| The Food and Agriculture
of the United Nations (FAO) has a website answering some Frequently
Asked Questions (FAQs) on the International Treaty (http://www.planttreaty.org/faq_en.htm).
With the kind permission of FAO, we reproduce
the text of the FAO FAQs, and have added our own set of FAQs
relating more specifically to issues of particular interest
to CIMMYT and breeders who obtain plant genetic resources
for food and agriculture from CIMMYT.
FAO’s Frequently Asked Questions
The following are the additional
FAQs covering the implications of the International Treaty
for accessing germplasm from CIMMYT that have been prepared
by CIMMYT:
What are "plant genetic resources
for food and agriculture"?
The Treaty defines them as "any genetic material of plant
origin of actual or potential value for food and agriculture".
What are the Treaty's objectives?
Its objectives are the conservation and sustainable use of
plant genetic resources for food and agriculture and the fair
and equitable sharing of benefits derived from their use,
in harmony with the Convention on Biological Diversity, for
sustainable agriculture and food security.
What is the Multilateral System
for Access and Benefit-Sharing?
Through the Treaty, countries agree to establish an efficient,
effective and transparent Multilateral System to facilitate
access to plant genetic resources for food and agriculture,
and to share the benefits in a fair and equitable way. The
Multilateral System applies to over 64 major crops and forages.
The Governing Body of the Treaty, which will be composed of
the countries that have ratified it, will set out the conditions
for access and benefit-sharing in a "Material Transfer
Agreement".
What are the conditions for access
in the Multilateral System?
Resources may be obtained from the Multilateral System for
utilization and conservation in research, breeding and training.
When a commercial product is developed using these resources,
the Treaty provides for payment of an equitable share of the
resulting monetary benefits, if this product may not be used
without restriction by others for further research and breeding.
If others may use it, payment is voluntary.
How does the Treaty protect Farmers'
Rights?
The Treaty recognizes the enormous contribution that farmers
and their communities have made and continue to make to the
conservation and development of plant genetic resources. This
is the basis for Farmers' Rights, which include the protection
of traditional knowledge, and the right to participate equitably
in benefit-sharing and in national decision-making about plant
genetic resources. It gives governments the responsibility
for implementing these rights.
Who benefits from the Treaty and
how?
All benefit, in many ways:
- Farmers and their communities, through
Farmers' Rights;
- Consumers, because of a greater variety
of foods, and of agriculture products, as well as increased
food security;
- The scientific community, through access
to the plant genetic resources crucial for research and
plant breeding;
- International Agricultural Research Centres,
whose collections the Treaty puts on a safe and long-term
legal footing;
- Both the public and private sectors,
which are assured access to a wide range of genetic diversity
for agricultural development;
- The environment, and future generations,
because the Treaty will help conserve the genetic diversity
necessary to face unpredictable environmental changes, and
future human needs.
When did the Treaty come into force?
The Treaty came into force on 29 June 2004; ninety days after
forty governments had ratified it. Governments that have ratified
it will make up its Governing Body. At its first meeting,
this Governing Body will address important questions, such
as the level, form and manner of monetary payments on commercialization,
a standard Material Transfer Agreement for plant genetic resources,
mechanisms to promote compliance with the Treaty, and the
funding strategy.
Implications of the International
Treaty for Accessing Germplasm from CIMMYT
The following are the additional FAQs covering the implications
of the International Treaty for accessing germplasm from CIMMYT
that have been prepared by CIMMYT:
What is the Standard Material Transfer
Agreement?
The SMTA is the standard agreement that sets out the terms
and conditions under which PGRFA can be accessed under the
Multilateral System. All transfers of germplasm under the
Multilateral System must be under the SMTA. This means that
all transfers from CIMMYT and any other CG Centre of germplasm
covered by the Multilateral System will by under the SMTA.
So also will any transfers of germplasm under the Multilateral
System from national collections in Contracting Parties to
the Treaty, including transfers to CIMMYT. The text of the
SMTA was adopted by the Governing Body of the Treaty at its
First Session in June 2006. The SMTA cannot be varied. When
PGRFA is transferred under the SMTA, the material being transferred
will need to be listed in an Annex to the SMTA (Annex 1).
