Reconceptualizing Intellectual Property to Promote Food Security

Chapter 3
Reconceptualizing Intellectual Property to Promote Food Security

Brad Sherman

Introduction

Typically, intellectual property is seen as a resource that is used by private sector (commercial) organizations to recoup investment in innovation, as a mechanism to exploit creative outputs, or as a means to protect business reputation and goodwill. From this perspective, there is little scope for intellectual property outside of the commercial sphere; at best it is able to protect the reputation of authors and the integrity of their works, at worst it positively hinders public good goals. While this logic has been applied in many contexts, it has been particularly prevalent in relation to publicly funded agricultural research that aims to improve food security and reduce poverty. Under this stereotypical view, there is little that intellectual property can do to assist these goals: at best it is irrelevant, at worst it is a positive hindrance. Despite the prevalence of this way of thinking, there has been a gradual transformation in the way that intellectual property law operates in relation to publicly funded agricultural research. While a number of changes have occurred in developed countries, the changes have been more marked in relation to research that focuses on food security in developing countries. While the goals of poverty reduction and food security remain the same, the attitude towards intellectual property has changed. The aim of this chapter is to chart the nature of this transformation. In so doing it looks at the way that the (apparently) conflicting goals of intellectual property law, which are typically associated with stimulating private sector investment in research, and the goals of improving food security and reducing poverty which underpin much publicly funded development-focused agricultural research have been reconciled. More specifically, it will show that in resolving this tension there has been a change in the way that research and intellectual property are conceptualized.

To do this, this chapter will focus on the fate of intellectual property within CGIAR (Consultative Group on International Agricultural Research). CGIAR was established in 1971 as a strategic alliance of four international agricultural research centers and a limited number of donors who had a shared vision to produce research that improved food security and reduced poverty and hunger.1 This vision was underpinned by the idea that all of the research results generated by Centers should be freely available without restriction and as widely as possible. While the overarching goals have largely remained the same, over the last 50 years the number of Centers has expanded to 15, membership has increased from 18 (countries and organizations) to over a hundred, and the number of fund donors has expanded considerably. Centers are now members of the CGIAR Consortium, which has been established as a legal entity in its own right.

Intellectual Property in CGIAR

When thinking about the role that intellectual property plays within CGIAR, it is important to keep in mind that researchers and Centers interact with intellectual property in a number of different circumstances. It is also important to bear in mind that there is no unified approach to intellectual property. While it may be possible to group Centers together – for example, those with considerable experience and expertise – there are differences in the way that Centers approach intellectual property. In some cases, there are also differences within Centers as to how they think about and deal with intellectual property. While these differences mean that we must be careful about the generalizations we make about intellectual property and the role it plays within CGIAR, it is still possible to divide the approach taken towards intellectual property in CGIAR into three stages.

In the early period (1971–80), intellectual property was largely alien to the day-to-day activities of the Centers and their staff. Centers rarely (if ever) sought or condoned intellectual property protection over the results of their research. Neither CGIAR officials nor Center members regularly engaged in policy debates about intellectual property, nor did they publicly discuss the pros and cons of, for example, patent protection for biological resources.² While there were some exceptions, for the most part intellectual property was something that simply did not that figure in any significant way in CGIAR.

The situation began to change in the early 1980s, however, as intellectual property slowly became something that CGIAR had to grapple with. Gradually, intellectual property began to appear on the agendas of CGIAR committees, to be debated in meetings of Center Directors, and discussed in CGIAR reports and public communiqués. For most of the 1980s the primary concern was plant breeders’ rights and the possible stifling effect that these rights may have had on access to plant genetic resources.3 At this time, the approach to intellectual property was clear and straightforward: intellectual property had no real role to play either in the Centers or the CGIAR system more generally. As publicly funded institutions, the results of the research and development activities of the Centers were seen as international public goods that were, and ought to remain, freely available for all to use. Within this framework, there was little or no room for intellectual property, which was seen as the exclusive tool of private sector commercially focused organizations: at best intellectual property did little to assist the goals of poverty reduction; at worst, it hindered and restricted access, pushed up prices and undermined the goals of CGIAR.

