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Food Policy 27 (2002) 197222www.elsevier.com/locate/foodpol

Carving up the commonsemergence of a newinternational regime for germplasm

development and transfer

W.P. Falcon a,, C. Fowler b

a Center for Environmental Science and Policy, Institute for International Studies, Stanford University,

Stanford, CA 94305-6055, USAb Center for International Environment and Development Studies, Agricultural University of Norway,

Aas, Norway

Accepted 8 April 2002

Abstract

No nation has ever fabricated or maintained a prosperous food system based on geneticresources of purely indigenous origin. Remarkably, many countries now seem ready and almosteager to try such an approach. We identify four separate components of an emerging regimethat are interacting in ways that should worry everyone concerned with the development andtransfer of plant genetic materials into the South: new provisions on intellectual property;increased concentration of new enabling technologies into a few large multinational companies;heightened anxieties over transgenic crops; and new problems arising from international agree-ments. We argue that the solutions now being discussed in global forums are either infeasible,incomplete, or are likely to have seriously negative effects. We call instead for creative new

thinking on building human capacity in developing countries, on the legal status of plantgenetic resources, and on publicprivate partnerships, especially those in service of the poor.

2002 Published by Elsevier Science Ltd.

Keywords: Biotechnology; Commons; Convention on Biological Diversity; Genebanks; Germplasm; Intel-

lectual property rights; International Treaty on Plant Genetic Resources for Food and Agriculture; Public

goods; Transgenic crops

Corresponding author. Tel.: +1-650-723-6367; fax: +1-650-725-1992.

E-mail address: [email protected] (W.P. Falcon).

0306-9192/02/$ - see front matter 2002 Published by Elsevier Science Ltd.

PII: S 0 3 0 6 - 9 1 9 2 ( 0 2 ) 0 0 0 1 3 - 1


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198 W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

Introduction

Genetic diversity, both within and among species, is the raw material for the future

improvement of all crops. It indicates their potential and defines their evolutionarylimits. Since Neolithic times, agricultural crops have been on the move. The flow

of these genetic resources around the globe has underpinned crop development andagricultural advancement for millennia. No nation has ever fabricated or maintained

a prosperous food system based on genetic resources of purely indigenous origin.

Remarkably, many countries now seem ready and almost eager to try such an

approach.

Herdt (1999) has described the privatization and nationalization of plant genetic

materials as the closing of another commons, comparable in importance to the closingof the land commons in England between the fifteenth and nineteenth centuries.

Having discarded the notion that genetic resources are the common heritage of

mankind, countries are now erecting barriers to the free flow of genetic materials,

setting in motion an agricultural experiment with few precedents in human history.1

Yet governments seem ill prepared at the national level to adjust to the transformation

they are creating. Collectively, they appear impotent to fashion appropriate inter-

national policies.

In this essay, we seek to shed light on the causes and potential consequences of

a new international regime for the development and transfer of plant genetic

resources.2 We focus primarily on the effects of this new regime on food security

in poor countries. As Tripp (2002) rightly emphasizes, agricultural developmentembraces much more than germplasm development, and germplasm development

also embraces much more than biotechnology. Nevertheless, our discomforting con-

clusions are that the nature and consequences of contemporary germplasm flowsare poorly understood, mechanisms restricting flows are complicated, outcomes are

uncertain but almost certainly negative, and policy mechanisms for alleviating the

problems are either untested or already rejected.

Following a short historical introduction, we identify four separate components of

the new regime that are now interacting in ways that we believe should worry every-

one concerned with the development and transfer of agricultural technology, parti-

cularly improved crop varieties, to scores of the poorest nations. These elements arenew provisions on intellectual property, especially patenting regulations in the US; an

increased concentration of new enabling technologies into a few large multinational

companies; heightened anxieties over transgenic crops (also known as genetically

modified organisms or GMOs), especially in Europe; and new problems arising from

international agreements, such as the Convention on Biological Diversity (CBD) and

the Food and Agriculture Organizations (FAOs) International Treaty on Plant Gen-

etic Resources for Food and Agriculture. Individually, these components are reason-

1 For a detailed discussion of common heritage concepts and principles, see Baslar (1998).2 Regime is used here to mean a partially integrated set of organizations, understandings, and assump-

tions (Meyer et al., 1997).


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199W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

ably well described in the literature; collectively, they and their interactions arepoorly understood. We find that their combined impacts on food security in poorcountries will likely be very troublesome.

Historical context

Men and women have been acquiring, moving, and improving plant geneticmaterials for 10,000 years (Reed, 1977; Smith, 1998). Despite recurring conflictsover ownership and controlsome dating back millennia (Farney, 1980)most foodcrops have spread far beyond their original birthplaces or centers of origin. Therelatively free flow of diverse genetic materials has allowed farmers and plant breed-ers both to introduce crops to new production areas and to use these raw materials

to improve crops through selection and breeding. Today, maize, a native of CentralAmerica, is the predominant food crop of southern Africa. Yet only an expert wouldidentify the cob-less, weed-like progenitor (teosinte) as its source. Soybean, a speciesfrom China and East Asia, is now a major crop in the US and Brazil. And sweetpotato, indigenous to South America, is currently grown in more than 100 countriesaround the world.

Hunting and gathering peoples and farmers oversaw the domestication, transfer,and development of crops during most of the last 10,000 years. More formal andscientific approaches to plant breeding at most can be traced back only 200250years (Mayr, 1982). Efforts based on an understanding of the mechanisms of heredityare younger still. Even decades after the rediscovery of Mendels laws of heredity,many plant breeders continued to approach their work from a decidedly unscientificbasis (Dreyer, 1975).

In the modern era prior to World War II, much of the basic and applied seedtechnology for agriculture, especially for cereals, originated as public goods fromthe non-proprietary sector. In the US, for example, the federal government was heav-ily involved both in establishing agricultural colleges and experiment stations andin acquiring seeds from abroad and distributing them directly to farmers for adap-tation and breeding. In the late 1800s, more than ten million individual packets of

seeds were mailed to farmers annually (Klose, 1950).Hybrid maize was a partial exception to this pattern of public provision of germ-plasm. Companies typically drew on basic research from the public sector whendeveloping hybrid maize, but they then privatized inbred lines, mostly through theuse of trade-secret mechanisms. In 1970, more formal intellectual property protectionwas given to the private sector in the US via the Plant Variety Protection Act. Thislegislation gave developers ofdistinct, uniform, and stable varieties patent-like pro-tection for 17 years, including the right to set conditions on the sale and resaleof seed.3

3 In the US, plants that are reproduced asexually for commercial purposes (e.g. apples and roses) had

long been covered by the 1930 Plant Patent Act. That act excluded bacteria and certain important food

crops such as potatoes from protection.


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Two mutually reinforcing events occurred during the last quarter of the twentiethcentury that greatly altered the norms of germplasm development. The first eventreally a processwas the development of modern biotechnology, including compu-

tational and other laboratory methods for discovering, cloning, and transferring separ-ate genes. When these specific methods were combined with the second component-a series of new legal rulings that opened the door for patent statutes to cover a broadrange of biological materials from varieties to genesthe plant genetic environmentwas radically transformed. In addition, new methods gave entrepreneurs the scientifictools, such as plant fingerprinting, to detect and enforce patent infringements. Newinteractions among law, biology, and information technology thus played a dominantrole in the emergence of a new plant-genetics regime for the world.

