Plant Varieties, Biodiversity and Developing Countries
By
Hossam El-SAGHIR
James MWIJUKYE
Grace ISSAHAQUE
Introduction
SECTION I
Plant Variety Protection at the International Level
I. The UPOV Convention
A. Overview
B. Conditions and Scope
C. Duration
II. The TRIPs Agreement
A. Options of Plant Varieties Protection
B. Patent v. Sui generis System
III. Do Categories of IP Covered by TRIPS Include Plant Varieties?
IIII.TRIPS-plus
SECTION 2
Biological Resources and Farmers’ Rights
1
1.Biopiracy and Practices of Biotechnology Companies
A. Biopiracy
B. Terminator Technology
II. Regulation of Access to Biological Resources at the International
Level
A. Convention on Biological Diversity (CBD)
B. International Treaty on Plant Genetic Resources on Food and Agriculture
(PGRFA)
III. Origin of the Concept of Farmers’ Rights and its Various Elements
A. The International Undertaking (IU)
B. Farmers’ Rights under the PGRFA Treaty
IV. The Relationship Between Farmers’ Rights and Intellectual
Property
V. Legal Means of Protecting Farmers’ Rights and Implementation
VI. Conclusion
Bibliography
2
INTRODUCTION
Plant varieties protection in form of plant breeders’ rights has been in existence in
industrialized countries for a long time. From the 1920s a number of European Countries
have recognized various kinds of plant breeders’ rights. From the 1930s, plant varieties
were admitted to patent protection in the United States and Germany and subsequently
many developed countries.1 At the international level, the Convention of the International
Union for Protection of New Varieties of Plants (UPOV), first adopted in 1961 and has
been subsequently revised in 1972, 1978 and 1991, has recognized the need for
protecting varieties of plants to safeguard the interest of breeders.
The introduction of intellectual property rights, as one of the new issues in Uruguay
Round GATT negotiations, was approved at the Ministerial meeting held in Punta del
Este in 1986.2 The WTO Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPs Agreement), one of the results of the Uruguay Round, states that WTO
members “… shall provide for the protection of plant varieties either by patents or by
effective sui generis system or by any combination thereof.”3. The obligation to introduce
plant varieties protection in developing countries is a novelty for all but a few. It will
bring fundamental changes to their legal system and constitute significant departure from
previous practices which generally empathized the free sharing of knowledge at all
levels4. Moreover, it affects access to propagating material (seeds) by local or rural
communities where most population meet their basic needs largely from traditional
farming. Farming communities have a well established practice of saving exchanging and
replanting seeds which may be restricted under plant breeders’ rights. Accordingly, the
recognition and the grant of an intellectual property right to the breeder of new plant
variety is not welcomed in a large number of developing countries.5
1
M.BLAKENEY, Trade Related Aspects of Intellectual property Rights: A Concise Guide to the TRIPs
Agreement, Sweet & Maxwell, 1996, London, p 21.
2
The negotiations were completed on December, 1993, and the Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations was signed in April 15, 1994 in Marrakech (Morocco).
3
Article 27.3 (b)
4
P. CULLET, Plant Variety Protection in Africa: Towards Compliance With The TRIPs Agreement, 45
Journal of African Law, 2001, p. 97.
5
T. KONGOLO, New Options for African Countries regarding Protection for New Varieties of Plants, 4
JWIP, 2001 p.349.
3
The TRIPs Agreement leaves to each country’s discretion whether to protect new
plant varieties by means of patent or by effective sui generis system or by any
combination thereof. TRIPS contains no further standard as to what constitutes an
effective sui generis system, nor does it mention UPOV. Thus, developing countries are
not obliged to provide for the protection of plant varieties under patents nor to comply
with UPOV provisions, instead, they may prefer to develop their own sui generis system
of protection. However, major developed countries, especially the US, are applying
unilateral pressure to force developing countries to go beyond the TRIPs standards in
order to safeguard the interest of their multinational corporations.
On the other hand, developing countries are rich in biodiversity, much of the
germplasm of the world comes from such countries. Farmers in developing countries
usually posses traditional knowledge and use traditional techniques to manage and
develop new crop types and biodiversity conservation. They have been playing a major
role in the conservation of plant genetic resources and transmission of these resources to
seed companies, plant breeders and research institutions.6 At one time, it was acceptable
to collect germplasm freely in any nation, including developing nations, and use it in
breeding, but when developed nations moved quite strongly to adopt plant varieties
protection, there arose concerns, based on the perception that it was unfair for the source
material contributed by developing countries to be transferred freely while breeding
activities contributed by developed nations were being rewarded with intellectual
property rights.7 Traditional farmers and indigenous people around the world have been
seeing their plant genetic resources (PGRs) and traditional knowledge (TK) monopolized
by private enterprises under patents and plant breeders’ rights and have not been
receiving their equitable share of benefits for their contribution8.
6
M.BLAKENEY, Regulating Access to Genetic Resources, International Association for the
Advancement of Teaching and Research in Intellectual Property Congress ( ATRIP ), New Delhi, India, 68 October 2002, para.1
7
J. BARTON, Acquiring Protection for Improved Germplasm and Inbred Lines, in:F.H. Erbisch, and
K.M.Maredia, (Eds.), Intellectual Property Rights in Agricultural Biotechnology, Biotechnology in
Agricultural Series, No.20, Cab International, 1998, Wallingford-New York,, p.20
8
P. C. .MARIN, Providing Protection for Plant Genetic Resources . Patents Sui generis System and Biopartnerships, Kluwer Law international, 2002, New York, p.1
4
These concerns led to the adoption of two United Nations binding international
treaties, the Convention on Biological Diversity (CBD) , the first global agreement on
the conservation and sustainable use of biological diversity, signed at the 1992 Earth
Summit in Rio de Janeiro, and the International Treaty on Plant Genetic Resources for
Food and Agriculture (PGRFA), adopted on 3 November 2001 under the auspices of the
FAO, which recognizes the enormous contribution that farmers and their communities
have made and continue to make to the conservation and development of genetic
resources.
This paper attempts to explain the difficulties developing countries encounter in
implementing the TRIPs Agreement as regard plant varieties protection in connection
with the framework of the CBD and PGRFA treaty. Section I focuses on developed
countries practices to force developing countries not only to meet TRIPs standards but to
go further beyond them in order to safeguard the interests of breeders, especially the
biotechnology companies. This include pressures on developing countries not only to join
1991 Act of UPOV, which provides very powerful monopoly rights to breeders similar to
the exclusive rights under patents, but also to protect plant innovations by means of
patents, and nothing return to farmers. Section II deals with biological resources and
Farmer’s Rights. It first examines the biopiracy phenomenon and the practices of
biotechnology companies regarding terminator technology. Furthermore, it deals with the
regulations of access to biological resources under the CBD and the PGRFA treaty,
explaining the origin of the concept of Farmer’s Rights and its content. Finally, possible
solutions to protect Farmers’ Rights will be explained, including national effort to protect
certain aspects of Farmers’ Rights in developing countries.
5
SECTION I
Plant Variety Protection at the International Level
I. The UPOV Convention
A. Overview
The International Convention for the protection of New Varieties of Plants (UPOV) is
the only international treaty focusing on plant variety protection.9 The Convention was
first adopted in Paris in 1961 and entered into force in 1968. It has been revised three
times in, 1972,1978 and 1991. It established the International Union for the Protection of
New Varieties of Plants which has the mandate to enforce the Convention. Its main goal
is to encourage the development of new varieties of plants, for the benefit of society
through the grant of protection, which serves as an incentive to those who engage in
commercial plant breeding10
On 24 April 1999, the 1991 Act entered into force in accordance with Article 37(1),
which states that “ This Convention shall enter into force one month after five States have
deposited their instruments of ratification”11 The provision of Article 37(3) ensured that
the 1978 Act of the Convention is closed to further accession. By virtue of the TRIPs
Agreement, member States of the World Trade Organization (WTO) are obliged to
provide for the protection of plant varieties. To bring the TRIPs patent provisions into
line with UPOV Convention on the protection of plant varieties, Article 27.3(b) permits
Members to provide “ for the protection of plant varieties either by patents or by an
effective sui generis system or by any combination thereof ”.12 As most developing
countries are yet to adopt some form of plant variety protection13, the need to adopt a
system that would comply with their international obligations and also adapted to their
national circumstances, in recent times have come to the fore and triggered discussions
focusing on the salient features of the UPOV Convention. This is due to the fact that
9
P. CULLET, supra note 4, at 99.
S.K.VERMA, TRIPS and Plant Variety Protection in Developing Countries, 6 EIPR, 1995 at 282.
11
It should be noted that as at July 2003,twenty -four Member States are party to the 1991 Act.
12
M.BLAKENEY, supra note 1, p.83.
13
CULLET, supra note 4, at 99
10
6
developing countries do acknowledge that, the UPOV Convention presents one model of
a sui generis system of plant protection for plant breeders developing new plant
varieties.14
The difference between the1978 Act and 1991 Act is significant, particularly with
respect to developing countries, as the existing divergence between the two Acts on
related issues such as the conditions, scope and duration of protection15, have triggered
some concerns as developing countries in their effort to adopt a sui generis system
tailored to meet their national needs are confronted with the issue of limited precedents or
guides to choose from. In view of the circumstances, considering the limited options
available, developing countries find themselves outweighing the choice of taking up the
challenge of devising a plant variety protection, adapted to the needs and conditions
which would ensure the fulfillment of basic food needs of the people and the sustainable
management of their biological resources.
B. Conditions and Scope
The conditions for granting a breeders right are set out in Article 6 of UPOV 1978 and
Article 5 of UPOV Convention 1991. These are novelty16, distinctness17, uniformity18 and
stability19. Both the 1978 and 1991 Act specify the minimum scope of protection that
14
15
VERMA, supra note 10, at 283
T. KONGOLO, supra note 5, at 351.
1991 Act, Article 6(1): “The variety shall be deemed to be new if, at the date of filing of the application
for a breeder’s right, propagating or harvested material of the variety has not been sold or otherwise
disposed of to others, by or with the consent of the breeder, for purpose of exploitation of the variety (i) in
the territory of the Contracting Party in which the application has been filed earlier than one year before
that date and (ii) in a territory other than that of the Contracting Party in which the application has been
filed earlier than four years or, in the case of trees or vines, earlier than six years before the said date”.
16
1991 Act, Article 7: “The variety shall be deemed to be distinct if it is clearly distinguishable from any
other variety whose existence is a matter of common knowledge at the time of the filing of the application
.In particular, the filing of an application for the granting of a breeder’s right or for the entering of another
variety in an official register of varieties, in any country, shall be deemed to render that other variety a
matter of common knowledge from the date of the application, provided that the application leads to the
granting of a breeder’s right or to the entering of the said other variety in the official register of varieties, as
the case may be .”
18
1991 Act, Article 8: “The variety shall be deemed to be uniformed if, subject to the variation that may be
expected from the particular features of its propagation, it is sufficiently uniform in its relevant
characteristics.”
19
1991Act, Article 9: “ The variety shall be deemed to be stable if its relevant characteristics remain
unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each
such cycle.”
