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Emerging Plant Variety Legislations and Their Implications for Developing Countries:
Experiences from India and Africa*

Harbir Singh*
National Centre for Agricultural Economics and Policy Research, New Delhi

1. Introduction

Developing countries are facing a tough battle against time in safeguarding their natural resources under changing global environment. This situation has arisen particularly after establishment of the World Trade Organization w.e.f. 1st January 1995. Of the several World Trade Organisation (WTO) agreements, the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) is of great significance for most developing countries since its ratification by member countries implies important changes in their respective intellectual property laws. Notably, at the time of signing of the WTO Agreement, intellectual property rights (IPRs) laws in developing countries were nil or relatively under-developed compared to developed countries whose laws were already mostly in conformity with the TRIPs Agreement [1]. The underlying hypothesis behind granting legal protection to plant varieties is to encourage commercial plant breeders to invest their resources for improving upon the existing plant varieties. Thus, IPRs in plant varieties provide some assurance to breeders that they will be able to recoup the risks and costs of a value-added innovation which is based upon an underlying biological resource [2].

TRIPs Article 27 has wider implications for plant variety protection and food security. This article requires that patent protection shall be available for any invention, whether product or process, in all fields of technology. However, certain exemptions are granted under TRIPs Article 27.3(b) which states that members may also exclude from patentability ‘plants and animals other that 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 plants varieties either by patents or an effective suigeneris system or by any combination thereof.’  The term sui generis is, therefore, subject to both broad and narrow interpretation. The option of sui generis under TRIPs Article 27.3(b) provides sufficient flexibility for countries to design a system that best fits their circumstances and meets their goals and objectives. Accordingly, scope of IPRs is being extended and existing IPRs regimes are being strengthened in the countries who advocate for strong IPR regime. On the other hand many developing countries have opted for a sui generis (of its own kind) system of intellectual property protection to comply with the requirements of TRIPs Article 27.3(b). These trends point to an increased importance of IPRs in the future [3].

Since most developing countries have mixed agricultural economies, the use of different instruments to comply with TRIPs obligations will vary in accordance with the needs and goals of each sector of their economies. The purpose of this paper is to contribute towards informed policy decisions to deal effectively with the possible implications of plant variety protection (PVP) legislations for agriculture sector. This will help in development and refinement of proposed PVP legislations in developing countries. At this juncture, it is difficult to predict exact magnitude of impact of PVP legislations because of lack of clear empirical evidence. However, lessons may be learnt from the working of PVP legislations and their impact in developed countries as well as emerging evidences from developing countries.

2. Recent Developments

The case of plant variety protection in India and Africa is unique. While Indian PVP legislation concurrently provides for farmers’ rights and plant breeders rights, the Organisation of African Unity (OAU) –renamed as African Union w.e.f. 9th July 2002 – has evolved a Model OAU Law which provide a basis for individual African countries to prepare their PVP legislations. Accordingly, main features of Indian plant variety legislation and African OAU Model Law and related developments are discussed in the following sections:

2.1
Indian PVP legislation

In September last year, the Indian Parliament approved a legislation providing for protection of plant varieties and farmers’ rights. The legislation known as the ‘Protection of Plant Varieties and Farmers’ Rights Act, 2001’ aims to provide protection for plant varieties, rights to the farmers and breeders and to encourage development of new varieties of plants. The Act has many unique features. It strikes a balance between the rights of farmers and breeders by rewarding the farmers and local communities from the pool of National Gene Fund for their conservation and development efforts and, at the same time, ensuring reward for innovation by granting plant breeders’ rights. Public interests will be taken care of through provisions of compulsory licensing, non-registration of varieties which affect public order and morality and are injurious to human, animal, plant life and health. To ensure that modern breeding techniques, which uses advanced technologies like biotechnology, are not misused, the Act prohibits registration of any variety which contains genetic use restriction technology (GURT). It is hoped that this legislation will stimulate research and development in agriculture both in public and private sector by providing protection for plant varieties. However, the legislation has scope for further improvements and fine tuning.

First, the act envisages to invite claims for benefit sharing from any person/group of persons or non-governmental organizations (NGOs) after issuing the certificate of registration. This well-intended provision on benefit sharing should be spelt out clearly and precisely. Depending on the extent of genetic material used, the proportion of benefits the breeder has to share with the public should be specified in the beginning itself. This will help to remove the uncertainty in the minds of private seed companies so that they can precisely earmark their R&D portfolio for the development of new plant varieties.

Second, the Act specifies that the breeder shall disclose to the farmers the expected performance under given conditions of any propagating material of a registered variety. But if the variety or the propagating material does not perform as expected, the farmers would have to approach the Authority and the Authority, after listening to both parties, shall decide about the amount of compensation. It is very complex issue and, as such, blatantly unfair to the farmers. The farmer, under such circumstances, should be given a certain proportion of expected output value per unit of land as compensation. Otherwise, the farmers cannot withstand the legal power of seed companies. This provision needs to be simplified.

