New Horizons in Environmental and Energy Law series
Chapter 13: Conclusion
Historically PGRFA were in the public domain, a public good accessible to all. The development of biotechnology and the expansion of intellectual property rights over these resources resulted in the enclosure of this global commons and a contest over access to and equitable sharing of their benefits. The conflict over plant varieties in the last two decades can be conceptualized by which property regime should be applied to them. The international trade and IPR regime, consisting of the TRIPS Agreement, UPOV and the several WIPO treaties provide the framework for private property rights. The CBD was negotiated on the basis of state sovereignty over biological resources, to a large extent as a counter measure to the former. The most recent agreement, the FAO Treaty, provides for specified crop plants to be placed in the public domain as an open access system. This too was intended as a foil to private property rights over plant varieties. The current debate as explored in this book revolves around the question as to whether one or all of these property systems can ensure equity in the uses of PGRFA. The following points have emerged from the analysis. This book has taken the position that it is the private property regime, which has become the dominant paradigm by which PGRFA is regulated. This position has been entrenched by the application to these resources of plant breeders’ rights under the 1978 and 1991 UPOV Acts, and patents under the TRIPS Agreement of 1994.
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