|Mobilizing science for global food security. Report of the CGIAR Panel on Proprietary Science and Technology. (1998)|
TAC is grateful to Timothy Roberts, Panel Chair, and to members of the Panel that prepared the report on the future role of the CGIAR in proprietary science and technology. The Committee particularly appreciates the wealth of synthesized information on the protection of intellectual property (IP) as it relates to the CGIAR and the broad spectrum of opinions reflected in the report. The report significantly advances our understanding of the issues confronting the CGIAR with respect to intellectual property rights (IPR).
TAC recognizes that the Panels Terms of Reference were difficult to satisfy, given the diversity of views on the issues and the uncertainty of the legal environment. Against that background, TAC supports the recommendations made, but wishes that the Panel had reviewed more fully the advantages and disadvantages of various policy options.
In what follows, TAC first reaffirms specific areas of agreement, expands on some points made by the Panel, and then supplements aspects of the Panels recommendations.
Reaffirming Panel Observations
The Panel made several observations aimed at setting a context for their recommendations:
· IPR will have an ever-stronger influence on the CGIARs access to the IP of others (see below: Expanding on Panel Observations).
· IPR can be significant in managing the IP developed by the centers (both improved germplasm and enabling technologies) and in supporting center commitments for genetic resources held in trust (see Expanding...).
· The CGIAR must attend closely the evolution of international agreements on genetic resources, e.g., the obligations under the Convention on Biological Diversity (CBD) and the International Undertaking for Plant Genetic Resources.
· In the future, other rights, which the Panel has called alternative rights regimes (e.g., farmers rights and national sovereignty) may become dominant considerations for some classes of genetic resources.
· To manage effectively the three broad groups of material of concern to the CGIAR (that in trust; IP belonging to others, and IP developed by the centers) access to relevant legal and negotiating counsel is essential. (see below: Supplementing the Recommendations).
· CGIAR centers are now using biotechnology-based IP belonging to others (see Supplementing...).
· The CGIAR has an interim working document Guiding Principles for CGIAR Centers on Intellectual Property and Genetic Resources which orients current work (see Supplementing...).
Expanding on Panel Observations
The Panel was charged to deal with proprietary science; it concentrated its attention on patents and plant variety protection. TAC accepts the idea that the CGIAR must be concerned with genetic resources held in trust, the IP developed by others, and the IP-developed by the centers; and that some situations will favor the application of legal rights to IP developed by centers. The Panel set out criteria which could guide the CGIAR in deciding about protecting intellectual property emerging from its work. These suggest several situations in which such protection might be conducive to attaining CGIAR goals:
· to assure ready access to the IP by others,
· to support public and private partnerships,
· to facilitate commercialization, utilization and technology transfer,
· to assure that center-developed IP might be traded for the protected IP of others, and
· to generate revenue
With respect to IP emerging from the work of the CGIAR, and where publishing is not thought to offer adequate protection, TAC joins the Panel in favoring the arguments for acquiring protection in three situations: access, partnerships, and technology transfer. TAC notes that establishing protection through patents is costly and that protecting rights claimed can entail heavy costs. TAC went on to consider arguments against claiming IPR for tradeables and for revenues. Three concerns were prominent. One was that encouragement in those areas might lead to the diversion of effort from the Systems primary goals with relatively low probabilities of success (to judge by the success rates of others). The second was that such pursuits might threaten working relationships with primary partners in the south. The third was that the economic surpluses on which revenues would be based might better be transferred to producers and consumers than to the CGIAR.
TACs conclusion, like that of the Panel, is that center research and development should not be undertaken explicitly for the purpose of generating IP for trade or for revenue. Even so, and recognizing that such circumstances will be exceptional, center research aimed explicitly at CGIAR goals might lead to IP that could be traded or could generate income, were it protected. In such cases, and where publishing does not offer adequate protection, TAC believes CGIAR policy should permit an assessment of patenting while assuring that advantages and disadvantages (e.g., see above) are accounted for.
Like the Panel, TAC did not discuss in detail the arguments some make about ethical issues, following the Groups MTM97 suggestion to look to the findings of the Genetic Resources Policy Committee (GRPC). TAC did, however, note that, for the CGIAR, the ethics of the case for IPR are rooted in the CGIARs people-centered strategies for poverty alleviation. TAC notes that biosafety, another theme of abiding concern in the biotechnology arena, is treated in its commentary on the findings of the General Biotechnology Panel.
Supplementing Panel Recommendations
TAC supports much of the first recommendation, especially the need to base policy on the goals of the CGIAR. TAC believes that the recommendation should be expanded to include:
1. more emphasis on the need to take into account commitments made by the CGIAR to duties that will emerge from the implementation of international agreements, e.g., CBD, dealing with genetic resources;
2. more emphasis on the need for all decisions about protection for CGIAR - developed IP to be made on a case-by-case basis;
3. the possibility to decide about protection for IP developed in direct pursuit of CGIAR goals but seen to further CGIAR goals if used to trade for the protected IP of others or for revenue.
In the case where revenues ensue from CGIAR IP, TACs view is that such revenues (net of the costs centers incur in obtaining protection) should be assigned to a freestanding agency, e.g., a foundation, whose objective would be to ensure that obligations emerging from international agreements are met and to support research consistent with CGIAR goals.
In deciding about protection for center-developed IP:
1. Decisions should be decentralized to centers.
2. Center decision-making should be strongly supported by expert legal and negotiating counsel, especially that provided by a centralized service (see below), in addition to whatever expertise centers access directly.
3. For all such decisions, the underlying logic should be made transparent.
TAC supports the Panels second recommendation, notes the urgency of the matter, and notes that the experience gained from reviewing and normalizing present CGIAR use of the IP of others will help the CGIAR to assess its future options and policies. TAC favors more emphasis on the management of legal and negotiating expertise for dealing with others whose IP is of interest to the CGIAR, for the IP emerging from the CGIAR efforts, and/or for materials in trust.
With respect to the third recommendation. TAC agrees with the points made there. Moreover, TAC notes the tentative tone of the present Guiding Principles... and wonders if events during the years since its first drafting do not favor a more positive view about the role of IP and a more neutral view about IPR as the CGIAR pursues its goals. The CGIAR will carry out its mandate in a world in which proprietary claims are evolving rapidly; to perform effectively for the poor will require great sensitivity to the issues and opportunities emerging from intellectual property.
Beyond this, given its understanding about the concerns of others, TAC recommends a review of circumstances under which the use of material transfer agreements (as required by the agreements with FAO about genetic resources held in trust) will ensure that access to the original genetic resources (as distinct from products derived from those materials, e.g., improved varieties or isolated and assayed genes) held in trust can be maintained in the public domain and readily available to all. TAC recognizes that cross-cutting concerns will emerge as international treaties incorporating national sovereignty and farmers rights are implemented (e.g., CBD), and that CGIAR policy must be reviewed in the light of such concerns.