The Legal Regimes Governing Seeds and the Future of Agriculture—Conservation, Access, and Ownership

Author: Sam Walter, KU School of Law

Introduction

Humans, either consciously or unconsciously, along with natural selection and random stochastic chance, have developed a relative handful of wild species into the plethora of varieties of crops on display at your local grocery store or farmers’ market. This diversity of crops has been handed down from generation to generation, carried across long distances, and improved incrementally along the way. How we structure our agricultural systems has a profound impact on this diversity. For the vast majority of agricultural history, farmers planted each crop with the seed saved from last year’s harvest or acquired from other farmers. In modern history, however, agriculture worldwide has increasingly moved away from this model as both the need for food and the global trade in seeds has increased.¹ While the traditional model of local farmers breeding landraces² through yearly holding over and replanting of seed is still common in much of the developing world, since the mid-20th Century farmers in most countries have become reliant on specialized breeders and processors for the seed they plant.³ At the same time, the legal regimes governing the exchange, use, and development of the seeds that produce our food have become increasingly sophisticated.⁴ Currently, the global agriculture system faces a number of pressing challenges: farmers must produce enough food to feed a world population that continues to increase while simultaneously addressing the threat of climate change and shifting towards more efficient and sustainable methods of production.⁵ How the legal regimes governing seeds are structured and administered will have a great impact on the degree to which we are able to respond to these challenges.

Maintaining and improving the genetic diversity of crop species is of vital importance to the continued viability of our agricultural systems and the development of new, sustainable modes of production. The use of more diverse crops on single plots, as opposed to genetically uniform monocultures, helps reduce the risk of crop failure and requires fewer pesticides, as less uniform populations are more resistant to pests and disease.⁶ Furthermore, plant genetic diversity underlies all plant breeding efforts, as it is the “raw material” out of which new plant varieties are synthesized. Plant breeders have an important role to play in facing the challenges raised by climate change. As temperatures rise, many agricultural regions will require more drought- and heat-tolerant varieties or may even have to shift to growing new crops entirely. Plant breeding efforts can help mitigate the causes of climate change and environmental degradation through the development of varieties that capture more carbon in the soil, reduce methane emission by ruminants, require less pesticide, and use nitrogen more efficiently (reducing the need for carbon-intensive chemical fertilizer).⁷ Plant breeders rely on genetic diversity, not only within specific crop species but across “plants” generally, to develop new crop varieties. If breeding efforts are to make a significant impact on combatting climate change, however, researchers will need access to a wide diversity of plant species and improved funding so they can create crops that are locally adapted and more resilient to these new conditions. ⁸

The development of perennial crop varieties offers a particularly promising avenue through which plant breeding can help create a more sustainable global agricultural paradigm. Throughout the history of agriculture, humans have relied almost entirely on annual plant species as our primary grain crops, and all current major grain crops are annuals.⁹ The massive increase in the yields of annual crops achieved since the 1950s has come at the cost of environmental degradation¹⁰ and erosion of arable land. Over the last half century almost one third of the arable land in the world has been lost to erosion—a trend which continues today.¹¹ Annual crops must be replanted every growing season and usually require either tilling or intensive herbicide use to help them compete against hardier weed plants, both of which lead to the loss of topsoil through erosion.¹² The progressive degradation of the world’s arable land has been intensified by the use of fertilizers—which replace natural nutrient cycles with chemical inputs derived using massive amounts of fossil fuels and cannot be produced at the current rate forever.¹³ The modern system of annual crops grown with the assistance of fertilizer, pesticide, and herbicide results in widespread soil and water pollution and degradation of the soil food web.¹⁴ The use of perennial crops, on the other hand, actually benefits the sustainability of soils and soil biodiversity and counteracts erosion.¹⁵ If current trends of soil degradation and the use of nonrenewable resources in grain production continue, the Earth’s ability to sustain adequate food production may be threatened by the start of the coming century.¹⁶

If we are to meet the challenges currently facing our agricultural systems, we must reform these systems so that they work with nature instead of against it. Agricultural systems must become more diverse, reflecting the variety of local environments, and must become less reliant on tillage and chemical inputs to produce annual crops. By imitating nature agricultural systems can become more robust and sustainable. “Natural-systems agriculture” has been coined as a term to describe a new agricultural paradigm that embodies this principle. Natural-systems agriculture, at least in the prairie environment where much of the world’s grain crops are grown, would feature a diverse mix of perennial species grown together in the same plots—mirroring the functional groups of species found growing together in most temperate grasslands.¹⁷ Replicating the natural nutrient cycles found on the prairie, diverse perennial and annual species grown together do not require the massive chemical inputs annual crops crown in monocultures require to thrive.¹⁸

Regardless of whether models like this are widely implemented or not, it is imperative that farmers, researchers, and policymakers address the sources of environmental degradation linked to agriculture and seek to work within natural systems as opposed to against them. Replacing annual crop varieties with perennial species and shifting towards a natural systems paradigm in agriculture would address many of these issues. The shift to a more sustainable form of agriculture based on perennials will likely take many years and will be predicated on the work of plant breeders, as the perennial species necessary to accomplish this shift do not currently exist. Their success will depend in large part on the legal regimes and institutions in place to support this work, especially those which conserve and characterize plant biodiversity. After all, it is this biodiversity which provides the “raw materials” for developing new crop varieties.

