The Privatization of Crop Diversity
Chapter 4: The International Legal Framework of Access to Plant Genetic Resources and Benefit Sharing
JOBNAME: Chiarolla PAGE: 1 SESS: 5 OUTPUT: Thu Apr 21 16:19:12 2011 4. The international legal framework of access to plant genetic resources and beneﬁt sharing 4.1 INTRODUCTION Innovation, and in particular agricultural innovation, crucially depends on the balance between the realms of private property, common property and the public domain more than on a single component of such balance. This is because physical access to PGRFA for the purpose of breeding new varieties is important as much as the incentives that IPRs, such as patents and plant variety rights, may create to encourage private sector agricultural research. Besides, at the community level, customary arrangements, which provide access to PGRFA under a regime of common property, may establish mechanisms to monitor resource use by allowing community users to exploit common pool resources, while restricting access to outsiders.1 Aside from private and common property regimes, governments have implemented ABS-related restrictions on access to PGR to regulate the transfer and use of genetic materials and prevent their misappropriation. The legal basis of these laws is the principle that national sovereignty extends to all natural resources within national borders, including genetic resources. Thus, with the adoption of the Convention on Biological Diversity, the assertion of sovereign rights over genetic resources has also upset the balance between private property, public domain and other existing customary norms, which may provide indigenous and local communities and farmers with entitlements related to seeds and associated TK. This chapter provides a review of the processes...
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