These changes have the potential to interrupt flows of genetic resources amongnationsin effect, to carve up the global genetic commons into small dysfunctionalnationalistic slices. In light of 10,000 years of agricultural history, analysts must askwhether recent legal, technological, and organizational developments constitute onlyminor variations in plant-improvement processes, or whether they represent a funda-mental watershed in the structure, scope, and methods of plant breeding. We believeit is the latter.

An emerging regime for germplasm development and transfer

Intellectual Property Rights

Efforts to protect intellectual property have a long history, characterized byapproaches ranging from the simple keeping of secrets, to the employment of physi-cal force, to the use of laws. Yet it is patenting (rather than trade secrets, trademarks,plant-variety protection, or copyrights) in the US that has caused the most conster-nation, concern, and excitement in the plant genetics world during the past two dec-ades.

US statutes currently offer a breadth of patent coverage unmatched by any othercountry.4 Prior to 1980, however, little intellectual property protection for plant-

related inventions was available. New crop varieties, for example, could be protectedin a number of developed countries that belonged to the Union for the Protectionof New Varieties of Plants. While prohibiting others from producing and selling theprotected variety, such laws did not restrict anyone from using a protected varietyas parental material in future breeding efforts. They therefore created no overt bar-riers to the transfer of these genetic resources or to their further development.

The picture changed substantially with the Diamond vs. Chakrabarty, 1980 casein which the US Supreme Court ruled that a live microorganism, constructed by

4 The European Patent Directive, perceived as an effort to catch up with the US, has only been adopted

by four member states. Germany and France, among others, are holding out amid intense opposition

inside and outside their governments to the patenting of life, genes, and/or higher organisms.


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gene-transfer technology, was patentable. This dramatic and rather unsettling rulingraised questions as to what was patentable and how broad or narrow the patentcoverage could be. New concerns were also raised about where the line might be

drawn between discovery and invention.Given this uncertainty and the new legal opportunities, there were understandable

pressures for firms to maximize the number of biotechnology patents and to do soas rapidly as possiblereminiscent of speculative land grabs in an earlier era. Anopponent of such practices, James Watson, argued that automated gene-hunting pro-cedures could now be done by monkeys (Beardsley, 1998).

Initially the bar on gene claims was perceived to be very low and the number ofpatent applications exploded during the 1990s (Enserink, 2000).5 With little priorhistory, the United States Patent and Trademark Office (USPTO) had great difficult-ies in implementing the utility aspect of applications, that is, in determining whetheror not an application had a sufficiently credible and substantial benefit to the public(Barton, 2000).6 Unreasonably broad patent claims also seemed to slip through withdisquieting regularity.

USPTO has now made more difficult the proof of a prospective patents utility(US Department of Commerce, 2001). Nevertheless, several disturbing problemsarise from new patent processes as they affect poor countries. Thousands of relevantpatents have already been issued that affect the creation of modern agriculturalgermplasm appropriate for developing countries. Intellectual property coverageincludes genes, traits, molecular constructs, and transformation procedures-so-called

enabling technologies. As shown in Table 1, the number of US patents granted whichinvolve major cereals is large and growing very rapidly.7

For important genetic modifications like the new vitamin A-enhanced rice, dozens

Table 1

US patents granted: applications containing the terms rice, wheat, or corn, plus gene.

Time period Rice Wheat Corn

198185 61 69 127

198690 123 148 217199195 412 497 814

1996August 2001 3081 3320 5074

Source: http://www.uspto.gov, accessed August 23, 2001.

5 Many of these fragments were of interest because of potential human-health products rather than for

their importance to agricultural crops.6 USPTO observed in a recent notice that insubstantial or non-specific utilities for biological patents,

such as use only for filling landfills, did not satisfy the legal requirements (US Department of Com-

merce, 2001).7 A similar search of US patents granted containing the terms gene and transformation in their

applications, revealed a comparably sharp increase from 233 approved in the period 198185, to 14,358

approved from 1996 to August, 2001.
http://www.uspto.gov/http://www.uspto.gov/http://www.uspto.gov/


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of patents were involved in a single transformation (Guerinot, 2000). As noted below,the multiple-patent problem has already caused greater industrial concentrationwithin the private sector. Multiple patents have also effectively forced the public

sector to use alternative research methods if crucial patents are unavailable (or pro-hibitively expensive) for use on products important for poor countries.

The concern that genetic resources in the public domain might be patented, andthus effectively removed from the public domain, has contributed to an ironic sol-ution: in an attempt to prevent the closing of the commons by patents and in asimultaneous attempt to exploit market opportunities of their own, countries are nowrestricting access to once-public materials. Many nations are now asserting claimsof sovereignty and ownership over materials previously considered within the publicdomain. They are thus effectively closing the commons themselves by enactingrestrictive legislation governing access to genetic resources8 and by restricting thescope of international agreements aimed at facilitating access to these resources.Only a fraction of the crop materials heretofore exchanged freely through multilateralmechanisms will continue to be available automatically.9

Owing to these changes, public germplasm collections are under threat. The ques-tion is whether they can remain widely available for use in a world where researchersare acquiring more and more gene-related patents. The answer is far from clear.

Most experts now agree that the unrestricted use of naturally occurring genes willcontinue to be permissible,10 a point confirmed for the US by a recent decision ofUSPTO.11 If a gene in an African farmers maize variety ends up being sequenced

8 See, for example, Philippines Executive Order No. 247 and Administrative Order No. 96-20 (1996),

the Cartagena Agreement of the Andean Pact Decision on a Common System on Access to Genetic

Resources, and the Declaration and Draft Model Law by the Organization of African Unity/Scienti fic,

Technical and Research Commission Task Force on Community Rights and Access to Biological

Resources. Most legislation would require the negotiation of benefit-sharing arrangementsoften with

both local communities and multiple government agenciesprior to access of genetic materials. Given

the peculiarities of the CBD definition of country of origin as discussed later in this essay, it will be

difficult to identify the distinctive properties in a sample and then determine their country or countries

of origin prior to having access to the materials for scientific examination. Even if benefit-sharing arrange-

ments were made contingent, or based on a formula (a percentage of royalties, for example), it is possible

that the terms would have been negotiated either with a country that is not the country of origin, or withonly one of a number of countries of origin. Many institutions and plant breeders are expected to forego

access because they will be reluctant to invest the time and energy required to negotiate the terms for

access to materials whose value/utility, if any, has yet to be proven.9 Evanson (1999) concludes that a 15-year disruption over the interchange of landraces and advanced

breeding lines produces simulation results in which prices will be higher, developing country imports

will be higher, and developing country welfare lower because of impeded exchange of germplasm. 10 Personal communications from C. Correa, attorney and Professor of Economics of Science and Tech-

nology, University of Buenos Aires; T. Roberts, attorney, formerly Intellectual Property Rights Manager-

ICI Seeds, now principal, Roberts and Associates.11 A patent on a gene covers the isolated and purified gene but does not cover the gene as it occurs

in nature. Thus, the concern that a person (or a plant) whose body includes a patented gene could

infringe the patent is misfounded. The body does not contain the patented, isolated and puri fied gene

because genes in the body are not in the patented, isolated and purified form (US Department of Com-

merce, 2001).