The Importance of Diversity and the Threat of Genetic Erosion

For most of human history, the diversity of crops grown worldwide has generally increased as species were introduced to new regions and farmers developed new varieties and cultivars. In modern times, however, this trend has reversed as globalization and economies-of-scale have brought markets closer together and the character of global agriculture has changed.¹⁹ On top of this, climate change threatens the continued existence of many wild crop relatives.²⁰ “Genetic erosion” is the irreversible loss of genetic diversity across populations.²¹ This issue was identified in crop varieties as far back as the 1920’s and animated some of the earliest efforts to identify and catalogue crop diversity.²² The causes of genetic erosion in plant populations include land clearing, overexploitation, overgrazing, reduced water availability, population pressures, environmental degradation, and changing agricultural systems and dietary habits.²³ The primary cause of genetic erosion across most crop species, however, has been the modern replacement of local plant varieties by genetically-homogenous modern varieties.²⁴ Since the “Green Revolution” of the mid-20th century, farmers worldwide have increasingly relied on more genetically uniform crop varieties, developed primarily for their high yield.²⁵ Both genetic erosion and the genetic uniformity of crops have continued to increase in recent years.²⁶ Numerous local varieties of crops such as rice, coffee, yams, millet have already gone extinct, in addition to local primitive cultivars of both wheat and maize.²⁷ Not only has increased uniformity resulted in the loss of local crop varieties, it has increased the fragility of the modern crop species grown instead. Genetically uniform crops are more vulnerable to pests, disease, and climatic change.²⁸

The genetic diversity of crop species as well as non-crop species is of vital importance to the continued viability of our agricultural systems and the development of new, sustainable modes of production. The use of more diverse crops on single plots, as opposed to genetically homogenous monocultures, helps reduce the risk of crop failure and requires fewer pesticides, as less uniform populations are more resistant to pests and disease.²⁹ To this point, plant breeders have an important role to play in facing the challenges raised by climate change. As temperatures rise, many agricultural regions will require new, more drought- and heat-tolerant varieties of their current staple crops or may even have to shift to growing new crops entirely. Plant breeding can also help mitigate the causes of climate change and environmental degradation through the development of varieties that capture more carbon in the soil, reduce methane emission by ruminants, require less pesticide, and use nitrogen more efficiently (reducing the need for carbon-intensive chemical fertilizer).³⁰

These breeding efforts will rely on not only established crop species, but also wild plants and the local varieties not widely utilized by commercial agriculture. Seed banks and field gene banks play a crucial role in conserving the genetic diversity and supplying plant breeders with the material necessary to develop new varieties.³¹ The types of plants preserved by these institutions include advanced cultivars, crop breeding lines, landraces, and wild or weed species.³² While there has been an increase in the number of wild species and landraces conserved in seed banks worldwide in recent years,³³ it remains difficult to conserve these locally-adapted varieties, especially perennial species.³⁴ Efforts to include more of these crucial species within seed bank collections will be vital to task of breeding new, locally adapted varieties of staple crops as well as commercially-viable perennial grain crops. The success of much of this work will rely on the legal regimes governing plant genetic resources and the international organizations tasked with conserving them.

The Legal Regimes Governing Seeds Worldwide

There is a wide variety of legal regimes governing seeds and other plant genetic material. This includes multilateral and bilateral international agreements, agreements by smaller regional organizations, and national laws. Three main international agreements have been negotiated with the purpose of addressing the conservation of plant genetic resources and their utilization for agriculture and other industries. These include the International Undertaking on Plant Genetic Resources (the IUPGR), the Convention on Biological Diversity (the CBD), and the International Treaty for Plant Genetic Resources for Food and Agriculture (the ITPGRFA). There also exists a range of national intellectual property regimes granting legal rights over plant varieties, and with the advent of genetic engineering, plant genes. International organizations such as UPOV and WIPO have been established to harmonize and develop intellectual property regimes among nations for plant genetic material and the traditional knowledge associated with it. As such, there is a dense thicket of competing international and domestic law which applies to the seeds used to grow our food.

There are also international organizations dedicated to conserving the global diversity of plant genetic resources and ensuring access to these resources for research. The Commission on Genetic Resources for Food and Agriculture is a permanent intergovernmental body operating under the UN Food and Agriculture Organization and is tasked with addressing challenges to biological diversity for food and agriculture. As of 2016, the Commission’s membership included 178 countries and the European Union.³⁵ The Secretariat of the Commission, an expert body that conducts the actual “work” of Commission, oversees the Global System for Plant Genetic Resources for Food and Agriculture.³⁶ The Global System originally came into being as a result of the International Undertaking on Plant Genetic Resources and was updated and expanded following the passage of the International Treaty on Plant Genetic Resources for Food and Agriculture.³⁷ The System includes the Global Plans of Action which implement the International Treaty, financing mechanisms and international funds, genebank standards, codes of conduct on biotechnology, informational networks, and an international network of seed banks which have made their collections available on a standard set of terms.³⁸

In addition to these legal regimes and international organizations, there are numerous international, national, and private seed banks which have been established to store and conserve plant diversity. Some of the largest and most important of these are the seed banks operated by Consultative Group on International Agricultural Research (CGIAR), an international organization that holds these genetic resources in trust for the world community for breeding and research.³⁹ CGIAR works in close collaboration with another large international network of seed banks—the International Agricultural Research Centers (IARCs).⁴⁰ The IARC seed banks generally have a local or regional focus, with some being dedicated to a preserving the worldwide diversity of specific crops.⁴¹ The IARC seed banks usually represent the largest collections for the crops that fall within their individual mandates.⁴² Both the CGIAR and IARC collections are now included within the FAO’s Global System.

In recent decades there has been an overall increase in both the number of new seed banks and the capacity of existing seed banks.⁴³ There are over 1750 individual gene banks worldwide today.⁴⁴ Many of these are public entities established and run by individual nations. Most countries now have both seed banks, for long term cold-storage and conservation of “traditional” seed-propagated species, and field gene banks, for propagating material and conserving plant species not conducive to long-term seed storage or cryopreservation.⁴⁵ Mexico, for example, reported having approximately 150 national seed banks as of 2010.⁴⁶ How access to these resources should be regulated and how benefits from their utilization should be distributed continue to be contentious issues. Both the Convention on Biological Diversity and the International Treaty on Plant Genetic Resources for Food and Agriculture address these questions.

