A chess game that has been stalled for ten years. This is how the international negotiation on genetic resources appears. Taking place in a dedicated working group within the International Treaty on Plant Genetic Resources (ITPGRFA), these negotiations aim to strengthen the Multilateral System of Access and Benefit-sharing from the use of plant genetic resources. We followed the negotiations from the 12th to 14th of July, supporting the participation of the International Planning Committee for Food Sovereignty (IPC), represented by Guy Kastler of La Via Campesina.
Formed in 2013, this group of delegates of the contracting parties from different regions of the world is tasked with finding ways to enforce the Treaty’s principles regarding the access to plant genetic resources. The commitments are as clear as they are unfulfilled. The first is the facilitation of access, while the second concerns the respect of the rights of those farmers who have provided the vast majority of the genetic resources and the equitable sharing of the benefits resulting from the use of the germplasm taken from the ‘common basket’ (the Multilateral System – MLS).
The abuse of the “common basket”
Concretely, this ‘common basket’ is the network of germplasm banks located in the various contracting countries, storing a wide variety of seeds selected and preserved over centuries or millennia by farmers. The bulk of global agrobiodiversity is found in and made available by the countries of the Global South, which in turn expect – as charted by the Treaty – that those who use their resources to select and market new varieties of plants will pay them a share of the profits they make from it. Benefit-sharing, in fact.
The share indicated by the Treaty ranges from 0.77% of net revenue during a period of 20 years for those products containing genetic resources taken from the Multilateral System, to 0.5% for a 10-year period for all those products derived from the genetic resource. In the latter case, since the fee would be higher, the beneficiary receives in return easier access to all plant genetic resources of the same species as the variety from which he has taken a single seed sample. In essence, instead of signing a contract each time they need a single resource, a single agreement is sufficient to access all the resources of the same species.
What is more, this cumbersome system is only binding on those who make patented products such as Genetically Modified Organisms (GMOs). On the other hand, those who grant access to their new varieties for research, breeding or conservation activities are not obliged to pay. Specifically, the obligation to pay only concerns profits from the sale of patented seeds, and not those that are royalty-free or covered by a plant variety right (or by the new European Unitary Patent), which provides for a ‘breeder’s exception’ but does not respect the right of farmers to freely use the seeds of their crops.
Since the Treaty came into force in June 2004, companies have drawn heavily from the common basket, while paying nothing and refusing to do so. They can afford to do so because nobody traces the germplasm stolen from the common basket and stuffed into their patented products. Since patents are granted without any obligation to indicate the origin of the resources used, in the absence of controls, companies can evade their obligations very easily. In this legalised theft, they are flanked by governments curbing any attempt to strengthen the effectiveness of the Treaty, such as the United States, Canada, the European Union and Japan, among others. Host to the largest multinationals globally, the Global North influences policies and exploits legislative loopholes.
DSI, the threat to global biodiversity
If the implementation process remains stalled, so much the better for these actors. But for those who have fought for binding rules to stop piracy, it is outrageous. Especially since an additional threat has emerged a decade ago. Thanks to the complaints of the IPC and Crocevia, the sequencing and subsequent digitisation of the genetic resources contained in the Multilateral System has become an issue. In fact, researchers obtain the Digital Sequence Information (DSI) and then upload it into public (often open source) and private (often not freely accessible) databases. By means of synthetic biology and bioinformatics processes, it is possible to reproduce these sequences without having the physical material: all that is needed is the data.
Thus, behind the rhetoric of free and open knowledge is hiding a double risk: firstly, that this information will be reconstituted into matter using synthetic biology, and then patented as ‘inventions’; consequently, that no one will access the Multilateral System after having drained it by digitising and patenting its information. Mind you, it is not like some of us downloading a song from the Internet to make our own playlist. Rather, it is like a famous author downloading that song, putting it on his new album and selling it globally with a copyright that prevents it from being marketed to others. It would be difficult to do that with The Beatles’ Let It Be because it is too famous. But it is not for millions of other tunes and songs.