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and patented in the US, that farmer and all other farmers and breeders (whether inthe US or Africa) would still be able to use that variety and that gene for bothproduction and breeding.

On the other hand, if this same gene were developed or deployed in conjunctionwith a specific genetic-engineering application, its unrestricted use would likely beprohibited wherever the patent was enforceable.12 The barriers being erected by thepatenting of biological materials do not so much obstruct the traditional uses ofgenetic resources as they impede the application of specific tools of biotechnology(enabling technologies) to these resources. Ultimately, however, such barriers limitentry into the germplasm industry, even by public-sector agencies. Without the free-dom or opportunity to use the latest germplasm and the best techniques, the publicsector may find itself hampered in producing crop varieties that farmers would findeconomically viable or otherwise attractive. We thus believe that concern about thesebarriers is warranted, for we also believe that biotechnology should be used by andfor developing countries.

Finally, it should be noted that intellectual property protection is national incharacter. A patent granted in the US is not valid globally; it is only valid in theUS unless the patent holder takes the step of applying for and securing protectionin additional countries. Many developing countries lack patent laws that would allowfor the protection of plant varieties or other biological materials, effectively confiningthe thousands of biotechnology-related patents to developed countries. However, thissituation is changing. Through the Trade Related Aspects of Intellectual Property

Rights agreement under the World Trade Organization, developing countries arebeing required to enact laws that, at a minimum, provide for protection of plantvarieties. If they do not, they are deemed to be in restraint of trade, for which tradesanctions are the remedy.

No one can predict with certainty where the expanding scope of patent laws indeveloping countries will lead. Nor can it be foreseen how the private sector willreact to the use of their intellectual property outside the jurisdiction in which it isformally protected. Paarlberg (2002) argues that the private sector to date has beengenerous in providing protected technologies to less developed countries. We agreegenerally with his point, but note that the generosity of the intellectual property

system has not yet really been tested. Our concern is that unless special efforts areundertaken, legal restrictions, economic pressures, political sanctions, and transactioncosts on the use of genetic materials will multiply. Poor countries will then faceadditional constraints on the acquisition and use of protected materials and associatedmodern technologies.

12 In the US, for example, patents are available for the isolated and purified form of DNA. In order

to use DNA in this form (and thus, infringe the patent), one must employ certain sophisticated techniques.

Effectively, such a patent would not restrict the use of the gene, but it would prevent uses that employ

biotechnology to isolate or purify the material. As noted, US patent laws are without legal effect outside

the US. This does not mean that US patent holders do not care or have no recourse when others appropriate

their intellectual property, albeit legally.


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Privatization and concentration

Efforts to protect Intellectual Property Rights in innovations involving plants and

their genes have had a profound effect on the structure of research in the appliedbiological sciences. They have also been a driving force in corporate consolidationand in the related transformation of once-sleepy seed business into large-scale gen-omic and life-science firms. Leaders of several large companies like Monsanto andNovartis arguably saw agricultural biotechnology as a mechanism for generatingdominant commercial strategies for their companies. Although consumer and stock-holder reactions eventually interceded to limit the strategies and to decrease budgetsfor GMOs within these companies, two early waves of investment activity thoroughlyreshaped the new industry.

The first of these waves featured the acquisition of family-owned seed companiesby large multinational firms with interests in agricultural chemicals (Brennan et al.,1999; RAFI, 1998; Thayer, 2001). These mergers and acquisitions were initiallydriven by the desire to link seed and chemical businesses, both in research andmarketing (Crittenden, 1981).

The expansion of Intellectual Property Rights, especially in the US, facilitated thecreation of new proprietary products and technologies. These developments, in turn,encouraged a second wave of investments in, and acquisition of, biotech start-ups(Doyle, 1985). The genomic-based, life-science companies began acquiring seedfirms and boutique biotech operations at a pace so rapid that the name, number, and

scope of the resulting conglomerates changed on an almost monthly basis. It oftenappeared as if virtually all firms were simultaneously trying to buy, sell, and sueone another! Many of the mergers seemed complete by 1999, only to be followedby another round of reorganization. Under shareholder pressures, some of the largestof the mega-firms began to rid themselves of their agrochemical interests. Followingin the footsteps of Pharmacia, Upjohn, and American Home Products, Europe-basedgiants Aventis, Novartis and Astra Zeneca began backing away from the life scienceconcept (Agence France Press, 2000).

Much more could be written about the personalities and purposes behind the vari-ous mergers and realignments and about the several public relations disasters that

befell them.13

However, regardless of which particular corporate roof now coverswhich formerly independent seed or agrochemical firm, five important implicationsderive from the new industrial structure shown in Fig. 1.14 First and foremost, theplant genetics industry is now heavily concentrated in a half-dozen major firms thathold substantial numbers of key patents on germplasm. They also have intellectualproperty coverage of the related enabling technologies, such as gene guns (physicaldevices for injecting DNA through cell walls) and Agrobacterium tumefaciens (Bt)transformation systems.

13 See, for example, the very readable account by Specter (2000) of Monsanto and Robert Shapiro, its

CEO, during this period.14 Another graphic presentation of the various mergers as they relate to developing countries is contained

in Byerlee and Fischer (2001).


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Fig. 1. Changing structure of the plant genetics industry (ca. October 2001). Source: Modified from

(RAFI, 1998) and (Brennan et al., 1999); supplemented by numerous stories from The Wall Street Journal.

Second, the control of patents and seed distribution networks exercised by thesecompanies has substantially increased the barriers to entry for new firms in the fieldof germplasm development.15 The scale of these operations is now enormous. Forexample, DuPont paid $9.4 billion for just one company, Pioneer, to underpin itsseed operation, mainly in maize.

Third, any research institutionpublic or privatewishing to use the traits orenabling technologies must, as a practical matter, have commercial relationships oralliances with these firms. This point, in turn, implies that the research institutionwill need something to offer to the large firmstechnologies to trade, cash, or theglow of favorable publicity from participating in a noble cause.

Fourth, given the profitability motive of these companies, much of their researchhas focused on innovations that could generate linked sales of seeds and chemicals.It was no accident that two of Monsantos early seed products, Roundup Readycorn and soybeans, were linked to the companys major herbicide. More generally,

15 On the other hand, new biotech companies do continue to emerge. This list includes Paradigm,

Mendel, Ceres, Akkadix, Exelisis, etc.companies that typically have one or two excellent ideas and

$1050 million to work with.


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74 percent of the transgenic crops grown commercially between 1996 and 2000 hadherbicide resistance as the trait of primary interest (James, 2001). Lastly, the private-profitability focus of these firms has created, often inadvertently, many orphan crops

and countriescommodities and nations that are under-researched, yet unprofitablefor the private sector to pursue.16 This outcome, we would argue, places a burdenon private firms to make their technology available to these countries under generousterms. However, as Pingali and Traxler, 2002 argue, there will be fewer orphans ifthe public sector completes the preliminary adaptive research on these commoditiesand in these countries, thereby lowering the cost barriers to the private sector.

