4.3 Protection of IPR as Enforcement of the Exchange of PGRFA
89
It seems, however, unlikely that existing plant protection can be successfully
used to define and enforce rights over traditional varieties because of the high
variability and segregation of landraces which point towards a fundamental
difference from protected varieties under the distinct, uniform, and stable criteria
of UPOV (Lesser, 1994). Additionally, patenting landraces is not possible,
because a patent must meet the criteria of novelty, which is difficult to certify for
these genetic resources. A more feasible way is the definition of remuneration
rights, with which not an exclusiveness is achieved but a compensation for
contributions made by communities (Correa, 1994). Correa quotes an example of
the blank tape royalty in some countries which applies to all tapes in order to
compensate copies without the authors' agreement, while knowing that controlling
private copying is impossible.
On the other hand, TRIPS' intellectual property system may interfere with the
objectives of CBD through the possibility of patents for products resolved from
genetic resources.
After the adoption of CBD, there was a need to harmonize the International
Undertaking on Plant Genetic Resources with CBD. The main points of conflict
are the realization of Farmers' Rights and the issue of access on mutually agreed
terms to plant genetic resources, including the ex situ collections not addressed
by the Convention (FAO, 1996d). The International Undertaking on Plant
Genetic Resources has to be revised in harmony with CBD, because CBD is an
international binding convention, whereas IU is presently a non-binding
agreement, which will probably be attached as protocol to CBD after IU's
revision (Esquinas-Alcazar, 1996).
The revised International Undertaking will have to take a firmer position in
respect to financial mechanisms (FAO, 1995c). In other words, the access to
PGRFA will have to be linked directly or indirectly to some financial or
technology transfer. Hence, a revised International Undertaking will not support
the cost-free access to PGRFA, therewith conflicting with the demand of UPOV
for free access to PGRFA.
This conflicting situation has two implications for developing countries. In a
time of increasing globalization of markets, it will be difficult for a country to
refrain from signing TRIPS for its overall economic development. As discussed
above, TRIPS offers the best possible solution for a legal framework enabling the
protection of new knowledge and genetic resources. Therefore, TRIPS offers the
most suitable existing framework for countries not only interested in protecting
and "selling" PGRFA as raw material but also utilizing its information for
breeding. Therefore, it is foreseeable that most countries will join TRIPS in the
next ten years, which means that all of them will have to develop some kind of
protection system for property rights, including modem varieties. Each country
will have the chance to protect their PGRFA in some sui generis system. While,
however, the enforcement for variety protection can be implemented in some
way, it will be very difficult for any kind of PGRFA protection. The main
difficulty is, as mentioned above, the proof of its originality and the
implementation of any kind of exclusiveness and compensation as well as the
consequent enforcement of any rights.
89
It seems, however, unlikely that existing plant protection can be successfully
used to define and enforce rights over traditional varieties because of the high
variability and segregation of landraces which point towards a fundamental
difference from protected varieties under the distinct, uniform, and stable criteria
of UPOV (Lesser, 1994). Additionally, patenting landraces is not possible,
because a patent must meet the criteria of novelty, which is difficult to certify for
these genetic resources. A more feasible way is the definition of remuneration
rights, with which not an exclusiveness is achieved but a compensation for
contributions made by communities (Correa, 1994). Correa quotes an example of
the blank tape royalty in some countries which applies to all tapes in order to
compensate copies without the authors' agreement, while knowing that controlling
private copying is impossible.
On the other hand, TRIPS' intellectual property system may interfere with the
objectives of CBD through the possibility of patents for products resolved from
genetic resources.
After the adoption of CBD, there was a need to harmonize the International
Undertaking on Plant Genetic Resources with CBD. The main points of conflict
are the realization of Farmers' Rights and the issue of access on mutually agreed
terms to plant genetic resources, including the ex situ collections not addressed
by the Convention (FAO, 1996d). The International Undertaking on Plant
Genetic Resources has to be revised in harmony with CBD, because CBD is an
international binding convention, whereas IU is presently a non-binding
agreement, which will probably be attached as protocol to CBD after IU's
revision (Esquinas-Alcazar, 1996).
The revised International Undertaking will have to take a firmer position in
respect to financial mechanisms (FAO, 1995c). In other words, the access to
PGRFA will have to be linked directly or indirectly to some financial or
technology transfer. Hence, a revised International Undertaking will not support
the cost-free access to PGRFA, therewith conflicting with the demand of UPOV
for free access to PGRFA.
This conflicting situation has two implications for developing countries. In a
time of increasing globalization of markets, it will be difficult for a country to
refrain from signing TRIPS for its overall economic development. As discussed
above, TRIPS offers the best possible solution for a legal framework enabling the
protection of new knowledge and genetic resources. Therefore, TRIPS offers the
most suitable existing framework for countries not only interested in protecting
and "selling" PGRFA as raw material but also utilizing its information for
breeding. Therefore, it is foreseeable that most countries will join TRIPS in the
next ten years, which means that all of them will have to develop some kind of
protection system for property rights, including modem varieties. Each country
will have the chance to protect their PGRFA in some sui generis system. While,
however, the enforcement for variety protection can be implemented in some
way, it will be very difficult for any kind of PGRFA protection. The main
difficulty is, as mentioned above, the proof of its originality and the
implementation of any kind of exclusiveness and compensation as well as the
consequent enforcement of any rights.