17
7
States must grant once the variety satisfy the criteria for protection. The rights granted
exclusively enable the breeder to exploit his new variety. It should be noted that the 1978
Act permits member Countries of the UPOV Convention to grant or offer protection to
new plant varieties by means of an independent system (sui generis) provided for in the
Convention or of a patent. The Act further stipulates that where a member State national
law admits for protection under both these forms, then the State may provide only one of
them for one and the same botanical genus or species.20 However, the clear prohibition on
double protection was abandoned in the 1991 Act, as the 1991 Act equally contains no
provision corresponding to the second sentence of Article 2(1) of the 1978 Act (the socalled “ ban on double protection”) so that a Contracting Party is, so far as the 1991 Act
is concerned, free to protect varieties, in addition to the grant of a breeder’s right, by the
grant of other titles, particularly patents.21 In respect of coverage, the 1978 Act requires
member States to protect a minimum of five genera or species on accession to the
Convention, and thereafter to protect additional genera or species within a period of eight
years, leading to a minimum of 24 genera or species. However, the 1991 Act grants a
five-year period to existing member States after becoming bound by the new text, and ten
years to new member States, in which to provide protection to all plant genera and
species.22
Under Article 5(1) of the 1978 Act prior permission of the breeder is required for the
production for commercial marketing, the offering for sale, and the marketing of the
reproductive or vegetative propagating material of the protected variety. Thus, farmers
are impliedly free to save and re-sow propagating material from the previous year’s
harvest, as the permission of the breeder is only required for the production for
“commercial marketing”, the so-called “farmer’s privilege”. Breeder’s permission is not
also required, either for utilization of the protected variety for the purpose of breeding
additional new varieties or for the marketing of such varieties, the so-called “breeder’s
privilege”, which is expressly recognized. 23
Under the 1991 Act, in respect of the propagating material of a protected variety, any
production or reproduction (multiplication), conditioning for the purpose of propagation,
20
Article 2.1
WIPO Intellectual Property Handbook: Policy, Law and Use, 2001, Geneva, p.336
22
Article 3
21
23
Article 5(3)
8
offering for sale, selling or other marketing, exporting, importing, stocking for any of
these purposes mentioned shall require the authorization of the breeder. Accordingly, the
right of the breeder in respect of the production of propagating material is not limited to
“production for the purpose of commercial marketing”, rather it is extended to all
production. As a general rule, farmer’ would no longer be able to freely save and re-sow
propagating material from the previous year’s harvest where this is the common practice
in developing countries. However, Article 15(2) provides an optional exception which
permits Contracting States to restrict the breeder’s rights, within reasonable limits and
subject to the safeguarding of the legitimate interests of the breeder, in order to permit
farmers to use for propagating purposes, on their holdings, the propagating material from
the previous year’s harvest.24 Though Article 15(2) allows contracting parties, if they so
wish, to provide an exception in favor of farmers subject to the legitimate interest of the
breeder,25 a contracting party may take advantage of this provision by protecting the
interest of farmers, which would ensure that farmers could save seeds depending on ones
national conditions.
Moreover, Article 14 of the 1991 Act adopts the concept of “essentially derived
variety”, restricting the application of the “breeder’s privilege”.26 Extending the scope of
protection to cover essentially derived varieties means that any act done by a breeder to
improve an initial protected variety, should not be exploited commercially without the
authorization of the owner of the initial variety. This clearly broadens the scope of
protection of the plant variety holder and makes it more difficult for local farmers who
may wish to continue with their own breeding programs. This is due to the fact that, in
order for such a “breeder” to commercially exploit an essentially derived variety the
permission of the owner of the initial variety is required, and this ensures that the owner
of the initial variety is rewarded for his effort in creating the initial variety.
C. Duration
24
Article 15(2)
VERMA, Supra note 10, at 285
26
Article 14 (5)
25
9
The evolution of breeders rights, as exclusive rights, clearly shows that it is a form of
intellectual property right. Thus similar to IPRs ,breeders rights are granted for a limited
period of time, at the expiration of which it falls into the public domain. It has certain
features in common with patents for industrial inventions, as both form of protection
grants their holders a form of exclusive right to serve as an incentive to stimulate
innovative activity.
Under UPOV Convention 1978, the minimum period of protection is fifteen years,
computed from the date of issue of the title of protection, and less than eighteen years for
vines, forest trees, fruit trees and ornamental trees.27 The duration of protection of
breeders right under the 1991 Act for plant varieties was extended to not less than twenty
years from the date of the grant of the breedesr’s right, and for trees and vines the
duration should not be less than twenty-five years.28
II. The TRIPs Agreement
A. Options of Plant Varieties Protection
The TRIPs Agreement established minimum standards for protection and enforcement
of intellectual property rights. As laid out in Article 7, which indicated the TRIPs
Agreement objectives, “the protection and enforcement of intellectual property rights
should contribute to the promotion of technological innovation and to the transfer and
dissemination of technology, to the mutual advantage of producers and users of
technological knowledge and in a manner conducive to social and economic welfare, and
to a balance of rights and obligations.”
Article 27(3)(b) of the TRIPs Agreement allows WTO members to 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 micro27
28
Article 8
Article 19
10
biological processes."29 However, this provision makes it mandatory that WTO members
“provide for the protection of plant varieties either by patents or by an effective sui
generis system or by any combination thereof.” The wording of this obligation, which
leaves the choice of the protection system entirely to the members, reflects the
differences between the existing legal systems, ranging from the highest level of
protection in United States where plant varieties may be protected by patents or by
specific plant variety protection rights or even by special plant patents, to the EU
countries where plant variety protection is confined to specific variety protection systems
only.30
If a state chooses to implement its obligation under Article 27.3(b) by means of sui
generis system that system would have to be effective.
B. Patent v. Sui generis system
It should be noted that while the TRIPs Agreement contains a minimum standard of
protection for patents, it contains no further standard as to what constitutes an effective
sui generis system, nor does it mention UPOV. Therefore, WTO Members that haven’t
acceded UPOV are not obliged to comply with UPOV provisions, and may prefer to
develop their own sui generis system of protection.
In developing countries, the issue has been how to balance the interest of “breeders”
and “farmers” while providing protection to new varieties of plants.31 The protection of
plants varieties under patent would be the worst solution for developing countries, as
patent is the most powerful mean of protection.
29
It is worth mentioning that this provision follows the European Patent Convention level of protection, not
the more protectionist level of the US law, where article 53(b) EPC provides that patents shall not be
granted in respect of “plants or animals varieties or essentially biological processes for the production of
plants or animals; this provision does not apply to microbiological processes or the products thereof.”
See: J.H. REICHMAN, Universal Minimum Standards of Intellectual Property Protection under the TRIPS
Component of the WTO Agreement, 29 The International Lawyer, 1995, p.358
30
J. STRAUS, Bargaining Around the TRIPs Agreement: The Case for Ongoing Public-Private Initiatives
to Facilitate Worldwide Intellectual Property Transactions. A Comment on the Paper Presented by David
Lange and J.H. Reichman, 9 Duke J. Comp.& Int’l L., p.100 .
31
T. KONGOLO, supra note 5, at 362
11
In most patent laws, in effect, there is no exception similar to the “breeders exemption”
under plant breeder rights regimes. Hence, the patentee may, in principle, prevent a third
party from using the patented variety for further research and breeding. He could prevent,
for instance, multiplication of the variety, even experimental purposes.32 The claims in a
variety patent may cover inbred lines or hybrids; they may cover seeds or plants; and they
may attempt to extent to progeny.33 Since a plant variety “is characterized by essentially
all of its genes” the patenting of plant varieties may restrict the access to and use of the
whole combination of genes that constitutes a variety, and prevent the development of
new combinations of such genes. 34.
The possibility of excluding plant varieties from patent protection as permitted under
the TRIPs Agreement and the previous resistance of many developing countries to
provide any protection at all in this field, will most likely result in either the adherence of
those countries to the UPOV Convention or the creation of sui generis protection
according to their own concepts.
35
The experience of a few developing countries which have become party to the UPOV
is limited since they have joined the UPOV relatively recently. However, Cullet has
reported that “Limited lessons can be learnt from the experience of Kenya and
Zimbabwe, which already have plant variety protection regimes in place. In both cases,
the introduction of plant variety protection has not substantially fostered the development
of new food crops. On the contrary, in Kenya, out of 136 applications filed and tested
since 1997, only one was a food crop while most concerned cash crops such as
ornamentals or sugarcane and more than half concerned rose varieties” 36
After the major amendments of UPOV Convention, the 1991 Act strengthened the
protection afforded to breeders by giving them the opportunity to gain total monopoly
not only over their own variety, but likewise, over the new essentially derived varieties.37
32
C.CORREA, Access to Plant Genetic Resources and Intellectual Property Rights. Rome, Commission on
Plant Genetic for Food and Agriculture, Background Study Paper, No.8, 1999, p. 13.
33
J. BARTON, supra note 7, at 25
C.CORREA, supra note 32, at 13.
35
J. STRAUS, supra note 30, at 101.
36
P.CULLET, supra note 4, at 107
34
37
P. C. .MARIN, supra note 8, at 36.
12
Moreover, the 1991 revision of the UPOV abandoned the so-called prohibition of double
protection. Unlike the UPOV new version of 1991, which strengthens the breeders’
rights to the point at which the protection became similar to patent, under the UPOV
1978 version farmers are permitted to reuse propagating material from the previous
year’s harvest and can freely exchange seeds of protected varieties with other farmers.
Plant breeders are also allowed under UPOV 1978 to use the protected variety in order to
breed and commercialize other new varieties 38, even if the new variety is essentially
derived from the protected plant variety.
In other words, the 1991 version of UPOV deprives the farmers their privilege/rights
previously given by UPOV 1978 convention. i.e. Denying farmers right who basically
use subsistence agriculture in small land-holdings as their chief means of income by not
allowing them to re-use, sell or exchange of plant biodiversity. 39 This is in contrast to the
interest of most developing countries and Africa in particular. Therefore, it is not
worthwhile to deprive farmers’ rights. This is in conformity with the view of Carlos M.
Correa that the underlying rationale of Farmer Rights relates to their possible role as an
instrument to support the conservation of plant genetic resources for food and
Agriculture.40
It is worth mentioning that there is no international plant variety protection system that
orients plant breeding toward food security. More specifically, nothing in the UPOV
Convention that priorities legal protection of food crops over industrial crops.
41
By and
large, we know that most developing countries, Africa in particular, owe their livelihood
on Agriculture as a source of food, employment, heath in terms of medicine and income.
III. Do Categories of IP Covered by TRIPs Include Plant Varieties?
A question that needs to be answered is whether the meaning of intellectual property
for the purpose of the TRIPs Agreement includes plant varieties. Referring to TRIPs
Agreement Art 1.2 reads as follows:
38
CULLET, supra note 4, at100.
P.C. MARIN, supra note 8, at 49
40
C. M.CORREA, Options for the Implementation of Farmers Rights at National Level, December 2000,
p.11
41
GRAIN, Plant variety protection to feed Africa? Rhetoric versus reality, October 1999. available at:
http://www.grain.org/Publications/variety-en-p.htm
39
13
“For the purposes of this Agreement, the term "intellectual property"
refers to all categories of intellectual property that are the subject of
Sections 1 through 7 of Part II.”
Plant variety protection was only mentioned in “Section 5: Patents”, Art 27.3, it reads:
“Members may also exclude from patentability,
a)…
b) Plants and animals other than micro-organisms, …However, Members shall
provide for the protection of plant varieties either by patents or by an effective
sui generis system or by any combination thereof.”
It is obvious that this provision did not establish a standard for plant variety protection
but rather merely mentioned that it should be protected either by patents or by an
effective sui generis system or by any combination thereof. The whole Section is meant
to deal with Patents in 8 articles 42
This situation creates a dilemma whether or not the mention of “plant varieties” as
presented in article 27.3(b) is sufficient to be considered as intellectual property in
relation to Art 1.2 of the TRIPs Agreement.
The words “subject of Sections 1 through 7 of Part II” might be understood to end up
with a result that plant varieties for the purposes of the TRIPs Agreement is not
considered as intellectual property on the basis that plant varieties were mentioned
without defining a standard contrary to the other categories , and such mention is not
sufficient to be “subject of the Section”, as, apart from article 27.3(b), the plant varieties
were not mentioned in any provision of Section 5 , or in any other Section.
This interpretation is in line with the view of Gervais who opines that the definition of
intellectual property, for the purpose of TRIPS , comprises only the seven categories of
Intellectual Property Rights mentioned in Part II of the Agreement namely; Copyright
and related rights, Trademarks, Geographical indications, Industrial Designs, Patents,
42
Art. 27-34
14
Layout-Designs of Integrated Circuits, and Undisclosed information.43 In the United
States-Section 211 of the Omnibus Appropriation Act of 1998 case, a WTO procedure,
the Panel 44 concluded that the trade names are not subject to WTO Dispute Resolution
Procedures in light of the interpretation of the words “subject of Sections 1 through 7 of
Part II” and the history of the Agreement where it clearly indicated that TRIPs Members
at the time of conclusion of the Agreement intended to have an exhaustive list that
includes only the seven categories of Intellectual Property Rights namely; Copyright and
related rights, Trademarks, Geographical indications, Industrial Designs, Patents, LayoutDesigns of Integrated Circuits, and Undisclosed information. If the Panel interpretation of
article 1.2 of the TRIPs Agreement were to be accepted, the result would be that the
protection of plant variety will fall beyond the term “intellectual property” for the
purpose of the TRIPs Agreement, thus, the principle of MFN, Dispute Resolution
Procedures, and enforcement provisions shall not be applicable to the protection of plant
variety by means of sui generi system .