Together, these circumstances pose serious difficulties for the poorest countriesof the world. The use of biotechnology on major crops is becoming increasinglydifficult for them. This point is of great concern where breakthroughs are neededand where dietary dependencies can be highfor example, more than 50 percent ofcalories come from maize in several southern African countries. Most of thesenations have small GDPs and they also rely disproportionately on non-hybrid, trop-ical, and poor-peoples food crops of little concern to major plant biotechnologycompaniescrops that will receive little attention from the private sector. Further,these countries typically lack the trained scientists needed to use or develop new tech-nologies.

The poorest countries thus face the daily dilemma of how to allocate scarce humanand financial resources in plant breeding. Many nations do not have a single plantbreeder working on secondary crops of vital importance to their people. Should

developing countries completely forego attention to such crops and engage insteadin direct involvement in more commercial crops such as maize? and, how is thatallocation decision affected if access to the latest genetic materials and technologiesfrom other countries become more and more limited for maize?

The foregoing allocation dilemma also faces international organizations such asthe Consultative Group on International Agricultural Research (CGIAR) supplyingresearch products that are public goods to developing countries.17 What types ofalliances should the not-for-profit sector form with the private sector to move keyaspects of the technology into crops and countries that otherwise would be leftbehind? How much financial and human capital should be spent on inventing around

patents not easily obtained under favorable licensing terms from the private sector?Should centers of the CGIAR and other similar agencies simply disregard the owner-ship of intellectual property if the products or processes are not patented or registered

16 Sachs (2000) has written perceptively about technologically excluded countries in the process of

development.17 We assume that readers are broadly familiar with the CGIAR, whose 16 international centers expend

about $350 million annually on agricultural research relevant for developing countries. These funds come

from some 60 donors, mostly governments, and are spent primarily on developing germplasm, enhancing

resource management, and training. Readers seeking more information about the CGIAR should see

www.cgiar.org.
http://www.cgiar.org/http://www.cgiar.org/http://www.cgiar.org/http://www.cgiar.org/


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in a particular country?18 If so, do they face threats from country donors where theintellectual property resides? and what happens, and to whom, should any of theresulting commercialized commodity production enter international trade?

Biotechnology and transgenics

Industrial structure and patents present a formidable set of technology-access prob-lems for poor countries. In a less direct, but no less important manner, these nationsmay also become victims of Northern GMO battles. Volumes have been writtenabout the controversy surrounding transgenics as they affect Europe and the US, butanalyses of their effects on poor countries have only recently begun to appear. 19

The major controversies on the use of biotechnology in germplasm developmentsurround transgenic manipulations that move a gene or set of genes from one speciesto another.20 Use of transgenic crops is increasing rapidly. In 2000, the area devotedto such crops totaled 44 million ha., an area twice the size of UK (James, 2001).However, 99 percent of production was concentrated in four countries (US, Canada,Argentina, and China) and in four crops (soybeans, corn, cotton, and canola). Forbetter or worse, transgenic crops thus far have bypassed all but a few developingcountries.

The controversies over transgenics, particularly in Europe, raise at least threeimportant questions concerning developing countries. The first question is whetherdeveloping countries will be allowed to make their own decisions about whether to

employ transgenic technologies to feed their people, second, will such productionbe allowed in world trade, and third, will worries over GMOs preclude the newmicrobiology from being used in non-transgenic applications.

Most observers recognize that the use of transgenics carries both costs and benefits(Rissler and Mellon, 1996; Gisselquist and Srivastava, 1997; Persley and Lantin,2000; Kaiser, 2001; Royal Society, 2000; National Research Council, 2000). Benefitsmay be large, but the possibility of considerable danger cannot be ruled out. Honor-able men and women can thus assess risk-return profiles quite differently acrossnations and economic classes. Our intention here is not to open this debate or pass

judgment on the various positions. Instead, we simply repeat what we have heard

so often from many developing country officials and scientists: that developing coun-tries must be in a position to make their own decisions about these matters, withaccess to sufficient information, but without undue pressure. Such a decision is mootif the technology has little relevance (which is how some from the South describe

18 Ingo Potrykus, the chief architect of vitamin A-enhanced rice is quoted as saying, So many fields

of research are blocked by corporate patents. I had to ignore them or I couldnt move at all.

(www.gene.ch/infor4action/2000/Mar/mag00002.html)19 Gaskell et al. (1999) provides a useful summary of European versus US attitudes. See Paarlberg

(2001) and Huang et al. (2002) for recent reports on developing countries.20 The development of molecular markers and the practice of marker-assisted selection (which improves

and speeds classical Mendelian breeding) is not controversial. Similarly, tissue culture, now used for the

quick and virus-free production of certain crop planting materials, rarely produces acrimonious debate.
http://www.gene.ch/infor4action/2000/Mar/mag00002.htmlhttp://www.gene.ch/infor4action/2000/Mar/mag00002.htmlhttp://www.gene.ch/infor4action/2000/Mar/mag00002.htmlhttp://www.gene.ch/infor4action/2000/Mar/mag00002.html


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the early focus on herbicide resistance) or if access to the technology itself is severelyhindered by laws, policies, or attitudes reflecting interests only of developed coun-tries.

Our second concern focuses on bio-safety, a topic that is truly a two-edged sword.Poor countries do need clear and appropriate bio-safety protocols. But as Paarlberg(2002) points out, disagreements over the form and extent of regulations has beena seriously inhibiting factor in sorting out the costs and benefits of transgenic intro-ductions. On occasion, protagonists for or against certain safety provisions have comefrom the trade or corporate sectors; however, more often they have been from thoseanti-GMO groups who oppose transgenic crops for any purpose or reason.

A third concern has to do with the potential transfer of all biotechnologies, evenif they do not involve transgenics. Controversies over GMOs cast a pall over anentire set of potentially useful and otherwise acceptable techniques whose use maybe discouraged or restricted because of their perceived association with transgenicFrankenfoods. Developing countries could thus be denied powerful tools and germ-plasm useful for expanding agricultural production and trade. As Pinstrup-Anderson(2001) recently observed, The prediction so often heard that the poor in developingcountries are unlikely to benefit from modern biotechnology in the foreseeable futurecould well come truenot because the technology has little to offer, but because itwill not be given a chance.

International treaties and negotiations

When Queen Hatshepsut dispatched her army on the worlds first recorded govern-ment plant collecting expedition in 1482 BC (Farney, 1980), we presume that sheexpected to encounter differences of opinion concerning ownership questions.Egypts first Queen was prescient. Almost 3500 years later, there are still conflicts.The biggest change is that governments now send armies of negotiators to establishrules for international transfers of biological materials. The CBD and the new FAOInternational Treaty on Plant Genetic Resources, together, constitute the legal andideological framework for the new germplasm regime.

Political tensions have intensified dramatically in recent years over the ownership

and exchange of genetic resources. In large part, these tensions have arisen from theperception that developing countries have been exploited, even robbed. There areboth historic and modern elements to this story. Most major agricultural crops weredomesticated over a period of thousands of years in what are now termed developingcountries (DeCandolle, 1886; Vavilov, 1926; Harlan, 1975; Simmonds, 1976).Illustrative of this history, the US has an agricultural system composed almostentirely of imported crop species. It is easy to comprehend, therefore, that thedeveloping countries of Asia (the region that gave rise to rice, soybeans, and bananas,for example), or Africa (which supplied cotton, sorghum, and watermelon) or theNear East (the home of wheat and rye), or Latin America (which supplied maize,

beans, potatoes, and tomatoes) might feel that they got the worst of the exchangewith the US, which donated little more than cranberries, Jerusalem artichokes, andsunflowers to the cornucopia. This perception of unequal historical exchanges


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between North and South was a major determinant of the early intergovernmentaldebates on genetic resources within FAO (Fowler, 1994).

