Sharing of genetic resources as historical norm. Until the 1970s, there were very few national and international laws creating proprietary rights or other forms of explicit restriction of access to plant genetic resources. The common heritage concept of genetic resources as belonging to the public domain had been the foundation of farming communities for millennia where seed was exchanged and invention was collective (Brush, 2003). Farmers and professional breeding have relied on genetic resources, in the public domain or in the market, to be freely available for use in research and breeding. The public-sector research "culture" is based on this tradition of open-sharing of resources and research findings (Gepts, 2004) although this is changing (see below), with serious social and political implications. Indeed, the global collaboration required for the development of the HYVs of the Green Revolution demonstrated the effectiveness of an international approach to sharing of germplasm. The International Undertaking on Plant Genetic Resources, 1983, encapsulated this spirit citing the "universally accepted principle that plant genetic resources are a heritage of mankind and consequently should be available without restriction." Since that time, in many ways, the common heritage principle has been turned on its head, with the gradual encroachment of claims for control over access to and use of genetic resources grounded in IP laws, assertions of national sovereignty (Safrin, 2004) and or the intentional use of technologies that cannot be reused by farmers.

     The common heritage or public goods approach to the use of Plant Genetic Resources for Food and Agriculture (PGRFA)

has not been entirely eclipsed. It is worth noting in this regard that the International Union for the Protection of New Varieties of Plants (UPOV) Conventions through their several revisions to further strengthen breeders' rights have consistently maintained a "breeders' exemption" which allows researchers/ breeders to use protected materials in the development of new varieties without the permission of the owners (as long as the new varieties are not "essentially derived" from the protected varieties). Furthermore, in what might be considered a surprise development in the context of the overall shift in the genetic rights paradigm, the International Treaty on PGRFA creates an international research and breeding commons within which individuals and organizations in member states, and international organizations that sign special agreements, enjoy facilitated access (and benefit sharing) on preset, minimal transaction costs. Farmers and other target groups of this assessment have been inadvertently, and largely negatively, affected by the battles over genetic rights.

2.3.1.3 Major changes in germplasm management

The development of IPR in breeding. The business environment and size of the market are important factors for investment. Intellectual property rights (IPR) provides a level of protection. With the introduction of IPR, the private seed industry has benefited from the ability to appropriate profits to recoup investments and foster further research, organizational capability and growth (Heisey et al., 2001). The stakes are high; IPR regimes have transformed the US$21 billion dollar global seed market and contribute to the restructuring of the seed industry (ETC, 2005).

     The increasingly international character of IPR regimes is a reflection of widespread and integrated trade in germplasm resources as well as global trends toward liberalization of markets and trade, privatization, and structural adjustment that reduce the role of the public sector (Tripp and Byerlee, 2000).

An evolution towards stronger IPR protection. Germplasm protections have been both biological; (e.g., hybrid maize) and legal. Initially plants were excluded from patentability for moral, technical and political reasons. For example, special, so-called sui generis protection was developed for asexually reproduced plants (US Plant Act 1930). In Europe protection for all varieties in the 1940s was harmonized through the International Union for the Protection of New Varieties of Plants (UPOV) (1961). This Plant Variety Protection (PVP) system recognized farmers and breeders exemptions. While PVP offers protection to private seed producers by prohibiting others from producing and selling the protected variety commercially, it does not restrict anyone from using a protected variety as parental material in future breeding. This is known as "farmer's privilege" and responds to the traditional seed handling mechanisms which allows farmers to save and exchange seed (1978 Act), a provision which was interpreted very widely in the USA, leading to large scale "brown bagging".

     Utility Patents on a bacterium in 1980 signaled the advent of an era of strong IPR (Falcon and Fowler, 2002), marking the end of "farmer's privilege", which was restricted in the latest revision in UPOV (1991 Act). This loss of privilege generated heated debate among ratifying