The Convention on Biological Diversity

The Convention on Biological Diversity (The CBD) was the first binding international agreement directed towards the conservation of biological diversity and the equitable distribution of the benefits derived from the utilization of genetic resources.⁴⁷ In addition to including obligations to conserve and catalogue biodiversity, the Convention recognizes the sovereign right of countries to regulate access to their genetic resources. The CBD continues to provide the controlling international legal framework for access to “genetic resources”⁴⁸ in general. Adopted in 1992 at the U.N. Conference on Environment and Development held in Rio de Janeiro, Brazil, the CBD was meant as a compromise between the demands of the developing and developed nations.⁴⁹ Developed nations were primarily interested in ensuring the conservation of biodiversity while developing nations generally desired the imposition of access and benefit sharing obligations related to the exploitation of genetic resources.⁵⁰ There are currently 196 parties to the Convention on Biodiversity.⁵¹ The United States is notably the only nation in the world to not be a party to the treaty, as it signed the Convention in 1993 but has never ratified its signature.⁵²

Article 1 of the Convention states the objectives of the treaty: “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources[.]”⁵³ The CBD regards plant genetic resources as sovereign property, stating that, given the sovereign rights states possess over their own natural resources, “the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.”⁵⁴ This position was a break from the previous major international agreement focused on plant genetic resources: the International Undertaking on Plant Genetic Resources. The IUPGR was a non-binding agreement signed largely by developing nations in 1983 which called for freedom of access to plant genetic resources as “the common heritage of mankind”.⁵⁵ The CBD, on the other hand, treats these resources as the property of national governments, who have the innate right to restrict access entirely. This development was the result of concerns on the part of developing countries regarding the increasing monetization of their biological resources by foreign parties—primarily in the pharmaceutical sector⁵⁶ —and the desire to control access to these resources and share in the profits from their utilization.⁵⁷

The CBD requires signatories, in accordance with their “particular conditions and capabilities”, to develop national strategies and programs for the conservation and sustainable use of biological diversity.⁵⁸ Biological diversity, under the treaty, is defined as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems” and refers to “diversity within species, between species and of ecosystems.”⁵⁹ The CBD obligates signatories to undertake efforts to identify the biological diversity present within their territory and to monitor activities which are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity.⁶⁰ Signatories are also required to undertake various measures for both in-situ and ex-situ conservation of biological diversity.⁶¹ “Ex-situ conservation” under the CBD is defined as “the conservation of components of biological diversity outside their natural habitats,”⁶² and refers to genetic resources held in seed banks or field gene banks. “In-situ,” on the other hand, refers to the “conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.”⁶³ This distinction requires signatory countries to devote efforts to conserve genetic diversity both in gene banks as well as in the environments where it occurs naturally or, in the case of crop varieties, where it was originally developed. Due to the sovereign property approach of the CBD, and the fact that biological diversity is not equally distributed across the globe, the duties and burdens of conservation under the CBD fall most heavily on those states with the greatest biological diversity.⁶⁴ Coincidentally, the countries with the greatest biological diversity tend to be less-developed.⁶⁵

While the costs of conserving biodiversity under the CBD are imposed primarily on developing countries, the benefits derived from biodiversity have often flowed primarily to developed countries. The term “biopiracy” has emerged to describe the phenomenon by which private entities from the developed world appropriate the genetic resources and associated traditional knowledge of indigenous communities and monetize these resources, to the exclusion of the indigenous community.⁶⁶ Preventing biopiracy was one of the major concerns among the developing nations involved in the development of the Convention.⁶⁷ To ensure that the source countries for these valuable biological resources could equitably share in the profits generated from their utilization, an access and benefit sharing scheme and a funding instrument under which funds flow from more to less developed nations were included in the treaty.⁶⁸

Under the CBD system, national governments control access to all genetic resources within their borders, negotiating with both private entities and foreign governments for fair terms under which these resources can be developed commercially. The treaty requires that “access, where granted, shall be on mutually agreed terms” and subject to the prior informed consent of the contracting parties providing the resources.⁶⁹ The CBD envisions a system involving the sharing of both profits and technology, requiring contracting parties to “undertake…to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources.”⁷⁰ This provision is meant to allow developing countries access to the biotechnology developed from their sovereign genetic resources. ⁷¹ As previously stated, the access and benefit sharing scheme established by the CBD sets the authority to determine access to genetic resources at the national level, in line with its view of genetic resources as sovereign property. Under this scheme, governments of countries with valuable genetic material enter one-off contract negotiations with other governments or private entities prior to access to determine terms under which both profits and technology developed from genetic resources are shared. Most of the national access regimes that have been enacted as a result of the CBD require application to a central governmental office for permission to access biological resources, negotiation of terms with the government office and local communities, and the prior informed consent of both the government and local groups.⁷² The provisions of the CBD only apply to those genetic resources that “are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.”⁷³ In practice, this means that the requirements of the treaty only apply to genetic resources that were removed from party nations following the date the CBD entered into force, December 29, 1993.⁷⁴ Importantly, most of the genetic resources held in international seed banks were acquired from their countries of origin prior to this date, and as a result are not subject to the treaty’s access and benefit sharing scheme.⁷⁵

