Girsberger, Martin A. (1999): Biodiversity and the Concept of Farmers' Rights in International Law. Factual Background and Legal Analysis
Girsberger, Martin A. (1999). Biodiversity and the Concept of Farmers' Rights in International Law. Factual Background and Legal Analysis. Studies in Global Economic Law, 1.
This doctoral thesis analyses the concept of farmers' rights from a legal perspective. The first part presents an extensive description of the factual background to the topic, including agriculture, plant genetic resources for food and agriculture, indigenous knowledge and the effects of modern biotechnology. The second part examines the applicability of existing forms of intellectual property rights to traditional crop genetic resources and related know-how. Here Girsberger concludes that existing intellectual property rights are not adequate for this purpose, and that farmers' rights should rather be non-exclusive rights.
The third part contains a legal analysis of farmers' rights as a concept and of the prospects for their realization. The author suggests that farmers' rights should have three complementary and closely related purposes: (1) compensation for the use of traditional plant genetic resources for food and agriculture and related traditional knowledge; (2) incentives for the conservation and sustainable use of crop genetic resources; and (3) balancing inadequacies and deficiencies of existing forms of intellectual property rights with regard to these resources (p. 205). Farmers' rights should, however, not compete with - or replace - existing intellectual property rights, he argues.
On this basis, the subject matter of farmers' rights would be (1) traditional crop varieties and their wild and weedy relatives, and (2) the related knowledge of informal plant breeders (p. 213). Girsberger further concludes that individual farmers or farming communities cannot be considered rights holders, since the determination of such rights holders would be very complicated, if not impossible, and would consume substantial financial, technical, and legal resources (p. 228). Instead, he proposes that all entities involved in the conservation and sustainable use of plant genetic resources for food and agriculture be defined as rights holders, and that the international community should act as steward for the holders of farmers' rights (ibid.).
A central question is what the rights and obligations should be. On the basis of the foregoing analysis, Girsberger proposes that the fundamental right is compensation, and the fundamental obligation is the conservation of crop genetic diversity. For this purpose an international fund should be established to distribute compensation among the holders of farmers' rights, i.e. entities involved in the conservation and sustainable use of traditional crop genetic diversity (pp. 259-261). Due to the nature of the utilization of crop genetic resources, the financial capabilities of countries in the South, and the development of intellectual property rights to genetic resources from the global genetic pool, compensation would basically have to be an international task (p. 282). Therefore, realization of farmers' rights would have to take place at the international level and be enforced by states (p. 296). The international fund should distribute financial resources according to proposals submitted by rights holders, to be approved by a committee of internationally acclaimed experts (p. 308). The book concludes with a proposed agenda for farmers' rights.