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plant genetic resources for food and agriculture - FAO

plant genetic resources for food and agriculture - FAO

ACCESS TO PGR, THE

ACCESS TO PGR, THE SHARING OF BENEFITS ARISING OUT OF THEIR UTILIZATION AND THE REALIZATION OF FARMERS' RIGHTS Access and Availability of PGRFA under the MLS: Table 7.1 provides information on rates of acquisition and distribution by CGIAR centres during the first seven months of operation of the system as reported to its Governing Body at its Second Session in 2007. 19 Further information is provided on acquisition and distribution by CGIAR centres during the year commencing 1 August 2007 as reported to the Third Session of the Governing Body. 20 Seventy-four percent of the materials were distributed to developing countries and six percent to developed countries. So far, there is still little quantifiable information on the flow of germplasm from national sources, although it is clear that an increasing amount of PGRFA is now circulating under the MLS. In particular, it is understood that a number of countries, such as Canada, Egypt, Germany, the Islamic Republic of Iran, the Netherlands, the Nordic countries and the Syrian Arab Republic, are now distributing Annex 1 materials widely under the SMTA. The ITPGRFA Secretariat’s report to the Third Session of the Governing Body on the implementation of the MLS also provides information on materials made available under emergency disaster situations over the last decade or so. 21 7.3.3.3 National and regional implementation of access and benefit-sharing under the Convention on Biological Diversity The implementation of ABS does not necessarily require the adoption of a legislative framework. Indeed, the number of national instruments implementing ABS under the CBD is still relatively limited. Several countries, particularly developed countries, tend to favour a strategy of using administrative policies and Acquisitions Transfers of raw PGRFA Transfers of PGRFA under development placing few if any legal or regulatory conditions on access to genetic resources, other than those inherent in general property laws (real and intellectual), contract law, forest and wildlife protection laws and/or under international agreements such as the ITPGRFA. The Nordic Ministerial Declaration of 2003 ‘Access and Rights to Genetic Resources’ 22 is an example of this approach. The number of laws regulating ABS is, however, increasing. As of February 2010, the CBD Database on ABS Measures 23 listed 32 countries 24 that had some legislation or regulations addressing ABS, of which 22 had adopted new laws or regulations since 2000. The laws are either part of general legislation on the environment or free-standing legislation on biodiversity or genetic resources. For the most part, ABS legislation tends to be drafted primarily to cover the issues raised by in situ bioprospecting including, in particular, access to genetic resources and associated traditional knowledge in indigenous and local communities, although the legislation also applies, sometimes expressly, to accessing genetic resources in ex situ conditions. So far as access regimes are concerned, provisions in national legislation are fairly standard, requiring application to a central authority for permission to access genetic resources and associated local knowledge, prior informed consent of the national authority and the indigenous and local landowners or communities where access is to take place, and arrangements for benefit-sharing with both the central authority and the indigenous or local communities concerned. In an increasing number of countries, 25 a distinction is being made between access for research and access for commercial purposes, although the borderline is very difficult to establish. Where the use TABLE 7.1 Experience of the CGIAR centres with the SMTA from 1 January 2007 to 31 July 2007 (first line) and 1 August 2007 to 1 August 2008 (second line) Total transfers Shipments Countries Rejections 3 988 38 210 48 848 97 669 833 155 3 7 264 95 783 348 973 444 824 3 267 - 0 173

