Fowler Et Al - 2

Food Policy 27 (2002) 197222 www.elsevier.
com/locate/foodpol
Carving up the commonsemergence of a new international regime for germplasm development and transfer
W.P. Falcon a,, C. Fowler b
a
Center for Environmental Science and Policy, Institute for International Studies, Stanford University, Stanford, CA 94305-6055, USA b Center for International Environment and Development Studies, Agricultural University of Norway, Aas, Norway Accepted 8 April 2002
Abstract No nation has ever fabricated or maintained a prosperous food system based on genetic resources of purely indigenous origin. Remarkably, many countries now seem ready and almost eager to try such an approach. We identify four separate components of an emerging regime that are interacting in ways that should worry everyone concerned with the development and transfer of plant genetic materials into the South: new provisions on intellectual property; increased concentration of new enabling technologies into a few large multinational companies; heightened anxieties over transgenic crops; and new problems arising from international agreements. We argue that the solutions now being discussed in global forums are either infeasible, incomplete, or are likely to have seriously negative effects. We call instead for creative new thinking on building human capacity in developing countries, on the legal status of plant genetic resources, and on public private partnerships, especially those in service of the poor. 2002 Published by Elsevier Science Ltd.
Keywords: Biotechnology; Commons; Convention on Biological Diversity; Genebanks; Germplasm; Intellectual property rights; International Treaty on Plant Genetic Resources for Food and Agriculture; Public goods; Transgenic crops
Corresponding author. Tel.: +1-650-723-6367; fax: +1-650-725-1992. E-mail address: wpfalcon@stanford.edu (W.P. Falcon).
0306-9192/02/$ - see front matter 2002 Published by Elsevier Science Ltd. PII: S 0 3 0 6 - 9 1 9 2 ( 0 2 ) 0 0 0 1 3 - 1
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W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222
Introduction Genetic diversity, both within and among species, is the raw material for the future improvement of all crops. It indicates their potential and denes their evolutionary limits. Since Neolithic times, agricultural crops have been on the move. The ow of these genetic resources around the globe has underpinned crop development and agricultural advancement for millennia. No nation has ever fabricated or maintained a prosperous food system based on genetic resources of purely indigenous origin. Remarkably, many countries now seem ready and almost eager to try such an approach. Herdt (1999) has described the privatization and nationalization of plant genetic materials as the closing of another commons, comparable in importance to the closing of the land commons in England between the fteenth and nineteenth centuries. Having discarded the notion that genetic resources are the common heritage of mankind, countries are now erecting barriers to the free ow of genetic materials, setting in motion an agricultural experiment with few precedents in human history.1 Yet governments seem ill prepared at the national level to adjust to the transformation they are creating. Collectively, they appear impotent to fashion appropriate international policies. In this essay, we seek to shed light on the causes and potential consequences of a new international regime for the development and transfer of plant genetic resources.2 We focus primarily on the effects of this new regime on food security in poor countries. As Tripp (2002) rightly emphasizes, agricultural development embraces much more than germplasm development, and germplasm development also embraces much more than biotechnology. Nevertheless, our discomforting conclusions are that the nature and consequences of contemporary germplasm ows are poorly understood, mechanisms restricting ows are complicated, outcomes are uncertain but almost certainly negative, and policy mechanisms for alleviating the problems are either untested or already rejected. Following a short historical introduction, we identify four separate components of the new regime that are now interacting in ways that we believe should worry everyone concerned with the development and transfer of agricultural technology, particularly improved crop varieties, to scores of the poorest nations. These elements are new provisions on intellectual property, especially patenting regulations in the US; an increased concentration of new enabling technologies into a few large multinational companies; heightened anxieties over transgenic crops (also known as genetically modied organisms or GMOs), especially in Europe; and new problems arising from international agreements, such as the Convention on Biological Diversity (CBD) and the Food and Agriculture Organizations (FAOs) International Treaty on Plant Genetic Resources for Food and Agriculture. Individually, these components are reason-
For a detailed discussion of common heritage concepts and principles, see Baslar (1998). Regime is used here to mean a partially integrated set of organizations, understandings, and assumptions (Meyer et al., 1997).
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ably well described in the literature; collectively, they and their interactions are poorly understood. We nd that their combined impacts on food security in poor countries will likely be very troublesome. Historical context Men and women have been acquiring, moving, and improving plant genetic materials for 10,000 years (Reed, 1977; Smith, 1998). Despite recurring conicts over ownership and controlsome dating back millennia (Farney, 1980)most food crops have spread far beyond their original birthplaces or centers of origin. The relatively free ow of diverse genetic materials has allowed farmers and plant breeders both to introduce crops to new production areas and to use these raw materials to improve crops through selection and breeding. Today, maize, a native of Central America, is the predominant food crop of southern Africa. Yet only an expert would identify the cob-less, weed-like progenitor (teosinte) as its source. Soybean, a species from China and East Asia, is now a major crop in the US and Brazil. And sweet potato, indigenous to South America, is currently grown in more than 100 countries around the world. Hunting and gathering peoples and farmers oversaw the domestication, transfer, and development of crops during most of the last 10,000 years. More formal and scientic approaches to plant breeding at most can be traced back only 200250 years (Mayr, 1982). Efforts based on an understanding of the mechanisms of heredity are younger still. Even decades after the rediscovery of Mendels laws of heredity, many plant breeders continued to approach their work from a decidedly unscientic basis (Dreyer, 1975). In the modern era prior to World War II, much of the basic and applied seed technology for agriculture, especially for cereals, originated as public goods from the non-proprietary sector. In the US, for example, the federal government was heavily involved both in establishing agricultural colleges and experiment stations and in acquiring seeds from abroad and distributing them directly to farmers for adaptation and breeding. In the late 1800s, more than ten million individual packets of seeds were mailed to farmers annually (Klose, 1950). Hybrid maize was a partial exception to this pattern of public provision of germplasm. Companies typically drew on basic research from the public sector when developing hybrid maize, but they then privatized inbred lines, mostly through the use of trade-secret mechanisms. In 1970, more formal intellectual property protection was given to the private sector in the US via the Plant Variety Protection Act. This legislation gave developers of distinct, uniform, and stable varieties patent-like protection for 17 years, including the right to set conditions on the sale and resale of seed.3
In the US, plants that are reproduced asexually for commercial purposes (e.g. apples and roses) had long been covered by the 1930 Plant Patent Act. That act excluded bacteria and certain important food crops such as potatoes from protection.
