The CGIAR is an international network of 15 research centers committed to global food security through reducing poverty, enhancing food and nutrition security, and improving natural resources. It is the world’s largest international agricultural research-for-development network with a presence in over 70 countries.
The target populations of the CGIAR are often those unable to access resources or adequate nutrition. To support these groups effectively, the CGIAR maintains a principle of global accessibility; that is, research results and products are to be freely and broadly disseminated. This paper illustrates how intellectual property rights (IPRs), which are exclusive rights by design are used as a tool by the CGIAR to achieve its public goods aims.
A recurring theme in the discourse on intellectual property and agriculture is that the introduction of IPRs into agriculture threatens food security due to the commodification of resources that ought to be public goods. CGIAR centers are central to this debate for three core reasons.
First, the CGIAR plays a crucial role in international agricultural research and food security research. About 94 per cent of the germplasm distributed under the framework of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) are conserved by CGIAR Centers. The 11 CGIAR genebanks under the CGIAR Genebank Platform conserve more than 773,112 accessions of crop collections and form the world’s largest network of genebanks. These collections are important for maintaining diversity and combatting food insecurity. Second, the CGIAR’s core approach to intellectual property is that its research results are international public goods. Third, despite its goal of ensuring global access, IPRs remain relevant to the work of the CGIAR due to increased collaboration with the private sector and the use of proprietary technology when conducting research.
When research results are obtained, the private sector is often in a better position to take the products (for example, improved varieties) to the intended beneficiaries in the normal course of business. Without the private sector partners, this sort of scaling and dissemination would be a massive undertaking for the research institutions (for which additional funding would be required). CGIAR centers have consequently developed systems for private sector partnership. For instance, the International Institute of Tropical Agriculture (IITA) created its Partnerships for Delivery Directorate, Youth in Agribusiness office, and Business Incubation Platform to attain impact at scale for results obtained from research. These initiatives involve working with the private sector on testing, manufacturing, distribution and taking technologies to the market. Centers also navigate intellectual property issues when using technology owned by third parties in their research. The International Potato Center (CIP) for example, in the course of developing potato varieties resistant to late blight, used an RB gene which it received under a research license from the Wisconsin Alumni Research Foundation.
Tension arises in research partnerships with the private sector due to the differing aims of the CGIAR and private sector companies. The companies, on the one hand, expect a return on investment as they engage in business with a profit motive. IPRs such as patents and plant breeders’ rights enable these companies to control and protect the products of their investment and in some cases, serve as an incentive to invest in such research. The CGIAR, on the other hand, seeks to ensure that the products of its research remain accessible to the intended beneficiaries. IPRs potentially limit the accessibility of a product and increase the cost to the end-user. For instance, seed patents have been criticized for violating the right to food as they prevent farmers from engaging in traditional farming practices such as storing and exchanging seed and instead create a reliance on repeated purchase of seed.
Considering the above, how can exclusive property rights be compatible with achieving public goods aims such as global accessibility of research products? The approach of the CGIAR is set out in the CGIAR Principles on the Management of Intellectual Assets 2012 (CGIAR IA Principles). Under the CGIAR IA Principles, centers are to manage intellectual assets in a manner that achieves maximum global accessibility and/or the broadest possible impact on target beneficiaries. All research results are considered as international public goods and are to be disseminated promptly and broadly.
Though global accessibility may connote unrestricted and free dissemination, achieving impact may, in some cases, require restrictions and exclusive rights. The CGIAR IA Principles recognize this and prescribe the circumstances such exclusivity can be pursued and how. These arrangements are categorized into Limited Exclusivity Agreements, Restricted Use Agreements and IPRs.
Limited Exclusivity Agreements: a CGIAR center is permitted to grant a third party an exclusive right to commercialize an intellectual asset produced by the center where such exclusivity is required to improve the intellectual asset or enhance its impact. However, such exclusivity must be limited in certain specified ways, and the intellectual assets must remain available in all countries for non-commercial research by the public sector in furtherance of the CGIAR vision and in the event of a national or regional food security emergency (known as research and emergency exemptions). Approval may be granted to deviate from these exemptions under a strict procedure.
Restricted Use Agreements: here, third party intellectual assets are incorporated into the centers’ work, they may restrict access to the resulting products or services. Such arrangements can only be made on the basis that equivalent technology could not be obtained under less restrictive conditions; the resulting products or services will further the CGIAR vision in the territories where they are available; and such third party intellectual assets will only be incorporated into the intended products/services.
Intellectual Property Rights: centers may apply for IPRs or permit third parties to apply for IPRs over their intellectual assets only where it is necessary to improve these assets or to enhance scale or impact to further the CGIAR vision. IPRs must be managed in accordance with the CGIAR IA principles.