Under the Convention’s access and benefit sharing scheme government officials must enter a negotiation process each time anyone wishes to access genetic resources of potential value. Eventually, it was realized that such an approach was cumbersome and that updates to the system were needed to reduce transaction costs and make it easier to access plant resources for agricultural research.⁷⁶ As a result, the CBD was supplemented in 2001 by the “Bonn Guidelines,” which provide an optional framework to help countries in drafting policies and negotiating contracts under the treaty.⁷⁷ Ultimately, relatively few countries have introduced new national legislation implementing the treaty’s access and benefit sharing scheme.⁷⁸ This is partly to blame on the fact that the provisions of the CBD are written in an open-ended fashion and grant nations a large degree of discretion in interpreting and implementing the treaty. Furthermore, there has been little incentive to do so. Among the national regimes that have been established to implement the treaty, there have been few if any examples to date that have successfully generated tangible benefits from the benefit sharing system for the countries of origin.⁷⁹ The few national regimes that do exist to implement the CBD’s access and benefit sharing scheme have often been characterized by bureaucratic inefficiencies and a lack of institutional expertise amongst the actors actually responsible for implementing the scheme.⁸⁰ An example of this is Decision 391 of the Andean Community. Decision 391 was adopted by the Andean Community of Nations in 1996—a common-market area consisting of Colombia, Bolivia, Ecuador, Venezuela, and Peru⁸¹ —establishing a common regime on access to genetic resources.⁸² This access regime was adopted to implement the CBD, and was among the first to be established in response to the treaty.⁸³ Ultimately, the implementation of Decision 391 has generated little profit for the Andean Group countries and has arguably hampered the ability of seed banks to collect and exchange materials within these nations.⁸⁴

The Convention on Biological Diversity’s provisions on access were a compromise between the desires of developed nations—who wanted to protect corporate investments in breeding and genetic engineering—and developing nations—who wanted to maintain control over the abundance of genetic resources found within their borders.⁸⁵ As previously stated, a number of developing countries were parties to the International Undertaking on Plant Genetic Resources, which was developed a decade prior to the CBD and treated plant genetic resources as the common heritage of mankind.⁸⁶ The International Undertaking advocated for the free accessibility and exchange plant genetic resources and opposed the extension of intellectual property rights to plant varieties.⁸⁷ The CBD, developed by many of the same nations responsible for drafting the IUPGR, broke from the IUPGR’s free-access approach to plant genetic resources and took the stance that genetic resources were the sovereign property of the state where they existed.

At the time the International Undertaking was adopted in 1983, governmental research institutions conducted most of the agricultural research worldwide.⁸⁸ The International Undertaking was premised on the idea that these public institutions would freely share seeds and plant genetic resources to improve food production and enhance food security globally. During the 1980s, however, agricultural research became increasingly privatized and commercially driven across the developing world.⁸⁹ This rise in commercially driven agricultural research coincided with the strengthening of the intellectual property rights available to private breeders.⁹⁰ Consequently, developing countries found themselves increasingly paying for seeds that they previously received for free from public research institutions—which often times had been developed from plant varieties that they had provided to these public research institutions, free of charge.⁹¹ Under the CBD’s sovereign property approach, these developing nations could now impose terms upon which they would share in the benefits from the privatization of genetic resources. The CBD’s access and benefit sharing scheme approached the issue by allowing developing countries to restrict access to genetic resources while leaving countries significant latitude in structuring their own domestic intellectual property regimes.

Intellectual Property Regimes—UPOV, TRIPS, and Patent Rights

Despite the opposition in the developing world historically to the extension of intellectual property rights to plants, intellectual property protections are now provided to plant breeders across much of the world. Globally, the two most prominent intellectual property regimes for plant varieties and plant genetic material are “plant breeders’ rights” under the UPOV Convention and patent rights.⁹² Plant breeders’ rights are the dominant regime, with close to 80 nations providing protection under the scheme put forth by the UPOV Convention.

The UPOV Convention was the result of a series of agreements promulgated by the International Union for the Protection of New Varieties of Plants (UPOV is the French acronym for the group).⁹³ The first agreement was drafted in 1961 and has been revised three times, most recently in 1991.⁹⁴ UPOV’s original membership consisted solely of European counties, along with the United States, South Africa, Japan, New Zealand, and Australia.⁹⁵ The number of countries granting plant breeders’ rights under UPOV, however, has grown significantly in recent decades. This has been due, primarily, to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was enacted as part of the Marrakesh Agreement Establishing the World Trade Organization in 1994.⁹⁶ Essentially, the TRIPS Agreement makes providing plant variety protection through intellectual property regimes a requirement of World Trade Organization (WTO) membership.⁹⁷ The TRIPS Agreement requires all WTO members to “provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”⁹⁸ The TRIPS agreement makes no explicit mention of UPOV, but plant breeders’ rights have been understood to qualify as an effective sui generis system under TRIPS.⁹⁹ As a result, many countries have chosen to meet their TRIPS obligations by joining UPOV and instituting national laws based on its 1991 Convention.¹⁰⁰ In 1992, prior to the TRIPS Agreement, UPOV membership consisted of only 20, predominantly developed, nations.¹⁰¹ Today, UPOV membership consists of 76 nations, including much of South and Central America, as well as parts of Africa and Southeast Asia.¹⁰²

As UPOV membership has expanded, it has become an important baseline standard for plant intellectual property protection. The basic obligation of signatories under the UPOV Convention is that they must grant and protect “plant breeders’ rights.”¹⁰³ Essentially, plant breeders’ rights under the UPOV Convention allow breeders the exclusive right to sell the seed and other propagating material of new varieties which they develop, subject to a “breeders exemption”—which allows for the free use of these varieties for research and the breeding of new varieties.¹⁰⁴ Under the 1991 Convention, in order for plant breeders’ rights to be granted for a plant variety, the variety must be “(i) new; (ii) distinct; (iii) uniform; and (iv) stable.”¹⁰⁵ The scope of “breeders’ rights” under the UPOV Convention is laid out in Article 14. The breeders’ right grants the breeder the exclusive rights to the propagating material of protected varieties with regards to: (i) production or reproduction (multiplication), (ii) conditioning for the purpose of propagation, (iii) offering for sale, (iv) selling or other marketing, (v) exporting, (vi) importing, [and] (vii) stocking for any of the purposes mentioned in (i) to (vi).”¹⁰⁶ Additionally, the breeder has exclusive rights to harvested material obtained through the unauthorized use of propagating material,¹⁰⁷ products made directly from harvested material obtained through unauthorized use of propagating material,¹⁰⁸ and varieties which are “essentially derived from the protected variety,”¹⁰⁹ “varieties which are not clearly distinguishable” from the protected variety,¹¹⁰ and “varieties whose production requires the repeated use of the protected variety.”¹¹¹

