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FARMERS’ RIGHTS: LESSONS FOR POLICY MAKERS IN SOUTH ASIAN DEVELOPING COUNTRIES FARMERS’ RIGHTS: LESSONS FOR POLICYMAKERS IN SOUTH ASIAN DEVELOPING COUNTRIES FARMERS’ RIGHTS: LESSONS FOR POLICYMAKERS IN SOUTH ASIAN DEVELOPING COUNTRIES This study has been researched and compiled by Joseph Savirimuthu of the University of Liverpool,UK. The opinions expressed in the paper, and any errors of fact or interpretation or omission are theresponsibility of the author, and do not reflect the agreed policy positions of the publishers.
The same has been commented by Dr. Ashish K. Ghosh, Centre for Environment & Development,Calcutta, Dr. Ghayur Alam, Centre for Sustainable Development, Dehradun, Dr. Dwijen Rangnekar,Warwick University, UK, Dr. Gopi K. Sedhain, Pro Public, Kathmandu, Nepal and Prof. NabinanandaSen, Department of Business Management, University of Calcutta.
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This Paper is made under the Regional Programme on "Farmers' Right to Livelihood in the HindukushHimalayan Region" initiated by South Asia Watch on Trade, Economics & Environment (SAWTEE),based in Kathmandu in association with its member organisations including Consumer Unity & TrustSociety (CUTS), India.
Price: Rs.100 for India /$20 for other countries+ Postage Charges TABLE OF CONTENTS
Chapter-2
Overview: The Relationship between Agriculture,
Industrial Policy and Intellectural Property Rights
Chapter-3
Farmers' Rights, Plant Varieties and TRIPs
Chapter-4
Implementation of Sui Generis Obligations
Chapter-5
The Doha Declaration and the Process of Review
Chapter-6
Summary and Conclusions
Executive Summary The study focuses on the relationship between Trade Related Aspectsof Intellectual Property Rights (TRIPs) and its impact on farmers' rightsin South Asian developing countries. The issue of farmers' rights andtheir livelihood deserves special attention for these economiesconsidering high employment potential and GDP contribution of thesector. The aim of the study is to evoke the need for clarifying therelationships between TRIPs, Convention on Biological Diversity (CBD)and International Treaty on Plant Genetic Resources for Food andAgriculture (PGRFA). The study emphasises that with creativeinterpretation of these agreements, South Asian developing countriescan fulfil their obligations under TRIPs whilst resolving the key socio-cultural and ecological objectives.
The World Trade Organisation (WTO) agreement on TRIPs defines thetypes of inventions that have to be eligible for patent protection andthose which can be exempt. Article 27.3(b) provides "protection of plantvarieties either by patents or by an effective sui generis system or byany combination thereof." Traversing through the pages of the study,relevance and reference of this article to farmers' rights will be foundfrom time to time.
The study gives an overview of the relationship between agriculture,industrial policy and intellectual property rights (IPRs) and emphasisesthat the modalities of the market and property rights best maximise theaggregate social and economic welfare of communities. Specialreference is given to origin of Biotechnology Patents with supportingstatistical data. The paper discusses adverse consequence of capital-intensive method of farming and indiscriminate usage of chemical andpesticides as pursued by industrial economies on the developing nationswhile implementing TRIPs. The study also describes some of the keyinternational norms and rules that apply to plant variety protection andbreeders' rights.
There is elaborate discussion on the concept of Farmers' Rights andanalysis of the disagreement on legally protecting the interests offarmers. It has been emphasised that the protection of farmers' rights isof particular importance to developing countries. TRIPs now obligatesMember States to award patents for agro-chemical and biotechnologyinventions. In addition to this, Member States have to establish effectivesystems of protection for plant breeder's rights.
The three systems of protection that Member States can potentiallyintroduce to ensure TRIPs compliance: patent rights, a sui generissystem or a combination thereof, have been discussed threadbare withmention of the provisions under Article 27:1. It has been mentioned thata number of Organisation for Economic Cooperation and Development(OECD) countries, including the US adopt a generous interpretation ofthe patent system to protect plants and plant varieties. But this does notfavour South Asian developing countries where relative lack of skilledhuman resources, institutional infrastructures with predominant smallfarm holdings make the adoption of OECD industrial policiescounterproductive. OECD market structure and policies do not fulfil thesocial, cultural and environmental objectives of the developing nations.
Articles in TRIPs most relevant to Farmer's Rights have also beenreviewed. Some specific case studies like Turmeric, Neem, HoodiaCactus (found in Kalahari Desert in southern Africa) have been made toanalyse the relationship between IPRs, Traditional Knowledge andGenetic Resources.
