The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), adopted on 3 November 2001, entered into force on 29 June 2004. The treaty, negotiated under the auspices of the FAO, responds to concerns over the increasing privatization and monopolization of plant genetic resources for food and agriculture (PGRFA) and the potentially negative impacts this trend may have on agricultural biodiversity.1 Agricultural biodiversity is a result of over 10,000 years of access to and exchange of PGRFA between farmers across the world.2 Maintaining such access is thus crucial for the ITPGRFA’s objective of achieving “the conservation and sustainable use of PGRFA and the fair and equitable sharing of benefits derived from their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security.” As a result, one of the fundamental elements of the ITPGRFA is the establishment of a multilateral system for facilitated access and benefit sharing for selected PGRFA.
The multilateral system of access and benefit sharing of the ITPGRFA is also one of the most innovative aspects of the treaty and many of the mechanisms required for its implementation remain to be elaborated. As with the access and benefit-sharing regime under the Convention on Biological Diversity (CBD), some of the most important of these issues are directly related to intellectual property. Their adequate consideration andresolution is thus not only critical to ensure effective access and benefit sharing in the context of PGRFA, but also increasingly relevant to the intellectual property and development agenda pursued by developing countries and NGOs in diverse international fora. Since the ITPGRFA came into force, the Commission on Genetic Resources for Food and Agriculture (CGRFA),5 acting as the Interim Committee for the ITPGRFA, met in October 2004 and will meet again from 15 to 19 November 2004 to address some of these issues, with the first meeting of the Governing Body6 tentatively scheduled for mid to late 2005.
The purpose of this note is to highlight and briefly analyze the main intellectual property related issues that arise in the elaboration of the multilateral system for facilitated access and benefit sharing in the ITPGRFA. Section B describes the proposed multilateral regime for PGRFA and its main implementing mechanism, the standard material transfer agreement (MTA). It also outlines the process that is currently taking place with regard to the development of the MTA as Contracting Parties move towards implementation of the ITPGRFA. Section C then analyzes in more detail certain intellectual property-related issues currently being discussed in the context of the standard MTA. Their resolution will not only profoundly affect the scope and functioning of the multilateral system, but they are also closely linked to topics being discussed in the World Trade Organization (WTO), World Intellectual Property Organization (WIPO) and the CBD. Finally, Section D presents some concluding thoughts.