Germplasm and the Commons: From Global to the Field- Draft Version October 2016 Krishna Ravi Srinivas PhD Introduction : Plant Genetic Resourcesi (PGR) are inseparable part of agricultural biodiversity. Crop improvement is not possible without access to PGR and transformation of PGR into usable germplasm through human intervention is a continuous process. Crop improvement is a cumulative process and the PGR found in nature are modified by humans into germplasm which can be used for further improvement and/ or, for cultivation. Germplasm ‘refers to the sum total of all hereditary material in a plant, as coded in its DNA. For a crop, it reflects the compounding nature of sequential improvements carried out by breeders over a long period of time, all of which, of course, is encapsulated in the seed Moschini (2010: 5). Another definition of germplasm is “Germplasm: the genetic diversity (gene pool) of a certain species when used as the source of genes in a breeding program.(Bjonstrand 2016). According to Roa-Rodriguez and van Dooren PGR can be understood as having two components- tangible and intangible with material seeds being the tangible component and the inscribed genetic code as the intangible component (Roa-Rodriguez and van Dooren 2008). But PGR can be conceptualized purely as a material entity , i.e. the seed that is also a product and source for cultivation of plants. In such cases it can be a common pool resource, part of genetic resource commons and also be appropriated using intellectual property rights and other means including the rights of the sovereign nations over such resources. But thanks to developments in science and technology, the informational component in the seed can be separated from the material entity and this provides opportunities for claiming exclusive rights through intellectual property but the informational component can also be part of knowledge/information commons. These are equally true for germplasm. In this article I discuss the developments in the governance of germplasm, in the last four decades and suggest a commons approach as an alternative mode/model for governing germplasm at different levels. The objective of using a common approach is to develop a narrative that challenges the claims that intellectual property protection through patents and Plant Breeders’ Rights are the most means to incentivize innovation in plant variety development and to propose an alternative mechanism that blends public interest in plant breeding with the rights of farmers, indigenous communities through development of commons and providing access to such commons by regulating it through different mechanisms. Shifts in Regulation of PGRs : From Common Heritage of (Hu)Mankind to Common Concern and Appropriation Through Intellectual Property ”The greatest service which can be rendered to any country is to add a useful plant to its culture.” Thomas Jefferson Since time immemorial there has been exchange and spread of plant varieties, novel/exotic plants, crops and other material used for breeding, including multiplication and all this was done without much thinking on ownership rights or exclusive claims on germplasm and plant breeding material. .ii But this exchange and transfer was not necessarily on equal terms or was based solely on altruism and the spirit of sharing. Rather these exchanges and transfer of materials were often part of colonial expansion and the quest for resources. The colonial expansion and emergence of empires resulted in founding of botanical gardens and the gardens were also used for classifying the botanical materials and their transfer. But the rediscovery of Mendel’s law in the early twentieth century transformed plant breeding and breeders could develop better varieties from materials available to them. For breeders accessing germplasm collections was made possible without many restrictions and this relatively open access system worked well as it gave them the freedom to use genetic material for varietal development without any obligation to share the results or benefits. (Byerlee and Dubin 2010). But systematic approach to germplasm conservation and exchange had to wait till 1948, when FAO decided to set up a global clearing house for cataloging and sharing of resources for plant breeding programs. Through Plant Introduction Stations at different parts of the world samples were delivered by FAO. Thus by the early 1960s thanks to developments in science and the improved capacity to use the genetic diversity among PGR for breeding, the demand for access and materials increased. Realizing the need to avoid erosion and loss of genetic diversity, FAO convened the First Technical Conference on plant genetic resources in 1967 and conservation on the global scale emerged as a key concern (Fowler and Mooney 1990). The advent of Green Revolution resulted in the establishment of centers for agricultural research devoted to different crops or to meet the needs of different regions and in 1971, the Consultative Group on International Agricultural Research was formed with representatives from private foundations, governments and World Bank as members and the International Agricultural Research Centers (IARC) such as International Rice Research Institute (IRRI) were brought under CGIAR. CGIAR functioned as an independent group, outside the UN system and the IARC were not part of the FAO. Over the years, IARC had developed an impressive collection of germplasm, rich in diversity and through them ex-situ conservation got a boost. The centers under CGIAR exchanged and shared germplasm freely and collaborated with different universities and research centers in varietal development, testing and dissemination. The varieties released under the Green Revolution were available for multiplication, sharing and further improvement without any limitations or conditions for use. The sharing of varieties and germplasm resulted in wider and quicker dissemination of varieties developed by IARC and by other entities in public sector. The private sector also relied on the germplasm collection of public sector institutions for its breeding programs. All this was done without any part claiming or asserting exclusive rights over PGR including germplasm. Thus within two decades of launch of Green Revolution , a global pool of plant genetic resources conserved in different centers and repositories emerged. This pool included ex-situ collections with centers under CGIAR, agricultural research institutions, national level germplasm conservation centers and collections under agencies devoted to agricultural research and education. The exchange and use of materials available under this pool was based on the Common Heritage of Mankind (CHM) Approach. This approach was grounded in the notion that plant genetic resources constitute a commons that should be accessible to all with very few or no restrictions on collection, exchange, use and classification. Plant genetic resources were considered a global resource not subject to restrictions under national sovereignty but in reality national sovereignty was not a major barrier for collecting, sharing and using them . This enabled CGIAR centers and the FAO to freely collect, exchange, store and share matierials with many stakeholders including plant breeders, researchers and private sector breeders. Under FAO, an International Board on Plant Genetic Resources was set up. Calls for developing a global legal convention on PGR were made the 1981 biennial conference of FAO and there was a divide between developed nations(North) and developing nations(South) divide on this with North opposing such a convention. The idea of treating PGR as CHM was similar to treating a resource as it was in public domain, free for access and free to access and use. According to Bush “Common heritage refers to the treatment of genetic resources as belonging to the public domain and not owned or otherwise monopolized by a single group or interest. Common heritage is similar to common property regimes that anthropologists and other social scientists have described for nonmarket economies. Neither common heritage nor common property implies lack of rules (res nullius) …. Rather they imply community management (res communes) that involves regulated access to common resources and reciprocity among them.” (Brush (2004: 221-22) The Commission on Plant Genetic Resources for Food and Agriculture (CPGR) was established by FAO in 1983. The CPGR adopted the International Undertaking on Plant Genetic Resources (IUPGR) which was a non-binding Undertaking which dealt with rules and standards for conservation and exchange of plant genetic resources. It was based on the premise that PGR were the ‘Common Heritage of Mankind’. But the coverage and definition of PGR under the Undertaking became a contentious issue. According to the Undertaking, PGR included plant varieties and elite breeding lines, and, traditional landraces, wild plants and commercial plant varieties protected by Plant Breeders’ Rights were considered as similar and were to be exchanged, shared and used under the CHM principle. It treated ‘products of nature’ such as traditional landraces and varieties protected under Plant Breeders’ Rights as the same under the category of PGR. But USA and some European governments questioned such a treatment and argued that this was contradictory to UPOV Convention and national intellectual property (IP) regimes which recognized exclusive rights over plant varieties including the right to exclude and right to commercialize