Compliance with this system is monitored through annual reports from the centers to the CGIAR System Organization. A joint CGIAR IA Report is also submitted to the CGIAR System Council which is a body that includes representatives of the CGIAR’s funders and developing countries. The CGIAR IA Report is made available to the public. Transparency is only limited to the extent necessary to protect the confidential information of private sector partners. Centers are also required to make public disclosures (e.g. through press releases or on their websites) on any arrangements that limit global accessibility. Legal/IP professionals within the CGIAR System act as IP focal points and are guided through a network which provides resources and training – this system is required in the CGIAR IA Principles.
In implementing the CGIAR IA Principles, centers must apply the related rules and exceptions bearing in mind the overriding CGIAR vision. For instance, the general rule of prompt dissemination of research results may be subject to confidentiality of an invention for a limited period to allow a patent to be filed. IPRs may also be used defensively when centers act to prevent IP claims over their intellectual assets by third parties. This may be through prompt publication of research results; or provision of information related to prior disclosure/use to IP offices. Guidance is provided in the Implementation Guidelines on the CGIAR Principles on the Management of Intellectual Assets 2013 (the IA Implementation Guidelines).
The three case studies set out below reveal different ways in which CGIAR centers have used IPRs in achieving their goals in line with the CGIAR IA Principles.
Trademarks and exclusive licenses
IITA has applied for and/or obtained trademarks in several African countries including Nigeria and Tanzania for Aflasafe, a revolutionary biocontrol product that reduces the prevalence of aflatoxins in maize and groundnut. The purpose is to restrict the use of the name to only the product developed by IITA, which is crucial both for reputational reasons and commercialization efforts. IITA has signed agreements with various private sector partners for commercialization and distribution of Aflasafe. Some of these are Limited Exclusivity Agreements which provide the investors with limited protection so that they can undertake the venture. Dr Kenton Dashiell, IITA’s Deputy Director-General, Partnerships for Delivery explained the need for such partnerships stating “In the fight against aflatoxin in food, the private sector is extremely crucial in ensuring our market-ready product is available and accessible, thus reaching the farmers and markets we need it to reach”.
Patents
Patents are used in a variety of ways by CGIAR centers to meet their goals. The CGIAR IP Report of 2018 documents some of the reasons given by centers for filing patents. These include preventing ‘free-riding’ by organizations in developed countries that can pay for these technologies (and then using the revenue for further development); and creating incentives for partners to invest in the further development of the technology to make it available to farmers, households and other target beneficiaries.
The IA Implementation Guidelines also demonstrate how a center can use a patent differently in developing and developed countries. In a developing country, the patent gives the center the leverage to grant exclusive licenses to partners who can commercialize the product. Whereas in developed countries, the patent on the same product would be useful to ensure that competitors do not undermine the center’s exclusive market position.
The first approach was used by CIP when it applied for a patent in Peru in 2017 for a nutritious food product (flour) made from orange-fleshed sweet potato and yam bean. The flour is expected to reduce the incidence of anaemia in children in families susceptible to malnutrition. The patent was deemed necessary to enhance the scope or impact of the product by attracting third-party investors who can produce and market it.
Third Party IPRs over CGIAR Intellectual Assets
Aside from taking IPRs over their intellectual assets, CGIAR centers may permit third parties to take IPRs over their research results. In 2013 IITA commenced a collaboration with Pioneer Overseas Corporation where it granted Pioneer an exclusive license to evaluate the commercial viability of (and commercialize) two striga-tolerant MSM resistant corn/maize hybrids. The license agreement permitted Pioneer to submit applications for breeders’ rights and similar rights in the covered territories to maximize their market opportunities in these regions (although no such applications have been made to date). The collaboration was conceived to enhance the impact of the maize hybrids by taking them to the market in affected regions, especially in the Striga infested areas of Northern Nigeria and the districts of Ghana. The exclusive rights and ability to potentially take IPRs were deemed necessary so that Pioneer could cover its costs for producing and making the hybrids available to the target beneficiaries in those countries. In line with the provisions of the CGIAR IA Principles on Limited Exclusivity Agreements, the license was limited in time and to certain territories, while the products remain available under the research and emergency exemptions.
The implementation of the CGIAR’s policy on IP involves a delicate balance and the evaluation of potential collaborations on a case by case basis. In practice this requires careful negotiation of agreements; legal expertise at the center level and interaction between center IP focal persons and the System Organization. This balancing act was recognized early in the 2006 CGIAR Research Strategies for IPG in a Context of IPR Report and Recommendations which stated that “balance needs to be struck between, on the one hand, promoting the awareness that IP could be utilised as an opportunity, while, on the other, preventing abuses and distortions of the IP system as applied to genetic resources in IPG research in agriculture.”
There are still questions on how well IPRs can promote food security and similar social needs but the approach of the CGIAR is surely a recognition that IPRs do not necessarily exclude public goods aims.
*Precious Adebanjo is a Legal Officer at the International Institute of Tropical Agriculture. This paper reflects her perspectives.