CHAPTER 7 changes after the initial research, then a new ABS agreement is required, but many innovators hesitate to access genetic resources if they have to renegotiate ABS as soon as a profitable product appears on the horizon. Many countries have no national ABS legislation or policies in place and a constant theme in many of the reports from developing countries is the need to develop them. 26 It is not possible to describe all aspects of national arrangements for ABS. This section will therefore concentrate on the following four issues: benefit-sharing arrangements, traditional knowledge and the rights of indigenous and local communities, as well as regional cooperation and compliance. Benefit-sharing arrangements: in general, there are few, if any, examples of laws and policies that are broadly acknowledged to be successful in generating tangible benefits and that could provide a model for other countries. 27 Most countries with ABS arrangements in place allow for flexibility in the actual nature of the benefits. This is in line with the thrust of recent studies indicating wide divergences in the practices and interests involved in different sectors that depend on access to genetic resources. 28 There is clearly a need for better market information on the valuation of genetic resources used in different sectors. Recent legislation in some Latin American countries, however, seems to take a different approach, requiring fixed percentages of payments to be made under benefit-sharing arrangements, in addition to nonmonetary benefits. Costa Rica, for example, requires that up to 10 percent, of the budget for research and bioprospecting and up to 50 percent of the royalties obtained from commercialization be paid by the applicant (the actual amounts to be agreed in advance). Under prior informed consent agreements entered into in the period 2004- 2006 between the National System of Conservation Areas (SINAC) as provider and the National Institute for Biodiversity as user, SINAC obtained monetary benefits of approximately USD 38 387 of which 89.3 percent resulted from the percentage of the research budget and 10.7 percent from royalties. Peru requires that the ABS agreement foresee an initial monetary payment or equivalent to the providers of traditional knowledge, to be applied to sustainable 174 THE SECOND REPORT ON THE STATE OF THE WORLD’S PGRFA development and not less than five percent of the value of the gross sales of products developed from the direct or indirect use of such knowledge. A percentage of not less than 10 percent of the gross value of the sales of those products must also be paid into the Fund for the Development of Indigenous Peoples. 29 Traditional knowledge and the rights of indigenous and local communities: specific recognition of the rights of holders of traditional knowledge or community knowledge is given in many new ABS enactments. Examples are the African Model Legislation, 30 a proclamation in Ethiopia, 31 and a law in Peru. One new approach has been to provide for the registration of traditional knowledge and to take action against acts of misappropriation. In Peru, this is done through the dissemination of information on the registered rights to patent offices around the world and by taking legal action to oppose IPR being awarded for inventions based on traditional knowledge that has been misappropriated. 32 A new law in Portugal provides for the registration of local varieties and other indigenous material and of associated traditional knowledge, developed in a non-systematic manner by local populations. 33 Registration allows for the sharing of benefits and some protection against misappropriation. It also implies a corresponding responsibility on the rights’ holders for the continued in situ maintenance of the registered plant material. Regional Cooperation in the implementation of ABS: the Conference of Parties to the CBD has, on a number of occasions, stressed the importance of regional cooperation on ABS. 34 A number of initiatives have been taken at the regional level in this respect. Examples are Decision 391 of the Andean Community of 1996 establishing a Common Regime on Access to Genetic Resources, the ASEAN Framework Agreement on Access to Biological and Genetic Resources of 2000 and the African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources (the Organization of African Unity [OAU] Model Legislation), also of 2000. Each of these regional initiatives takes as its starting point the sovereign rights of states over their genetic resources and sets out basic principles for access to

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    The CGRFA requested that the SoWPGR

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    Executive summary �his report des

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    FIGURE 1.1 Global priority genetic

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    CHAPTER 1 comparisons, or use the i

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    18 CHAPTER 1 FIGURE 1.3 Interdepend

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    CHAPTER 1 even national, germplasm

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    26 CHAPTER 1 X. & Li, Z. 2006. Gene

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    THE STATE OF EX SITU CONSERVATION 1

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    96 CHAPTER 4 very similar (approxim

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    98 CHAPTER 4 including rice, maize

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    CHAPTER 4 In the United States of A

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    CHAPTER 4 biosafety monitoring and

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    CHAPTER 4 Different plants are rich

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    CHAPTER 4 breeding activities over

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    118 CHAPTER 4 16 Op cit. Endnote 8.

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    Chapter 5 The state of national pro

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    STATUS BY COUNTRY OF NATIONAL LEGIS

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    STATUS BY COUNTRY OF NATIONAL LEGIS

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    STATUS BY COUNTRY OF NATIONAL LEGIS

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    STATUS BY COUNTRY OF NATIONAL LEGIS

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    STATUS BY COUNTRY OF NATIONAL LEGIS

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    MAJOR GERMPLASM COLLECTIONS BY CROP

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    THE STATE-OF-THE-ART: METHODOLOGIES

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    THE STATE-OF-THE-ART: METHODOLOGIES

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    THE STATE-OF-THE-ART: METHODOLOGIES

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    Appendix 4 State of diversity of ma

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    APPENDIX 4 some country reports. 6

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    APPENDIX 4 option for perennial tax

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    APPENDIX 4 (wild one-grain wheat, T

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    APPENDIX 4 regeneration of existing

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    APPENDIX 4 An operational comprehen

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    APPENDIX 4 FIGURE A4.2 Global yield

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    APPENDIX 4 Role of crop in sustaina

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    APPENDIX 4 and Myanmar (3 percent).

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    APPENDIX 4 progenitor is the wild s

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    appendiX 4 Ex situ conservation sta

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    APPENDIX 4 Documentation, character

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    APPENDIX 4 The two global chickpea

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    APPENDIX 4 in collections, absence

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    APPENDIX 4 FIGURE A4.5 Global yield

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    338 APPENDIX 4 are also conserved.

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    340 APPENDIX 4 WebPDF/Crop percent2

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    342 APPENDIX 4 90 Op cit. Endnote 2

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    344 APPENDIX 4 159 GCDT. 2007. Glob

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    348 APPENDIX 4 291 Op cit. Endnote

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    350 APPENDIX 4 366 Ibid. Endnote 35

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    BAAFS Beijing Academy of Agricultur

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    CN Centre Néerlandais (Côte d’I

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    DTRUFC División of Tropical Resear

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    HRIGRU Horticultural Research Inter

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    INIA CARI Centro Regional de Invest

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    IVM Institute of Grape and Wine «M

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    NISM National Information Sharing M

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    REHOVOT Department of Field and Veg

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    SRI Sugar Crop Research Institute,

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    WCMC World Conservation Monitoring

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