Beyond access and benefit‐sharing: Lessons from the law and governance of agricultural biodiversity

Abstract

The concept of fair and equitable benefit‐sharing emerged in the early 90s as a corollary to the principle of national sovereignty over natural and genetic resources. In the context of agricultural biodiversity use, it can be conceptualized in three ways: as a defensive tool to balance the injustices enshrined in the intellectual property rights system; as a development tool to reap part of the benefits of the emerging biodiversity market; and as an incentive, to reward and enable farmers' continued contribution to conservation. This article seeks to assess the potential of the concept in operationalizing fairness and equity in agricultural biodiversity governance, in an increasingly complex legal and policy landscape of conflicting rights and policies. It briefly explains its emergence in the context of the evolving principles of governance of agricultural biodiversity; and analyses the structure and application of the Multilateral System of Access and Benefit‐sharing established by the International Treaty on Plant Genetic Resources for Food and Agriculture in the framework of intellectual property‐ and human rights‐related processes. Identifying linkages, challenges and key lessons, which are useful for a wide range of processes within and beyond the international environmental law realm, it concludes that the concept falls short of its promises. It thus calls for imagining new dialogues and concepts to redefine the boundaries between what must remain in the public domain, what may be managed as a commons and what may be privatized.

Benefit sharing: Why inclusive provenance metadata matter

“…In light of the growing scale of digitization projects, data re-use, and sharing, the limitations of data infrastructures to record Indigenous provenance emerges as a key barrier in establishing the conditions for benefit sharing and supporting IPLC self-determination ( Woods, 2018 ). In view of the ease with which DSI, like all other digital material, is shared across borders, how it is, and should be, considered under the NP’s ABS principles remains obscure ( Tsioumani, 2018 ; Heinrich et al, 2020 ).…”

Beyond the material: knowledge aspects in seed commoning

“…While participatory plant breeding projects funded through the BSF enable the integration of farmers as knowledge cocreators, these projects are restricted by the limited funds available in the BSF. The MLS is very successful in facilitating access to PGRFA for research, breeding and training (Tsioumani 2018); yet farmers are not direct beneficiaries.…”

Against the grain? A historical institutional analysis of access governance of plant genetic resources for food and agriculture in Ethiopia

“…Thus, restrictive access policies can be seen as a reaction from countries in the Global South toward an increasing enclosure of various genepools by IPRs, with little or no economic benefit flowing back to the countries in whose jurisdiction the genetic resources originated (Andersen, 2017; Timmermann & Robaey, 2018; Tsioumani, 2018). Through access policies and sui generis IPR laws, these countries intend to recognize the importance of farmers' varieties, and to provide appropriate mechanisms for ABS (Robinson, 2008).…”