Another interpretation of article 1.2 in relation to article 27.3(b) of the TRIPs
Agreement could possibly lead to the opposite result; mentioning of plant varieties, as
presented in article 27.3(b), is merely sufficient to consider it a category of intellectual
property for the purpose of the TRIPs Agreement. This is the conclusion of the Appellate
Body in the United States-Section 211 of the Omnibus Appropriation Act of 1998 case.
Reversing the interpretation set out by the Panel of the phrase “ "intellectual property"
refers to all categories of intellectual property that are the subject of Sections 1 through 7
of Part II ” the Appellate Body provided that :
“ The Panel interpreted the phrase "'intellectual property' refers to all categories of
intellectual property that are the subject of Sections 1 through 7 of Part II" (emphasis
added) as if that phrase read "intellectual property means those categories of intellectual
He states that: “ Article 1(2) defines intellectual property in a pragmatic way: it comprises the forms of
intellectual property covered in the agreement (namely copyright and related rights, trademarks,
geographical indications, industrial designs, patents, layout-designs,(topographies) of integrated circuits
and the protection of undisclosed information). This excludes from general TRIPS obligations forms of
intellectual property( or of protection that some would consider as being a part of intellectual property) not
covered by TRIPS. Certain sui generis or new forms of protection may be concerned.” D. GERVAIS, The
TRIPs Agreement: Drafting History and Analysis, Sweet & Maxwell, 1998, London, p.43.
44
Panel Report on United States-Section 211 of the Omnibus Appropriation Act of 1998 (Complaint by the
European Communities), WT/DS176/R, 6 August, 2001.
43
15
property appearing in the titles of Sections 1 through 7 of Part II." To our mind, the
Panel's interpretation ignores the plain words of Article 1.2, for it fails to take into
account that the phrase "the subject of Sections 1 through 7 of Part II" deals not only with
the categories of intellectual property indicated in each section title, but with other
subjects as well. For example, in Section 5 of Part II, entitled "Patents", Article 27(3)(b)
provides that Members have the option of protecting inventions of plant varieties by sui
generis rights (such as breeder's rights) instead of through patents. Under the Panel's
theory, such sui generis rights would not be covered by the TRIPs Agreement. The option
provided by Article 27(3)(b) would be read out of the TRIPs Agreement ”. 45
It is clear that the Appellate Body was of the view that if a category of rights is
mentioned in Part II of the TRIPs Agreement, then that category is included in the
definition of intellectual property rights for the purpose of the TRIPs Agreement. The
example given makes it clear that, from the point of view of the Appellate Body, the
protection of plant varieties by means of sui generis system is covered by the TRIPs
Agreement. This is the first case to clarify the broad scope of the TRIPs Agreement since
it was entered into force. 46
Although the literal meaning of the phrase “ the subject of Sections through 7 of Part II
“ is not clear enough to the point that it was interpreted during the dispute procedure
differently, it is noticed that the AB interpreted it broadly without examining the words to
determine the intention of the parties taking in consideration the objectives set out in
article 7 of the TRIPs Agreement. Nonetheless, it is not the end of the story as no
extensive interpretation of the TRIPs might result in a broadening of the subject matter of
the intellectual property rights or in no enlargement of those rights by way of this case
law. 47
45
Appellate Body Report on United States-Section 211 of the Omnibus Appropriation Act of 1998 ,
WT/DS176/AB/R, 2 January, 2002, para.335
46
Z. NAIGEN , U.S.- China WTO Roundtable: Dispute Settlement under the TRIPs Agreement From the
Perspective of Treaty Interpretation, 17 Temp. Int'l & Comp. L.J. , spring 2003, p214
47
F.DESSEMONTET, The TRIPS Dispute Settlement Procedure, ATRIP Congress, Lausanne,
Switzerland, 19-21 September,2001, p.11
16
IV. TRIPs-plus
Many western corporations feel that the TRIPs rules are inadequate, therefore, they
seek more extensive protection. In order to achieve much stronger standards of
protection, developed countries have practiced an aggressive course to close any existing
loopholes, to prosecute non-compliance, and to promote TRIPs-plus intellectual property
standard, outside the WTO in bilateral, regional and multilateral agreements, 48 with
governments of the southern countries.
During the 1980s the US reformed its Trade Act of 1974 to create a linkage with
intellectual property. The principal enforcement tool of US trade policy, section 301 was
amended to authorize sanctions against foreign countries that, in view of US, do not
provide adequate and effective protection for intellectual property rights. A mechanism
known as ‘Special 301’ was established and various watch and priority lists were created
to identify such countries by the US Trade Representative (USTR) annually, and the
administration of the Generalised System of Preferences program (giving developing
countries duty free trading privileges in the US market) was linked to the adequate
protection of US IPRs. At the same time the US linked its Bilateral Investment Treaty
(BIT) program to the goal of adequate and effective protection for intellectual property. 49
Gero and Lannan’s analysis of the interface between Section 301 and TRIPs reveals
that
“ The great success of Section 301 was not in its unilateralism, but rather in
bringing the world to the multilateral bargaining table during the Uruguay Round, both
under the threat of U.S. retaliation and as a mean to contain the excesses of American
aggressive unilateralism. It was at the multilateral bargaining table that the true gains
were made with regard to intellectual property rights, in establishing universal minimum
standards of protection, in providing the all-important effective enforcement provisions
48
S. K.SELL, Proceeding of the 2002 Conference Access to Medicine in Developing World
20 Wis-int’l L.J. summer 2002, p.481
49
P. DRAHOS, Bilateralism in Intellectual Property, A paper prepared for Oxfam, available at:
http:// www.oxfam.org.uk/policy/paper/bilateral/bilateral.rtf
17
and in creating an effective multilateral dispute settlement mechanism which was so
lacking previously, even in the U.S. bilateral agreements.” 50
Section 301 is a constant presence whether in the foreground or background in the US
bilateralism on intellectual property. 51 In this connection Section 301 is used
aggressively to enforce developing countries to provide adequate and effective
intellectual property protection beyond the TRIPs standards. A 301 investigation may
culminate in a bilateral agreement between the US and the target state, or failing that, the
imposition of trade sanctions by the US. For instance, on October 20, 1988, President
Reagan imposed retaliatory sanctions on a broad range of Brazilian products. These
sanctions included a 100 per cent tariff on selected products with $ 39 million total
imported value, which estimated to be equal to the US pharmaceutical industry financial
injury due to denying pharmaceutical patent protection in Brazil. Brazil continued, in
vain, to insist that the US action was a hostile act against Brazil and was contrary to
international norms particularly, to GATT regulations. Upon pressure Brazil attempted to
enact patent protection legislation acceptable to US. The USTR determined that Brazil
was taking satisfactory measures to eliminate the practices which were determined to be
unreasonable and a burden on US commerce and lifted the sanctions against Brazilian
imports effective June 27, 1990, only after the Brazilian government had announced the
presentation of a bill providing adequate patent protection to the Brazilian National
Congress by March 20, 199152. In 1994 the US Trade Representative announced that
Section 301 ‘should be an even more effective tool as a result of the Uruguay Round
agreement’. 53 What is most surprising is that even when a state is in full compliance with
the TRIPs Agreement the United States reserves, under Section 301, the right to impose
penalties upon countries that, in its view, do not provide ‘adequate protection’. 54
50
J. GERO, K. LANNAN, Trade and Innovation : Unilateralism v. Multilateralism, 21 CanadaU.S.L.J.,1995, p.95.
51
DRAHOS, supra note 49
52
M. GETLAN, TRIPs and the Future of Section 301: A Comparative Study in Trade Dispute Resolution,
34 Col.J. Transnat’l L., 1995, p. 173
53
DRAHOS, supra note 49
54
A. MILLER & M DAVIS, Intellectual Property-Patents, Trademarks, and Copyright. In a nutshell,
West Group ST, Paul Minn., 2000, p 438. It is worth mentioning that the adoption of the the
18
As a result, Section 301 might produce a ‘TRIPS plus’ consequence without there
being a formal agreement between the US and the relevant developing country. The
developing country may simply decide to adopt a ‘TRIPS plus’ measure in order to avoid
further action by the US under the 301 process.55
Over the past few years, there has been significant pressure on developing countries to
adopt UPOV as a sui generis plant variety protection system.56.The pressures were
significantly increased with the coming into force of the 1991 Act of the UPOV, which
provides very powerful monopoly rights to breeders and nothing in return to farmers.57.
The US in its bilateral trade agreements almost invariably seeks to impose obligations on
its partners which go beyond their existing commitments under the TRIPs Agreement58.
One good example of such bilateral agreement is the 2000 Agreement Between the
United States of America and the Hashemite Kingdom of Jordan on the Establishment of
a Free Trade Erea 59, which serves as a model for further FTAs negotiations with other
developing countries. The Agreement contains in Article 4 TRIPs plus features, for
example, as regard plant variety protection, no exception has been made to exclude
animals and plant variety from patentability, therefore, Jordan is obliged to make plant
and animals the subject matter of patent. Moreover, Jordan is obliged to ratify the UPOV
‘Understanding on Rules and Procedures Governing the settlement of disputes’ means that unilateral
actions, such as action under section 301 of the US Trade Act, cannot be imposed before the DSB has
verified the existence of a case of non-compliance and authorized retaliatory action. Any unilateral action
taken before or outside such a procedure would be illegal under the WTO Agreement. The TRIPs
Agreement. See : SOUTH CENTER, A Guide for the South..The Uruguay Round Agreement on Trade
Related Intellectual Property Rights. South Center. II. Available at: http://www.southcentre.org
55
DRAHOS, supra note 49.
CULLET, supra note 4, at 100
57
GRAIN, Ten reasons not to join UPOV, issue no.2, May 1998
http://www.grain.org
58
GRAIN in cooperation with SANFEC, “TRIPs-plus” through the back door:how bilateral treaties
impose much stronger rules for IPRs on life than the WTO, 2001. available at:
<http://www.grain.org/publications/TRIPs-plus-en-cfm >.
56
59
Agreement Between the United States of America and the Hashemite Kingdom of Jordan on the
Establishment of a Free Trade Erea
available at : http://www.justrade.jo/free_trade_agreement/textagr.pdf
19
within one year from the date of entry into force the agreement. Bilateral Agreements
between U.S. and other developing countries contain similar provisions.60 Mongolia61,
Nicaragua62, Sir Lanka63 and Vietnam64 are being required to provide patent protection
on plants and animals. 65Under another approach, South Africa and the 78 African
Caribbien Pacific (ACP) countries are supposed to grant patents on “biotechnological”
inventions.66 This presumably means plants and animals, in addition to the
microorganisms required by TRIPs. 67
The European Union is also doing the same from its side. A recent survey by GRAIN
has revealed that the European Union is making extensive use of bilateral agreements,
and aggressively forcing developing countries to adopt the strictest intellectual property
rules on seeds that are possible. It shows that the EU has forced TRIPs-plus commitments
regarding intellectual property on life forms in almost 90 developing countries. 68
Some countries must join UPOV and/or accede to the Budapest Treaty. This is the case of
Algeria, Lebanon, Mexico, Moraco and Tunisia.69 Under some of the Agreements, the
parties are required to provide adequate and effective protection to ‘the highest
international standards’. This is the case under article 12 of the EC Mexico Free Trade
Agreement, which contains a “ Unilateral Declaration By The Community And Its
60
J. STAFFLER, Towards a Reconciliation between the Convention on Biological Diversity and TRIPs
Agreement, An Interface among Intellectual Property Rights on Biotechnology, Traditional Knowledge and
Benefit Sharing, Universite de Geneve, Institut Universitaire de Hautes Etudes Internationales, p.39-40.
61
Agreement on Trade Relations between the Government of the United States of America and the
Government of the Mongolian People's Republic.
http://170.110.214.18/tcc/data/commerce_html/TCC_2/MongoliaTrade.html
62
DRAHOS, Supra note 49
Agreement on the Protection and Enforcement of Intellectual Property Rights between the United States
of America and the Democratic Socialist Republic of Sri Lanka.
http://170.110.214.18/tcc/data/commerce_html/TCC_2/Sri_Lanka_Intellectual_Property/Sri_Lanka_Intelle
ctual_Property.html
63
64
Agreement between the United States of America and the Socialist Republic of Vietnam on Trade
Relations. http://www.sice.oas.org/Trade/usviet/USViet1.asp#Art2 [Chpt II: Intellectual Property Rights]
65
J. STAFFLER, supra note 60, p.39
J. STAFFLER, supra note 60, fn. 121.
67
GRAIN in cooperation with SANFEC, supra note 58.