Third, the Act opens a separate route for registration of essentially derived varieties (EDVs). The Authority, not the Registrar of Plant Varieties, will consider granting the certificate of registration for EDVs. We feel strongly that, EDVs should also pass for registration through the same channel as other new varieties of plants. Basically, EDVs are transgenic crops which are similar to the initial variety except the act of derivation. Instead of providing them separate channel for these varieties, we should allow for registration of EDVs through the same route. The need is to take effective measures for environmental impact assessment of EDVs before they go to the farmers’ fields.

Lastly, this legislation has scope for farmers being dragged into courts by the plant breeders. Here, it would be pertinent to note that many lawsuits against farmers regarding unauthorized use of genetically modified crops are pending before the courts in USA and Europe. A detailed discussion on this aspect is provided in section 3 of this paper.

2.2 African Model Law on PVP

Africa is the genetic source of a number of crop species. About 70 percent of tropical fodder grasses cultivated in the world and 25 percent of legumes originated from Africa. Furthermore, a number of African crops are specific to the continent, such as tef, ensete, qat, shea butter, African locust, cola, bambara nut, se-same (in part), nugh, gombo, karka-deh (guinean sorrel), corette (melukhia) and many others. Recognising the need to conserve the rich biodiversity of the continent, the OAU embarked on a process to assist African countries in fulfilling their obligations to the Convention on biological Diversity and TRIPs Agreement of the WTO. The initiative resulted in the development of a Model Law known as “Model Legislation on the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources” in 1997. The OAU Heads of State, in July 1998, endorsed the Model Law [4] and recommended that it become the basis of all national laws on the matter across Africa.

The Model Law has four components; Access to biological resources, Community rights, farmers’ rights and plant breeders’ rights. It aims at ensuring conservation, evaluation and sustainable use of biological resources, including agricultural genetic resources, and knowledge and technologies in order to maintain and improve their diversity as a means of sustaining all life support systems. It recognises that all forms of life are the basis for human survival, and, therefore, pat­enting of life, or the exclusive appropriation of any life form violates the fundamental human right to life. A unique feature of the legislation is that it has strong support to the role that women play in the generation, conservation, and sustainable use of biological diversity and associated knowledge and calls for their full participation at all levels of policy-making and implementation in relation to biological diversity, and associated knowledge and technologies.

It has adequate provisions for protection of farmers' breeds and seeds according to the criteria based on customary practices. Farmers have right to save, use, multiply and sell seeds, with the limitation that sale of material owned by the farmers should not be on a commercial scale. It recognises intellectual property rights of breeders over  new varieties that are distinct, stable and sufficiently homogenous. Breeders' Rights on a new variety are subject to restriction with the objective of protecting food security, health, biological diversity and any other requirements of the farming community for propagation material of a particular variety. Thus breeders’ rights are subordinate to farmers’ rights.

2.3 WIPO and UPOV try to derail OAU process

In May 2001, OAU called a meeting with World Intellectual Property Organisation (WIPO) and UPOV (the Union for the Protection of New Varieties of Plants) to seek comments on the OAU Model Law that aims to balance the rights of local communities, farmers and breeders to the biodiversity in Africa. Instead of helping in the furtherance of the objectives of the Model Law, the WIPO and UPOV made an undisguised attempt to subvert the whole OAU process. For example, the WIPO pointed out that prohibition of patents on life form goes against TRIPs Article 27.3(b) which requires patents on atleast micro-organisms. WIPO also rejected the inalienability of community rights embedded in the Law. Similarly, the Model Law did not find favour with UPOV officials who even reworked more than 30 articles of the Model Law to make them in conformity with their own convention. Does this mean that the so called flexibility (sui generis option) under TRIPs Article 27.3(b) is being reduced to accepting the UPOV Convention? This seems to be true going the available evidence on the development of PVP legislations and membership of UPOV (see, Table 1).

Two clear inference may be drawn from the table. First, despite the threat of trade sanctions from unmet deadlines, less than half (43%) of developing country members of WTO (69) have implemented TRIPS Article 27.3(b) at face value by enacting some form of plant variety protection law. This excludes thirty least-developed countries. Taken together, just a quarter of the WTO member from the South (26%) have PVP legislation in place. Second, despite the flexibility which the experts attribute to the available sui generis option under TRIPS Article 27.3 (b), UPOV-type PVP is aggressively becoming a blanket reality in the South. Most of the 26 developing countries which have adopted PVP laws – the majority of them did so in the last few years to comply with TRIPS requirements – have also joined UPOV. An additional 25 are currently in the process of joining of UPOV and another 30 country are allegedly seeking UPOV’s advice on the conformity of their draft PVP legislations with the UPOV provisions [5].

All this clearly indicate that the sui generis  option under TRIPS is gradually being reduced to UPOV-type legislation mainly under pressure from the industrialized countries to harmonise the IP laws worldwide. This is being achieved not only through global treaties but also regional and bilateral trade and investment agreements. This has serious implications for sustainable agriculture and farmers’ rights. Because accepting UPOV is the first step toward accepting full-fledged patents on life.  
 

