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Genetic resources are not commodities. Unlike a tonnage of grain or fish, or a volume of plant extract, such as latex, genetic resources may not be sold, for two reasons at least.
First, the supplier is rarely the sole holder of the genetic resource, unless the latter has been created by the suppliers and is, as such, covered by a patent or a plant breeder's right. Second, genetic resources continue to subsist in their initial form somewhere on earth after the recipient has used them to create a new plant variety or to identify an active principle.
Thus, the exchange of genetic resources cannot proceed as a transfer of property in exchange for payment. As such, genetic resources exchanges are regulated by obligations derived from the specific nature of genetic resources.
Three cases can happen : exchanges within the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture ; exchanges under the Convention on Biological Diversity (CBD) for genetic resources and uses not covered by the Multilateral System ; negotiations with the nationals of Non-Party States to the CBD.
In all cases, it is strongly advised that both partners maintain documentary evidence of all communication exchanges that accompany the collection or dispatch of the genetic resource. In all cases, a Material Transfer Agreement (MTA) guarantees the interests of the partners involved and ensures that no biopiracy took place. In addition, both partners are required to respect any additional obligations dictated by law, such as sanitary obligations, or linked to the specific nature of the biological material exchanged (pathogenicity, GMO, etc.).
| 1st CASE : THE SPECIFIC CASE OF THE MULTILATERAL SYSTEM OF ACCESS AND BENEFIT-SHARING |
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The genetic resource in question
• is covered by the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture (meaning that it belongs to a species listed in Annex 1 of the Treaty, is in the public domain and is managed by a State party to the Treaty, or is voluntarily provided by a national of a State Party to the Treaty),
• and will be utilised for conservation, research, breeding or training for food and agriculture,
• and is under the sovereignty of a State Party to the International Treaty.
Then, in this first case, the exchange takes place automatically (without negotiation or priori consent) according to the terms and conditions of the Standard Material Transfer Agreement (MTA) provided for in the International Treaty. However, the sharing of monetary benefits is mandatory in situations where a genetic resource is used to produce a product (itself a genetic resource), available in a restrictive manner for research and breeding purposes.
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| 2nd CASE : THE GENERAL FRAMEWORK OF THE CONVENTION ON BIOLOGICAL DIVERSITY |
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The genetic resource in question
• is not covered by the Multilateral System of the International Treaty,
• or will be used for something other than research, breeding or training for food and agriculture, such as for chemical, pharmaceutical, non-food and non-forage industries,
• and is found within a State Party to the CBD.
Then, in this second case, the basic obligations of the CBD apply, i.e. prior informed consent and benefit-sharing. Their practical implementation varies from one national legislation to another, but these can be circulated by National Focal Points on access and benefit-sharing. Regardless of the legislative and administrative situation of the country in question, the exchange ultimately takes the form of a Material Transfer Agreement (MTA) negotiated case-by-case. This agreement can lean on specific Codes of Conduct (e.g. IPEN Code of Conduct for the European Botanical gardens) or on the Bonn Guidelines on access and benefit-sharing.
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| 3rd CASE : EXCHANGES WITH A PARTNER IN A STATE NON-PARTY TO THE CDB |
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The genetic resource in question
• is not covered by the Multilateral System of the International Treaty,
• or will be utilised for something other than research, breeding or training for food and agriculture, such as for chemical, pharmaceutical, non-food and non-forage industries,
• and is found within a State that is not Party to the CBD.
In this third case, the only obligation required is abidance to the national laws of the countries concerned . In practice, it is to the advantage of both partners to negotiate a MTA guaranteeing their good faith and compliance with their respective interests and obligations.
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