We have largely confined ourselves to practical recommendations, for two reasons. Firstly, the CGIAR has to deal with an existing situation, rather than an ideal one. Secondly, while we have been able to reach a fair measure of agreement over what should be done in the existing situation, we disagree markedly as to what an ideal situation should be.
We have debated such questions as to whether the CGIAR should campaign against all intellectual property on life-forms, or whether it should promote extension of IP to promote innovation, transfer and adoption of useful technologies. These are not issues that our Panel can hope to resolve, though we think it worth while to set out some of the positions below, particularly as some aspects of them may be unfamiliar to some readers.
The Panel did not debate the Convention on Biological Diversity (CBD), but notes that, in addition to the benefit-sharing issues mentioned by Dr. Juma in Appendix D-2, the CGIAR has a vital role in helping to stem the dangerous pace of genetic erosion worldwide by aiding in the implementation of CBD Articles 8 and 9, the in situ and ex situ conservation of biodiversity, which include agricultural biodiversity. The in situ and ex situ conservation of agricultural biodiversity are mutually interdependent, and both are linked to the continuation of cultural diversity, which is addressed by CBD Article 8J calling for the protection of the traditional practices relevant to biodiversity of indigenous and local communities.
Though such issues are unresolved, this does not mean they are unimportant. To stimulate the debate, and reinforce the claims of agriculture on the world stage, a number of the Panel members believe the CGIAR has a unique opportunity to act in world councils as a voice for the poor. The CGIAR needs to carry the debate forward in appropriate committees, arrive at considered conclusions and present these to international bodies such as TRIPs, the CBD. the Food and Agriculture Organization of the United Nations (FAO), the World Intellectual Property Organization (WIPO) and UPOV, using its concrete experience, and its moral authority as an international public institution serving the poor.
The unresolved issues are illustrated by three divergent viewpoints, as presented below.
Some Panel members believe strongly that advanced biotechnology and the development of transgenic crop varieties are central to the goal of increasing food production in developed and developing countries, and that only in the context of strengthened intellectual property regimes will these proceed efficiently. On this basis, they conclude that at least some of the IARCs ought to increase their own activities in these areas and ought actively to seek access to the proprietary science of others and to make it available, with due intellectual property protection, to their clients. This would call for substantial increases in the capacities of the CGIAR and its centres to gain access to and to manage proprietary science.
In addition, from this perspective, the strengthening of intellectual property rights, and the promotion of the 'intellectual property paradigm' more broadly, is something which the CGIAR can and ought to encourage. In this view, this will help to create the context of incentives and regulations that is necessary for the advance of agricultural research by the private sector and for the distribution of the benefits of proprietary science via international markets, as well as, to a lesser degree, via the CGIAR and other public institutions. Failure to extend IP, or (worse) weakening of existing rights, will not increase exchange of germplasm or transfer of technology, but rather will inhibit it. Proprietary technology will not disappear, but be protected in other forms (e.g., trade secrets) which are much more inimical to widespread dissemination than patents or plant variety rights.
In this view, the CGIAR should support the extension of IP under TRIPs and campaign against proposals for 'universal exhaustion' 13 of patent rights, which will prevent commercial owners from segmenting markets.
13 "Exhaustion" of the patent right takes place when a product is lawfully sold under the protection of a patent. The buyer is free to use it and sell it on, because the patentee has had his profit. Typically, the buyer only has this right in the country where the product was sold: but under 'international exhaustion' the buyer may sell anywhere.
For one statement from this viewpoint, see Appendix D-7.
Proponents of this view consider that it would be sensible for the CGIAR to seek to develop 'bargaining chips' from protection of the Centres' improved germplasm. To protect this, plant variety protection is most appropriate, but only available if Centres release finished lines, rather than breeding material.
Some who hold this view are gravely concerned about the idea of the CGIAR acting as a 'voice for the poor'. They believe this would inevitably polarise the CGIAR's supporters; put at risk its scientific credibility; and undermine its ability to continue its enormously valuable technical contribution to the welfare of the poor.
In this view the primary work of the CGIAR is achievable for the most part without a major shift of emphasis toward the use of proprietary science. From this perspective, the increasing use of proprietary property in agricultural research and development is a fact of life, whether regrettable or beneficial, to which CG centres need to adapt; and use, insofar as possible, to further their missions.
However, in this view, the very substantial costs of increasing CGIAR capacity to manage intellectual property must be weighed carefully against potentially competing needs of an arguably underfunded CGIAR system. Even more worthy of careful comparison with the foregone benefits of alternative uses of CG resources would be the costs to IARCs of seeking and defending greatly expanded protection of their own innovations, whether to prevent their appropriation by private claimants, although such 'defensive' protection should be sought in some cases, or for use as 'bargaining chips' to obtain the proprietary science of others.
Those who adopt this viewpoint typically feel the proper scope of patents is limited to commercial activities and are concerned that research activities are being unreasonably inhibited. They therefore consider that it would be worthwhile to campaign for a clearer definition of the 'research exemption' under patent law. They also agree with Viewpoint 1, that the CGIAR should campaign against proposals for "universal exhaustion".
A third view considers that the most 'advanced' agricultural science, and that most central to the CGIAR mission of alleviating hunger and poverty and serving the majority of farmers, is not 'industrial' biotechnology and the development of transgenic plant varieties. Rather, it is the better understanding, improvement, and adaptation to various developing country conditions of sustainable, diversity-based agricultural systems, and the related management of genetic, crop, soil, and other agricultural resources. Such science does not exclude the use of biotechnology, but calls for a process-driven approach involving high inputs of local knowledge and the fruits of participatory research. In this view, the CGIAR's comparative advantage will lie increasingly in this area, and becomes even more important in the context of the larger trend toward the privatization of research institutions world-wide and the growing influence of private, product-oriented, market-led, profit-driven priorities on the research agendas of public institutions. The CGIAR need not become involved with proprietary science: it should only make research investments in technologies that the private sector is not investing in, and for which the only 'market' is the poor.
From this viewpoint, the proliferation of intellectual property rights and the 'intellectual property paradigm' is in itself a barrier to accomplishing the CGIAR mission because:
(i) Proprietary claims frequently entail the private appropriation of the values of crop varieties and technologies, developed by farming communities or by public institutions, by others whose contribution to the improvement of the plant materials or process is minor or nil;(ii) Proprietary claims can and already do inhibit the open exchange of biological materials and traits, and impede the sharing of scientific and traditional knowledge, and can thus have a chilling effect on innovation and creativity at the local, national, and international levels. This is detrimental to the goal of improving the well-being of those unable to afford to purchase privatized technologies, varieties and their products (poor consumers and small-scale farmers) as well as to the effectiveness of researchers in beleaguered public institutions working on their behalf; and
(iii) The broadened application of intellectual property to agriculture already shifts research and extension agendas in the direction of products that are profitable in larger-scale markets and/or produced by large transnational firms. This process accelerates the replacement of diversity-based farming systems, and eco-social contexts in which they survive, by monocultures and increased uniformity, both genetic and cultural, at the expense of diversity.
In this view, the CGIAR should point out the degree to which the increased use of intellectual property impinges on the CG system's ability to carry out its mandate, and the negative consequences of the standardised implementation of the TRIPs accord. It should actively oppose its possible extension to include requirements on all nations to extend uniform patent protection to plants and animals or to otherwise reduce the scope for the formulation and implementation of sui generis intellectual property regimes. (See Appendices D-5 and D-6). It should work in concert with others to establish an alternative IPR regime that will enable it to conduct its historic mission of making freely available varieties to the poor and to developing countries.
For one statement from this viewpoint, see Appendix D-6.