These exclusive rights, however, have some important exceptions. The breeders’ right does not extend to: “(i) acts done privately and for non-commercial purposes, (ii) acts done for experimental purposes, and (iii) acts done for the purpose of breeding other varieties.”¹¹² The Convention also allows states the option of, “within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, [restricting] the breeder’s right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety.”¹¹³ This language refers to farmers holding over seed from part of their harvest for replanting the next season. These exemptions allow plant researchers and breeders, as well as subsistence farmers, to use protected varieties free of restriction.

Under the TRIPS Agreement, as previously stated, countries are required to grant plant monopoly rights through a patent system or some other regime if they wish to gain the advantages of membership in the World Trade Organization. The legal regimes implemented by TRIPS member countries vary in the strength of the monopoly protections granted. While most countries have fulfilled their TRIPS obligations through the provision of plant breeders’ rights, a small number of countries offer stronger monopoly protections by allowing patent rights to be granted for new crop varieties and, with the advent of genetic engineering, specific genetic traits.¹¹⁴ The monopoly protections offered under patent regimes are stronger in the sense that, unlike the “breeders’ right” under UPOV, they do not include an exemption for further plant breeding or allow farmers to save seed for replanting.¹¹⁵ Furthermore, plant patent regimes generally allow for the extension of monopoly rights over a larger swath of the total biodiversity of a species. Instead of being limited to exclusive rights over a specific plant variety—the approach taken under UPOV—patent regimes generally allow monopoly rights to be exercised over an entire class of varieties or even a single genetic trait wherever it appears across an entire species.¹¹⁶ Generally, the developing world has disfavored granting strong monopoly rights to plant breeders in any form.¹¹⁷ While most of the developing world has held the view that life forms—especially agricultural crops—should not be subject to the monopoly rights offered by patents,¹¹⁸ the small number of states granting patent rights over plants and plant genes are powerful nations with a large degree of influence over the international seed market.

The United States, for instance, has one of the most expansive protection schemes for breeders in the world, with plant monopoly rights offered through both patent and non-patent systems.¹¹⁹ Since 1970 the United States has granted limited monopoly rights for sexually reproducing plant varieties grown from seed through Plant Variety Protection Certificates, a non-patent system similar to the UPOV model. These certificates grant plant breeders exclusive rights over varieties they develop for a 20 year term, subject to two major exemptions: farmers are allowed to save seeds for replanting and protected varieties must be kept available to researchers (same as the “breeders’ exemption” under UPOV).¹²⁰ Congress historically declined, however, to allow utility patents under the 1790 Patent Act to be granted for most types of agricultural crops.¹²¹ In 1980, however, the U.S. Supreme Court ruled in the landmark case Diamond v. Chakrabarty that utility patents could be granted for living organisms.¹²² Utility patents have since become the preferred method for plant breeders seeking monopoly rights over the crop varieties they develop, especially genetically modified varieties.¹²³ Utility patents notably do not require patent holders to grant access to researchers or allow farmers to re-use seed. The seeds protected by utility patents are typically sold subject to restrictive contracts that expressly limit these acts.

The extension of patent rights to plants and the ascent of private breeders (as opposed to publicly funded crop breeding efforts), along with the development of genetic engineering technology, has had a massive transformative effect on the landscape of the global seed market. These developments have not only resulted in the multitude of genetically modified crops now grown, they have fundamentally changed the relationship between farmers and plant breeders in general. For most of the 20th century, the breeding of new seed varieties in the United States was done largely by publicly-funded or government entities, and breeding efforts by private entities were confined to hybrid species that could not be grown from seed held over from last year’s harvest.¹²⁴ Worldwide, prior to the late 20th century most farmers got their seed either from last year’s harvest or from government funded seed development agencies.¹²⁵ Since the 1980s, however, the global seed market has been increasingly dominated by a small number of large agrichemical firms—a process that stronger patent rights has helped accelerate.¹²⁶ By 2009, just five companies (Monsanto, Dupont, Syngenta, Dow, and Bayer) accounted for 58 percent of the seed sold commercially worldwide.¹²⁷ These companies continue to pursue an aggressive strategy towards consolidating control over the seed market through mergers and acquisitions. Dow and Dupont have since merged and in 2018 Bayer acquired Monsanto’s seed and herbicide businesses for $60 billion dollars.¹²⁸ Genetically modified crops, paired with utility patent protections, have enabled these large agrichemical corporations to gain a near monopoly over the seed markets for some crops. As of 2010 almost all the four major commodity crops planted in the United States were genetically modified: soybeans (93 percent), cotton (88 percent), corn (86 percent), and canola (64 percent).¹²⁹ These genetically engineered crops are almost universally accompanied by restrictive contracts which forbid farmers from saving seeds for next year—forcing them to purchase new seed—and allow the companies expansive access rights to farmers’ records and land to ensure they are not violating the terms of use.¹³⁰ Such misuse can open up farmers—and even third parties such as seed cleaners who help farmers prepare saved seed for planting—to massive monetary liability and prolonged, costly, court battles.¹³¹

