Rights to plant genetic resources and traditional knowledge/ edited by S. Biber-Klemm and T. Cottier

Contributors
Preface and Acknowledgements
Abbreviations
Introduction
I. A New Regulatory Field
II. Goals and Basic assumptions
III. The Current Legal Status of Plant Genetic Resources
IV. Policy Measures Submitted
A. A Multiple Approach Required
B. The Protection of Assignable TK (TIP Rights)
C. Reform and Novel Uses of Existing IPRs: Patents and Plant Breeder's Rights
D. The Protection of Non-Assignable TK and PGRFA
E. Support of Trade in Products Resulting from the Use of Traditional PGRFA and TK
F. Tariff Measures Facilitating the Exportation of TK related Products
V. Conclusions
Part 1 GENERAL FRAMEWORK
Chapter 1.Problem and Goals
Susette Biber-Klemm and Danuta Szymura Berglas
I.. Biodiversity and Traditional Knowledge: Factual Background and Problems
A. Introduction
B. Biodiversity
1. Terminology
2. Characteristics of Plant Genetic Resources
3. Distribution and Origin of Biological Diversity
4. The Value of Biological Diversity
5. The Loss of Biological Diversity
6. Conclusion
C. Traditional Knowledge
1. Introduction
2. Terminology and Characteristics
3. Value of Traditional Knowledge
4. The Loss of Traditional Knowledge
5. Conclusion
D. Conservation and Sustainable Use of Biodiversity and Traditional Knowledge: The
interface with Trade
1. Introduction
2. Economic Failure as reason for the loss of Biodiversity and TK
3. Supporting Conservation and Sustainable Use of Biodiversity and TK:
Financial Aspects
4. The creation of incentives: The CBD-discussion
5. Conclusion
II. Goals of Instruments and Measures to Protect Traditional Knowledge and Plant
Genetic Resources: Basic Principles and Ethical Reflections
A. Introduction
1. In General
2. Goals as laid down in international legal instruments concerning genetic
TK resources
B. Equity and Fairness
1. Introduction
2. Legal sources in the biodiversity context: Conventions and Soft Law
3. Equity
4. Fairness
5. Conclusions
C. Sustainability
General: Term and Interpretation
The Particulars of Biological Diversity and TK with a View to Sustainabale Use and
Development
D. Food security and basic health care
1. In general: theoretical background
2. Food Security
3. Health Care, Medicinal Care, Traditional Medicine
E Conclusion
Chapter 2.The Current Law of Plant Genetic Resources and Traditional Knowledge
Susan Biber-Klemm, Thomas Cottier, Philippe Cullet and Danuta Szymura
Berglas
I.. Introduction
II. Permanent Sovereignty over Plant Genetic Resources
III. International Agreements and Institutions
A. The Convention on Biological Diversity
B. The International Treaty on Plant Genetic Resources for Food and Agriculture
C. The Law and Policy in the World Trade Organization
1. From GATT to the WTO
2. From Tariffs to Farm Support Levels and Intellectual Property Protection
3. International Dispute Settlement and Enforcement
4. The Agreement on Agriculture
5. The Agreement on the Application of Sanitary and Phytosanitary Measures
6. The Agreement on Trade-Related Aspects of Intellectual Property Rights
7. WTO law and genetic resources
D. The International Union for the Protection of New Varieties of Plants (UPOV)
IV.Selected Regional and National Legal Frameworks*
A. Developing Countries
1. The African Continent - The OAU Model Legislation
2. Andean region
3. India
B. Developed Countries
1. Europe
2. United States
3. Australia
Selected Bibliography
Chapter 3 Intellectual Property Rights, Plant Genetic Resources, and Traditional Knowledge