Guiding principles for any sui generis legislation of TRIPs alongwith adetailed check-list of the progress of sui generis legislation in South Asiandeveloping countries are furnished in the paper. An overall review ofDoha Declaration on the subject is presented mentioning relevant Articlesof the Declaration. The Study paper ended with the mentioning that aseparate Ministerial Declaration will be needed to clearly articulate theinterface between TRIPs and other international conventions. During theinterim a hybrid of measures along the lines adopted by India, in theform of the Patents (Second Amendment) Act 2000, the Protection ofPlant Varieties and Farmers' Right Act 2000, and the Biodiversity Bill2000 provide the best way forward.
The kingpin of the analysis relates to
This study examines the question: Can developing countries in South whether developing countries in South
Asia fulfil their obligations under Trade Related Aspects of Intellectual Asia fulfil their obligations under
Property Rights (TRIPs) whilst resolving the key concerns regarding the TRIPs and at the same time can
impact of this Agreement for farmers' rights. This paper underlines the resolve the key concerns regarding
the impact of this Agreement for
emerging consensus that implementation of Article 27:3 (b) need not necessarily run counter to socio-cultural values of policymakers andagricultural smallholdings in developing countries. The paper lays afoundation for the need to evolve a separate declaration along the linesof Doha Declaration on Public Health with incontrovertible logic that thevalues inherent in the International Convention for the Protection of NewVarieties (UPOV) 1978, Convention on Biological Diversity (CBD) andGUI are already embedded within the constitutional framework of TRIPs.
The study will proceed in the following manner. It begins by highlightingthe interface between agriculture, industrial policy of OECD countries The paper lays a foundation for the
and intellectual property rights (IPRs). In this section an overview will be need to evolve a separate declaration
provided of the framework that presently exists for coordinating national along the lines of Doha Declaration on
approaches to the protection of plant varieties and plant breeders' rights.
Secondly, the study examines the TRIPs Agreement and its significancefor plant variety, breeders' rights and farmers' rights. A brief descriptionwill be provided as to the possible options made available under TRIPs.
The paper accepts the consensus of academic commentators and theCommission for Intellectual Property Rights (UK) that the needs of SouthAsian developing countries are best facilitated by adopting a sui generisregime rather than enacting patent legislation as an instrument to fulfilthe obligations under Article 27. An extended consideration is given toArticle 27:3 (b), in particular, the flexibilities permitted under this provision.
Thirdly, an overview will be provided of the sui generis property rightsregimes in Pakistan, India, Bangladesh and Sri Lanka. An attempt willbe made to highlight some of the flexibilities that exist in accommodatingfarmers' rights within Article 27:3(b).
The final section provides a brief commentary on the present review ofArticle 27:3(b) in the light of the Doha Declaration and the meetings inthe TRIPs Council. The study concludes by underlining the built-in The study lays the foundation for
further research into the question of
flexibilities inherent in Article 27:3(b). It also lays the foundation for further whether the current impasse in the
research into the question of whether the current impasse in the review review of Article 27:3 (b) warrants a
of Article 27:3 (b) warrants a Ministerial Declaration specifying a clear Ministerial Declaration specifying a
relationship between TRIPs and other International Agreements in this clear relationship between TRIPs and
other International Agreements.
sphere of policymaking.
Overview: The Relationship between Agriculture, Industrial Policy and Intellectual Property Rights In place of traditional farming systems,
It is often emphasised that the modalities of the market and governments in industrial economies
property rights best maximise the aggregate social and economic welfare initiated the process of new technical
of communities1. Governments in developed industrial countries point to farming methods. To encourage
the benefits of their market structures and industrial policies in responding private sector investment in innovative
activities, IPRs and sui generis
to the problems of health, nutrition, safety and environment. This political regimes were set in place.
and economic ideology has in large part been instrumental in the waythe present agro-chemical and biotechnology activities, governing thefood chain, are being structured2. The ‘green revolution' which emergedduring the 1960s in India, was the product of growing concerns aboutlikely food shortages and population growth3.
OECD industrial countries, being the primary beneficiaries of the industrialrevolution, reorientated their industrial policies and market structures tomaximise the potential of the knowledge economy4. In place of traditionalfarming systems, governments in industrial economies initiated theprocess of new technical farming methods, with cultivation of newvarieties of plants and seeds (eg. wheat, rice and maize), use ofpesticides, chemicals for curbing disease and for weed control5. Toencourage private sector investment in innovative activities, IPRs andsui generis regimes were set in place.
Box-1: Origin of Biotechnology Patents
Country of Origin
Total per Country (No.)
