“The Nagoya Protocol seems to be turning into some eternal patent; people seem to think they’re entitled to payments for the use of a genetic source for an infinite time. This is completely against the breeders’ exemption, which gives breeders the freedom to work with all plant materials as long as the new product is sufficiently different from the original product.” This was the message that Anke van den Hurk, deputy director of Plantum, communicated on the 14th of May to politicians who were invited to a greenhouse that had been put up right outside their offices in The Hague, in the context of Fascination of Plants Day 2017.
In 1992, global agreements were made with regards to the conservation and sustainable use of biodiversity. In order to make sure that payments would take place, the concept of benefit-sharing was launched. In 2010, this was further developed into the Nagoya Protocol. The idea is, that if you want to use a natural resource of a certain country, you have to apply for permission to do so, and agree on payment. This could consist of a fee or a payment in kind.
“It all sounds wonderful and logical. Biodiversity is maintained. Biodiversity is used in a sustainable way. And payment is agreed on. But sometimes, good intentions lead to unwanted outcomes. “The Nagoya Protocol doesn’t just have a negative impact on the user, but also on biodiversity itself”, according to Van den Hurk.
She feels that the agreement isn’t just applied to natural resources, original plants in the wild, but to anything that lives. “In our opinion, these agreements weren’t made to maintain commercial varieties and therefore, those varieties shouldn’t be subject to the Protocol. Furthermore, some people think it should be possible to claim payments retroactively. But that’s against international conventions and causes great legal uncertainty. There are also people who think that if living material of a third country is developed in their country, it becomes theirs. What about the previous owner? Who owns what exactly?”
Because of these looming eternal patents, people refrain from developing new biodiversity, simply because the legal route is so complicated and uncertain. “This is definitely true for SMEs. They just keep working with whatever they’ve got. And if they try to get access to something new, this usually results in long and unsuccesful negotiation processes. As a result, we’re not using the existing biodiversity, which increases the chance that it will diminish. In addition, the diversity of varieties on the market won’t grow. Both these things are highly undesirable. Finally, the Nagoya Protocol causes lots of extra administration and legal uncertainty, leaving companies with less time and money for innovation”, said Van den Hurk.