68
GRAIN, TPIPS-PLUS’MUST STOP : The European Union caught in blatant contradictions. March
2003 available at:
<http://www.grain.org/publications/TRIPs-plus-eu-2003-en.cfm >.
69
GRAIN, supra note 68.
66
20
Member States On The Intellectual Property Conventions Referred To In Article 12 ”,
and the list includes UPOV.70 As a result of the pressure on developing countries, the
number of developing countries which acceded UPOV 1991, or implemented its
provisions in their national laws has significantly increased, and many of the developing
countries don’t almost have the freedom any more to establish their own sui generis
system of protection to satisfy their needs.
Moreover, Whenever developing countries which are WTO members enter into an
international agreement whether bilateral or other which grants TRIPS plus favors to
another nation, it follows that the Most-Favoured-Nation Treatment (MFN) principle will
oblige those developing countries to extend those favors to all WTO members according
to article 4 of the TRIPs Agreement. This means that the MFN principle in TRIPS when
combined with bilateral agreements will work in favor of the two leading exporters of
intellectual property in the world, the US and the EU, and will have the effect of
spreading and setting new minimum standards of intellectual property faster than would
have happened otherwise.71 Recognizing the danger of bilateralism of intellectual
property Drahos suggest that: “…developing countries develop a veto coalition against
further ratcheting up of IP standard, and that the TRIPS Council shift its purpose from a
body which secures a platform for IP regulation to one that polices a ceiling”72
70
DRAHOS, supra note 49
DRAHOS, supra note 49
72
DRAHOS , supra note 49
Drahos and Braithwaite suggest that:
“ [D]eveloping countries should consider forming a veto coalition against further ratcheting up of
71
intellectual property standards. The alliance between NGOs and developing countries on the
access to medicines issue and the fact that this alliance has managed to obtain Special Sessions of
the TRIPS Council on this issue suggests that this coalition is a realistic possibility. The position
of such a veto coalition should be converting the Council on TRIPS from a body that secures a
platform to one that polices a ceiling. This bold new agenda for the Council on TRIPS would be
standstill and rollback of intellectual property standards in the interests of reducing distortions and
increasing competition in the world economy. If developing countries cannot forge a unified veto
coalition against further ratcheting up of intellectual property standards, they can be assured that
they will be picked off one by one by the growing wave of US bilaterals on both intellectual
property and investment more broadly.” Peter Drahos and John Braithwaite, Information
Feudalism, 2002, chapter 12. as quoted in Drahos, Supra note 49, fn. 21
21
SECTION 2
Biological Resources and Farmers’ Rights
I. Biopiracy and Practices of Biotechnology Companies
A. Biopiracy
Biopiracy refers to the appropriation of knowledge and genetic resources of farming
and indigenous communities by individuals or institutions seeking exclusive monopoly
control (usually patents or plant breeders’ rights) over these resources and knowledge. 73
Traditional farmers both conserve and use plant genetic resources. The value of plant genetic
resources is preserved and enhanced by their utilization for planting, seed production and
continuous selection of the best adapted farmers varieties (landraces). 74 The diversity of
landraces comes from hybridization between crops and their wild relatives over long periods
and from human and natural selection of crops over thousands of generations in diverse
environments. Crop diversity does not persist as an incidental characteristic of farming
system but because farmers choose to maintain different crops and crop varieties. 75
There have been many protests from developing countries accusing biotechnological
industries of biopiracy.76 The charges of biopiracy against various international
companies and research organizations continue to be leveled by NGOs and other civil
73
ETC Group (group on erosion, technology and concentration), Biopiracy +10 Communiqué. March /
April 2002 . available at: www.etcgroup.org/documents/biopiracy+10Comm.pdf.action
74
C. CORREA, supra note 40, p.9
S. BRUSH, Providing Farmers’ Rights Through In Situ Conservation of Crop Genetic Resources,
Rome, Commission on Plant Genetic for Food and Agriculture, , Background Study Paper, No. 3E First
Extraordinary Session, 7-11 November 1994, page 4
76
P. MARTN, supra note 8, p. 43
75
22
society actors because of lack of reciprocity in sharing of benefits.77 Many traditional
plants have been patented in developed countries ignoring farmers’ contributions to the
genetic resources through the selection of seeds over generations and denying their role
in conservation and development of plant genetic resources.
Kongolo has indicated that there is growing public outrage that multinational
corporations are being granted patents for genetic material, plants and other biological
resources that have long been identified, developed and used by Indian farmers and other
Indian indigenous communities.78 A good example is “turmeric”(Curcuma longa) , a
plant that belongs to the ginger family from India that has been used as a medicine over
generations in India. In March 1995, two expatriate Indians at the University of
Mississippi Medical Centre were granted a US patent for turmeric to be used to heal
wounds. Challenging the patent before the US Patent Office on the ground of “prior
art”.i.e. existing public knowledge, and proving the lack of novelty by presenting an
ancient Sanskrit text and a paper published in 1953 in the Journal of Indian Medical
Association, the Indian Council for Scientific and Industrial Research succeeded in its
attempt to cancel the patent.79
Another example is the “Neem” tree ( Azadirachta indica) , which has been used for
centuries in India as a natural medicine and pesticide. Neem oil is used to make a
contraceptive. Mixed in soap it offers cheap and easy relief from malaria, skin diseases
and even meningitis. As a pesticide, neem extracts can be used against over 250 pests.80
However, biotechnological companies have filed dozens of patent and numerous have
been granted in the United States and Europe based on claims on the neem tree. All these
patents describe knowledge that is part of prior art in India.81
Other instance of piracy by US firm RiceTec Inc. is related to “Basmati”, a high quality
aromatic rice cultivated in the Punjab provinces of India and Pakistan. RiceTec Inc.was
77
A. GUPTA, How Can Asia Countries Protect Traditional Knowledge, Farmers rights and Access to
Genetic Resources Through The Implementation or Review of the WTO TRIPs Agreement, paper presented
at the Joint ICTSD/CEE/HBF Regional Dialogue for Governments and civil society, organized by
International Centre for Trade and Sustainable Development, Geneva at Chiang Mai. Thailand March 2930, 2001.
78
T. KONGOLO, Biodiversity and African Countries, E.I.P.R., 2002, p 580
79
Trade& Development Centre: (A Joint Venture of the World Bank and World Trade Organization), the
Centre Web, Country Studies: India. Available at :
http://www.itd.org/issues/india6.htm
80
Trade& Development Centre, Country Studies: India, supra note 79
81
P.MARIN, supra note 8, p.62.
23
awarded a patent in US covering “novel” varieties of basmati rice, their plants and seeds,
a method of breeding them and a method for selecting rice grains so that the cooked rice
has the same qualities as traditional basmati. 82
Other reported cases of biopiracy are those related to plant germplasm misappropriated
from gene banks by western institutions and biotechnology companies and that sought
intellectual property rights in relation thereto, where these plant accessions are held in
trust for the benefit of the international community, in particular the developing
countries. The principal ex-situ collection of germplasm available for agricultural
research is maintained by the Consultative Group on International Agricultural Research
(CGIAR). A founded organization as an informal association of private and public donors
that supports for international network for 16 agricultural research centers (IARC’s) each
with its own governing body.83
An example might be where two Australian Agencies applied for Plant Breeders Rights
in relation to 2 species of chickpea provided by the International Corp Research Institute
for the Semi-Arid Tropics (ICRISAT). Even though the Australian Plant Breeder’s Rights
Office didn’t have the opportunity to examine the application as it was withdrawn for the
caused furor, fears of biopiracy still existed.84 This led the Rural Advancement
Foundation International (RAFI) and the Australian Heritage Seed Curators into
investigating other possible abuses of PBRs in Australia. The results reveal that at least
118 PBRs may be illegitimate, in other words, taken from CGIAR centers, or from
developing countries.85 Other reported biopiracy cases, where patents have been granted
in US are Blight Resistant Rice from Mali, Mexican Enola Bean, Colombian Nuna Beans
and Peruvian Maca.86
The previous examples show that there is a need to stop biopiracy and to provide
appropriate legal and institutional means for recognizing the rights to farmers and local
82
Trade& Development Centre, , Country Studies: India, supra note 80
M.BLAKENEY, supra note 6, p.2
84
M.BLAKENEY, supra note 6, p.2
85
P. MARIN, supra note 8, p.41
86
BLAKENEY, supra note 6, p.5-8
83
24
communities on their traditional knowledge based on biological resources at the
international level. 87
B. Terminator Technology
The use of terminator technology has been developed by the US Department of
Agriculture and the American Delta and Pine Land Company in order to prevent seeds
from generating in the next generation.88 In this connection many patents have been
granted in US including terminator technology claims. Syngenta, the world’s third
largest seed corporation after Dupont and Monsanto, with 8 patents on terminator
technology and one pending, is the undisputed leader in proprietary technique related
genetic seed sterilization. The company’s newest terminator patent, US 6,362,394,
published 26 march 2002, is entitled “Juvenile hormone or one of its agonists as a
chemical ligand by receptor mediated transactivation”.89 Consequently, it is impossible
for farmers to save, replant or sell seed and patentees increase their monopoly in farmers’
fields.90If terminator technology wins market acceptance it will be used to prevent
farmers from saving and re-using seed.91
A memorandum prepared by UPOV’s Secretariat at the request of member
governments of the UN Convention on Biological Diversity (CBD) concluded that
terminator technology (Genetic Use Restriction Technology “GURTs”) “may have
considerable disadvantages for society.” The memo gives a candid assessment of the
drawbacks of terminator in comparison to plant breeders’ rights: “plant material of
varieties containing GURTs can not be used as a genetic material for further breeding;
free access to genetic resources will be hindered by GURTs. GURTs does not provide
any benefit sharing.” The UPOV memo also points out that, in comparison to plant
breeders’ rights, terminator technology is a much stronger appropriation tool. Unlike
plant breeders’ rights, terminator is not time-limited, there is no user exemption for
87
This is in line with the developing countries approach. See: Protection of Biodiversity and traditional
knowledge/The Indian experience, submission by India, 14 July 2000.WTO.DOC.IP/C/W/198.
88
P. MARIN, supra note 8, p.63
89
ETC Group, Terminator Technology-Five Years Later, Communiqué, Issue#79, May/ June 2003, at 6.
available at: http://www.etcgroup.org
90
. MARIN, Supra, p.63
91
Etcgroup, supra note 89, at 4.
25
farmers, researchers, or breeders, and “no provision for public interest”.92 Although the
UPOV’s paper was presented to an Expert Panel convened by the CBD in Montreal ,
February 19-21,2003 to examen the implication of Terminator seed Technology for small
farmers, indigenous people and local communities, and had been available on UPOV’s
web site since January 2003, the US, unsatisfied with this conclusion, pressured the
UPOV for withdrawal of its memo. Accordingly, the memo was submitted for discussion
by UPOV’s Administrative and Legal Committee on April 10, 2003.93 And on April 11,
UPOV posted a new document on its website which states: “This document supersedes
the memorandum prepared by the office of the union on Genetic Use Restriction
Technologies (GURTs) and sent to the CBD, dated January 10,2003.” 94 It has been
reportet that “The new, sanitized version of the UPOV commentary on Terminator is
drastically changed. All references to GURTs have been removed, except to say that
UPOV hasn’t examined substantively the intellectual property implications of the
GURTs, and to point out that varieties containing GURTs may be eligible for plant
breeders’ rights. The new UPOV document contains no analysis –critical or otherwiseregarding the intellectual property implications of Terminator technology. What remains
is a bland text high lightening key features of the UPOV 1991 Convention.” 95
II. Regulation of Access to Biological Resources at the International
Level
A. Convention on Biological Diversity (CBD)
1. Objectives and Scope
UPOV, “memorandum Prepared by the Office of UPOV on the Genetic Use Restriction Technologies,”
January 10, 2003, p.5. See : ETC Group, Who Calls the Shots at UPOV? US Government and
Multinational Seed Industry Force UPOV To Abandon Critique of Terminator 17 April 2003. available at:
www.etcgroup.org
93
ETC Group, supra note 92. The original UPOV memo and the correspondence between UPOV and the
US government, as well as the ISF letter to UPOV, can be viewed here:
http://www.etcgroup.org/documents/USAvsUPOV.pdf
94
The new document is available at: http://www.upov.int/en/about/pdf/gurts_11april2003.pdf
95
ETC Group, supra note 93.