Total per country (%)
Total per country (%)
United States
EPO (European PatentOffice) countries Republic of Korea Source: CEFI (1997) cited in Carlos (2000)1 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
There is, however, no answer to the
The outcome of these policies, when viewed in a global context, shows adverse impact of modern technology
that developed economies have been better able to address problems based farming methods pursued by
in agriculture, nutrition, health and environment, compared to developing industrial economies on the
countries6. The effect of creating private property incentive systems hasled to less public sector initiative in agricultural R&D. For example, inOECD countries, private investment in R&D is said to cover half thetotal R&D expenditure. Government support is directed only to the extentof providing research data to farmers7.
It is said that the US economy benefited from its investment of US$134million in international wheat and rice research aimed at developingcountries by up to US$14.7 billion. Governments in OECD industrialeconomies have directed public funding for supporting agribusinessand food processing. Investment by the private sector is reported to begrowing and is estimated at being over US$8 billion per annum in theUnited States.
There is, however, no answer to the adverse impact of modern Mergers, acquisitions and strategic
technology9 based farming methods pursued by industrial economies alliances have led to a vertical
on the developing economies. Firstly, whilst technology was seen as integration of the global agri-food
benefiting all farmers, irrespective of the size of their holdings, developing countries argue that this reorientation of the traditional farming systemhas, in reality, benefited large transnational corporations10. The capital-intensive nature of R&D in the extraction of compounds in geneticmaterial, propagation and molecular mapping, the emphasis in thebusiness model towards wealth maximisation and the pace oftechnological advancements has led to a restructuring of the food supplychain11. Mergers, acquisitions and strategic alliances have led to a verticalintegration of the global agri-food production chain.
Secondly, one of the benefits of the green revolution, namely, that therewill be greater variety and consumer choice, is refuted12. Multinationalcorporations, who dominate the field of agro-biotechnology research, Box 2: Key Multinational Corporations with Patent Portfolio
Pioneer Hi-Bred International Holden's Foundation Seeds Max Planck Gesellschaft Hokko Chemical Industry Dupont de Nemours Mitsui Toatsu Chemicals Plant Genetic Systems Hoechst-Schering Agrevo Mogen International Source: CEFI (1997) cited in Carlos (2000) FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
The property based model of
have begun to rely on the patent system and plant variety protection to appropriating information is
entrench their competitive advantage and restrict the flow of information counterproductive to the goals of
to the developing countries13.
conservation and benefit sharing of
biological materials which are public
Opponents of the modern agro-chemical and biotechnology practices argue that technocracy has led to a displacement of traditional practiceswhich has so long maintained a balance in the ecosystem14. Globaltransnational corporations like Monsanto, Pioneer Hi-Bred, Zeneca andSyngenta are now provided with the property instruments and internationalagreements to maintain their strategic control over the use of informationinvolving the extraction from plants and genetic resources (for producingnew varieties of plants, seeds and products)15. Finally, it is argued thatthe property based model of appropriating information iscounterproductive to the goals of conservation and benefit sharing ofbiological materials which are public goods16.
The remainder of this section will identify and describe some of the keyinternational norms and rules that apply to plant variety protection andbreeders' rights.
2.2.1 The International Convention for the Protection of New Varieties The International Convention for the
Protection of New Varieties 1991
1991 (UPOV) is the most recent agreement outside TRIPs that attempts (UPOV) is the most recent agreement
to coordinate the national rules on plant breeder's rights17. The aim of outside TRIPs that attempts to
this Act is to provide commercial breeders with an incentive to undertake coordinate the national rules on plant
innovative research and investment in plant varieties. As of 5th December breeder's rights. The 1978 and 1991
UPOV Acts provide a sui generis form
2002, 52 countries have subscribed to the 1991 Act, most of whom are of intellectual property protection.
developed countries. The 1978 and 1991 Acts provide a sui generis formof intellectual property protection.
Eligibility for protection under the Acts requires registrants to adduceevidence showing that the new plant varieties are (1) distinct from existing,commonly known varieties, (2) sufficiently uniform, (3) stable, and (4)new, in the sense that they must not have been commercialised prior tocertain dates (established by reference to the date of application forprotection). Under the Acts, parties commit themselves to adhere tonational treatment in the granting and protection of plant breeding rights.
In other words, they must not discriminate between plant breeders onthe basis of their nationality.
Article 6:1(a) extends protection to plant varieties, which have beendiscovered. The effect of creating an international agreement of this natureis that it embeds an agreed set of norms and rules governing protectionof plant varieties between contracting parties from different countries.