With almost all the genetic sequences contained in more than two million seed samples of the Multilateral System now freely available on the Internet, companies will finally be able to finish the deal: they are now able to patent as inventions the genetic material developed by farmers, who are instead denied access to the physical seeds stored by the MLS. Not only those seeds made available by the treaty member countries and owners of gene banks, but also those present in the fields, which have not been harvested and poured into the Multilateral System. These seeds are the most valuable resources since they contain all the characteristics selected by farmers to adapt their seeds to climatic, environmental and social changes and cultivation techniques. Cultivated biodiversity evolves with the environment and the farmers’ knowledge. If DSIs remain unregulated, therefore, it will unleash the ultimate appropriation of peasant biodiversity for the profit of a few large transnational corporations, in violation of farmers’ rights and benefit-sharing obligations. We call this the legalisation of biopiracy.
Matter and information
Predictably, this issue has become central to the high-level debate on the Treaty on Plant Genetic Resources. And these days, too, it has been the proverbial elephant in the room.
The industry considers DSIs as research-produced data rather than genetic resources containing information subject to the Treaty’s obligations, such as benefit-sharing and the prohibition of any claim to intellectual property rights that limit access to research, breeding and conservation of these resources, their genetic parts or components. Governments in North America, Europe, Australia and parts of Asia (Japan, South Korea) support the companies. Africa and Latin America, together with many Asian countries, struggle instead to include DSIs in these Treaty’s obligations. Until this point remains unsettles, companies will be able to access genetic data of their interest from an open-source database, associate the data with a particular character of a plant (its ‘function’) retrieved from academic publications, and patent this ‘genetic information’ associated with one of these ‘functions’. Hidden behind twisted legal language, this conjuring trick allows them to prohibit the use of all those seeds containing patented genetic information to those very farmers who have selected, stored and supplied to the Multilateral System the seeds from which this information was identified and digitised.
With all sorts of diplomatic tactics, the delegates of the Global North tried to derail these three days of negotiations. We have seen hours wasted on cloying quibbles, only to waste time and irritate the counterparts. We have witnessed demands to expand the pool of genetic resources available in the Multilateral System without first agreeing on a mechanism of payment and of respect of farmers’ rights that actually works. We have seen the denial of the nature of the DSI as a genetic resource, with the more astute parties – such as Europe – arguing that it was first necessary to arrive at a shared definition, knowing full well that this would make the process even longer.
However, Global North states were obliged to take into account the decision of the Treaty Governing Body, which postponed the debate on DSIs until the Convention on Biodiversity (CBD) in 2019. The recent Conference of the Parties of the CBD (COP 15) argued that DSIs should be subject to benefit-sharing. As a result, the Northern countries were not able to prevent the Conference’s final report from emphasising that DSIs are one of the ‘hot spots’ in the negotiations, as movements have emphasised at every meeting of the Treaty’s dedicated working group and its Governing Body for the past ten years. On the other hand, the Northern members succeeded in ensuring that the risk of confiscation of farmers’ seeds and traditional seeds by patents on this digitised information was not mentioned in the report, even though this issue was highlighted during the meeting by several contracting parties following IPC interventions.
The Treaty’s fate
However, this three-day negotiation has left us with the bitter feeling that the recognition of farmers’ rights, which implies a ban on claiming the DSI patents they contain, will require a strong mobilisation.
But we know we are right, not least because the Treaty is clear when it refers to genetic resources ‘and associated information’, even though it was written before the invention of the DSI. If states would fulfil their commitments, it would prevent the patenting of native traits developed by farmers. Not only that: it would also call into question any intellectual property rights that could block any use of plant genetic resources taken from the Multilateral System. To remove the ‘innovation’ character necessary to obtain a patent, it would be sufficient for the signing of the contract for access to the resource to precede the application for a patent on the genetic information contained in the resource. However, this obligation can still be circumvented with free access to online digital sequence data and scientific publications listing farmers’ knowledge of the characteristics of each seed that may contain these sequences.
The problem is that if nobody does anything to make these provisions operational, by closing these loopholes and ensuring farmers’ rights are respected, the Treaty risks collapsing on its inefficiency. Laboriously constructed to limit the privatisation pushed by the World Trade Organisation through the TRIPs Agreement (the Agreement on Trade Related Aspects of Intellectual Property Rights), this system of global dialogue for the regulation of plant genetic resources is now, two decades after being at its highest point, at its lowest. The group charged with making the commitments concrete will work until the end of 2024. Meanwhile, seed companies continue to claim patents on DSIs. This leaves little time to save the Treaty.
