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FAO COMMISSION ON GENETIC RESOURCES FOR FOOD AND AGRICULTURE
FIFTH EXTRAORDINARY SESSION
Rome, 8-12 June 1998
All the Flowers
Of all the Tomorrows
Are in the Seeds of Today
Patent systems, IPRs and Terminator Technologies
are killing Tomorrows, Flowers and Farmers
NGOs at the CGRFA
FAO official CGRFA Documents
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OBSERVATIONS by Patrick Mulvany, ITDG
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The week ended with greater realism than it started. Both the US and Europe were serious in wanting to negotiate an agreement - the South, in clear and unambiguous presentations in the final Plenary, especially by Ethiopia, was serious in throwing down the gauntlet to the North: no benefits, no access. And benefits are more than just money - Farmers' Rights are an essential component. The question is whether countries can be persuaded to return to the negotiations later this year and if they can increase the momentum in further meetings to a successful conclusion in 1999. Much would be achieved if this goal were to be reached - not least in the parallel negotiations in the WTO, especially on TRIPs, and in the CBD.
Despite the painfully slow progress of the Working Group on Article 12, Farmers' Rights, NGOs had some positive impact. Not only did corridor lobbying achieve a bit more clarity between regional delegations, whose intercommunication was not as strong as it might have been, but NGOs' interventions and their lunchtime meetings were challenging, informative and influential. NGOs were critical of governments' slowness in these crucial negotiations, which the CBD/COP has asked FAO/CGRFA to conclude in 1999. NGOs also pointed out that industry and the CGIAR were more imaginative than some Industrialised Countries, in proposing legal and financial solutions for the protection of farmers' material and for providing an International Fund for the implementation of the International Undertaking - points that were taken up in the final plenary.
The discussions on access and benefit sharing were held in a closed contact group from which NGOs were excluded. Progress was made, in a sense, but there is a need for much more to be offered before all will assent to a multilateral access agreement.
An NGO Lunchtime Briefing on Tuesday 9 June, focused on the call for a world-wide "voluntary moratorium" on intellectual property claims that could involve germplasm held "in trust" through the FAO-CGIAR Agreement. It was convened by ITDG and was well attended by Delegations, officials and observers. Pat Mooney, RAFI, presented the latest evidence of 118 cases of possible Plant Variety Protection and/or patent abuses by mainly public institutions in 30 countries, which have come to light. In most cases there is no evidence of plant breeding. There are acknowledged problems with documentation of the country of origin of material, often being recorded as the collection from which an accession was received rather than the originating Country of Origin of the seed - the country within which the farmers who originally developed the material actually live or lived. Pat Mooney cited the Dutch Gene Bank as being exemplary in the way in which it is abiding by the FAO-CGIAR agreement and have amended their Material Transfer Agreements (MTAs) accordingly.
Geoff Hawtin, IPGRI, responded to the points raised. Recalling resolution 2 of the Nairobi Final Act in 1994, he hoped that the International Undertaking, currently being renegotiated would provide for a more permanent solution to the ways in which materials are exchanged, including those collected pre-CBD. He said that at the recent CGIAR mid-year meeting in Brasilia there had been agreement to harmonise all their MTAs and to develop procedures against possible violations. There was a need to develop better nomenclatures to include complete labelling of the source of all accessions. It was admitted that there were real difficulties in documentation in the CGIAR but they were doing what they could to improve the records in their collections.
On a second point concerning Plant Breeders' Rights, Dr Hawtin was insistent that only material for which a breeder has contributed an inventive step could have protection. In too many cases this has not been the case and original material has been the subject of patent applications. Honesty was needed.
Gerald Moore, Legal Counsel, FAO, complimented the vigilance of the lead NGO, RAFI, in bringing these abuses to light. It also showed how important these formal agreements are in enabling such cases to be identified.
In discussion, there was a lot of concern about the honesty of those who apply for protection on material they know not to have been subject to any inventive step at all. All states need to check their collections and IPR applications. Two thirds of applications made for patent protection have been on farmers' material on which no improvement or inventive step has been made. It was stressed how difficult and expensive it was for developing countries to challenge Developed countries' patent applications within their legal systems. For example: it cost $500 per case to discuss an application in Australia. The example of Basmati 370 was raised to illustrate that it should be mandatory to declare in patent applications, the details of the origin of the original plant material.
There was a claim by industry that MTAs are not legal documents - there is no legal framework within which they can be contested. Gerald Moore, FAO Legal Counsel, did not accept this.
UPOV concurred with the need for openness and said that it was in part due to the documentation presented in patent applications that the current cases had come to light. There were advantages of PBRs over patents, it was claimed, but it was up to UPOV to find a satisfactory solution to the problems, not the farmers whose material is being taken from them.
It was these farmers, whose enthusiasm, care and interest in maintaining a wide range of PGRFA options, as evidenced, for example, in a recent Seed Fair to which Patrick Mulvany referred, who need protection from the avarice of industry. But even at such a Seed Fair, precious germplasm was given away to the National Gene Bank without adequate documentation: it should be incumbent on officials to ensure that not only the originating community but also the contributing farmers are identified, whenever possible.
The meeting ended with a call for adherence to the Voluntary Moratorium and a request that this be agreed in the CGRFA.
A second lunchtime meeting, held on Friday 12 June, focused on Terminator Technology - the technology that prevents farm-saved seed from germinating, was convened by RAFI. Delta and Pine (now owned by Monsanto) defended the company's purposes in developing the technology. The Plant Breeders' associations are in favour as this technology provides a biological solution to collecting royalties - no need for complex international agreements and burdensome implementation and policing of these! And what of the Rights of Farmers to save, re-use, exchange and sell their seed? (See Monsanto's WebSite for their Defence. See RAFI's HomePage for the case against)
Intermediate Technology Development Group (ITDG)
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AUSTRIAN Room - Cinema (C237)
Tuesday, June 9th
13:00 - 14:30
Plant Variety Piracy
Recent problems with Plant Breeders' Rights
in conflict with Farmers' Rights
and the FAO-CGIAR Trust Agreement
The Call for a Voluntary Moratorium
Presentation: Pat Mooney, RAFI
Respondent: Geoff Hawtin, IPGRI
Chair: Patrick Mulvany, ITDG
In the seven months since the Commission's last session, more than 100 examples of possible Plant Variety Protection and/or patent abuses have come to light. Australia's Heritage Seed Curators' Association (HSCA) and the Rural Advancement Foundation International (RAFI) will report on the implications for Farmers' Rights and for the FAO-CGIAR Trust Agreement.
At least five PBR claims involving ICRISAT and ICARDA "trust" germplasm, made by CLIMA (Western Australia), have been dropped. Many other claims by other institutions in Australia and in other countries are also being challenged. The Chair of the CGIAR and FAO have called for a world-wide "voluntary moratorium" on intellectual property claims that could involve germplasm held "in trust" through the FAO-CGIAR Agreement.
The experience exposes worrisome gaps in the management of the FAO-CGIAR Agreement while, at the same time, showing the utility of the Agreement to defend Farmers' Rights. There are also a number of immediate initiatives available to governments that could support the FAO-CGIAR accord. The specific problems and some of their solutions will be presented and there will be an opportunity for general comment and discussion.
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