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8 J. World Intell. Prop. 5 (2005)

handle is hein.journals/jwip8 and id is 1 raw text is: Reconciling Property Rights in Plants Jeremy DEBEER* I. INTRODUCTION In the context of plants, intellectual property (IP) theory has forgotten its roots. Plants have long been objects of private property; germplasm' has not. But most jurisdictions now recognize IP rights in plants' genetic information. Law creates IP by separating an abstract idea, like for a molecularly engineered gene, from its physical vessel, such as the gene itself contained in a plant or seed. Property rights in the abstract object may come as patents, plant breeders' rights (PBRS) or both.2 As a relatively new phenomenon, IP still exists in a climate of excitement, anxiousness and perhaps insecurity. Innovations like biotechnology and the Internet, for example, have magnified the philosophical instability of property rights in ideational resources. Thus, IP is typically measured against the public interest, or occasionally, society's rights are crystallized as common property. In this two-dimensional appraisal, other important property rights are usually disregarded or dismissed casually. The foundations of longstanding and well-settled proprietary rights in physical objects seem to have been forgotten. Private property rights in physical objects-things that in fact have a real objective existence-are classic property that should not be overlooked. Arguments supporting IP were originally expounded in support of classic property. So classic property is philosophically prior to IP, yet IP implicitly or explicitly subordinates classic property rights, usually without seriously asking why or at what consequence. A more thorough understanding of the principles underpinning all proprietary interests is essential to determine which should prevail in a given circumstance. Therefore, this article seeks to reconcile IP with the public interest and common property, and also with classic property. The result is a matrix of private and public property rights in tangible and intangible resources. The analysis is better conceived as * B.C.L (Oxon.), LL.B., B.Comm (Sask.); Barrister and Solicitor, Law Society of Upper Canada; Assistant Professor, Faculty of Common Law, University of Ottawa. This dissertation was originally written as part of the author's B.C.L at the University of Oxford and supported by the Rosalind Bellerby Award from the Education Services Foundation in Oxford, England. Sincere thanks first to Professor David Vaver, and to the late Professor James Harris, DrJoshua Getzler, Rohan Hardcastle, Syhamkrishna Balganesh and Lalit Aggarwal. The author may be contacted at: <jdebeer@uottawa.ca>. I Germplasm is the hereditary material transmitted to offspring through sex cells or gametes. R.C. King and W.D. Stansfield, A Dictionary of Genetics, 4th edition, Oxford University Press, Oxford, 1990, 131. 2 Trade secrets, trademarks or other IP rights may also be relevant, but are not discussed in this article.

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