This week another of our Academic Advisors, Dr Viola Prifti, has generously contributed a post on a recent conference on plant intellectual property and explains some of the research that she delivered there, written in a manner suitable for the general reader. The research in question is not yet complete, so any and all questions will be most welcome. More importantly, Viola is also currently looking for research posts, and would greatly appreciate your passing on any suitable openings regarding IP, patent protection, and plant breeding/food security.
Recent years have seen the proliferation of different forms of intellectual property rights on plant varieties (patent rights, plant breeder’s rights or sui generis regimes). One reason is found in numerous trade agreements with developed countries (mainly the US and the EU), which require developing countries to adopt Western standards of protection for plant varieties. The preferred standard of protection appears to be the grant of plant breeder’s rights as provided for in the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 1991). Many African and Latin American countries are currently facing the challenge of adopting UPOV 1991-compliant laws. Will UPOV 1991 incentivize or deter their agricultural development? These issues were presented and discussed in a panel dedicated to plant variety rights at the 34th ATRIP annual conference in Cape Town which took place a fortnight ago. The ATRIP conference is organized by the International Association for the Advancement of Teaching and Research in Intellectual Property and brings together distinguished professors and researchers in IP from all parts of the world (http://atrip2015.com/programme/). The first day of the conference hosted four panels and it was a pleasure to notice that one of them was dedicated to plant variety protection. This indicates the growing importance that this topic is gaining in academia, and I was pleased to be amongst the panelists alongside Prof. Coenraad Visser and Prof. Chidi Oguamanam. While the professors explained the difficulties of implementing UPOV 1991 in Africa and its implications for farming and food security, I illustrated the challenges that some Latin American countries are facing in adopting UPOV 1991 provisions and offered some recommendations in order to support the development of the plant breeding sector in these countries.
I chose to focus on three countries: Chile, Colombia, and Guatemala. These countries proposed plant variety laws based on UPOV 1991 under the free trade agreements concluded with the US, but the bills were revoked by the Chilean President, the Colombian Constitutional Court, and the Guatemalan Parliament. The laws were believed to negatively affect smallholder farmers and indigenous people. Social discontent was the cause for revoking the proposed laws as well as for petitions in front of the Constitutional Courts of the aforementioned countries. This is the first time that Constitutional Courts have dealt with plant breeder’s rights laws in the world; therefore, I perceived the importance of the topic. It is firstly very important to note that the proposed laws in these Latin American countries went beyond the standards of UPOV 1991 and significantly restricted the freedom of farmers (the laws were often referred to as “Monsanto laws” to indicate the strong position they conferred to large commercial breeders). The arguments presented by the parties to the Constitutional judges brought into light the need to take account of the effects of plant breeder’s rights on farmers’ and indigenous peoples’ innovations. Hence one of the questions in my paper is how to find a legal framework that incentivizes commercial plant breeding and at the same time preserves traditional farming practices. I try to find an answer by analyzing the interests at stake (different innovation models and market power of stakeholders) and rely on economic theory and inconclusive empirical studies. I also delve further into the relation between IP and trade and make an attempt to observe who has benefited from plant variety protection in Chile. From the limited amount of available data, it appears that US and EU breeders have been awarded the greater proportion of plant variety certificates. Chilean breeders seem to be more active in breeding crops of national interest (potato, maize) and it is also interesting to note that the Chilean breeders are mainly represented by public institutions and one private breeder.
At this point, the question I ask is whether the economic theory on the positive role of IPRs in innovation rates finds an application in terms of the issue at hand. The analysis allows me to offer some recommendations for adopting UPOV 1991-compliant national laws while permitting farmers and indigenous peoples to continue their ancient practices of saving, resowing and exchanging seed. In this regard, an examination of UPOV flexibilities was mandatory. Despite its rigidity, the UPOV system has a few exceptions which can be used to favor farming practices. Building upon existing work by Bram de Jonge and Peter Munyi in Africa, I suggest Latin American countries distinguish between different types of farmers in order to build a plant variety protection system that better responds to their national interests.
To follow more of Viola's research as it progresses, and to contact her, please visit her website:
https://plantvarietyprotection.wordpress.com/
I chose to focus on three countries: Chile, Colombia, and Guatemala. These countries proposed plant variety laws based on UPOV 1991 under the free trade agreements concluded with the US, but the bills were revoked by the Chilean President, the Colombian Constitutional Court, and the Guatemalan Parliament. The laws were believed to negatively affect smallholder farmers and indigenous people. Social discontent was the cause for revoking the proposed laws as well as for petitions in front of the Constitutional Courts of the aforementioned countries. This is the first time that Constitutional Courts have dealt with plant breeder’s rights laws in the world; therefore, I perceived the importance of the topic. It is firstly very important to note that the proposed laws in these Latin American countries went beyond the standards of UPOV 1991 and significantly restricted the freedom of farmers (the laws were often referred to as “Monsanto laws” to indicate the strong position they conferred to large commercial breeders). The arguments presented by the parties to the Constitutional judges brought into light the need to take account of the effects of plant breeder’s rights on farmers’ and indigenous peoples’ innovations. Hence one of the questions in my paper is how to find a legal framework that incentivizes commercial plant breeding and at the same time preserves traditional farming practices. I try to find an answer by analyzing the interests at stake (different innovation models and market power of stakeholders) and rely on economic theory and inconclusive empirical studies. I also delve further into the relation between IP and trade and make an attempt to observe who has benefited from plant variety protection in Chile. From the limited amount of available data, it appears that US and EU breeders have been awarded the greater proportion of plant variety certificates. Chilean breeders seem to be more active in breeding crops of national interest (potato, maize) and it is also interesting to note that the Chilean breeders are mainly represented by public institutions and one private breeder.
At this point, the question I ask is whether the economic theory on the positive role of IPRs in innovation rates finds an application in terms of the issue at hand. The analysis allows me to offer some recommendations for adopting UPOV 1991-compliant national laws while permitting farmers and indigenous peoples to continue their ancient practices of saving, resowing and exchanging seed. In this regard, an examination of UPOV flexibilities was mandatory. Despite its rigidity, the UPOV system has a few exceptions which can be used to favor farming practices. Building upon existing work by Bram de Jonge and Peter Munyi in Africa, I suggest Latin American countries distinguish between different types of farmers in order to build a plant variety protection system that better responds to their national interests.
To follow more of Viola's research as it progresses, and to contact her, please visit her website:
https://plantvarietyprotection.wordpress.com/
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