92
26
The Convention on Biological Diversity (CBD) was adopted at the Rio de Janeiro Earth
Summit, in June 1992. Over 150 governments signed the documents at the Rio
conference, and since then more than 175 countries have ratified the Convention.96 The
main objectives of the Convention as indicated in Article 1 are: a- The conservation of
biological diversity; b- Sustainable use of its components; and c-Sharing the benefits
arising from the utilization of generic resources in a fair and equitable way. Under Article
2 of the Convention “ Biological diversity” means the variability among living organisms
from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and
the ecological complexes of which they are part; this includes diversity within species,
between species and of ecosystems. Therefore, the scope of the Convention doesn’t
confine to plants, but encompasses all other living organisms i.e. animals and microorganisms.
2. Sovereign Rights of States
The CBD Preamble reaffirms that States have sovereign rights over their own
biological resources, but, at the same time, are responsible for conserving their biological
diversity and for using their biological resources in a sustainable manner. In conjunction
with the Preamble Article 3 affirms the sovereign rights of States to exploit their own
resources pursuant to their own environmental policies, a direct reflection of the principal
of permanent sovereign rights of states over their natural resources indicated in Article
15.1 of the Convention. While Article 15 recognizes states’ sovereign rights to regulate
access to their genetic resources, it imposes on them an obligation to facilitate access to
genetic resources for environmentally sound uses by other Contracting States.97 In other
words, access to genetic resources is subject to the conditions ultimately determined by
the State providing such resources but at the same time a State can’t simply deny access
to such resources by other Contracting States.
3. Access to Genetic Resources
96
Sustaining Life on Earth .How the Convention on Biological Diversity promotes nature and human wellbeing. Biodiversity Web, available at: http://www.biodiv.org
97
Article 15.2
27
The CBD also provides that access to genetic resources shall be carried out on
“mutually agreed terms ”,98 and subject to “prior informed consent of the Contracting
Party providing such resources”.99 The principle of the equitable sharing of benefits
arising from the utilization of the genetic resources, which is one of the main objectives
of the convention, is affirmed in many articles. Under Article 15.7 each Contracting Party
shall take legislative, administrative or policy measures, as appropriate, in accordance
with a number of specified provisions, with the aim of sharing in a fair and equitable way
the results of research and development and the benefits arising from the commercial and
other utilization of genetic resources with the Contracting Party providing such resources.
Article 19.2 requires each Contracting Party to “take all practicable measures to promote
and advance priority access on a fair and equitable basis by contracting parties, especially
developing countries, to the results and benefits arising from biotechnologies based upon
genetic resources provided by those Contracting Parties” on “a mutually agreed terms”.
Accordingly, when a microorganism, plant, or animal is used for a commercial
application, the country from which it comes has the right to benefits. Such benefits can
include cache, samples, of what is collected, the participation or training of national
researchers, the transfer of biotechnology equipment and know-how, and shares of any
profits from the use of the resources. 100
4. Traditional Knowledge
In addition, the CBD recognizes the contribution of indigenous and local communities
in conserving and sustainable using biological diversity. According to Article 8 (j) each
contracting party shall…“Subject to its national legislation, respect, preserve and
maintain knowledge, innovations and practices of indigenous and local communities
embodying traditional lifestyles relevant for the conservation and sustainable use of
biological diversity and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and encourage
the equitable sharing of the benefits arising from the utilization of such knowledge,
98
Art 15.4
Art.15.5
100
Sustaining Life on Earth .How the Convention on Biological Diversity promotes nature and human wellbeing. available at: http://www.biodiv.org
99
28
innovations and practices;”. This provision expressly indicates that the rights of
indigenous and local communities over their biodiversity are subject to national
legislation, thus, it need to be implemented at the national level .The indigenous and local
communities rights are also mentioned in Article 10 (a) (b) and (c) of the CBD.
5. CBD and TRIPs Legal Conflicts
The relation between TRIPs and CBD has become a major focus of discussion in
international policy circle.101 Some argue that they are incompatible, while others102 that
there is no conflict. The principle of national sovereignty over genetic resources in the
CBD, for example, might on the face of it seem to be in tension with the principle in
TRIPs that intellectual property rights are private property.103 Under the CBD access to
genetic resources is subject to the prior informed consent and mutually agreed terms, so
the CBD gives developing countries legal authority to diminish the incidence of
biopiracy by requiring prior informed consent, whereas TRIPs does not mention this
authority with the risk to promote the phenomenon of biopiracy.104
The debate is reflected in the WTO Doha Ministerial Declaration under which the
Council for TRIPs was instructed to examine, inter alia, the relationship between the
TRIPs Agreement and the Convention on Biological Diversity.105 The debate concerning
such relationship is still going on.
101
The Relationship Between the Agreement on TRIPs and Biodiversity Related Issues, Final Report for
DG Trade European Commission Submitted by CEAS Consultants (Wye)Ltd Centre for European
Agricultural Studies in association with Geoff Tansey and Queen Mary Intellectual Property Research
Institute, September 2002, p.53. available at: http://europa.eu.int/comm/trade/miti/intell/ceas.htm
102
This is the industrialized countries approach, especially US and EU. The European Communities and
their Member States believe that, from a legal perspective, the CBD and the TRIPs Agreement do not
conflict with each other. They have different objectives, they do not deal with the same subject matter and
they are of a different legal nature.see: WIPO/GRTKF/IC/!/8, April 26, 2001
103
The Relationship Between the Agreement on TRIPs and Biodiversity Related Issues, supra note 102,p.54
104
J. STAFFLER, Overview on Article 27.3(b), Lecture, LL.M in Intellectual Property, Turin University/
WIPO, 11 June 2003.
105
WTO Ministerial Conference, Doha, 9-14 November 2001.WT/ MIN (01) /DEC/1.no.19
29
B- International Treaty on Plant Genetic Resources on Food and Agriculture
(PGRFA)
I. Objective and scope
The International Treaty on Plant Genetic Resources on Food and Agriculture
(hereafter PGRFA) was adopted on 3 November 2001 under the auspices of FAO, after
seven years of negotiations. This legally binding treaty, which replaced the non-binding
International Undertaking on Plant Genetic Resources, covers all plant genetic resources
relevant to food and agriculture. The objectives of this treaty are the conservation and
sustainable use of plant genetic resources for food and agriculture and the fair equitable
sharing of the benefits arising out of their use, in harmony with the Convention on
Biological Diversity, for sustainable agriculture and food security ( Article1).
The PGRFA focuses on issues not covered by the CBD or any other convention such as
farmers’ right. Part III of the PGRFA includes a single article; Article 9. It deals with
Farmers’ Rights.
2 . Access to Plant Genetic Resources for Food and Agriculture
Through the PGRFA the Contracting Parties agree to establish an efficient, effective
and transparent multilateral system to facilitate access to plant genetic resources for food
and agriculture, and to share, in a fair and equitable way, the benefits arising from the
utilization of these resources, on a complementary an mutually reinforcing basis.106. The
multilateral system applies to over 64 major crops and forages. The treaty also covers ex
collections of Plant Genetic Resources for Food and Agriculture held by the International
Agricultural Research Centers of the Consultative Group on International Agricultural
Research and other International Institutions.107 The Governing Body of the treaty, which
will be composed of all the Contracting Parties,108 will set out the conditions for access
and benefit-sharing in a material transfer agreement.109
106
Article 10.2
Article 15
108
article 19.1
109
Commission on Genetic Resources and For Food and Agriculture, The International Treaty on Plant
107
Genetic Resources For Food and Agriculture. The FAO Web. Available at:
http://www.fao.org/WAICENT/FAOINFO/AGRICULT/cgrfa/itpgr.htm.
30
According to Reid there is an emergence of economic externality of genetic resource
base erosion which provides raw materials for agricultural breeding. Typically this
genetic erosion is viewed as un avoidable consequence. This is a significant short coming
in the nature of ex-situ conservation itself. Because varieties stored in genebanks are
removed from natural selection, they cease to adapt to the changing environment. Hence,
their value for Agriculture will decrease with time.110 Thus farmers in local communities
deserves their right to preserve the vitality of the crops across their different generations
and contribute to genetic resource diversity continual survival.
3. Farmers’ Rights
The components of Farmers’ Rights are most apparent in Article 9 of the PGRFA
Treaty which provides that:
“9.1 The Contracting Parties recognize the enormous contribution that the local and
indigenous communities and farmers of all regions of the world, particularly those in the
centers of origin and crop diversity, have made and will continue to make for the
conservation and development of plant genetic resources which constitute the basis of
food and agriculture production throughout the world.
9.2 The Contracting Parties agree that the responsibility for realizing Farmers’ Rights,
as they relate to plant genetic resources for food and agriculture, rests with national
governments. In accordance with their needs and priorities, each Contracting Party
should, as appropriate, and subject to its national legislation, take measures to protect and
promote Farmers Rights, including:
(a) protection of traditional knowledge relevant to plant genetic resources for food and
agriculture;
(b) the right to equitably participate in sharing benefits arising from the utilization of
plant genetic resources for food and agriculture; and
(c) the right to participate in making decisions, at the national level, on matters related
to the conservation and sustainable use of plant genetic resources for food and
agriculture.
110
W. REID , Biopolicy International : Genetic Resources and Sustainable Agriculture, Creating
incentives for local innovation and adaptation, African centre for technology studies, 1992, Naïrobi, p.9.
31
9.3 Nothing in this Article shall be interpreted to limit any rights that farmers have to
save, use, exchange and sell farm-saved seed/propagating material, subject to national
law and as appropriate.”
In the next part we will tackle the origin of the concept of Farmers’ Rights and its
content.
III. Origin of the Concept of Farmers’ Rights and its Various Elements
The origin of Farmers’ Rights can be traced in the debates within the FAO on the
asymmetry in the distribution of benefits between farmers as donors of germplasm, and
the producers of commercial varieties that ultimately rely on such germplasm. .111
Farmers in developing countries usually posses traditional knowledge over PGRS and
ecosystems, as well as simple, traditional techniques to conserve, manage and develop
them.112 The systematic nature of farmer nomenclature for landraces has been
documented as evidence of their thorough knowledge of crop resources.113 While a
commercial variety could generate returns to the commercial breeders, no system of
compensation or incentives for farmers had been developed.114
A. The International Undertaking (IU)
The International Undertaking (IU) was adopted by the FAO Conference in 1983 as a
non-binding instrument subscribed to by most FAO members, excluding USA, under
which the State Parties agreed to provide other parties adhering to the Undertaking “free
access “ to the plant genetic resources within their territory115 on the basis of the
principle of common heritage of humankind.
111
C. CORREA,supra note 40 ,p3
P. MARIN, supra note 8, p.60
113
S. BRUSH, supra note 75, page 4
114
C CORREA,supra note 40,p3
115
C CORREA,supra note 40, p.3
112
32
The concept of Farmers’ Rights was first introduced in 1989 when FAO Resolution
4/89 was adopted to provide for an agreed interpretation between the parties of the IU
provisions. The Resolution clarified that the term “free access” does not necessarily mean
free of charge, so the pillage of PGRs is not allowed and a charge is placed on them. This
provides a hope for equity for farmers to receive their share of benefits from PGRs they
have long been providing the world with.116 Moreover, Article 1 of the Resolution 4/89
declared the compatibility of the plant breeders’ rights as provided under UPOV (1978)
with the IU.
The acknowledgement of plant variety rights obviously benefited enterprises in those
countries, typically in the North, which were engaged in commercial seed production. In
exchange for this concession, developing countries won endorsement of the concept of
“farmers’ rights”.117
The concept of Farmers’ Rights was further defined by the FAO Resolution 5/89 as
“…rights arising from the past, present and future contribution of farmers in conserving,
improving and making available plant genetic resources, particularly those in centers of
origin/diversity. These rights are vested in the International Community, as trustee for
present and future generations of farmers, for the purpose of ensuring full benefits to
farmers, and supporting the continuation of their contributions, as well as the attainment
of the overall purposes of the International Undertaking.”
