Human Rights, Technology, and Food: Coordinating Access and Innovation for 2050 and Beyond

• Author: Daniel R. Cahoy,Robert C. Bird
• DOI: http://doi.org/10.1111/ablj.12050
• Published date: 01 September 2015
• Date: 01 September 2015

Human Rights, Technology, and

Food: Coordinating Access and

Innovation for 2050 and Beyond

Robert C. Bird* and Daniel R. Cahoy**

INTRODUCTION

In 2005, the United Nations’ Food and Agriculture Organization (FAO)

held a meeting on the outlook for agricultural production in the year

2050.

1

The goal was to identify issues and dangers, but more broadly to

assess whether global food needs within the next f‌ifty years can be met.

Meeting attendees concluded that the ability of the world to sustain con-

tinued population growth is highly connected to the likelihood of future

technological advances. The world simply cannot feed a predicted global

population of over nine billion people in 2050 using only agricultural

technology developed centuries ago. In addition, the threat of climate

change means that many growing regions will experience the pressure

of hotter, more arid environments. The ability to ameliorate those chal-

lenges with technology may be the only way to sustain an adequate

*Associate Professor of Business Law and Eversource Energy Chair in Business Ethics,

School of Business, University of Connecticut. Support from the University of Connecticut,

School of Business, Dean’s Fund Summer Grant Program is gratefully acknowledged. A

related version of this article is available as a chapter in Law, Business & Human Rights:

Bridging the Gap published by Elgar Press.

**Professor of Business Law and Dean’s Faculty Fellow in Business Law, Smeal College of

Business, the Pennsylvania State University.

1

The studies arising from that meeting have been periodically updated, most recently in

2012. Nikos Alexandratos & Jelle Bruinsma, World Agriculture Towards 2030/2050: The 2012

Revision (U.S. Food & Agric. Org., ESA Working Paper No. 12-03, 2012), available at http://

www.fao.org/docrep/016/ap106e/ap106e.pdf.

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supply of food. Today, technology and agriculture are intimately

intertwined.

Thankfully, technology has a proven record of advancing agricultural

production. While the use of technology in agriculture spans human

history—encompassing animal and plant selection, breeding, and other

growth and reproduction strategies

2

—the advent of new technologies

permitting manipulation on a genetic level has accelerated the rate of

change dramatically. Modern life is now highly dependent on high-

technology means of producing food.

3

Advances in food-related technology are generally not the result of

altruism. A prof‌it motive underlies much of the recent growth.

Although government funding can facilitate a f‌loor for basic research,

private investment is critical to the creation of advanced commercial

products and markets. In 2010 alone, seed producers allotted $3.5 bil-

lion toward research and development.

4

However, it is also understood

that the investment in innovation may produce insuff‌icient returns if

competitors are able to utilize it from the outset. Therefore, innovators

seek a legal means of excluding others from valuable innovation for as

long as possible. Intellectual property rights provide the primary mech-

anism for such protection.

Intellectual property protections are provided by a variety of different

types of legal regimes, and in the context of agricultural technology,

patents are particularly inf‌luential.

5

Given the investment necessary to

2

David R. Nicholson, Agricultural Biotechnology and Genetically-Modif‌ied Foods: Will the Devel-

oping World Bite?,8V

A. J.L. & TECH 7, 2–3 (2003).

3

See generally DANIEL CHARLES,LORDS OF THE HARVEST:BIOTECH,BIG MONEY,AND THE FUTURE

OF FOOD (2002).

4

Adam Garmezy, Patent Exhaustion and the Federal Circuit’s Deviant Conditional Sale Doctrine:

Bowman v. Monsanto,8D

UKE J. CONST.L.&PUB.POL’YSIDEBAR 197, 214 (2013).

5

Following closely behind are trade secrets. In the agricultural biotechnology context, it is

not only customer lists, technical information, and business plans that can be protected,

but also production methods and delivery systems of the agricultural product. See Robert

Graham Gibbons & Bryan J. Vogel, The Increasing Importance of Trade Secret Protection in the

Biotechnology, Pharmaceutical and Medical Device Fields,89J.PAT.&TRADEMARK OFF.SOC’Y

261, 273–77 (2007) (discussing cases “illustrative of the importance of . . . carefully and dil-

igently policing access to . . . use . . .and dissemination of any information deemed to be

conf‌idential or to constitute a trade secret”); Margo E. K. Reder & Christine Neylon

O’Brien, Managing the Risk of Trade Secret Loss Due to Job Mobility in an Innovation Economy

with the Theory of Inevitable Disclosure,12J.H

IGH TECH. L. 373, 381–85, 391 (2012) (def‌ining

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invent in the biotechnology arena, intellectual property rights are

important for fostering innovation.

6

Agricultural f‌irms certainly view

them as essential assets, but the application of intellectual property

rights can have a negative side as well. When important innovations are

locked up from general public access, even for a short period of time,

the result may be increased prices and reduced access.

7

Age-old prac-

tices like saving seeds for future planting may be newly curtailed. Indi-

vidual farmers and producers in developing regions may be

disadvantaged if access is not reasonably available. Biodiversity could be

indirectly compromised through the use of narrower, proprietary

technologies.

8

Limitations on access to agricultural technology may also contravene

our desire to satisfy essential human needs. Food is something so basic

to existence that it is described in the language of human rights. For

example, Article 25 of the Universal Declaration of Human Rights

(UDHR) states that “Everyone has the right to a standard of living

adequate for the health and well-being of himself and his family, includ-

ing food ....”

9

Article 11 of the International Covenant on Economic,

Social and Cultural Rights (ICESCR) includes similar language with the

trade secrets and identifying protection methods). Even test results from new products can

be retained as trade secrets to the extent they are not subject to regulatory submission.

Gibbons & Vogel, supra at 268. See also David E. Korn, Note, Patent and Trade Secret Protec-

tion in University-Industry Research Relationships in Biotechnology,24H

ARV.J.ON LEGIS. 191,

219 (1987) (“Both the Restatement (Second) of Torts and the Uniform Trade Secrets Act

def‌initions dictate that companies may protect, for example, the sequencing of data bases,

chemical formulae, hybridization conditions, cell lines, microbes used in fermentation, new

processes, the apparatus used in the processes, and even test results from the clinical test-

ing of drugs.”). Trade secrets are especially important because in some areas of agricul-

tural biotechnology, such as the case of seed, many varieties of seed replicate and create a

perfect copy of the original that was so costly to develop. See Elizabeth I. Winston, A Patent

Misperception,16L

EWIS &CLARK L. REV. 289, 311 (2012).

6

Nicholson, supra note 2, at 6.

7

See Laurie E. Abbott, Note, Incentive for Innovation or Invitation to Inhumanity?: A Human

Rights Analysis of Gene Patenting and the Case of Myriad Genetics, 2012 UTAH L. REV. 497, 502.

8

Keith Aoki, Seeds of Dispute: Intellectual-Property Rights and Agricultural Biodiversity,3GOLDEN

GATE U. ENVTL. L.J. 79, 159 (2009).

9

Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III)

(Dec. 10, 1948) [hereinafter UDHR].

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