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Two mutually reinforcing events occurred during the last quarter of the twentieth century that greatly altered the norms of germplasm development. The rst event really a processwas the development of modern biotechnology, including computational and other laboratory methods for discovering, cloning, and transferring separate genes. When these specic methods were combined with the second componenta series of new legal rulings that opened the door for patent statutes to cover a broad range of biological materials from varieties to genesthe plant genetic environment was radically transformed. In addition, new methods gave entrepreneurs the scientic tools, such as plant ngerprinting, to detect and enforce patent infringements. New interactions among law, biology, and information technology thus played a dominant role in the emergence of a new plant-genetics regime for the world. These changes have the potential to interrupt ows of genetic resources among nationsin effect, to carve up the global genetic commons into small dysfunctional nationalistic slices. In light of 10,000 years of agricultural history, analysts must ask whether recent legal, technological, and organizational developments constitute only minor variations in plant-improvement processes, or whether they represent a fundamental watershed in the structure, scope, and methods of plant breeding. We believe it is the latter.
An emerging regime for germplasm development and transfer Intellectual Property Rights Efforts to protect intellectual property have a long history, characterized by approaches ranging from the simple keeping of secrets, to the employment of physical force, to the use of laws. Yet it is patenting (rather than trade secrets, trademarks, plant-variety protection, or copyrights) in the US that has caused the most consternation, concern, and excitement in the plant genetics world during the past two decades. US statutes currently offer a breadth of patent coverage unmatched by any other country.4 Prior to 1980, however, little intellectual property protection for plantrelated inventions was available. New crop varieties, for example, could be protected in a number of developed countries that belonged to the Union for the Protection of New Varieties of Plants. While prohibiting others from producing and selling the protected variety, such laws did not restrict anyone from using a protected variety as parental material in future breeding efforts. They therefore created no overt barriers to the transfer of these genetic resources or to their further development. The picture changed substantially with the Diamond vs. Chakrabarty, 1980 case in which the US Supreme Court ruled that a live microorganism, constructed by
The European Patent Directive, perceived as an effort to catch up with the US, has only been adopted by four member states. Germany and France, among others, are holding out amid intense opposition inside and outside their governments to the patenting of life, genes, and/or higher organisms.
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gene-transfer technology, was patentable. This dramatic and rather unsettling ruling raised questions as to what was patentable and how broad or narrow the patent coverage could be. New concerns were also raised about where the line might be drawn between discovery and invention. Given this uncertainty and the new legal opportunities, there were understandable pressures for rms to maximize the number of biotechnology patents and to do so as rapidly as possiblereminiscent of speculative land grabs in an earlier era. An opponent of such practices, James Watson, argued that automated gene-hunting procedures could now be done by monkeys (Beardsley, 1998). Initially the bar on gene claims was perceived to be very low and the number of patent applications exploded during the 1990s (Enserink, 2000).5 With little prior history, the United States Patent and Trademark Ofce (USPTO) had great difculties in implementing the utility aspect of applications, that is, in determining whether or not an application had a sufciently credible and substantial benet to the public (Barton, 2000).6 Unreasonably broad patent claims also seemed to slip through with disquieting regularity. USPTO has now made more difcult the proof of a prospective patents utility (US Department of Commerce, 2001). Nevertheless, several disturbing problems arise from new patent processes as they affect poor countries. Thousands of relevant patents have already been issued that affect the creation of modern agricultural germplasm appropriate for developing countries. Intellectual property coverage includes genes, traits, molecular constructs, and transformation procedures-so-called enabling technologies. As shown in Table 1, the number of US patents granted which involve major cereals is large and growing very rapidly.7 For important genetic modications like the new vitamin A-enhanced rice, dozens
Table 1 US patents granted: applications containing the terms rice, wheat, or corn, plus gene. Time period 198185 198690 199195 1996August 2001 Rice 61 123 412 3081 Wheat 69 148 497 3320 Corn 127 217 814 5074
Source: http://www.uspto.gov, accessed August 23, 2001.
5 Many of these fragments were of interest because of potential human-health products rather than for their importance to agricultural crops. 6 USPTO observed in a recent notice that insubstantial or non-specic utilities for biological patents, such as use only for lling landlls, did not satisfy the legal requirements (US Department of Commerce, 2001). 7 A similar search of US patents granted containing the terms gene and transformation in their applications, revealed a comparably sharp increase from 233 approved in the period 198185, to 14,358 approved from 1996 to August, 2001.
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of patents were involved in a single transformation (Guerinot, 2000). As noted below, the multiple-patent problem has already caused greater industrial concentration within the private sector. Multiple patents have also effectively forced the public sector to use alternative research methods if crucial patents are unavailable (or prohibitively expensive) for use on products important for poor countries. The concern that genetic resources in the public domain might be patented, and thus effectively removed from the public domain, has contributed to an ironic solution: in an attempt to prevent the closing of the commons by patents and in a simultaneous attempt to exploit market opportunities of their own, countries are now restricting access to once-public materials. Many nations are now asserting claims of sovereignty and ownership over materials previously considered within the public domain. They are thus effectively closing the commons themselves by enacting restrictive legislation governing access to genetic resources8 and by restricting the scope of international agreements aimed at facilitating access to these resources. Only a fraction of the crop materials heretofore exchanged freely through multilateral mechanisms will continue to be available automatically.9 Owing to these changes, public germplasm collections are under threat. The question is whether they can remain widely available for use in a world where researchers are acquiring more and more gene-related patents. The answer is far from clear. Most experts now agree that the unrestricted use of naturally occurring genes will continue to be permissible,10 a point conrmed for the US by a recent decision of USPTO.11 If a gene in an African farmers maize variety ends up being sequenced
8 See, for example, Philippines Executive Order No. 247 and Administrative Order No. 96-20 (1996), the Cartagena Agreement of the Andean Pact Decision on a Common System on Access to Genetic Resources, and the Declaration and Draft Model Law by the Organization of African Unity/Scientic, Technical and Research Commission Task Force on Community Rights and Access to Biological Resources. Most legislation would require the negotiation of benet-sharing arrangementsoften with both local communities and multiple government agenciesprior to access of genetic materials. Given the peculiarities of the CBD denition of country of origin as discussed later in this essay, it will be difcult to identify the distinctive properties in a sample and then determine their country or countries of origin prior to having access to the materials for scientic examination. Even if benet-sharing arrangements were made contingent, or based on a formula (a percentage of royalties, for example), it is possible that the terms would have been negotiated either with a country that is not the country of origin, or with only one of a number of countries of origin. Many institutions and plant breeders are expected to forego access because they will be reluctant to invest the time and energy required to negotiate the terms for access to materials whose value/utility, if any, has yet to be proven. 9 Evanson (1999) concludes that a 15-year disruption over the interchange of landraces and advanced breeding lines produces simulation results in which prices will be higher, developing country imports will be higher, and developing country welfare lower because of impeded exchange of germplasm. 10 Personal communications from C. Correa, attorney and Professor of Economics of Science and Technology, University of Buenos Aires; T. Roberts, attorney, formerly Intellectual Property Rights ManagerICI Seeds, now principal, Roberts and Associates. 11 A patent on a gene covers the isolated and puried gene but does not cover the gene as it occurs in nature. Thus, the concern that a person (or a plant) whose body includes a patented gene could infringe the patent is misfounded. The body does not contain the patented, isolated and puried gene because genes in the body are not in the patented, isolated and puried form (US Department of Commerce, 2001).
