Hope Not Hype - Third World Network

Growing More Food on Less (Intellectual) Property
103
The rise of IPR frameworks since the
1970s, and especially the use of patents
since 1980, has transformed research in
and access to many products of
biotechnology. Concerns exist that IPR
instruments, particularly those that
decrease farmers’ privilege, may create
new hurdles for local research and
development of products. It is unlikely,
therefore, that over regulation per se
inhibits the distribution of products from
modern biotechnology because even if
safety regulations were removed, IPR
would still likely be a significant barrier
to access and rapid adoption of new
products. This may also apply to the
future development of new GM crops
among the largest seed companies, with
costs incurred to comply with IP
requirements already exceeding the costs
of research in some cases. (p. 43)
(From Agriculture at a Crossroads: The
Synthesis Report by IAASTD, ed.
Copyright © 2009 IAASTD. Reproduced
by permission of Island Press,
Washington, D.C.)
however, the process of breeding was not protected. Under then prevailing PVP instruments,
farmers and breeders had considerable freedom to experiment with these plants and develop
their own sources of seed (Heinemann, 2007).
A second, and related, difference between the Green and Gene revolutions involves the
patenting of processes as well as products. The main process behind the Green Revolution
was conventional plant breeding technology, which lies in the public domain, carried out by
public institutions. Today, the processes used in modern agricultural biotechnology are
increasingly subjected to IPR protection, along with the products that result (Pinstrup-Andersen
and Cohen, 2000, pp. 162-163).
[T]he degree of appropriability is a function of the strength of intellectual property laws, the
degree to which government agencies can enforce the laws, the structure of industry that
reduces the cost of enforcing IPRs, and the technical capacity of firms to protect their varieties
through the use of hybrids or [genetic use restriction technologies] GURTs 1 (Pray and Naseem,
2007, p. 204).
The built-in loyalty of modern varieties is lacking in some crop plants and most
transgenics (Mascarenhas and Busch, 2006). GM plants (and one day perhaps, animals
and microbes) can breed and spread the transgene to others. Intellectual property rights
substitute a legal instrument for the biological barriers of some modern varieties. To achieve
this, however, required germplasm to be “ownable”.
In the context of plants, intellectual property (IP) theory has forgotten its roots. Plants have
long been objects of private property; germplasm has not. But most jurisdictions now recognize
IP rights in plants’ genetic information (DeBeer, 2005, p. 5).
1
See Heinemann (2007) for an extended discussion on the use of GURTs and their potential impact on
the agroecosystem and wild plants.