Comment II: Using intellectual property rights to preserve the global genetic commons: The international treaty on plant genetic resources for food and agriculture

Over the last twenty years, national governments, patent owners, farmers, plant breeders, researchers, and a diverse array of non-governmental organizations (NGOs) have engaged in a vigorous debate over how to conserve and utilize the world's plant genetic diversity. On one side of this debate are advocates of a pure global commons regime, which would allow researchers, breeders, and farmers free and unfettered access to all plant genetic resources (PGRs), including those held in international seed banks, in national collections, and in situ on public lands. On the other side are advocates of a private property approach, which seeks to encourage plant-related innovations in agriculture and biotechnology by allowing isolated and modified genetic resources to be owned by patentees and commercial plant breeders. A critical issue in this ongoing controversy concerns the role of intellectual property rights (IPRs), and, in particular, where to draw a boundary between plant genetic materials that must remain in the public domain and those that can be privatized. Debates over where to fix this boundary date back to the “seed wars” of the early 1980s, during which governments in developing countries pressured the Commission on Genetic Resources for Food and Agriculture (CGRFA) to staunch the flow of PGRs from centers of biodiversity in the developing world to plant breeding industries in industrialized nations. These governments argued that commercial plant breeders were using PGRs to develop new proprietary plant varieties without compensating the countries that had provided the raw materials for their innovations.

Duke Scholars

Author Laurence R. Helfer School of Law