With the expansion and strengthening of Intellectual Property Rights for biological

materials, the feeling of being exploited grew. Now, it seemed, the private sector inthe North was claiming credit for, and ownership over, genetic resources of cropsdomesticated and furnished by the South. Moreover, firms of the North were usingthe new rights to underpin the construction of corporate empires. Although patentsand other Intellectual Property Rights provided a mechanism through which breederscould control their products and extract benefits, developing countries had few toolsat their disposal to obtain compensation for their efforts and contributions. Not sur-prisingly, the assertion that plant genetic resources were the common heritage ofmankind, and should be fully and freely exchanged, came to be greeted with cynicismwhen uttered by anyone from an industrialized country.

CBD

As country delegates convened to complete the CBD at the Earth Summit in Riode Janeiro in 1992, they were aware not only of the ecological importance of biodiv-ersity, but also its usefulness and unrealized economic value. Decision makers inmany developing countries had come to believe that their countries were gene rich,and sitting on genetic gold mines. Indeed, it appeared plausible that the exciting newbiotechnologies they were reading about in the newspapers would be used to trans-form some lowly tropical forest plant or bug into a cure for cancer. In this setting,

common heritage yielded to an assertion of national sovereignty and to an agreementembodied in the CBD that future access to genetic resources would take place basedon prior informed consent and mutually agreed terms negotiated with the countryof origin.

In the aftermath of the Convention, countries have been scrambling to enact accesslegislation (Glowka, 1998). If there is any common element to the approaches ofdifferent governments, it is that virtually all see themselves as sellers of geneticresources. Interestingly, no one seems to be a buyer. As a consequence, the legis-lation is laden with restrictions to access, designed more to prevent abuse than tomaximize benefits.21

Drafters of access legislation seem to have been preoccupied with controllingaccess to diversity at the species level, that is, to medicinal plants. No provisionsare made for treating (intra-species) agricultural biodiversity differently. A plant col-lector wishing to obtain a sample of rice from a farmers field to add to the globalcollection of 420,000 accessions must go through the same bureaucratic proceduresdesigned to ensure that the country is not robbed of the future cure for cancer. Thislack of flexibility has already halted most agriculture-related plant collecting.

21 It is revealing that the 31 October 2000 deadline for governments to provide the Secretariat of the

Convention with the names of official focal points for inquiries about access and benefit-sharing arrange-

ments came and passed without a single government nominating a focal point. Seven years after the CBD

came into force, it is still difficult to know to whom one should apply for permission to collect genetic

resources in a country.


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The 11 gene banks of the Consultative Group for International AgriculturalResearch (CGIAR), which contain an estimated 40 percent of the genetic diversityfor the major food crops, are the predominant source for genetic materials relevant

for most developing countries. These banks averaged 9782 acquisitions annually forthe five calendar years before the CBD. In 1997, the last year for which data areavailable, the number of new accessions was only 563. The decline in the numberof collection missions was even steeper, going from triple digit to single digit num-bers for the same time periods (SINGER, 2001; Evanson and Gollin, 2001). Storiesare also beginning to be told of unique genetic populations being lost to road-buildingor airport construction, with the full knowledge and tacit consent of the governmentinvolved. In these instances, either regulations would not allow collection even forrescue purposes, or government officials found it safer to deny collecting permitsthan to run the risk of being accused of aiding biopirates.22

Barriers to providing access to plant genetic resources for food and agriculturecan also be found in the Convention itself. Article 2 of the CBD states that thecountry empowered to grant access is the country of origin, which is defined as thecountry which possesses those genetic resources in in-situ conditions and, in thecase of domesticated or cultivated species, in the surroundings in which they havedeveloped their distinctive properties. Unfortunately, distinctive properties are notdefined. A single sample of sorghum, for example, may have numerous distinctiveproperties, and thus multiple countries of origin under the CBD. This situation iscomplicated by the fact that the precise geographical origin of each property is simply

unknown in most cases because it arose thousands of years ago. These complicationsrender the Convention almost totally inapplicable to the type of genetic resourcesused in food production (Fowler, 2001a).

The need for different approaches to agro-biodiversity was recognized, however,in the negotiating sessions leading to the adoption of the CBD. Delegates to thesesessions noted the need to seek solutions to outstanding matters concerning plantgenetic resource. In particular, they worried about access to ex-situ collectionsassembled prior to the coming into force of the Convention. As a result, a mandateto open negotiations on these subjects was passed to FAO.

International Treaty on Plant Genetic Resources for Food and AgricultureFAO began hosting intergovernmental negotiations in 1994 to revise its voluntary

International Undertaking on Plant Genetic Resources (itself a product of the nowofficially discredited common heritage era) into a legally binding instrument in har-mony with the CBD. The negotiations concluded in early November 2001, with theformal adoption of the International Treaty on Plant Genetic Resources for Food andAgriculture (FAO, 2001). The treaty will come into force ninety days after the 40thcountry has formally ratified it. This process could easily take some years; indeed,

22 In personal communications, David Williams of the International Plant Genetic Resources Institute

and Aart von Schoonhoven of the International Center for Tropical Agriculture cite examples concerning

groundnuts and papaya, respectively.


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some countries such as the US and Japan that abstained in the voting are unlikelyever to ratify it.23

The treaty, when ratified, will establish a multilateral system for access and

benefit-sharing. Parties (governments) agree to provide other governments (or legalpersons within those countries) with facilitated access to genetic resources for aspecified list of crops and forages. Recipients, in turn, agree that they will pay intoan international fund an equitable share of the benefits arising from the commer-cialization of a crop variety that incorporates genetic material obtained from themultilateral system. In other words, royalties on new crop varieties bred with geneticresources from the multilateral system will flow into the coffers of that system. Thesefunds will then be used for programs (for example, germplasm conservation orcapacity building) agreed upon by the Governing Body. This benefit-sharing pro-vision will not apply if the new variety is made available without restriction toothers for further research and breeding The provision will therefore probablybe relevant only when the new variety is protected by patents.24

If our interpretation is correct, the multilateral provision is unlikely to generatesubstantial funding. Royalties will be assessed as a percentage of profits from seedsales of particular new varieties, which is not a particularly large base. Moreover,the two countries where such patenting is available and most widely usedthe USand Japanare unlikely to ratify the treaty. Generation of funding was the prizesought by many countries. Time will undoubtedly reveal, however, that access itselfis by far the most important benefit, not funding.

The list of crops covered by the multilateral system, which is ostensibly con-structed on the basis of importance to food security, includes some 35 crops (andin the case of Brassicas, crop complexes) and approximately 80 (of 30,000) speciesused as forages. Most major crops are covered, including rice, wheat, maize, potato,banana, and common beans. Some very important crops, however, are missing:soybeans, groundnuts, tomatoes, tropical forages, onions, sugarcane, melons, grapes,cocoa, coffee, and most industrial crops such as oil palm and rubber. In many cases,individual countries or regions concluded that they might gain more from withhold-ing these resources from the multilateral system and then seeking to sell them bilater-ally. China, the center of diversity for soybeans, insisted that soybeans be excluded,

and when this was done, Latin America withdrew groundnuts. Not to be outdone,Africa took tropical forages off the table. This process may help the reader under-stand the irony of how a list of crops crucial to world food security contains aspara-gus and strawberries, but is missing soybeans, groundnuts, tropical forages and mostpoor peoples crops.

