Intellectual Property and Food Security. Professor Michael Blakeney, Australian Global Studies Research Centre, UWA. Food Insecurity.
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Professor Michael Blakeney, Australian Global Studies Research Centre, UWA
World Food Summit convened in Rome in 1996, by the FAO reported that more than 800 million people, particularly in developing countries, do not have enough food to meet their basic nutritional needs. It was estimated that some 400,000 people were killed by malnutrition daily.
Noted “that the average annual rate of reduction in the number of undernourished people in the world was eight million and that if this trend continues, the WFS target of reducing the number of the undernourished by half by 2015, reaffirmed by the Millennium Declaration, will not be attained”
Noted that during the first three months of 2008, international nominal prices of all major food commodities reached their highest levels in nearly 50 years while prices in real terms were the highest in nearly 30 years.
The High Level Conference observed that the constriction of food supplies was caused by the shift of farmers into the production of biofuels and also the impact of global warming on food supplies. The Declaration issued by the High Level Conference requested an immediate response to requests for food assistance by affected countries and in the longer term to enhance investment in agriculture.
1. We, Heads of State, Government and International and Regional Organizations convened in L’Aquila, remain deeply concerned about global food security, the impact of the global financial and economic crisis and last year’s spike in food prices on the countries least able to respond to increased hunger and poverty.
4. Food security is closely connected with economic growth and social progress as well as with political stability and peace. The food security agenda should focus on agriculture and rural development by promoting sustainable production, productivity and rural economic growth.
10. Sustained efforts and investments are necessary for enhancing agricultural productivity and for livestock and fisheries development.
Priority actions should include improving access to better seeds and fertilizers, promoting sustainable management of water, forests and natural resources, strengthening capacities to provide extension services and risk management instruments, and enhancing the efficiency of food value chains.
12. We are determined to translate these principles into action and take all the necessary measures to achieve global food security....in particular to increase food production, improve access to food and empower smallholder farmers to gain access to enhanced inputs, technologies, credit and markets.
At the time of the Green Revolution there was no consideration of any role which IP might play in agricultural innovation.
It was largely, the development of the new biotechnology based upon genetic engineering which precipitated IPinto the food security arena.
These technological developments were underpinned by changes to the international intellectual property landscape effected by the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Selective breeding and genetic engineering has permitted the expeditious introduction of a wide range of desirable traits into plants. These include:
It has been reported that by 2020 “cereal production will need to increase by 41%, meat by 63% and roots and tubers by 40%...without any significant expansion of agricultural area.” C. Spillane, Recent Developments In Biotechnology as they Relate to Plant Genetic Resources for Food and Agriculture, FAO Commission on Genetic Resources for Food and Agriculture, Background Paper No. 9, April 1999, 49.
“Though all the fruits [the earth] naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of Nature, and nobody has originally a private dominion exclusive of the rest of mankind in any of them, …, yet being given for the use of men, there must of necessity be a means to appropriate them someway or other before they can be of any use, or at all beneficial, to any particular men.”
“Biological material which is isolated from its natural environment or produced by means of a technical process may be the subject of an invention even if it previously occurred in nature”.
Members may exclude from patentability inventions, the commercial exploitation of which “is necessary to protect ordre public or morality”
Opposition to an application for a patent directed to transgenic plants engineered to be resistant to the herbicide BASTA, Greenpeace argued that it was immoral to “own” plants which were the common heritage of humankind. The Technical Board of Appeal of the EPO stated that plant biotechnology per se could not be regarded as being more contrary to morality than traditional selective breeding, since both involved the introduction of novel genetic material in order to change plant properties.
Patent application contained claims to transgenic plants comprising in their genomes specific foreign genes, the expression of which resulted in the production of antipathologically active substances and to methods of preparing such plants.
The EPO Board noted that the Biotechnology Directive was an indication that the European Parliament considered there to be some benefit in genetic engineering.
Netherlands et al unsuccessfully sought the annulment of the Biotechnology Directive on grounds that it was in breach of the fundamental right to respect for human dignity and that the ordre public/ morality exception in Art 6 gave insufficient guidance and was too general and equivocal.