In a related development, 15-member states of francophone Africa have signed an agreement (Bangui Agreement) for a common PVP system which is scheduled to come into force on 28th Feb. 2002. It seems that agreement was signed under pressure from the UPOV and WIPO. This has created a schism between francophone Africa and rest of the continent as all the Heads of States of all the OAU member countries had formally endorsed the Model Law as the recommended basis for national laws.

2.4 International Convention on Plant Genetic Resources for Food and Agriculture

The renegotiation of the FAO International Undertaking (IU) on plant genetic resources came to an end on November 3, 2001. The revised text is called the International Convention on Plant Genetic Resources for Food and Agriculture. The legally binding new treaty establishes a communal collection of 35 food and 29 feed crops (called the Multilateral System), assuring member states a “facilitated access” to these 64 crops. Once ratified, the treaty’s Governing Body will exercise real political control over the 600,000 seed accessions of the CGIAR. CGIAR supports 16 International Agricultural Research Centers (IARCs) – the world’s most important and unique germplasm collection centers - and article 15 of the treaty explicitly calls upon IARCs to place their samples (over 600,000) in the treasury. In exchange for access to this common seed pool, those who develop commercial products based on plant genetic resources received from the multilateral system, would pay a percentage of their profits into a fund to be administered by the treaty’s Governing Body. This fund would be used for conservation efforts in plant genetic resources.

Since the treaty is founded upon open access to plant genetic resources, it is necessarily in tension with any legal system that grant exclusive rights over those same resources. Specifically, article 12.3(d) says that recipients of communal plant genetic resources shall not claim IPR on those resources or their genetic parts or components "in the form received from the Multilateral System." Victoria Henson-Apollonio, senior research officer for IPR at the CGIAR Central Advisory Service, thinks that "it will be difficult for the Governing Body to clarify the meaning of this article." But unless this happens, "it is impossible to say if the treaty benefits do overcome the risks," comments Bernard Le Buanec, secretary general of ASSINEL, which represents more than 1,000 breeding companies worldwide. Because such details are unclear, some developing countries have refused to include in the Multilateral System their most valuable crops, such as soybean (China), groundnut (Latin America), and tropical forage grasses (Africa).

As decided at the Convention, forty countries must ratify the treaty before it enters into force. In this direction, a significant achievement was made during this year’s World Food Summit (10-13 June,2002, Rome) where 56 countries ratified the treaty. But the impact of its implementation on the access and use of plant genetic resources is yet to be seen.

3. Economic Impact of Plant Variety Protection

TRIPs is an international agreement that sets minimum requirements for intellectual property protection for its members. Any patent or sui generis system created for plant variety protection should be based on the  state of agriculture development in a country. For example, countries whose agriculture economy is mainly geared towards domestic markets and which depends largely on traditional varieties cultivated by small-scale, subsistence  farmers will have less to gain from introduction of strong PVP [6]. One important feature of subsistence farming is that the traditional varieties grown by subsistence farmers contain a lot of genetic diversity. It is the foundation upon which plant breeding depends for the creation of new varieties and is, therefore, a critical aspect of food security. Therefore, PVP legislation should give due attention to national interests such as those of farmers and local communities as well as the seed sector and biotechnology industries.

The feasibility and impact of IP regime varies depending on the specific characteristics of species (plants and animals) and sectoral institutions and structures [7]. Some empirical evidences recognize the significance of IPRs as incentives for spurring innovation [8]. However, industrial economists studying the actual functioning and use of the IPRs system, concludes that patent protection given to an innovator may be too little, too much or of the wrong kind because of the diverse real world complications [9]. In the light of the above, the following section presents highlights of the empirical evidences of impacts of PVP legislations.

3.1        Impact of plant breeders’ rights (PBRs) in developed countries

Much of the evidences on working of PBRs and their impact have emerged from USA and UK. To capture the impact of PBRs, researchers studied three variables: i). R&D Expenditures; ii). New varieties released; and iii). Market concentration.

Modest and uneven (crop-wise) impact of PBRs was found on the R&D expenditures [10, 11]. Only a few crops (wheat and soybean) experienced increases in private investment. But no clear indication was found that these increases in R&D expenditures were entirely on account of the availability of PBRs.

Results from the two countries (USA and UK) suggest that more varieties are annually released under PBRs regime. But this does not mean that these varieties are economic good. In fact, empirical evidences of strategy of cosmetic breeding (breeding of nominally differentiated varieties that are otherwise identical) and planned obsolescence cast doubt on this claim [12]. Though there is little doubt that new and contemporary varieties are increasingly productive, but there are no convincing results that higher productivity is on account of ‘breeding effort’ alone and not due to adoption of wider input packages (modern input and agronomic practices).

In UK, top five PBRs holders accounted for 69 percent of the grants during 1965-74 which increased o 79 percent in 1986-95 [13]. No comparable time series data exists in case of USA. But recent data on the North American seed market (Hayenga, 1998) revealed that in case of hybrid corn and soybean, top five companies account for 69 percent and 51 percent, respectively. In case of cottonseed, Monsanto alone controls 84 percent of the market on account of its purchase of Delta and Pine Land.

