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A genetic resource is a good that is at the same time material and immaterial : it is the combination of is usually known as "genetic information" and of the physical sample in which this information is encompassed (plant in the form of seed, whole plant or parts of it ; living animal, semen ; microbial culture or medium). It can be the result of human innovation and/or adaptation to environmental constraints. It is subject to a large number of human activities, and, as such, to diverse fields of law.
| LEGAL STATUS OF GENETIC RESOURCES |
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In French law, genetic resources don't have a legal status as such. National and international texts provide rules for the protection, the conservation and the inventory of the "biological heritage" or of "diversity" as a whole. Article L.110-1 of the Environment Code so states that "natural spaces, resources and biotopes, locations and landscapes, air quality, animal and plant species, the biological diversity and balances to which they contribute are part of the national heritage. Their protection, their development, their restoring, their repairing and their management are of common interest and contribute to the objective of sustainable development."
When a genetic resource is the outcome of a human innovation process, it may be protected, during a limited period of time, by intellectual property rights (UPOV plant breeders' rights for plant varieties, patents for micro-organisms). To the contrary, a notoriously known genetic resources (through catalogues or inventories, or because it once was subjected to an intellectual property right) cannot be any more covered by intellectual property rights. However, the law doesn't state whether it is subject to private property or to public property (of the State or of a local community). The same legal uncertainty is still attached to the genetic resources that are neither the result of an invention, nor notoriously known, such as the ones that could be discovered on the French territory by prospection.
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| THE LEGAL "LAYER CAKE" |
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Genetic resources are at the crossroad of several fields of law, and their conservation and utilisation are indirectly covered by many rules primarily aimed towards their physical component (the animal, the plant or the micro-organism) :
• Protection of individual rights : property rights (material and intellectual), social and political rights (participation in the decision-making concerning genetic resources, for example) ;
• Environmental protection : legislations regulating the protection of areas or of species likely to be collected ; sanitary regulations (for the introduction of plants, animals or micro-organisms on the national territory) or regulations on genetically modified organisms ;
• Consumer protection : regulations on experiments and the launch to market of medicines, seeds or food items specifically identified by the law ;
• Workers' protection : regarding the use of certain organisms (notably micro-organisms, pathogens or those identified by law as requiring specific use and transport rules).
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French biodiversity web site |
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