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Cautions regarding design of material transfer agreements

If implemented as a general policy, Material Transfer Agreements should be very carefully thought out. Many MTAs that are in use (though certainly not all) are tantamount to claims of intellectual property rights by gardens on the germplasm in their possession (claims for which there is no basis in the CBD). Such MTAs are often so broadly worded as to require tremendous expenditures of resources (likely far beyond any benefits arising from the plant material) to implement in good faith. If MTAs are to be followed in good faith, they should be designed with great care so as to neither impose undue or unclear obligations or to stifle legitimate and beneficial exchange of material.

Submitted by 2 years ago

Comments [2]

  1. Chad Husby Idea Submitter

    As with all contracts, MTA's can be designed well or poorly for the purposes intended. What most concerns countries of origin is that those who curate germplasm from their countries *do not* claim any form of IPR on those plants nor make them accessible to those who do. Such unauthorized IPR claims are what is called biopiracy and are what lead to the CBD and the commodification of nature that we are currently experiencing. It was the changes in the US patent laws in the early 1980's to allow IPR on living things that were the primary motivator for the CBD (see Sabrina Safrin's excellent article posted elsewhere in this forum for more details). Many garden MTAs implicitly and automatically claim an eternal IPR on the plants in their collection, requiring all recipients to share "all and any benefits" (and these contracts are worded so broadly that these benefits would include oxygen and aesthetic enjoyment and even revenue from garden admission). The CBD makes no provisions for gardens to claim IPR on plants from overseas (nowhere in the CBD, letter or spirit, is sovereignty over genetic resources given to public gardens or other such entities). For gardens to claim a share of benefits from germplasm they share with others is very problematic. It is a claim of sovereignty and IPR. Gardens are not charged with implementing the CBD, which is an international agreement among sovereign nations, subject to sovereign implementation. If sovereign nations choose, and they do sometimes choose, to not restrict (or minimally restrict) propagation and sharing of some of their plant genetic resources, then who are gardens to then turn around and claim IPR on them through a very broadly MTA that places an obligation for eternal benefit sharing with the garden sharing the plant material.

    We do not even do this with a clearcut example of intellectual property like a book written by a known and still-living author: Who could imagine someone obligating the reader of their book to sharing "any benefits" the reader derives from the book? This would lead people to a fear of reading books due to the undue burden such an obligation would place on an honest reader. This is just as unreasonable as to require adherence to an MTA which claims an endless share of "any benefits" arising from plant germplasm.

    A particularly troubling example of the type of MTA that makes very strong and eternal IPR claims by a garden, making only oblique mention of honoring country-of-origin restrictions, is the one posted as an example in the "Online Study Hall". This MTA obligates the recipient to share "any benefits obtained by Recipient arising out of any utilisation of the Material or its progeny or Derivatives, including benefits such as research results and copies of publications" with the originating garden, not with the country of origin (which only gets "acknowledgement"). There is reference to the potential for further obligations with regard to the country of origin, but no specifics and it does not obligate the recipient to comply with restrictions regarding any mutually agreed terms under which the material was received. Rather, it simply says that the provider is not warranting that the material is free of such obligations:

    "The Material provided to Recipient under this Agreement is or will remain free from any further obligation to obtain prior informed consent from, to share benefits with or to comply with restrictions on use imposed by the country of origin of the Material or any other county or regional economic integration organization."

    If the material was received from the originating garden with restrictions from the country of origin, then the recipient entity should be obligated to comply with those restrictions.

    The main reason that the Nagoya Protocol was pursued was that countries of origin are not receiving the benefits they were expecting under the CBD. MTA's creating a complex web of contractual benefit sharing obligations among gardens and other entities (outside countries of origin), a web that is likely to consume far more resources to effectively administer than any benefits generated, are not going to foster the types of collaborative benefit-sharing relationships that the CBD intended to foster (i.e. between organizations in provider and recipient countries). It would be far better for gardens to focus those resources on collaborative benefit-sharing projects with countries of origin that foster mutual trust, conservation, and creation and dissemination of botanical and horticultural knowledge and skills.

    2 years ago
  2. Moderator

    Could you share sample MTAs which you feel are well designed for their stated purpose we could add to the Study Hall?

    2 years ago

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