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and patented in the US, that farmer and all other farmers and breeders (whether in the US or Africa) would still be able to use that variety and that gene for both production and breeding. On the other hand, if this same gene were developed or deployed in conjunction with a specic genetic-engineering application, its unrestricted use would likely be prohibited wherever the patent was enforceable.12 The barriers being erected by the patenting of biological materials do not so much obstruct the traditional uses of genetic resources as they impede the application of specic tools of biotechnology (enabling technologies) to these resources. Ultimately, however, such barriers limit entry into the germplasm industry, even by public-sector agencies. Without the freedom or opportunity to use the latest germplasm and the best techniques, the public sector may nd itself hampered in producing crop varieties that farmers would nd economically viable or otherwise attractive. We thus believe that concern about these barriers is warranted, for we also believe that biotechnology should be used by and for developing countries. Finally, it should be noted that intellectual property protection is national in character. A patent granted in the US is not valid globally; it is only valid in the US unless the patent holder takes the step of applying for and securing protection in additional countries. Many developing countries lack patent laws that would allow for the protection of plant varieties or other biological materials, effectively conning the thousands of biotechnology-related patents to developed countries. However, this situation is changing. Through the Trade Related Aspects of Intellectual Property Rights agreement under the World Trade Organization, developing countries are being required to enact laws that, at a minimum, provide for protection of plant varieties. If they do not, they are deemed to be in restraint of trade, for which trade sanctions are the remedy. No one can predict with certainty where the expanding scope of patent laws in developing countries will lead. Nor can it be foreseen how the private sector will react to the use of their intellectual property outside the jurisdiction in which it is formally protected. Paarlberg (2002) argues that the private sector to date has been generous in providing protected technologies to less developed countries. We agree generally with his point, but note that the generosity of the intellectual property system has not yet really been tested. Our concern is that unless special efforts are undertaken, legal restrictions, economic pressures, political sanctions, and transaction costs on the use of genetic materials will multiply. Poor countries will then face additional constraints on the acquisition and use of protected materials and associated modern technologies.
12 In the US, for example, patents are available for the isolated and puried form of DNA. In order to use DNA in this form (and thus, infringe the patent), one must employ certain sophisticated techniques. Effectively, such a patent would not restrict the use of the gene, but it would prevent uses that employ biotechnology to isolate or purify the material. As noted, US patent laws are without legal effect outside the US. This does not mean that US patent holders do not care or have no recourse when others appropriate their intellectual property, albeit legally.
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Privatization and concentration Efforts to protect Intellectual Property Rights in innovations involving plants and their genes have had a profound effect on the structure of research in the applied biological sciences. They have also been a driving force in corporate consolidation and in the related transformation of once-sleepy seed business into large-scale genomic and life-science rms. Leaders of several large companies like Monsanto and Novartis arguably saw agricultural biotechnology as a mechanism for generating dominant commercial strategies for their companies. Although consumer and stockholder reactions eventually interceded to limit the strategies and to decrease budgets for GMOs within these companies, two early waves of investment activity thoroughly reshaped the new industry. The rst of these waves featured the acquisition of family-owned seed companies by large multinational rms with interests in agricultural chemicals (Brennan et al., 1999; RAFI, 1998; Thayer, 2001). These mergers and acquisitions were initially driven by the desire to link seed and chemical businesses, both in research and marketing (Crittenden, 1981). The expansion of Intellectual Property Rights, especially in the US, facilitated the creation of new proprietary products and technologies. These developments, in turn, encouraged a second wave of investments in, and acquisition of, biotech start-ups (Doyle, 1985). The genomic-based, life-science companies began acquiring seed rms and boutique biotech operations at a pace so rapid that the name, number, and scope of the resulting conglomerates changed on an almost monthly basis. It often appeared as if virtually all rms were simultaneously trying to buy, sell, and sue one another! Many of the mergers seemed complete by 1999, only to be followed by another round of reorganization. Under shareholder pressures, some of the largest of the mega-rms began to rid themselves of their agrochemical interests. Following in the footsteps of Pharmacia, Upjohn, and American Home Products, Europe-based giants Aventis, Novartis and Astra Zeneca began backing away from the life science concept (Agence France Press, 2000). Much more could be written about the personalities and purposes behind the various mergers and realignments and about the several public relations disasters that befell them.13 However, regardless of which particular corporate roof now covers which formerly independent seed or agrochemical rm, ve important implications derive from the new industrial structure shown in Fig. 1.14 First and foremost, the plant genetics industry is now heavily concentrated in a half-dozen major rms that hold substantial numbers of key patents on germplasm. They also have intellectual property coverage of the related enabling technologies, such as gene guns (physical devices for injecting DNA through cell walls) and Agrobacterium tumefaciens (Bt) transformation systems.
13 See, for example, the very readable account by Specter (2000) of Monsanto and Robert Shapiro, its CEO, during this period. 14 Another graphic presentation of the various mergers as they relate to developing countries is contained in Byerlee and Fischer (2001).
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Fig. 1. Changing structure of the plant genetics industry (ca. October 2001). Source: Modied from (RAFI, 1998) and (Brennan et al., 1999); supplemented by numerous stories from The Wall Street Journal.
Second, the control of patents and seed distribution networks exercised by these companies has substantially increased the barriers to entry for new rms in the eld of germplasm development.15 The scale of these operations is now enormous. For example, DuPont paid $9.4 billion for just one company, Pioneer, to underpin its seed operation, mainly in maize. Third, any research institutionpublic or privatewishing to use the traits or enabling technologies must, as a practical matter, have commercial relationships or alliances with these rms. This point, in turn, implies that the research institution will need something to offer to the large rmstechnologies to trade, cash, or the glow of favorable publicity from participating in a noble cause. Fourth, given the protability motive of these companies, much of their research has focused on innovations that could generate linked sales of seeds and chemicals. It was no accident that two of Monsantos early seed products, Roundup Ready corn and soybeans, were linked to the companys major herbicide. More generally,
On the other hand, new biotech companies do continue to emerge. This list includes Paradigm, Mendel, Ceres, Akkadix, Exelisis, etc.companies that typically have one or two excellent ideas and $1050 million to work with.