The above review indicates that PBRs have differential results across crops. Moreover, the increasing importance of private sector in plant breeding is accompanied by appropriation strategies that might have deleterious distributional and allocative impact. For example, increase in the varietal release rate is accompanied by a shortening life-span of varieties. The evidences also suggest that high level of market consolidation has developed in the seed industry and this market power has been used to control seed prices.

3.2        Impact of plant breeders’ rights (PBRs) in developing countries

 A wide variety of commentators accept that there is ‘little evidence’ [14] or ‘mixed and inconclusive evidence’ [15] about the direct benefits of introducing IPRs in plant varieties in developing countries. Few researchers suggest that if the LDCs do not experiment with strengthened IPRs as a means of bringing more private innovative activity into the effort to capitalize on this new technology, the productivity gap will surely widen [16]. In contrast, Barton suggests that it is “doubtful” whether developing countries should enact PBRs because the “tradeoffs are quite different” [17]. Consequently, a detailed empirical analysis of the effects of adopting PBRs is considered a necessary prerequisite before policy formulation / implementation [18]. Available evidences of impact of PBRs can be grouped as follows:

3.2.1     Research focus

The only comprehensive study on the impact of PBRs analyses evidences from five Latin American countries [19]. One of the important findings is that de facto division of labour has evolved with MNCs predominantly focusing on hybrid crops and the public sector (and domestic breeding companies) almost entirely focusing on open-pollinated varieties. Moreover the MNC-funded breeder lobby group advocated and secured the inclusion of protection of inbred parental line within Argentina’a PVP legislation. Unfortunately, there is no research focus on low input areas where the diversity and variability of growing conditions cannot be normalized through the purchase of inputs and thus places a greater premium on breeding for local adaptation. As such, the likelihood of private breeding meeting the agro-economic needs of vast majority of farmers is unlikely. For example, maize breeding in India has attracted sizeable private sector investment such that it almost matches the public sector in varietal release rates [20]. However, private sector exclusively breed hybrids in comparison to public sector where only 23 percent varieties are hybrids. While public sector varieties are suitable for small scale farmers in vulnerable areas, private sector hybrids are suitable only for full season and irrigated areas.

As far as global agri-biotech research is concerned, there is little focus on the needs of poor farmers. The main crops targeted are soybean, corn, tobacco, cotton and canola which together account for over 95 percent of the acreage planted under bio-engineered crops [21].

3.2.2   Access to varieties

One of the argument for granting PVP in developing countries is that it will enable access to improved foreign varieties. Example is sited of the Monsanto which refused access to BT-cotton in Brazil, despite extensive crop losses from infestation because of absence of proprietary protection [22]. Therefore, it is claimed that absence of PVP is a restriction on the access to germplasm. In this context, cut flower industry of Kenya makes an interesting reading. The entire cut flower industry in Kenya is export driven – 90 percent of the over 40 types of flowers are exported to mainly European Countries. The industry is dominated by the MNCs and much of the profit leaks out via foreign-owned MNCs. It should be mentioned here that Kenya joined UPOV in 1999 with a ratification of 1978 Act, but it had a statue on the books in 1972. So far, only one PVP was granted for a ‘food crop’ – French beans for export. The rest were all for ornamentals. Further, over 90 percent of the grants were made to foreign nationals. Thus the availability of PBRs done little to generate incentives for plant breeders (domestic or foreign) to develop food crops [23].

3.2.3     Impact on public sector plant breeding

Public plant breeding remains a key component of agricultural research system in developing countries. However, it will have to undergo a radical transformation due to increasing presence of private sector [24] and deepening resource crunch. It is worth mentioning here that between 1988 and 1996, foreign aid for agriculture related projects in the South fell by 57 percent and World Bank loans under the ‘agriculture and rural development’ category registered a 47 percent decrease. Three closely inter-connected issues which will confront agricultural research in future [25] are:

i). Research conducted in public and private sector are non-substitutable as they are targeted at different farming groups. The shrinking resource base of the public sector and low possibility of internal revenue generation place even greater demand on external resources.

ii). Though institutional linkages between public and private sector is an important and essential part of organization of research, but it raises public welfare questions in terms of accountability and transparency,

iii). More use of proprietary controls in research tools and uncertainty in the limits of ownership make the conduct of agricultural research all the more difficult by requiring complicated negotiations. For example, use of the vitamin –A rice (‘Golden rice’) variety involves clarifying user licenses for over 70 patents. Similarly, CIMMYT’s wheat variety VEERY (c. 1977), was developed using approximately 3,170 crosses and 51 parental lines. Would this be possible in future?

  1. 4.         Recent Controversies over Patents and GM Crops
    1. Yellow bean patent

On April 13, 1999, Mr. Larry Proctor, proprietor of Pod-ners L.L.C. won a US patent No.5894,079 for developing a bean named ‘Enola’ with “a particular color yellow”. This patent has been challenged by the International Centre for Tropical Agriculture (CIAT) – which has the largest (28182) collection of beans in the centre’ gene bank. The CIAT – first agriculture research center in developing world to challenge US patent on a crop -  claims that atleast 260 lines maintained by it are yellow and six are “very similar” to the Enola. RAFI has termed it a ‘textbook case of biopiracy’. Meanwhile, Larry Proctor has filed a law suit (30 Nov.2001) against 16 small bean seed companies and farmers in Colorado claiming that they are violating the patent by illegally growing and selling and selling his yellow ”Enola” bean. 

