An Analysis of Community Rights by Ashish Kothari
(La gestion des bénéfices dérivés de l’utilisation de la biodiversité Une analyse des droits communautaires par Ashish Kothari)
09 / 1997
The issue of access to and remuneration from plant genetic resources has generated much ado in the international arena. In the context of agriculture, the debate revolves around the regulation of access to indigenous varieties cultivated by farmers on the one hand, and the protection of varieties released by plant breeders on the other hand. Geopolitical issues invariably come into play since the largest pool of biological resources is in the hands of developing countries, while the means to develop new varieties - in terms of research and technology - tends to rest with industrialised nations.
In 1983, a general commitment to a free flow of plant germplasm was officialized through the International Undertaking on Plant Genetic Resources, negociated at an FAO conference. Not all countries were party to it right from 1983 however. In 1989, FAO formally recognized Plant Breeders’ rights and Farmers’ rights. The first provision enabled plant breeders to protect their new varieties while the second consisted of a mere statement recognizing the contributions of farmers "in conserving, improving and making available plant genetic resources".
To Ashish Kothari, a lecturer in Environment Studies at the prestigious Indian Institute of Public Administration, this meant, in essence, that "farmers’ varieties were still up for grabs, while the formal breeding sector retained control of its own products"(1). In his view, making a distinction between folk varieties and new varieties bred by research institutes or seed companies amounts to applying double standards on this issue. He traces the root of this attitude to a gross underestimation of the expertise and intellectual or technical resources going into the selection of folk varieties by communities.
Genetic resources as well as indigenous knowledge have been used by agricultural scientists in breeding work or in pharmaceutical research in the case of non-domesticated plants to derive commercial products. Yet the communities having contributed their resources as raw material - sometimes unwillingly or without prior informed consent - usually see no trace of the benefits derived from such products. This situation has led many groups in various parts of the world to claim ownership over the resources found on their land, or at least to demand that their role as stewards of these resources be recognised. The Convention on Biological Diversity provides some legal back-up to this claim by enunciating the rule of community consent. In theory, communities must grant their approval before their resources are used by outsiders. Another provision of this Convention relates to the "just and equitable sharing of benefits" derived from the commercialisation of new varieties or products. This issue is not merely a political one; it bears far-reaching economic implications. Indeed, the agricultural systems of communities from which genetic material emanates are often under threat. Subsistence farmers are increasingly being marginalized, for instance, by the expansion of an exported-oriented agriculture based on minimal diversity. As small peasants give up their traditional practices, the biodiversity which characterises their cropping patterns also disappears. Hence, benefit sharing is relevant to the very maintenace of biodiversity.
This notion is often viewed with much scepticism, however, because of several largely unresolved issues : to whom - individual farmers, communities, or states - should the benefits go, what form should they take, should they be proportional to the profits, etc. Yet more and more people are attempting to tackle this complicated issue in creative ways.
Ashish Kothari outlines the various possibilities for ensuring equitable returns to the communities or farmers and for generating benefits which facilitate the maintenance of biodiversity.
1. Charging collection fees : the community or the country charges a fee to collectors or bioprospectors for taking a sample of a local plant, for instance. This arrangment is admittedly uncertain for both parties.
2. Paying for the past and present by assigning to a resource the price corresponding to its commercial value. Retrospective royalties may not be workable, except in the event of a fund created in recognition of the past contribution of tropical countries, which Scandinavian countries are considering.
3. Fixed royalties : the community/country of origin of the material receives a percentage of the benefits as royalty payment. This option is risky in so far as it rests on the goodwill and good faith of the company.
4. Rewards : farmers’ innovations are evaluated and rewarded during fairs organized in every region. Farmers maintaining highly diversified crops receive rewards accordingly.
5. Financial support : a taxation is imposed on the seeds, pharmaceutical and other biodiversity-based industries and passed on to the custudians of that diversity. Alternatively, credit systems or insurance schemes are used to subsidize biodiverse systems.
6. Capacity enhancement : giving communities the potential - in terms of skill or technology - to derive greater benefits from their local resources, by selling transformed rather than raw groundnut for instance.
7. Exemption from the application of Intellectual Property Rights : a system of automatic licensing rights, without royalty payments, to countries from which the genetic material for a particular patent originates. This option is somewhat unlikely because companies may be reluctant to enter into such agreements.
8. Full access to gene banks : facilitating access to material stored in genebanks by farmers through information, and repatriating this material to country of origin. In-situ conservation should be emphasized.
9. Local community rights : recognizing the rights of communities over their land and resources and reinstating a sense of responsability to these communities where state control and intervention have caused a breach in communal management of local resources.
These varied proposals are but guidelines that need to be adapted to local situations and confronted to the social and economic realities of each country and region. Ashish Kothari emphasizes the relevance of regional cooperation in these matters, since several neighbouring countries may have some genetic resources in common. It is also important that no regulation attempting to guarantee returns to communities from their resources inhibit the emergence of initiatives based on indigenous technology. Indeed, local resources are to be managed primarily in the interests of the local people, whose skills and technology overall yield more sustainable results in terms of resource management than imported practices.
1. Ashish Kothari, 1997, Understanding Biodiversity : Life, Sustainability and Equity, New Delhi: Orient Longman.
Personal study on biodiversity in India. A book is on the point to be published in India. For further information, please contact the author (see address)or Fph.