3.1 Access to Proprietary Science of Others
3.2. Intellectual Property Protection for the CGIAR Developments
The Panel has agreed that proprietary science can impact, positively or negatively, the effectiveness of the CGIAR in addressing its mission. Currently, most of these impacts are inhibiting its effectiveness. If properly managed proprietary science can provide benefits, otherwise opportunities are being missed.
Given the fact that the IARCs are already using proprietary technologies and materials in their research programmes, there are significant risks in not obtaining the rights to use these properties in applications important to the mission of the CGIAR. The primary risk of unauthorized use is not the threat of legal action against the IARCs, but rather the reluctance of intellectual property owners to share potentially useful properties with the Centres in the future. In order to obtain authorized access to such properties, the CGIAR will need expertise in the management of technology transfer and related intellectual property issues. Establishing such a function will require significant personnel and financial resources. This may require diversion of resources (money, staff, effort) from work more directly related to the CGIAR's mission. Further, to the extent that these activities would require such diversion, there is a risk that donors, partners and clients will object.
On the other hand, there are a number of potential advantages from the establishment of CGIAR expertise in managing issues relating to intellectual property rights and alternative rights regimes. Such expertise will assure that the CGIAR has an effective voice in international discussions concerning these issues where they affect the utilisation of genetic resources. It will also be helpful in maintaining good relationships with various institutional and private partners, by demonstrating that the CGIAR recognizes and respects the rights of these partners in the territories where they are entitled to such protection. Good working relationships with these partners will be key to obtaining future access to technologies and materials which may be important to the CGIAR mission. In the event that the CGIAR cannot obtain authorized access to specific rights or resources, the IARCs will avoid making research investments in the development of technologies and materials which they cannot distribute. In the event that access to a specific resource is acquired for one centre, the CGIAR technology transfer staff should be able to negotiate for multi-centre access to that resource.
If and to the extent that the CGIAR centres decide to use proprietary science, the following recommendations can be made based on the findings of the ISNAR study and the Panel's discussions. There is a need to:
(i) Acknowledge the use of proprietary technologies and materials by the IARCs.(ii) Review MTAs with regard to research, development and dissemination. There needs to be a system wide policy concerning MTAs with regard to their review and execution.
(iii) Provide legal advice now for those areas noted as needing immediate attention, and increase awareness of legal implications regarding improved materials and genetic resources for the CGIAR system.
(iv) Provide diverse expertise in intellectual property and alternative rights regimes for CGIAR centres.
(v) Rectify, where necessary, the current situation by either negotiating appropriate (preferably, multi-centre) access to proprietary science, or abandoning its unauthorized use.
The guiding principle for seeking protection for CGIAR developments must be that such protection will only be sought if and when it furthers the mission of the CGIAR. Furthermore, access and delivery of CGIAR-owned proprietary science to the poor must be guaranteed to the fullest extent possible. The same expertise developed for obtaining access to others' proprietary science can be applied to the protection of technologies and materials developed by the IARCs, should the CGIAR decide to apply for intellectual property protection in any particular case.
There are several notable risks to be considered. Obtaining protection will require substantial expenditures which may result in the diversion of funds from other activities. To the extent that there are any financial returns from licensing such properties, it is unlikely that such returns would be sufficient to cover the costs of the programme for many years. There is also a concern that the capability to obtain intellectual property rights might skew the research agendas of the centres. Most importantly, some CGIAR partners view proprietary science arising from public money, or applied to living material, as being inconsistent with the CGIAR mission, or even unethical.
However, if a mission-oriented approach to seeking intellectual property rights is properly managed, there are a number of potential benefits. The ability to license such rights can facilitate technology transfer when a private partner is needed to accomplish this goal. In joint ventures, such rights provide a basis for reserving rights to the CGIAR for the delivery of jointly owned properties to the poor. CGIAR ownership can be used as a means of market segmentation to assure access to those who cannot afford to pay for new technologies. In some cases, ownership could be used to obtain access to technologies and/or materials developed and protected by others, but essentially derived from CGIAR properties (e.g., the addition of a single gene to a CGIAR-developed plant variety). Intellectual properties could be used to attract local investments, as well as to facilitate capital formation in the countries where the centres are located. Finally, in the event that a licensed property becomes commercially successful, revenues generated could be used to support the work of the centres, and potentially, to provide returns to the original sources of germplasm, as mandated by the CBD.
For most of the Panel, generating income will never be the main reason for seeking protection. This must be clear, or it will be a constant temptation to divert the energies of the Centres away from their mission. Only a few developments generate income, and it is not easy to predict which, but all cost money to protect. This does not mean that if money is offered, it must be refused.
A minority of the Panel believes strongly that significant developments of the Centres should be protected if they offer good prospects of financial reward. The money generated should be used for the mission, and for remunerating sources of germplasm (there are many possibilities, including paying farmers who preserve biodiversity, royalties to communities of origin, supporting research into in situ conservation benefiting the poor, etc.). Not to protect such developments is to waste useful resources.
