Beyond access and benefit-sharing: lessons from the law and governance of agricultural biodiversity

TY - JOUR

T1 - Beyond access and benefit-sharing

T2 - Journal of World Intellectual Property

AU - Tsioumani, Elsa

PY - 2018/3/14

Y1 - 2018/3/14

N2 - The concept of fair and equitable benefit-sharing emerged in the early 90s as a corollary to the principle of national sovereignty over natural and genetic resources. In the context of agricultural biodiversity use, it can be conceptualized in three ways: as a defensive tool to balance the injustices enshrined in the intellectual property rights system; as a development tool to reap part of the benefits of the emerging biodiversity market; and as an incentive, to reward and enable farmers' continued contribution to conservation. This article seeks to assess the potential of the concept in operationalizing fairness and equity in agricultural biodiversity governance, in an increasingly complex legal and policy landscape of conflicting rights and policies. It briefly explains its emergence in the context of the evolving principles of governance of agricultural biodiversity; and analyses the structure and application of the Multilateral System of Access and Benefit-sharing established by the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) in the framework of intellectual property- and human rights-related processes. Identifying linkages, challenges and key lessons, which are useful for a wide range of processes within and beyond the international environmental law realm, it concludes that the concept falls short of its promises. It thus calls for imagining new dialogues and concepts to redefine the boundaries between what must remain in the public domain, what may be managed as a common and what may be privatized.

AB - The concept of fair and equitable benefit-sharing emerged in the early 90s as a corollary to the principle of national sovereignty over natural and genetic resources. In the context of agricultural biodiversity use, it can be conceptualized in three ways: as a defensive tool to balance the injustices enshrined in the intellectual property rights system; as a development tool to reap part of the benefits of the emerging biodiversity market; and as an incentive, to reward and enable farmers' continued contribution to conservation. This article seeks to assess the potential of the concept in operationalizing fairness and equity in agricultural biodiversity governance, in an increasingly complex legal and policy landscape of conflicting rights and policies. It briefly explains its emergence in the context of the evolving principles of governance of agricultural biodiversity; and analyses the structure and application of the Multilateral System of Access and Benefit-sharing established by the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) in the framework of intellectual property- and human rights-related processes. Identifying linkages, challenges and key lessons, which are useful for a wide range of processes within and beyond the international environmental law realm, it concludes that the concept falls short of its promises. It thus calls for imagining new dialogues and concepts to redefine the boundaries between what must remain in the public domain, what may be managed as a common and what may be privatized.

KW - agricultural biodiversity

KW - international treaty on plant genetic resources for food and agriculture

KW - intellectual property

KW - human rights

KW - access

KW - fair and equitable benefit sharing

UR - http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1747-1796

U2 - 10.1111/jwip.12094

DO - 10.1111/jwip.12094

M3 - Article

JO - Journal of World Intellectual Property

JF - Journal of World Intellectual Property

SN - 1422-2213

ER -