    1. Basmati patent

In September 1997, the US Patent and Trademark Office (USPTO) granted a patent (US Patent No. 5663484) to a Texas-based company RiceTec Inc. for “Basmati Rice Lines and Grains”. The original patent was based on 20 claims of novelty and inventiveness. This could have proved a major hindrance to basmati exports from India to USA. After a prolonged 4-year battle by Indian government and NGOs, the USPTO finally allowed only five claims (Claims 8,9,11,12,13) to the company. The title of the patent has also been changed from “Basmati Rice Lines and Grains” to Rice Lines Bas867, RT1117, TR1121). Though it is claimed that India has got the patent revoked successfully, but still the company can use the term ‘basmati’ for selling its rice. This is because the US Federal Trade Commission considers the term ‘basmati’ as generic and, therefore, anybody can use it. Though the Indian government has passed the Geographical Indications Bill, 1999, but implementation rules have not been finalized yet. The Bill has the provision for protecting ‘basmati’ as a geographical indication.

4.3        Monsanto sued farmers for re-sowing GM seed

Monsanto company is suing dozens of American and Canadian farmers for infringement of its patent on genetically modified (GM) crops. Investigators hired by the company keeps an eye on the farmers and collect evidence of the illegal planting of the Monsanto’s GM crops of cotton. Maize, rapeseed and soybean. Farmers who used Monsanto’s crops to produce seed for planting have been fined thousand of dollars for patent infringement and some face bankruptcy. The company also advertises a toll-free-telephone number for people to inform on farmers who use unlicensed seed.

Some cases of violation of GM crop patents are not straightforward. Recently, a federal court in Saskatchewan (Canada) ordered a Canadian farmer to pay the Monsanto Co., thousands of dollars ($85,000), because the company’s genetically engineered canola plants were found growing on his fields. It happened because the pollens from modified plants from nearby fields were blown into his crops. The chances of such cross-pollination under developing country agriculture are even more where we have a majority of small and marginal holdings scattered all over the landscape of the country. How would we deal with such cases of innocent infringement and what the farmer can furnish as a proof of his innocence?

4.4        Illegal acquiring of Thailand’s ‘Jasmine’ Rice

A Florida-based researcher Dr. Chris Deren is working to develop a US version of Thailand’s famed ‘jasmine’ rice. He maintains that he legally obtained the seeds of original strain of jasmine rice (KDM105) from IRRI through the US Department of Agriculture. But IRRI maintains that it shared a sample of KDM105 with Dr. Neil Rutger of the USDA’s Dale Bumpers Rice Research Centre in Arkansas, USA and Dr. Rutger, on his own initiative, passed on this sample to Dr. Deren in Florida. The Thailand’s government has now responded by hiring US lawyers to initiate a law suit in a US court to pre-empt any move to patent new rice varieties developed from jasmine rice (KDM105). The jasmine and basmati cases have inflamed and impassioned people across Asia.

4.5        Mexico’s GM Maize contamination

Mexico is the center of maize genetic diversity. The Maxican Ministry of Environment confirmed last year that farmers’ maize variety in the states of Oaxca and Pueblo (Mexico) have polluted with DNA from GM maize. This has stirred an unseemly debate within scientific community, civil society organizations and indigenous farmers. The outcome of this case is still awaited.

  1. 5.         Lessons for Developing Countries

With the adoption of TRIPS Agreement, developing countries have been obliged to adopt protection of plant varieties, by patents or by other means, without any serious consideration being given to whether such protection would be beneficial, both to producers and consumers, or its possible impact on food security [26]. Therefore, while complying with the TRIPS obligations concerning plant variety protection, the developing countries should focus on the following: 

5.1        Crop genetic diversity

At the global level, only 30 crops provide over 95 percent of dietary energy with wheat, rice and corn alone accounting for more than one-half. But there are many plant species with greater importance to vast population at regional level. All of these ‘orphan crops’ have been neglected in conservation and crop research programs. For example, some minor crops and under-utilised species include the following [27].

i). Staple crops such as yam, proso millet, fonio, bambara, groundnut, oca, taro/cocoyam and breadfruit.
ii). Many vegetable and fruit species which include a wide variety of ‘wild plants’ and weeds that are gathered by people and contribute to nutrition and dietary diversification.

Although there remains considerable debate about the precise level of and type of crop genetic diversity necessary for agro-ecosystem stability and sustainability, it is generally accepted that crop genetic diversity does play a valuable role and should be supported. It is encouraging to note that in February 2002, 12 biodiversity rich nations (China, Brazil, India, Indonesia, Costa Rica, Colombia, Ecuador, Kenya, Peru, Venezuela and South Africa) have decided to fight biopiracy and press for rules protecting their peoples’ rights and genetic resources found on their land. This 12-nation alliance, which contain 70 percent of world’s biodiversity, pledged to press its cause this years’ UN Food Summit on Sustainable Development which recently concluded (26 August – 4 September 2002) in Johannesburg, South Africa. Unfortunately, no concrete proposal could be agreed upon for conserving the genetic diversity for sustainable use. 

