Ownership of Plant Genetic Resources
7.1. CENTERS OF ORIGIN
7.2. THE CONCEPT OF GENE POOL
7.3. GENETIC VULNERABILITY
7.4. GERMPLASM CONSERVATION
7.5. GERMPLASM UTILIZATION IN PLANT BREEDING
7.6. OWNERSHIP OF PLANT GENETIC RESOURCES AND THE EFFECTS OF OWNERSHIP RIGHTS ON PLANT BREEDING
by Emily C. Pierce
As the demand for agricultural productivity continues to rise, there is an increasing pressure on plant breeders to develop new varieties that are higher yielding and able to produce in more challenging environments. The world is not only facing rapid population growth, but also a dwindling supply of water and arable land. It is the responsibility of plant breeders to develop cultivars that are capable of higher yields with limited resources. In order to do this, breeders rely on plant genetic resources to introduce desirable traits (Smale and Day-Rubenstein, 2002). Plant genetic resources are the functional units of heredity found in plants that are actually or potentially valuable (Fowler, 2001). These resources include wild relatives and landraces as well as commercial varieties that can serve as the platform for further improvement (Le Buanec, 2005). Without these plant genetic resources, breeders would struggle to find sources of new traits. Because environmental and biological challenges are constantly evolving, breeders cannot predict what resources they might require in order to meet the needs of the future. Therefore, it is important that a diverse collection of plant genetic resources is well preserved, and that these resources remain accessible to breeders (Smale and Day-Rubenstein, 2002).
Although plant genetic resources were traditionally regarded as being the common heritage of mankind, there has been a shift towards awarding property rights to these resources and restricting their availability. There is a possibility that such restriction could hinder the efforts of plant breeders. However, property rights can help to stimulate interest and innovation in plant breeding due to monetary incentives. How society decides to deal with the complex issues surrounding ownership of plant genetic resources will strongly influence how plant breeding is carried out in the future.
7.6.1. THE NEED FOR EXCHANGE OF PLANT GENETIC RESOURCES
The open use of agricultural genetic resources has historically played an important role in breeding to create plants with a diverse range of desirable characteristics (Roa-Rodríguez and Van Dooren, 2008). The genetic variation that breeders need to introduce these characteristics is often available only through the exchange of plant genetic resources. This exchange is necessary because some areas of the world, especially the centers of origin for crop species, have richer resources of genetic diversity. These resources have thus frequently moved between countries (Falcon and Fowler, 2002).
Crop genetic resources are a combination of the efforts of many people over many years, and thus in the past these resources have been exchanged as part of a common heritage that belongs to the public rather than to any single person or group. The concept of common heritage is a logical consequence of the inherent nature of plant genetic resources, which are easily transported and reproduced (Brush, 2007). This relatively unrestricted transfer of diverse genetic materials has allowed crops that are major food sources worldwide to travel far from their origins. The majority of crops that some countries now rely on are not indigenous crops, but have been introduced by this free exchange (Falcon and Fowler, 2002). Free exchange of plant genetic resources has therefore played an important role in supplying food for the world in the past, and this need is only increasing. Research has also shown that crop breeding programs in developing countries, where much of the increased food need is concentrated, are especially dependent on international germplasm exchange programs (Brush, 2007). Not only do plant breeders need a wide base of genetic resources to meet the world’s needs, but individual farmers also rely on these resources to ensure their own food security (Cooper, 2002).
Plant genetic resources have also become increasingly important as informational goods rather than as tangible goods. Although tangible plant genetic resources such as seeds have been important in the past, the genetic information that codes for the inheritance of certain traits is now of greater importance to plant breeders. These informational resources are becoming increasingly valuable, and their exchange is necessary to facilitate future innovation (Roa-Rodríguez and Van Dooren, 2008).
