Intellectual Property Rights and the Politics of Food - The Oxford Topic of Food, Politics, and Society - page 382

At the 1981 FAO biennial conference, developing nations called for drafting a legal
convention on plant genetic resources; this was opposed by developed countries. In 1983
FAO established a Commission on Plant Genetic Resources for Food and Agriculture
(CPGR). The CPGR adopted the International Undertaking on Plant Genetic Resources
(IUPGR) that same year. IUPGR is a nonbinding agreement that dealt with rules and
standards for conservation and exchange of plant genetic resources. It was based on
the position that plant genetic resources are the “common heritage of mankind.” Plant
genetic resources subject to the IUPGR included plant varieties and elite breeding lines;
it treated traditional landraces, wild plants, and commercial plant varieties protected by
plant breeders' rights to be on the same footing.
This position was contested by the United States and some European govern-
ments, which argued that this position conflicted with the International Union for the
Protection of New Varieties of Plants (UPOV) Convention and national patent laws.
IUPGR was a nonbinding undertaking; nevertheless, its position was considered con-
troversial because it did not differentiate between “raw” germplasm and “modified/
improved” germplasm. While the former was considered to be a product of nature and,
hence, could not be subject to the grant of intellectual property rights, the latter could be
subject to intellectual property protection through patents and/or plant breeders' rights.
The controversial position of treating plant genetic resources as the “common heritage
of mankind” was based on the principles of open access and reciprocity, which had gov-
erned the international transfer, exchange, and storage of plant genetic resources. A use-
ful summary is provided by Brush (2004, 221-222):
Common heritage refers to the treatment of genetic resources as belonging to the
public domain and not owned or otherwise monopolized by a single group or inter-
est. Common heritage is similar to common property regimes that anthropologists
and other social scientists have described for nonmarket economies. Neither com-
mon heritage nor common property implies lack of rules ( res nullius ). . . . Rather they
imply community management ( res communes ) that involves regulated access to
common resources and reciprocity among them.
Critics of this approach pointed out that developed nations had used this open-access
model throughout history to justify free transfer of plant genetic resources for devel-
opment, and they had simultaneously granted plant breeders' rights and patents on
“improved/modified” germplasm—in effect, privatizing open-access genetic commons.
This put developing nations in a doubly disadvantageous position as they benefited nei-
ther from the Common Heritage approach nor from the grant of intellectual property
rights on plant varieties and seeds.
As developing nations were also the centers of origin for many crops, it was claimed
that the “gene rich” South contributed to the development of agriculture and industry
in the North through transfer of plant genetic resources, but they did not gain anything
in return. Most of the gene banks were in developed nations, and the North benefited
greatly from the transfer of germplasm. But interdependency among the regions of the
world in plant genetic resources was an undisputed fact; both North and South benefited