5.2        Seed system development

In traditional seed system, farmers continuously search for new planting material from neighbours, the next village, the next valley or through more distant trading routes. Studies have shown that local seed systems do have many valuable characteristics which have provided seed security to farmers over time. These systems are innovative and acquire materials and adapt technologies as they appear [28]. Formal sector Supply of seeds to marginal areas will always be difficult. Since resource limitations will continue, public seed supply should be designed to take advantage of local seed system for producing and distributing seed. This will help in on-farm resource conservation. Efforts should be made to train farmers in saving seed on-farm, assistance in development of low-cost seed stores and local gene bank technology. These changes necessitate significant changes in policy makers’ perspectives.

5.3        Researchable issues in public sector

Plant breeding activities in the public sector should be driven by strategies and techniques that broaden the genetic base of the material farmers receive. For example, breeding for specific adaptaion, reducing reliance on simple single-gene trait, participatory varietal selection / plant breeding. Keeping in view the diverse needs and different farming systems in developing countries, the public sector research should not lose focus on crops for marginal environments.

5.4        Institutional framework

Efficient institutional mechanism for enabling distribution of genetically heterogeneous products and quality farm produced seed need to be put in place. This implies changes in national variety release procedures, seed certification systems and improvement in seed information and distribution network. Though modern varieties have a role in developing country agriculture, governments need to be aware of the dangers of over-promoting them through policies of price support, input subsidies and promotion of packages which are aimed to make these inputs economic to use for farmers where they would not otherwise be so.

  1. 6.         Conclusions

Developing countries are facing a tough battle against time in safeguarding their natural resources under changed global environment. IPR laws in developing countries were relatively under-developed compared to developed countries whose laws were already mostly in conformity with the TRIPs Agreement. Consequently, developing countries face lot of problems in adjusting to the ground realities. This study focuses on the institutional response of developing countries particularly to comply with the TRIPS Article 27.3(b) which has wider implications for plant variety protection and food security. The case of plant variety legislation in India and Africa is unique because in both the cases the relevant legislations provides for farmers’ rights and plant breeders rights, simultaneously.

The Indian legislation provides for protection of plant varieties, rights to the farmers and breeders and incentive for development of new varieties of plants. It balances rights of the farmers and breeders by rewarding the farmers and local communities from the pool of National Gene Fund for their conservation and development efforts and, at the same time, ensuring reward for innovation by granting plant breeders’ rights. Also, there are provisions for compulsory licensing, non-registration of varieties which affect public order and morality and are injurious to human, animal, plant life and health. But provisions relating to benefit-sharing, assurance for expected performance of protected seed, and check on cosmetic breeding of crops needs to be re-drafted and be more precise.

The OAU Model Law aims at ensuring conservation, evaluation and sustainable use of biological resources, including agricultural genetic resources, and knowledge and technologies in order to maintain and improve their diversity as a means of sustaining all life support systems.  Though it provides a model framework to protect farmers’ rights as well as breeders’ rights’, it has been criticised by the UPOV and WIPO who consider that UPOV-type system alone effectively fulfils TRIPS Article 27.3(b) requirement.

The results of various studies from developed countries indicate that PBRs have differential results across crops. Moreover, increasing role of private sector in plant breeding is accompanied by appropriation strategies that might have deleterious distributional and allocative impact. For example, increase in the varietal release rate is accompanied by a shortening life-span of varieties. The evidences also suggest that high level of market consolidation has developed in the seed industry and this market power has been used in increases in seed prices.
 
Preliminary evidence of working of PBRs in developing countries indicate that while MNCs entirely focus on hybrid crops, public sector research is more oriented towards open-pollinated crops. In certain cases, PBRs have facilitated access to improved foreign variety but contributed little to food security.  While public-private participation in agricultural research should be encouraged in view of the falling support to agricultural research, we need to remember that public and private sector research is non-substitutable. This calls for further strengthening of research support to public agricultural research.

More collective efforts are needed by the developing countries to protect their biodiversity and thereby ensuring food security for their populace. Provisions of Convention on Biological Diversity (CBD) should be effectively implemented to ensure fair access to and use of plant genetic resources and equitable sharing of benefits arising out of use of the biodiversity. Also, CBD can be of great help for ensuring farmers’ rights effectively in the PVP legislations.

Therefore, active participation by developing countries is essential to ensure the legitimacy of standard setting and its appropriateness and relevance to their economies which are at different levels of development. The achievement of Doha Declaration, in part, reflected the fact that developing countries were able to present carefully developed, specific proposal that could be accommodated in WTO rulemaking. One clear implication of this is that developing countries need the capacity to participate much more effectively in international IP negotiations on a regular basis than an exceptional basis [29]

While making collective efforts for protecting their biodiversity, the developing countries should put in place efficient institutional mechanism to regulate plant breeding activities, seed distribution network, proper input use policies and other regulatory framework so ensure that plant genetic resources are used in a manner that gives incentives to farmers for conservation of the genetic resources and at the same time ensure food security for the burgeoning population.

