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Press Release - Access and benefit sharing in the FAO Plant Treaty needs serious improvements

Dear friends and colleagues,

Ahead of the meeting of the Governing Body of the FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) in Bali, Indonesia on 14-18 March 2011, two new reports reveal serious shortcomings in the Multilateral System for Access and Benefit Sharing of the ITPGRFA. 

In a press release dated 7 March, the Berne Declaration (Switzerland) and the Development Fund (Norway) that commissioned the studies called on Parties to the Treaty to close the gaps on the current severe shortcomings. The press release stated that as long as there is no efficient compliance mechanism for the Multilateral System and the Standard Material Transfer Agreement, the benefit-sharing requirements and the restrictions for patents stand on shaky ground.

The studies are:

1: Claudio Chiarolla (IDDRI, Paris) and Stefan Jungcurt (IASS, Potsdam), March, 2011, Outstanding Issues on Access and Benefit Sharing under the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture, a background study paper by the Berne Declaration and the Development Fund

Available online at: www.evb.ch/en/p25019093.html and 
www.utviklingsfondet.no/filestore/ITPGRABSStudy.pdf

2: Edward Hammond, March, 2011, How US Sorghum Seed Distributions Undermine the FAO Plant Treaty’s Multilateral System. A briefing paper by the Berne Declaration, the Development Fund and the African Center for Biosafety

Available online at: www.evb.ch/en/p25019094.html and http://www.utviklingsfondet.no/filestore/ITGRFASorghumpaper.pdf

With best wishes,
TWN

Berne Declaration – Development Fund

Press Release 7th March 2011

Access and benefit sharing in the FAO Plant Treaty needs serious improvements or the Treaty will never achieve its objectives

7.3.2011 - Two new reports (1, 2) commissioned by the Berne Declaration (Switzerland) and the Development Fund (Norway) highlight serious shortcomings in the Multilateral System for Access and Benefit Sharing of the FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). The Governing Body of the Treaty, meeting in Bali, Indonesia, from March 14th to 18th, has to tackle this problem, otherwise the Treaty will not achieve its objectives of conservation and sustainable use of PGRFA and the fair and equitable sharing of benefits arising out of the use of these resources.

 The global community applauded the adoption of the Nagoya Protocol on Access and Benefit Sharing (ABS) under the Convention on Biological Diversity in Nagoya, Japan in October 2010. The mechanism to implement ABS for crop genetic resources, however, is facing severe challenges. The Multilateral system for ABS is a cornerstone of the FAO Plant Treaty, which entered into force in 2004. Seven years later, many problems remain. Some of the main issues have never been discussed by the Governing Body, while others have been postponed several times. “By not tackling the shortcomings of the Multilateral System, the Governing Body of the Plant Treaty is putting the credibility of the Plant Treaty and its objectives at stake,” says Bell Batta Torheim from the Development Fund.

 The access to PGRFA seems to have been facilitated at first glance and this is often communicated as the success story of the Treaty. However, only less than one-sixth of the Parties and no companies and institutions that are not part of a national PGRFA System have included their collections of PGRFA into the System.

Furthermore, collections of non-contracting parties, such as the gene bank of the US Department of Agriculture (USDA), are seriously undermining the system. “Our research on Sorghum accessions shows that a majority of users, universities and private companies alike prefer to access Sorghum material through the USDA rather than via ICRISAT, the main collection incorporated in the Multilateral System (with a lot of similarities to the USDA Collection)”, says Meienberg from the Berne Declaration. Contrary to access through the Multilateral System, access via USDA does not include restrictions for Intellectual Property Rights and does not lead to any form of mandatory benefit-sharing payments. 

In regard to benefit-sharing, the achievements of the Treaty are limited to voluntary donations by a very few number of Contracting Parties and International Organizations. The research done is questioning if this money is additional money or just redirected funds that have been removed from other projects relating to agriculture and development. However, the only sustainable way to ensure predictable and continuing benefit-sharing is by mandatory payments of the users of PGRFA. To do so, there are two possibilities: As a first step the interpretation of “available without restriction” has to be clarified. This clarification has to take into account the needs of on-farm-breeding and has to make clear that the requirement to pay Benefit-Sharing includes all patented products using PGRFA of the MLS, but also products protected by Plant Variety Protection according to UPOV 91, and products incorporating technological restrictions like CMS Hybrids. This would already lead to a drastic increase of the potential Benefit-Sharing payment. Additionally, the Governing Body should immediately start the process to prepare a decision to change the obligation for mandatory payments with the goal to include all commercialized seeds.

