Introduction
Increasingly knowledge, and its application, is becoming proprietary. This impacts on all research and development. The CGIAR has always aimed to produce-international public goods, available freely for all to use. How should the system respond to these changes in the management and application of knowledge?
Proprietary rights, in agricultural biotechnology and equally in germplasm are being claimed by both private firms and public institutions. They include patent rights; plant variety rights; and contractual rights arising from material transfer agreements (MTAs). There are also other rights, as yet not so clearly defined as intellectual property: obligations imposed (or to be imposed) by the CBD; Farmers' Rights; and traditional resource rights. We term these "alternative rights regimes".
Our Panel, to advise on these matters, was deliberately constituted with a range of expertise and viewpoints. Because our views differ strongly, we can neither endorse the current systems of rights nor oppose them. The same goes for biotechnology: generally, or in specific applications. But we have been able to agree on some practical steps that the Centres should now take.
The Panel's Work
Our mandate assumes that Centres may want to use at least some proprietary technology. To find out more, we made some brief surveys
· To what extent are CGIAR mandated crops already affected by proprietary claims? We surveyed the broad pattern of trade in harvested crops between developed and developing countries.· What are Centres doing already? We polled seven of the Centres about their detailed use of proprietary science.
· Will owners make their proprietary science available? We asked some owners of proprietary agricultural biotechnology (private companies and universities) about their willingness to license their technology to the CGIAR and its clients.
Proprietary Science of Others
We are concerned by the results of our poll of Centres. In nearly half the cases in which the Centres were using proprietary biotechnology, they were uncertain whether the results of their research could be applied freely (or at all). In such cases, the process or product used was believed covered by a patent, in at least some countries: or material (germplasm or vectors) used had been obtained under an MTA for research use only. Use by the Centres' clients of the results of such research may only be possible with the permission of the owners of the technology, in such countries and under such conditions as they allow. Without such permission, the Centres, or their clients, may be sued.
These cases need professional investigation, to check if there is a problem and to help resolve it. Even if their own actions are lawful, Centres cannot release material which may be subject to constraints on use without, as a minimum, warning recipients fully of possible problems. Also, lack of experience in IP hinders the Centres in obtaining access to proprietary technology. Centres must have access to skilled professional advice on intellectual property: we recommend setting up a central function to offer this service. This will be a significant expense.
Access to Proprietary Science
Will owners of intellectual property be prepared to make it available for the use of the poor? In our very limited survey, they said they would. We cannot take this encouraging response at face value. Owners will hardly act against their own interests. However, some factors give hope. There are reasons why owners may benefit from licensing their technology, even at no cost (demonstration of the technology, creation of demand, provoking introduction of regulations, development of partnerships). Owners will not license, however, where losing control of the technology damages them, technically or financially. Ability to segment markets is crucial. The CGIAR cannot hope to acquire rights to technology for use on behalf of the poor, if the resulting products then compete in commercial markets, forcing prices down.
Proprietary Science of Centres
The Agreements between FAO and the CGIAR oblige Centres to exclude intellectual property protection over "in trust" germplasm, so no question arises about this. However, developments may, and sometimes should, be protected. The overriding principle here is that such protection should only be applied for if it furthers the mission of the CGIAR, and subject to the proviso that such developments must be accessible, and if possible delivered, to the poor.
Subject to this overriding requirement, there are several situations in which protection might be appropriate. We discuss these. We do not believe that generating income should ever be the main reason for seeking protection. Some of us believe that it will sometimes be appropriate to protect 'bargaining chips'.
After discussing the appropriate IP policy for Centres, we reviewed the existing policy. Most of us find it broadly in line with our conclusions, though with some differences in emphasis.
Organisation
We suggest how the CGIAR centres should organise themselves to receive intellectual property advice from a central IP function. The long-term aim will be to develop complementary expertise in individual Centres. The central function must report at a high level, to give it support for implementing difficult decisions.
Implications
We have not been able to reach consensus about implications of our findings. We list some options. Some think that the CGIAR system should seek to influence policy at world level. In TRIPs and the CBD the needs of poverty alleviation, food production, food security, and the conservation of agricultural biodiversity may not get the emphasis they deserve. The CGIAR should be a voice for agriculture, and a voice for the poor. Others doubt whether the CGIAR can reach persuasive conclusions on policies to be followed, and are concerned that such intervention may damage the CGIAR's ability to give the poor technical help.
