Genetic Resources And Traditional Knowledge : Getting The Rules Right For Agriculture: A Key Challenge For WIPO’s IGC

By Susan Bragdon and Lynn Finnegan

Summary: An essential relationship exists among the conservation, development and use of genetic resources, sustainable agriculture and food security. There is an equally essential relationship between the conservation, development and use of genetic resources and small scale-farmers. The strength and effectiveness of any treaty addressing IP and genetic resources depends on the meaningful participation of small-scale farmers, and those that can represent them, as in the treaty deliberations continuing next week at WIPO, write Susan Bragdon and Lynn Finnegan.

Next week the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) will be meeting in Geneva for its twenty third session. The negotiations aim to achieve an international legal instrument for ‘the effective protection of GR (genetic resources), TK (traditional knowledge) and TCEs (traditional cultural expressions)’. The upcoming session will focus on GR and the following session, starting 22 April, will have TK at its centre.

An essential relationship exists among the conservation, development and use of GR, sustainable agriculture and food security. There is an equally essential, and crucial, relationship between the conservation, development and use of genetic resources and small scale-farmers. The strength and effectiveness of any treaty addressing IP and GR therefore depends on the meaningful participation of small-scale farmers, and those that can represent them, in the IGC deliberations.

“With a few exceptions, this shift is really a change in a 10,000 year old history characterized by the open and free exchange of resources.”

This is of particular importance for the economies of developing countries.

The IGC and the countries participating in the negotiations need to understand the development and food security implications of the draft texts relating to the rights and responsibilities over GR and associated knowledge. Questions — such as what impact do proposed texts have on the rights of farmers to use and exchange seed or on the choice and availability of desired technologies and know-how – need to be asked and explored. The needs and expertise of small-scale farmers are essential to ensure all the pertinent questions are identified and the answers fully explored.

While Indigenous peoples have made progress in representation in the IGC, small-scale farmers and their representatives have been largely absent. It is critically important for the IGC and those who take part in it, to simultaneously seek and encourage the participation of small-scale farmers, whether or not they identify themselves as indigenous.

People, and small-scale farmers in particular, have been conserving and developing plant varieties since Neolithic times when humans began to make a transition from hunting and gathering to agriculture. For most of our agricultural history, plant genetic resources were mainly governed by open access and free exchange principles. It is only in the last decades that intellectual property (IP) created the legal means to extract benefits from genetic resources and these IP systems are constructed so that benefits accrue to professional plant breeders (often large companies), with no similar IP benefit mechanisms for the conservation or innovative activities of farmers. With a few exceptions, this shift is really a change in a 10,000 year old history characterized by the open and free exchange of resources.

The number, scope and reach of intellectual property over GR has grown in parallel with an increasing consolidation of agribusiness all along the value chain. Fewer and fewer companies now own and control our GR along with our other means of production. The growth in GR-related IP has been paralleled by a rapid acceleration of a global trend towards diet simplification and a corresponding loss of GR diversity. FAO suggests that three-quarters of the varietal genetic diversity has been lost in the past hundred years with Mexico losing 80% of its maize diversity and India losing thousands of rice landraces in the last few decades.

The private sector and intellectual property may provide some tools to achieve the objectives of food security, though it is clear that alone it cannot fully achieve food security objectives. This is why multilateral instruments governing GR have such potential importance.

IP regimes are not neutral with respect to development goals and long-term sustainability. It is not just about leaving certain segments of the population behind, important though this is, it is about needing the input of the people at the front-lines of the development, conservation and use of valuable GR and knowledge about their use.

The input of small-scale farmers is critical to the success of any IGC GR and TK regime because:

1. Most developing countries are agriculture-based economies where smallholder famers account for about 75% of agricultural production and over 75% of employment.

2. Half the food produced today comes from 1.5 million farmers on small plots of land. The largely IP-protected GRs that make up the monocultures of industrialized farming in the developed world are not viable or sustainable in this context.

3. GR, – and in particular the diversity of GRs that continue to evolve through the work of small-scale farmers in their fields – contributes to the resilience and stability of agricultural production systems by providing control mechanisms and genetic security for adaptation to unpredictable changes in rainfall and temperatures. This is particularly important today as the effects and uncertainties of climate change become increasingly manifest.

4. GR and TK offer social and economic opportunities that contribute to the livelihoods and to social and cultural values.

5. GR is a major contributor to nutrition and health through its direct use. The World Health Organization estimates that in many developing countries up to 80% of the population relies on biodiversity for primary health care.

6. Ecological processes such and the maintenance of water cycling, soil fertility, pollination, seed dispersal, nutrient cycling etc. all rely to a greater or lesser extent on agricultural biological diversity.

7. In situ GR continue to be developed by farmers who maintain the associated knowledge. These GR and TK are integral to breeding and crop improvement with potentially global implications.

The IGC and the States that participate in it must actively move the discussion of the implications of the GR draft on food security and development beyond the input of the political elite, the private sector and the intermittent input of Indigenous group. It must find means to actively promote the participation and input of small-scale farmers.

There has been representation from Indigenous Peoples since the establishment of the IGC in 2000, even if the relationship has not been smooth. It is important for multilateral institutions to consider how they better ensure the participation of critical stakeholders in the deliberations that directly concern and affect them. Small-scale farmers are major actors in the conservation, development and use of GR and associated knowledge and means to solicit and ensure their voices are heard in the IGC negotiations is essential to a meaningful outcome.

Note: The views expressed in this article are those of the authors and do not necessarily reflect the opinions of the organisations with which they are employed or affiliated.

Susan H. Bragdon is a Visiting Professor at the Natural Resources Institute, University of Greenwich and the Executive Director of Seeds for All, a US licensed strategic consulting practice. Susan is a patent attorney and uses her experience in science and law to work on critical global issues such as the conservation, use and management of biological diversity; creating compatibility with environment and agriculture; and promoting food security. She was the lawyer for the Secretariat for the Intergovernmental Negotiating Committee for the Convention on Biological Diversity providing legal advice to the working group handling intellectual property rights, transfer of technology including biotechnology and access to genetic resources. When the treaty was concluded Ms. Bragdon joined the treaty Secretariat as its Legal Advisor. From 1997-2005 Ms Bragdon worked with the International Plant Genetic Resources Institute as a Senior Scientist, Law & Policy, where she worked on legal and policy issues related to plant genetic resources and in particular managed projects on intellectual property rights, Farmers’ Rights, biotechnology and biological diversity and on developing decision-making tools for the development of policy and law to manage plant genetic resources in the interest of food security.

Lynn Finnegan is Project Officer with the Quaker UN Office in Geneva. She has a BA in Geography from Oxford University, (with a dissertation focused on Indigenous Peoples rights and conservation strategies) and an LLM in International Environmental Law from Edinburgh University (focusing on REDD, natural resource law and ecological economics).