Articles 5-9 define the scope of the protection and reflects the industrialpolicies and market structures of OECD industrial countries. By accedingto the Acts, contracting parties undertake to provide national treatmentto plant varieties registered in other member countries, subscribe to auniform set of commercial rights which are legally justiciable, identify thevarieties that are protected and prescribe the consequences The effect of creating an international
accompanying infringements by third parties.
agreement of this nature is that it
embeds an agreed set of norms and
Both the 1978 and 1991 Acts provide a minimum threshold for rules governing protection of plant
compliance. The 1991 Act for example provides that the breeder's varieties between contracting parties
authorisation must be obtained with respect to the use of the propagating from different countries.
material of his/her protected variety for any of the following acts: (1)production or reproduction (multiplication), (2) conditioning for the purposeof propagation, (3) offering for sale, (4) selling or other marketing, (5)exporting, (6) importing, and (7) stocking for any of the purposesmentioned from 1-6 above. The Acts also provide specific exemptionsfor research purposes.
Even though the plant variety protection is qualitatively less onerous thanthe criteria for patentability, plant breeder's rights are given a monopolyright to appropriate information regarding the product or process of 10 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
propagation for a limited duration. The 1991 Act for example providesthat the breeder's rights last for a period of twenty years. Vines andtrees are given an additional five years. Many developing countries,including those from South Asian developing countries have resistedsubscribing to the 1991 Act, even though the international treaty hasbeen opened for signature since 1978. Instead, South Asian developingcountries, for example, have enacted rules contained in the 1978 Act intheir national legislation and adopted principles contained in otherConventions. This is explicable on the grounds that the 1991 Act seemsto go some way to increasing the commercial rights of plant breeders inOECD industrial economies.
Four particular areas have been identified as giving policymakers indeveloping countries concerns about the likely implications of thesegovernance shifts for the agricultural small holdings and food securitypolicies.
First, it extends the 1978 Act to require signatories to extend propertyrights to all plant genera and species. Under this Act, contracting partieswere required to extend protection only to specified genera or speciesof plant varieties and within an acceptable time frame18.
Second, the 1978 Act permits farmers specific privileges. One of suchprivileges includes the right of farmers to use seeds of the protectedvariety as propagating material for purposes other than for profit.19 Thepresent Act, however, extends the rights of plant breeders to all seed The 1991 Act seems to go some way to
production from protected varieties. UPOV members retain limited increasing the commercial rights of
plant breeders in OECD industrial
discretion by permitting farmers to save part of the harvest for re-use as seed on the same tenement20.
Third, Article 5(3) of the 1978 Act introduced a breeder's exemption.
Under the exemption, other breeders can use the protected genera orspecies to propagate or produce new varieties as well as market theirderivatives21. The 1991 Act extends the breeder's protection in very limitedcircumstances to the harvested material of the variety. One way ofillustrating this is to consider the likely outcome of a plant variety whichhas been taken from the country of origin to a non-Convention countryto produce an end product and then exported to the country of its originand sold. This situation was not covered by the 1978 Act22. Howeverunder the 1991 Act, in such circumstances the plant breeder in the countryof origin can now expect to be remunerated.
Finally, products which are essentially derived from protected plant The Convention on Biological Diversity
varieties under the 1991 Act require prior authorisation of the plant (CBD) which came into force in 1993
breeder. The 1978 Act did not extend any proprietary claims to plant ocuses on a different set of norms and
breeders in the event of de minimis changes.
2.2.2 The Convention on Biological Diversity (CBD) which came intoforce in 1993 focuses on a different set of norms and values23. Theprovisions under the preamble emphasise the desire of contractingparties to promote policymaking which prioritises the conservation ofbiological diversity and its sustainable use. Such provisions also ensurethe commitment that the eco-systems and the rich biological and geneticheritage are conserved and used in a sustainable manner for the benefitof present and future generations24. The concept of biological diversityembraces all species of plants, animals and micro-organisms. This alsoincludes any relevant variations and the eco-systems within which they In contrast to the UPOV three
are said to exist. Its complex taxonomy can be seen in the multi-tiered objectives of CBD provides the
hierarchy within which the concept can be approached: (i) species level; impetus for policymaking. These are
the conservation of biological
(ii) genetic level; and (iii) eco-system level25.
diversity, the sustainable use of its
components and the fair and equitable
sharing of the benefits arising out of
the utilisation of genetic resources.
FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 11
Article 1 of the CBD provides that:
"The objectives of this Convention, to be pursued in accordance with itsrelevant provisions, are the conservation of biological diversity, thesustainable use of its components and the fair and equitable sharing of Of particular importance is the way the
the benefits arising out of the utilisation of genetic resources, including CBD attempts to harness the potential
by appropriate access to genetic resources and by appropriate transfer of technological innovation and
of relevant technologies, taking into account all rights over those scientific advances to inform
resources and to technologies, and by appropriate funding." policymaking with regard to the
conservation of biological diversity.