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74 percent of the transgenic crops grown commercially between 1996 and 2000 had herbicide resistance as the trait of primary interest (James, 2001). Lastly, the privateprotability focus of these rms has created, often inadvertently, many orphan crops and countriescommodities and nations that are under-researched, yet unprotable for the private sector to pursue.16 This outcome, we would argue, places a burden on private rms to make their technology available to these countries under generous terms. However, as Pingali and Traxler, 2002 argue, there will be fewer orphans if the public sector completes the preliminary adaptive research on these commodities and in these countries, thereby lowering the cost barriers to the private sector. Together, these circumstances pose serious difculties for the poorest countries of the world. The use of biotechnology on major crops is becoming increasingly difcult for them. This point is of great concern where breakthroughs are needed and where dietary dependencies can be highfor example, more than 50 percent of calories come from maize in several southern African countries. Most of these nations have small GDPs and they also rely disproportionately on non-hybrid, tropical, and poor-peoples food crops of little concern to major plant biotechnology companiescrops that will receive little attention from the private sector. Further, these countries typically lack the trained scientists needed to use or develop new technologies. The poorest countries thus face the daily dilemma of how to allocate scarce human and nancial resources in plant breeding. Many nations do not have a single plant breeder working on secondary crops of vital importance to their people. Should developing countries completely forego attention to such crops and engage instead in direct involvement in more commercial crops such as maize? and, how is that allocation decision affected if access to the latest genetic materials and technologies from other countries become more and more limited for maize? The foregoing allocation dilemma also faces international organizations such as the Consultative Group on International Agricultural Research (CGIAR) supplying research products that are public goods to developing countries.17 What types of alliances should the not-for-prot sector form with the private sector to move key aspects of the technology into crops and countries that otherwise would be left behind? How much nancial and human capital should be spent on inventing around patents not easily obtained under favorable licensing terms from the private sector? Should centers of the CGIAR and other similar agencies simply disregard the ownership of intellectual property if the products or processes are not patented or registered
Sachs (2000) has written perceptively about technologically excluded countries in the process of development. 17 We assume that readers are broadly familiar with the CGIAR, whose 16 international centers expend about $350 million annually on agricultural research relevant for developing countries. These funds come from some 60 donors, mostly governments, and are spent primarily on developing germplasm, enhancing resource management, and training. Readers seeking more information about the CGIAR should see www.cgiar.org.
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in a particular country?18 If so, do they face threats from country donors where the intellectual property resides? and what happens, and to whom, should any of the resulting commercialized commodity production enter international trade? Biotechnology and transgenics Industrial structure and patents present a formidable set of technology-access problems for poor countries. In a less direct, but no less important manner, these nations may also become victims of Northern GMO battles. Volumes have been written about the controversy surrounding transgenics as they affect Europe and the US, but analyses of their effects on poor countries have only recently begun to appear.19 The major controversies on the use of biotechnology in germplasm development surround transgenic manipulations that move a gene or set of genes from one species to another.20 Use of transgenic crops is increasing rapidly. In 2000, the area devoted to such crops totaled 44 million ha., an area twice the size of UK (James, 2001). However, 99 percent of production was concentrated in four countries (US, Canada, Argentina, and China) and in four crops (soybeans, corn, cotton, and canola). For better or worse, transgenic crops thus far have bypassed all but a few developing countries. The controversies over transgenics, particularly in Europe, raise at least three important questions concerning developing countries. The rst question is whether developing countries will be allowed to make their own decisions about whether to employ transgenic technologies to feed their people, second, will such production be allowed in world trade, and third, will worries over GMOs preclude the new microbiology from being used in non-transgenic applications. Most observers recognize that the use of transgenics carries both costs and benets (Rissler and Mellon, 1996; Gisselquist and Srivastava, 1997; Persley and Lantin, 2000; Kaiser, 2001; Royal Society, 2000; National Research Council, 2000). Benets may be large, but the possibility of considerable danger cannot be ruled out. Honorable men and women can thus assess risk-return proles quite differently across nations and economic classes. Our intention here is not to open this debate or pass judgment on the various positions. Instead, we simply repeat what we have heard so often from many developing country ofcials and scientists: that developing countries must be in a position to make their own decisions about these matters, with access to sufcient information, but without undue pressure. Such a decision is moot if the technology has little relevance (which is how some from the South describe
18 Ingo Potrykus, the chief architect of vitamin A-enhanced rice is quoted as saying, So many elds of research are blocked by corporate patents. I had to ignore them or I couldnt move at all. (www.gene.ch/infor4action/2000/Mar/mag00002.html) 19 Gaskell et al. (1999) provides a useful summary of European versus US attitudes. See Paarlberg (2001) and Huang et al. (2002) for recent reports on developing countries. 20 The development of molecular markers and the practice of marker-assisted selection (which improves and speeds classical Mendelian breeding) is not controversial. Similarly, tissue culture, now used for the quick and virus-free production of certain crop planting materials, rarely produces acrimonious debate.
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the early focus on herbicide resistance) or if access to the technology itself is severely hindered by laws, policies, or attitudes reecting interests only of developed countries. Our second concern focuses on bio-safety, a topic that is truly a two-edged sword. Poor countries do need clear and appropriate bio-safety protocols. But as Paarlberg (2002) points out, disagreements over the form and extent of regulations has been a seriously inhibiting factor in sorting out the costs and benets of transgenic introductions. On occasion, protagonists for or against certain safety provisions have come from the trade or corporate sectors; however, more often they have been from those anti-GMO groups who oppose transgenic crops for any purpose or reason. A third concern has to do with the potential transfer of all biotechnologies, even if they do not involve transgenics. Controversies over GMOs cast a pall over an entire set of potentially useful and otherwise acceptable techniques whose use may be discouraged or restricted because of their perceived association with transgenic Frankenfoods. Developing countries could thus be denied powerful tools and germplasm useful for expanding agricultural production and trade. As Pinstrup-Anderson (2001) recently observed, The prediction so often heard that the poor in developing countries are unlikely to benet from modern biotechnology in the foreseeable future could well come truenot because the technology has little to offer, but because it will not be given a chance. International treaties and negotiations When Queen Hatshepsut dispatched her army on the worlds rst recorded government plant collecting expedition in 1482 BC (Farney, 1980), we presume that she expected to encounter differences of opinion concerning ownership questions. Egypts rst Queen was prescient. Almost 3500 years later, there are still conicts. The biggest change is that governments now send armies of negotiators to establish rules for international transfers of biological materials. The CBD and the new FAO International Treaty on Plant Genetic Resources, together, constitute the legal and ideological framework for the new germplasm regime. Political tensions have intensied dramatically in recent years over the ownership and exchange of genetic resources. In large part, these tensions have arisen from the perception that developing countries have been exploited, even robbed. There are both historic and modern elements to this story. Most major agricultural crops were domesticated over a period of thousands of years in what are now termed developing countries (DeCandolle, 1886; Vavilov, 1926; Harlan, 1975; Simmonds, 1976). Illustrative of this history, the US has an agricultural system composed almost entirely of imported crop species. It is easy to comprehend, therefore, that the developing countries of Asia (the region that gave rise to rice, soybeans, and bananas, for example), or Africa (which supplied cotton, sorghum, and watermelon) or the Near East (the home of wheat and rye), or Latin America (which supplied maize, beans, potatoes, and tomatoes) might feel that they got the worst of the exchange with the US, which donated little more than cranberries, Jerusalem artichokes, and sunowers to the cornucopia. This perception of unequal historical exchanges
