Intellectual Property Rights and Agricultural Productivity

1
Intellectual Property Rights and Agricultural
Productivity

• Victor Mosoti
• Legal Officer
• Development Law Service
• FAO Legal Office

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Objectives

• What are IPRs?
• Which IPRs impact on agriculture and food
  security?
• What legal instruments regulate IPRs? Focus on
  TRIPs, UPOV, CBD and ITPGRFA?
• What are the implementation issues in IPRs?

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Introduction

• Needless to emphasize agriculture is important
  for food, incomes, employment etc.
• High agricultural productivity impacts on prices
  and overall economic growth.
• Agricultural productivity in turn depends on
• changes in science and technology innovation
• The capacity of relevant institutions

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What are IPRs.?

• IPRs simply a means for protecting or rewarding
  creativity and innovation
• Note its a way for inventors to recoup costs!
• IPRs create a challenge the balancing of private
  interests and public interests.
• Note balancing the two is the objective of
  national IPR legislation.
• in general terms, debate is between gene-rich
  but technologically poor South against the
  gene-poor but technologically rich North.

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IPRs and agricultural innovation

• Developed countries scientific and technological
  advancements led to the industrial and
  agricultural revolutions
• Note Most research done by individual/private
  sector players
• Developing countries most agricultural
  innovation occurred traditionally at the
  farm-level through
• on-farm experiments
• selection and adaptation
• and purposive breeding by crossing plant
  varieties
• Note formal research done by national research
  institutions with support from CGIARs system.
• Result Both formal and informal innovation have
  led to new or improved crop varieties hence a
  positive impact on productivity, nutritional
  levels and food

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Research challenges and the need to address them

• Private sector research driven by market forces.
  Much of it does not benefit poor farmers.
• Public sector research investment by governments
  has declined significantly (while rising in the
  private sector)leaving dominance to private
  players.
• Biotechnology has expanded the possibilities of
  what may be achieved through research (SOFA,
  2004).

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The nature of the tension between PBRs and
Farmers Rights

• Plant breeders keen to make some profit from
  their research research investment.
• Like other IPRs PBRs are an incentive to
  breeders.
• Farmers have traditionally replanted, exchanged
  or locally sold seeds from previous seasons.
• Note poor farmers do not buy seed every season
• Note breeders are not able to recoup their
  investment
• IPRs (Patents and PBRs) normally impose
  restrictions on farmers ability to replant,
  exchange or sell seed.

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The nature of the tension between PBRs and
Farmers Rights

• In turn, these restrictions have a potentially
  negative impact on
• Rural livelihoods and food security
• Benefits both to producers and consumers
• Future research prospects

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How does the WTO come in?

• TRIPs Agreement (Article 27.3(b) requires WTO
• Members to protect plant varieties.
• Members may exclude from patentability plants
  and animals other than micro-organisms, and
  essentially, biological processes for the
  production of plants or animals other than
  non-biological and microbiological processes.
  However, Members shall provide for the protection
  of plant varieties either by patents or by
  effective sui generis systems or by any
  combination thereof.

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Traditional knowledgean unresolved issue

• PBRs are geared towards encouraging plant
  breeders and to confer an economic benefit based
  on their investment.
• Traditional farming communities conducted farm
  based selection, experimentation and
  cross-breeding.
• These practices constitute traditional
  knowledge.
• Though not (yet) an IPR, it has raised the
  difficult question
• Should traditional knowledge be protected or
  rewarded?

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What are the international legal instruments to
resolve the tensions?

• TRIPs establishes minimum standards for
  trade-related aspects of IPRs. Article 27.3(b).
• ITPGRFA recognizes farmers rights and leaves
  its implementation to countries. Article 9.
• UPOV protects plant breeders rights. Revised in
  1978 and 1991. Article 25.
• CBD recognizes countries sovereignty over their
  natural resources. Article 3.

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TRIPsjust how much flexibility for countries to
design PVP legislation?

• TRIPs establishes minimum standards for
  trade-related aspects of IPRs. Article 27.3(b)
  requires protection of plant varieties.
• The section gives three options for the mandatory
  protection of plant varieties
• Patents
• An effective sui generis system
• Patents plus a breeders rights regime
• effective sui generis system not definedmore
  emphasis on what a sui generis system might be.

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How is TRIPs to implemented at the national
level?

