Will the negotiations on plant genetic resources be able to break the deadlock?

July 17, 2023

A game of chess that has stalled for ten years. This is how the negotiations of the working group on the Multilateral System (MLS) set up under the Treaty on Plant Genetic Resources (ITPGRFA) to enhance the access and sharing of benefits arising from the use of plant genetic resources look. We participated as Working Group on Agrobiodiversity of the International Planning Committee for Food Sovereignty (IPC), represented by Guy Kastler from La Via Campesina. Set up in 2013, the working group of delegates from contracting parties from different world regions has one mission: to find ways of ensuring that the principles of the Treaty on access to seeds and Plant Genetic Resources (PGRFA) in general are respected. The commitments are as clear as they are incomplete: one concerns the facilitation of access, the other is the respect of the rights of farmers who have provided the vast majority of plant genetic resources and the equitable sharing of the benefits derived from the use of these resources taken from the “common basket” (the Multilateral System).

The abuse of the “common basket”

In concrete terms, this space is the network of gene banks located in the various contracting countries, where the seeds selected and conserved over centuries or millennia by farmers are stored. Most of the world’s agrobiodiversity comes from countries in the Global South, which, by making it available, expect – according to the letter of the Treaty – that those who use it to select and market new plant varieties will pay them a share of the profits they make from it. This is in fact benefit sharing. The share set by the Treaty ranges from 0.77% of net sales over 20 years of the product containing the genetic resource collected in the multilateral system to 0.5% of sales over 10 years of all products derived from the plant genetic resource. In the latter case, as the royalty is higher, the beneficiary in return gets facilitated access to all PGRFA of the same species as the variety from which he has taken a single seed sample. In fact, instead of signing a contract each time they need a single resource, they only need a single agreement to access all those of the same species. This cumbersome system is only binding on those who produce patented products such as GMOs. On the other hand, those who authorise access to their new varieties for research, breeding or conservation purposes are not required to pay. In practical terms, the obligation to pay concerns profits from the sale of patented seeds only, and not those that are free of IPRs or covered by a Plant Variety Right (or by the new EU Unitary Patent), which provides the “breeder’s exception” but does not respect the right of farmers to freely use seeds from their own harvests. Since the Treaty came into force in June 2004, companies have drawn heavily on the “common basket”, but no payment has been made and they refuse to do so. They can act with this arrogance because no one is watching over the genetic material stolen from the MLS and incorporated into their patented products. As patents are issued without any obligation to indicate the origin of the resources used, they can very easily evade their obligations. This legalised theft includes governments that oppose any strengthening of the Treaty’s effectiveness, such as the United States, Canada, the European Union and Japan, among others. All countries of the Global North, where the largest multinationals are based, influencing policy and getting away with it thanks to legal loopholes.

DSI, a thread for global biodiversity

If the implementation process remains blocked, so much the better for them. But for those who have fought to obtain binding rules to put an end to this piracy, it is scandalous. Especially as an additional threat emerged around ten years ago. Thanks to the IPC’s complaints, the sequencing and subsequent digitisation of plant genetic resources contained in the multilateral system has become an issue. Researchers obtain Digital Sequence Information (DSI) and upload them to public (often open source) and private (often not freely accessible) databases. Thanks to synthetic biology and bioinformatics processes, it is possible to reproduce these sequences without the physical material: all you need is the data. So, behind the rhetoric of open access, there is a twofold risk: firstly, that this information would be reconstituted into matter using synthetic biology, and then patented as “inventions”; secondly, that no one will have any interest to access the Multilateral System once it has been drained by digitising and patenting its information. To be clear, this is not the same as some of us downloading a song from the Internet to make our own compilation. It’s like a famous songwriter downloading that song, putting it on his new album and selling worldwide with a copyright prohibiting anyone else from marketing it. It would be difficult to do that with the Beatles’ song Let It Be, because it’s too famous. But that’s not the case for millions of other tunes and songs. With almost all the genetic sequences contained in more than two million seed samples from the ITPGRFA Multilateral System now freely available on the internet, companies can finally close the loop: patent as inventions the genetic material developed by farmers, which they are denied access to the physical seeds conserved by the Multilateral System of the Treaty. And we’re not just talking about the germplasm made available to the world by the Treaty’s contracting parties and the owners of gene banks, but also the one in the fields, which has not been collected for inclusion in the MLS, but which is the most precious because it contains all traits selected by farmers to adapt their seeds to climate change, environment transformations, evolution of society and cultivation techniques. Cultivated biodiversity evolves as a function of the environment and farmers’ knowledge. Consequently, if DSI are not regulated, the ultimate appropriation of farmers’ biodiversity for the benefit of a few large transnational corporations will be unleashed in violation of both farmers’ rights and benefit-sharing obligations. This is what we call the legalisation of biopiracy.

