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Back to GRC Homepage Frequently Asked Questions
on the
International Treaty for Plant Genetic Resources for Food and Agriculture
and the
Standard Material Transfer Agreement (SMTA)
 

The Food and Agriculture of the United Nations (FAO) has a website answering some Frequently Asked Questions (FAQs) on the International Treaty.

With the kind permission of FAO, we reproduce the text of the FAO FAQs, and have added our own set of FAQs relating more specifically to issues of particular interest to IRRI and breeders who obtain plant genetic resources for food and agriculture from IRRI.

FAO’s Frequently Asked Questions

The following are additional FAQs covering the implications of the International Treaty for accessing germplasm from IRRI. The questions have been compiled based on real enquiries, and the answers have been prepared in consultation with Bioversity International and other members of the System-wide Genetic Resources Programme:

What are "plant genetic resources for food and agriculture"?
The Treaty defines them as "any genetic material of plant origin of actual or potential value for food and agriculture".

What are the Treaty's objectives?
Its objectives are the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of benefits derived from their use, in harmony with the Convention on Biological Diversity, for sustainable agriculture and food security.

What is the Multilateral System for Access and Benefit-Sharing?
Through the Treaty, countries agree to establish an efficient, effective and transparent Multilateral System to facilitate access to plant genetic resources for food and agriculture, and to share the benefits in a fair and equitable way. The Multilateral System applies to over 64 major crops and forages. The Governing Body of the Treaty, which will be composed of the countries that have ratified it, will set out the conditions for access and benefit-sharing in a "Material Transfer Agreement".

What are the conditions for access in the Multilateral System?
Resources may be obtained from the Multilateral System for utilization and conservation in research, breeding and training. When a commercial product is developed using these resources, the Treaty provides for payment of an equitable share of the resulting monetary benefits, if this product may not be used without restriction by others for further research and breeding. If others may use it, payment is voluntary.

How does the Treaty protect Farmers' Rights?
The Treaty recognizes the enormous contribution that farmers and their communities have made and continue to make to the conservation and development of plant genetic resources. This is the basis for Farmers' Rights, which include the protection of traditional knowledge, and the right to participate equitably in benefit-sharing and in national decision-making about plant genetic resources. It gives governments the responsibility for implementing these rights.

Who benefits from the Treaty and how?
All benefit, in many ways:

When did the Treaty come into force?
The Treaty came into force on 29 June 2004; ninety days after forty governments had ratified it. Governments that have ratified it will make up its Governing Body. At its first meeting, this Governing Body will address important questions, such as the level, form and manner of monetary payments on commercialization, a standard Material Transfer Agreement for plant genetic resources, mechanisms to promote compliance with the Treaty, and the funding strategy.

Implications of the International Treaty for Accessing Germplasm from IRRI
The following are the additional FAQs covering the implications of the International Treaty for accessing germplasm from IRRI

What is the Standard Material Transfer Agreement?
The SMTA is the standard agreement that sets out the terms and conditions under which PGRFA can be accessed under the Multilateral System. All transfers of germplasm under the Multilateral System must be under the SMTA. This means that all transfers from IRRI and any other CG Centre of germplasm covered by the Multilateral System will by under the SMTA. So also will any transfers of germplasm under the Multilateral System from national collections in Contracting Parties to the Treaty, including transfers to IRRI. The text of the SMTA was adopted by the Governing Body of the Treaty at its First Session in June 2006. The SMTA cannot be varied. When PGRFA is transferred under the SMTA, the material being transferred will need to be listed in an Annex to the SMTA (Annex 1).

Am I authorized to accept the terms and conditions of the SMTA?
Under the Treaty, we must facilitate access to any “legal and natural persons under the jurisdiction of any Contracting Party” – that means any individual or organization in a country that is a member of the Treaty. We choose also to grant the same privilege to individuals and organizations from non-member countries. So, as far as the Treaty is concerned and as far as we are concerned, yes you are definitely authorized.

