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ureaucracy would be created to handle these aspects.
W. E. SIEBECK
Another problem with such proposals is that in most cases it is not clear what shall be protected.
For an intellectual property right the subject-matter to be protected and the scope of such
protection have to be known (and in the case of a patent to be disclosed). Information to be
protected as farmers' rights would be unspecific, and often be expected to cover unknown traits.
While again it would not be inconceivable to design such a right, the defense of such right would
seem extremely difficult. Unfortunately, the protracted debates in FAO about farmers' rights as an
intellectual property right distracted attention from the need to translate a valid equity based
concept into an operative formula. There seem basically three options available for doing this:
The first option would be a commercial one. It would take its cue from the mentioned Costa Rica
arrangement with Merck & Co and would require countries that want to supply their germplasm
to put a marketing infrastructure in place. They would collect, screen, characterize and catalogue
their material and store it in a genebank. Few developing countries have so far attempted to do
so in a systematic fashion.
A second option would be to allow the continued exchange of germplasm, including collection in
countries of origin (and later releases of such material to users from genebanks) if it is understood
that any revenues will have to be shared with the country of origin. This is basically the philosophy
underlying the Biodiversity Convention. The concern is that with all the safeguards and conditions
the Convention prescribes for transfer arrangements, the country of origin will be left to its own
devices to fend for its claims, and may often not have the wherewithal (for lack of information and
funds) to do so.
The third option is the one discussed in FAO: a fund to be fed from contributions from the
industrial countries, either from an ear-marked tax (e.g. on seed sales), or additional aid payments.
The current mood in developed countries would not seem to support either proposal. One should
also doubt whether a mechanism (such as a steering committee) to oversee the allocation of the
proceeds from such a fund would be able to channel them to those who have done most for the
conservation of biodiversity. More likely, such decisions will be made on political grounds, and
funds would reward the wrong recipients.
The preferred solution should try to combine options one and two: it would encourage countries
to market their germplasm on their own terms, while facilitating benefit-sharing for all others.
7 Final Remarks
The Convention provides a framework for international collaboration in the conservation of
biological diversity. Protocols remain to be negotiated between countries on access to genetic
resources and technology transfer. Its success will depend on the spirit and attitude with which
countries pursue its implementation. If this takes place in an adversarial spirit, the consequences,