Copyright Material – Provided by Taylor & Francis 11 Defensive protection of farmers’ varieties Isabel López Noriega Introduction In 2006, I was invited to participate in a seminar arranged by the Institute of Agricultural Research in Peru (INIA, Instituto Nacional de Innovación Agraria) on the creation of a national official register for landraces and traditional varie- ties of potato and maize. This register was to be an officially recognized list that would be supported by the government, where different users could enter and access information about Peruvian traditional varieties of potato and maize. The main purpose of the seminar was to discuss possible objectives of the register with a number of people involved in genetic resources conservation and use within the country, including research institutes, farmers’ associations and organizations working with indigenous communities. During the seminar, several participants argued that one of the most important objectives of the register should be to officially recognize traditional farmers as the originators of the huge biodiversity of potatoes and maize that are conserved and cultivated in Peru. Being educated in Europe and having a legal background, I quickly and nat- urally assumed that they were somehow talking about granting farmers intel- lectual property rights over their varieties. I raised my hand and asked if they were actually meaning to confer this idea and, if so, how they were planning to do it. The reaction from the audience was strong and immediate. Participants who were representing the farmers as well as the national research institute stated that neither the farmers nor the public institutions in Peru wanted to be given any monopoly rights over their traditional varieties and landraces but that they simply wanted to be recognized as the developers and conservers. As they explained to me, these varieties have to be freely available for anyone to use, just as they always have been, and no one should claim any intellectual property rights over them or benefit from the use of their genetic resources without rec- ognizing the provenance of the varieties and the efforts of traditional farmers. By documenting the existence of these varieties and their provenance, they said, the register will show that they are not new, thereby preventing enterprises in the developed world from getting patents or plant variety rights over them. In addition, thanks to the information stored in the register for each variety, these enterprises will know with whom they have to share the benefits if they make money off the use of the registered varieties. Copyright Material – Provided by Taylor & Francis Defensive protection of farmers’ varieties 213 Peruvians’ fear that their plant genetic heritage could be misappropriated is well founded. The expansion of the scope of intellectual property rights and their protection’s standardization through multilateral and bilateral interna- tional agreements have made it possible to apply for intellectual property on ideas and inventions; 20 years ago scholars would have agreed these were not eligible for intellectual property protection in countries with a long tradition of little to no recognition or enforcement of intellectual property rights. The number of patent and plant breeders’ rights (PBR) applications to get control of the exploitation of plants, plant varieties and their seeds has dramatically increased in the last decade, in particular in developed countries and emerging economies. In the middle of this intellectual property fever, some intellectual property offices have granted patents or PBRs over varieties and plants that were not new or over products and processes that are actually similar, if not identical, to indigenous or local communities’ traditional uses of plants. These cases of mis- appropriation have increased stakeholders’ awareness, in both developing and developed countries, about the importance of protecting the public nature of plant and plant uses traditionally available to anyone, such as landraces and most farmers’ varieties. As my Peruvian colleagues argued, one way of ensuring their protection is by documenting the existence of these varieties in public data- bases so that their lack of novelty makes them ineligible for patents and plant variety protection (PVP). But how should this documentation be completed in order to ensure the effective defensive protection of farmers’ varieties? Is an online register enough? What information should be published and how? What are the criteria that effectively define farmers’ varieties in defensive protection strategies? What form of publication has the best chance to be taken into con- sideration by patent and PVP offices? And have these offices enough capacity to access and use this information anyway? Since the INIA-Peru workshop in 2006, I have followed very closely the creation of the Peruvian national register of landraces and farmers’ varieties of potato and maize.1 I have tried to assess the actual capacity of the Peruvian register and other similar initiatives to protect traditional and farmers’ varieties against misappropriation and analyze possible measures to make the defensive protection of farmers’ varieties more effective. This chapter is the result of this analysis. Threats to plant varieties in the public domain In many countries, the term public domain is widely used to describe public goods such as land or water. However, the usage of this term in the intellectual property world comes from the French term domaine public, which was adopted in the language of the Berne Convention for the Protection of Literary and Artistic Work.2 In this context, the term public domain is used to describe those creative works whose use is not restricted by copyright – that is, all of the original works of art, literature, music and so on whose copyright has expired, Copyright Material – Provided by Taylor & Francis 214 Isabel López Noriega that cannot be subject to copyright law or that was created before the existence of copyright. Public domain is also utilized in the context of patents, although patent legal texts do not actually refer to the public domain per se. In the case of patents, the public domain embraces all of the inventions for which the term of patent has expired, those that have been disclosed without patenting them and those that are not eligible for patentability according to the law. Since pro- prietary rights are founded in national laws, the extension and the boundaries of the public domain differ among countries. An invention can be patented in one country and at the same time be in the public domain of another country. Similarly, in the context of PVP or PBR, the public domain is constituted nega- tively, without explicit mention in international agreements or national laws, by varieties (and populations) that have not been protected through breeders’ rights or whose protection has expired. The public domain has traditionally been defined in a negative manner, as whatever is not subject, and cannot be subject, to intellectual property rights. However, in recent years, a number of scholars have started to pay attention to the affirmative elements of the public domain with the idea of recognizing its own entity and conferring its own protection.3 This recent attention to the public domain responds to the increased concern about the extension of prop- erty rights over creations, ideas and facts that were not eligible for intellectual property protection a few years ago. In the field of plant genetic resources, the public domain’s usual territories are being threatened not only by recent trends to extend patentability to ele- ments that were not considered patentable before but also by the serious failures of the current intellectual property system. Let us briefly analyze these two factors. Trends to extend patentability on life forms Several decisions in the patent offices of the United States and Europe have paved the road towards the patentability of life forms, including plant varieties. Since these countries deal with the majority of patents and PVP in the world, it is worth analyzing with some detail their current patent legislation and its interpretation in the field of life forms. In 1979, the US Court of Customs and Patent Appeals clarified that living organisms modified by human intervention fall under the definition of ‘manufacture’ or ‘composition of matter’ accord- ing to section 101 in Title 35 of the US Code on Utility Patents.4 One year later, in the famous case of Diamond v. Chakrabarty, the same court ruled that claims were not outside the scope of patentable inventions merely because they dealt with live organisms and stated that a live, human-made microorganism is patentable subject matter.5 Any remaining issues about the possibility of pat- enting plants and seeds in the United States were clarified in the case Ex parte Hibberd, where the Board for Patent Appeals and Interferences admitted a pat- ent application on maize plant tissues and seeds and stated that patents could be granted on plant inventions despite the fact that they could also be protected by Copyright Material – Provided by Taylor & Francis Defensive protection of farmers’ varieties 215 the sui generis system under the International Convention for the Protection of New Varieties of Plants (UPOV Convention), which was implemented in the United States through the Plant Variety Protection Act.6 In 1990, the Examining Division of the European Patent Office (EPO)