Intellectual property and environmental protection of crop biodiversity under international law

• Main Author: Chiarolla, Claudio
• Published: Queen Mary, University of London 2009
• Subjects: 340; Law
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.509602

In agricultural research, plant genetic resources (PGR) are “non-traditional infrastructural resources”, which may generate higher social value and positive externalities if they are managed in an openly accessible manner. The privatisation of crop biodiversity is based on the assumption that the internalisation of these externalities is the panacea to fostering private research investment. However, if the domestic plant breeding and biotechnology capacity is limited, the above normative approach may fall short of expectations because the social costs of establishing or strengthening exclusion rights are higher than their social benefits. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) is the only international agreement whose normative approach reflects in part this economic reality. However, its constructively ambiguous intellectual property rights-related provisions do not effectively fence off crop biodiversity from private appropriation. Besides, the desire of most countries not to prejudice the negotiation of an international access and benefit sharing regime under the UN Convention of Biological Diversity may prevent the extension of the ITPGRFA’s “commons” management principles to a larger number of essential food crops. The scope of this study, which focuses on PGR and agricultural innovation, derives from the paramount importance that both the design and allocation of rights in these areas might have for global food security. The innovation system perspective shows that social and economic development depends on the institutional context in which technological change occurs. Finally, the study of the transition between property regimes shows that the global reform of the institutional arrangements, which govern the present and future allocation of wealth from agriculture, is insufficient to achieve international equity so as to meet the target of reducing the proportion of people who suffer from hunger in accordance with goal 1 of the Millennium Development Goals.