86
4 Institutional Frameworks for the Exchange and Utilization of PGRFA
of application, however, depends on the state of the country. Between 1996 and at
latest in 2005 all WTO member countries must apply the provisions of the TRIPS
Agreement (Art. 65 and 66 TRIPS).
Although approximately 70 developing countries have signed the TRIPS
agreement, many of them do not have the appropriate legislation and institutional
capacity to regulate the protection of varieties, the import, handling, use, and sell
(GCA, 1996, p.12). The protection of intellectual property rights for agricultural
innovation is very diverse but generally poorly established in developing
countries.
For instance, Brazil excludes from patent law plant and animal species and the
processes used for their production as well as micro-organisms and microbial
processes. Biotechnology patents are confined to special applications of microorganisms. Plants and animals are not patentable. The Indian patent law of 1970
excludes agricultural products, as does the Chinese patent law of 1993 (van Wijk,
Cohen, Komen, 1993)
The International Undertaking on Plant Genetic Resources (IUPGR) was
adopted in 1983 strengthening the rights of the suppliers of genetic resources and
acting as an counterbalance to the increasing protection of technology resolving
out of genetic resources. This undertaking ruled that all genetic resources,
including the breeding results of the private plant breeding industry, would be
regarded as freely accessible, as stated in Article I of the International
Undertaking: "This Undertaking is based on the universally accepted principle
that plant genetic resources are a heritage of mankind and consequently should be
available without restriction." (FAO, 1993b, Article 1). Although it is a nonbinding agreement, the International Undertaking was not adopted by consensus
because some of the industrialized countries with a well-developed seed industry
formally had some reservations. In 1987, some annexes including the Farmers'
Rights were agreed upon (FAO, 1989). The undertaking accepted the legitimacy
of protecting varieties by plant breeders in return for the acknowledgement of the
concept of Farmers' Rights, which should be implemented through an
international fund. As of May 1997, III countries had adhered to the International
Undertaking with some exceptions - Brazil, Canada, China, Japan, Malaysia and
the USA. While industrialized countries fear the protection of PGRFA in some
kind or the other (main point of criticism is the concept of Farmers' Rights for
countries like the USA and Canada), some countries like Brazil and Malaysia
would like to reduce the scope of the International Undertaking to a few crop
varieties in order to keep as many plant species as possible free for other exchange
agreements, speculating on higher national benefits. These countries do have a
high level of general biodiversity, but a lower level of agrobiodiversity.
The IUPGR is a non-binding agreement assuring the conservation, use and
availability of PGRFA by providing a framework recognizing the past, present and
future contributions of farmers to the maintenance, improvement, and provision of
PGRFA (Farmers' Rights) (FAO, 1993). Sharing the benefits of PGRFA is seen as
a crucial instrument for securing global PGRFA. General compensation by the
users of PGRFA, breeders and industrialized countries, as well as the
internalization of benefits through some kind of joint property rights are the pillar
4 Institutional Frameworks for the Exchange and Utilization of PGRFA
of application, however, depends on the state of the country. Between 1996 and at
latest in 2005 all WTO member countries must apply the provisions of the TRIPS
Agreement (Art. 65 and 66 TRIPS).
Although approximately 70 developing countries have signed the TRIPS
agreement, many of them do not have the appropriate legislation and institutional
capacity to regulate the protection of varieties, the import, handling, use, and sell
(GCA, 1996, p.12). The protection of intellectual property rights for agricultural
innovation is very diverse but generally poorly established in developing
countries.
For instance, Brazil excludes from patent law plant and animal species and the
processes used for their production as well as micro-organisms and microbial
processes. Biotechnology patents are confined to special applications of microorganisms. Plants and animals are not patentable. The Indian patent law of 1970
excludes agricultural products, as does the Chinese patent law of 1993 (van Wijk,
Cohen, Komen, 1993)
The International Undertaking on Plant Genetic Resources (IUPGR) was
adopted in 1983 strengthening the rights of the suppliers of genetic resources and
acting as an counterbalance to the increasing protection of technology resolving
out of genetic resources. This undertaking ruled that all genetic resources,
including the breeding results of the private plant breeding industry, would be
regarded as freely accessible, as stated in Article I of the International
Undertaking: "This Undertaking is based on the universally accepted principle
that plant genetic resources are a heritage of mankind and consequently should be
available without restriction." (FAO, 1993b, Article 1). Although it is a nonbinding agreement, the International Undertaking was not adopted by consensus
because some of the industrialized countries with a well-developed seed industry
formally had some reservations. In 1987, some annexes including the Farmers'
Rights were agreed upon (FAO, 1989). The undertaking accepted the legitimacy
of protecting varieties by plant breeders in return for the acknowledgement of the
concept of Farmers' Rights, which should be implemented through an
international fund. As of May 1997, III countries had adhered to the International
Undertaking with some exceptions - Brazil, Canada, China, Japan, Malaysia and
the USA. While industrialized countries fear the protection of PGRFA in some
kind or the other (main point of criticism is the concept of Farmers' Rights for
countries like the USA and Canada), some countries like Brazil and Malaysia
would like to reduce the scope of the International Undertaking to a few crop
varieties in order to keep as many plant species as possible free for other exchange
agreements, speculating on higher national benefits. These countries do have a
high level of general biodiversity, but a lower level of agrobiodiversity.
The IUPGR is a non-binding agreement assuring the conservation, use and
availability of PGRFA by providing a framework recognizing the past, present and
future contributions of farmers to the maintenance, improvement, and provision of
PGRFA (Farmers' Rights) (FAO, 1993). Sharing the benefits of PGRFA is seen as
a crucial instrument for securing global PGRFA. General compensation by the
users of PGRFA, breeders and industrialized countries, as well as the
internalization of benefits through some kind of joint property rights are the pillar