Bridges Trade BioRes • Volume 4 • Number 19 • 21st October 2004
EXPERTS IDENTIFY OPTIONS FOR FAO MATERIAL TRANSFER AGREEMENT
EXPERTS IDENTIFY OPTIONS FOR FAO MATERIAL TRANSFER AGREEMENT
The Expert Group on the Terms of the Standard Material Transfer Agreement of the Food and Agriculture Organisation (FAO) met for the first time in Brussels from 4-8 October to develop and propose recommendations, and, where appropriate, propose options and/or elements for the standard MTA. The Material Transfer Agreement is a contract that sets the minimum standards for access to plant genetic resources for food and agriculture (PGRFA) held in the Multilateral System, which will be established under the International Treaty on PGRFA (see BRIDGES Trade BioRes, 8 July 2004). The standard MTA is fundamental to the implementation of the new Treaty, being the vehicle for facilitating transfer of genetic resources as well as specifying benefit-sharing arrangements. At this meeting, the Expert Group prepared a document containing advice, recommendations and options regarding the obligations for providers and users of PGRFA in the future standard MTA.
Operationalising the benefit-sharing system
The Treaty (Article 13.2d) sets up a benefit-sharing system that provides for the sharing of monetary or other benefits derived from the commercialisation of products developed from PGRFA accessed under the Multilateral System, which includes all genetic resources listed in Annex I of the Treaty. Benefit-sharing is mandatory when the commercialisation of the product restricts the product’s availability for use in further research and breeding, and voluntary when the product is freely available for such purposes. In this context, the Expert Group discussed issues related to the level, form and manner of payments made for access to genetic resources (e.g. annual payment, upfront payment, fixed percentage of sales, an amount proportional to the incorporation or significance). The experts also debated the possibility of establishing different levels of payments for various categories of recipients, which commercialise products using PGRFA from them Multilateral System. Potential categories could include developing versus developed countries; seed-producing institutions versus farmers; publicly funded research institutions versus small farmers versus big businesses; or small-holder farmers versus commercial breeders.
Other questions of definition focused on what constitutes ‘commercialisation of genetic resources’ (e.g. offering for sale; selling, leasing or licensing for monetary considerations; or offering for sale the product and all subsequent products) and what exactly is meant by a product that ‘incorporates material accessed from the Multilateral System’ (e.g. physical incorporation with or without the expression of a trait). Also in the context of Article 13.2d, the Expert Group analysed under what conditions the genetic resources covered by the International Treaty would be available without restriction to others for further research and breeding (e.g. when it is in the public domain; subject to plant variety protection; or patented and made available royalty-free). The Group also discussed how ‘monetary and other benefits’ should be defined for the purposes of the standard MTA (e.g. percentage of royalties/sales; cash payments to the providers of the genetic resources to support the management of PGRFA in relevant communities; educative measures; marketing strategies; or research and development activities for capacity building).
Meeting criticised as exclusive
The Expert Group process was strongly criticised by civil society organisations. The Expert Group was limited to 24 members from all regions. The secretariat had suggested that advisors from not only governments, but also industry, academia and civil society be included. However, the only advisors present were from scientific institutions such as the Consultative Group on International Agricultural Research (CGIAR), and representatives of the seed industry. No farmers groups or other civil society organisations were included. The World Intellectual Property Organisation and the Union of the Protection of New Plant Varieties were, however, officially invited to participate in the meeting. Some observers expressed their concern that the exclusion of farmers and civil society groups not only prevented a broader, more informal discussion on these issues, but also left serious doubts over the transparency and inclusiveness of the process.
Next steps
The Commission on Genetic Resources for Food and Agriculture (acting as the Interim Committee for the International Treaty) will consider the recommendations of the Expert Group at a 15-19 November meeting, and take the advice into consideration when drafting the new standard MTA. The Commission is unlikely to finalise this process in November.
Background on the International Treaty
After seven years of difficult negotiations, the revised International Undertaking (IU) — now the International Treaty (IT) — on Plant Genetic Resources for Food and Agriculture (PGRFA) was adopted by the Conference of the UN Food and Agriculture Organisation (FAO) on 3 November 2001, making it the first binding international instrument dealing specifically with the conservation and sustainable use of PGRFA (see BRIDGES Trade BioRes, 22 November 2001, http://www.ictsd.org/biores/01-11-22/story4.htm). The revision of the IU to harmonise it with the UN Convention on Biodiversity (CBD) has been underway since 1994. In its original form, as a non-binding agreement dating from 1983, the IU was based on the principle that PGRFA should be "preserved [...] and freely available for use, for the benefit of present and future generations" as part of the common "heritage of mankind."
Additional Resources Agrobiodiversity and Intellectual Property Rights: Selected Issues under the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, Robert Lettington
ICTSD reporting.