Legal Liability, Intellectual Property and Genetically Modified Crops: Their Impact on World Agriculture

Article excerpt

Abstract: The use of genetic engineering and biotechnology in agriculture has attracted worldwide attention over the past decade. This technology has raised highly controversial issues and considerable international debate over the liabilities associated with crops containing genetically modified organisms ("GMOs"). In particular, the extension of intellectual property protection to GMOs, especially genetically modified crops, has produced one of the most controversial and strenuous debates of recent times.

After looking briefly at some of the key features, advantages and disadvantages of GM crops, this paper outlines the debate over the associated legal liability issues. This article also examines the major elements of the debate over liability for GM contamination and assesses whether common law remedies provide adequate protection against it. The paper then details the Australian Gene Technology Act 2000 (Cth) and its essential principles and shortcomings. In its examination of all these issues, this article identifies the challenges that must be faced to ensure justice for all those affected by GM cropping.

I. INTRODUCTION

Genetically modified ("GM")1 crops created by modern agricultural bio-technology have attracted worldwide attention over the past decade.2 Genetic modification involves the alteration of an organism's genetic material by manipulation of its DNA.3 A set of genes is removed from the DNA of one organism and inserted into the DNA of another, resulting in the production of genetically modified seeds.4 Such a transfer of genetic information across natural species barriers may not occur naturally through conventional breeding or hybridization.5 Principally, "GM crops are plants engineered by scientists who have inserted pieces or strands of foreign genetic material in an effort to change or supplement one or more of the plant's traits."6 In 2007, 114,000,000 hectares (281,000,000 million acres) of GM crops were cultivated in twenty-three countries, according to the International Service for the Acquisition of Agri-biotech Applications (ISAAA).7 The GM varieties of soy and cotton have become widely accepted and account for approximately ninety percent of production in this sector.8

Nobel-laureate agricultural scientist Norman Borlaug9 has detailed the true value of genetic engineering:

With the technology that we now have available, and with the research information that's in the pipeline and in the process of being finalized to move to production, we have the know-how to produce the food that will be needed to feed the population of 8.3 billion people that will exist in the world in 2025.10

Dr. Jacques Diouf, Director-General of the United Nations Food and Agriculture Organization ("FAO"), has said that "[GMOs] can help to increase the supply, diversity and quality of food products and reduce costs of production and environmental degradation, as the world still grapples with the scourge of hunger and malnutrition . . . ."11 Finding the means to feed a growing global population, which is predicted to reach more than nine billion by 2050, 12 is a challenge that must be faced in coming decades.13 The United Nations estimates that agricultural output will have to rise fifty percent by 2030 to meet this increased demand.14 GM technology has the potential to revolutionize world agriculture, particularly in developing countries, in ways that would substantially reduce malnutrition, improve food security, increase rural income, and possibly even reduce environmental pollutants.15

However, GM products have also generated enormous public concern16 regarding the health, environmental, legal, social and ethical issues raised by gene technology. While the debates over the advantages and disadvantages will continue, genetic engineering is already changing the face of agriculture.17 This article explains the arguments at the center of the debate and discusses the potential benefits and risks of GMOs. …