But as long as there is no efficient compliance mechanism for the Multilateral System and the Standard Material Transfer Agreement, the benefit-sharing requirements and the restrictions for patents stand on shaky ground. “There will never be compliance with mandatory requirements for benefit-sharing payments and for not patenting genetic resources from the system if there is no control. Closing this gap is essential for the functioning of the Multilateral System,” says François Meienberg from the Berne Declaration.

The severe shortcomings of the Multilateral System of the ITGRFA have to be addressed at the upcoming meeting of the Governing Body in Bali. Leaving the System as it is puts into question both the implementation of the whole FAO Plant Treaty, and thus also the conservation and sustainable use of plant genetic resources for food and agriculture, securing food security for the future.

For more information:

François Meienberg, Berne Declaration, food@evb.ch,

Tel: +41 44 277 70 04, +41 79 796 76 12

Bell Batta Torheim; Development Fund, bell@utviklingsfondet.no

Tel: + 47 23 10 96 00, +47 41 1234 04

Background:

1: Claudio Chiarolla (IDDRI, Paris) and Stefan Jungcurt (IASS, Potsdam), March, 2011, Outstanding Issues on Access and Benefit Sharing under the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture, a background study paper by the Berne Declaration and the Development Fund

Available online at: www.evb.ch/en/p25019093.html and www.utviklingsfondet.no/filestore/ITPGRABSStudy.pdf

 2: Edward Hammond, March, 2011, How US Sorghum Seed Distributions Undermine the FAO Plant Treaty’s Multilateral System. A briefing paper by the Berne Declaration, the Development Fund and the African Center for Biosafety

Available online at: www.evb.ch/en/p25019094.html and http://www.utviklingsfondet.no/filestore/ITGRFASorghumpaper.pdf

Executive Summary

The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) came into force in 2004. This study assesses the state of implementation of the Treaty’s Multilateral System for Access and Benefit-sharing (MLS), seven years after the Treaty came into force. The study finds that overall implementation of the MLS has been slow and identifies a need for several measures to allow for an implementation of the MLS in a way that achieves the objectives of the Treaty.

The first part of the study assesses the access-part of the MLS and the inclusion of plant genetic resources into the system. Less than one-sixth of the parties have notified which collections they are placing in the MLS and provided the documentation necessary to facilitate access. No natural and legal persons that are not part of national PGRFA systems, such as private plant breeding companies, have decided to voluntarily place their collections of Annex I materials directly in the MLS. No benefit-sharing payments have been received so far under the mechanism devised by the Treaty, and as of January 2011, confirmed voluntary contributions amount to only 13.7% of the agreed target between July 2009 and December 2014.

With regard to possible actions that the ITPGRFA Governing Body could take to accelerate the inclusion of the materials in the MLS, the study recommends that measures should target the respective groups of actors and types of materials to be included. The Governing Body should consider:

·With respect to developed country parties:
o Request Parties to submit reports to the Compliance Committee on the reasons why they have not yet notified their collections and provided adequate documentation; and ask the Compliance Committee to develop guidance for countries facing particular legal, administrative or institutional problems.

· With respect to developing country parties:
o Extend and significantly expand the scope of the joint FAO/ITPGRFA/Bioversity International capacity building programme to allow a much higher number of developing country parties to build the technical and legal capacity needed to identify, inventory and notify their collections.

o Consider options for making measures for inclusion of collections part of projects funded by the Benefit-sharing Fund and other sources, such as funding for regeneration projects from the Global Crop Diversity trust.

· With respect to non-parties:
o Explore whether there is scope for measures that would incentivize non-parties to ratify.

·With respect to natural and legal persons:
o Consider and adopt the suggested amendments to the SMTA regarding the clarification of reporting obligations, the further transfer of PGRFA accessed under the SMTA and transfer of PGRFA under development, as well as the explanatory guidance on legal and practical implications of placing materials in the MLS. This is considered a package deal that removes the concerns expressed by the private sector, coupled with the expectation that companies will make materials available without further delay.

o Consider options for restricting access to natural and legal persons (from contracting and non-contracting parties) that have not made their materials available under Article 11.4. This option should be considered with caution, however, since a direct restriction could lead to adverse effects and deter private sector participation and thereby undermine the MLS in the long run. A better application of Article 11.4 could be the development of an up-front payments scheme that offers incentives for the timely inclusion of materials. The scheme could be coupled with the two existing payment options for making benefit- sharing payments laid out in the SMTA. The scheme would create a double incentive to include materials in the MLS and to opt for the alternative payments scheme under which payments are made per crop rather than per accession and per product. The scheme would not only create additional revenues for the Benefit-Sharing Fund, but also ensure that a part of these revenues are paid immediately rather than at the time of commercialization.