The International Treaty on Plant Genetic Resources for Food and Agriculture

In the years following the signing of the CBD there was a realization amongst the international community that a new binding framework was needed to govern the exchange of plant genetic material and seeds for agriculture. This realization was spurred by the expanding application of intellectual property rights to plants described above, the interdependency of countries within the agricultural system, and the rising awareness of the negative environmental impacts associated with modern agriculture.¹³² Genetic erosion and the challenges posed by climate change and the environmental degradation associated with modern agriculture necessitated the recommitment of the international community to conserving plant biodiversity and developing more sustainable modes of agricultural production. A new treaty was needed as well to address the Convention on Biological Diversity’s gaps in coverage, as the treaty did not apply to most genetic materials held in international seed banks.¹³³ The work to develop and negotiate this treaty was taken up by the U.N. Food and Agriculture Organization’s Commission on Genetic Resources for Food and Agriculture, which endeavored to revise the nonbinding International Undertaking (IUPGR) and the associated Global System of Plant Genetic Resources for Food and Agriculture into a new regime.¹³⁴ The result of this process was the International Treaty on Plant Genetic Resources for Food and Agriculture, which was adopted in late 2001 and entered into force in 2004.¹³⁵ The Treaty currently has 147 contracting parties (146 countries and one member organization).¹³⁶ The United States, which originally had withheld its participation, joined the Treaty in March 2017.¹³⁷

Article 1 of the Treaty lays out its objectives, which are “the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security.” The UN Food and Agriculture Organization has elaborated on this further, describing the three aims of the treaty as: “(1) recognizing the enormous contribution of farmers to the diversity of crops that feed the world; (2) establishing a global system to provide farmers, plant breeders and scientists with access to plant genetic materials; [and] (3) ensuring that recipients share benefits they derive from the use of these genetic materials with the countries where they have been originated.”¹³⁸ The Treaty’s most important feature is the “Multilateral System,” which supersedes the CBD’s access and benefit sharing scheme for 64 prominent agricultural crops¹³⁹ (Annex I crops)– 35 food crops and 29 forage species.¹⁴⁰ The crops selected for inclusion were those most important to food security and on which countries are the most interdependent.¹⁴¹ These include rice, beans, potatoes, wheat, maize, and coconut, to name a few.¹⁴² Some have criticized this selection as under-representative of tropical species and have pointed to the unwillingness of some developing countries to list certain vital crop species due to continued fears of biopiracy as limiting the Treaty’s effectiveness conserving regional staple crops.¹⁴³ Regardless, the crops included in the Treaty’s Multilateral System are fairly comprehensive, accounting for roughly eighty percent world’s annual plant-calorie intake.¹⁴⁴

Under the Treaty, countries pledge to grant facilitated access to these crops and any related information where they exist in the collections of gene banks that “are under the management and control of the Contracting Parties and in the public domain.”¹⁴⁵ This brings the collections of the national seed banks and field gene banks of participating nations into the Multilateral System. In addition to the national gene banks of contracting nations, the Multilateral System established by the Treaty also includes the ex situ collections of the CGIAR network of seed banks¹⁴⁶ and the seed banks within the IARC network.¹⁴⁷ While the Treaty leaves intact the CBD’s framework for most genetic resources, it seeks to ensure continued access to certain crucial plant species as an international resource. The Treaty’s focus on ensuring free and open access to public seed bank collections harkens back to the IUPGR’s “heritage of mankind” approach, while the Treaty also incorporates elements of the contractual benefit sharing scheme used in the Convention on Biological Diversity.¹⁴⁸ The Treaty utilizes the CBD’s system of access on the basis of prior informed consent and mutually agreed terms but sets standard terms and conditions governing access to species covered by the Treaty.¹⁴⁹ The Treaty also established and endowed the Global Crop Diversity Trust, which provides funding to ensure the continued viability of the world’s gene banks.¹⁵⁰ It is this endowment which eventually led to the formation of the Svalbard Global Seed Vault—a seed bank operated by the Trust in Svalbard, Norway to act as a secure location for seed banks around the world to deposit “backup” copies of their most important seeds.¹⁵¹ The Multilateral System and the Global Crop Diversity Trust seek to ensure the conservation of the plant genetic resources most important to global agriculture, as well as unify and simplify procedures for accessing these resources.

The Multilateral System is meant to streamline access to seed bank collections and stimulate plant breeding that serves sustainable agriculture. The stated purpose of the Multilateral System is “to facilitate access to plant genetic resources for food and agriculture, and to share, in a fair and equitable way, the benefits arising from the utilization of these resources, on a complementary and mutually reinforcing basis.”¹⁵² Under the Treaty, countries agree to provide access through the Multilateral System to other contracting nations, as well as legal and natural persons under the jurisdiction of any contracting nation.¹⁵³ Access is to be free of charge or at minimal cost¹⁵⁴ and is to include any non-confidential descriptive information associated with the specimens.¹⁵⁵ This access, however, is limited to certain uses. Access through the Multilateral System may only be for “the purpose of utilization and conservation for research, breeding and training for food and agriculture, provided that such purpose does not include chemical, pharmaceutical and/or other non-food/feed industrial uses.”¹⁵⁶ Furthermore, recipients may not claim any intellectual property or other rights limiting access over the plant genetic resources received, “or their genetic parts or components, in the form received from the Multilateral System.”¹⁵⁷ These principles are included within the standard material transfer agreement (SMTA)—whose adoption is contemplated by the text of the Treaty.¹⁵⁸ The SMTA was adopted by the Treaty’s Governing Body at its inaugural session in 2006.¹⁵⁹ The SMTA has been compared by some academics to the open source models of intellectual property often used in software development, in that it provides for open access for research with the ability to monetize innovations under prescribed conditions.¹⁶⁰ The use of a standard agreement is an important improvement over the CBD’s access model. By providing a standard form, individual nations and seed banks don’t have to incur the transactional costs of negotiating each time an entity wants to access material under the Treaty.