In contrast to the UPOV three objectives provides the impetus forpolicymaking. First, the conservation of biological diversity. Second, thesustainable use of its components. Finally, the fair and equitable sharingof the benefits arising out of the utilisation of genetic resources. In contrastto the goals of the UPOV, the CBD creates a presumptive rule thatcontracting parties exercise sovereign rights over the exploitation ofknowledge and resources regarding genetic resources, funding andutilisation of relevant technologies. Of particular importance is the waythe CBD attempts to harness the potential of technological innovationand scientific advances to inform policymaking with regard to theconservation of biological diversity26.
Article 7, for example, provides that the protection and enforcement ofIPRs should contribute to the promotion of technological innovation andto the transfer of and dissemination of technology, to the mutual advantageof producers and users of technological knowledge and in a mannerconducive to social and economic welfare, and to a balance of rightsand obligations.
Article 8(j) provides that contracting parties use their best endeavours torespect, preserve and maintain knowledge, innovations and practices ofindigenous and local communities embodying traditional lifestyles relevantfor the conservation and sustainable use of biological diversity andpromote their wider application with the approval and involvement of theholders of such knowledge, innovations and practices and encouragethe equitable sharing of the benefits arising from the utilisation of suchknowledge, innovations and practices.
Article 15:5 of the CBD for example, permits access to genetic resourcesto be based on a reciprocal understanding of prior and informed consent ofthe Contract Parties. This idea of reciprocity does not however extend toagriculture, particulary to seed in gene banks collected prior to the CBD.
The final regulatory framework related
to plant varieties is the International
Under Article 16(1), contracting parties are said to recognise that Undertaking on Plant Genetic
Resources. This is a non-legally
technology includes biotechnology, and that both access to and transfer binding instrument but has now been
of technology among contracting parties are essential elements for the reenacted as the International Treaty
attainment of the objectives of the CBD. Contacting undertake, subject on Plant Genetic Resources For Food
to the provisions of this Article to provide and/or facilitate access for and and Agriculture (PGRFA).
transfer to other contracting parties of technologies that are relevant tothe conservation and sustainable use of biological diversity or make useof genetic resources and do not cause significant damage to theenvironment. This process is to be facilitated through contract27.
2.2.3 The final regulatory framework related to plant varieties is theInternational Undertaking on Plant Genetic Resources, the product ofinitiative overseen by the FAO28. This is a non-legally binding instrument The immediate result of PGRFA is to
provide a counterpoint to the property
but has now been reenacted as the International Treaty on Plant Genetic rights model in agro-chemical and
Resources For Food and Agriculture (International Treaty)29. This Treaty biotechnology. It, however, falls short
is the culmination of the previous attempts by the International of suggesting the provisions in the
Undertaking and the CBD to increase awareness and financial support Treaty which have taken precedence
over the 1991 Act or TRIPs.
for conservation at a global level. The Treaty is supportive of farmersand their communities in all regions of the world with particular emphasison the areas of origin and diversity of plant genetic resources, in theprotection and conservation of these resources as also of the natural 12 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
Box 3: Summary32
Reversing the Privatisation Trend: The International Treaty
on Plant Genetic Resources for Food and Agriculture
(PGRFA)
What remains ambiguous is the
In 1992, the Convention on Biological Diversity affirmed national relationship of PGRFA to TRIPs, whose
sovereignty over genetic resources. But the status of genetic resources provisions require IPR over plant
collected before the treaty was left unresolved. Unlike biodiversity in the varieties and other life forms.
wild, a great deal of agricultural biodiversity has been collected and storedin public sector gene banks. In November 2001, following seven years ofnegotiations, the International Treaty on Plant Genetic Resources for Foodand Agriculture (PGRFA), was adopted by the Conference of the UN Foodand Agriculture Organisation (FAO). The treaty is an internationally-bindinginstrument, created specifically to deal with the treatment of PGRFA, inrecognition of their critical concern for the poor and global food security.
Of 118 countries, the United States and Japan were the only governmentsto withhold support by abstaining from the vote.