Do I now have to sign the SMTA
every time I ask for germplasm from CIMMYT?
You will have to accept the SMTA every time you ask for germplasm.
But that doesn’t mean that you will have to sign it
each time. The SMTA provides for three ways in which you can
accept the SMTA.
- You can accept it by signing it
- If you are ordering over the internet,
you can accept the SMTA on line by clicking on the box marked
“I agree to the above conditions” (this is called
a “click-wrap” form of acceptance, and is basically
the same as when you order goods or services from any internet
website);
- If you receive material that you have
ordered without having signed the SMTA, it will be accompanied
by a printed copy of the SMTA and a note to the effect that
if you accept the material and use it, you will be bound
by the terms and conditions of the SMTA (this is called
a “shrink-wrap” form of acceptance, and is basically
the same as buying copies of computer software). This is
the procedure that has been used up to now by CIMMYT for
Material Transfer Agreements under the “in trust agreements”
with FAO.
Do I now have to pay for
germplasm I ask for from CIMMYT?
No. The International Treaty requires us to give access to
germplasm expeditiously and free of charge. The Treaty does
allow us to charge for the administrative costs involved in
making germplasm available. We do not currently make such
a charge, although we do request breeders and genebanks in
developed countries to make a voluntary donation to cover
the costs of shipment and phytosanitary certification. The
Treaty also allows us to charge for improved breeding materials
which we classify as “plant genetic resources for food
and agriculture under development”. But again, we have
no plans to make any such charge at the moment.
If you use germplasm of crops listed in
Annex 1 of the Treaty provided to you by CIMMYT, AND you breed
a new PGRFA product AND you commercialize that product, AND
you take out a patent on that product that restricts the further
use of that product by others for research or breeding, or
otherwise take legal or technological measures that restrict
the further use of that product by others for research or
breeding, then you will be required to make a payment to the
international fund established by the Treaty. If you merely
take out UPOV type plant varietal protection over the new
product, you will NOT be required to make a payment to the
international fund, since UPOV type plant varietal protection
does not restrict the further use of that product by others
for research or breeding. Other types of plant varietal protection
that are not UPOV compliant may have the effect of restricting
further availability for research and breeding.
Is there any way to contribute
voluntarily to the international fund, even if I am not legally
required to do so?
If you do not restrict the availability to others of products
incorporating Annex 1 CIMMYT germplasm for further research
and breeding, you are not legally required to make any payment
to the international fund set up by the Treaty. You are, however,
encouraged to make a voluntary payment. Please note that you
are merely encouraged to make the payment. You are not legally
required to make the payment.
Do I have to track how I
use CIMMYT germplasm in my Breeding program?
There is no formal legal obligation in the SMTA to track how
you use CIMMYT germplasm in your breeding program. However
normally it is always advisable to keep records documenting
the receipt and use of CIMMYT breeding materials. This is
normal plant breeding practice.
You will need to keep records of the germplasm
you receive with an SMTA, because if CIMMYT provides you with
germplasm of crops listed in Annex 1 of the Treaty and you
choose to keep that germplasm, you will need to make it available
to other users if they ask you for it. If you make it available
to others, then you will have to do so under a new SMTA.
You will also need to keep records of which
breeding lines you derive from germplasm received with SMTA,
because if you send samples of those breeding lines to others,
then you will also need to do so under a new SMTA.
If you choose to send those breeding lines
as PGRFA under Development, then in the new SMTA you must
declare the germplasm that you received with the SMTA and
used to develop your breeding lines. Therefore you must keep
records of which germplasm you used to develop each breeding
line.
If you choose to send those breeding lines
as PGRFA under Development, then in the new SMTA you must
declare the germplasm that you received with the SMTA and
used to develop your breeding lines. Therefore you must keep
records of which germplasm you used to develop each breeding
line.
If you breed a new PGRFA product using the
germplasm acquired from CIMMYT, commercialize it and restrict
further access to the product by others for research and breeding
e.g. through some forms of patenting, then you will be required
to make a payment to the international fund established by
the Treaty. (See above)
Do I have to make payments
if I release a variety containing CIMMYT germplasm?
