Intellectual Property Rights and Agricultural Productivity

1. Intellectual Property Rights and Agricultural Productivity Victor Mosoti Legal Officer Development Law Service FAO Legal Office

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

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

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

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

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

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

8. The nature of the tension between PBRs and Farmers’ Rights… • In turn, these restrictions have a potentially negative impact on: • Rural livelihoods and food security • Benefits both to producers and consumers • Future research prospects

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

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

11. What are the international legal instruments to resolve the tensions? • TRIPs: establishes minimum standards for trade-related aspects of IPRs. Article 27.3(b). • ITPGRFA: recognizes “farmers’ rights” and leaves its implementation to countries. Article 9. • UPOV: protects plant breeders’ rights. Revised in 1978 and 1991. Article 25. • CBD: recognizes countries’ sovereignty over their natural resources. Article 3.

12. TRIPs…just how much flexibility for countries to design PVP legislation? • TRIPs: establishes minimum standards for trade-related aspects of IPRs. Article 27.3(b) requires protection of plant varieties. • The section gives three options for the mandatory protection of plant varieties: • Patents • An effective sui generis system • Patents plus a breeders’ rights regime • “effective sui generis system”: not defined…more emphasis on what a sui generis system might be.

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

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

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

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

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

18. UPOV ‘78, UPOV ‘91 and TRIPs…

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

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

21. ITPGRFA, access to plant genetic resources and “farmers’ rights”… • There are however some challenges: • conservation of genetic resources important for future agricultural research. • access by researchers on terms that recognize contributing farmers in developing countries

22. Conclusions… • Options for meeting obligations under TRIPs and PVP… • UPOV-style legislation (based on UPOV’78 or ’91) • another form of sui generis legislation • patents on plant varieties • Presently… little evidence that patent protection is really in the interests of heavily agrarian countries • Countries with potential to develop biotech-related industries may wish to provide certain types of patent protection • Continuing review of Art. 27.3(b) should preserve right of countries to: • use sui generis regimes • not grant patents if they wish • Public sector research to be strengthened.