Over time, the traditional approach towards intellectual property has slowly been undermined.⁴ As the external review of the Centro Internacional de Agricultura Tropical (CIAT) said in relation to intellectual property management in the Center, ‘[w]ithin a short span of time, the “rules of the game” have changed’.⁵ While intellectual property is not and will not become a central factor in the way that research in CGIAR is managed, intellectual property has taken on a much more prominent and proactive role in a number of areas.⁶ Specifically, intellectual property has become more important in terms of the extent to which Centers make use of products and processes protected by intellectual property, in relation to the management of genetic resources controlled by the Centers, and as a means to protect the research undertaken within CGIAR. I will look at each in turn.

The first area where there has been a shift away from the traditional approach to intellectual property is the extent to which Centers make use of and rely upon things that are protected by third party intellectual property (often described as a growing use of ‘proprietary inputs’).7 The growing use of objects protected by third party intellectual property covers a range of products and processes from patent protection over research tools (such as polymerase chain reaction (PCR)), diagnostic test kits, genes, and new varieties of plants through to copyright protection over computer programs, data bases, manuals, journal articles and the design of greenhouses. Strictly speaking, this is not new: Centers have always made use of objects protected by intellectual property. What has changed, however, is the extent of use. In many instances this was prompted by the extension of intellectual property protection over upstream research (particularly in relation to biotechnological inventions), by the use of more expensive and sophisticated laboratory equipment developed and protected by the private sector, and by subtle changes prompted by intellectual property (such as the move from ownership to licensing of computers and computer software to get around problems of exhaustion). While these new uses have, at times, created some disquiet, they have quickly been subsumed into the everyday activities of the Centers.

The second area where there has been a change in the way that the Centers and the CGIAR system more generally interact with intellectual property is in relation to the genetic resources that are under the stewardship of the Centers. The various collections held by the Centers have underpinned much of the research undertaken by CGIAR researchers, particularly the development of new varieties. At a general level, the approach taken to these genetic resources remains the same: the Centers operate on the basis that they hold the genetic resources in trust for the global community. What has changed, however, is the way that this overarching aim has been formulated and how it is executed. While the nature of these changes has been more subtle and indirect than some of the other changes that have taken place, nonetheless they still represent an important transformation in the role that intellectual property (and related legal rights) play within CGIAR.

A number of factors have coalesced to bring about these changes. One important event occurred in 2005 when two Australian organizations attempted to take out plant breeders’ rights protection over two varieties of chickpea that had been supplied to them by the CGIAR’s International Center for Agricultural Research in Dry Areas (ICARDA). While the applications were ultimately withdrawn, nonetheless they still played an important role in heightening public awareness of some of the potential problems associated with intellectual property protection.8 The attempt to protect unimproved material that was meant to have been held in trust by ICARDA also had long-term consequences for the Center’s ability to collect genetic materials.

