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.
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