• Article 1(1) Members free to determine the
  appropriate method of implementing TRIPs within
  their own legal systems and practice.
• Options of implementation
• by short statute giving it force in a country
  but most countries opt for more comprehensive
  statute.
• Drafting of compatible national legislation - sui
  generis system.
• The obligations of Article 27.3(b), generally
  require the implementation of a comprehensive and
  coherent legislation.

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Notification requirements under TRIPs

• Article 63.2 prompt notification of laws and
  regulations addressing the subject matter of the
  agreement.
• Plusoffer explanations on how the laws meet the
  corresponding obligations or standard.
• Article 69 notify contact points in the
  administration for cooperation purposes.
• Other notification requirements under the Berne
  and Rome Conventions still have to be made to the
  TRIPs Council even if already made to the
  respective conventions.

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UPOV

• Signed in 1961 revised in 1978 and 1991. 1978
  version closed for signature.
• Note What is the difference between the two? the
  scope of the farmers exemption.
• Some positive aspects
• it provides a ready-made legal framework for
  countries
• Developing countries with high value exports
  (flowers, fruits, vegetables) may benefit from
  protection of varieties
• Some doubts have been expressed
• designed with commercialized farming in mind
• applicability to developing countries in doubt
  (CIPR, 2002)
• criteria for PVP certification less stringent (no
  innovation)
• requirement of uniformity-local varieties
  heterogeneous
• hence potential loss of biodiversity.

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TRIPs, UPOV and the farmers exception

• Sui generis systems should allow farmers to
  re-use, exchange and sell seeds.
• UPOV 1978 allowed re-use, selling and exchange
  of seeds
• UPOV 1991 only allows re-use. Very stringent and
  unclear criteria on selling and local exchange.
• TRIPs is silent on any exceptions (including the
  farmers exception - only requires countries to
  protect plant varieties.

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UPOV

• Signed in 1961 revised in 1978 and 1991. 1978
  version closed for signature.
• Note What is the difference between the two? the
  scope of the farmers exemption.
• Some positive aspects
• it provides a ready-made legal framework for
  countries
• Developing countries with high value exports
  (flowers, fruits, vegetables) may benefit from
  protection of varieties
• Some negative aspects
• designed with commercialized farming in mind
• applicability to developing countries in doubt
  (CIPR, 2002)
• criteria for PVP certification less stringent (no
  innovation)
• requirement of uniformity-local varieties
  heterogeneous
• hence potential loss of biodiversity.

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UPOV 78, UPOV 91 and TRIPs
Scope of farmers exception UPOV 1978 UPOV 1991 TRIPs
Right to re-use seeds and plant varieties Yes Yes Silent
Right to exchange seeds and plant varieties locally Yes Almost No Silent
Rights to sell seeds and plant varieties Yes Almost No Silent
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TRIPs, UPOV and the farmers exception

• UPOV 1978 allowed re-use, selling and exchange
  of seeds
• UPOV 1991 only allows re-use. Very stringent and
  unclear criteria on selling and local exchange.
• TRIPs is silent on any exceptions (only requires
  countries to protect plant varieties).

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and the relevant legal instruments are

• 1983 FAO Undertaking to address the imbalance
  btn. IPRs and farmers rights. PGR as a common
  heritage.
• 1989 Resolution 5/89 incorporated farmers rights
  into the International Undertaking.
• 1992 CBD recognizes countries sovereignty over
  their natural resources. Article 3.
• 2001 ITPGRFA objective facilitate access to
  PGR. recognizes farmers rights. implementation up
  to the countries themselves. Article 9.

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ITPGRFA, access to plant genetic resources and
farmers rights

• There are however some challenges
• conservation of genetic resources important for
  future agricultural research.
• access by researchers on terms that recognize
  contributing farmers in developing countries

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Conclusions

• Options for meeting obligations under TRIPs and
  PVP
• UPOV-style legislation (based on UPOV78 or 91)
• another form of sui generis legislation
• patents on plant varieties
• Presently little evidence that patent protection
  is really in the interests of heavily agrarian
  countries
• Countries with potential to develop
  biotech-related industries may wish to provide
  certain types of patent protection
• Continuing review of Art. 27.3(b) should preserve
  right of countries to
• use sui generis regimes
• not grant patents if they wish
• Public sector research to be strengthened.