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between North and South was a major determinant of the early intergovernmental debates on genetic resources within FAO (Fowler, 1994). With the expansion and strengthening of Intellectual Property Rights for biological materials, the feeling of being exploited grew. Now, it seemed, the private sector in the North was claiming credit for, and ownership over, genetic resources of crops domesticated and furnished by the South. Moreover, rms of the North were using the new rights to underpin the construction of corporate empires. Although patents and other Intellectual Property Rights provided a mechanism through which breeders could control their products and extract benets, developing countries had few tools at their disposal to obtain compensation for their efforts and contributions. Not surprisingly, the assertion that plant genetic resources were the common heritage of mankind, and should be fully and freely exchanged, came to be greeted with cynicism when uttered by anyone from an industrialized country. CBD As country delegates convened to complete the CBD at the Earth Summit in Rio de Janeiro in 1992, they were aware not only of the ecological importance of biodiversity, but also its usefulness and unrealized economic value. Decision makers in many developing countries had come to believe that their countries were gene rich, and sitting on genetic gold mines. Indeed, it appeared plausible that the exciting new biotechnologies they were reading about in the newspapers would be used to transform some lowly tropical forest plant or bug into a cure for cancer. In this setting, common heritage yielded to an assertion of national sovereignty and to an agreement embodied in the CBD that future access to genetic resources would take place based on prior informed consent and mutually agreed terms negotiated with the country of origin. In the aftermath of the Convention, countries have been scrambling to enact access legislation (Glowka, 1998). If there is any common element to the approaches of different governments, it is that virtually all see themselves as sellers of genetic resources. Interestingly, no one seems to be a buyer. As a consequence, the legislation is laden with restrictions to access, designed more to prevent abuse than to maximize benets.21 Drafters of access legislation seem to have been preoccupied with controlling access to diversity at the species level, that is, to medicinal plants. No provisions are made for treating (intra-species) agricultural biodiversity differently. A plant collector wishing to obtain a sample of rice from a farmers eld to add to the global collection of 420,000 accessions must go through the same bureaucratic procedures designed to ensure that the country is not robbed of the future cure for cancer. This lack of exibility has already halted most agriculture-related plant collecting.
It is revealing that the 31 October 2000 deadline for governments to provide the Secretariat of the Convention with the names of ofcial focal points for inquiries about access and benet-sharing arrangements came and passed without a single government nominating a focal point. Seven years after the CBD came into force, it is still difcult to know to whom one should apply for permission to collect genetic resources in a country.
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The 11 gene banks of the Consultative Group for International Agricultural Research (CGIAR), which contain an estimated 40 percent of the genetic diversity for the major food crops, are the predominant source for genetic materials relevant for most developing countries. These banks averaged 9782 acquisitions annually for the ve calendar years before the CBD. In 1997, the last year for which data are available, the number of new accessions was only 563. The decline in the number of collection missions was even steeper, going from triple digit to single digit numbers for the same time periods (SINGER, 2001; Evanson and Gollin, 2001). Stories are also beginning to be told of unique genetic populations being lost to road-building or airport construction, with the full knowledge and tacit consent of the government involved. In these instances, either regulations would not allow collection even for rescue purposes, or government ofcials found it safer to deny collecting permits than to run the risk of being accused of aiding biopirates.22 Barriers to providing access to plant genetic resources for food and agriculture can also be found in the Convention itself. Article 2 of the CBD states that the country empowered to grant access is the country of origin, which is dened as the country which possesses those genetic resources in in-situ conditions and, in the case of domesticated or cultivated species, in the surroundings in which they have developed their distinctive properties. Unfortunately, distinctive properties are not dened. A single sample of sorghum, for example, may have numerous distinctive properties, and thus multiple countries of origin under the CBD. This situation is complicated by the fact that the precise geographical origin of each property is simply unknown in most cases because it arose thousands of years ago. These complications render the Convention almost totally inapplicable to the type of genetic resources used in food production (Fowler, 2001a). The need for different approaches to agro-biodiversity was recognized, however, in the negotiating sessions leading to the adoption of the CBD. Delegates to these sessions noted the need to seek solutions to outstanding matters concerning plant genetic resource. In particular, they worried about access to ex-situ collections assembled prior to the coming into force of the Convention. As a result, a mandate to open negotiations on these subjects was passed to FAO. International Treaty on Plant Genetic Resources for Food and Agriculture FAO began hosting intergovernmental negotiations in 1994 to revise its voluntary International Undertaking on Plant Genetic Resources (itself a product of the now ofcially discredited common heritage era) into a legally binding instrument in harmony with the CBD. The negotiations concluded in early November 2001, with the formal adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture (FAO, 2001). The treaty will come into force ninety days after the 40th country has formally ratied it. This process could easily take some years; indeed,
In personal communications, David Williams of the International Plant Genetic Resources Institute and Aart von Schoonhoven of the International Center for Tropical Agriculture cite examples concerning groundnuts and papaya, respectively.
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some countries such as the US and Japan that abstained in the voting are unlikely ever to ratify it.23 The treaty, when ratied, will establish a multilateral system for access and benet-sharing. Parties (governments) agree to provide other governments (or legal persons within those countries) with facilitated access to genetic resources for a specied list of crops and forages. Recipients, in turn, agree that they will pay into an international fund an equitable share of the benets arising from the commercialization of a crop variety that incorporates genetic material obtained from the multilateral system. In other words, royalties on new crop varieties bred with genetic resources from the multilateral system will ow into the coffers of that system. These funds will then be used for programs (for example, germplasm conservation or capacity building) agreed upon by the Governing Body. This benet-sharing provision will not apply if the new variety is made available without restriction to others for further research and breeding The provision will therefore probably be relevant only when the new variety is protected by patents.24 If our interpretation is correct, the multilateral provision is unlikely to generate substantial funding. Royalties will be assessed as a percentage of prots from seed sales of particular new varieties, which is not a particularly large base. Moreover, the two countries where such patenting is available and most widely usedthe US and Japanare unlikely to ratify the treaty. Generation of funding was the prize sought by many countries. Time will undoubtedly reveal, however, that access itself is by far the most important benet, not funding. The list of crops covered by the multilateral system, which is ostensibly constructed on the basis of importance to food security, includes some 35 crops (and in the case of Brassicas, crop complexes) and approximately 80 (of 30,000) species used as forages. Most major crops are covered, including rice, wheat, maize, potato, banana, and common beans. Some very important crops, however, are missing: soybeans, groundnuts, tomatoes, tropical forages, onions, sugarcane, melons, grapes, cocoa, coffee, and most industrial crops such as oil palm and rubber. In many cases, individual countries or regions concluded that they might gain more from withholding these resources from the multilateral system and then seeking to sell them bilaterally. China, the center of diversity for soybeans, insisted that soybeans be excluded, and when this was done, Latin America withdrew groundnuts. Not to be outdone, Africa took tropical forages off the table. This process may help the reader understand the irony of how a list of crops crucial to world food security contains asparagus and strawberries, but is missing soybeans, groundnuts, tropical forages and most poor peoples crops. The crux of the debate at FAO has always had to do with access and benetsharing. The questionable underlying logic, borrowed from the CBD and the marketplace, is that a certain amount of access should be balanced with an appropriate
The formal vote on the treaty was 116 in favor, none opposed, and 2 abstentions. Varieties protected by plant breeders rights remain available to others for research and use in breeding programs. It does not appear, therefore, that this commonly used form of intellectual property right would trigger benet-sharing under the new treaty.
