SUMMARY NOTE
Intellectual Property Rights
Introduction
The global movement of forest tree germplasm is vital to the development and
maintenance of a healthy and productive forestry sector in many countries, especially
those dependent on exotic tree species. This has long been recognized by forest
administrators and researchers. Indeed, the progress of tree improvement programmes is
closely related to the available level of genetic diversity for such programmes.
For most of the 20th century, the international movement of tree seed was subject to
minimal legal impediments and regulations, other than those related to quarantine. Today,
however, there are increasing public and political pressures to regulate the movement of
all kinds of germplasm. These may stem from the need to protect national assets and
promote conservation, or from concerns about profiteering by unscrupulous bioprospecting.
Tree seed has been supplied free of charge through donor-supported programmes at
ICRAF, however, legal issues have arisen from increasing recognition of the importance
of plant genetic resources for agriculture and forestry. One of them being Intellectual
Property rights. It is in this regard that ICRAF formulated IPR to deal with germplasm
exchange between regions made applicable to date.
IPR History
Intellectual property rights were of limited relevance to plant breeding activities. IPRs
were not applied to plants and animals, private-sector firms had little incentive to engage
in plant breeding activities (except in crops where hybridization requires new seed
production for each crop). Public-sector plant breeding programs in both national
agricultural research systems (NARs) and international agricultural research centers
(IARCs) were (and remain) the chief producers of improved crop varieties.
In the 1960s and 1970s, PBRs were implemented in many developed economies and this
encouraged an expansion of private-sector plant breeding programs. In the 1990s,
stronger patent rights (and other IPRs) have been incorporated into world trade
agreements, requiring many developing countries to address IPR issues for the first time.
IPR’s legislation.
It covers

Patents (in the form specified by the Paris Convention);

Protection of plant varieties under either patent or sui generis systems such as the
International Convention for the Protection of New Varieties of Plants.
The oldest type is the specialized "plant patent." Plant Patent Act provided patent-like
protection to asexually reproduced plants. This right gives the holder the "right to
exclude" (without permission) others from reproducing the protected material. These
rights have been important primarily for ornamental plants.
Of wider usage are PBRs. The Plant Variety Protection Act. Plant breeders' rights have
been strengthened in recent years in many countries. An international convention, the
Union Pour la Protection des Obtentions Vegetales (UPOV) covers these rights and
facilitates recognition of PBRs in other member countries. These rights allow the holder
to exclude (without permission) others from reproducing and selling the protected
"variety" (standards of uniformity and distinctiveness must be met). These rights do not
allow the holder to exclude others from using protected material for research (the research
exemption). They also allow farmers purchasing a protected variety to save seed for their
own use (farmers' exemption). Recent changes have tightened up both the farmers'
exemption and the research exemption.
About CBD
The CBD entered into force on 29 December 1993, 90 days after being ratified by 30
countries. The objectives of the Convention are the conservation of biodiversity, the
sustainable use of genetic resources, and the fair and equitable sharing of benefits derived
from this use. They also include appropriate access to genetic resources and transfer of
relevant technologies, taking into account all rights over these resources and
technologies, and appropriate funding
Changes in IPRs
Changing concepts and increasing global sensitivities over IPRs of crop/tree germplasm
have introduced new factors that have had a range of different influences on the evolution
of our IPR policy on germplasm. These include

The 1993 Convention on Biological Diversity (CBD), which changed the status of
Plant genetic resources from being a global heritage of mankind to being subject
to national sovereignty open to IPRs, invalidated fundamental tenets of the
CGIAR that the unrestricted free exchange and exploitation of plant genetic
resources (PGR) were acceptable activities to facilitate poverty alleviation.

The progressive introduction of national and/or regional legislation on plant
variety protection (PVP) to provide for the legal designation of IP ownership and
IPR protection for new and/or traditional varieties in the country or region
concerned.

The need to form partnerships with the private sector and the consequent need to
formalize and possibly even claim ownership of IP and protect IPRs.

The need for at least defensive IPR protection to prevent misappropriation of
germplasm by others.

misappropriating germplasm.

The International Undertaking on Plant Genetic Resources (IUPGR; 1983 and
revised in 1989, 1991, and 1993; www.fao.org/ag/cgrfa/IU.htm), which began
with early guidelines for the fair collection of germplasm and later introduced the
concept of “In Trust” germplasm collections with obligatory defensive material
transfer agreements (MTAs), in an attempt to retain the status of PGR in CGIAR
genebanks as GPG, despite the CBD.

The 2004 International Treaty on Plant Genetic Resources for Food and
Agriculture (ITPGRFA; www.fao.org/ag/cgrfa/itpgr.htm), which comes into
force on 29 June 2004. This is an intergovernmental agreement on the exchange
of germplasm in harmony with the CBD, which will introduce additional
changes?
that will require corresponding adjustments in our IPR policy.
The key issue for ICRAF has been to respond to these changes without compromising our
primary mission to enhance the livelihoods of the poor through sustainable improvement
in Agroforestry farming. To this end, we still seek to produce and disseminate germplasm
and knowledge with the fewest constraints possible, but only with due respect for the
rights other individuals, organizations, and nations recognized by the new international
agreements.
ICRAF and IPR’s
We are paying the highest attention to the evolution of the IPR landscape
Internationally, and are scrutinizing every item adopted into our research programs for
ownership and IPR issues. We are striving to make sure that our internal IP management
functioning efficiently and effectively and that our standards for handling IPRs are
impeccable. Internal audits on technology in use are becoming routine. (e.g. use of
SMTA’s is now being fully applied to all germplasm exchanged through ICRAF centers)
We have placed high emphasis on application of IPR-related issues, to the regional
centres and the NAR’s partners. ({Please see ICRAF IPR policy guideline series 10).
Some further points regarding the MTA include:

The MTA is consistent with the spirit and content of the CBD. Most of the
countries with which ICRAF regularly exchanges seed are signatories to the CBD
and accept its guiding principles.

The MTA is consistent with other similar instruments currently in use by the other
CGIAR centres.

The MTA is based on the extensive experience of ICRAF in sharing forest genetic
resources, and reflects the existing practice of seed recipients providing
information on species' performance.

The mutually agreed terms are reasonable and within the scope of existing
practice.

There is no provision for financial benefit sharing.

There is no reference to actual ownership other than broadly to the national
interest.
Summary
IPR concepts, particularly for tree germplasm, have changed dramatically during
the past decade, but ICRAF together with National stakeholders has worked hard to
adjust its IPR policies on germplasm to the evolution of developments tied to the 1993
Convention on Biological Diversity, the International Undertaking on Plant Genetic
Resources, and, most recently, the 2004 International Treaty on Plant Genetic Resources
for Food and Agriculture.
Reference

Gollin, D. 1998. Valuing farmers' rights. In R.E. Evenson et al. (ed.) Agricultural
values of plant genetic resources. CAB Publ., Wallingford, UK.

Gollin D., Evenson R.E. Genetic resources, international organizations, and rice
varietal improvement. Econ. Develop. Cultural Change 1997;45(3):471-500.

Huffman W., Evenson R.E. Science for agriculture. Ames, IA: Iowa State Univ.
Press, 1993.

Boland, D. J. & Thomson, L. A. J. (1999) SPRIG: A Regional Forest Genetic
Resource R&D Aid Project in the South Pacific. Paper presented at an ACIARNARI workshop held in Lae, Papua New Guinea, 30-31 March 1999.

Bragdon, S. H. (2000) Moving forward with the International Undertaking: legal
mechanisms to alleviate mistrust. Issues in Plant Genetic Resources No. 9,
International Plant Genetic Resources Institute, Rome