Intellectual Property Rights and the Politics of Food - The Oxford Topic of Food, Politics, and Society - page 384

(a) The Center shall hold the designated germplasm in trust for the benefit of the
international community, in particular the developing countries in accordance with
the International Undertaking on Plant Genetic Resources and the terms and condi-
tions set out in this Agreement.
(b) The Center shall not claim legal ownership over the designated germplasm, nor
shall it seek any intellectual property over that germplasm or related information.
In 1994 FAO launched intergovernmental negotiations for revision of IUPGR so that
it could be made a legally binding treaty and its provisions could be harmonized with
CBD. After many rounds of negotiations, in 2001 the International Treaty on Plant
Genetic Resources for Food and Agriculture (ITPGR) was signed. ITPGR affirmed
farmers' rights; one of its objectives was to create a multilateral system (MLS) for facili-
tating access to, and sharing of, plant genetic resources. ITPGR came into effect in 2004
and established a “multilateral system of access and benefit sharing” for sixty-four spe-
cifically identified crops and forages. ITPGR has a long way to go to fulfill its objectives
as there are many unresolved issues, but it is considered an important step in global
efforts to conserve and share plant genetic resources.5
Thus in the course of two decades the status of plant genetic resources changed dra-
matically. Negotiations and treaty-making have resulted in plant genetic resources
that are today subject to the provisions of more than one agreement or treaty, and they
are dealt with by overlapping regimes (CBD, UPOV, TRIPS, and ITPGR). As a result,
inconsistencies and tensions have emerged even as attempts are made to achieve global
harmonization. The picture gets more complex when nations implement the provisions
of CBD and TRIPS in many different ways. The legal status of plant genetic resources
has undergone major changes since the 1980s, resulting in the demise of the Common
Heritage approach and the increasing use of intellectual property rights. As a result, the
North- South divide on access to, and utilization of, genetic resources continues to be
a contentious issue in many international for a, including the WTO, CBD, and ITPGR.
Though the Common Heritage approach is no longer in favor, open-source oppor-
tunities and conceptualization of plant genetic resources as a global commons, as well
as sharing under licenses based on copy left principles, are now discussed as options
that could strike a balance between the free for all that characterizes the Common
Heritage approach and the proprietary norm of intellectual property rights. In fact,
ITPGR itself creates a sort of commons in plant genetic resources with regulated access
and benefit-sharing principles.6 This does not mean free for all access. Rather, it calls
for appropriate institutional mechanisms to develop, protect, and promote commons in
PGR. The development of licenses is one important issue; the extent to which the gen-
eral public license (GPL) or its core principles could be applied for developing relevant
licenses in the case of plant genetic resources has yet to be addressed. This approach uses
intellectual property rights not to enclose or to monopolize but to share, exchange, and
facilitate further innovation.7 Development of commons in plant genetic resources can
be useful for public-sector institutions to work together; they can use the open inno-
vation model to develop new plant varieties and release these varieties under licenses