The Treaty utilizes a benefit sharing scheme that is like the one found in the CBD, but with standardized terms. The benefit-sharing scheme established by the ITPGRFA is set forth under Article 13 of the Treaty. The Treaty requires recipients who commercialize crops that “incorporates material accessed from the Multilateral System” to pay a percentage of the profits into a trust fund established by the Governing Body.¹⁶¹ This payment is not required only where the commercialized product is made freely available to others for further research and breeding.¹⁶² This is accomplished by inclusion of these terms and conditions within the SMTA. This requirement to keep innovations produced from Annex I crops in the public domain, or pay a portion of the proceeds to a trust fund, is the cornerstone of the Multilateral System.¹⁶³ This scheme mandates that “benefits arising from the use, including commercial, of plant genetic resources for food and agriculture under the Multilateral System shall be shared fairly and equitably through the following mechanisms: the exchange of information, access to and transfer of technology, capacity-building, and the sharing of the benefits arising from commercialization, taking into account the priority activity areas in the rolling Global Plan of Action, under the guidance of the Governing Body.”¹⁶⁴ Furthermore, the Treaty recognizes that these benefits should be directed primarily to farmers—especially those in “developing countries and countries with economies in transition, who conserve and sustainably utilize plant genetic resources for food and agriculture.”¹⁶⁵ These funds are paid out to help develop sustainable agriculture, conservation, and breeding initiatives. This is structured according to the Global Plans of Action, negotiated by the Commission on Genetic Resources for Food and Agriculture.¹⁶⁶ First adopted in 1996, and updated in 2011, the Global Plan of Action provides the framework for the funding decisions of the Treaty and the Global Crop Diversity Trust.¹⁶⁷ The Treaty obligates contracting nations to promote its effective implementation.¹⁶⁸

The three main themes of the treaty are the conservation and characterization of plant genetic resources, the sustainable use of plant genetic resources, and the protection of “farmers’ rights.” Article five lays out the Treaty’s requirements with regards to the conservation and characterization of plant genetic resources. Contracting nations are required, “subject to national legislation, and in cooperation with other Contracting Parties where appropriate,” to “promote an integrated approach to the exploration, conservation and sustainable use of plant genetic resources for food and agriculture.”¹⁶⁹ The Treaty elaborates on what this requirement entails and encourages countries to survey and catalogue the plant genetic resources within their territory and identify any threats to these resources, as well as potential uses.¹⁷⁰ Additionally, countries are required to cooperate to develop and improve ex situ conservation efforts and monitor the status of their collections of plant genetic resources.¹⁷¹ These efforts relate to the maintenance and improvement of seed banks worldwide, the major source of plant genetic resources under the Multilateral System. Article five also calls on countries to take actions to promote the conservation of wild crop relatives and wild plants in their natural environments and to support indigenous and local community efforts to do the same,¹⁷² as well their efforts to manage and conserve locally adapted plant genetic resources on their farms.¹⁷³ Countries are also required to “take steps to minimize or, if possible, eliminate threats to plant genetic resources for food and agriculture.”¹⁷⁴

Article six of the Treaty is dedicated to the sustainable use of plant genetic resources. The Treaty requires contracting nations to “develop and maintain appropriate policy and legal measures” to promote the sustainable use of plant genetic resources¹⁷⁵ and elaborates on what measures might be included in such an effort.¹⁷⁶ The measures identified by the Treaty all revolve around increasing diversity and the application of ecological principles to agriculture. This includes implementing “fair agricultural policies that promote, as appropriate, the development and maintenance of diverse farming systems that enhance the sustainable use of agricultural biological diversity and other natural resources.”¹⁷⁷ Other measures identified by the Treaty include supporting research to broaden the range of genetic diversity available to farmers,¹⁷⁸ increase intra- and inter-specific variation,¹⁷⁹ to develop new varieties which are particularly adapted to different ecological, social, and economic conditions,¹⁸⁰ and to promote the expanded use of locally adapted crops, varieties, and underutilized species.¹⁸¹ The Treaty, through the Multilateral System and its focus on crop diversity, lays a foundation for the expansion of sustainable agriculture and natural-systems agriculture. By improving seed bank collections, facilitating access to those collections, and encouraging the development of new varieties, the Treaty hopes to stimulate the development of the locally adapted and diverse crops that will be necessary to catalyze the shift towards these principles.

The Treaty does not directly address the issue of intellectual property rights and is instead primarily focused on conserving plant genetic resources and ensuring continued access to existing collections of these resources. However, the Treaty touches on intellectual property issues indirectly in two ways. First, if a plant breeder seeks to apply traditional patent rights to a variety developed using material obtained from seed bank material under the Treaty, they would be required to pay a percentage of the proceeds into the Treaty’s trust fund. Second, the Treaty includes provisions related to “farmers’ rights.” Farmers’ rights under the Treaty include the right to participate in decisions relating to the conservation and use of plant resources, the right to share in the benefits from their use, and the right of farmers’ to save, exchange, and reuse seed for planting.¹⁸² The provisions on farmers’ rights are often regarded as a counterpart to the extension of intellectual property rights to plants under patent and other regimes. Critics have noted, however, that the provisions on farmers’ rights in the ITPGRFA are largely aspirational with no binding effect and have done little to induce the domestic legislation called for in the Treaty.¹⁸³ Indeed, all of the requirements related to farmers’ rights are qualified as “subject to national law and as appropriate”—essentially making them nicely worded recommendations. Nonetheless, the enshrinement of these principles in the Treaty is a reminder that many countries continue to oppose the aggressive application of intellectual property protections to agricultural crops and informs the work of the Commission on Genetic Resources for Food and Agriculture in implementing the Treaty and distributing grants.