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amount of benet-sharing. Developing countries would be the suppliers of genetic resources (mostly in the form of seeds of traditional varieties), and developed countries would provide the benets (funds and technologies). The basic premise for the negotiations was, from the very beginning, deeply awed. Were it not, either the marketplace or the CBD itself might have offered a quick and satisfactory solution to the problem of plant genetic resources for food and agriculture. Developed countries need for access to developing country germplasm was overestimated, and developing countries need, underestimated or ignored completely. This underestimation is especially the case for many crops omitted from the multilateral system. Failing to secure guarantees from developed countries of additional nancial benets in return for expanding the list of crops in the multilateral system (including, in important instances, crops that are grown only in the South), developing countries insisted on a truncated list. We have no doubt that developed countries and the private sector will be able to secure the genetic resources they need. We are less condent that African countries, for example, will have the capacity and resources to negotiate arrangements abroad to obtain tropical legumes or wild relatives of cassava from Latin American countries, or even genetic resources of local importance from a neighboring country. It is too early to have quantitative indicators of the impact of the new treaty. As we write, the treaty is not yet two months old; ratication and implementation may be years away. In spite of the uncertainty, however, we believe that four conjectures are warranted. First, the new treaty may reduce political passions and thus facilitate the ow of germplasm for the crops it covers. It may prompt countries to amend existing biodiversity access legislation to expedite transfers of plant genetic resources for food and agriculture. While this outcome would be a welcome improvement over the status quo, the treaty will not turn back the clock to the days when the free ow of germplasm applied virtually to all crops and all countries. Signicantly, however, the international status of the largest and arguably most valuable collections in the worldthose held by CGIAR centersis conrmed in the treaty. Political and legal threats to these collections and their continued availability to the international community should abate. If there is a hidden gem in the treaty, this is it. Second, the treaty unfortunately does not cover all crops. Access to genetic resources of many cropsincluding those noted above as well as most fruits and vegetables, and many tuber cropswill remain restricted. It will be nearly impossible to assemble genetic resource collections of these crops in the future for the purpose of initiating or expanding breeding programs. This failure will work more to the disadvantage of developing countries for reasons discussed earlier. As the multilateral system is composed of crops deemed by governments to be critical to food security, excluded crops, by implication, are likely to become politically unimportant and thus vulnerable to cuts in aid funding. All too often, foreign aid is the only source of nancing for specialized breeding activities. One of the biggest losers, for example, will be the not-for-prot Asian Vegetable Research and Development Centre, headquartered in Taiwan, and its partners in developing coun-
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tries. Funding for the CGIARs development of soybean, groundnut and tropical forages will also decline, to the detriment of developing countriesin some cases, to the very countries that insisted on their exclusion from the multilateral system. To make matters worse, access to genetic materials of excluded crops will presumably come under rules set out in the CBD and related national access legislation.25 In effect, access will be seriously constrained, and public involvement repudiated at the very moment when both are crucial to building food security in developing countries for an indeterminate period. The off-setting benets are likely to be miniscule. No substantial market for plant genetic resources has ever existed. Traditional farmer varieties, though used as breeding materials, have never been sold as such. Developed countries clinging to the hope that they will someday get lucky and win the gene lottery are likely to be disappointed. While waiting for the winning tickets, however, restricted germplasm ows will inhibit the modest efforts underway to improve crops excluded from the multilateral system. Third, the treaty is unlikely to include all countries. For various reasons a number of countriesNorth and Southmay remain outside the agreement. Others may take a wait and see attitude, and delay ratication until they see who else joins the club. Unless most nations quickly adhere to the agreement, the new international system will only be partial in its geographic coverage.26 Fourth, several key issues will be left for the Governing Body of the new agreement to resolve, including setting the level of benets to be provided by those that acquire genetic materials under the agreement and use them to create a new commercial plant variety. Parties to the treaty will also have to decide what, exactly, constitutes access from the multilateral system. Understandings on these issues will have to be reached before the Governing Body can determine the wording of the standard Material Transfer Agreement that all Parties will be required to use when they provide access to genetic resources. It is troubling that the treatys denitions of key terms (such as plant genetic resources and genetic material) are already being interpreted in multiple and contradictory waysa signal that implementing the treaty will not be straightforward. Delegates were aware of this problem when they approved the treaty, but simply passed the disputes to the future Governing Body. Resolving these technical matters was never going to be easy. The political difculties will be even greater, since the treaty species that all decisions of the Governing Body must be by consensuseach Party will have a veto. Unless key issues are resolved quickly by the Governing Body, the entire agreement could become paralyzed, leading to a new round of conict. Adoption of the new International Treaty on Plant Genetic Resourcesdespite its serious aws-should be welcomed. The treaty marks a tentative step in the right direction. It is not a perfect treaty, but perfect was never one of the options on the
Existing CGIAR collections of excluded crops, however, will be covered by the treaty and will remain available to countries under the terms of a material transfer agreement, the text of which remains to-be-negotiated by the treatys Governing Body. 26 Interestingly, all of the CBDs late-signing countries (those ratifying the treaty more than ve years after it came into force) have been developing countries.
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table. The realistic options, including the alternative of not having a treaty at all and seeing all germplasm exchanges take place through individual contractual agreements, were all worse. Eventually, the treaty may provide a more rational basis for genetic resource exchanges. Vexing problems remain to be solved, however, if the treaty is to realize its potential. It must attract wide adherence if it is to become the legal structure regulating access and benet-sharing and if it is to bring some degree of order and predictability to germplasm ows. The treaty will also have to expand its coverage to include all important crops. Until it does so, the commons will remain partitioned, with all of the attendant problems and controversies encouraged by such a sub-division. Responses We have described in this essay the emergence of a new international regime for the development and transfer of genetic resources. This new regime operates in the context of dramatic changes in the biological sciences and is characterized by altered institutional relationships (particularly involving the public sector), new corporate structures, and evolving laws and policies affecting what kinds of biological materials can be owned and how they can be used. Changes of this magnitude are rarely achieved smoothly or without controversy. Typically, few individuals or institutions involved in the process have an accurate or complete understanding of what the change is all about and where it is leading. Communication deteriorates, decibel levels rise, and existing forums and mechanisms for making law and policy fail, both nationally and internationally. Each of the new regimes elements has been associated with controversy. Each has had its turn before intergovernmental forums, but thus far governments have failed to grasp the signicance of the combination of elements and have yet to fashion comprehensive or thoughtful responses. In international negotiations, delegates typically lack the background to understand issues of such scientic and legal complexity. As negotiators, they arrive without a broad enough mandate (or sufcient enough authority) to tackle the many dimensions of the problem (Petit et al., 2001). Genetic resource discussions can easily be seen as occupying territory belonging to ministries of environment, agriculture, health, commerce, justice, science and technology, and foreign affairs. How does a government formulate its policy across so many ministries, and who with sufcient political power can be sent to present the policy? This problem is becoming ubiquitous and UN agencies have not yet gured out what they might do, if anything, to keep the intergovernmental bodies and negotiations they host from becoming impotent talk-shops. Clearly, there is a need for invigorating certain intergovernmental forums, empowering them to address and act on issues that have heretofore been too complex and too contentious to tackle seriously. Despite high levels of interdependency for genetic resources,27 protagonists
27 According to Palacious (1998), Italy and Ghana, for example, are almost identical in terms of their dependency on crops originating outside their borders.
