RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/130/Add.2
12 April 1999
(99-1438)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal: English
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
Information from Intergovernmental Organizations
Addendum
FAO
As agreed by the Council, at its meeting of 1 and 2 December 1998, the Secretariat has
contacted the FAO, the Secretariat of the Convention on Biological Diversity and UPOV, to requestfactual information on their activities of relevance.
The present document reproduces the information that the Secretariat has received from the
Food and Agriculture Organization (FAO).
_______________
FAO WORK RELATED TO THE IMPLEMENTATION OF ARTICLE 27.3(b)
OF THE TRIPS AGREEMENT 
1
FAO's technical expertise relevant to the TRIPS Agreement relates to intellectual property
rights over plant varieties, animal breeds, related technologies and germplasm.
FAO's observer status on the TRIPS Council of WTO reflects the importance of its role in
helping member countries meet their obligations under the Agreement.
FAO Commission on Genetic Resources for Food and Agriculture
The FAO Commission on Genetic Resources for Food and Agriculture (CGRFA) is the only
permanent United Nations inter-governmental forum de aling specifically with matters related to the
conservation and utilization of genetic resources for food and agriculture, and related technologies. Itwas established in 1983, as the Commission on Plant Genetic Resources. The 1995 FAO Conference
broadened the Commission's mandate to cover all components of genetic resources of interest to food
and agriculture.
In 1997, the Commission established working groups on plant genetic resources and on farm
animal genetic resources. The working group on farm animal genetic resources was given the task of
furthering the development of the Global Strategy for the Management of Farm Animal Genetic
Resources, covering both technical and policy aspects of the conservation and sustainable use of farm
                                                     
1 The submission received from the FAO also contained updated information on FAO's technical
cooperation activities relevant to the implementation of the TRIPS Agreement.  This information is circulated in
document IP/C/W/108/Add.6.IP/C/W/130/Add.2
Page 2
animal genetic resources, which will include aspects of the regulation of access and exchange,
intellectual property rights, and trade. The working group on plant genetic resources was to examine
the implementation of the Global Plan of Action (described below) and related follow-up activities.
The CGRFA has a specific interest in the implementation of Article 27.3(b) of the TRIPS
Agreement. The obligation of WTO's developing country members to adopt protection to plant
varieties, either by patents, or by an effective sui generis  system, or by any combination thereof, has
important implications for the development of their agricultural economies and trade. The process of
review of the said article has generated both interest and concern about action to be taken, and many
countries are seeking technical advice and assistance.
The Commission monitors the implementation of the International Undertaking on Plant
Genetic Resources , the first international instrument governing the conservation and sustainable
utilization of agricultural biodiversity, adopted by an FAO Conference Resolution in 1983. Currently,
158 countries and the European Community are members of the CGRFA and 113 countries have
adhered to the International Undertaking.
Through the CGRFA, FAO members have been involved in negotiations concerning plant
genetic resources for food and agriculture, and related technologies, particularly in the context of the
refinement of the International Undertaking on Plant Genetic Resources, through a series of agreed
interpretations, and complementary resolutions. In particular, FAO Conference Resolution 5/89,
unanimously adopted, recognized Farmers' Rights as the "rights arising from the past, present andfuture contributions of farmers in conserving, improving and making available plant genetic
resources, particularly those in the centres of diversity/origin".
The agreed interpretations are now part of the International Undertaking and seek to develop
and maintain a balance between access to the ne w, commercial products of biotechnology on the one
hand, and farmers’ varieties and wild material on the other, as well as the interests of developed and
developing countries, by balancing the rights of  breeders (formal innovators) and farmers (informal
innovators). It was endorsed in these resolutions, inter alia , that “Farmers’ Rights” are to be
implemented through an international fund for plant genetic resources; and  that breeders’ lines and
farmers’ breeding material should only be available at the discretion of their developers during the
period of development.
UNCED's Agenda 21, under Chapter 14, subsequently requested the realization of Farmers'
Rights. Intergovernmental negotiations are curren tly underway in the CGRFA for the revision of the
International Undertaking on Plant Genetic Resources (Conference Resolution 7/93), covering inter
alia access to plant genetic resources for food and agriculture, and related technologies; the realization
of Farmers' Rights; the integration of the three interpretative annexes into the Undertaking and its
bringing into harmony with the Conv ention on Biological Diversity (CBD).
During these negotiations, countries are discussing possible systems of intellectual property
rights (IPRs), including patenting and "effective sui generis  systems", that would be in line with, and
fully compatible with, the provisions of the TRIPS Agreement and with the Convention on BiologicalDiversity. A further issue is how to ensure that technologies developed on the basis of plant genetic
resources are available on terms that are consistent with the protection of Intellectual Property Rights,
as required by Article 16.1 of the CBD. In addition, th e CGRFA is also negotiating a Code of Conduct
on Biotechnology, including a component on intellectual property rights.
In this context, during the round of negotiations at the Seventh Regular Session and the
Fourth and the Fifth Extraordinary Sessions of the CGRFA in 1997 and 1998, many countries
presented proposals for the realization of Farmers' Rights which included provisions for the
development of national sui generis  systems that would provide incentives for informal innovators,IP/C/W/130/Add.2
Page 3
such as farmers and communities supplying plant genetic resources (and their countries), to have a
right to a share of the benefits derived from their utilization. Many delegations recognized the
connections with the provisions of the TRIPS Agreement. These proposals are reflected in the Report
of the Commission and in the negotiating draft of the International Undertaking. FAO (in
collaboration, as appropriate, with the International Plant Genetic Resources Institute (IPGRI) andother technical bodies) has provided the Commission with various technical studies and analyses of
relevant topics, including this matter, to facilitate the negotiations for the revision of the International
Undertaking. These studies could be made available to the TRIPS Council, if requested.
2
In January 1999, an informal meeting of the CGRFA was held in Montreux (Switzerland)
with the participation of experts representing th e various regions and positions. The following inter-
related issues were addressed: benefit-sharing, Farmers’ Rights, the financial mechanism, the legalstatus of the revised International Undertaking, and others, including access to plant genetic resources
for food and agriculture. The discussions that took place at the informal meeting enabled the
Chairman of the Commission, with the help of al l those present, to draw up a series of Chairman’s
Elements for consideration by the members of the CGRFA.
While the Consolidated Negotiating Text , revised through the deliberations of the Fifth
Extraordinary Session of the Commission, remains valid, the informal meeting considered that it
would be useful to prepare a simpler text, incorporating the Chairman’s Elements . As a result, the
Chairman drafted legal provisions that reflect the said "elements". In addition, and so that these legal
provisions may feature in the full text of the International Undertaking, the Secretariat was asked toprepare a Draft Integrated Text for Revision of the International Undertaking  which will incorporate,
in the Consolidated Negotiating Text the legal provisions derived from the Chairman’s Elements.
The negotiations for the revision of the International Undertaking will continue at the Eighth
Regular Session of the Commission in April 1999 and, if necessary, at extraordinary sessions to beconvened later in 1999 with the aim to finalize the negotiations this year.
The Fourth International Technical Conference on Plant Genetic Resources for Food and
Agriculture: outcome and follow-up
The Fourth International Technical Conference on Plant Genetic Resources met in Leipzig,
Germany, from 17 to 23 June 1996, and was attended by 150 countries and 54 intergovernmental andnon-governmental organizations. The Conference was convened at the request of the CGRFA, and
was endorsed in Agenda 21 of the United Nations Conference on Environment and Development, and
                                                     