While the IT recognises the sovereign rights of countries over theirPGRFA, it also notes their interdependence. It establishes, for signatories,a ‘multilateral system' of mutual access to seeds and germplasm for muchof the world's food supply, as well as to fair and equitable sharing of thebenefits gained from their use. It also includes a provision to safeguardfarmers' rights to use, exchange and sell farm-saved seed. The list ofwhat genetic material would be covered by the treaty was hotly negotiated— some countries sought expanded access (particularly Northerncountries such as the US and EU), and many in the South (such as Brazil),sought to shorten the list, to increase sovereign control. In the end, the ITcovers 35 specific crops and 29 forages key to world food supplies. Whileall signatories gain access, analysts note that some of the more importantgains accrue to poor people and poor countries with finite research andgene bank resources.
The PGRFA effectively exempts designated crops from patentability, by stipulating that those (researchers, farmers or companies e.g.) whoreceive genetic material from this multilateral system "shall not claim any Conflicts over patenting of treaty-
intellectual property or other rights that limit the facilitated access to the covered material will possibly
require dispute settlement through
PGRFA." What remains ambiguous is the relationship of this treaty to the WTO and the PGRFA itself. The
TRIPs, whose provisions require IPR over plant varieties and other life PGRFA also confers new
forms. The preamble to the treaty clarifies that it does not intend to create obligations on those who
a hierarchy between it and other international agreements, though commercialise products developed
international law normally provides precedence to the newer treaty.
from material covered by the treaty,
to contribute towards a research
Conflicts over patenting of treaty-covered material will possibly require dispute settlement through the WTO and the PGRFA itself. The PGRFAalso confers new obligations on those who commercialise productsdeveloped from material covered by the treaty, to contribute towards aresearch fund. The PGRFA will enter into force 90 days after ratificationby 40 countries.
Source: BRIDGES Trade BioRes, 2001; IATP, 2001; RAFI, 2001b biosphere. The attempt is also to promote greater equity in the sharingof benefits derived from the exploitation of plant genetic resources,through the use of technology and scientific methods30.
The preamble of the Treaty characterises the problems stemming from the commodification of plant genetic resources for food andagriculture which requires the cooperation of all countries. As part ofthe solution, contracting parties undertake, for example, to providetangible solutions with regard to the conservation, exploration, collection,characterisation, evaluation and documentation of plant geneticresources for food and agriculture. The immediate result of the Treaty isto provide a counterpoint to the property rights model in agro-chemicaland biotechnology. It, however, falls short of suggesting the provisionsin the Treaty which have taken precedence over the 1991 Act or TRIPs31.
FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 13
Farmers’ Rights, Plant Varieties and TRIPs Before examining the consequences of implementing TRIPs for farmers' rights in South Asian developing countries a brief description ofthe concept may be necessary.
3.1.1 The concept of farmer's rights is not susceptible to being defined The concept of farmer's rights is not
in a precise manner. There is a general consensus that farmers "add susceptible to being defined in a
value" by preserving the germplasm, which provides a valuable resource precise manner. General consensus
for producers of range of plant varieties. The FAO was particularly that farmers "add value" by preserving
the germplasm, which provides a
instrumental in reflecting the views of developing countries highlighting valuable resource for producers of
the contributions by farmers and their communities to the conservation range of plant varieties.
of plant genetic and biological materials. This contribution includesmethods and techniques of agro-ecological adaptation and utilisation ofknowledge to enhance the resistance and quality of the plants33.
3.1.2 The underlying premise that farmers should have legally protectibleinterests stem from recognition of the valuable contribution they make toboth the conservation and development of plant genetic resources34. Thedisagreement lies in providing content to the generally accepted viewthat farmers contribute to the conservation of germplasm and biological Box 4: Article 9 of PGRFA
9.1 The Contracting Parties recognise the enormous contribution that the local and indigenous communities and farmers of all regions ofthe world, particularly those in the centres of origin and crop diversity,have made and will continue to make for the conservation anddevelopment of plant genetic resources which constitute the basisof food and agriculture production throughout the world.
9.2 The Contracting Parties agree that the responsibility for realising Farmers' Rights, as they relate to plant genetic resources for foodand agriculture, rests with national governments. In accordance withtheir needs and priorities, each Contracting Party should, asappropriate, and subject to its national legislation, take measuresto protect and promote Farmers' Rights, including: protection of traditional knowledge relevant to plant geneticresources for food and agriculture; the right to equitably participate in sharing benefits arisingfrom the utilisation of plant genetic resources for food andagriculture; and the right to participate in making decisions, at the nationallevel, on matters related to the conservation and sustainableuse of plant genetic resources for food and agriculture.
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.
