THE INTERFACE OF OPEN SOURCE AND PROPRIETARY PROTECTION 1N THE ITPGRFA
The ITPGRFA was adopted by the FAO conference on November 3, 2001, stating its objectives to be "the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security.
Through extended and difficult negotiations over seven years, the ITPGRFA was eventually adopted in November 2001.
149) The wording of this provision was the most controversial part of the negotiations over the ITPGRFA, as developing countries insisted on a prohibition against intellectual property or other rights, not only for PGRs as such, but also for "their genetic parts and components," while developed countries insisted that the ban merely limit assertion of intellectual property rights in PGRs "in the form received" from the Multilateral System.
In addition, although the ITPGRFA reaffirms a commitment to farmers' rights, recognizing the contributions that local farming and indigenous communities have made, and will continue to make, to the conservation and development of PGRs, (151) this provision is described as "merely a symbolic expression of gratitude," without offering any effective implementation tool for those rights at the international level.
At the same time, however, the ITPGRFA does represent an unprecedented international effort to combine an open source system of facilitated access to PGRs with a mandatory system of benefit-sharing, including mandatory sharing of monetary and other benefits arising out of commercialization of certain patent-protected plant innovation.
ITPGRFA as an Open Source System of Plant Innovation
With this overview of the open source software movement and its application to the field of biotechnology in mind, this Article now turns to an analysis of whether the facilitated access and benefit-sharing mechanism under the ITPGRFA will successfully function as an open source innovation system.
The ITPGRFA, which was adopted at the FAO conference on November 3, 2001, entered into force on June 29, 2004, creating a Multilateral System for facilitated access and benefit-sharing with respect to selected PGRs for food and agricultural purposes, while simultaneously recognizing the sovereign rights of each country over its own PGRs.
A number of potential ambiguities lurking in the language of the ITPGRFA could undermine its actual operation.
Neither the ITPGRFA nor the SMTA provide a clear answer to this question.