Breeding program management



Intellectual Property Rights and Germplasm Exchange: the new rules



  • To discuss changing concepts and developing international agreements regarding intellectual property and germplasm exchange.

  • To explain the principles of germplasm exchange with IRRI, including an outline of IRRI policy and its use of Material Transfer Agreements.

  • To describe in a practical way how to exchange germplasm with IRRI.






Breeding improved varieties relies on access to suitable parental germplasm. However, gaining access to suitable parental germplasm is becoming increasingly politicized and legally controlled, subject to developing international agreements as well as to national legislation.


  • How do we determine whether we have the right to use a particular line? In legal jargon, do we have the necessary “Freedom to operate” (FTO)?

  • Who owns the germplasm?

  • How do we respect the rights of the owner?

  • What are those rights?

  • What are we allowed to do with it?

  • Can we donate it to others?

  • Can we use it for breeding and research?

  • Can we sell it to others? Can we claim it as ours?

  • Can we protect it from others? How do we ensure that we do only what we are allowed?

  • How do we assure others that we do only what we are allowed?


These questions are difficult issues. Resolution of the issues is a matter of policy and human rights more than of science. Yet we must understand the issues and comply with the associated policy and law, so that we can achieve our objective of poverty alleviation without contravening human rights.






Changing concepts and international agreements


Modern practice in all commercial areas (buying and selling some kind of property – a DVD, for example) is based on separating TANGIBLE PROPERTY from INTELLECTUAL PROPERTY. The tangible property is the physical thing that we can touch: the DVD itself. The intellectual property is the knowledge and know-how required develop and find out how to produce and market a product – in our example, that could be everything involved in producing a film on the DVD.


This separation of tangible and physical property is necessary to support the heavy investment that modern industries make in producing an affordable product. A film company might invest US$100million in developing a film, and release it on a DVD worth US$1. The company somehow needs to recoup its US$100million investment, by selling the DVDs at a price that reflects its investment in making the film on top of the physical cost of the DVD. Yet if anyone else copies that DVD for commercial sale without having invested in making the film, they could obviously easily outcompete the original company.


The solution in trading almost any product is to sell the tangible property but not the associated IP. If you buy a DVD, it is illegal to make and sell a copy. If you buy a packet of rice in the supermarket, you buy the rice for the purpose it is sold – i.e. to cook a meal; but you do not buy the right to use the logo on the packaging. In many countries, when a farmer buys a sack of seeds from a seed company, those seeds can be used to produce and sell a crop but cannot be retained for further breeding.


The separation of tangible and intellectual property is a major change from traditional practices. Traditionally, there was no distinction between the tangible and intellectual property components of a product that was bought, bartered or exchanged. The owner of the product was allowed to do anything with it.


Modern concept of ownership: separation of tangible and intellectual property



Use of plant genetic resources has lagged behind the rest of the industry. Until recently, when plant breeders obtained a sample of crop germplasm, they expected to be free to do anything they like with it. Doubts about the acceptability of this doing started to develop during the 1970’s and 1980’s. There was a transition period when the plant breeding sector apparently expected to be able to protect the IP on its improved varieties while having free access to farmers’ germplasm.


Doubts culminated in the ground-breaking CONVENTION ON BIOLOGICAL DIVERSITY (CBD) in 1993. This was a key moment in history, redefining internationally accepted concepts relating to the conservation and exploitation of biodiversity. The CBD is now almost universally accepted: 193 sovereign nations are Party to the CBD, leaving only 4 exceptions: USA, Vatican, Andorra, and South Sudan.



Parties to ITPGRFA and CBD


The CBD has 3 key components:

  1. Each nation has sovereignty over its own biodiversity

  2. Each nation has a right to an equitable share of benefits arising from exploitation

  3. Each nation has associated responsibility to conserve its biodiversity


Although the CBD encouraged germplasm exchange, at the same time it raised the required level of negotiation and authorization from the individual scientist to the government. This had a very negative effect on germplasm exchange.


The INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES FOR FOOD AND AGRICULTURE (ITPGRFA) was negotiated as a direct response to the CBD, to facilitate access to crop genetic resources in harmony with the CBD through an efficient mutually agreed multilateral system of access and benefit sharing.


The ITPGRFA has 2 key components:

  1. Each Party should facilitate international germplasm exchange with other Parties, for a specified list of crops that are important for food security and for which countries are highly interdependent.

  2. It provides a system to enforce the equitable sharing of benefits, both financial and otherwise, through a central fund providing for obligatory payment to the country of origin.


Thus the Treaty directly addresses concerns that lead to current problems.



The benefits of exchange: A country gains much more than it contributes.






Click here to see a detailed slide show on the procedure of germplasm exchange with IRRI.



Let's conclude




  1. Breeders now have to be exceptionally careful to ensure they have the right to use germplasm in their breeding programmes, and to ensure that they use the material legally.

  2. All international germplasm exchanges, with the exception of restoring germplasm to the country of origin, must now be accompanied by a Material Transfer Agreement (MTA) appropriate to the germplasm.

  3. We identify three basic classes of germplasm requiring different procedures for germplasm exchange:

    1. Germplasm governed by the Multilateral System (MLS) of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), exchanged using a standard MTA developed especially for the MLS;

    2. Germplasm governed by the Convention on Biological Diversity, exchanged using a non-standard MTA that must be negotiated each time between the governments of the donor and the recipient

    3. Germplasm over which the breeder or farmer holds Intellectual Property Rights of a form that give the breeder or farmer authority to determine the conditions of exchange without involvement of governmental officials.

  4. Germplasm exchange should follow the plant quarantine rules and regulations of importing and exporting countries.





IRRI and rice genetic resources:


Next lesson


Up next is a quiz to check your understanding of module 3.