Philippe Cullet, Christophe Germann, Andrea Nascimento and Gloria Pasadilla
I. Introduction
A. Overview
B. Forms of intellectual property protection
C. The functions of intellectual property rights
II.The Protection of TK related to Plant Genetic Resources
A. Definitions
B. Patent Protection
1. Introduction
2. The rationale of patent protection
3. The concepts of invention and the protection of plant varieties
4. Protective criteria
5. Scope and limitations of patent protection
6. Preliminary conclusions on patent protection for holders of traditional knowledge
C. Plant Breeders' Rights
1. Background
2. What are PBRs?
3. Content and Limitation of PBRs
D. Sui Generis Protection Systems
1. Rationale of sui generis Protection
2. Country Examples of Sui Generis Protection
III.Impacts on Existing PGR, Landraces and TK
A. Case Studies
1. The Turmeric Patent
2. The Neem Patents
3. The Kava Case
B. Proposed Solutions
1. Biodiversity Registers
2. Benefit-sharing
3. Local Innovation
C. Problem Analysis
D. Impacts on PGR Diversity
E. Impacts on TK
F. Tension between IPR and Competition
1. Contract Arrangement among Sequential Innovators
2. Some Basic Principles for IPR and Competition Policy
IV.Conclusions
Part II TOWARDS SUI GENERIS RIGHTS
Chapter 4. Origin and Allocation of Traditional Knowledge and Landraces
Part 1: Origin and Allocation of Traditional Knowledge and traditional PGRFA: Basic Questions
Susette Biber-Klemm
I.Introduction
II.Origin and Allocation of Traditional Knowledge
A. Introduction
1. Definition and relevant characteristics
2. Shortcomings of the formal IP-System
B. Types of Traditional Knowledge
C. Degree of publicity: the "Public-Domain" Discussion
D. The question of ownership and origin
1. Origin
E. Summary
III.The Concept of Origin of PGRFA
A. Background and Terminology
1. Plant Genetic Resources for Food and Agriculture
2. In-situ on farm conservation
B. Origin
1. The scientific understanding of origin
2. Country of origin according to the CBD
3. Country of Origin in the International Treaty on PGRFA
C. Discussion
D. Conclusion
E. A functional interpretation of origin
1. In general
2. The Criterion of Distinctness
3. Uniformity and Identifiability
4. The Element of Time
F. Conclusion
G. Questions for further research
Part 2: Farmers, Landraces, and Property Rights: Challenges to Allocating Sui Generis
Intellectual Property Rights to Communities over their Varieties
M. Halewood, J.J. Cherfas, J.M.M. Engels, Th. Hazekeamp, T. Hodgkin and J.
Robinson
I.Introduction
II.Historical Evolution of the Concept of Landrace
A. From Nature to Nurture: The Anthropologization of the Landrace
B. Details of Farmers' Innovation: Improving Landraces' Contribution to Livelihoods Is
Not Necessarily Linked to Promoting Their Distinctness, Stability, and Uniformity
III. How the Interplay of Plant Reproduction Systems, Human Uses, and the
Environment Affect the Incidence and Duration of Distinctions between Landraces
A. In-breeders
B. Out-breeders
C. Clones
IV.Assessing Potential Intellectual Property Policy Responses
A. Challenges
B. Hypothetical Case
C. Cautionary Note Regarding Perverse Incentives
D. Converse Situations: When Sui Generis Protections Could Be Feasible
V.Mining Data for Connections between Communities and Ex Situ Collections
A. Data Selection
B. Results
C. Data-Mining Conclusions
D. Collecting Forms, Ethno-Botanical Descriptors
VI.Assessing Possible Policy Responses to the Data-Base Analyses
VII.Conclusion
Chapter 5. A New Generation of IPR for the Protection of Traditional Knowledge in PGR for
Food, Agricultural and Pharmaceutical Uses
Thomas Cottier and Marion Panizzon
I.Abstract
II.Introduction
III.The Strategic Case for Intellectual Property Protection
A. The Legitimacy and Rebalancing of the IPR System
B. The Need to Clarify the Connection between Traditional Knowledge and Existing IPR
C. Competing Interests and Conflicting Legal Concepts
1. The Structure of the Seed Industry
