Intellectual Property Rights and the Public Sector: Why Compulsory Licensing of Protected Technologies Critical for Food Security Might Just Work in China

By Ellis, Gregory C. | Washington International Law Journal, June 1, 2007 | Go to article overview

Intellectual Property Rights and the Public Sector: Why Compulsory Licensing of Protected Technologies Critical for Food Security Might Just Work in China


Ellis, Gregory C., Washington International Law Journal


I. INTRODUCTION

The developing world has over 800 million undernourished people.1 Nearly eleven million children die each year, with more than half of these deaths resulting from hunger and malnutrition.2 The vast majority of deaths attributable to hunger and malnutrition occur in developing countries.3 Unfortunately, although there is currently enough food to feed the world, it is unequally distributed, as 650 million of the poorest people live where agricultural potential is substandard.4 Additional methods of ensuring food security to prevent hunger and malnutrition beyond the access to food paradigm must, therefore, be considered.5 Food security "exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life."6

Agricultural biotechnology is one promising device heralded to be valuable in ensuring food security.7 Agricultural biotechnology research intended to enhance food security in developing countries includes creating GM crops that reduce the use of pesticides, improve stress tolerance, and provide better product quality and increased nutritional value.8

The use of agricultural biotechnology to create GM crops is a contentious issue. Opponents of this technology claim that GM crops are "inherently dangerous,"9 and that the scientific understanding of the impact that GM crops have on the environment and human health is inadequate.10 Some of these concerns are legitimate. For example, in September 2000, trace amounts of a transgenically expressed protein known as Cry9C, which is approved for animal but not human use, was found in Kraft Taco shells in the United States.11 These concerns are especially important in developing countries that are beginning to approve and commercialize GM crops but do not yet have comprehensive regulatory provisions in place.12

Despite such criticisms, proponents of agricultural biotechnology argue that its benefits far outweigh its potential risks, and that the risks that do exist are not inherent properties of the technology. According to the Declaration of Support for Agricultural Biotechnology, signed by over 3400 international scientists, including twenty-five Nobel Prize Laureates,13 the technologies utilized to create GM crops can safely and substantially enhance efforts to ensure food security.14 Dr. Patrick Moore, a co-founder and former leader of Greenpeace who has since signed the Declaration, stated that "the campaign of fear now being waged against genetic modification is based largely on fantasy and a complete lack of respect for science and logic."15

Critics further assert that agricultural biotechnology corporations exploit the hungry in developing countries for "commercial opportunity," some going as far as labeling this activity as criminal.16 This claim, however, fails to acknowledge that while the private sector focuses mostly on crops with large markets, the nonprofit public sector provides the developing world with subsistence crops to ensure food security, despite their lack of high commercial value.17

China provides a model for public sector success with respect to agricultural biotechnology, with almost all research and development in this field being conducted by the public sector.18 What makes China unique in comparision to other developing countries' public sectors is its strong scientific infrastructure.19 This infrastructure allows Chinese scientists involved in agricultural research to successfully generate "an impressive array of new technologies."20 Furthermore, China's agricultural biotechnology industry focuses on providing food security, as "the foods being modified [in China] reflect the concern that current food production will not fill the hungry mouths of its future population."21

Agricultural biotechnology research poses unique IP issues that are particularly pronounced for the public sector. …

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