However, you need to be careful about who is accepting liability. If you accept the SMTA in your own name, you are personally liable to fulfil the obligations specified in the SMTA. If you are working for an organization and expect your organization to fulfil those obligations, you must make sure that agreement is given by the person authorized to make such a commitment by your organization.

Note that this authorization is only at the institutional level – you do not need to seek authorization from the Governing Body or from your Government.

Do I now have to sign the SMTA every time I ask for germplasm from IRRI?
You will have to accept the SMTA every time you ask for germplasm. But that doesn’t mean that you will have to sign it each time. The SMTA provides for three ways in which you can accept the SMTA.

  1. You can accept it by signing it
  2. If you are ordering over the internet, you can accept the SMTA on line by clicking on the box marked “I agree to the above conditions” (this is called a “click-wrap” form of acceptance, and is basically the same as when you order goods or services from any internet website); (Note: this form of acceptance is not yet available at IRRI)
  3. If you receive material that you have ordered without having signed the SMTA, it will be accompanied by a printed copy of the SMTA and a note to the effect that if you accept the material and use it, you will be bound by the terms and conditions of the SMTA (this is called a “shrink-wrap” form of acceptance, and is basically the same as buying copies of computer software). This is currently the preferred method at IRRI, since it minimizes the administrative overheads and minimizes the time taken to send you material.

Do I now have to pay for germplasm I ask for from IRRI?
No. The International Treaty requires us to give access to germplasm expeditiously and free of charge. The Treaty does allow us to charge for the administrative costs involved in making germplasm available. We do not currently make such a charge, although we do request breeders and genebanks in developed countries to make a voluntary donation to cover the costs of shipment and phytosanitary certification. The Treaty also allows us to charge for improved breeding materials which we classify as “plant genetic resources for food and agriculture under development”. But again, we have no plans to make any such charge at the moment.

If you use germplasm of crops listed in Annex 1 of the Treaty provided to you by IRRI, AND you breed a new PGRFA product AND you commercialize that product, AND you take out a patent on that product that restricts the further use of that product by others for research or breeding, or otherwise take legal or technological measures that restrict the further use of that product by others for research or breeding, then you will be required to make a payment to the international fund established by the Treaty. If you merely take out UPOV type plant varietal protection over the new product, you will NOT be required to make a payment to the international fund, since UPOV type plant varietal protection does not restrict the further use of that product by others for research or breeding. Other types of plant varietal protection that are not UPOV compliant may have the effect of restricting further availability for research and breeding.

Is there any way to contribute voluntarily to the international fund, even if I am not legally required to do so?
If you do not restrict the availability to others of products incorporating Annex 1 IRRI germplasm for further research and breeding, you are not legally required to make any payment to the international fund set up by the Treaty. You are, however, encouraged to make a voluntary payment. Please note that you are merely encouraged to make the payment. You are not legally required to make the payment.

Do I have to track how I use IRRI germplasm in my breeding programme?
There is no formal legal obligation in the SMTA to track how you use IRRI germplasm in your breeding programme. However normally it is always advisable to keep records documenting the receipt and use of IRRI breeding materials. This is normal plant breeding practice.

You will need to keep records of the germplasm you receive with an SMTA, because if IRRI provides you with germplasm of crops listed in Annex 1 of the Treaty and you choose to keep that germplasm, you will need to make it available to other users if they ask you for it. If you make it available to others, then you will have to do so under a new SMTA.

You will also need to keep records of which breeding lines you derive from germplasm received with SMTA, because if you send samples of those breeding lines to others, then you will also need to do so under a new SMTA.

If you choose to send those breeding lines as PGRFA under Development, then in the new SMTA you must declare the germplasm that you received with the SMTA and used to develop your breeding lines. Therefore you must keep records of which germplasm you used to develop each breeding line.

