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Thèse (Dissertation) Thèse (Dissertation) "Agrobiodiversity conservation and plant improvement : adjustments in intellectual property rights reclaiming the public domain towards sustainability and equity" Batur, Fulya Abstract Intellectual property rights, mostly in the form of patents and plant variety protection, have increasingly become an integral part of plant improvement efforts. With the advent of the TRIPS Agreement and the dominant interpretative implementation of its minimum standards, actors who use, conserve and improve agricultural biodiversity are faced with a strong property rights paradigm, which has been thoroughly criticised in the doctrine. However, these critics have not created the advocated regulatory shift. The dissertation defends that this is due to the lack of socio-technological contextualisation of applicable laws and judicial interpretation. Indeed, the intellectual property paradigm applies to very different innovation contexts and confronts plant improvement actors stretching from mass selectors, small-scaled private conventional plant breeders, public molecular researchers, specialised start-ups and integrated biotechnology giants. By applying the paradigm to such contexts, the thesis wishes to identify the specific shortcomings of intellectual property rights vis-a-vis each[...] Référence bibliographique Batur, Fulya. Agrobiodiversity conservation and plant improvement : adjustments in intellectual property rights reclaiming the public domain towards sustainability and equity. Prom. : Dedeurwaerdere, Tom ; de Schutter, Olivier (2014) [Downloaded 2014/11/07 at 09:46:00 ] AGROBIODIVERSITY CONSERVATION AND PLANT IMPROVEMENT: ADJUSTMENTS IN INTELLECTUAL PROPERTY RIGHTS RECLAIMING THE PUBLIC DOMAIN TOWARDS SUSTAINABILITY AND EQUITY Dissertation présentée en vue de l’obtention du grade de docteur en sciences juridiques Fulya BATUR Faculté de droit et de criminologie Centre De Philosophie Du Droit – Unité BIOGOV Membres du JURY Professeur Marc FALLON (Président) Professeur Tom DEDEURWAERDERE (Promoteur) Professeur Olivier DE SCHUTTER (Promoteur) Professeur Timothy SWANSON (Membre du comité d’accompagnement) Professeur Séverine DUSOLLIER Professeur Andrée PUTTEMANS Professeur Alain STROWEL Année académique 2014 - 2 0 1 5 1 Acknowledgements The process of authoring a doctoral dissertation is not an unbumpy and continuously merry road. Filled with productive streaks, welcomed epiphanies, and collaborative reflexion, it allows one to test the limits of her capacities, motivation, curiosity and stubborness. Just as it can be drenched with worrying reads and discoveries, times of utter despair, and moments of deepest solitude. That is why it is never the product of the sole author. I would therefore like to wholeheartedly thank the person I would like to call my mentor (to his probable surprise), Tom Dedeurwaerdere, who shows each of us daily how to truly become an accomplished researcher and constant investigator able to connect dots that are invisible to most human eyes. I would also like to thank Timothy Swanson, who, I am sure unknowingly, has had a deep influence on the choice of my research subject through his passionate lectures on international enviromental law at University College London. I would also like to thank Olivier De Schutter for his support in all of my trials and tribulations, just as all the members of my doctoral jury, Séverine Dusollier, Andrée Puttemans and Alain Strowel, for having taking of their precious time to read my inelegant prose on such a complex and specific subject. I would like to thank them for their very insightful comments, which have definitely contributed to raise the quality of my argumentation and clarify a number of its nebulosites. Although an inherently solitary endeavour, a doctoral thesis cannot be finished without the help of a supportive team who inspires you, understands your anguish while pushing you to elevate your thinking. Arianna, the ever-present and ever-patient friend; as well as Anne, Audrey. Christine, Claire, Dimitra, Elise, Elisabeth, Ewa, Sybille, Sylvie; my female troopers; and Arul, Benjamin, Brendan, Florin, Jose-Luis, Matthias, Matthieu, along with all past and current members of the CPDR whom I have had the pleasure of running into over the years; it was and still is gratifying to work by your side. Last but not least, I need to deeply thank my family, with both its longstanding and growing members, without whom I would never have dared to enter this tenuous path, and definitely would not have seen the end of. It is a great privilege to be surrounded by loving, supportive and understanding souls who bring out the best of you; and I count myself as one of the lucky few who have such honour. AGROBIODIVERSITY CONSERVATION AND PLANT