No. The Treaty is designed to facilitate the exchange of plant
genetic resources for food and agriculture and the use of
those resources for further breeding and research. Releasing
a new variety developed from CIMMYT germplasm will not trigger
mandatory payments, unless you commercialize a new variety
developed from Annex 1 germplasm and you restrict its availability
for further research and breeding e.g. through some forms
of patenting.
Plant Varietal Protection (PVP) under UPOV
does not restrict the further use of the variety for research
and breeding. Sui generis PVP may restrict further use, but
such PVP laws are not UPOV-compliant. If your country has
a PVP system but is not a UPOV member, you should find out
whether your PVP laws restrict further use. Patent protection
may in some jurisdictions restrict availability for further
research and breeding. So may some technological or contractual
restrictions.
Do I have to make payments
if I apply for plant breeder’s rights for a variety
containing CIMMYT germplasm?
Not normally. Plant Breeder’s Rights under UPOV type
Plant Varietal Protection (PVP) laws do not restrict the further
use of the variety for research and breeding. Commercialization
of a new variety that is protected by this type of Plant Breeder’s
Rights developed from CIMMYT germplasm would not trigger mandatory
payments under the Treaty.
Plant Breeder’s Rights under sui generis
PVP laws may restrict further use for research and breeding.
Such PVP laws are not UPOV-compliant. If your country has
a PVP system but is not a UPOV member, you should find out
whether your PVP laws restrict further use. Patent protection
may in some jurisdictions restrict availability for further
research and breeding. So may some technological or contractual
restrictions.
When would I be legally required
to make payments?
The Treaty and the SMTA provide that payments must be made
when the following conditions are met:
- a new PGRFA product incorporating Annex
1 germplasm received from CIMMYT is commercialized; AND
- the further availability of the new PGRFA
product to others for research and breeding is restricted,
e.g. through some forms of patenting.
Do I have to make payments
if I patent a variety containing CIMMYT germplasm?
You may have to make payments if you commercialize a variety
that has been patented. This will depend on whether the patent
protection restricts availability of the product for further
research and breeding. As a general rule, US utility patents
will restrict availability for further research and breeding.
Some European patents will not. Please note that just patenting
a variety will not trigger mandatory payments. The trigger
is when the variety is commercialized. For more information
on patents, see below.
What are patents, and which
ones would trigger mandatory payments?
Patents are grants made by a government that confer upon the
creator of an invention the sole right to make, use, and sell
that invention for a set period of time.
The Treaty provides that payments must be
made if a product incorporating germplasm accessed from the
Multilateral System is commercialized and the availability
of the product for research and breeding by others is restricted.
Patent protection differs from country to
country. You will need to seek legal advice on the situation
in your own country. The following general review is of course
subject to that proviso.
As a general rule, US utility patents will
restrict availability for further research and breeding, unless
of course the patent holder were to undertake to issue free
licenses to whomsoever wished to use the patented product
for research or breeding. On the other hand, patents under
the US Plant Patent Act cover only asexually reproduced plants,
and thus would not restrict availability for breeding.
As a general rule in Europe, patents do
not restrict availability for research. France and Germany
have new legislation that extends this exemption to breeding.
Switzerland is considering adopting similar legislation. Netherlands
and UK patents still don’t provide for a breeding exemption.
Patent protection in Japan does not cover
acts carried out for the purpose of experiment or research.
However it would restrict availability for commercial breeding.
There is an “experimental use”
exemption also under the patent law in Australia, but again
this would not extend to commercial breeding.
The situation is similar in New Zealand,
though there the “experimental use” exemption
is based on judicial practice rather than legislation.
Please note that just patenting a
variety will not trigger mandatory payments. The trigger is
when the variety is commercialized.
What other restrictions would
trigger mandatory payments?
The Treaty and the SMTA provide that payments must be made
when the following conditions are met:
- a new PGRFA product incorporating germplasm
received from CIMMYT is commercialized; AND
- the further availability of the new PGRFA
product to others for research and breeding is restricted.