Source: CIPR, 2002 14 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
The disagreement lies in providing
material which enables the private sector to utilise them for R&D35. Here content to the generally accepted view
the concept of farmer's rights is seen as being imprecise and permits no that farmers contribute to the
clearly identifiable boundaries since the "contributions" span a continuum conservation of germplasm and
biological material which enables the
of generations36. These concerns, however, did not lead to a cessation private sector to utilise them for R&D.
in demands for the FAO to clarify the status of farmers' contributions inview of the fact that plant breeders had established their rights withproperty frameworks set in place by OECD industrial economies. In aresolution passed by the FAO the concept of farmer's rights was said toembody37: "[R]ights arising from the past, present and future contribution of farmersin conserving, improving and making available Plant Genetic Resources,particularly those in the centres of origin/diversity. These rights are vestedin the International Community, as trustees for present and futuregenerations of farmers, for the purpose of ensuring full benefits of farmersand supporting the continuation of their contributions."This statement is now underscored by Article 9 of the International Treaty.
3.1.3 The protection of farmers' rights is of particular importance todeveloping countries. Agriculture, for example, constitutes one of theprincipal trade and employment sectors in South Asia. The combinedGDPs of the developing countries are about 29 percent and absorbsabout 300 million people into the workforce. This is a massive 60 percentof the workforce. That said, there are some variations. In Nepal,agriculture accounts for 44 percent of the GDP and 94 percent ofemployment whilst in Sri Lanka, it is 24 percent and 94 percentrespectively38.
The protection of farmers' rights is of
particular importance to developing
When assessing the potential impact of TRIPs it should be borne in countries. Agriculture constitutes one
mind that the general trend in the reduction of prices for primary export of the principal trade and employment
commodities like rice, wheat, jute etc. has obvious medium term and sectors in South Asia.
long-term ramifications in relation to balance of payments39. The pictureis also made more complex since it is unclear as to how best nationalgovernments should externalise the concept through regulatory andinstitutional frameworks which converges with the needs andexpectations of farmers and communities40. An additional challenge forgovernments in South Asian developing region is to accommodate withinthis framework the traditional and indigenous knowledge, innovationsand techniques that have been inherited from previous generations.
The South Asian region also plays host to a wide range of plant andgenera. India can be taken as an example. It is one of the twelvemegabiodiversity countries of the world. It is reputed to account for atleast eight per cent of the recorded species of the world41. The BotanicalSurvey of India and the Zoological Survey of India report the existenceof over 47,000 species of plants and 81,000 species of animalsrespectively42. This is regarded as being a conservative estimate whencontrasted with the biological diversity that is expected to be present inthe Himalayan region and A&N Islands43.
The idea of knowledge associated with traditional and indigenous knowledge and biodiversity as being public goods must however be An additional challenge for
considered in the light of the TRIPs Agreement. The property based governments in South Asian
developing region is to accommodate
regime introduced by TRIPs does not contain any explicit vocabulary within the institutional framework the
which accommodates the concept of farmer's rights. This point is traditional and indigenous knowledge,
underscored by the World Bank, when it observed that44: innovations and techniques that have
been inherited from previous
‘Because the knowledge is a collective good, and therefore of uncertain ownership, it has proven difficult to apply standard intellectual propertytools to its protection. Many such products and designs have found theirway into international commerce under protection in foreign countries,however, as firms abroad copy and register them.' FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 15
The idea of knowledge associated with
To compound the problems faced by developing countries there traditional and indigenous knowledge
is uncertainty whether the attempts to include norms from the International and biodiversity as being public goods
Treaty, the 1978 Act and the CBD fall short of the obligations under Article need to be considered in the light of
the TRIPs Agreement.
Developing countries were required under Article 65:2 TRIPs to implement the provisions by the end of December 2000. Least developedcountries like Bangladesh and Sri Lanka have given special provision ofextended time until 1 January 2006. With regard to agriculture, TRIPsnow obligates Member States to award patents for agro-chemical andbiotechnology inventions. In addition to this, Member States have toestablish effective systems of protection for plant breeder's rights.45Unlike the 1978 Act and other non-legally binding Agreements, TRIPsnot only entrenches norms which emphasise the rights to appropriatepublic goods but it also prescribes mechanisms for monitoring,surveillance and dispute resolution46. That said, it is at present unclearwhat policy prescriptions are likely to emerge from the Article 27:3 (b)review, particularly in the light of the Doha Round. This issue will be There are three systems of protection
that Member States can potentially
considered towards the end of the study. There are three systems of introduce to ensure TRIPs compliance:
protection that Member States can potentially introduce to ensure TRIPs patent rights, a sui generis system or a
compliance: patent rights, a sui generis system or a combination thereof.
Despite the relatively short history of the Agreement, it is clear that theWTO dispute settlement machinery is increasingly likely to play animportant role in defining the governance structure for plant varieties47.