Although the previous definition recognizes farmers’ role in conserving, improving and
making available plant genetic resources, it is formulated in a vague language indicating
that Farmers’ Rights are vested in the International Community, not in farmers, without
specifying the ways to reward traditional farmers or clarifying the nature of their rights.
In 1991, the Conference of the FAO adopted Resolution 3/91which recognizes the
sovereign rights of nations over their own genetic resources. An International Fund for
Plant Genetic Resources was proposed in Resolution 3/93 as a means of implementing
Farmers’ Rights and to support plant genetic conservation and utilization programmes,
particularly, but not exclusively, in the developing countries. The principle of common
116
P. MARIN, supra note 40, p.49
M. BLAKENEY, Protection of Plant Varieties and Farmers Right. International Seminar on the Role of
Intellectual Property in the Field of Biodiversity and Traditional Knowledge, Jointly Organized by the
Brazilian National Institute of Industrial Property and the European Commission, Manaus/ Amazonas/
Brazile, 9-11 September 2001, at 2
117
33
heritage of humankind was maintained in the Resolutions of 1989, but it was affirmed
that it corresponds to both plant breeders’ rights and farmers’ rights.
The FAO Conference Resolution 7/93 called for the revision of the IU in harmony with
the CBD.118 Resolution 3 of the Final Act to the Biodiversity Convention recognized that
certain matters which the Convention had not addressed such as the issue of access to ex
situ collections not acquired in accordance with the Convention, and the realization of
Farmers’ Rights, were to be dealt with by the FAO’s Global System on Plant Genetic
Resources, of which the International Undertaking was the corner stone.119
The CGRFA started to revise the IU in 1994,120 and continued until the adoption of the
new Undertaking as a binding instrument on 3 November 2001, which is now known as
the International Treaty on Plant Genetic Resources for Food and Agriculture. The
PGRFA Treaty was acceptable to all the states preset apart from the United States and
Japan which abstained from voting.121
B. Farmers’ Rights under the PGRFA Treaty
It is affirmed in the Preamble of the PGRFA treaty that the rights recognized in the
treaty to save, use, exchange and sell farm-saved seed and other propagating material,
and to participate in decision-making regarding, and in the fair and equitable sharing of
the benefits arising from, the use of plant genetic resources for food and agriculture, are
fundamental to the realization of Farmers’ Rights, as well as the promotion of Farmers’
Rights at national and international levels.
Article 9 of the PGRFA Treaty recognizes the local and indigenous communities and
farmers’ enormous contribution to conserving and developing plant genetic resources for
118
In 1992, Agenda 21 called for the strengthening of the FAO Global System on Plant Genetic Resources,
and its adjustment in accordance with the outcome of negotiations on the CBD.
119
P.CULLET, The International Treaty on Plant Genetic Resources For Food and Agriculture, IELRC
Briefing Paper 2003-2 .
120
The First Negotiating Draft of the Treaty was reviewed at the First Extraordinary Session of the
CGRFA held in November 1994
121
P.CULLET, supra note 119, p. 2
34
food and agriculture. It further gives broad guidelines to states concerning the scope of
the rights to be protected under the concept of Farmers’ Rights. This includes the
protection of traditional knowledge, farmers’ entitlement to a part of benefit-sharing
arrangements and the right to participate in decision-making regarding the management
of plant genetic resources. In addition, the right of farmers to save, use, exchange, and
sell farm saved seeds and propagating material is recognized. However, the Treaty is
silent with regard to farmers’ rights over their landraces.122
Farmers are not granted any exclusive right over their varieties, but rather the Treaty
find a way to provide a counterbalance to intellectual property rights by establishing ,
where appropriate, benefit-sharing arrangements consonant with notions of communal, as
opposed to individual or private, property.123 Under Article 13.3 Contracting Parties
agree that benefits arising from the use of plant genetic resources for food and agriculture
that are shared under the Multilateral System should 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.
Beside reaffirming the right of farmers to equitably participating in sharing benefits
arising from the utilization of genetic resources for food and agriculture,124 the Treaty
recognizes their right in decision-making process about agriculture development.
In fact, the recognition of farmers’ contribution to plant genetic resources conservation
and enhancement under the PGRFA Treaty does not include any property rights. In this
context, the only rights that are recognized are the residual rights to save, use, exchange
and sell farm-saved seeds.125
Exchange of seeds between farmers plays a viable role in the conservation of rare
cultivars as it reduces the effect of the loss of seed; it also helps in the wide spreading of
122
123
P. CULLET, supra note 119, p.2
D. GERVAIS, The Internationalization of Intellectual Property: New Challenges from the Very Old and
the Very New, 12 Fordham Intell. Prop. Media& Ent.L.J., 2002, p.972
124
Under Article 13.3 Contracting Parties agree that benefits arising from the use of plant genetic resources
for food and agriculture that are shared under the Multilateral System should 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
125
P.CULLET,supra note 119, p.2
35
superior varieties. Several factors may hinder such free exchange between farmers for
instance, the establishment of contract or intellectual property may disrupt or even put an
end to such exchange. Article 15.2 of UPOV 1991 makes the rights of farmers available
only if provided in national law, and recognizes only their right to save seeds for
replanting on their own holdings, within reasonable limits, and subject to the
safeguarding of breeder’s legitimate interests. Farmers trading local varieties may thus
find themselves forced to compete with geneticists or other industrial users to acquire
traditional varieties. The likelihood of having wide variety of plants to sell would be
advantageous to large-scale farms, on the other hand small-scale farms would become
dependent on yet another purchased input126
Exchange and introduction of new crops and germplasm have led to economic
revolutions in many areas of the world. Most crops perform far better outside their place
of origin than within, for instance, Maize, a New World crop, became the staple in many
parts of Africa. Potatoes spread from the Andes not only to Europe but also to Asia and
Africa. Rice from Asia followed a similar course in South America.127
IV. The Relationship Between Farmers’ Rights and Intellectual
Property
The recognition of “Farmers Rights”, has been identified as one of the possible ways
to compensate traditional farmers for their immense contributions to agriculture.
Considering that the content and scope of Farmers’ Rights have not been fully defined,
and national governments are at liberty to give wider expression to this right, it should be
noted that issues raised are mostly in connection with the kind of rights to confer on
farmers, whether it should be recognized as a sui generis right or become, a new form of
intellectual property right.128 The views and options which have been suggested are many
and varied in respect of the relationship between these two categories of rights.
126
S. BRUSH, supra note 75. p.30
S. BRUSH, suora note 75. p.4
128
C. CORREA, supra note 40 .p. 15
127
36
In recent years different views have been suggested on this matter. It has been
suggested that there should be no relationship between Farmers’ Rights and IPR system,
whilst others propose that the rights could be recognized in laws relating to plant
breeders’ rights. Another suggestion seeks to establish a sui generis regime on Farmers’
Rights, which is separate from existing forms of IPRs, or extend the existing definition
under plant breeders’ legislation to protect farmers’ varieties.129 Cottier is of the opinion
that the concept of IPRs may contain traditional knowledge relating to plant genetic
resources since such knowledge has been part of traditional heritage of specific
communities and individuals: it has been intellectual and mental and it should become
legal property at the future by removing it from the public domain.130 According to
Grisberger, unlike breeders rights which are IPRs, farmers’ rights are just exceptions to
IPRs and they should include simply the right to compensate.131 There seem to be no
consensus on the exact rights to be conferred as the reason given for Farmers’ Rights,
significantly differs from that of patents, copyrights and plant breeders’ rights.
Intellectual property rights deals with rewarding creators with incentives which serves
to stimulate innovation, consequently seed breeders who claim to have developed a new
plant variety is given an exclusive monopoly right, for a limited period of time, in
relation to the seed, which has the effect of generally preventing others from using,
selling or producing the seed without the breeder’s permission, though there are basically
a few exceptions built in.
Farmers’ Rights, on the other hand, are a retrospective reward, of unlimited duration,
for the conservation of plant genetic resources.132 The concept of farmers right does not
limit the contribution made by farmers over a specified subject matter, but covers plant
breeding and conservation over the years.
129
C. CORREA, supra note 40 .p. 15
130
TH. COTTIER , The protection of Genetic Resources and Traditional Knowledge : Towards More
specific Rights and obligations in world trade law , in: Abbott ,TH. Cottier . And F.Gurry , The Intellectual
Property System; Commentary and Materials, part II Kluwer law international 1999 p.1841
131
J. STAFFLER, Recognition of Farmers’ Rights an “effective sui generis System” for Plant Varieties(
Article 27.3(b) of TRIPS , Lecture, LL.M in intellectual Property, Turin University/ WIPO,11 June 2003
132
M.BLAKENEY, supra note 117, at 4.2
37
It is also easy to identify the beneficiaries of intellectual property rights, such as
innovators and inventor. However, in case of Farmers’ Rights it is often difficult to
identify the beneficiary community, where, for example, a landrace is found in a number
of different in situ national locations, as well as ex situ collection outside the country. 133
Also, the rights of each category of intellectual property right protection is precisely
defined, whereas Farmers’ Rights are attached to less specific incremental contributions
to the innovation process.134 Each intellectual property subject matter is well defined,
whereas the potential subject matter protected by farmers rights are plant, plant varieties,
crops, landraces, traditional plant genetic resources for food and agriculture with their
wild and weedy relatives from in situ and ex situ, and the related know-how of informal
plant breeders.135
The concept of Farmers’ rights emerged in order to offer a counterbalance to the
intellectual property system, and to ensure that barriers were not created against the
farmer’s use and development of plant genetic resources. Hence, farmers’ rights may not
be in themselves, strictly speaking, an intellectual property rights mechanism136.
Consequently, the fundamental differences which exist between Farmers’ Rights and
Intellectual Property Right system in relation to rights granted, defined subject matter,
title holders and duration raise issues as to whether Farmers right can be easily
accommodated under IPRs, particularly when the two systems have evolved through
different stages. However, it is worth stressing that the linking of Farmers Rights to the
international intellectual property system has the principal advantage for the enactment of
Farmers’ Rights, as this would cover a wider group of countries as contracting members
of the World Trade Organization and therefore signatories to the TRIPs Agreement. An
insertion of Farmers Rights into the TRIPs Agreement, would be beneficial to developing
countries as it will rope in countries such as the USA, which have failed to ratify the
CBD.137
133
M.BLAKENEY, supra note 117, at 4.2
M.BLAKENEY. Supra note 117, at 4.2
135
J.STAFFLER, supra note 113
136
C. CORREA, supra note 40, p. 15
137
M. BLAKENEY, supra note 117, at 4.2
134
38
However, considering that the concept of Farmers’ Rights have been recognized
through the PGRFA treaty and it covers unique subject matter which involves the food
needs of people in developing countries, it is thus imperative that a system is created,
which is specifically tailored to reward farmers for their immense contribution towards
food security for all.
V. Legal Means of Protecting Farmers’ Rights and Implementation
Although the PGRFA treaty upgrades Farmers’ Rights, the treaty is silent with regard
to the legal form of protection. Some authors suggest that Farmers’ Rights can in some
way be assimilated to or become a new form of IP, others call for adapting existing
intellectual property rules, or to afford the legal protection of Farmers’ Rights through
alternative legal forms, such as rules of unjust enrichment, misappropriation,
contract…etc. A sui generis system could be a solution of last resort.138
There are many proposals to extend the application of current modalities of IPRs or to
adapt it in order to protect certain aspects of Farmers’ Rights including farmers’ varieties.
Such proposals include the following:
1. introducing new requirement into existing IP laws such as the obligation to disclose in
a patent application the origin of the materials used to develop the invention and prior
informed consent so as to facilitate benefit sharing139, and the introduction of novel ways
to address the issue of prior art.
a- Prior art:
The basic requirement for an invention to be patentable is novelty, i.e. it must be novel,
it makes no sense to grant someone a patent on an invention that already exists and is
available to the public. Problems arise where public knowledge is not easily accessible
138
139
D. GERVAIS, supra note 123, p.970
CORREA, supra note 40, p.17
39
during the research procedure. At the patent application stage, most patent offices may
not survey foreign literature in which description of TK appeared if an invention is
already part of the prior art and therefore not novel.140. Under Section 102(a) of US
Patent Act, a patent will not issue if someone other than the applicant knew of or used the
invention in the U.S before the application’s date of invention. This means that
knowledge and use are limited to the United States,141 i.e. public domain knowledge in a
foreign country is not considered prior art within the United States unless that knowledge
is documented in a written form. This provision is a stimulate for biotechnological
companies to simply acquire traditional knowledge from developing countries and patent
it within the US as if it were their own discovery.142. This has been the case of the
Turmeric patent. Hadn’t the Indian Council for Scientific and Industrial Research
presented a written document (a paper published in 1953 in the Journal of the Indian
Medical Association) challenging the patent before the USPTO, it wouldn’t have
succeeded in proving prior art that lead to canceling the patent.
