The Intellectual Property and Food Project

From Rewarding Innovation and Creation to Feeding the World

Charles Lawson, Jay Sanderson

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409469568
• eBook ISBN: 9781317027362
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

The relationship between intellectual property and food affects the production and availability of food by regulating dealings in products, processes, innovations, information and data. With increasingly intricate relations between international and domestic law, as well as practices and conventions, intellectual property and food interact in many different ways. This volume is a timely consideration and assessment of some of the more contentious and complex issues found in this relationship, such as genetic technology, public research and food security, socio-economic factors and the root cause of poverty and patent-busting. The contributions are from leading scholars in this emerging field and each chapter foregrounds some of the key developments in the area, exploring historical, doctrinal and theoretical issues in the field while at the same time developing new ideas and perspectives around intellectual property and food. The collection will be a useful resource in leading further discussion and debate about intellectual property law and food.

Chapter 1 The IP and Food Project

Jay Sanderson and Charles Lawson

DOI: 10.4324/9781315556680-1

There is debate about the role intellectual property (IP) law plays in food production and availability. Most broadly, IP is either seen to encourage innovation in food and food-related developments, or, alternatively, to hinder and restrict access to, and exchange of, essential materials and processes such as plant genetic resources. More specifically, though, IP and food interact in innumerable ways – from providing protection to plant and animal breeders, protecting distinctive food brands and logos, helping to identify goods that originate from a particular region or influencing the publication and reproduction of information and data generated through agricultural, scientific and technological research. And while the relationship between IP and food can sometimes be tenuous, the relationship is influential: affecting the production and availability of food by regulating dealings in products, processes, innovations, information, data, and so on.

The scope and nature of the interaction between food and IP is influenced by international laws that include the Convention of the International Union for the Protection of New Varieties of Plants (UPOV) and the Agreement on Trade-related Aspects of Intellectual Property (TRIPS). The TRIPS agreement requires all World Trade Organization (WTO) members to adhere to minimum standards of IP as well as observe the Paris Convention on Industrial Property, the Berne Convention on Copyright and other WTO conventions. In relation to food, TRIPS requires WTO members to provide patent protection for all inventions, whether of products of processes, in almost all fields of technology. While IP protection is optional for plants and animals (other than micro-organisms), as well as for other essentially biological processes used in the production of plants and animals (other than microbiological processes), members of the WTO must provide protection of plant varieties either by patents, or by an effective sui generis system, or any combination of patents or plant variety protection. In addition to patents and plant variety protection the TRIPS agreement also sets minimum standards in relation to trademarks, copyright, trade secrets and geographical indications. In addition to specific international laws on IP, the scope and nature of the interaction between food and IP is made more complicated by international treaties that deal with the conservation of biodiversity, as well as access and exchange of plant genetic resources related to food and agriculture. These treaties include the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty).

Importantly, IP has also found its way into organizations and forums that it has traditionally been absent from. Take, for example, the introduction of mandatory IP principles in the Consultative Group on International Agricultural Research (CGIAR) system. Established in 1971 to support research and development that improves food security and reduces poverty, CGIAR is a global network of agricultural research Centers ‘dedicated to reducing rural poverty, increasing food security, improving human health and nutrition, and ensuring more sustainable management of natural resources’.¹ More specifically, some of the CGIAR Centers concentrate their research efforts on improving major food crops such as rice, wheat, maize and potatoes, as well as livestock and fish. To ensure that the Centers’ research activities and outputs are freely and globally available for researchers, plant breeders and farmers, they have been, and continue to be, considered international public goods. In March 2012, however, CGIAR introduced Principles on the Management of Intellectual Assets that allow, in certain situations, exclusive use of CGIAR Centers’ research including the ‘prudent and strategic’ use of IP protection.²

¹ Consultative Group on International Agricultural Research, 2012. Who We Are. [Online]. Available at: http://www.cgiar.org/who-we-are [accessed: 22 November 2012]. ² Consultative Group on International Agricultural Research, 2012. CGIAR Principles on the Management of Intellectual Assets, Article 6.4. [Online]. Available at: http://www.cgiarfund.org/sites/cgiarfund.org/files/Documents/PDF/cgiar_principles_management_intellectual_assets_7march_2012.pdf [accessed: 5 June 2013].

In addition to the numerous international laws and international organizations dealing either directly or indirectly with IP, IP has been linked to the right to food. Recognized as a human right under international human rights and humanitarian law, the right to food is established in part by Article 11 of the United Nations’ International Covenant on Economic, Social and Cultural Rights which imposes an obligation on states to respect existing access to food, protect the right to food, and fulfill the right to food.³ Jean Ziegler et al. define the right to food as:

³ By 2011, the right to food was explicitly or implicitly protected in 56 national constitutions, recognized by 51 countries, and acknowledged through framework legislation in a further ten countries: Knuth Lidija, K. and Vidar, M. 2011. Constitutional and Legal Protection of the right to Food around the World. Rome: FAO, 32.

the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free of fear.⁴

⁴ Ziegler, J., Golay, C., Mahon, C, and Way S.A. 2011. The Fight For the Right to Food: Lessons Learned. Geneva: The Graduate Institute.

