38 I EUROPEAN SEED I EUROPEAN-SEED.COM involves access to the material, but in principle not its “utilisa- tion”. A project typically starts off with thousands of samples of different genetic resources, all of which have been accessed and screened for the presence of a characteristic. However, most of these samples will turn out not to be further used for product development. Only those product leads that are actually used for further product development are subject to “utilisation” within the meaning of ABS regulations (regardless of any specific obli- gations in the MAT). PO: From today’s perspective, it seems that only a few court cases could help clarify points of legal uncertainty. Which is unfortunate, because those may be years into the future and will be costly to the parties involved. Rather than be distorted by partisan or nationalist interests, the modification of the ITPGRFA’s Standard Material Transfer Agreement (SMTA) and the government-sponsored consulta- tions on Nagoya implementation need to simultaneously and uncompromisingly address these overriding principles: 1. Biodiversity should be conserved 2. Biodiversity must be accessible to benefit humankind 3.  Plant breeding enhances and expands biodiversity and is a major form of benefit sharing. FM: Countries should publish their legislation on the Clearinghouse website to facilitate access and use. Ideally, greater harmonization among countries is required to support more effi- cient and effective genetic resource use. We also need clarity on scope, and we worry about proposals to expand scope with deriva- tives, and information about genetic resources. (To arrive at legal clarity there needs to be) Accessible legislation and timely issue of permits, which could be facilitated by online tools. ES: OVERALL DO YOU THINK THERE IS A BENEFIT TO ALL THESE REGULATIONS? OR IS IT JUST A BURDEN? DM: A balanced application of ABS requirements could help in safeguarding biodiversity conservation and at the same time secure access to genetic resources thereby enabling continued sustainable use of genetic resources. An overly broad applica- tion of ABS requirements by applying a protectionist view on access and a unilateral view on benefit sharing, detached from economic realities, can however stifle natural product research, thereby substantially reducing the value of genetic resources and the incentive for biodiversity conservation. In addition, it will be essential to ensure a balance between all different legal systems that provide for proprietary rights, both from a public and a private point of view, on biological mate- rial. Sovereign rights over genetic resources can be qualified as public intellectual property rights and need to co-exist with pri- vate rights, in particular private intellectual property rights. It is of key importance to ensure that an effective scope of protection by private intellectual property rights is not undermined by a broad application of public intellectual property rights. In that regard, it is important to note that whether material is protected by an intellectual property right (e.g. a patent) or not does in principle not have an effect on the ABS obligations of a user of genetic resources. Intellectual property rights are private propri- etary rights granted pursuant to relevant intellectual property laws, while obligations for ABS derive from the public sovereign rights of States (de facto establishing a public proprietary right) over their genetic resources. In addition to the rights obtained pursuant to the grant of an intellectual property right, the owner might also have certain obligations under the relevant rules on ABS due to the use of a genetic resource. There is, in principle, no conflict between the affirmation of the sovereign rights of a State over its genetic resources and the recognition of the private rights held by a non-state actor pursuant to a granted intellec- tual property right (even in cases of an intellectual property right being granted for an invention involving the use of a genetic resources – this does not infer such an intellectual property right could claim the genetic resource as such). PO: The principle behind genetic resource ABS regulations is justifiable, and good legislation could lead to improved access and benefit sharing.  However, current ABS legislation with so many legal uncertainties could create the opposite outcome. This means future products may be less diverse. Furthermore, unclear or excessive regulation can make it more difficult for breeders to establish or expand a business.   ABS is not a burden, but an obligation that the seed industry has taken seriously and lived for many years. The initial value shared through the Breeders Exemption is significant – with a major global impact. In addition, private industry donates substantial funds for local genetic resource conservation and capacity building around the world.  These parts of the story is ignored and under-appreciated by many. Moreover, with current regulations, more governmental and business resources may go to administration of ABS bureaucracy rather than biodiversity conservation and biodiversity expan- sion via breeding.  In many countries at present, much is lost in clarifying how the agriculture ministry (in charge of ITPGRFA) and environmental ministry (in charge of Nagoya) effectively collaborate in implementing ABS legislation.  FM: The three overall objectives of the CBD (conservation, sus- tainable use, and sharing of benefits from utilization) are very valuable, but the implementation measures that are currently taking shape could be more efficient and effective. ES: HOW DO YOU SEE THE FUTURE, LET’S SAY IN 20 YEARS FROM NOW? FM: Human population will be bigger, with increased pressure on many limited resources. Even more than today, we will have to understand, and actively manage and maintain the environ- ment we live in. Science and innovation is part of the solution, and genetic resources are key. As a global contributor, we remain actively engaged in ena- bling sustainable use of genetic resources, supported by simpli- fied, effectively implemented and harmonized national policy that delivers on the global goals of the Convention on Biological Diversity. PO: Depending if the ABS political pendulum takes the needs of commercial stakeholders into serious account, there are two potential scenarios. If ABS rules develop without stakeholder input, then legal uncertainties around genetic resource access will continue to increase.  This could turn many gene bank col- lections into museums of unaccessed genetic resources that in time will lose both government and industry support. We also need to promote basic biological research by ensuring that DNA sequence information does not become highly regulated. In a more positive future, as more predictable, business reasona- ble approaches to ABS emerge to truly enable access, use and enhancement of genetic resources, countries will enjoy even more benefits from improved agriculture.  Improved agricul- ture will also help countries better play their traditional role in protecting biodiversity and making resources available for the benefit of humanity. Editor’s Note: This article has been condensed for print. Please go to European-Seed.com to read the full version.