In order to avoid the grant of patent on inventions anticipated in traditional prior art,
WIPO has proposed creating of an international database of traditional knowledge which
would provide a network of regional, national and local database and would function
similar to the Clearing House Mechanism of the CBD143. This would be important to IP
offices to enable them to improve international prior art research. Databases can provide
defensive protection to traditional knowledge holders in the context of the granting of
IPRs on inventions based on such traditional knowledge. Databases can also help TK
holders by enhancing their traditional knowledge and thus help the formers control the
use of such knowledge by others.
However, establishing databases is not effective in terms of positive protection, in
addition such databases would be useful only for the most egregious cases of TK
140
see Intergovernmental committee an Intellectual property and Genetic Resources, Traditional
Knowledge as Prior Art, WIPO GRTKF/IC/2/6.
141
S. HALPERN, C. NARD and K.PORT, Fundamentals of United States Intellectual Property Law:
Copyright, Patent, Trademark, Kluwer Law International, 1999, p. 200. See also, A. Miller & M Davis,
Intellectual Property-Patents, Trademarks, and Copyright. In a nutshell, West Group ST, Paul Minn.,
2000, p.44
142
P.MARIN, supra note 8, p.63.
143
WIPO Doc, WIPO/GRTAKF/IC/2/6, July1, 2001, para. 65
40
misappropriation, and not even all of these.144 Moreover, traditional knowledge, specially
those related to medicinal plant properties, might be known only by local communities
who made an effort to keep the information secret. Revealing such information by means
of databases will destroy the value of such traditional knowledge.
b- Disclosure and Prior Inform Consent:
One suggestion to protect traditional knowledge is that applicants for IPRs which
consist of, or are developed from genetic resources or knowledge should identify the
origin of these resources or knowledge and provide proof that they were acquired with
the prior informed consent of the country of origin. The disclosure of the origin of such
resources or knowledge from which the protected invention is derived is important to
determine whether it is part of the prior art or not, and would provide information that
assist in the enforcement of any access and benefit sharing agreements.145. While
disclosure of genetic resources goes to Article 15 of the CBD, many plant genetic
resources are developed through manipulation, experimentation, and conservation by
indigenous or local communities over many generations. Thus, they in fact embody
“knowledge, innovation and practices” of these communities and warrant protection
under Article 8(j).146
There have been proposals that the disclosure requirement might be enforced by
making it a condition of approval of an application and providing for revocation where
disclosure is shown to be fraudulent. This means that the grant of IP rights will not only
be subject to the conditions laid down by IP laws but also be subject to those laid down
by other laws which are not directly dealing with IP such as biodiversity laws. This
would be consistent with the obligations under the CBD where “ Each contracting party
shall tale all practicable measures to promote and advance priority access on a fair and
equitable basis by contracting parties, especially developing countries, to the results and
benefits arising from biotechnologies based upon genetic resources provided by those
144
J.STAFFLER, supra note 60, p.83.
Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development
Policy, Report of the Commission on Intellectual Property Rights, London, September 2002, chapter 4, p85
146
D. DOWNES , How Intellectual Property could be a tool to protect TK”, 25 Colum, J. Envtl .L., 2000,
145
p.274
41
contracting parties. Such access shall be on mutually agreed terms”. 147 The obligation to
take legislative measures lays upon the Contracting States including the recipient states
and extends to the shaping of laws, including, to the extent necessary, the grant of patent
protection. 148
At the third session of the WIPO Standing Committee on the Law of Patents in
September 1999 Colombia proposed the introduction into the Patent Law treaty, for the
purpose of harmonizing the procedures of patent registration, of an article which
provided that the grant of patents or registration that relates to elements of biological and
genetic heritage shall be subject to their having been acquired legally, and all the
documents provided by applicants shall specify the registration number of the contract
affording access to the relevant genetic resources. To facilitate progress on the procedural
aspects, the source country question was referred to an expert group for further
consideration. The matter referred later to the Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.149 The
debate concerning this issue is still going on.
The requirements of prior informed consent and disclosure have already been
introduced into some developing countries laws, for example Andean Decision No. 391
of August 16, 1996 which establishes a Common Regime on Access to Genetic
Resources; and the Costa Rician Biodiversity law 7788 of 1998 provide that intellectual
property to innovations involving components of biodiversity can only be granted if a
147
Article 19(2)
Although the Preamble to the European Directive 98/44/EC of the European Parliament and of the
Council of 6th July 1998 on the legal protection of biotechnological inventions states in recital 27 that
“Whereas if an invention is based on biological material of plant or animal origin or if it uses such material,
the patent application should, where appropriate, include information on the geographical origin of such
material, if known; whereas this is without prejudice to the processing of patent applications or the validity
of rights arising from granted patents”, it should be noted that the task of implementing the Directive rest
with the Member States, and those also as parties to the CBD and bound by its provisions, as acknowledged
by recital 55 of the Directive Thus in the implementation Member states shall be under an international
obligation to come up with rules, which specifies the required information to be contained in patents
applications for inventions based on biological material of plant or animal origin or using such material.
Consequently, it seems from the provisions of the European Directive that it has its limit, as it shifts
compliance on Member states to regulate their patent laws, in respect of issues in conformity with the
mandate of the CDB. See, RICOLFI, Biotechnology, Patents and Epistemic Approaches, Rev. Biolaw and
Business, 2, 2002
149
The working documents of the Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore (the “IGC”), grouped by their subject matter can be
accessed according to the IGC Session which considered them from:
http://www.wipo.int/globalissues/igc/documents/issues.html#1
148
42
certificate of origin and a statement of prior informed consent are provided to the
competent authority specified by the law ( Article 80).
In line with this view, the Egyptian Law on the Protection of Intellectual Property
Rights No.82-2002 obliges the breeder to disclose the genetic source relied on to develop
the new plant variety.
150
2. increasing the flexibility of the requirements for the protection of plant varieties by
adapting the condition for granting plant breeders’ rights:
The protection of plant variety within the UPOV requires that the varieties must be
new, distinct, uniform and stable. These conditions hinder extension of protection to
farmers’ varieties (landraces) as they are not new nor are they distinct, uniform and
stable. However, protecting farmers’ varieties by means of PBRs might be achieved by
adapting the UPOV criterion to lessen its purported effect.
One of the conditions for granting plant breeders’ rights is that the variety must be
novel. Since traditional knowledge holders and farmers varieties don’t fulfill this
condition, they can hardly be protected under the plant breeders’ rights system. Adapting
the condition of novelty by according protection to extent varieties which need not
150
Article 200 states that “ The breeder shall disclose the genetic source relied on to develop the new plant
variety. The protection of the new plant variety requires that the breeder has acquired that source by
legitimate means under the Egyptian law.
Such a requirement extends to traditional knowledge and experience accumulated among local
communities the breeder could have relied on in his effort to develop the new plant variety.
Likewise, the breeder who deals with Egyptian genetic sources, with a view to develop new varieties
derived therefrom, shall undertake to acknowledge the Egyptian traditional knowledge as sources to what
he could have achieved using such knowledge and experience, through the disclosure of the Egyptian
source the breeder benefited from, and by sharing the profits gained with the interested party, as prescribed
in the Regulations of this Law.
A register shall be established in the Ministry of Agriculture to include the Genetic Egyptian plants, both
wild and domesticated.”
43
conform to the criterion of novelty would therefore be beneficial for TK holders and for
farmers as well. The rationale for offering protection to extant varieties defies the
argument advised to justify PVP, which contend that proprietary rights simulate
innovation and investment. 151
This is the approach adopted by India’s Plant Variety Protection and Farmers’ Rights
Act(2001). Article 39 of Indian Legislation states that farmers who have bred or
developed a new variety shall be entitled to PBRs in the same manner as breeders. This
provision is a significant departure from the way farmers and indigenous and local
communities are recognized in the IU and CBD.152 Distinctness, beside stability and
uniformity, is another condition for granting plant breeders’ rights. To produce a variety
that fits such a requirement will take great investment and thus one will focus on a few
easily distinguishable, profitable, varieties. The result of this is an excessive dependence
upon a few basic types unless a very reliable return can be identified. It is not hard to see
the disadvantage in such practice. Dependence upon a narrowed genetic base creates an
innate vulnerability to any new, or previously harmless, disease or pest .153
As a general rule, farmers’ varieties (landraces) cannot be protected by plant breeders’
rights because they don’t correspond to the criterion of stability and uniformity. This
would encourage the development of uniform varieties for commercial purposes. On the
contrary, the biodiversity treaties generally seek to avoid uniformity and monocultures as
they might cause loss of diversity. Adapting such conditions in order to satisfy farmers’
varieties protection would be consistent with the purpose of biodiversity environmental
treaties.
151
S. SESHIA, Plant Variety Protection and Farmers Rights in India: Law-Making and Cultivation of
Varietal control, Globalisation and Poverty, p9 available at:
http://www.gapresearch.org/governance/EPWarticleShaila.pdf.
152
S. SESHIA, supra note 151
153
. R.LETTINGTON and M. Manek, "Pandora's Box": TRIPs Article 27(3)(b) and the CBD
http://www.sustain.org/biotech/library/admin/uploadedfiles/Pandoras_Box_TRIPs_Article_273b_and_the_
CBD.htm
44
Moreover, the position of farmers’ varieties within the UPOV system can be
strengthened by extending the ambit of the concept of essentially derived variety. This
concept has been introduced by UPOV 1991 to allow breeders to protect varieties which
are essentially derived from a protected variety. On the contrary, the contribution made
by traditional farmers who conserved and improved the breeding materials from which
new varieties are derived has been neglected. Protection of farmers’ varieties and relevant
TK could be achieved by providing that breeders who want to use farmers’ varieties for
creating essentially derived variety must get the express permission of the farmers. This
is the approach adopted by india’s Plant Varieties Protection and farmers rights Act of
2001.154
3. The application of trade secret law to protect traditional knowledge regarding plant
genetic resources:
Under the TRIPs Agreement natural and legal persons shall have the possibility of
preventing information lawfully within their control from being disclosed to, acquired by,
or used by others without their consent in a manner contrary to honest commercial
practices as long as such information ... is secret, ... has a commercial value because it is
secret; and has been subject to reasonable steps under the circumstances to keep it
secret.155 The application of trade secret rules in order to protect traditional knowledge
regarding plant genetic resources require that the information holder has to take
reasonable steps under circumstances to keep the information secret. The problem with
TK is that the secrecy, as a condition of a trade secret, might not be satisfied in that kind
of information simply because the knowledge is common in many traditional societies.
S. SAHAI, India’s Plant Varieties Protection and Farmers’ Rights Act. Available at:
http://www.ictsd.org/iprsonline/ictsd/docs/SahaiBridgesYear5N8Oct2001.pdf.
154
155
Article 39.2
45
On the other hand, holders of such kind of information, in many instances, do not take
reasonable steps to keep the information secret. Trade secret law would only be an
efficient tool to protect TK if holders of such knowledge made a reasonable effort to keep
the information secret, which is not the case with most farmers. However, an
experimental project based in Ecuador and supported by the Inter-American
Development Bank is currently trying to protect traditional knowledge as trade secrets.
The project, “ transforming traditional knowledge into trade secret”, aims to enable
traditional people and communities to benefit from bioprospecting through effective trade
secret protection of their knowledge. An NGO called Ecociencia is documenting the
botanical knowledge of participating indigenous groups, and registering it in closedaccess databases. The trade secrets can then be disclosed to companies with benefit
sharing guaranteed by a standardized contract. The benefits would then be distributed
among the trade secret-holding communities and the Ecuadorian government. 156
4. Geographical Indications:
The TRIPs Agreement refers to geographical indications in Article 22, which defines
such term as “…indications which identify a good as originating in the territory of a
member, or a region or locality in that territory, where a given quality, reputation or other
characteristic of the good is essentially attributable to its geographical origin.”