The United Nations’ Special Rapporteur on the right to food, Oliver De Schutter, drew attention to the impact that IP may have on the right to food by publishing in 2009 The Right to Food: Enhancing Agrobiodiversity and Encouraging Innovation. In this report, De Schutter examines the impact of seed policies and IP in agriculture on the realization of the right to food. According to De Schutter, when thinking about the interaction between IP and food, international organizations, national governments and policy makers must ‘place the needs of the most marginalized groups, including in particular smallholders in developing countries, at the centre of [developing seed policies and IP in agriculture]’.⁵ In order to do this, the Special Rapporteur on the right to food made a number of recommendations including that states should: ensure that patent and plant breeders’ rights laws do not discourage innovation by introducing barriers to the use of protected material; consider whether access to research tools and plant material is blocked by IP; encourage innovative mechanisms such as patent pools, clearing houses and open source experiments; ensure that seed certification schemes do not exclude farmers’ varieties; and support local seed exchange systems such as community seed banks and seed fairs.⁶

⁵ General Assembly. 2009. Seed Policies and the Right to Food: Enhancing Agrobiodiversity and Encouraging Innovation, A/64/170. New York: United Nations, 20-21. ⁶ Ibid., 3.

While there are numerous texts and commentaries on IP there has actually been very little direct engagement with the interaction between IP and food. To date, scholarship and commentary has focused almost exclusively on access and exchange of genetic resources.⁷ By focusing on the ‘inputs’ to food and crop development (such as plant germplasm) and technological developments (such as genetic engineering), scholarship has tended to focus on in situ and ex situ collections, as well as the protection of plant varieties, plant genes, genetically modified plants and animals. One reason for the lack of scholarship on food and IP is that there in not a single, coherent area of study known as food and IP. Indeed, IP has multifarious, diverse and subtle interactions with food that makes it difficult, if not impossible, to clearly delineate a field of study, let alone consider all of the possible interactions between IP and food.

⁷ See, for examples, Santilli, J. 2012. Agrobiodiverstiy and the Law: Regulating Genetic Resources, Food Security and Cultural Diversity. New York: Earthscan; Lightbourne, M. 2009. Food Security, Biological Diversity and Intellectual Property Rights. Farnham_ Ashgate.

Perhaps, most importantly though, giving legal effect to the term ‘food’ is far from straightforward. Food is central to all aspects of human life. Food has inspired war, motivated the discovery of new worlds, and plays an important role in religion, science, technology and health. Broadly speaking, food includes any substance ingested by humans, is generally of plant or animal origin, and provides nutrients to the human body in the form of carbohydrates, protein, fats, vitaminsand minerals. Food is also instrumental in population growth. From the eighteenth to twentieth centuries advances in agricultural production through plant breeding, harvesting and processing meant that human populations thrived. In more recent times the challenge is to balance population increases with food supply. According to the Food and Agricultural Organization of the United Nations (FAO), 975 million people did not have enough food to eat in 2010.⁸ Over nine million people die worldwide each year because of hunger and malnutrition, and some three and a half billion people have micronutrient deficiency. The projection that world population, most of which is in developing countries, will grow to an estimated nine billion people by 2050 suggests that the challenge is going to more difficult.

⁸ Food and Agricultural Organization. 2010. The State of Food Insecurity in the World: Addressing Food Insecurity in Protracted Crises. [Online]. Available at: http://www.fao.org/docrep/013/i1683e/i1683e.pdf [accessed: 22 November 2012].

Acknowledging that food is bound up with, and informed by, practices and cultural conventions, Michael Carolan (a sociologist who has written comprehensively on food) suggests that we should be asking ‘When is food?’, not ‘What is food?’⁹ This means that when thinking about food and IP, food must be considered more broadly than in absolute, quantitative terms. In his book Poverty and Famines: An Essay on Entitlement and Deprivation, Amartya Sen examines a number of famines including the Bengal Famine of 1943, the Ethiopian Famine of 1972–4 and the Famine of Bangladesh in 1974, and argues that it is a loss of capability or entitlement rather than a scarcity of food that leads to famine. At the time, Sen's capabilities and entitlement approach challenged the Malthusian logic that there are simply too many people and not enough food, and in so doing shifted the focus of away from food production towards broader social and political issues that influence peoples’ inability to buy food.¹⁰ Indeed, just because we produce more food does not mean that that food gets to the people who need it. This is particularly important when thinking of IP and food, as IP itself is a means of increasing accessibility or reducing accessibility, and not necessarily to actually making just more food.

⁹ See for example, Carolan, M. 2013. Reclaiming Food Security. New York: Earthscan; Carolan, M. 2011. The Real Cost of Cheap Food. New York: Earthscan. ¹⁰ Sen, A. 1982. Poverty and Famines: An Essay on Entitlement and Deprivation. New York: Oxford University Press.