Patent protection may in some jurisdictions, like the USA,
restrict availability for further research and breeding.
So may some technological or contractual restrictions. An
example of a technological restriction could be certain
types of Genetic Use Restriction Technologies (GURTS) such
as the so-called “terminator seed”. An example
of a contractual restriction could be where property in
a variety is passed under a contract that restricts the
use of the variety for further research and breeding. In
some cases these kinds of contractual restrictions may be
reinforced by restrictions on replanting and inspection
procedures. Very often the contractual restrictions may
be cumulative with patent protection.
If I need to make payments, who
do I pay and what records do I need to provide?
Payments are to be made to the international fund set up by
the Governing Body of the Treaty. Please note that they are
not to be made to CIMMYT. The funds generated will be used for
the purposes of implementing the Treaty and the benefits will
flow primarily directly and indirectly to farmers in all countries,
especially in developing countries and countries with economies
in transition who conserve and sustainably utilize plant genetic
resources for food and agriculture. Payments should be made
in US dollars to the following account:
FAO/UN Trust Fund US Dollar Account 000049065067
Banca Intesa SpA
FAO Branch [Swift code: BCIT ITMM700]
ABI 03069 CAB 03356
Viale delle Terme di Caracalla, 00153 Rome Italy
IBAN IT91T030 6903 3560 00049065067
GINC/INT/031/MUL, IT-PGRFA (Benefit-sharing)
If you become liable to make payments to
the Governing Body on commercializing a product, you must
submit annual reports together with your annual payments.
Each annual report must be submitted to
the Governing Body within sixty (60) days after each calendar
year ending December 31st and should contain the following:
(a) the Sales of the Product or Products
by the Recipient, its affiliates, contractors, licensees and
lessees, for the twelve (12) month period ending on December
31st;
(b) the amount of the payment due; and
(c) information that allows for the identification
of any restrictions that have given rise to the benefit-sharing
payment.
Reports should be addressed to
The Secretary
International Treaty on Plant Genetic Resources for Food
and Agriculture
Food and Agriculture Organization of the United Nations
I-00100 Rome, Italy
What does the alternative
payments scheme provided for under Article 6.11 entail?
When you receive germplasm from CIMMYT, you have a choice between
the normal payments scheme provided for in Article 6.7 of the
SMTA, and the alternative payments scheme provided for under
Article 6.11. The normal payments
scheme requires you to pay 1.1% of the Sales of the Product
less 30%; i.e. 0.77%.
The alternsative payment scheme provides
for
- Payments at a discounted rate of 0.5%
over the period of validity of the option (10 years renewable);
- Payments on both the Sales of Products
incorporating Material accessed from the Multilateral System
and the sales of other products belonging to the same crop
as that Material;
- Payments are to be made whether or not
the Product is available without restriction;
- Payments made under this option replace
the normal payments due under the SMTA and any subsequent
SMTA entered into during the period of validity of the option;
- Once the period of validity of the option
has ended, you are required to make payments on Products
in accordance with the normal payments scheme, except that
Products derived from Material accessed from the Multilateral
System during the period of validity of the option will
continue to be charged at the discounted rate of 0.5%;
- If you opt for the alternative payment
scheme, you must notify the Governing Body for the option
to be valid.
- If you assign to a third party intellectual
property rights over Products developed from Material accessed
from the Multilateral System or its components, you must
transfer the benefit-sharing obligations to the third party
along with those intellectual property rights.
Do I have an obligation to track
how I share CIMMYT germplasm with others?
If you pass on CIMMYT germplasm listed in Annex 1 of the Treaty
to others, you must do so under a new SMTA, i.e. you will
need to fill out a new SMTA and send the germplasm under that
SMTA.
You then become a “Provider”
of PGRFA under the Treaty and are required to inform the Governing
Body periodically about the SMTAs you have issued. The Governing
Body will establish the schedule for such reports. The Secretariat
of the Treaty will provide guidelines as to the recommended
format for reports in due course. These guidelines will be
reported on this webpage when they are available.
Do I have an obligation to
track how I share with others the progeny descendants that
I develop from the germplasm I originally obtained from CIMMYT?
