Date: Sun, 5 Mar 2000 21:20:30 From: SCHLAUER@chemie.uni-wuerzburg.de To: cp@opus.hpl.hp.com Message-Id: <aabcdefg624$foo@default> Subject: Re: wild collected cultivars or new taxa
Dear Paul,
> I'm not convinced. I've not received notification that the
> international convention covering rights to endemics has been
> re-inbterpreted. As a wild origin cultivar and endemic species both
> fall within the endemic definition, I still believe that a county
> automatically owns the rights to all material and all information
> pertaining to such material (live, dead or preserved) until it revokes
> such rights.
This may be true in theory. In reality, however, nobody will make a
stink at a legal level if e.g. a Mexican described a new species
e.g. from Germany, the name of which based on a type specimen
deposited (without duplicates) e.g. in BO.
If you change some nations in the scenario above, you may admittedly
run into big trouble.
> If a non-endemic is involved, it's outside the scope.
I guess you mean non-indigenous here. It would make little sense to
limit rights concerning natural resources to exclusively the endemic
species (of course, the provenience of endemic material is
always obvious, so legal action is facilitated).
> if a specimen starts as an endemic, and someone removes it, breeds from
> it and develops a cultivar, I still belive the originating county of
> origin owns all rights.
Yes, in theory.
> But I have to say, there's been no tst case and
> I wouldn't fancy the chances of a country winning such a case.
This is a rather important point. Few countries would try that for
items of seriously limited commercial value (like most cps, once they
are available through tissue culture).
> I thought this was exactly the problem of
> the biodiversity convention in that it specifically did bind all
> ownership of all natural resources (endemics) to the source country.
A large number of countries do simply not care because they know that
not much in terms of $$ can be gained from these ownership rights. The
proprietary rights some countries (US, UK) grant to land-owners aim in
the first line at the protection of the owners' cattle and cereals,
and noone seriously considered the protection of natural resources
back in the historical times when these laws were written.
> The rights exist and prsumably a country 9like germany) can not
> enforce it's rights if it doesn't wish to.
This is the point.
> In any case, the convention isthere to stop
> countries like Germany (and UK and USA and Japan, etc.) from removal of
> resources from so called un-developed countries.
Certainly.
> As you said, this is an entirely moral point of view as regards the
> IRA's.
You got me (and the ICNCP) entirely wrong here. Registration of a
cultivar name does not have any implications for proprietary rights
connected with the corresponding cultivar. It serves exclusively the
uniform and unambiguous *naming* of cultivated plants at an
international level. Therefore, no (ZERO) moral or legal issues
(except those mentioned in the ICNCP, and there is no means to
enforce these rules; the whole procedure depends on the understanding
and the good will of breeders and growers world wide) are connected
with cultivar name registration. The ICPS as the cp IRA will register
any acceptable cultivar name irrespective of its origin or the origin
of the cultivar. We are not even entitled to reject a name if it is
acceptable ICNCP-wise. This is simply not our job.
> But as I said in the earlier mail, if an IRA agrees
> establishment of a name then a can of worms has been opened and the IRA
> will inevitably become a target of criticism, albeit that it has no
> legal rsponsibility.
Well, anyone is free to criticize almost everything, but I guess the
hypothetical critic will have a difficult case here.
> Cubans, Mexicans, Venezuelans, and many others
> will object if botanists are allowed to remove endemic material for
> naming purposes without the express permission of the source country.
Maybe they will, but they have to complain to the introducer, the
originator or the registrant (the person who wants to register a
cultivar name) rather than to the IRA. The IRA will give the data
connected with a registered name to all who ask for them (and who are
prepared to cover the IRA's expenses for this service). It is not
responsible for the plants, their owners, or whatsoever outside the
ICNCP regulations.
> Most of these countries are not concerned with the financial issues yet
> (though where native aboriginal peoples exist financial aspects are
> definately a real issue), its therefore the botanists, professional or
> not, that are their curent concern.
Maybe. But this does not have anything to do with IRAs.
Kind regards
Jan
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