If you choose to send those breeding lines as PGRFA under Development, then in the new SMTA you must declare the germplasm that you received with the SMTA and used to develop your breeding lines. Therefore you must keep records of which germplasm you used to develop each breeding line.

If you breed a new PGRFA product using the germplasm acquired from IRRI, commercialize it and restrict further access to the product by others for research and breeding e.g. through some forms of patenting, then you will be required to make a payment to the international fund established by the Treaty. (See above)

Do I have to make payments if I release a variety containing IRRI germplasm?
No. The Treaty is designed to facilitate the exchange of plant genetic resources for food and agriculture and the use of those resources for further breeding and research. Releasing a new variety developed from IRRI germplasm will not trigger mandatory payments, unless you commercialize a new variety developed from Annex 1 germplasm and you restrict its availability for further research and breeding e.g. through some forms of patenting.

Plant Varietal Protection (PVP) under UPOV does not restrict the further use of the variety for research and breeding. Sui generis PVP may restrict further use, but such PVP laws are not UPOV-compliant. If your country has a PVP system but is not a UPOV member, you should find out whether your PVP laws restrict further use. Patent protection may in some jurisdictions restrict availability for further research and breeding. So may some technological or contractual restrictions.

Do I have to make payments if I apply for plant breeder’s rights for a variety containing IRRI germplasm?
Not normally. Plant Breeder’s Rights under UPOV type Plant Varietal Protection (PVP) laws do not restrict the further use of the variety for research and breeding. Commercialization of a new variety that is protected by this type of Plant Breeder’s Rights developed from IRRI germplasm would not trigger mandatory payments under the Treaty.

Plant Breeder’s Rights under sui generis PVP laws may restrict further use for research and breeding. Such PVP laws are not UPOV-compliant. If your country has a PVP system but is not a UPOV member, you should find out whether your PVP laws restrict further use. Patent protection may in some jurisdictions restrict availability for further research and breeding. So may some technological or contractual restrictions.

When would I be legally required to make payments?
The Treaty and the SMTA provide that payments must be made when the following conditions are met:

Do I have to make payments if I patent a variety containing IRRI germplasm?
You may have to make payments if you commercialize a variety that has been patented. This will depend on whether the patent protection restricts availability of the product for further research and breeding. As a general rule, US utility patents will restrict availability for further research and breeding. Some European patents will not. Please note that just patenting a variety will not trigger mandatory payments. The trigger is when the variety is commercialized. For more information on patents, see below.

What are patents, and which ones would trigger mandatory payments?
Patents are grants made by a government that confer upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.

The Treaty provides that payments must be made if a product incorporating germplasm accessed from the Multilateral System is commercialized and the availability of the product for research and breeding by others is restricted.

Patent protection differs from country to country. You will need to seek legal advice on the situation in your own country. The following general review is of course subject to that proviso.

As a general rule, US utility patents will restrict availability for further research and breeding, unless of course the patent holder were to undertake to issue free licenses to whomsoever wished to use the patented product for research or breeding. On the other hand, patents under the US Plant Patent Act cover only asexually reproduced plants, and thus would not restrict availability for breeding.

As a general rule in Europe, patents do not restrict availability for research. France and Germany have new legislation that extends this exemption to breeding. Switzerland is considering adopting similar legislation. Netherlands and UK patents still don’t provide for a breeding exemption.

Patent protection in Japan does not cover acts carried out for the purpose of experiment or research. However it would restrict availability for commercial breeding.

There is an “experimental use” exemption also under the patent law in Australia, but again this would not extend to commercial breeding.

The situation is similar in New Zealand, though there the “experimental use” exemption is based on judicial practice rather than legislation.

Please note that just patenting a variety will not trigger mandatory payments. Triggering occurs when the variety is commercialized.