The crux of the debate at FAO has always had to do with access and benefit-sharing. The questionable underlying logic, borrowed from the CBD and the market-place, is that a certain amount of access should be balanced with an appropriate

23 The formal vote on the treaty was 116 in favor, none opposed, and 2 abstentions.24 Varieties protected by plant breeders rights remain available to others for research and use in

breeding programs. It does not appear, therefore, that this commonly used form of intellectual property

right would trigger benefit-sharing under the new treaty.


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amount of benefit-sharing. Developing countries would be the suppliers of geneticresources (mostly in the form of seeds of traditional varieties), and developed coun-tries would provide the benefits (funds and technologies).

The basic premise for the negotiations was, from the very beginning, deeplyflawed. Were it not, either the marketplace or the CBD itself might have offered aquick and satisfactory solution to the problem of plant genetic resources for foodand agriculture. Developed countries need for access to developing country germ-plasm was overestimated, and developing countries need, underestimated or ignoredcompletely. This underestimation is especially the case for many crops omitted fromthe multilateral system.

Failing to secure guarantees from developed countries of additional financial bene-fits in return for expanding the list of crops in the multilateral system (including, inimportant instances, crops that are grown only in the South), developing countriesinsisted on a truncated list. We have no doubt that developed countries and theprivate sector will be able to secure the genetic resources they need. We are lessconfident that African countries, for example, will have the capacity and resourcesto negotiate arrangements abroad to obtain tropical legumes or wild relatives ofcassava from Latin American countries, or even genetic resources of local importancefrom a neighboring country.

It is too early to have quantitative indicators of the impact of the new treaty. Aswe write, the treaty is not yet two months old; ratification and implementation maybe years away. In spite of the uncertainty, however, we believe that four conjectures

are warranted.First, the new treaty may reduce political passions and thus facilitate the flow ofgermplasm for the crops it covers. It may prompt countries to amend existing biodiv-ersity access legislation to expedite transfers of plant genetic resources for food andagriculture. While this outcome would be a welcome improvement over the statusquo, the treaty will not turn back the clock to the days when the free flow of germ-plasm applied virtually to all crops and all countries. Significantly, however, theinternational status of the largest and arguably most valuable collections in theworldthose held by CGIAR centersis confirmed in the treaty. Political and legalthreats to these collections and their continued availability to the international com-

munity should abate. If there is a hidden gem in the treaty, this is it.Second, the treaty unfortunately does not cover all crops. Access to geneticresources of many cropsincluding those noted above as well as most fruits andvegetables, and many tuber cropswill remain restricted. It will be nearly impossibleto assemble genetic resource collections of these crops in the future for the purposeof initiating or expanding breeding programs. This failure will work more to thedisadvantage of developing countries for reasons discussed earlier.

As the multilateral system is composed of crops deemed by governments to becritical to food security, excluded crops, by implication, are likely to become politi-cally unimportant and thus vulnerable to cuts in aid funding. All too often, foreign

aid is the only source of financing for specialized breeding activities. One of thebiggest losers, for example, will be the not-for-profit Asian Vegetable Research andDevelopment Centre, headquartered in Taiwan, and its partners in developing coun-


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tries. Funding for the CGIARs development of soybean, groundnut and tropicalforages will also decline, to the detriment of developing countriesin some cases,to the very countries that insisted on their exclusion from the multilateral system.

To make matters worse, access to genetic materials of excluded crops will presum-ably come under rules set out in the CBD and related national access legislation.25

In effect, access will be seriously constrained, and public involvement repudiated atthe very moment when both are crucial to building food security in developing coun-tries for an indeterminate period. The off-setting benefits are likely to be miniscule.No substantial market for plant genetic resources has ever existed. Traditional farmervarieties, though used as breeding materials, have never been sold as such. Developedcountries clinging to the hope that they will someday get lucky and win the genelottery are likely to be disappointed. While waiting for the winning tickets, however,restricted germplasm flows will inhibit the modest efforts underway to improve cropsexcluded from the multilateral system.

Third, the treaty is unlikely to include all countries. For various reasons a numberof countriesNorth and Southmay remain outside the agreement. Others may takea wait and see attitude, and delay ratification until they see who else joins the club.Unless most nations quickly adhere to the agreement, the new international systemwill only be partial in its geographic coverage.26

Fourth, several key issues will be left for the Governing Body of the new agree-ment to resolve, including setting the level of benefits to be provided by those thatacquire genetic materials under the agreement and use them to create a new commer-

cial plant variety. Parties to the treaty will also have to decide what, exactly, consti-tutes access from the multilateral system. Understandings on these issues will haveto be reached before the Governing Body can determine the wording of the standardMaterial Transfer Agreement that all Parties will be required to use when they pro-vide access to genetic resources. It is troubling that the treatys definitions of keyterms (such as plant genetic resources and genetic material) are already beinginterpreted in multiple and contradictory waysa signal that implementing the treatywill not be straightforward. Delegates were aware of this problem when theyapproved the treaty, but simply passed the disputes to the future Governing Body.Resolving these technical matters was never going to be easy. The political difficult-

ies will be even greater, since the treaty specifies that all decisions of the GoverningBody must be by consensuseach Party will have a veto. Unless key issues areresolved quickly by the Governing Body, the entire agreement could become para-lyzed, leading to a new round of conflict.

Adoption of the new International Treaty on Plant Genetic Resourcesdespite itsserious flaws-should be welcomed. The treaty marks a tentative step in the rightdirection. It is not a perfect treaty, but perfect was never one of the options on the

25 Existing CGIAR collections of excluded crops, however, will be covered by the treaty and will

remain available to countries under the terms of a material transfer agreement, the text of which remains

to-be-negotiated by the treatys Governing Body.26 Interestingly, all of the CBDs late-signing countries (those ratifying the treaty more than five years

after it came into force) have been developing countries.


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table. The realistic options, including the alternative of not having a treaty at all andseeing all germplasm exchanges take place through individual contractual agree-ments, were all worse. Eventually, the treaty may provide a more rational basis for

genetic resource exchanges.Vexing problems remain to be solved, however, if the treaty is to realize its poten-

tial. It must attract wide adherence if it is to become the legal structure regulatingaccess and benefit-sharing and if it is to bring some degree of order and predictabilityto germplasm flows. The treaty will also have to expand its coverage to include allimportant crops. Until it does so, the commons will remain partitioned, with all ofthe attendant problems and controversies encouraged by such a sub-division.

Responses

We have described in this essay the emergence of a new international regime forthe development and transfer of genetic resources. This new regime operates in thecontext of dramatic changes in the biological sciences and is characterized by alteredinstitutional relationships (particularly involving the public sector), new corporatestructures, and evolving laws and policies affecting what kinds of biological materialscan be owned and how they can be used.