7.6.2. REASONS FOR INCREASED RESTRICTION OF PLANT GENETIC RESOURCE EXCHANGE
Although plant genetic resources were previously regarded as the common heritage of mankind, this is no longer the case. The recent trend has been a shift towards ownership claims that lead to a restriction of open access (Le Buanec, 2005). This restriction is not necessarily negative. One of the reasons for awarding property rights is to provide incentives to individuals or groups to participate in plant breeding, which should lead to more investment in breeding overall (Thiele-Wittig and Claus, 2003). Some other factors causing this shift in thought are related to the development of biotechnology and the ability to transfer genes; these advances have led to legislation that grants patents for many types of biological materials. The awarding of these patents is in stark contrast to the traditional free access to wild relatives and landraces. In the 1970s, the Plant Variety Protection (PVP) Act in the United States gave breeders of new varieties a protection similar to that that a patent would provide, given that the variety was somehow different from current varieties and was reproducible. However, PVP protection does not prevent the use of the protected variety in breeding programs. Following a court case that made a genetically modified microorganism patentable, there was a rush of patent applications for biotechnological “inventions.” Intellectual Property Rights were granted for genes, molecular constructs, and traits. These events led to increasing concern that plant genetic resources currently available for use by the public might become patented and inaccessible. Countries have responded to this concern by trying to claim materials that have traditionally belonged to the public and by limiting international agreements that allow access to these materials. This could put public germplasm collections at risk if fewer resources are part of the public domain. The increase in Intellectual Property Rights involving plant “inventions” has also led to a large increase in the merging of small companies into a few large applied biological science firms. These firms have a significant number of patents on plant genetic resources and control seed distribution, making it difficult for new genetic resource development companies to survive. These patents also make it difficult for research institutions to access these resources (Falcon and Fowler, 2002).
Another cause in the decline of the use of common heritage is that some countries associate this concept with imperialism. This perception is a result of the imbalance between the free flow of genetic diversity from developing countries where it naturally occurs and the subsequent sale of products derived from these resources by developed countries back to the developing countries for a profit (Le Buanec, 2005). This imbalance between the free flow of genetic resources from some countries and the high price of improved cultivars under patents/plant variety protections from others has led to an increase in political tensions. The controversy has arisen because although plant genetic resources that have been worked with and made distinct are eligible for PVP, the raw materials are not. This led to a situation in which countries whose inhabitants had developed germplasm over many years were giving this germplasm away under the common heritage rule, but were then having to buy the protected varieties created from this germplasm (Roa-Rodríguez and Van Dooren, 2008). There is a strong perception that developed countries have taken advantage of developing countries. The increase in Intellectual Property Rights for biological materials exacerbated this situation. Developed countries claimed ownership over genetic resources provided by developing countries, and developing countries lacked the appropriate means to acquire any reward for their contributions (Falcon and Fowler, 2002). As developing countries became aware of the economic value of their genetic resources, they began fighting to restrict access to these resources. Conflict has therefore arisen because although there is a trend towards patenting biological materials and improved cultivars, the groups holding these patents still want to have free access to the genetic resources that can be used to create or improve these cultivars (Rodríguez and Van Dooren, 2008). The common heritage idea has therefore declined to some degree due to the unidirectional nature of the flow of unimproved plant genetic resources from areas naturally rich in biodiversity (Falcon and Fowler, 2002).
7.6.3. POLITICAL DEVELOPMENTS IN THE STRUGGLE FOR OWNERSHIP OF PLANT GENETIC RESOURCES
In order to fully understand the debate over ownership of plant genetic resources, it is important to have some knowledge of the legislative attempts that have been made to settle these issues. Legislation regarding ownership of plant genetic resources can be traced back to 1930, when the United States passed the Plant Patent Act, which gave protection to vegetatively propagated crops. As the breeding industry became more commercialized, there arose a need for some form of regulation of plant genetic resources on an international level. This led to the International Convention for the Protection of New Plant Varieties (UPOV) in 1961. One important outcome of this convention was the establishment of Plant Breeders’ Rights, which gives ownership of sale and marketing rights of new commercial plant varieties to the breeder. Another significant effect of this convention was that it provided a way to remove plant genetic resources from common use. In 1970, the United States provided protection equivalent to that of the UPOV with the Plant Variety Protection Act. Plant Variety Protection systems do provide exemptions to breeders for further research and to farmers so that they can save seed if they are using it on their own land (Roa-Rodríguez and Van Dooren, 2008). This is in contrast to utility patents. Following a Supreme Court decision in 1980, living organisms are eligible for these patents, which do not include a “Breeder’s exception” to allow use of patented material in breeding programs (Le Buanec, 2005). The main difference between utility patents and plant patents or plant variety protection is the scope of the protection. Plant patents and plant variety protections are narrower and are variety specific. On the other hand, utility patents, which are much more difficult to obtain, protect the use of inventive concepts and are thus able to protect more than one variety containing these concepts. Utility patents are much broader in scope, but also require a lot of time and money to acquire (Williams, 1986). This could put public research entities at a disadvantage if they do not possess the legal or financial resources that a large corporation would to obtain this kind of patent. The differences between plant patents, utility patents, and plant variety protection are summarized in Table 1 (Williams, 1986).