REFERENCES

1.   Correa, Carlos M. “Patents Rights”, (eds.) Carlos M. Correa and Abdulquawi A. Yusuf, Intellectual Property and International Trade – The TRIPs Agreement, Kluwer Law International, London, U.K.1998.

2.   Lesser, W.H. “The Role of IPRs in Biotechnology Transfer under the Convention on Biological Diversity”, ISAAA Brief No.3, ISAAA, Ithaca, New York. 1997.  

3.   Langford, J. “Intellectual Property Rights: Technology Transfer and Resource Implications”, Amer. Jn. Agri. Econ. 79(5): 1576- 1583, 1997.

4.   http://www.grain.org/publications/oau-en.cfm, June 2001.
                         
5.   http://www.grain.org/publications/pvp-south-upov-en.cfm, June 2002.

6.   IPGRI, The Agreement on Trade-Related Aspects of Intellectual Property Rights- A Decision Check List”, Rome, Italy,  1999.

7.   Lesser, W.H. “Assessing the Implications of Intellectual Property Rights on Plant and Animal Agriculture”, Am. Jn. Agri. Econ., 79(5), 1997.

8.   Kanwar, S. and R. Evenson. “Does intellectual property protection spur technological change?”, Discussion Paper No.831, Yale University, New Haven, USA, 2001..

9.   Scherer, F.M. and D. Ross, “Industrial market structure and economic performance”, Houghton Miffin Company, USA, 1990.

10.  Ramaswamy, B. “Intellectual property rights in agriculture: Implications and challenges for public research and policy”, Indian Statistical Institute, New Delhi, 2000.

11.  Rangnekar, D. “Intellectual property rights and agriculture: An analysis of the economic impact of plant breeders’ rights”, Actionaid, London, 2000.

12.  Rangnekar, D. “Access to genetic resources, gene-based interventions and agriculture”, Study Paper 3a, Commission on Intellectual Property Rights, London, 2002.

13.  Rangnekar, D. 2000, op. cit.

14.  Lesser, W.H. “Equitable patent protection in the developing world: Issues and oportunities”, Eubios Ethics Institute, Tskuba, Japan, 1991.

15.   United Nations Environment Programme (UNEP), “The impact of intellectual property rights system on the conservation and sustainable use of biological diversity and on the equitable sharing of benefits for its use”, UNEP, 1996.
                                                                                               
16.  Perrin, R.K. “Intellectual property rights in agricultural development”, In: Agricultural Technology: Policy Issues for the International Community”, J.R. Anderson, Agricultural Policies Division, World Bank, USA, 1994.

17.  Barton, J.H. “The international breeders’ rights system and crop plant innovation”, Science, 216 (4),1982

18.  Godden, D. “Plant breeders rights and international agricultural research”, Food Policy, 1984.

19.  van Wijk, J. and W. Jaffee. “Intellectual property rights and agriculture in developing countries”, Impact of plant breeders’ rights in developing countries, Santa Fe de Bogota, Columbia, University of Amsterdam, 1996.

20.  Morris, M.L., R.P. Singh and S. Pal, “India’s maize seed industry in transition: Changing roles for the public and private sectors”, Food Policy, 23(1), 1998.

21.  ETC Group, “Ag Biotech Countdown: Vital Statistics and GM Crops”, Geno-Types, June 2002.

22.  Lesser, W.H.,  op. cit., 1991.

23.  GRAIN, “Plant variety protection to feed Africa?” Seedling, 7(4), December, 1999.

24.  Rangnekar, D. (forthcoming). “R&D Appropriability and Planned Obsolescence: Empirical Evidence from Wheat Breeding in U.K.(1960- 1995)”, Industrial and Corporate Change.

25.  Rangnekar, D. op. cit., 2002.

26. Commission on Intellectual Property Rights (CIPR), “Integrating Intellectual Property Rights and Developmenmt Policy” CIPR, London, September 2002.

27.  FAO, “The State of the World’s Plant Genetic Resources for Food and Agriculture”, Rome, Italy, 1998.

28.  Almekinders, C. and D. Louette. “Examples of innovations in local seed systems in Mesoamerica". In: Encouraging Diversity, Conny Almekinders and Walter De Boef (Eds.), Intermediate Technology Publications Ltd., London, UK. 2000.

29.  Commission on Intellectual Property Rights (CIPR), op. cit. 2002.

Table 1: PVP in the South: Caving in to UPOV

Sr. No.