You should treat germplasm you develop from CIMMYT germplasm
in the same way as the original germplasm i.e. it must be
transferred under a new SMTA and reports made to the Governing
Body as described in the reply to the previous question. Of
course, this does not stop you in any way from developing
new varieties from the original germplasm or from taking out
intellectual property rights over those new varieties.
Do my obligations differ
if I access CIMMYT germplasm in the form of PGRFA under Development
rather than as unimproved germplasm?
If you access CIMMYT in the form of PGRFA under Development,
you do not have to make that germplasm available to others
while you are continuing to develop it. You in effect become
the new “developer” of the PGRFA under Development
and have the same developer’s rights as CIMMYT has over
the material. Article 6.5 of the SMTA specifically provides
that where PGRFA under Development is transferred under the
SMTA, the Recipient will not be bound by the provisions of
Article 5a of the SMTA, i.e. the obligation to make the material
available expeditiously etc. Whether or not to make the material
available is a matter within your discretion as its new developer
during the period of its development.
There is also another difference in the
status of PGRFA under Development. CIMMYT is authorized under
the Treaty and the terms of the SMTA to make the transfer
of PGRFA under Development subject to additional conditions.
At the moment, CIMMYT does not make the transfer of PGRFA
under Development subject to additional conditions, but reserves
the right to do so in the future. If additional conditions
are set, these will be set out in an additional contract that
will go along with the SMTA.
What exactly does PCGRFA
under Development mean?
PGRFA under Development are basically breeders’ lines
derived from Material from the Multilateral System, that you
are currently working on and which you may not wish to release
in their present form, because they are still under development.
Under the Treaty and the SMTA, you as developer
(i.e. breeder) do not have to make PGRFA under Development
available to others during the period of their development.
You, as developer, have the discretion as to whether or not
to make them available.
If, in the exercise of your discretion,
you decide to transfer PGRFA under Development derived from
material from the Multilateral System (normally you would
have got the original material under an SMTA), you must do
so under the normal SMTA. However, since it is still PGRFA
under Development, it is understood that the obligation to
make the material available expeditiously and without payment
(Article 5a) will not be passed on. You will in effect become
the “new developer” and will have the developer’s
discretion about if and when to make the material available
during the period of its development.
If you do make the PGRFA under Development
available to others, remember that:
- The Material originally received from
the Multilateral System must be identified in an Annex to
the SMTA (Annex 1), and the fact that the PGRFA under Development
being transferred are derived from that Material must also
be specified in that Annex.
- The Governing Body must be notified of
the transfer.
- Once this is done, the Recipient has
no further obligations regarding the action of subsequent
recipients.
- The parties to the SMTA may agree on
additional conditions relating to further product development,
including as appropriate the payment of monetary consideration.
- Transfers of PGRFA under Development
will not count as commercialization for the purpose of monetary
benefit-sharing.
If I am
working on developing a new variety using germplasm obtained
from CIMMYT under an SMTA, do I have to make my breeder’s
lines available to others?
No. That is the whole point of the idea of PGRFA under Development.
PGRFA under Development does not have to be made available
during the period of its development. It is up to you, in
your own discretion, to decide whether or not you should make
it available, or when the period of development is finished.
But if you do make it available, you must do so under the
SMTA, although you may make the transfer subject to additional
conditions, including the payment of monetary consideration.
Do I have
to make any reports to the Governing Body of the Treaty?
There are a number of references in the SMTA to notifications
that must be sent to the Governing Body. The following is
a complete list:
- you must periodically inform the Governing
Body about all SMTAs in which you are the Provider of germplasm,
including transfers to a third party of material you previously
received under an SMTA, and also including transfers of
PGRFA under Development.
- if you become liable to make payments
to the Governing Body on commercializing a product, you
must submit annual reports together with your annual payments
- if you opt for the alternative form of
financial liability, you must do so by signing Annex 4 and
returning it to the Governing Body
In principle, all notifications to the Governing
Body should be sent to the following address:
The Secretary
International Treaty on Plant Genetic Resources for Food and
Agriculture
Food and Agriculture Organization of the United Nations
I-00100 Rome, Italy
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