FARMERS RIGHTS AND INTELLECTUAL PROPERTY RIGHTS: RECONCILING CONFLICTING CONCEPTS

FARMERS RIGHTS AND INTELLECTUAL PROPERTY RIGHTS:
RECONCILING CONFLICTING CONCEPTS

Author(s): Alker, D.; Heidhues, F.

Produced by: University of Hohenheim (2002)

This paper discusses the different concepts of Farmers'
Rights and Intellectual Property Rights and their impacts
on plant genetic resources. It describes the nature and
purpose of both concepts and the relevant national and
international institutional frameworks before outlining
areas of conflict and highlighting possible options for
resolving these differences at both national and
international level.

At the international level the authors look in detail at
the WTO TRIPs agreement and the International Undertaking on
Plant Genetic Resources arguing that the successful
conclusion of revisions to this is crucial to this
reconciliation. On the national level the paper looks at
the use of sui generis PVP legislation by many developing
countries with various provisions for the implementation of
Farmers' Rights but, as the authors indicate, it is still
not decided if these provisions are in accordance with
country obligations under WTO rules.

Available online at:
http://www.uni-hohenheim.de/~i490a/dps/2002/02-
2002/DP02_02.PDF





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See the complete list of new additions, announcements, job adverts at:
http://www.eldis.org/ipr/

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ELDIS is funded by Danida, Norad and Sida, and hosted by the Institute of Development Studies, Sussex, UK
Contact details:

Alan Stanley
ELDIS Programme
at the Institute of Development Studies, Sussex
Brighton BN1 9RE, UK

Email: a.stanley@ids.ac.uk

Tel: +44 1273 877330
Fax: +44 1273 621202
WWW: http://www.eldis.org/ipr

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ATURE, WEALTH, AND POWER : EMERGING BEST PRACTICE FOR
REVITALIZING RURAL AFRICA

Author(s): Environment & Natural Resources Team,
Sustainable Development Office (AFR/SD), USAID

Produced by: USAID Development Experience Clearinghouse(DEC)
/ Development Experience System (DEXS) (2002)

Building on lessons learned from more than 20 years of
natural resource-based development in rural Africa, this
document presents principles and action steps intended to
serve as a guide to investment there.

Programmes that integrate nature (environmental management),
wealth (economic concerns), and power (good governance)
have shown promising results. This experience has generated
a set of principles that are detailed in this booklet as
action steps that can guide investment in rural Africa.

These are summarised as follows:

* Nature: improve information and knowledge management
systems; promote local land use planning and appropriate
resource tenure systems; foster innovation, social learning,
and adaptive management; build capacity and invest in human
resources; and promote cost-effective technical advisory
and intermediary services.

* Wealth: be strategic about the economics of natural
resource management (NRM; strengthen markets and NRM
market incentives; invest in rural organizations; create a
framework for better NRM choices; and assure that local
resource managers have secure access to NRM means and
benefits.

* Power: strengthen environmental procedural rights for
rural people; improve rural input into public decisions and
policy; redistribute natural resource authority and
functions; transfer powers, rights, and responsibilities to
representative and accountable authorities; explore a
minimum environmental standards approach; and promote
platforms that allow for continuous and inclusive
consultations.

Case studies of Namibia, Madagascar, and Mali illustrate
the effectiveness of integrating all three dimensions and
the various principles and actions recommended under each
dimension.

[adapted from DEC abstract]

Available online at:
http://www.dec.org/pdf_docs/PNACR288.pdf

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THE EMERGING GLOBAL REGIME ON GENETIC RESOURCES: ITS IMPLICATIONS FOR LOCAL COMMUNITIES

Author(s): La Vina, A.G.M

Produced by: World Resources Institute (WRI) (2002)

This briefing paper gives an overview of the emerging
global regime on genetic resources, with a special emphasis
on its implications for local and impoverished communities
worldwide. It identifies the key issues, stakeholders,
processes and opportunities and outlines a strategy for
intervention.

The author identifies two levels of tension existing in the
debate over access to genetic resources:

* between providers of genetic material in the global south
and those countries of the North who have the requisite
scientific and technological expertise to utilise genetic
material

* between companies and research institutions, mostly from
the North, who want to have access to genetic resources and
local and impoverished communities of the South who would
like to get meaningful benefits from these resources.

The report identifies the relevant processes as being:

* the processes under the Convention on Biological
Diversity (CBD) on access and benefit sharing of genetic
resources and on the implementation of Article 8j (which
focuses on the innovations and practices of indigenous and
local communities);

* the recently adopted International Treaty on Plant
Genetic Resources for Food and Agriculture;

* the Doha work programme on the clarification of the
relationship between the CBD and TRIPS as it relates to
traditional knowledge.

And lists the issues as:

* Issues related to prior informed consent , including the
role of stakeholders

* Designing and implementing appropriate and effective
benefit sharing arrangements, including benefits for local
communities;

* Questions related to intellectual property rights and its
implications to holders of local and traditional knowledge.