IMPROVEMENT: ADJUSTMENTS IN INTELLECTUAL PROPERTY RIGHTS RECLAIMING THE PUBLIC DOMAIN TOWARDS SUSTAINABILITY AND EQUITY SYNOPTIC TABLE OF CONTENTS PART I. AGROBIODIVERSITY PUBLIC DOMAIN AND ENCLOSURE: THE STRONG INTELLECTUAL PROPERTY PARADIGM 1. Balancing the public domain in intellectual property rights on living organisms or processes 2. Disproving the public domain in the strong property paradigm 3. Plant-related intellectual property rights: patents and sui generis protection PART II ACTOR ANALYSIS: INNOVATION CONTEXTS, AGROBIODIVERSITY CONSERVATION AND USE GROUPS 4. Mass selection of best performing indivuals building on informal seed exchanges 5. Science based plant breeding building on international germplasm flows and heredity 6. Molecular biology and biotechnology building on genomics introspection PART III ACTOR DIAGNOSIS: IMPACT OF ENCLOSURE ON AGROBIODIVERSITY CONSERVATION AND USE GROUPS 7. Public researchers in plant breeding, molecular biology or biotechnology 8. Conventional and molecular private plant breeders developing improved plant varieties 9. Mass selectors relying on seed exchange networks PART IV INSTITUTIONAL SHIFTS RESHAPING THE PUBLIC DOMAIN 10. Rationale for the international regulation of agricultural plant genetic resources 11. Weighing the public domain in international biodiversity conservation law PART IV ADJUSTMENTS AND SOLUTIONS TO THE PROPERTY PARADIGM BUILDING ON SOCIAL ORGANISATIONAL INNOVATION 12. Adjustments for public researchers 13. Adjustments for private plant breeders 14. Adjustments for mass selectors PART V CONCLUSIONS - DISCUSSION "It seems to me that men cannot live conveniently where all things are common: how can there be any plenty, where every man will excuse himself from labour? For as the hope of gain doth not excite him, so the confidence that he has in other men's industry may make him slothful: if people come to be pinched with want, and yet cannot dispose of anything as their own; what can follow upon this but perpetual sedition and bloodshed?" Thomas MORE, Utopia INTRODUCTION The diversity of life is primordial to all societies. Agricultural plant biodiversity is the foundation of undoubtedly the most critical human right of all, that of food, as seeds represent the paramount input for food and feed cultivation. Plant genetic diversity is in this context the foundation of all crop improvement endeavours, which not only attempt to respond to our nutritional needs but also to ever-greater biotic and abiotic stresses. The conservation, use and development of agrobiodiversity are primordial to offset the growing pressure put on land by a soaring human population and changing climate. Agriculture is definitively under growing pressure, stemming not only from soaring population growth estimates, from the shrinking availability of cultivated land, but also from changing and increasingly more difficult climatic conditions. The debate on the strategic choices and postulates of the “agriculture of the future” takes place in this context of mounting environmental and socio-economic pressure, divided in two seemingly contradictory but possibly harmonious approaches. Emphasis is on the one hand put on the necessity to increase yields or useful resistances through high-technology infused crop improvement programs relying on enriched germplasm pools1. On the other hand, focus is put on the need for multi-faceted approaches incorporating concerns over economic profitability, but also ecological suitability and social acceptability2. The latter approach takes the plea of bottom-up participatory or agro- 1 MARK TESTER and PETER LANGRIDGE, "Breeding Technologies to Increase Crop Production in a Changing World," Science 327, no. 5967, 2010., where the authors highlight the importance of new molecular breeding techniques for the future need of yield improvements, conditional however to the necessary widening of the general germplasm pool and enrichment of the improved resources pool through landraces or wild relatives. See also the International Seed Federation’s “Agriculture under Pressure” video, hinting that the solution for population and environmental pressures will come from modern crop improvement, through the hands of breeders and molecular biologists: http://www.worldseed.org/isf/agriculture_under_pressure.html (accessed July 2011). 2 See for instance Pashupati CHAUDHARY’s response to the aforementioned article by TESTER and LANDRIDGE, where the author stresses the importance of local innovation based on the selection of appropriate traits by the custodians and caretakers of agrobiodiversity: PASHUPATI CHAUDHARY, "Bottom-up and Need-Based Approach for Crop Improvement," ibid.published 27 April 2010. In a parallel stance, the 2009 multi-stakeholder expert led “International Assessment
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