While the Treaty has been largely successful in ensuring continued access to seed bank resources for breeding, several problems still hamper its effectiveness. Currently, one of the most significant obstacles for the utilization of seed bank collections for breeding is the lack of adequate characterization and evaluation data for accessions.¹⁸⁴ The funding for public seed banks has also either plateaued or decreased in recent decades in many nations.¹⁸⁵ Furthermore, plant breeding globally continues to move away from the public sector.¹⁸⁶ All of this means less funds devoted towards species without immediate commercial value—i.e. landraces, wild species, and perennials. That being said, as a result of the Treaty a number of nations have adopted initiatives and legal instruments geared towards promoting the use of plant genetic resources to encourage sustainable agriculture and develop crops better adapted to local environments.¹⁸⁷ The benefit sharing fund under the Treaty has also made more funds available for such projects, and the first of these project grants under the program were awarded in 2009.¹⁸⁸ National breeding programs around the world, however, continue to be mainly geared towards major annual crops, and those efforts continue to focus on maximizing yield.¹⁸⁹

Conclusions

Agricultural systems, as they are currently structured in most parts of the world, are unsustainable. Our reliance on genetically uniform annual crops grown with the assistance of vast amounts of chemical inputs results in soil and water pollution, contributes to erosion, and is a major source of the greenhouse gas emissions driving climate change. Shifting towards an agricultural paradigm where farming practices are modeled on the surrounding natural ecosystems, such as the temperate grasslands where much of the worlds grain is grown, would do much to address these problems. The shift towards such a system, however, is still some ways off and will require the development of new varieties of locally adapted perennial and annual species by plant breeders. The speed at which agricultural systems around the world can shift to this sort of model will depend in large part on the legal regimes governing plant genetic resources and the support given to these breeding efforts.

The Convention on Biodiversity and the subsequent International Treaty on Plant Genetic Resources for Food and Agriculture have both promote conservation of plant genetic resources and provide complementary schemes to govern access to the resources. The International Treaty is itself the cornerstone of the UN Global System—a collection of resources and programs meant to support seed banks worldwide. Established by the UN FAO’s Commission on Genetic Resources for Food and Agriculture, the Global System has done much to conserve the global diversity of plant species. The Global System has provided guidance and standards to help ensure the specimens already contained within seed banks are preserved correctly, as well as funding to accomplish this goal. Through the International Treaty on Plant Genetic Resources for Food and Agriculture and the accompanying Global Plan of Action, the Global System has standardized access to the most vital of these resources. Furthermore, the Treaty’s benefit sharing mechanism ensures the plant varieties and biotechnology developed from these resources are either kept in the public domain or, if they are not, a portion of the proceeds are payed back into the System. All of this has done much to strengthen seed bank administration and plant conservation efforts—and in doing so help ensure the continued existence of the plant species which will be key to breeding the new crop varieties needed to face our current challenges.

Beyond these developments, however, there is still much that needs to be done to improve the utility and coverage of seed bank collections. While the world’s seed banks include somewhere around 7.4 million accessions,¹⁹⁰ major gaps remain with regards to the diversity of species included in these collections. Many collections are largely limited to a handful of major staple crops.¹⁹¹ Regional landraces, wild plant species, and perennial species are generally poorly represented in seed bank collections.¹⁹² Compounding this problem, seed banks in many countries must contend with inadequate funding, staffing, facilities, and management systems—putting their existing collections at risk.¹⁹³ Finally, these collections are often poorly characterized, which severely limits their utility to plant breeders and researchers.¹⁹⁴ If seed banks are going to be used to their full potential, these issues must be addressed.

The current reliance on genetically homogenous annuals paired with large amounts of pesticide, herbicide, and fertilizer has played a major part in the continued decline in plant biodiversity around the globe. “Genetic erosion” has received much attention internationally: numerous international organizations and treaties exist to address the issue, and nearly every country now has established seed banks and field gene banks to conserve plant genetic diversity and supply seeds and other propagating materials to plant researchers and breeders. These treaties, international organizations, and seed banks have been crucial in addressing the loss of genetic diversity among plant species worldwide, but they do not address the environmental degradation and agricultural practices that lay at the root of the problem. Genetic erosion is still occurring, and genetic vulnerability continues to increase.¹⁹⁵ What is truly needed is a fundamental shift in the way we grow our food. Reducing our reliance on chemical inputs and annual plants grown in monocultures, as is possible through alternative models of production such as natural systems agriculture, would eliminate many of worst effects of our current agricultural practices. Any concerted effort to facilitate this shift is likely to face significant push-back, however. Currently, the global seed market is dominated by a small number of private agrichemical companies which have large vested interests in maintaining the global agricultural model as it stands. The use of annual plants, along with the strong intellectual property rights granted by the tandem of the genetic engineering and utility patents, has resulted in a system where most farmers must buy all their seed anew each year from a select few breeders. These annual species, grown in genetically homogenous monocultures, require large amounts of fertilizer, pesticide, and herbicide to prosper—chemicals which are all manufactured by the same companies that supply the seed. In short, the current agricultural system allows these companies to capture a large share of the profits at almost every level of the market. The switch to a natural-systems model featuring perennial plants grown in polycultures would inherently reduce the amount of inputs (in both seed and chemicals) that farmers would need to purchase annually. This fact makes it unlikely that corporate plant breeders will be the driving force behind the switch to such a system. Nonprofit and public breeding programs are consequently a much more likely catalyst for such a switch. Regardless of who is supplying the seed, however, the move away from our current agricultural model will require the martialing of political will—the source of which will almost undoubtedly have to be activists, scientists and, most importantly, consumers.

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