The author argues that unlike the other stakeholders, the
voices of local communities, with the possible exception of
indigenous peoples, are not being effectively heard in
these ongoing global decision processes. If global ABS
decisions are made that would facilitate access to genetic
resources without the participation of such communities,
the emerging genetic resources regime could aggravate
existing threats to their resource tenure and control of
biological and genetic resources and their traditional
knowledge. However these processes offer a unique
opportunity for such communities to maximise the
compensation they could receive under benefit sharing
arrangements that are designed and implemented properly. A
strategy for intervention in the global processes relevant
to the emerging global regime on genetic resources could
therefore have the following goals:

* the adoption of global norms on transparency and public
participation in decision making

* the acceptance of the principle of free and prior
informed consent by local communities before states allow
access to genetic resources

* the establishment of benefit sharing mechanisms that
provide immediate, long term benefits to developing
countries and communities

* the creation of an international certification system
that could trace genetic flows and the circumstances under
which material were obtained and utilised.

Additional requirements for the process identified include:

* Local capacity building
* The building of alliances amongst local communities and
with sympathetic constituencies, including with scientists,
environmental organisations, other civil society
organisations and stakeholder groups.

Available online at:
http://pdf.wri.org/lavina_abs_workingpaper.pdf
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DEMOCRATIC DECENTRALIZATION OF NATURAL RESOURCES:
INSTITUTIONALIZING POPULAR PARTICIPATION

Author(s): Ribot, J.

Produced by: World Resources Institute (WRI) (2002)

Series of case studies exploring the how natural resource
decentralizations have taken place and their measurable
social and environmental outcomes. Most of the cases focus
on forestry, while a few explore wildlife and water
management.

The main recommendations are:
* Work with democratic local institutions as a first
priority
* Transfer sufficient and appropriate powers
* Transfer powers as secure rights
* Support equity and justice
* Establish minimum environmental standards
* Establish fair and accessible adjudication
* Support local civic education
* Give decentralisation time
* Develop indicators for monitoring and evaluating
decentralisation and its outcomes

The Africa-wide research project conducted field studies in
Cameroon, Mali, South Africa, Uganda, and Zimbabwe in 2000
and 2001. Other studies look at Bolivia, Brazil, China,
India, Indonesia, Mexico, Mongolia, Nicaragua, and Thailand.

Available online at:
http://pubs.wri.org/pubs_description.cfm?PubID=3767

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EQUITABLY SHARING BENEFITS FROM THE UTILIZATION OF NATURAL
GENETIC RESOURCES: THE BRAZILIAN INTERPRETATION OF THE
CONVENTION ON BIOLOGICAL DIVERSITY

Author(s): Pe�a-Neira, S.; Dieperink, C.; Addink, H.

Produced by: Electronic Journal of Comparative Law (2002)

The Convention on Biological Diversity introduced a number
of rules covering benefit sharing with responsibility for
the interpretation and application of these rules
transferred to the national level. Therefore, Article 15 of
the Convention necessitates a further interpretation and
application at the national level, the Provisional Measure
being a first official attempt. This article attempts to
inform the debate on how these measures should be
implemented using the case study of Brazil where the
national debate on benefit-sharing "has made it clear that
the application of the rules from the Convention
necessitates a more detailed explanation and clarification
of the Convention's rule in the law."

The Brazilian case, the authors argue, shows that an
equitable implementation structure can only be adequate if
the public law component is well elaborated in clear
provisions. In the context of interpretation and legal
implementation of the Convention two lessons are drawn from
the Brazilian case.

Firstly, a private law solution appeared to be unacceptable
for the legal scholars and many other stakeholders so that
it had to be changed to a primarily public law approach.
Retributive equity does not emerge automatically if
contracting parties have equal power. Therefore, the
concept of equity should be elaborated in a distributive and
procedural sense under a public law approach.

Secondly, distributive and procedural equity require the
incorporation of some basic elements in public law. The
following public law elements from Brazil can be considered
minimum requirements to be incorporated in other legal
rules on this issue:

* the concept of genetic patrimony as a new legal category
to be protected by public (constitutional) law;

* an overview of possible benefits from the utilization of
natural resources that should be shared;

* a legally binding obligation to share the benefits in
good faith between contracting parties;

* protection of weaker parties by a provision that
exchanged values must have equal weight;

* not only the recognition of the general rights of
indigenous people and local communities but also more
specific provisions concerning property and associated
traditional knowledge as well as recognition of the right
to claim;

* provisions that make clear what institution has the
authority to enter into contracts;

* the establishment of an independent institution that
should check and approve contracts.

The authors suggest that these principles might in the
future be summarised in guidelines or even in a protocol on
benefit-sharing as part of the Convention.

[adapted from authors]

Available online at:
http://www.ejcl.org/63/art63-2.pdf

ELDIS is funded by Danida, Norad and Sida, and hosted by the Institute of Development Studies, Sussex, UK

Contact details:

Alan Stanley
ELDIS Programme
at the Institute of Development Studies, Sussex
Brighton BN1 9RE, UK

Email: eldis@ids.ac.uk

Tel: +44 1273 877427
Fax: +44 1273 621202
WWW: http://www.eldis.org/biodiversity


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Dear colleagues

Traditional Dr. Seth Seroka has pointed out an issue on which we would
like to have your views.
How to make sure that, with regard to IPRs, traditional healers are
compensated for their knowledge passed to researchers and bioprospectors? Is
legislation a solution because most researchers get in contact with
traditional healers on personal basis without involving any institutional
framework? It seems to me that this situation cannot change due to poverty
and deprivation in which most traditional healers live in most developing
countries. What concrete mechanisms necessary to make sure that, at least,
their concerns are heard at the national and international levels ? Lots of
talks have been going for decades at different meetings, but no concrete
steps are being envisaged to solve the problem. Please also, we would like
to hear from you whether you know any successful stories in this regard.

Thank you.

Phytomedica List Manager.