2. PGRFA in Public Domain
3. Linkages to Global Public Goods
IV.Current State of the Law and Efforts Made to Date
A. International Instruments
1. Convention on Biological Diversity and Benefit Sharing (CBD)
2. Plant Variety Protection (UPOV)
3. International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)
4. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement) and the Paris Convention for the Protection of Industrial Property
5. World Intellectual Property Organisation (WIPO)
B. Recommendations by International Bodies and National Legislation
1. Model Laws
2. Domestic Legislation
C. Conclusions
V.Basic Objections to IPR Protection
A. Innovation v. Traditions
B. Assignable Resources and Communitarian Rights
C. Free Flow and Crop Exchange
D. Destruction of Traditional Ways of Life
E. Conclusion
VI.A New IP Right in Traditional Knowledge
A. Subject Matter
B. Right holders
C. Conditions, Content and Scope of Rights
1. Intellectual Activity
2. The Object and Content of the Right
3. Rights Conferred
D. Duration of Rights
VII.The Creation and Registration of Rights
A. Registration Requirements
B. Opposition Procedures and Judicial Review
VIII.The Interface with Other IP Rights
A. The Complementary Function of Geographical Indications
B. Relation to Plant Breeders' Rights
IX.The Fora for Future Negotiations
X.Conclusions
Chapter 6.Flanking Policies in National and International Law
Susette Biber-Klemm, Philippe Cullet, Christophe Germann, Andrea Nascimento
and Jonathan Curci Staffler
I.Introduction
II.Existing Intellectual Property Rights: Avenues for Further Development
A. Novel Uses of the Patent Model
1. Prior Art, Disclosure and Prior Informed Consent
2. Joint inventorship
3. Traditional Knowledge and Existing Conditions for Patentability
B. Adaptation of the Conditions for Grant of Plant Breeders' Rights
C. Geographical Indications
1. Geographical indications and trademarks
2. Further development of geographical indications
3. Geographical indications and traditional knowledge
4. Case Study: Potential benefits of geographical indications: the Kava Case in the South
Pacific
III. Management and Enforcement of IPR and Traditional PGR: Institutional Design
A. Documentation and Registration
1. Introduction and Question
2. Definitions and Terminology
3. Current discussions
4. Different Emphasis: Examples
5. Registration as a marketing tool?
B. Collecting Societies
1. General considerations
2. Collecting Societies as a possible model
3. Domaine Public Payant
4. Further considerations
C. Clearing House Mechanisms
1. What is a Clearing House Mechanism?
2. CHMs in the realm of TK management: The CBD CHM and the WIPO Platform
3. CHMs to facilitate trade in TK: Examples
4. Analysis
5. Conclusion:
Bibliography
Part III OPTIONS FOR COLLECTIVE AND TRADE POLICY MEASURES
Chapter 7. New Collective Policies
Susette Biber-Klemm, Philippe Cullet and Katharina Kummer Peiry
I.Introduction
II.Farmers' Rights
A. Farmers' Rights under the International Undertaking
B. Farmers' Rights under the International Treaty on PGRFA
C. Farmers' Rights as a Means to Protect Traditional Knowledge
III.Reviewing Access Legislation
A. Introduction
B. Legal Background
1. In General
2. The regulation of the CBD
3. The Regulation of ABS by the IT PGRFA
4. Conclusion and Discussion
C. The ABS system at the interface with markets: issues to consider
1. Introduction
2. Value of PGRFA and TK and the creation of markets
3. Marketing and access legislation
4. Control on the side of the users of the information
5. The designation and integration of holders of TK including capacity-building
D. Conclusions
IV. Financial mechanisms for compensation of non-assignable traditional plant genetic
resources and traditional knowledge
A. The role of a future financial mechanism in the context of access to genetic resources
1. Aims and functions of a future financial mechanism
2. Elements of a future financial mechanism
