Conflict over property—such as land, gold, or oil—is nothing new. But today an intangible kind of property invented in the legal system of the Western world is becoming as valuable and contested as the tangible property of old. Intellectual property rights (IPRs), which include copyrights, patents, and trademarks, have become strategic resources in economic development. Like other resources, IPRs are unevenly distributed, and the rules governing them have caused major debate in trade circles for decades. This dispute is now spreading. Last November, for example, developing and developed countries clashed at the World Trade Organization Ministerial meeting in Qatar over the effects of international patent rules on public health. While most public debate has been on patents and health, other issues, such as the effects the new set of global IPR rules will have on biodiversity and food security, are equally important. These recent developments in IPRs are likely to affect all people over the coming years.

What has catapulted discussion of obscure, legally complex rules on intellectual property into the public eye? Major technological developments in communications, information, and biotechnologies are significantly responsible. These phenomenal developments parallel those of the 19th century, a time when IPRs were greatly extended in response to the industrial revolution. Corporations’ need to operate profitably in a global market has also played a role. These changes led to pressures in the 1980s to revise the regulatory framework governing biological resources. Three agreements are central to this: the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Convention on Biological Diversity (CBD), and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR). The CBD is a framework agreement that leaves parties free to implement it through their own legislation. The ITPGR, which was concluded in November 2001, renegotiated an existing international undertaking to bring it into harmony with the CBD and to regulate access and benefit-sharing specifically for plant genetic resources for food and agriculture.

The Convention on Biodiversity

The CBD’s three objectives are the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits of genetic resources. The CBD has formally brought genetic resources into the realm of national sovereignty. It requires countries to take measures to achieve its three objectives and makes access to these resources subject to prior informed consent—of the state rather than of the community involved. It also relies on an envisioned series of bilateral deals to reach these goals.

The CBD developed from a mentality that equated the riches to be found in the molecular compounds of plants with the riches of minerals in the ground. Some developing countries felt they had underestimated the value developed countries and industries place on natural biodiversity. Pharmaceutical companies, for example, had been making use of biologically diverse resources in extremely profitable patented products. Indeed, some accuse companies in industrialized countries of “biopiracy,” arguing against the way they acquire resources and traditional knowledge from developing countries, use them in their research and development (R&D) programs, and acquire patents and other IPRs, all without compensating the provider countries and communities.

In the CBD, which the United States has signed but not ratified, members agree to undertake to provide or facilitate access and transfer of technologies to other parties under fair and most favorable terms. Such technologies include biotechnologies and others “that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.” Access to such technologies must be “on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights.” Yet the parties to the treaty must also cooperate to ensure that patents and other IPRs “are supportive of and do not run counter to” the CBD’s objectives. This reflects disagreement about whether or not IPRs support the CBD’s objectives and implies that conflicts may well arise between IPRs and the CBD.

Unfortunately for agriculture, the resource-mining, winner-take-all mentality of the CBD pays scant attention to the differing nature of agricultural genetic resources. These have been developed by generations of farmers, exchanged, and mixed up around the globe for millennia. Indeed, biodiversity-rich countries like Brazil, which is strongly pro-CBD, are agriculturally biodiversity-poor: 95 percent of their food production comes from elsewhere.

After the CBD was signed, members finally recognized these special needs at a subsequent Conference of the Parties (COP) that supported the re-negotiation of the existing International Undertaking on Plant Genetic Resources for food and agriculture (IU). The IU was premised on the notion that germ plasm is a common heritage of humankind that, to be safeguarded and developed, had to be shared for everyone’s benefit. The renegotiations took over seven years and finally led to the treaty agreed in Rome at the UN Food and Agriculture Organization’s conference in November 2001. The final text includes a provision recognizing that any germ plasm patented, and thus taken out of the general pool available for further breeding, creates a loss to society as a whole that should be compensated by some payment into a fund to promote the use of genetic resources. Exactly what this means in practice remains to be seen.

TRIPing

The big shift in the IPR regime occurred within the World Trade Organization (WTO). Historically IPRs have been a matter of national decision-making. Individual states pursued their national interest with global treaties usually originating in Europe and the United States and then extended to interested states. Countries copied technologies from each other, selectively offered patent rights to domestic inventors over foreign nationals, or simply did not allow any patents. Some did not fully adopt the international rules. For example, until the mid-1980s the United States protected the domestic printing industry by denying copyright to foreign authors unless their books were printed domestically. Today, patents still must be applied for in each country, although there are now mechanisms to enable companies to apply for them in many countries at a time through the World Intellectual Property Organization (WIPO). This UN agency aims “to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization.”