90
4 Institutional Frameworks for the Exchange and Utilization of PGRFA
After harmonizing the International Undertaking with CBD on the one side and
incorporating UPOV's concern into TRIPS, the present conflicting situation will
probably dissolve; especially if biotechnology advances and genetic resources can
be valued and handled according the genetically coded information. With further
process in biotechnology it might even be that the patent system has to be
simplified, because of confusion in patent agreements for one product (Shands,
1996).
In the actual discussion a range of ongoing legal instruments have been
introduced for the access to germplasm in its different processing stages and the
possibilities of benefit sharing derived from their use. In addition to the
intellectual property rights, such as patents and plant protection, international
binding and non-binding agreements exist on the access to, use of and
remuneration for PGRFA such as FAO's International Undertaking on Plant
Genetic Resources. Furthermore, material transfer agreements and other
contractual agreements between individual gene owners or countries and
biotechnology companies or countries as gene users may contribute to bilateral
and/or multilateral approaches to the conservation of PGRFA (Barton and
Siebeck, 1994). Other, non-IPR rights over intangible property, such as trade
secrets, cultural property rights, remuneration rights, appellations of origin and
protection of expression of folklore, also have to be considered by aiming at the
implementation of Farmers' Rights'l.
4.4
Different Systems for the Transaction of Genetic
Resources
Before CBD came into force in 1993, the instruments for the institutional
framework of PGRF A conservation management, germplasm exchange and
utilization were developed in a rather ad hoc manner, based mainly on national
and international codex for research work. The achievement of having identified
or discovered a variety in farmers' fields with interesting traits was credited
through publications and other kind of awards; but the farmers who bred and
maintained that variety in their fields were seldom mentioned. Germplasm
exchange was regulated according to other natural resources transfer in research,
i.e., free to all bona fide users and based on "pro mutua communatione", the
mutual exchange as it is practiced between botanical gardens as well (Hammer,
1995). Engaged in the conservation and utilization of PGRFA since its beginning,
FAO developed some instruments which are now integrated into FAO's Global
System for the Conservation and Utilization of Plant Genetic Resources for Food
and Agriculture. This global system was the formal framework for the access and
exchange of PGRFA since the adoption of the International Undertaking on Plant
41
For a more detailed analysis, see: Correa, 1994 and FAO, 1995c.
4 Institutional Frameworks for the Exchange and Utilization of PGRFA
After harmonizing the International Undertaking with CBD on the one side and
incorporating UPOV's concern into TRIPS, the present conflicting situation will
probably dissolve; especially if biotechnology advances and genetic resources can
be valued and handled according the genetically coded information. With further
process in biotechnology it might even be that the patent system has to be
simplified, because of confusion in patent agreements for one product (Shands,
1996).
In the actual discussion a range of ongoing legal instruments have been
introduced for the access to germplasm in its different processing stages and the
possibilities of benefit sharing derived from their use. In addition to the
intellectual property rights, such as patents and plant protection, international
binding and non-binding agreements exist on the access to, use of and
remuneration for PGRFA such as FAO's International Undertaking on Plant
Genetic Resources. Furthermore, material transfer agreements and other
contractual agreements between individual gene owners or countries and
biotechnology companies or countries as gene users may contribute to bilateral
and/or multilateral approaches to the conservation of PGRFA (Barton and
Siebeck, 1994). Other, non-IPR rights over intangible property, such as trade
secrets, cultural property rights, remuneration rights, appellations of origin and
protection of expression of folklore, also have to be considered by aiming at the
implementation of Farmers' Rights'l.
4.4
Different Systems for the Transaction of Genetic
Resources
Before CBD came into force in 1993, the instruments for the institutional
framework of PGRF A conservation management, germplasm exchange and
utilization were developed in a rather ad hoc manner, based mainly on national
and international codex for research work. The achievement of having identified
or discovered a variety in farmers' fields with interesting traits was credited
through publications and other kind of awards; but the farmers who bred and
maintained that variety in their fields were seldom mentioned. Germplasm
exchange was regulated according to other natural resources transfer in research,
i.e., free to all bona fide users and based on "pro mutua communatione", the
mutual exchange as it is practiced between botanical gardens as well (Hammer,
1995). Engaged in the conservation and utilization of PGRFA since its beginning,
FAO developed some instruments which are now integrated into FAO's Global
System for the Conservation and Utilization of Plant Genetic Resources for Food
and Agriculture. This global system was the formal framework for the access and
exchange of PGRFA since the adoption of the International Undertaking on Plant
41
For a more detailed analysis, see: Correa, 1994 and FAO, 1995c.