In 1983, the Food and Agriculture Organization of the United Nations organized the International Undertaking on Plant Genetic Resources agreement, which attempted to negate some of the consequences of the ability to obtain patents on living organisms. The undertaking tried to return to the idea of common heritage and hoped to promote cooperation among nations in the use of plant genetic resources (Cooper, 2002). It also spelled out the concept of Farmer’s Rights (Roa-Rodríguez and Van Dooren, 2008), which aim to minimize individual ownership of plant genetic resources (Van Overwalle, 2005). Farmer’s Rights also include the idea that farmers should receive compensation from a general conservation fund for their role in developing plant resources. Unfortunately, participation in this agreement was voluntary and little progress was made (Aoki and Luvai, 2007). In 1992, the Convention on Biological Diversity met in a political climate of tension regarding the unequal exchange of plant genetic resources and biodiversity. Developing countries felt a need to protect their resources from exploitation, and thus the convention replaced common heritage with a philosophy of national sovereignty. Since this convention, countries have been racing to make laws positioning themselves as the suppliers of genetic resources and restricting access to these resources. Under this system, negotiations for the transfer of genetic resources must go through the country of origin (Falcon and Fowler, 2002).
In 1994, the Food and Agriculture Organization began negotiations to implement a legal agreement regarding ownership of plant genetic resources. In 2001, the International Treaty on Plant Genetic Resources for Food and Agriculture was created (Falcon and Fowler, 2002). The treaty took over seven years to complete, because of the challenge of respecting the rights of national sovereignty over resources while also ensuring that these genetic resources are accessible (Cooper, 2002). This treaty aims to create a multilateral system in which countries cooperate to allow access to resources to other countries in exchange for a portion of the profits made from anything incorporating these genetic resources. This money will be put into an international fund that will be used in projects such as germplasm conservation, etc. (Falcon and Fowler, 2002). The access to resources is based on terms agreed upon by both parties and the country must provide informed consent (Cooper, 2002).
This treaty may help to facilitate transfer of resources, but it still has some drawbacks. Although it covers most major crops, a few important crops, especially those important in developing countries, are not included because countries thought they might profit more from not including these crops and selling the resources through another avenue. For example, China withheld soybean, which is an important crop worldwide (Falcon and Fowler, 2002). Developing countries suffer the most as a result because they are more likely to lack the resources to obtain plant genetic resources that are not included in this system. Excluded crops will likely be transferred based on national sovereignty, which could make access more restricted. On the other hand, this treaty does back up the international status of the valuable collections held by the Consultative Group for International Agricultural Research (CGIAR). The CGIAR centers have some of the best collections of genetic resources, including resources of regionally important crops, and the materials are freely available upon request (Falcon and Fowler, 2002). The Convention on Biological Diversity did not specifically address the ownership of these collections, and there was a legitimate concern that countries might demand the return of germplasm or restrict its distribution on the basis of national sovereignty. This would have meant fewer plant genetic resources available for plant breeding. However, the Food and Agriculture Organization signed agreements in 1994 to establish these collections as “in-trust.” Under these agreements, the CGIAR centers do not own the collections, but are responsible for their upkeep and distribution. These agreements prevent anyone from seeking Intellectual Property Rights over the germplasm in the CGIAR centers. This was an important step in ensuring that these vital collections remain accessible (Gotor et al., 2010). The treaty also includes measures to work towards the sustainable use and conservation of plant genetic resources (Cooper, 2002). Despite its flaws, the International Treaty on Plant Genetic Resources for Food and Agriculture does attempt to provide some regulation to germplasm transfer and could prevent the creation of unnecessarily restrictive national legislation (Falcon and Fowler, 2002). Lastly, in the Trade-Related Aspects of Intellectual Property Rights agreement, which came into force in 1995, developing countries agreed to try to create an Intellectual Property Rights system but also maintained the right to not allow patents on plants, animals, and biological materials (Gepts, 2004).
