International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)
This Treaty is considered by many to be the most comprehensive frame, at international level, of a protected commons. It creates a regulated environment where participating entities, in this case countries and international agricultural research organisations, share their plant genetic resources and set the rules for access and benefit sharing among members that have ratified the Treaty.
The International Treaty for Plant Genetic Resources for Food and Agriculture (ITPGRFA) was adopted in November 2001 by the United Nations Food and Agriculture Organisation conference. It is a legally binding treaty that came into force on 29 June 2004 with 54 countries ratifying or acceding, thus surpassing the 40 countries needing to ratify in order for becoming effective. In June 2006, the Governing Body of the ITPGRFA met for the first time. As of January 2007, 111 countries had ratified the Treaty.
The ITPGRFA objectives are the conservation and sustainable use of plant genetic resources for food and agriculture, the fair and equitable sharing of benefits derived from their use, in harmony with the Convention on Biological Diversity (CBD), for sustainable agriculture and food security, and the recognition of farmers’ rights associated with crop germplasm.
Countries agree, through the ITPGRFA, to establish a Multilateral System to facilitate access to plant genetic resources for food and agriculture, and to share the benefits
Crop in Northern Tanzania
Annex I, when these materials are in the public domain and under the management and control of countries, for the purposes of research, breeding and training for food and agriculture. The conditions for access and benefit-sharing are realised in a Standard Material Transfer Agreement, SMTA, that was approved by the Governing Body of the ITPGRFA at its first meeting in 2006.
International Agricultural Research Centres (IARCs) of the Consultative Group on International Agricultural Research (CGIAR) that hold, in trust, ex situ collections of genetic resources have a special relationship with the ITPGRFA. The IARCs have placed their materials under this Treaty by signing agreements with the Governing Body of the Treaty so that their materials would be subjected to the provisions of the Treaty itself.
With regards to intellectual property, the ITPGRFA and the SMTA specify that “recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System”.
In principle, every country agreed that any plant genetic resource exchanged under the Multilateral System should remain in the public domain - meaning that no one should be allowed to obtain a patent or plant breeder’s rights or any other right that limit the facilitated access of the seed they obtain through the system. However, some ambiguities remain in the wording of this provision because it was one of the most controversial points during the negotiations of the ITPGRFA.
There is an interpretation that insists that, in pursue of an invention, the act of isolating and purifying a gene extracted from such germplasm is sufficient to cause the invention to fall outside the requirement of “in the form received”. Some dispute this interpretation and understand that the expression in the phrase “parts and components” emphasis that individual genes or fragments of DNA from an exchanged seed could not be patented. By merging the two expressions - “parts and components” and “in the form received” in the same phrase, countries found a delicate balance in a compromising formula.
The European Community interprets Article 12.3.d of the ITPGRFA as recognising that plant genetic resources for food and agriculture or their genetic parts or components which have undergone innovation may be the subject of intellectual property rights provided that the criteria relating to such rights are met. Following this interpretation, the governments of Austria, Denmark, Finland, Germany, Greece, Ireland, Italy, Luxembourg, Poland, Spain, Sweden and United Kingdom have made declarations upon ratification of the Treaty to reflect this.
The provision on intellectual property rights of the ITPGRFA (Article 12.3 (d) and the SMTA reflects a broader debate over development. Traditionally, genetic material belonged to a global commons or open system. No one exclusively owned this material and countries freely shared it. In sharp contrast, today, exclusive ownership and restrictions on the sharing of genetic material is a norm in developed countries. In contrast, developing countries-which house most of the world’s wild or raw genetic material-are pushing the boundaries of sovereignty. They are asserting sovereign ownership or extensive national government control over a wide and increasing range of raw genetic material in their countries. (Safrin, 2004) The extent to which intellectual property rights can be applied to material accessed from the Multilateral System is critical to determine the effectiveness of the protected commons created in the ITPGRFA.
A complete explanation of the ITPGRFA with the history, the need for an agreement, the SMTA, the Role of the CGIAR Centres and the agreements between the CGIAR Centres and the Treaty’s Governing Body can be found at: http://www.bioversityinternational.org/Themes/Policy_and_Law/The_Treaty/index.asp. This section provides an overview of the ITPGRFA and its provision on intellectual property.
Safrin, Sabrina. 2004, Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life” in the American Journal of International Law.