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persist in framing the debate in terms of NorthSouth, Cold War, or donorrecipient. Indeed, new wordshighly revealing of the debates characterhave been added to the language, biopirate being the most evocative. We take as given that certain elements of the new regime are here to stay, at least in some form and at least for some yearsprotection of intellectual property for certain types of biological materials, corporate involvement in the life sciences, and national sovereignty over genetic resources. Political proposals that amount to turning back the clock on these subjects have limited utility. Our call is not for disengagement, but rather a plea for alternatives that can substitute for unrealisticyet otherwise perfectvisions. What follows, therefore, are some of our imperfect suggestions. Capacity building If poor countries are to reap the benets of twenty-rst century agricultural research, they will need help. Part of this assistance can come from intermediary agencies, such as the CGIAR centers, which can help transform, adapt, and develop new forms of technology for under-researched crops, neglected farmers, and lagging regions. But there are severe limits to what outsiders can do, just as there are severe limits to what technology alone can do to solve problems of food security. Inadequate investments in human resources within these countries are a major part of the problem. Recent educational and R&D investments in poor countries are not at levels that should make either developed or developing countries feel very proud. While it is true, for example, that the number of trained personnel in agricultural research in sub-Saharan Africa was greater in 1991 than in 1961 (Pardey et al., 1997), it is also true that sub-Saharan numbers are still pitifully small. The total number of agricultural research workers in 21 countries of sub-Saharan Africa in 1991 was less than 7000, and total expenditures in 1991 (in 1985 dollars) for agricultural research in that region were less than $700 million.28 In a global review of agricultural research systems, Traxler and Pingali (1999) classied some 40 national research systems with respect to their ability to provide signicant amounts of parent materials for their crossing programs (so-called Stage 3 capacity), to undertake crossing programs and to produce the occasional variety (Stage 2 capacity), and all others (Stage 1 capacity). They concluded that only 7 national research systems for wheat and 13 for rice belonged either in Stage 2 or 3. Since the poorest countries are precisely the places which private-sector rms are least likely to serve, a rapid upgrading of national research capabilities is vital for all forms of technology development and transfer. In such a world, the centers of the CGIAR assume considerably more importance in the development and transfer of genetic resources than their size would suggest. These centers house some of the largest and best documented collections of genetic
28 By way of comparison, Stanford University alone had a consolidated budget of $875 million in 1991, also measured in 1985 dollars.
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resources in the world.29 They have generally well-equipped facilities and skilled staff. Their mission has brought them to work on the crops of importance to the poor, whether or not these crops are important commercially at the global level. Their mandates also include research on regionally critical crops such as yams, sweet potatoes, cowpeas, chickpeas, and cassava. In growing numbers of the poorest developing countries, the CGIAR functions de facto as the national research program for many of the 25 crops that it covers. CGIAR genebank collections are in the public domain and virtually all of the crop materials developed at the centers are available to all, with virtually no restrictions. CGIAR centers are, however, no match for the range of problems that face national research systems, and indeed, these centers face their own funding and capacity-building difculties. By way of comparison, the Michigan State University Agricultural Experiment Station has a budget that is roughly twice that of the largest of the CGIARs centers. The International Maize and Wheat Improvement Center (CIMMYT), with an annual budget of about $40 million, works on two of the three most important food crops in the world and their associated natural resource and economic problems. The Michigan State facility serves primarily a state clientele of 8000 full-time farmers, 16,000 part-time farmers, and 27,000 hobby farmers (Eicher, 1999). By comparison, 85 percent of all spring bread wheat varieties and 86 percent of all spring durum varieties released in developing countries from 1966 to 1997 were based on CIMMYT materials (Heisey et. al., 1999). CIMMYTs maize breeders, meanwhile, released hundreds of new lines and recently won the prestigious World Food Prize for Quality-Protein Maize. With half the resources of the Michigan State facility, CIMMYT serves a clientele that numbers in the billions. Similarly, the entire CGIAR system is only the size of the Brazilian national research program. It cannot be surprising that the CGIAR centers have not, as they are often urged to do, worked their way out of a job by building up capacity in the national programs. These centers can and should do more, but so too should key aid donors and the developing countries themselves. The World Bank, in part because of a substantial absolute and relative decline in its agricultural lending portfolio, has recently announced a new focus on education and training. Similarly, the US Agency for International Development (USAID) has focused very little on agriculture during recent years, although the new Administrator has promised to reverse this decline. In general, the development profession seems to have forgotten the crucial role of agriculture in providing incomes and jobs, as well as food, in poor societies. An honest assessment of what is required of the public sector in developing-country agriculture would be a reasonable place to begin in setting new priorities.
At present, the CGIAR genebanks are the only collections in the world with formal international status. As a consequence of agreements with FAO, the collections are not the property of the centers, but are held in trust for the international community.
