Document Type
Article
Abstract
Intellectual property rights, like other categories of rights or law, are historically situated. They are conceived, constructed and interpreted “in context.” Their emergence – as applied to a particular type of innovative activity – is related to economic, technological and political factors – and cannot be seen simply as the unfolding of disembodied legal logic.
Today, one of the most vibrant areas in the field of intellectual property rights concerns the status of plant genetic resources associated with food and agriculture. These resources come in a variety of forms from gene and gene complex to a finished crop variety; from a peasant-selected and maintained “landrace” to the inbred line used in a private sector plant breeding program. Arguably, both the farmer-variety and the modern, scientist-produced cultivar contain a measure of creative, intellectual input. Beyond debate is the fact that plant genetic resources constitute the biological foundation of agriculture. As the raw material for the evolution and development of the world’s food crops, they are clearly among the most valuable of all resources.
Political factors and rapid advances in technology can combine to alter market conditions and change the value and utility of these biological materials for agricultural and pharmaceutical purposes. The development of policy and law concerning the ownership and control of plant genetic resources is being driven by such factors and is being played out both in intergovernmental fora and national legislatures. But, the peculiar nature of the resources adds complexity to the formulation of policy and law. Determining ownership and assigning rights and benefits is not always straightforward when the subject matter is a biological resource which constantly evolves and which has been spreading around the world since the Neolithic Age. Unfortunately, the task is more complicated skill – how will this be done while ensuring that biological diversity is also conserved, as required under the Convention on Biological Resources? The questions of ownership, control and benefit sharing are inextricably linked with the more practical questions of access to, and development and use of these resources. A mixture of policies and laws can be employed to address such issues. Failure in one area, however, may prompt action – even inappropriate action – in the other. Such is part of the context in which actors are developing new policies and laws governing agro-biodiversity.
Recommended Citation
Cary Fowler,
By Policy or Law? The Challenge of Determining the Status and Future of Agro-Biodiversity,
3 J. Tech. L. & Pol'y
(1997).
Available at: https://scholarship.law.ufl.edu/jtlp/vol3/iss1/2