·With regard to in situ materials under the management and control of contracting parties:
o Clarify the scope of Article 12.3, with regard to materials held by local communities, and its relationship with national legislation on access and benefit- sharing

o Explore whether there is a need for international standards and which elements such standards would cover

o Further explore the applicability of the International Code of Conduct on Plant Germplasm Collecting and Transfer and consider necessary additions and adjustments such as changing the legal nature of the so far voluntary Code.

With regard to in situ materials held by local communities:

o Clarify the scope of Article 12.3 and its relation to national and international legislation on access and benefit-sharing, prior informed consent, and rights of indigenous and local communities.

o Explore the use of bio-cultural protocols and other instruments to develop terms and procedures for accessing materials held by local communities.

o Develop options for realizing benefit-sharing at the community level, in particular through programs of participatory plant breeding and other collaborative projects, including the provision of assistance to communities for accessing funds from the Benefit-Sharing Fund

The second part of the study assesses the state of benefit-sharing under the MLS as well as the extent and nature of voluntary payments. This study finds that voluntary contributions to the Benefit-sharing Fund do not take into account whether (and the extent to which) such contributions are additional to resources that were previously earmarked for agriculture and development projects in general. Therefore, the Governing Body should take effective measures to promote additionality of voluntary contributions to the Benefit-sharing Fund.

This study has highlighted an institutional aspect that needs improvement regarding the project selection process under the Benefit-sharing Fund. The Contracting Parties, through the Governing Body, may wish to establish:

· that experts and Bureau members, whenever they perform their duties in any stage of the project selection process, shall act in their personal capacity and on the basis of the best available scientific evidence and methodologies; and

· effective conflict-of-interests rules, which shall prevent the above experts and Bureau members from submitting projects for funding or assessing projects for which they may directly or indirectly bear an interest.

As regards monetary benefit sharing, there is an urgent need to clarify the expression «available without restriction,» which defines who has to pay mandatory benefit-sharing and who is exempt. This should be done by keeping in mind the needs of on-farm breeding. In accordance with such line of arguments, varieties protected in accordance with 1991 UPOV-type legislation or by widespread technical restrictions could also incur benefit-sharing payments. This solution could simplify monitoring compliance with benefit sharing and broaden the amount of resources that are made available to the Benefit-sharing Fund. In addition, the SMTA’s provision, that prohibits IPRs on PGRFA and their genetic part or components in the form received from the Multilateral System, also needs clarification and subsequent implementation. Therefore the Governing Body should:

· clarify the application of relevant SMTA’s provisions and fence off the public domain status of materials in the Multilateral System;

· spell out the critical distinction between restrictions that may derive from the patenting of MLS materials per se, which would violate the SMTA, and all other patent-related restrictions that can trigger benefit sharing;

· clarify that:
o patents that cover PGRFA products under current IP laws should be presumed to restrict access for research and breeding and fulfil the relevant benefit-sharing requirement of the SMTA;

o 1991 UPOV-type plant variety protection impedes informal exchange and sale of seeds, and it reduces opportunities for on-farm breeding, varietal improvement and selection by farmers. By doing so, UPOV 1991 also imposes restrictions on research and breeding, which takes place outside the formal seed system, and should fulfil the benefit-sharing requirement of the SMTA.

o there are already technical means in widespread use that are restricting the access to PGRFA for research and breeding (e.g. CMS-Hybrids), and would therefore fulfil the benefit-sharing requirement of the SMTA.

A possible way to enhance transparency and the mutual supportiveness between the Nagoya Protocol and the ITPGRFA would be to amend the SMTA in order to request recipients to disclose, at plant variety protection and patent offices, that the materials for which protection is sought have been obtained from the Multilateral System, and to inform the Governing Body accordingly. The disclosure of legal access from the MLS and the related notifications should include a quote of the accessions’ unique identifier numbers. Parties that endeavour to implement the Treaty and the Nagoya Protocol in a mutually supportive manner may envisage using the SMTA as an internationally-recognized certificate of compliance to be presented by resource users at all relevant checkpoints. We finally recommend that the Governing Body should decide to make the annual payments on a product-by-product basis under Article 6.7 of the SMTA mandatory for all commercialized products that incorporate MLS material, regardless whether such «products» are available without restrictions.

 


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