Another factor that changed the role that intellectual property plays in relation to genetic resources within CGIAR was the International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty), which entered into force in 2004. While the Treaty only applies to a proportion of the genetic resources held by the Centers, nonetheless it has been adopted as the model by which all of the genetic resources held in Center collections are managed.⁹ The Treaty introduced three general changes in the way that Centers deal with genetic resources. The first was in relation to the principle of open access. While the content of this ideal has not changed, at least not within CGIAR, the form that it takes has. Previously, although this well-known principle was widely adhered to, it was not formally recognized within CGIAR. The situation changed, however, as a result of the ‘in-trust’ agreements that the Centers signed with the FAO in 1994, which constituted formal legal recognition of the ideal of open access.¹⁰ The agreements, which were seen as a stop-gap measure until the treaty was concluded, were designed to provide certainty about the approach of Centers towards genetic resources. They also brought the collections into line with the 1992 Convention on Biological Diversity. To this end, the agreements provided that Centers held ‘designated germplasm in trust for the benefit of the international community’. The 1994 agreements also provided that Centers were under an obligation to ‘make samples of the designated germplasm and related information available directly to users or through FAO, for the purpose of scientific research, plant breeding or genetic resources conservation, without restriction’. The second change instigated by the Plant Treaty was in terms of the way that Centers manage their genetic resources internally. This occurred because the in-trust agreements that pre-empted the Treaty stipulated that the Centers would not seek intellectual property protection over the genetic material materials that they held in their various collections. While it was highly unlikely that this was going to occur, nonetheless the declaration provided an important statement of intent about the role and place of intellectual property within the CGIAR. The third change brought about by the Treaty related to the way that Centers manage and control what happens to their genetic collections when they are transferred to third parties. This occurred as a result of the 2007 decision by the Centers to adopt the Standard Material Transfer Agreement (SMTA) that had been developed by the Governing Body of the Treaty to manage the transfers of genetic materials covered by the Treaty (namely, the genetic materials listed in Annex 1 of the Treaty). Importantly, this agreement extended beyond the 64 materials listed in Annex 1 to include non-Annex 1 materials collected before the entry into force of the Treaty.11 There are two noteworthy features of the SMTAs that are used when Centers transfer genetic materials to third parties; firstly, they specify that intellectual property protection cannot be taken out on materials ‘in the form received’ by a third party recipient;¹² and, secondly, in the event that a recipient improves and commercializes material received from a Center and the improved material is not available to others for research or breeding, the material transfer agreements provide that the recipient must make the material available to other parties in accordance with the principles of fair and equitable benefit sharing. The material transfer agreements also require the recipient to pay a percentage of any income derived from the improved genetic resource to a central fund that is used to maintain the germplasm collections.

The third area where there has been a change in the role that intellectual property plays within CGIAR is in respect to the research results – the data, products and processes – generated by researchers within the CGIAR system. Historically, Centers and their staff have, by default, been owners of the copyright in the various works that they create: notably, in relation to research reports, journal articles and books. This is not the case, however, with respect to those types of intellectual property that are dependent on registration – notably patents, plant breeder’s rights, and design protection – where there has been very little active engagement. While it is difficult to work out how much CGIAR research has been protected by intellectual property, it is clear that intellectual property protection for CGIAR research – whether by researchers, Centers, or by third parties in consultation and agreement with Centers – has increased. There are a number of reasons for this transformation.

One factor that played a role in increasing CGIAR involvement with intellectual property is the fact that since the 1980s, the opportunity to protect the research undertaken by Centers has increased considerably: this is particularly the case in relation to biological innovations and upstream research. While the level of protection varies between countries, nonetheless there has been an expansion in the types of things protected by intellectual property. Alongside developments in patent law that facilitated protection for a spectrum of innovations from plants through to genes, there has also been an increase in the number of countries offering plant breeder’s rights protection. This has been prompted by the domestic implementation of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), by the proliferation of bilateral trade agreements that set minimum levels of protection, and by developments in biotechnology.13 The 1980 decision of the United States Supreme Court of Diamond v Chacrabarty¹⁴ also played a role in creating global awareness of the possibility of using patents as a way of protecting genetic innovations. While the decision only confirmed longstanding practice in the United States, nonetheless it was still important in that it raised awareness about intellectual property and the potential role it was able to play in protecting biological innovations.

Another change that increased Center involvement with intellectual property was the realization that exclusivity in general, and intellectual property in particular, were not necessarily antithetical to the goals of poverty reduction and food security.15 This realization has seen Centers grant private sector organizations the exclusive right to use research products in order either to improve the products or to ensure that they are put into use. In some cases, Centers have also made strategic use of intellectual property themselves in order to enhance the impact that their research has on target beneficiaries.