Country

National PVP adopted

Member
of UPOV

In process of joining UPOV

Consulting UPOV*

Under special pressure to join UPOV**

1

Afghanistan          

 

 

 

 

 

2

Algeria   

 

 

 

X

 

3

Angola          

 

 

 

 

 

4

Antigua          

 

 

 

 

 

5

Argentina 

X

X

 

 

 

6

Bahrain          

 

 

 

 

 

7

Bangladesh

 

 

 

 

X

8

Barbados  

X

 

 

X

 

9

Belize

X

 

 

 

 

10

Benin         

 

 

X

 

 

11

Bolivia        

X

X

 

 

 

12

Botswana          

 

 

 

 

 

13

Brazil       

X

X

 

 

 

14

Brunei          

 

 

 

 

 

15

Burk. Faso    

 

 

X

 

 

16

Burma          

 

 

 

 

 

17

Burundi          

 

 

 

X

 

18

Cambodia 

 

 

 

 

X

19

Cameroon    

 

 

X

 

 

20

Cent. Af. Rep.    

 

 

X

 

 

21

Chad      

 

 

X

 

 

22

Chile       

X

X

 

 

 

23

China      

X

X

 

 

 

24

Colombia      

X

X

 

 

 

25

Congo        

 

 

X

 

 

26

Costa Rica

 

 

X

 

 

27

Cote d'Ivoire

 

 

X

 

 

28

Cuba 

 

 

 

X

 

29

Djibouti          

 

 

 

X

 

30

Dominica  

 

 

 

X

 

31

Dom. Rep.

 

 

 

X

 

32

Ecuador       

X

X

 

 

 

33

Egypt    

 

 

X

 

 

34

El Salvador

 

 

 

X

 

35

Eq. Guinea

 

 

X

 

 

36

Ethiopia          

 

 

 

 

 

37

Fiji

 

 

 

X

 

38

Gabon

 

 

X

 

 

39

Ghana.  

 

 

 

X

 

40

Grenada          

 

 

 

 

 

41

Guatemala

 

 

 

X

 

42

Guinea     

 

 

X

 

 

43

Guinea-Biss     

 

 

X

 

 

44

Guyana          

 

 

 

 

 

45

Honduras     

 

 

X

 

 

46

Hong Kong 

X

 

 

 

 

47

India

X

 

X

 

 

48

Indonesia 

X

 

 

X

 

49

Iran          

 

 

 

 

 

50

Iraq          

 

 

 

 

 

51

Jamaica       

 

 

 

X

 

52

Jordan          

 

 

 

 

X

53

Kenya  

X

X

 

 

 

54

Korea, N

 

 

 

 

 

55

Korea, S

X

X

 

 

 

56

Kuwait          

 

 

 

 

 

57

Laos          

 

 

 

 

 

58

Lebanon          

 

 

 

 

 

59

Lesotho          

 

 

 

 

 

60

Liberia          

 

 

 

 

 

61

Libya          

 

 

 

 

 

62

Madagascar  

 

 

 

X

 

63

Malawi  

 

 

 

X

 

64

Malaysia       

 

 

 

X

 

65

Mali     

 

 

X

 

 

66

Mauritania     

 

 

X

 

 

67

Mauritius          

 

 

 

X

 

68

Mexico   

X

X

 

 

 

69

Mongolia          

 

 

 

 

 

70

Morocco 

X

 

X

 

 

71

Namibia          

 

 

 

 

 

72

Nepal          

 

 

 

 

 

73

Nicaragua 

X

X

 

 

 

74

Niger 

 

 

X

 

 

75

Nigeria          

 

 

 

 

 

76

Oman 

X

 

 

X

 

77

Pakistan       

 

 

 

X

 

78

Panama 

X

X

 

 

 

79

Papua N G

 

 

 

 

 

80

Paraguay 

X

X

 

 

 

81

Peru 

X

 

 

X

 

82

Philippines

X

 

 

X

 

83

Qatar          

 

 

 

 

 

84

Rwanda           

 

 

 

 

 

85

Saudi Arabia

 

 

 

X

 

86

Senegal     

 

 

X

 

 

87

Seychelles  

 

 

 

X

 

88

Sierra

 

 

 

 

 

89

Leone

 

 

 

 

 

90

Singapore          

 

 

 

 

 

91

South Africa

X

X

 

 

 

92

Sri Lanka

 

 

 

X

 

93

Sudan          

 

 

 

 

 

94

Suriname       

 

 

 

X

 

95

Syria           

 

 

 

 

 

96

Taiwan

X

 

 

 

 

97

Tanzania       

 

 

 

X

 

98

Thailand

X

 

 

X

 

99

Togo   

 

 

X

 

 

100

Tonga       

 

 

 

X

 

101

Trin.& Tobago 

X

X

 

 

 

102

Tunisia 

X

 

X

 

 

103

UAE          

 

 

 

 

 

104

Uganda          

 

 

 

 

 

105

Uruguay 

X

X

 

 

 

106

Venezuela 

X

 

X

 

 

107

Viet Nam

 

 

 

X

X

108

Yemen          

 

 

 

 

 

109

Zambia       

 

 

 

X

 

110

Zimbabwe

X

 

X

 

 

*   According to UPOV, the government has been in contact with the Office of  the Union with a
    view to developing legislation in line with the UPOV Convention.
** Through a bilateral treaty.
(Source: Adapted from www.grain.org, accessed in July 2002).

 

 
 
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