What other restrictions would trigger mandatory payments?
The Treaty and the SMTA provide that payments must be made when the following conditions are met:

If I need to make payments, who do I pay and what records do I need to provide?
Payments are to be made to the international fund set up by the Governing Body of the Treaty. Please note that they are not to be made to IRRI. The funds generated will be used for the purposes of implementing the Treaty and the benefits will flow primarily directly and indirectly to farmers in all countries, especially in developing countries and countries with economies in transition who conserve and sustainably utilize plant genetic resources for food and agriculture. Payments should be made in US dollars to the following account:

If you become liable to make payments to the Governing Body on commercializing a product, you must submit annual reports together with your annual payments.

Each annual report must be submitted to the Governing Body within sixty (60) days after each calendar year ending December 31st and should contain the following:

Reports should be addressed to

What does the alternative payments scheme provided for under Article 6.11 entail?
When you receive germplasm from IRRI, you have a choice between the normal payments scheme provided for in Article 6.7 of the SMTA, and the alternative payments scheme provided for under Article 6.11.

The normal payments scheme requires you to pay 1.1% of the Sales of the Product less 30%; i.e. 0.77%.

The alternsative payment scheme provides for

Do I have an obligation to track how I share IRRI germplasm with others?
If you pass on IRRI germplasm listed in Annex 1 of the Treaty to others, you must do so under a new SMTA, i.e. you will need to fill out a new SMTA and send the germplasm under that SMTA.

You then become a “Provider” of PGRFA under the Treaty and are required to inform the Governing Body periodically about the SMTAs you have issued. The Governing Body will establish the schedule for such reports. The Secretariat of the Treaty will provide guidelines as to the recommended format for reports in due course. These guidelines will be reported on this webpage when they are available.

Do I have an obligation to track how I share with others the progeny descendants that I develop from the germplasm I originally obtained from IRRI?
You should treat germplasm you develop from IRRI germplasm in the same way as the original germplasm i.e. it must be transferred under a new SMTA and reports made to the Governing Body as described in the reply to the previous question. Of course, this does not stop you in any way from developing new varieties from the original germplasm or from taking out intellectual property rights over those new varieties.

Do my obligations differ if I access IRRI germplasm in the form of PGRFA under Development rather than as unimproved germplasm?
If you access IRRI in the form of PGRFA under Development, you do not have to make that germplasm available to others while you are continuing to develop it. You in effect become the new “developer” of the PGRFA under Development and have the same developer’s rights as IRRI has over the material. Article 6.5 of the SMTA specifically provides that where PGRFA under Development is transferred under the SMTA, the Recipient will not be bound by the provisions of Article 5a of the SMTA, i.e. the obligation to make the material available expeditiously etc. Whether or not to make the material available is a matter within your discretion as its new developer during the period of its development.

There is also another difference in the status of PGRFA under Development. IRRI is authorized under the Treaty and the terms of the SMTA to make the transfer of PGRFA under Development subject to additional conditions. At the moment, IRRI does not make the transfer of PGRFA under Development subject to additional conditions, but reserves the right to do so in the future. If additional conditions are set, these will be set out in an additional contract that will go along with the SMTA.

What exactly does PCGRFA under Development mean?
PGRFA under Development are basically breeders’ lines derived from Material from the Multilateral System, that you are currently working on and which you may not wish to release in their present form, because they are still under development.

Under the Treaty and the SMTA, you as developer (i.e. breeder) do not have to make PGRFA under Development available to others during the period of their development. You, as developer, have the discretion as to whether or not to make them available.

If, in the exercise of your discretion, you decide to transfer PGRFA under Development derived from material from the Multilateral System (normally you would have got the original material under an SMTA), you must do so under the normal SMTA. However, since it is still PGRFA under Development, it is understood that the obligation to make the material available expeditiously and without payment (Article 5a) will not be passed on. You will in effect become the “new developer” and will have the developer’s discretion about if and when to make the material available during the period of its development.