As a result of increasingly complex relations between international and domestic laws, practices and conventions, IP and food interact in infinite ways. These difficulties, however, are not reason enough to overlook the growing importance of IP to food. From our perspective, IP is not just about protecting products or process, brands, information and so on. Nor is it merely about food security and the technological imperative to produce more food. It is a much bigger project. Considering IP and food must be broad enough to include advances in science and technology, human rights, poverty, corruption and the broad expanse of insight from the effects of law and lore in delivering sufficient nutritious ‘food’ to avoidhunger. In this way the chapters in this book are designed to broadly address IP and food, and cover topics as diverse as geographic indications of tequila, water and rum, ‘patent busting’, socio-economic factors and the root causes of poverty.

This collection is the output of the IP and Food Workshop held on the Gold Coast, Australia in September 2012 and hosted by Griffith University's Australian Centre for Intellectual Property in Agriculture (ACIPA). The original purpose of the workshop was to collect together academics interested in IP and food issues and to start to traverse the various dimensions of the interaction between IP and food. Each academic was merely asked to address an issue that involves IP and food. The outcome of the workshop reflected in this collection demonstrates that IP has a multifarious and subtle interaction with food, albeit the impacts can be significantly positive and negative. The collection also reflects the immensity of the project that attempts to identify and understand the interactions between IP and food. As such, this collection is one of the early tentative steps along this path.

The collection begins with observations from Professor Robert Henry's laboratory: ‘Implications of Advances in Molecular Genetic Technology for Food Security and Ownership’. As Director of Queensland Alliance for Agriculture and Food Innovation and an internationally respected scientist (who has worked in DNA-based methods for the identification of plants, the development of molecular markers for plant breeding and the genetic transformation of plants), Henry is ideally placed to provide the scientists’ perspective on IP. Significantly, Henry provides two broad and related insights. First, scientists generally believe that ‘rapid advances in DNA sequencing technology and other technology developments have created a revolution in biology that will impact significantly on food production’. Secondly, according to Henry, in order to ensure that science and technology can reach its full potential for food production IP must be ‘streamlined’ to support emerging scientific and technical opportunities. According to Henry, for example, the use of synthetic DNA potentially necessitates the extension of plant breeders’ rights to include protection of DNA sequences to prevent the production of synthetic copies. It also appears, however, that while IP is a concern for scientists, IP itself does not appear to be impeding vital scientific research.

The remaining chapters are then organized in three groups, loosely based on common approaches, arguments or themes. The first group of chapters, ‘Public Research and Plant Germplasm_ Intellectual Property and Food Security’, focus on the increasing role of intellectual property in agricultural research and food production. In ‘Reconceptualizing Intellectual Property to Promote Food Security’ Brad Sherman examines the place of intellectual property within the CGIAR. Through a careful retracing of intellectual property within the CGIAR system, Sherman shows how there has been a shift towards using intellectual property in publicly funded agricultural research. Sherman claims that the traditional dichotomy between intellectual property and public good research – which has traditionally viewed intellectual property and public good research as mutually exclusive – has been ‘unpacked’ due to a desire to maximize the impact of agricultural research. The result of which, according to Sherman, has been the reconceptualization of intellectual property as having something to offer in the fight against poverty and food insecurity.

Charles Lawson's ‘Intellectual Property Norm Setting in ex situ Plant Germplasm Access and Benefit Sharing Arrangements’ begins by considering how the CBD and the Plant Treaty established global norms for IP in the field of plants, animals and germplasm. Significantly, however, Lawson does not focus on the treaties themselves but shifts attention to five institutions involved in implementing the CBD and the Plant Treaty, namely the: Commission on Genetic Resources; the Plant Treaty Governing Body; CGIAR Centres; Global Crop Diversity Trust; and the World Intellectual Property Organization. By contextualizing the practice of access and exchange of plant germplasm, Lawson demonstrates how these institution's policies and materials establish the way in which IP is being used in access and benefit sharing germplasm exchanges. Lawson concludes by claiming that IP may, through establishing norms for the exchange and benefit sharing of germplasm, eventually affect the price and availability of food and feed.

Brendan Tobin's ‘Open Access Seeds and Breeds: The Role of the Commons in Protecting Farmers and Livestock Keepers’ Rights and ...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Tables, Figures and Boxes
• Notes on Contributors
• Acknowledgements
• Abbreviations
• 1 The IP and Food Project
• PART I: OBSERVATIONS FROM THE LABORATORY
• PART II: PUBLIC RESEARCH AND PLANT GERMPLASM: INTELLECTUAL PROPERTY AND FOOD SECURITY
• PART III: SOCIAL, ECONOMIC AND POLITICAL ASPECTS OF FOOD AND INTELLECTUAL PROPERTY
• PART IV: INTELLECTUAL PROPERTY, FOOD AND PRACTICE
• Index