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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