B. Analysis of existing mechanisms as possible models
1. Financial mechanisms aiming at the provision of assistance to developing and
transitional countries ("assistance funds")
2. Financial mechanisms forming part of a treaty system on civil liability for
environmental damage caused by potentially hazardous activities ("compensation
funds")
3. Mechanisms to provide incentives for implementation under the Kyoto Protocol
4. Relevant work in the framework of the FAO
C. Options for a financial mechanism in the context of access to genetic resources
1. Structure, organization and legal personality
2. Generation of funds, contributors
3. Disbursement of funds, claimants
D. Conclusions and Recommendations
Chapter 8 International Trade Regulation for Plant Genetic Resources and Related Products
Part 1: The Impact on Agricultural Subsidies
Susette Biber-Klemm and Michael Burkhard
I. Introduction
A. General Question
B. Marrakesh Agreements: cross-cutting issues and recent developments
1. Relevance of Topics Environment and Development
2. Doha Declaration and Doha Work-Programme
3. Recent developments: The July package
II. The Agreement of Agriculture and the Maintenance of TK and PGRFA
A Introduction
B. Legal Background
1. The AoA in general
2. Coverage
C. Reform Programme: Mandates and current stage
1. The Negotiation Mandates
2. Doha Declaration and Doha Work Programme: Agriculture
III.The Structure of Agriculture in Developing Countries
A. Terminology
B. Economics of Subsistence Farming
C. Rural-Urban Migration
D. Structures of Agriculture
E. Agriculture and Genetic Erosion in PGRFA
IV.The Impact of Agricultural Export Subsidies and Food Aid on Agrobiodiversity
A. Introduction
B. Economics of Agricultural Export Subsidies and Food Aid
1. Economics of Agricultural Export Subsidies
2. Economic Effects of Food Aid
3. Economic Effects of a Removal of Agricultural Export Subsidies
C. Impact of Agricultural Export Subsidies and Food Aid on Agrobiodiversity: The PLA
Model
D. Impact of Food Aid on Agrobiodiversity
E. Conclusions
F. Summary and Outlook
1. Agricultural Export Subsidies
2. Food Aid
3. Outlook: An Integrated Approach towards Global Multifunctionality
V. Direct Payments
A. Introduction
B. WTO regulation of domestic support: Overview
C. The "Green Box" Measures
D. The development programmes
E. Assessment in view of support of agrobiodiversity
F. The Debates
1. Critique of the present state in general
2. The multifunctionality vs. Food Security debate
G. Discussion and conclusion
Part 2: Enhancing Market Access
Thomas Cottier and Marion Panizzon
I.. Abstract
II. Introduction
III Market Access for Developing Countries in PGR Products
A. Tariffication of Trade Barriers and the Prospects of Tariff Reductions
B. Impact on Traditional Knowledge-based Products
IV. The Prospects of Differential Tariffs for Traditional Knowledge-based Products
A. Special and Differential Treatment
B. The Case of Special and Differential Treatment for TK based Products
1. Recourse to the General System of Preferences (GSP)
2. Adjusting Tariff Schedules and the Harmonized System
3. Limiting Recourse to Trade Remedies against TK based Products
4. Labelling Requirements
V. TK and the TBT and the SPS Agreements
A. Agreement on Technical Barriers to Trade (TBT Agreement)
1. Product Standards
2. Product Process Methods (PPMs)
B. The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS
Agreement)
1. Product Standards
2. Product Process Methods (PPMs)
VI The Need for Joint Standard Setting Operations
VII. Non-discrimination Principles of GATT 1994 and Traditional Knowledge
A. Introduction
B. Legal Issues
VIII. The Impact of MFN
IX. The Impact of National Treatment
A. The Narrow Definition of Likeness for Purposes of Taxation
B. The Broader Definition for Regulatory Purposes
C. Assessment
X. Product Process Methods (PPMs) in GATT 1994
A. The State of Affairs
B. Towards a New Deal on PPMs
XI Conclusions
Bibliography
Index