The IP and Food Project

Chapter 1
The IP and Food Project

Jay Sanderson and Charles Lawson

There is debate about the role intellectual property (IP) law plays in food production and availability. Most broadly, IP is either seen to encourage innovation in food and food-related developments, or, alternatively, to hinder and restrict access to, and exchange of, essential materials and processes such as plant genetic resources. More specifically, though, IP and food interact in innumerable ways – from providing protection to plant and animal breeders, protecting distinctive food brands and logos, helping to identify goods that originate from a particular region or influencing the publication and reproduction of information and data generated through agricultural, scientific and technological research. And while the relationship between IP and food can sometimes be tenuous, the relationship is influential: affecting the production and availability of food by regulating dealings in products, processes, innovations, information, data, and so on.

The scope and nature of the interaction between food and IP is influenced by international laws that include the Convention of the International Union for the Protection of New Varieties of Plants (UPOV) and the Agreement on Trade-related Aspects of Intellectual Property (TRIPS). The TRIPS agreement requires all World Trade Organization (WTO) members to adhere to minimum standards of IP as well as observe the Paris Convention on Industrial Property, the Berne Convention on Copyright and other WTO conventions. In relation to food, TRIPS requires WTO members to provide patent protection for all inventions, whether of products of processes, in almost all fields of technology. While IP protection is optional for plants and animals (other than micro-organisms), as well as for other essentially biological processes used in the production of plants and animals (other than microbiological processes), members of the WTO must provide protection of plant varieties either by patents, or by an effective sui generis system, or any combination of patents or plant variety protection. In addition to patents and plant variety protection the TRIPS agreement also sets minimum standards in relation to trademarks, copyright, trade secrets and geographical indications. In addition to specific international laws on IP, the scope and nature of the interaction between food and IP is made more complicated by international treaties that deal with the conservation of biodiversity, as well as access and exchange of plant genetic resources related to food and agriculture. These treaties include the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty).

Importantly, IP has also found its way into organizations and forums that it has traditionally been absent from. Take, for example, the introduction of mandatory IP principles in the Consultative Group on International Agricultural Research (CGIAR) system. Established in 1971 to support research and development that improves food security and reduces poverty, CGIAR is a global network of agricultural research Centers ‘dedicated to reducing rural poverty, increasing food security, improving human health and nutrition, and ensuring more sustainable management of natural resources’.1 More specifically, some of the CGIAR Centers concentrate their research efforts on improving major food crops such as rice, wheat, maize and potatoes, as well as livestock and fish. To ensure that the Centers’ research activities and outputs are freely and globally available for researchers, plant breeders and farmers, they have been, and continue to be, considered international public goods. In March 2012, however, CGIAR introduced Principles on the Management of Intellectual Assets that allow, in certain situations, exclusive use of CGIAR Centers’ research including the ‘prudent and strategic’ use of IP protection.2

In addition to the numerous international laws and international organizations dealing either directly or indirectly with IP, IP has been linked to the right to food. Recognized as a human right under international human rights and humanitarian law, the right to food is established in part by Article 11 of the United Nations’ International Covenant on Economic, Social and Cultural Rights which imposes an obligation on states to respect existing access to food, protect the right to food, and fulfill the right to food.3 Jean Ziegler et al. define the right to food as:

the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free of fear.4

The United Nations’ Special Rapporteur on the right to food, Oliver De Schutter, drew attention to the impact that IP may have on the right to food by publishing in 2009 The Right to Food: Enhancing Agrobiodiversity and Encouraging Innovation. In this report, De Schutter examines the impact of seed policies and IP in agriculture on the realization of the right to food. According to De Schutter, when thinking about the interaction between IP and food, international organizations, national governments and policy makers must ‘place the needs of the most marginalized groups, including in particular smallholders in developing countries, at the centre of [developing seed policies and IP in agriculture]’.5 In order to do this, the Special Rapporteur on the right to food made a number of recommendations including that states should: ensure that patent and plant breeders’ rights laws do not discourage innovation by introducing barriers to the use of protected material; consider whether access to research tools and plant material is blocked by IP; encourage innovative mechanisms such as patent pools, clearing houses and open source experiments; ensure that seed certification schemes do not exclude farmers’ varieties; and support local seed exchange systems such as community seed banks and seed fairs.6

While there are numerous texts and commentaries on IP there has actually been very little direct engagement with the interaction between IP and food. To date, scholarship and commentary has focused almost exclusively on access and exchange of genetic resources.7 By focusing on the ‘inputs’ to food and crop development (such as plant germplasm) and technological developments (such as genetic engineering), scholarship has tended to focus on in situ and ex situ collections, as well as the protection of plant varieties, plant genes, genetically modified plants and animals. One reason for the lack of scholarship on food and IP is that there in not a single, coherent area of study known as food and IP. Indeed, IP has multifarious, diverse and subtle interactions with food that makes it difficult, if not impossible, to clearly delineate a field of study, let alone consider all of the possible interactions between IP and food.