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Legal status of plant genetic resources No nationand no ongoing crop breeding programcan be self-sufcient in terms of its requirements for genetic resources. The degree of interdependency between regions and nations is extremely high, and developing countries are no exception (Palacious, 1998). This point is underscored by the fact that developing countries are, and for decades have been, major net recipients of samples from the genebanks of the CGIAR (Fowler, 2001b). The continuing ow of genetic materials around the world depends on an enabling legal and policy environment and on a considerable degree of trust and cooperation. As we see it, these ingredients are all in short supply at the moment. Highly restrictive access legislation has been adopted in many countries. Access to in-situ (or on-farm) sources of genetic diversity has virtually ended and intergovernmental and other public sector genebank transfers are becoming more problematic. In the long term, this situation will be most detrimental to developing countries. The primary reason for this conclusion is that developed countries already have huge stores of germplasm in rather modern genebanks, whereas more than 75 developing countries lack any long-term storage facilities for plant genetic resources (FAO, 1998). This situation increases their dependency on access from foreign sources. A sensible international treaty brokered at FAO would have encouraged the ow of genetic resources of all crops and recognize that this ow would be the chief benet of an agreed multilateral system. Politically, however, this was not enough, if only because of the ingrained perception that developing countries have not been adequately rewarded for their historic and ongoing contributions (and generosity) in developing the germplasm that lls the shelves of the worlds genebanks. Even to address immediate needs, the FAO treaty will need to secure and provide a predictable amount of funding for capacity building to improve genetic conservation in developing countries. The amount of additional funding needed is relatively modestprobably on the order of $150 million annually. The Treaty would also need to take into account, improve, and expand the benets that developing countries receive from international public sector research programs. If the new treaty comes to be perceived as fair and workable (and is ratied by a sufcient number of countries to become truly global in scope), it could provide the quid pro quo for altering overly protective national access legislation. It would also put the moral and political force of the international community behind the disparate efforts to protect the public domain from actual and perceived encroachment on its intellectual property. Publicprivate partnerships Processes that keep germplasm and genetic technologies in the public domain are extremely important because they provide the freedom to operate for agencies producing public goods. This approach has long been a hallmark of the public sector;
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interestingly, it may also become a feature of some rms within the private sector.30 Monsantos recent willingness to share genomic information on rice is one important example (Gillis, 2000).31 There has been much speculation about this decision, but it has set an important precedent for the private sector. Similarly, the publication of the full genome for Arabidopsis thaliana, a member of the mustard family, is another important example (Somerville and Somerville, 1999). There is, however, a potential downside to disclosure. Protection is afforded only to that which has been disclosed and not to the surrounding data or constructs. Moreover, partial disclosure may give others clues that result in their patenting the rest of the genetic mechanism in questionan action that the initial disclosure was specically intended to prevent. Therefore, in spite of the very real progress in keeping genomics in the public domain, the specic technologies that govern function, use, and manipulation of these genes are increasingly likely to be held under some form of intellectual property protection. In turn, such protection provides both the opportunity and the forcing mechanism for new partnerships and alliances within and between the public and private sectors. Most public-sector agencies are not well organized to deal with the protection of intellectual property. The culture and mission of these agencies, the outlook of their staffs, their historic openness with scientic ndings, and their general lack of legal talent all mitigate against the use of protective devices. However, if these agencies wish to remain at the forefront of future agricultural research, many of them will nd it essential to use patents or other forms of protection. Revenue generation may become one motive, especially given the global decline in support for agricultural research. Much more important than revenues, however, will be the need for rstclass research organizations to maintain operating freedom. Alliances with privatesector rms may require that the public sector hold patents for bargaining purposes. Clearly, not all research ndings need to be protected; indeed, as a practical matter, very few of them do. However, public and nonprot agencies disregard of recent trends in the protection of intellectual property puts both of them and the countries they serve in jeopardy. Unfortunately, a great many of these agencies are seemingly still at the denial stage on this issue. At a minimum, the capacity to use protected methods and materials from the private sector will require public agencies to have condentiality agreements in place, even if patenting is not pursued directly. Tapping the private sectors capacity and experience in scaling up from the test tube through product distribution will also be invaluable. Finally, restrictive uses of public sector ndings will likely become more commonplace unless the intellectual property dimensions of those ndings are considered on a systematic basis.
30 There may be useful analogies that develop from the sale and use of patented drugs in the ght against AIDS. 31 Monsanto also announced in August 2000 that it would license, at zero cost, all of its proprietary technology used in the development of vitamin A-enhanced rice. This announcement followed a July 2000 statement by Novartis pledging to make a wide array of its seed technology available to subsistence farmers on a no-charge basis.
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Neither the public nor the private sector institutions will be completely comfortable with publicprivate arrangements, but the limited experience to date suggests that several forms are indeed workable. Wright (2000) has developed a useful taxonomy of formal and informal arrangements that could be used to bring biotechnology to the poor. These mechanisms include licensing under varying cost and technologysharing arrangements, market segmentation between rich and poor nations, technology grants, joint ventures, alliances, and various kinds of direct research support.32 Market-sharing has been a key element in most of the early agreements. The private partner typically retains the rights to distribute, sell, or license products in the developed countries, whereas the public agency retains rights for the developing world.33 But the problems of how the market is to be segmented, how poor regions within richer countries are to be dealt with, how the trade ows of products are to be regulated between rich and poor nations, and how the technology differential is to be implemented (for example, gifts or licensing at zero cost) help explain why negotiations between the public and private sectors are rarely easy or short. Indeed, establishing principles of market segmentation (including product liability issues) and the development of prototype agreements appear to be important areas for further research and experimentation.34 Finally, there are the interrelated questions of prots, responsibilities, and assistance. Much has been written about the short-run prot focus of private rms. However, the early negotiating experience of the CGIAR Centers indicates, on balance, that companies in the private sector have demonstrated an informed willingness to discuss technology issues in support of agriculture in poor countries. It has thus been possible to nd some winwin solutions that embrace the concerns of both the public and private sectors. These new kinds of partnerships seem to us to represent one of the most important avenues for improving germplasm ows into developing countries during the twenty-rst century. But as Pingali and Traxler indicate in their companion essay (2002), there are likely to be numerous instances when the public sector will simply have to purchase relevant pieces of germplasm technology from the private sector. Whether any partnerships with the private sector represent a viable direct option for national research programs in the very poorest countries remains to be seen. For this sub-set of developing nations, the chances appear to us to be depressingly slim. As a consequence, we see few alternatives to improving public sector capabilities in agriculture as a rst step in the germplasm-improvement process for this particularly difcult set of food-insecure nations.
Partnership examples drawn from hybrid wheat, apomixis, and wheat breeding are illustrated in CIMMYT (2000). 33 Many countries fall neatly into one category or another. However, countries such as China and India are typically a source of contention among public and private parties concerning whose rules should prevail in the market-segmentation agreements. Although relatively poor in per capita income terms, both countries are large in terms of aggregate GDPs, and both also have strong agricultural research systems. 34 An important start in this direction has been made by Byerlee and Fischer (2001).
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Acknowledgements Both of us have been heavily involved with international agriculture during the past 20 years. This article is shaped importantly by our work with the Consultative Group on International Agricultural Research (CGIAR) and three of its centers Centro Internacional de Mejoramiento de Maiz y Trigo (CIMMYT), the International Rice Research Institute (IRRI) and the International Plant Genetics Resource Institute (IPGRI)and with FAO on various of its international agreements. Portions of this essay draw directly from Falcon (2002). We express our gratitude for the helpful comments of Donald Kennedy, Ronald Mitchell, Rosamond Naylor, Anne Peck, Ragnhild Sohlberg, and David Victor. The usual disclaimers apply.
References
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Food Policy 27 (2002) 197222 www.elsevier.

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

Source: http://www.uspto.gov, accessed August 23, 2001.

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

W.P. Falcon, C. Fowler / Food Policy 27 (2002) 197222

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