2 Background Study Paper No. 1: The appropriation of the benefits of plant genetic resources for
agriculture: an economic analysis of the alternative mechanisms for biodiversity conservation   ( o n l y  i n
English).
Background Study Paper No. 2: Sovereign and property rights over plant genetic resources  (available
in English, Spanish and French).
Background Study Paper No. 3 : Providing Farmers’ Rights through in situ conservation of crop
genetic resources   (only in English).
Background Study Paper No. 4: Identifying genetic resources and their origin: Th e capab ilities and
limitations of modern biochemical and legal systems  (only in English).
Background Study Paper No. 5 : Información sobre las colecciones ex situ conservadas en jardines
botánicos  (only in Spanish and English).
Background Study Paper No. 6: Mejora genética para mantener la diversidad en los cultivos agrícolas
(only in Spanish, but summaries in French and English are provided).
Background Study Paper No. 7 : Contribución a la estimación de la interdependencia de los países en
materia de recursos genéticos (available in Spanish, English and French).
A number of other important studies are currently in preparation for forthcoming Sessions of the
Commission.IP/C/W/130/Add.2
Page 4
at the Nairobi Conference for the Adoption of the Agreed Text of the Convention on Biological
Diversity. The Conference adopted The Global Plan of Action for the Conservation and Sustainable
Utilization of Plant Genetic Resources and the Leipzig Declaration. It also considered the first Report
on the State of the World's Plant Genetic Resources.
The Report on the State of the World's Plant Genetic Resources was welcomed as "the first
comprehensive worldwide assessment of the state of plant genetic resources conservation and use"
.The Report identified the urgent priorities which are addressed in the Plan. The Report and the Plan
are two major elements of the FAO Global System for the Conservation and Utilization of Plant
Genetic Resources.3
The Global Plan of Action was prepared through a participatory, country-driven process,
involving a wide variety of stake-holders: governments, non-governmental and industry
organizations, and individual scientists. A total of 158 governments prepared Country Reports,
assessing the status of their plant genetic resources, as well as their capacity to care for and utilize
these resources. Twelve regional and sub-regional meetings were held, where governments considered
regional problems and opportunities, and made recommendations for the Plan.
The Global Plan of Action recognizes that "certain policy, legal and institutional issues, inter
alia, those related to ownership, intellectual property rights, exchange, transfer and trade in plant
genetic resources, are confronting national programmes increasingly. Coordination is needed to
provide national programmes with information on these issues and to assess the impact ofinternational developments in these fields on the conservation and exchange of plant genetic
resources, and to incorporate new research developments, as appropriate, into national systems and
practices."
4
The Leipzig Declaration commits the governments present to taking the necessary steps to
implement the Global Plan of Action. Through the Declaration, the Conference stressed the need to
enlist the widest possible participation in its implementation, and reaffirmed that "funds should be
made available to finance the implementation, by developing countries and countries with economies
in transition, of the Global Plan of Action". Acco rdingly, the Conference requested that the major
multilateral and bilateral funding and development ins titutions be invited to examine ways and means
of supporting the implementation of the Plan.
The Plan also recommends that governments and their national agricultural research systems
should "consider legislative measures which allow distribution and commercialization of
landraces/farmers' varieties and obsolete varieties, if they meet the same distribution and
commercialization criteria for disease, pests, health and the environment, as conventional or registered
varieties".5
FAO has reported the outcome of the Conference to major international, regional and national
bodies dealing with food and agriculture, and invited their member constituencies to promote and take
part, as appropriate, in the implementation of the Plan. Countries will monitor and oversee the
implementation of the Global Plan of Action through the Commission on Genetic Resources for Foodand Agriculture.
__________
                                                     
3 As with other documents, the Report and the Plan could be made available to the TRIPS Council, if
requested. They may also be accessed at web-site <<http://web.icppgr.fao.org/ >>, on the Internet.
4 Global Plan of Action , paragraph 237.
5 Global Plan of Action , paragraph 203 (e).