Changes of this magnitude are rarely achieved smoothly or without controversy.Typically, few individuals or institutions involved in the process have an accurateor complete understanding of what the change is all about and where it is leading.

Communication deteriorates, decibel levels rise, and existing forums and mechanismsfor making law and policy fail, both nationally and internationally.

Each of the new regimes elements has been associated with controversy. Eachhas had its turn before intergovernmental forums, but thus far governments havefailed to grasp the significance of the combination of elements and have yet to fashioncomprehensive or thoughtful responses. In international negotiations, delegates typi-cally lack the background to understand issues of such scientific and legal com-plexity. As negotiators, they arrive without a broad enough mandate (or sufficientenough authority) to tackle the many dimensions of the problem (Petit et al., 2001).Genetic resource discussions can easily be seen as occupying territory belonging toministries of environment, agriculture, health, commerce, justice, science and tech-nology, and foreign affairs. How does a government formulate its policy across somany ministries, and who with sufficient political power can be sent to present thepolicy? This problem is becoming ubiquitous and UN agencies have not yet figuredout what they might do, if anything, to keep the intergovernmental bodies and negoti-ations they host from becoming impotent talk-shops. Clearly, there is a need forinvigorating certain intergovernmental forums, empowering them to address and acton issues that have heretofore been too complex and too contentious to tackle seri-ously. Despite high levels of interdependency for genetic resources,27 protagonists

27 According to Palacious (1998), Italy and Ghana, for example, are almost identical in terms of their

dependency on crops originating outside their borders.


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persist in framing the debate in terms of NorthSouth, Cold War, or donorrecipient.Indeed, new wordshighly revealing of the debates characterhave been addedto the language, biopirate being the most evocative.

We take as given that certain elements of the new regime are here to stay, at leastin some form and at least for some yearsprotection of intellectual property forcertain types of biological materials, corporate involvement in the life sciences, andnational sovereignty over genetic resources. Political proposals that amount to turn-ing back the clock on these subjects have limited utility. Our call is not for disengage-ment, but rather a plea for alternatives that can substitute for unrealisticyet other-wise perfectvisions. What follows, therefore, are some of our imperfectsuggestions.

Capacity building

If poor countries are to reap the benefits of twenty-first century agriculturalresearch, they will need help. Part of this assistance can come from intermediaryagencies, such as the CGIAR centers, which can help transform, adapt, and developnew forms of technology for under-researched crops, neglected farmers, and laggingregions. But there are severe limits to what outsiders can do, just as there are severelimits to what technology alone can do to solve problems of food security. Inadequateinvestments in human resources within these countries are a major part of the prob-lem. Recent educational and R&D investments in poor countries are not at levels

that should make either developed or developing countries feel very proud. Whileit is true, for example, that the number of trained personnel in agricultural researchin sub-Saharan Africa was greater in 1991 than in 1961 (Pardey et al., 1997), it isalso true that sub-Saharan numbers are still pitifully small. The total number ofagricultural research workers in 21 countries of sub-Saharan Africa in 1991 was lessthan 7000, and total expenditures in 1991 (in 1985 dollars) for agricultural researchin that region were less than $700 million.28

In a global review of agricultural research systems, Traxler and Pingali (1999)classified some 40 national research systems with respect to their ability to providesignificant amounts of parent materials for their crossing programs (so-called Stage

3 capacity), to undertake crossing programs and to produce the occasional variety(Stage 2 capacity), and all others (Stage 1 capacity). They concluded that only 7national research systems for wheat and 13 for rice belonged either in Stage 2 or 3.Since the poorest countries are precisely the places which private-sector firms areleast likely to serve, a rapid upgrading of national research capabilities is vital forall forms of technology development and transfer.

In such a world, the centers of the CGIAR assume considerably more importancein the development and transfer of genetic resources than their size would suggest.These centers house some of the largest and best documented collections of genetic

28 By way of comparison, Stanford University alone had a consolidated budget of $875 million in 1991,

also measured in 1985 dollars.


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resources in the world.29 They have generally well-equipped facilities and skilledstaff. Their mission has brought them to work on the crops of importance to thepoor, whether or not these crops are important commercially at the global level.

Their mandates also include research on regionally critical crops such as yams, sweetpotatoes, cowpeas, chickpeas, and cassava. In growing numbers of the poorestdeveloping countries, the CGIAR functions de facto as the national research programfor many of the 25 crops that it covers. CGIAR genebank collections are in thepublic domain and virtually all of the crop materials developed at the centers areavailable to all, with virtually no restrictions. CGIAR centers are, however, no matchfor the range of problems that face national research systems, and indeed, thesecenters face their own funding and capacity-building difficulties.

By way of comparison, the Michigan State University Agricultural ExperimentStation has a budget that is roughly twice that of the largest of the CGIAR s centers.The International Maize and Wheat Improvement Center (CIMMYT), with an annualbudget of about $40 million, works on two of the three most important food cropsin the world and their associated natural resource and economic problems. TheMichigan State facility serves primarily a state clientele of 8000 full-time farmers,16,000 part-time farmers, and 27,000 hobby farmers (Eicher, 1999). By compari-son, 85 percent of all spring bread wheat varieties and 86 percent of all spring durumvarieties released in developing countries from 1966 to 1997 were based on CIM-MYT materials (Heisey et. al., 1999). CIMMYTs maize breeders, meanwhile,released hundreds of new lines and recently won the prestigious World Food Prize

for Quality-Protein Maize. With half the resources of the Michigan State facility,CIMMYT serves a clientele that numbers in the billions.Similarly, the entire CGIAR system is only the size of the Brazilian national

research program. It cannot be surprising that the CGIAR centers have not, as theyare often urged to do, worked their way out of a job by building up capacity in thenational programs. These centers can and should do more, but so too should key aiddonors and the developing countries themselves. The World Bank, in part becauseof a substantial absolute and relative decline in its agricultural lending portfolio, hasrecently announced a new focus on education and training. Similarly, the US Agencyfor International Development (USAID) has focused very little on agriculture during

recent years, although the new Administrator has promised to reverse this decline.In general, the development profession seems to have forgotten the crucial roleof agriculture in providing incomes and jobs, as well as food, in poor societies. Anhonest assessment of what is required of the public sector in developing-countryagriculture would be a reasonable place to begin in setting new priorities.

29 At present, the CGIAR genebanks are the only collections in the world with formal international

status. As a consequence of agreements with FAO, the collections are not the property of the centers,

but are held in trust for the international community.


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Legal status of plant genetic resources

No nationand no ongoing crop breeding programcan be self-sufficient interms of its requirements for genetic resources. The degree of interdependencybetween regions and nations is extremely high, and developing countries are noexception (Palacious, 1998). This point is underscored by the fact that developingcountries are, and for decades have been, major net recipients of samples from thegenebanks of the CGIAR (Fowler, 2001b). The continuing flow of genetic materialsaround the world depends on an enabling legal and policy environment and on aconsiderable degree of trust and cooperation. As we see it, these ingredients are allin short supply at the moment.

Highly restrictive access legislation has been adopted in many countries. Access

to in-situ (or on-farm) sources of genetic diversity has virtually ended and inter-governmental and other public sector genebank transfers are becoming more prob-lematic. In the long term, this situation will be most detrimental to developing coun-tries. The primary reason for this conclusion is that developed countries alreadyhave huge stores of germplasm in rather modern genebanks, whereas more than 75developing countries lack any long-term storage facilities for plant genetic resources(FAO, 1998). This situation increases their dependency on access from foreign sourc-es.