Geographical indications grant to all the producers from a given geographical area the
exclusive rights to use a distinctive sign in connection with their good to identify the
place where they come from. Article 22.2 obliges WTO members to provide the legal
means for interested parties to prevent the use of any means in the designation or
presentation of a good that indicates or suggests that the good in question originates in a
geographical area other than the true place of origin in a manner which misleads the
public as to the geographical origin of the good.
156
K. Puri, Protection of Traditional Knowledge & Cultural Expressions of Indigenous Peoples .Why
Model Law?, Lecture presented in LL.M programme in intellectual Property, Turin University/ WIPO
June11,2003
46
Geographical indications could be adapted to serve as an indicator of the place where
the original plant species, used in the development of a new plant variety, was collected:
gene banks, wild species, farmer’s field, Amazon forest, etc. This could be an important
proof to be used in the equitable share of benefits derived from the use of the plant
variety accessed in accordance to the CBD157. Geographical indications could be used as
a useful tool to protect traditional knowledge and genetic resources developed by local
communities or indigenous people. For example, the name “Kava”, “Basmati”…etc, can
be protected by registration as a geographical indication or certification mark. In order to
achieve this goal the higher standard of protection specifically for wines and spirits under
Article 23 of the TRIPs Agreement should be extended to cover other products, which
could possibly include traditional knowledge, in particular medicinal knowledge158. On
the other hand, it is necessary for the country of origin to develop a legal means of such
protection.
5. Sui Generis System
Farmers’ rights might be protected by means of sui generis system. The following
examples illustrate the views adopted by some developing countries:
(a)The African Model Legislation
In March 1998, the Scientific Technical and Research Commission of the Organization
of African Unity (OAU/STRC) task force on community rights and access to biological
resources met in Addis Ababa to develop draft model legislation on community rights
and access to biological resources as a basis for the elaboration of national legislation.
The African Model Legislation for the protection of Local Communities, Farmers and
Breeders, and For the Regulation of Access to Biological Resources was adopted in
1998.159
157
P.MARIN, supra note, p.71
GERVAIS, supra note 123, p 969.
159
T.KONGOLO, supra note 5, p.365
158
47
The Model legislation reflects the main provisions as expressed in the CBD and
emphasizes on the rights of local communities over their biological resources. It also
seeks to implement in an appropriate manner the FAO International Undertaking on Plant
Genetic Resources and further incorporates to some extent a few provisions of the UPOV
Convention.160 The objective of the legislation is to ensure the conservation, evaluation
and sustainable use of biological resources, traditional knowledge and technologies in a
manner that would foster development and maintain their diversity as a means of
sustaining life support systems.161
The Model law provides a unique system of protection that covers both plant varieties
and biodiversity. Thus the preamble sets out the interest and the main goal of the
legislation which is expressed in specific obligations, such as recognition of the rights of
local communities and breeders, control of access to genetic and biological resources
community knowledge and technologies, benefit sharing regimes and others relating to
agriculture sustainability and food security. The Model legislation affirms the cultural
practices of the farming communities in Africa, considering the fact that a vast majority
of Africa’s farmers are dependent on subsistence agriculture
In accordance with the preamble and objectives of the legislation, a fusion of traditional
and modern knowledge relevant to the conservation and sustainable use of biological
resources is made feasible. It is also evident that the main purpose of the Model Law is in
respect of issues bordering on traditional knowledge, innovations, practices and
technologies that affect Community rights and Farmers rights162. It also promotes fair and
equitable sharing of benefits and the prior informed consent of the concerned community
.It also makes provision for the protection of farmer’s varieties and practices related to
160
T.KONGOLO, supra note 5, p.365
161
P.MARIN, supra note 8, p, 77.
Article 25 (1) “Farmers’ rights are recognized as stemming from the enormous contributions that local
farming communities, especially their women members, of all region of the world, particularly those in the
centers of origin of diversity of crops and other agro –biodiversity, have made in the conservation,
development and sustainable use of plants and animal genetic resources that constitute the basis of breeding
for food and agriculture production; and (2) for farmers to continue making these achievements, therefore
,farmers’ rights have to be recognized and protected”
162
48
customary practices and laws in a particular local farming community163. In accordance
with Article 43, Farmers have the right to save, use, multiply exchange and sell farm
saved seed of farmer’s variety. It recognizes intellectual property rights of breeders over
new varieties that are distinct, stable, and sufficiently homogenous164. The result is that
the needs and priorities of farming communities are captured and provided for.
The Model legislation clearly presents an a suitable sui generis regime to developing
countries who are in the process of complying with their TRIPS obligation in the field of
plant variety protection, by taking advantage of the flexibility which the experts attribute
to Article 27.3. (b), and adopt a plant variety protection law that caters for the interest of
all players and particularly suit their own social and economic development.
(b) India
In 2001 the Protection of Plant Varieties and Farmers’ Rights Act was enacted in
harmony with TRIPs ,CBD. The Act includes elements of both the 1991 Act of UPOV,
and the Act of 1978 together with some new features. Its objectives include promoting
conservation of agro biodiversity and sustained use of varieties and facilitating access to
genetic resources and sharing benefits. The unique features of the Act are: “ 1-protection
for new plant varieties, essentially derived varieties, extant varieties and farmers’
varieties. Farmers’ varieties and extant varieties need not fulfill the requirement of
newness. 2- Safe guard for genetic use restriction technology such as “terminator gene”.
3- Recognizing farmers as innovators, conserver, breeder, preserver of plants and plants
varieties in addition to cultivators. 4- Simplified procedure for protection of farmer’s
variety.5- Special arrangements for benefit sharing. 6- Creation of gene fund
conservation of agro biodiversity. 7- Special provision for compensating to the farmers in
case material supplied is not meeting the expected performance. 8- Waiver of fees to
163
164
Article 26
Article 42.
49
farmers. 9- Failure to supply adequate material to farmers at reasonable price is made a
ground for compulsory license. 10- Establishment of Tribunal Board.”165
(c) Philippines
The Philippines Indigenous Peoples’ Rights Act of 1997 was the first legislation in
developing countries to protect and promote the rights of indigenous communities/
indigenous people. In recognizing the concept of “community property” the Act
establishes intellectual property rights on indigenous people and communities in line with
the Philippines Constitution which recognizes the indigenous people’s rights.166
It is worth mentioning that the concept of Community Intellectual Rights has found
legislative support in Brazil and a few other countries167
VI. Conclusion
Protection of plant varieties is not new. In the 1920s and 1930s many industrialized
countries have recognized various kinds of plant breeders’ rights. At the international
level the protection of plant varieties was established in 1960s, with the adoption of the
International Convention for Protection of New Varieties of Plants (the UPOV
Convention). The UPOV was first adopted in 1961 and has been subsequently revised in
1972, 1978 and 1991. The differences between the 1978 act and 1991 is significant as the
1991 version strengths the breeders’ rights to the point at which the protection becomes
similar to patent.
Most developing countries didn’t begin to protect plant variety until the advent of the
World Trade Organization (WTO). Under the TRIPs Agreement WTO members must
165
M. LAKASHMIKUMARAN, Plant Variety Protection: Salient features, International Association for
the Advancement of Teaching and Research in Intellectual Property Congress ( ATRIP ), New Delhi, India,
6-8 October 2002, p.2. see also: S.RAGAVAN, Protection of Traditional Knowledge,2 Minn. Intell. Prop.
Rev.,2001,p.54.
166
: S.RAGAVAN, Protection of Traditional Knowledge, 2 Minn. Intell. Prop. Rev.,2001,p.52.
167
MGBEOJI, Patents and Traditional Knowledge of the Uses of Plants: Is a Communal Patent Part of the
Solution to the Scourge of Bio Piracy?, 9 Ind.J. Global Leg. Stud.., 2001,173
50
provide for the protection of plant varieties either by patents or by an effective sui generis
system or by any combination thereof. Thus, developing countries are not obliged to
provide for the protection of plant varieties under patent nor to comply with UPOV
provisions instead, they may prefer to develop their own sui generis system of protection.
However, major developed countries, especially US, are applying unilateral pressure to
force developing countries to go beyond the TRIPs standards in order to safeguard the
interest of breeders. What is most surprising is that even when a state is in full
compliance with the TRIPs Agreement the US reserves, under Section 301, the right to
impose penalties upon countries that, in its view, don’t provide adequate intellectual
property protection. Facing the threat of trade retaliation under Section 301 of the US
Trade Act, and as a result of the bilateral trade agreements many developing countries
strengthen the protection of plant variety beyond TRIPs standards. As a result, the
number of the developing countries which acceded UPOV 1991 or implemented its
provisions in their national laws has significantly increased, and practically, most
developing countries don’t have the freedom anymore to establish their own sui generis
system of protection to satisfy their needs.
In addition, the Most-Favoured-Nation Treatment (MFN) principle in TRIPs
Agreement plays a major role in raising the standards of intellectual property. When
combined with bilateral agreement it will work in favor of the two leading exporters of
intellectual property in the world the US and the EU and will have the effect of spreading
and setting new minimum standards of intellectual property faster than would have
happened otherwise. Developing countries are advised to develop a veto coalition against
farther ratcheting up of intellectual property standards, and that the TRIPs Council shift
its purpose from a body which secures a platform for intellectual property regulation to
one that policies a ceiling.
On the other hand, developing countries are wealth in genetic resources and have
farmers who traditionally conserve and use plant genetic resources the value of which is
preserved and enhanced by their utilization for planting, seed production and continuous
use of best adapted farmers’ varieties. Many traditional crops such as the Neem tree and
Basmati rice have been patented in developed countries ignoring farmers’ contribution to
51
genetic resources through the selection of seeds over generations and denying their role
in conservation and development of plant genetic resources, in addition to the plants
gremplasm misappropriated from gene banks by western institutions and biotechnology
companies and sough intellectual property rights in relation thereto, where these plants
accessions are held in trust for the benefit of the international community, in particular
the developing countries.
In addition, a process that modify plants in order to prevent seeds from generating in
the next generation has been invented and patented in US so called terminator
technology. Consequently, it is impossible for farmers to save, replant, or sell seeds and
patentee increase their monopoly in farmers fields. A memorandum prepared by UPOV
secretariat at the request of member governments of the CBD convention has pointed out
the disadvantage of using terminator technology. The memo had been available on the
UPOV website since January 2003. Unsatisfied with this memo the US pressured the
UPOV for withdrawal of it. Ultimately, the US succeeded, and the UPOV posted a new
document which contains no analyses- critical or otherwise regarding the intellectual
property rights implication of terminator technology.
Traditional farmers and indigenous people around the world have been seeing their
plant genetic resources (PGRs) and traditional knowledge (TK) monopolized by private
enterprises under patents and plant breeders’ rights and have not been receiving their
equitable share of benefits for their contribution. These concerns led to the adoption of
two United Nations binding international treaties, the convention in biological diversity
(CBD), the first global agreement on the conservation and sustainable use of biological
diversity, signed at the 1992 Earth Summit in Rio de Janeiro, and the International Treaty
on Plant Genetic Resources for Food and Agriculture (PGRFA), adopted on 3 November
2001 under the auspices of the FAO, which recognizes the enormous contribution that
farmers an their communities have made and continue to make to the conservation and
development of genetic resources.
52
Accordingly, a balance can be achieved while protecting breeders’ rights in developing
countries by considering farmers’ rights. In this connection, we have discussed the
relation between farmers’ rights and intellectual property rights and the different views in
relation thereto.
There are many proposals to extend the application of current modalities of
intellectual property rights or to adapt it in order to protect certain aspects of farmers’
rights including farmers’ varieties. It is worth stressing that the concept of farmers’ rights
emerged in order to offer counterbalance to the intellectual property system, and to
ensure that barriers were not created against the farmers’ use and development of plant
genetic resources. Hence farmers’ rights may not be in themselves, strictly speaking, an
intellectual property rights mechanism. However, considering that the concept of
farmers’ rights have been recognized through the PGFRA treaty and it covers unique
subject matter which involves the food needs of people in developing countries, it is thus
imperative that a system is created, which is specifically tailored to reward farmers for
their immense contribution towards food security for all. Several developing countries
such as India has adopted a sui generis system to protect plant varieties and recognize at
the same time farmers’ rights and protect relevant traditional knowledge.
53
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