Material and information

Not surprisingly, this issue has become central to the high-level debate in the ITPGRFA. These days, it has also been the proverbial elephant in the room. That’s because industry sees DSI as data generated by research and not as genetic resources containing genetic information subject to the Treaty’s obligations to share benefits and to prohibit any claim of intellectual property rights limiting access for research, breeding and conservation to these resources, their parts or their genetic components. Governments from North America, Europe, Australia and parts of Asia (Japan, South Korea) are supporting industry’s claim. Africa and Latin America, and many Asian countries, on the other hand, are fighting to make DSI fall under the Treaty obligations. Until this point is resolved, companies will be able to access the genetic data in an open source database, associate it with a particular trait of a plant (its “function”) available in numerous academic publications and patent this “genetic information” associated with one of its “functions”. This sleight of hand, hidden behind twisted legal language, enables them to ban the use of all seeds containing patented genetic information by farmers who have selected, stored and supplied to the MLS the seeds that have made this information identifiable and digitisable. With all sorts of diplomatic tactics, delegates from the Global North tried to scupper these three days of negotiations. We have seen hours wasted on arguments, that only serve to pass the time and irritate negotiating partners. We have seen demands to expand the reserve of PGRFA available in the MLS without first agreeing on a payment mechanism and respect for farmers’ rights that actually works. This led to a denial of the nature of DSI as a genetic resource, with the most cunnings – such as Europe – arguing that a shared definition had to be reached first, knowing full well that this would lengthen the process even further. Luckily, they were obliged to take into account the decision of the Treaty’s Governing Body to refer the debate on DSI to the Convention on Biological Diversity in 2019. The recent Conference of the Parties to the CBD (COP 15) decided that DSI should be subject to benefit sharing. As a result, countries from the Global North were unable to prevent the final report of the meeting from stressing that DSI is one of the “hot spots” in the negotiations, as the IPC has been pointing out for the past 10 years at every meeting of this working group and the Governing Body. On the other hand, they succeeded in ensuring that the risk of farmers’ and traditional seeds being confiscated by patents relating to DSI was not mentioned in the final report, even though this problem was highlighted during the meeting by several contracting parties following the IPC’s interventions.

The future of the Treaty

We have finally succeeded in having the problems associated with DSI taken into account. However, these three days of negotiation leave us with the bitter feeling that the recognition of farmers’ rights, which implies a ban on claiming patents on the DSI they contain, will require strong mobilisation. But we know we are right, not least because the Treaty is clear when it speaks of plant genetic resources “and associated information”, even though it was drafted before the invention of the ISD. If states were to honour their commitments, this would prevent the patenting of indigenous traits developed by farmers. It would also call into question any intellectual property rights blocking any use of plant genetic resources that have been taken from the Multilateral System. In order to remove the “innovative” character required to obtain a patent, it’s sufficient for the signing of the access agreement to precede the application for a patent on the genetic information contained in the resource. However, free access to digital sequence data on the Internet and to scientific publications containing farmers’ knowledge of the characteristics of each seed that may be in these sequences currently makes it possible to circumvent this obligation. The problem is that if no one does anything to take operational steps to resolve these circumventions of farmers’ rights as well as benefit sharing, the Treaty risks collapsing into ineffectiveness. This global mechanism for the regulation of plant genetic resources, painstakingly constructed to curb the unbridled liberalisation proposed by the World Trade Organisation, two decades after its heyday is at an all-time low. The group responsible for implementing the commitments will be working until the end of 2024. Meanwhile, seed companies continue to claim multiple patents on DSI. So there is little time left to save the Treaty.