marker-assisted selection in wheat - ictsd

Chapter 20 – Impacts of intellectual property rights on marker-assisted selection 415associated with the innovation (as is thecase with patents). Although articleswritten about MAS, drawings of breedingschemes and the like would be productsfor which copyrights are awarded, it wouldbe quite rare for someone to be concernedabout infringing copyright in carrying outMAS. However, most MAS as currentlypractised, especially at high-throughputlevels, involves the use of computer softwareto analyse the often complex data thatresult from marker detection. While softwareapplications can be patented in a fewcountries, most jurisdictions only allowsoftware to be covered by copyrights. (Inmany jurisdictions, there is ongoing discussionregarding whether software code is anappropriate matter to be covered by copyrights.While in Europe, the EC Directiveon the Protection of Computer Programs(91/250EEC) has clearly established that inthe EU, computer programs are protectedon the same basis as literary works, othercountries have a more checkered history[Starkoff, 2001].) Such copyrights are usedas the basis for “Open Source” licensing ofsoftware. Most software used in conjunctionwith MAS must be licensed before itcan be utilized in MAS breeding schemesor analysis.The ethical aspects of copyright shouldalso be understood. For example, breedersneed to be respectful and careful when givingtalks or other presentations to ensure thatthe material they use is original, or that theowner of the copyright has given permissionfor its use. Just because there is no “©”sign on an article, drawing, slide, picture,etc. does not mean that the material has notbeen copyrighted. Copyright is attached toalmost any fixation with immediate effect.There is no need for an author or creator(or employer of the creator), to apply forcopyright in most countries because ofthe conditions set forward in the BerneConvention for the Protection of Literaryand Artistic Works (1886), which requiresits signatories to protect the copyright onworks of authors from other signatorycountries in the same way it protects thecopyright of its own nationals. A mainprinciple of the Berne Convention, andincorporated into the WTO’s Agreementon Trade Related Aspects of IntellectualProperty Rights (TRIPs), is the generalprinciple of national treatment, “whichrequires each member state to accordto nationals of other member states thesame level of copyright protection providedto its own citizens” (www.wipo.int/treaties/en/ip/berne/summary_berne.html). There are exceptions, e.g. publicationsthat originate from the United StatesFederal Government cannot be covered bycopyright, although sometimes copyrightowners will register a copyrighted articlewith the government to take advantage ofgovernmental assistance in infringementcases. Table 2 provides some examples ofcopyrighted materials that have relevanceto the practice of MAS.TrademarksThese are registered marks given toan applicant as a result of a trademarkapplication being made with a fee payment,and such an application withstanding asearch by a trademark examiner for similarmarks and use of marks (along with anopportunity for opposition to the awardingof the exclusive use by anyone in the public,based on use of the mark by someone elseprior to the application to the trademarkoffice). Trademark rights are different frompatents, plant variety rights and copyrights,in that they are renewable, and thus, ifnational procedural rules are followedcorrectly, can likely last indefinitely. As