Brush, S. B. (2005 A). Farmers' Rights and Protection of Traditional Agricultural Knowledge/ Brush, Stephen B. (2005 B): Protecting Traditional Agricultural Knowledge
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Brush, Stephen B. (2005 B). Protecting Traditional Agricultural Knowledge. Washington University Journal of Law and Policy, 17, p. 59-109.
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In these two contributions, Stephen B. Brush questions the value of bioprospecting contracts that involve direct payment and royalties for the purpose of protecting traditional agricultural knowledge. He argues instead for a common pool approach to the management of crop genetic resources and as a basis for farmers' rights. Brush starts out with an analysis of the nature of the 'common heritage' regime that was a prevalent feature of the management of crop genetic resources until the adoption of the CBD. In this context he explains key characteristics of traditional agricultural knowledge and the background to the closing of the genetic commons by the upcoming intellectual property rights regimes under the World Trade Organization and by the access and benefit sharing regime under the CBD. He offers examples of domestic implementation of these regimes from Colombia, Mexico and Costa Rica, all showing the negative effects of such regimes for the management of crop genetic resources.
An important reason for these problems is that the access and benefit sharing regimes derived from the CBD failed to distinguish between wild and domesticated plant genetic resources. According to Brush, there are three important differences (pp. 21[A]/80[B]): '(1) involvement of numerous farmers and farming communities in creating and maintaining genetic resources, (2) genetic complexity of crop traits, and (3) a long history of exchange and publicly supported conservation of crop genes within and outside of their places of origin.' Crop genetic resources should be approached in a fundamentally different way, reviving the 'common heritage' approach.
On this background, Brush analyses the International Treaty. He concludes that the 'common heritage' principle has re-emerged in the Treaty, with its Multilateral System of Access and Benefit Sharing. This is the context in which the provisions of the International Treaty on farmers' rights are explored. Bioprospecting contracts between farming communities and seed companies would not only be legally difficult, but could also lead to market failure because a multitude of farmers would face an extremely limited set of potential 'buyers' of their genetic resources. For this and other reasons, alternative approaches to the realization of farmers' rights need to be found. Brush suggests four guidelines for the crafting of national policies (pp. 29[A]/93[B]): (1) the goals of farmers' rights should balance breeders' rights and encourage farmers to continue as stewards and providers of crop genetic resources; (2) farmers' rights should be viewed as collective rights rather than rights of individual farmers or communities; (3) farmers' rights should not be exclusive and are not meant to limit access to genetic resources; and (4) mechanisms are needed for sharing the benefits received by the international community from the genetic material from farmers' fields or international collections.
According to Brush, the weakness of the International Treaty is that it does not give proper emphasis to the obligations of industrial and developing countries to support the conservation of crop genetic resources. Therefore, it does not solve Hardin's classic 'tragedy of the commons' (Hardin, Garrett (1968): 'The Tragedy of the Commons', Science, 162, pp. 1243-1248) that has beset the management of crop genetic resources, allowing breeders to benefit from the access to genetic resources without bearing the costs of maintaining them. Instead, development assistance is the most likely source of funds for realizing farmers' rights under the current regime. The irony of this conclusion is that 'it reverts to tools and principles that were established before the assault on common heritage', Brush concludes (pp. 34[A]/109[B]).