New Horizons in Environmental and Energy Law series
Chapter 4: Property regimes over biological resources
The previous chapter considered the appropriation and use of plant genetic resources and noted that those engaged in developing new plant varieties must ensure property rights over them. This chapter will consider the specific institutional arrangements or property regimes which may be applicable to biological resources including crop plants. The three regimes which will be discussed are of particular relevance since they each form the basis of the international agreements which impact on plant genetic resources for food and agriculture (PGRFA). The current international debate over rights to PGRFA by and large revolves around the question of whether these resources should be considered to be common property and governed by an open access regime as set out in the International Treaty on Plant Genetic Resources for Food and Agriculture of the Food and Agriculture Organization of 2001 (FAO Treaty), be subject to state sovereignty as set out in the Convention on Biological Diversity of 1992 (CBD), or be subject to private property rights as set out in the international property rights regime under the International Convention for the Protection of New Varieties of Plants (UPOV Conventions 1978 and 1991) (UPOV), the Agreement on Trade Related Aspects of Intellectual Property Rights (1994) (TRIPS Agreement) and the various agreements of the World Intellectual Property Organization (WIPO). John Locke acknowledged that natural resources ‘belong to mankind in common, as they are produced by the spontaneous hand of nature.’1 It can be assumed that most resources were originally used in common, but as communities evolved
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