover knowledge on biological materials, including plant varieties, and on their production, use and conservation of this knowledge, which is possessed by indigenous or traditional farming communities (defined by national legislation).

Protection should not be based — as in the case of trade secrets — on an exclusive right (i.e., on an ius prohibendi). Protection should only grant the right to prevent knowledge of actual or potential commercial value, under the communities possession, from being acquired, used, or disclosed by others in a manner that is contrary to national rules on access or otherwise contrary to internationally accepted rules and practices of collection, transfer, and use of germplasm. The basic right should not be to prevent any third party (or another community) from the use of the protected knowledge if independently developed or otherwise legitimately obtained. Communities should, therefore, have the faculty to prevent knowledge of actual or potential commercial value, under the communities' possession, from being disclosed to, acquired or used by others without their prior informed consent in a manner contrary to internationally accepted practices of collection and transfer of germplasm.

"Internationally accepted practices" may be defined as those consistent with the Convention on Biological Diversity, the FAO Code of Conduct on the Collection and Transfer of Germplasm, and other international instruments developed in the future. In addition, to ensure that the rights of communities are not frustrated by the granting of patents or other titles on communities' knowledge, an effective sui generis should be complemented with a negative rule, according to which no intellectual property rights shall be conferred with respect to communities' knowledge, as described. In the case of infringement of this rule, the conferred title should be declared void, totally or partially, even in cases where the applicant did not know at the time of his/her application, that his/her claim was based on such knowledge. Knowingly or not, he/she was not the actual "inventor" and should not, therefore, benefit from a protection which rewards inventiveness and the contribution of new ideas to the pre-existing knowledge pool.

If a sui generis regime, as proposed, were established, national laws would be free to determine the means to ensure protection, including criminal and civil remedies, and how to empower communities to exercise their rights. The main features of a such a regime include:

• a definition of subject matter (knowledge, plant material), broad enough to cover any alteration, modification, or improvement, or a derivative which utilizes the knowledge of indigenous or traditional communities;
  
  
• a recognition of the informal, collective, and cumulative systems of
  
  
• innovation of indigenous peoples and communities;
  
  
• no requirement for novelty, inventiveness, or secrecy;
  
  
• no arbitrary time limit for protection;
  
  
• no registration, and therefore, no administrative structures;
  
  
• no obligation for communities' members to keep secrecy or change their traditional practices;
  
  
• a "non-monopolistic" provision of rights, which would permit the non-commercial use and exchange of germplasm within and among communities, and thus the legal possession and exchange of the same knowledge by different communities;
  
  
• freedom to determine, at the national level, remedies and sanctions in case of infringement.

The proposal outlined above does not solve all of the problems that arise in the attempt to extend protection to landraces and indigenous knowledge. Principal among the issues that remain are the determination of titleholder (who will exercise the rights?) and enforcement (how to ensure the respect of communities' rights and eventually stop infringement and obtain an economic compensation?). These are operative aspects that may be dealt with at the national level where there is a legitimate will to make progress on this subject. To ensure protection across national borders, the basic substantive rules should be adopted at the international level. The revision of the TRIPs Agreement in 1999 may provide such an opportunity.

Main conclusions

In situ conservation may be seen as a part of the world's plant genetic resource system. The knowledge and materials, including landraces, currently belong to the public domain. Indigenous/traditional knowledge is produced in accordance with patterns that present both differences and similarities with regard to the production of knowledge in the formal "science" and "technology" system. Though indigenous/traditional knowledge has economic value, it generally lacks a market or commercial value.

Intellectual property rights only apply to downstream activities, in different facets of agricultural activity. The extension of intellectual property rights "upstream" has both fervent proponents and detractors. If feasible at all, the application or development of a new title of intellectual property rights poses a fundamental question: should the basic conception of the intellectual property rights system (private appropriation of a public good) be extended to plant breeding of traditional farmers, or should their compensation be sought by other means, even if such means are based on market mechanisms?

The eventual development of new modalities of intellectual property rights for landraces presents numerous complex problems, particularly for the extension of plant breeders' rights to landraces. This implies the establishment of exclusive rights where free exchange has prevailed historically, in conflict with communities' cultures. If a form of protection for communities' knowledge, including landraces, is to be designed, a fundamental issue is defining the rationale and purpose of any future protection mechanism. A protection mechanism, whatever its nature and scope, is an instrument to attain certain socially valuable objectives and should appropriately balance the different interests at stake. Such objectives may include, inter alia, rewarding communities for past and present contributions; compensating farmers for non-conversion from traditional to modern varieties; and ensuring the sharing of benefits derived from the use of communities' knowledge. These objectives, if attained, may further the more general objective of enhancing in situ conservation of plant genetic resources.

The approach suggested in this chapter is based on the establishment of a "non-monopolostic" sui generis regime, inspired by trade secrets protection, whereby no registration would be necessary; all communities' knowledge of actual or potential commercial value may be protected against appropriation by non-legitimate means. Though many elements of such a regime would be determined at the national level, its recognition at the international would provide the necessary geographical coverage in order to ensure the effectiveness of the regime.

Notes

1. This is an exception generally allowed under breeders' rights regimes, which permits farmers to reuse, in their own exploitation, the seeds obtained from the utilization of protected varieties.

2. For example, in Latin America, Argentina, Chile, Mexico, Uruguay, and the Andean Group countries (Bolivia, Columbia, Ecuador, Peru, and Venezuela) currently recognize breeders' rights. Draft legislation is under consideration in several other countries, such as Brazil.

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