A sensible international treaty brokered at FAO would have encouraged the flowof genetic resources of all crops and recognize that this flow would be the chief

benefit of an agreed multilateral system. Politically, however, this was not enough,if only because of the ingrained perception that developing countries have not beenadequately rewarded for their historic and ongoing contributions (and generosity) indeveloping the germplasm that fills the shelves of the worlds genebanks. Even toaddress immediate needs, the FAO treaty will need to secure and provide a predict-able amount of funding for capacity building to improve genetic conservation indeveloping countries. The amount of additional funding needed is relatively mod-estprobably on the order of $150 million annually. The Treaty would also needto take into account, improve, and expand the benefits that developing countriesreceive from international public sector research programs.

If the new treaty comes to be perceived as fair and workable (and is ratified bya sufficient number of countries to become truly global in scope), it could providethe quid pro quo for altering overly protective national access legislation. It wouldalso put the moral and political force of the international community behind thedisparate efforts to protect the public domain from actual and perceived encroach-ment on its intellectual property.

Public private partnerships

Processes that keep germplasm and genetic technologies in the public domain areextremely important because they provide the freedom to operate for agencies pro-ducing public goods. This approach has long been a hallmark of the public sector;


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interestingly, it may also become a feature of some firms within the private sector.30

Monsantos recent willingness to share genomic information on rice is one importantexample (Gillis, 2000).31 There has been much speculation about this decision, but

it has set an important precedent for the private sector. Similarly, the publication ofthe full genome for Arabidopsis thaliana, a member of the mustard family, is anotherimportant example (Somerville and Somerville, 1999).

There is, however, a potential downside to disclosure. Protection is afforded onlyto that which has been disclosed and not to the surrounding data or constructs. More-over, partial disclosure may give others clues that result in their patenting the restof the genetic mechanism in questionan action that the initial disclosure wasspecifically intended to prevent. Therefore, in spite of the very real progress in keep-ing genomics in the public domain, the specific technologies that govern function,use, and manipulation of these genes are increasingly likely to be held under someform of intellectual property protection. In turn, such protection provides both theopportunity and the forcing mechanism for new partnerships and alliances withinand between the public and private sectors.

Most public-sector agencies are not well organized to deal with the protection ofintellectual property. The culture and mission of these agencies, the outlook of theirstaffs, their historic openness with scientific findings, and their general lack of legaltalent all mitigate against the use of protective devices. However, if these agencieswish to remain at the forefront of future agricultural research, many of them willfind it essential to use patents or other forms of protection. Revenue generation may

become one motive, especially given the global decline in support for agriculturalresearch. Much more important than revenues, however, will be the need for first-class research organizations to maintain operating freedom. Alliances with private-sector firms may require that the public sector hold patents for bargaining purposes.

Clearly, not all research findings need to be protected; indeed, as a practical matter,very few of them do. However, public and nonprofit agencies disregard of recenttrends in the protection of intellectual property puts both of them and the countriesthey serve in jeopardy. Unfortunately, a great many of these agencies are seeminglystill at the denial stage on this issue.

At a minimum, the capacity to use protected methods and materials from the

private sector will require public agencies to have confidentiality agreements in place,even if patenting is not pursued directly. Tapping the private sectors capacity andexperience in scaling up from the test tube through product distribution will also beinvaluable. Finally, restrictive uses of public sector findings will likely become morecommonplace unless the intellectual property dimensions of those findings are con-sidered on a systematic basis.

30 There may be useful analogies that develop from the sale and use of patented drugs in the fight

against AIDS.31 Monsanto also announced in August 2000 that it would license, at zero cost, all of its proprietary

technology used in the development of vitamin A-enhanced rice. This announcement followed a July

2000 statement by Novartis pledging to make a wide array of its seed technology available to subsistence

farmers on a no-charge basis.


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Neither the public nor the private sector institutions will be completely comfortablewith publicprivate arrangements, but the limited experience to date suggests thatseveral forms are indeed workable. Wright (2000) has developed a useful taxonomy

of formal and informal arrangements that could be used to bring biotechnology tothe poor. These mechanisms include licensing under varying cost and technology-sharing arrangements, market segmentation between rich and poor nations, tech-nology grants, joint ventures, alliances, and various kinds of direct research support.32

Market-sharing has been a key element in most of the early agreements. Theprivate partner typically retains the rights to distribute, sell, or license products inthe developed countries, whereas the public agency retains rights for the developingworld.33 But the problems of how the market is to be segmented, how poor regionswithin richer countries are to be dealt with, how the trade flows of products are tobe regulated between rich and poor nations, and how the technology differential isto be implemented (for example, gifts or licensing at zero cost) help explain whynegotiations between the public and private sectors are rarely easy or short. Indeed,establishing principles of market segmentation (including product liability issues)and the development of prototype agreements appear to be important areas for furtherresearch and experimentation.34

Finally, there are the interrelated questions of profits, responsibilities, and assist-ance. Much has been written about the short-run profit focus of private firms. How-ever, the early negotiating experience of the CGIAR Centers indicates, on balance,that companies in the private sector have demonstrated an informed willingness to

discuss technology issues in support of agriculture in poor countries. It has thus beenpossible to find some winwin solutions that embrace the concerns of both the publicand private sectors. These new kinds of partnerships seem to us to represent one ofthe most important avenues for improving germplasm flows into developing countriesduring the twenty-first century. But as Pingali and Traxler indicate in their companionessay (2002), there are likely to be numerous instances when the public sector willsimply have to purchase relevant pieces of germplasm technology from the priv-ate sector.

Whether any partnerships with the private sector represent a viable direct optionfor national research programs in the very poorest countries remains to be seen. For

this sub-set of developing nations, the chances appear to us to be depressingly slim.As a consequence, we see few alternatives to improving public sector capabilitiesin agriculture as a first step in the germplasm-improvement process for this parti-cularly difficult set of food-insecure nations.

32 Partnership examples drawn from hybrid wheat, apomixis, and wheat breeding are illustrated in

CIMMYT (2000).33 Many countries fall neatly into one category or another. However, countries such as China and India

are typically a source of contention among public and private parties concerning whose rules should

prevail in the market-segmentation agreements. Although relatively poor in per capita income terms, both

countries are large in terms of aggregate GDPs, and both also have strong agricultural research systems.34 An important start in this direction has been made by Byerlee and Fischer (2001).


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Acknowledgements

Both of us have been heavily involved with international agriculture during thepast 20 years. This article is shaped importantly by our work with the ConsultativeGroup on International Agricultural Research (CGIAR) and three of its centersCentro Internacional de Mejoramiento de Maiz y Trigo (CIMMYT), the InternationalRice Research Institute (IRRI) and the International Plant Genetics Resource Institute(IPGRI)and with FAO on various of its international agreements. Portions of thisessay draw directly from Falcon (2002). We express our gratitude for the helpfulcomments of Donald Kennedy, Ronald Mitchell, Rosamond Naylor, Anne Peck,Ragnhild Sohlberg, and David Victor. The usual disclaimers apply.

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