7.6.4. POSSIBLE CONSEQUENCES OF THE RESTRICTION OF PLANT GENETIC RESOURCE EXCHANGE
The restriction of plant genetic resource flow has the potential to prevent the movement of germplasm between nations. As mentioned previously, most countries depend on genetic resources from other countries. Legal measures restricting the continued exchange of this material will thus be detrimental to all countries.
One consequence of the struggle for ownership rights is that national sovereignty over plant genetic resources has led to the creation of overly restrictive laws in some countries. Benefit-sharing can also lead to an increased emphasis on monetary benefits. On the whole, this can lead to a decrease in access and a decrease in collections of plant genetic resources (Roa-Rodríguez and Van Dooren, 2008).
The ability to obtain patents on biological materials also has consequences on plant breeding. Patent law helps to provide motivation to invent and commercialize new products by protecting the inventor from competition for a period of time (Van Overwalle, 2005). It also encourages investment in plant genetic resources and the creation of companies participating in this area of research. Because the budgets of public research institutions are increasingly tight, it is important to have plant breeding research in the private sector. Intellectual Property Rights are needed to encourage private investment (Srinivasan, 2003). In addition, the high-cost and high-risk nature of plant biotechnology research makes this financial incentive even more important (Figg, 1995). However, patenting of biological materials also inhibits the freedom of others to use the most improved germplasm. Because most patents occur in developed countries, this could put developing countries at greater disadvantage (Falcon and Fowler, 2002). In addition, farmers need plant genetic resources in order to adapt to changing conditions, and removing their access to these resources through patents might limit the role of farmers in developing diversity in the future (Eyzaguirre and Dennis, 2007). Additionally, because patents are valid only in the nation that issues them and many countries lack patent laws for biological materials, trade might be further restricted if patent holders do not want to release their materials into an area where they will not be protected (Falcon and Fowler, 2002). Patents might also lead to less breeding research involving traits for which there are many patents for fear that the outcomes of the research would fall under patent claims. There might also be a decrease in funding for breeding research that will not be patentable (Correa, 1995).
Another important consequence of removing the common heritage philosophy is increased cost in obtaining resources. Increased transaction costs due to ownership rights could put poor countries even further behind because of their inability to access the protected materials and technologies (Falcon and Fowler, 2002). The developing countries of the world, despite the fact that most of them are located in genetically diverse regions, are now the largest borrowers of plant germplasm. These countries are dependent on seed banks in developed countries, but access is increasingly difficult now that the common heritage system is disappearing (Aoki and Luvai, 2007). Less informed rural populations are also less likely to have the resources to claim ownership, and thus might lose access to germplasm (Eyzaguirre and Dennis, 2007).
Lastly, it is important to note another aspect of the issue of plant genetic resource exchange: the role of traditional communities and their knowledge. These communities protect the biodiversity of wild relatives of crop plants because they recognize the communal good that comes from possessing many varieties (Eyzaguirre and Dennis, 2007). The common heritage philosophy is common in these communities and seed is frequently exchanged (Brush, 2007). An increase in private ownership of germplasm could be harmful to this system, because if plant genetic resources are not freely traded, it makes less sense to maintain these wild relatives for the public good. Improvements in plant genetic resources are also the result of community efforts, which makes it impossible to assign property rights. Private property rights are not in sync with the traditional structures that have maintained plant genetic resources in the past, and thus traditional knowledge may not receive the compensation that it deserves (Eyzaguirre and Dennis, 2007).
The access to plant genetic resources has been a vital part of plant breeding and the development of modern agriculture. Although property rights on plant genetic resources can serve a purpose, the trend towards increasing legal restriction on this access could be detrimental if breeders are unable to use the best germplasm available in their breeding programs. This restriction could be especially threatening to breeding programs in developing countries that are now net importers of plant germplasm. This conflict is complex, and negotiations over ownership rights are ongoing. It will no doubt be challenging to find a solution that meets the needs of all groups involved.
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