Biopiracy is a negative term for the appropriation, generally by means of patents, of legal rights over indigenous knowledge - - without compensation to the indigenous groups who originally developed such knowledge. classic case is that of the Rosy Periwinkle (Madagascar Periwinkle).[Research into the plant was prompted by the plant's traditional medicinal role and resulted in the discovery of a large number of biologically active chemicals, including vincristine, a lucrative agent useful during leukemiachemotherapy. A method for purifying vincristine was initially patented and marketed by Eli Lilly.It is widely reported that the country of origin did not receive any payment.
Blight resistant rice from Mali crossed by International Rice Research Institute (IRRI) with high-yielding varieties.
Patent registered by UC Davis claiming (gene Xa21)
“Nucleic acids, from Oryza sativa, which encode leucine-rich repeat polypeptides and enhance Xanthomonas resistance in plants” (U.S. patent 5,859,339 12 Jan 1999).
Convention on Biological Diversity (CBD) 1992
Problem: bio-exploiting countries have not ratified or implemented CBD
19. We instruct the Council for TRIPS, in pursuing its work programme … to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments
In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension.
There are six major industrial groups who between them control most of the technology which gives the freedom to undertake commercial R&D in the area of GM crops
“The tragedy of the anticommons refers to the more complex obstacles that arise when a user needs access to multiple patented inputs to create a single useful product. Each upstream patent allows its owner to set up another tollbooth on the road to product development, adding to the cost and slowing the pace of downstream biomedical innovation.”
Expressed Sequence Tags (“ESTs”) are fragments of DNA which can be used as tools to search for full-length genes. A typical EST is 400 to 500 nucleotides in length compared with a typical gene of 2,000 to 25,000 nucleotides in length. Thus a number of ESTs may be patented on the same gene. A researcher wishing to use the full-length gene, the patentee would need to first obtain a license from the owners of the EST patents.
Gave as an example of a company blocking applications of its proprietary technology, the difficulty which the Centre for Legumes in Mediterranean Agriculture, (CLIMA) has had in commercialising the transgenic lupin cultivar which it developed with tolerance to the herbicide BASTA. Apparently it was unable to reach agreement with Agrevo (now Aventis) the developers of BASTA.
Policy Capacity Building
IP policies are currently being formulated by international and inter-governmental organizations as diverse as the WTO, WIPO, FAO, WHO, CBD, UNCTAD, UNEP, UNESCO and WHO, countries have to construct IP policy capacity in the areas of: food security (patenting and plant variety protection); agricultural research (access to proprietary enabling technologies, development of IP assets; genomics and bio-informatics, bio-prospecting and access to genetic resources); agricultural trade (patenting, plant variety protection, geographical indications); technology transfer (approval of technology transactions, technology packaging, control of restrictive licences, remuneration)….
This would include the recognition of the rights of source countries where IP rights are obtained over biological materials
iv) representing the stakeholders in national government and intergovernmental negotiations;
(v) monitoring the use, eg patenting of traditional knowledge;
(vi) a dispute resolution facility between stakeholders;
(vii) promulgating industry bioprospecting standards, and contract terms
Drahos, ‘Indigenous Knowledge, Intellectual Property and Biopiracy: Is a Global Bio-Collecting Society the Answer?’ (2000) 22 European Intellectual Property Review 248.
CAMBIA has prepared a model license “BiOS (Biological Open Source)” as a “legally enforceable framework to enable the sharing of the capability to use patented and non-patented technology, within a dynamically expanding group of those who all agree to the same principles of responsible sharing, a “protected commons” under which subscribers “agree not to assert IP rights against each other's use of the technology to do research, or to develop products either for profit or for public good.”
Public Intellectual Property Resource for Ag
The establishment of a World Agricultural Organization (WAO) with a focus on: the poorer developing countries with weak agricultural research and extension programs, and crops of specific importance to resource poor and subsistence farmers.” Krattiger, ‘How can intellectual property rights contribute to the food security of an increasingly globalized world while meeting the demands of farmers and breeders?’ http://www.infoagrar.ch/ipr-symposium/documents/Paper_Krattiger.pdf.
M. Blakeney, Intellectual Property Rights and Food Security
Wallingford, Oxon, CABI, 2009.ISBN: 9781845935603