If you do make the PGRFA under Development available to others, remember that:

If I am working on developing a new variety using germplasm obtained from IRRI under an SMTA, do I have to make my breeder’s lines available to others?
No. That is the whole point of the idea of PGRFA under Development. PGRFA under Development does not have to be made available during the period of its development. It is up to you, in your own discretion, to decide whether or not you should make it available, or when the period of development is finished. But if you do make it available, you must do so under the SMTA, although you may make the transfer subject to additional conditions, including the payment of monetary consideration.

Do I have to make any reports to the Governing Body of the Treaty?
There are a number of references in the SMTA to notifications that must be sent to the Governing Body. The following is a complete list:

In principle, all notifications to the Governing Body should be sent to the following address:

I am a farmer. Can I receive seed from you to grow on my farm and sell in the market?
Yes. Like any other recipient of germplasm from IRRI, you will have to abide by the terms and conditions of the SMTA. It is recognized that farmers are also experimental breeders, researching and breeding lines for use on their farm. Therefore use on farm is within the scope of acceptable use, and the SMTA does not prohibit sale of the produce.

I want to share germplasm received from you with my colleagues at work. Should I to use the SMTA for internal transfers within my organization?
The SMTA is a legally binding contract between the provider and the recipient. When you accept germplasm with SMTA, the acceptance should be by your organization, not by you as an individual. In this case, the SMTA automatically applies to all employees in your organization, and technically you do not need to use the SMTA for internal transfers.

However, when transferring internally without SMTA, you should ensure that your colleagues are aware that their use of the material is also governed by the SMTA.

I want to share germplasm received from you with colleagues in a subsidiary station of my organization in another country. Should I to use the SMTA for transfers to them?
The SMTA is a legally binding contract between the provider and the recipient. When you accept germplasm with SMTA, the acceptance should be by your organization, not by you as an individual. In this case, the SMTA automatically applies to all employees in your organization.

For transfers to a subsidiary body in another country, the key question is, does that subsidiary body have its own separate status as a legal entity? If it does, then your acceptance of the SMTA would not automatically apply to it and you would need to use the SMTA for transfers to it. If it does not, then your acceptance of the SMTA should apply to it, and you only need to ensure that your colleagues are aware that their use of the material is also governed by the SMTA.

Can we modify the terms and conditions of the SMTA?
The text of the SMTA was decided by negotiation between all governments on the Governing Body of the Treaty (which means all governments that are Party to the Treaty). IRRIis bound by legal contract with the Governing Body to use the SMTA for germplasm exchange. As such, the terms and conditions of the SMTA must not be modified at all.

In future, the Governing Body may decide to re-negotiate the text. Until that time, the text is fixed.

PGRFA under Development represent a special case, in that additional terms and conditions can be appended to the SMTA, provided that they are not inconsistent with the terms and conditions of the SMTA and provided that the main body of the SMTA remains unchanged.

If I use the seeds just as a vehicle for creating a transgenic event, and backcross the resulting plants to remove all genes, coding sequences, promoters or other operational elements of the original germplasm, leaving only small pieces of non-functional DNA from the original germplasm at the edges of the transgene, is the product still bound by the conditions of the SMTA for products?
Yes. The SMTA does not specify a lower threshold either in terms of amount or functionality of DNA in the product. If you have used the germplasm to create your product, and the product contains any DNA at all from the germplasm, it is bound by the terms and conditions of the SMTA.

I do not understand how to exercise “where the Product available without restriction to others for further breeding” or under which conditions “the Product would not be available without restrictions to others for further breeding”.
Under the “breeders’ exemption” of UPOV-compliant Plant Variety Protection, even protected varieties must be freely available to others for further breeding and research. Where a variety or gene is protected by patent, usually the material is not available without specific authorization from the breeder.

If the Material is used as a genetic background for initial insertion of traits in order to create a transgenic event, could we protect the event, i.e. the transgene insertion?
Yes. The SMTA allows you to protect you own IP, as long as you conform with article 6.2, i.e. that you shall “not claim any intellectual property or other rights that limit the facilitated access to the Material provided under this Agreement, or its genetic parts or components, in the form received from the Multilateral System”