The patent is held up as a useful medium for operationalising strategic economic and social policies48. The trade-off for the grant of astatutory monopoly is based on the premise that market incentives in theform of property protection systems will encourage the private sector toinvest in ideas and knowledge, which increase the aggregate social andeconomic welfare of society.
Box 5: Patenting of genetically modified plants and
seeds from developing countries
In Asia, traditionally fragrant or aromatic rices are grown in India (Basmati)and Thailand (jasmine or khao hom mali) where varieties have beendeveloped over the years by local farming communities. An Americancompany, RiceTec, planned to patent a rice variety ‘Jasmati' which theysaid was a hybrid of American grain and Thai jasmine rice.
CIDSE representatives in Vietnam report that local rice varieties havebeen developed over many years and there is a strong tradition ofexchanging seeds. Mrs. Nguyen Thanh Hien from Hanoi University is along time partner of CIDSE which has supported her work in developingthe technology to produce bio-fertiliser on a large scale.
This technology allows for isolating nitrogen-fixing bacteria from soilsand then developing a simple medium (peat and rice bran) to mix thebacteria in order to make field applications easier. Ms Nguyen is nowtrying to repeat her first success with phosphate-soluble bacteria. Shetries to keep costs for farmers as low as possible and invests considerabletime and effort in training them to use these bio-fertilisers.
There is a very real danger that TNCs will build on the work she hasdone in the interest of the local farmers by taking a sample of her bacteria,slightly modifying the genetic content and applying for a patent. This isnot in the interests of the local farmers and should be opposed.
Source: CIDSE, 2002 16 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
3.5.1 Art 27:1 stipulates that systems of property protection must beavailable for ‘any inventions, whether products or processes, in all fieldsof technology'. There is general consensus that patent systems indeveloped countries, which play host to the leading biotechnology andagro-chemical industries, have paid less heed to this distinction49. It is General belief is that patents are trite
trite law that patents are not available to ‘discoveries'. Consequently, an laws that are not available to
extraction of DNA sequences, plasmids, seeds, genera or species of genetic material existing in nature will not necessarily be disqualifiedfrom the requirements of patentability50. Plant varieties in corn forexample have been the subject of a number of patent applications51.
The variations in standard setting between developed and developingcountries is underscored by the TRIPs Agreement, which does notprescribe the criteria for a product or process being regarded as an‘invention'. Member States (apart from those set out in paragraphs 2and 3) are required to provide protection only if the invention is shown tobe ‘new', ‘involve an inventive step' and be ‘capable of industrialapplication'. One concern raised by developing countries is that theboundaries between an ‘invention' and ‘discovery' have now been blurredwith regard to plant varieties52.
Box 6: Summary
1. A number of OECD industrial countries, including the US adopt a generous interpretation of the patent system to protect plants and plant One concern raised by developing
countries is that the boundaries
2. This is not a course that favours South Asian developing countries, in between an ‘invention' and ‘discovery'
have now been blurred with regard to
particular Pakistan, Sri Lanka, Nepal and Bangladesh. The relative lack of skilled human and institutional infrastructures and the preponderanceof small farm holdings in these countries make the adoption of OECDmarket structures and industrial policies counterproductive to theattainment of social, cultural and environmental objectives.
4. Patent legislation must clearly adopt a broad notion of ‘prior art' to include traditional and indigenous knowledge (both formal and informal) andclear rules on disclosure of material. Additional provisions include thestringent provisions requiring full disclosure of relevant information withregard to the origins and source of biological material.
3.5.2 Where the subject matter of a patent is a product, unauthorisedthird parties are not legally entitled to engage in the following acts: a. makingb. usingc. offering for saled. sellinge. importing the product for above purposes Where the subject matter of a patent is a process, the following acts cannot be engaged in without prior authorisation from the owner: a. usingb. offering for salec. selling Despite the relatively short history of
d. importing the product obtained directly by that process for the the TRIPs Agreement, it is clear that
the WTO dispute settlement machinery
is increasingly likely to play an
Despite the relatively short history of the Agreement, it is clear that the important role in defining the
WTO dispute settlement machinery is increasingly likely to play an governance structure for plant
important role in defining the governance structure for plant varieties53.
Option: The Sui Generis Regime
The effect of excluding patent protection to plants and plant varieties is that developing countries must adopt either a sui generis FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 17
Box 7: Articles in TRIPs most relevant to Farmer's Rights
(Note: A number of articles contain further specific conditions, exceptions and exemptions which
are spelt out in TRIPs or other referenced agreements.)
"National Treatment.Each Member shall accord to the nationals of other (Articles 3, 4, and 27)
Members treatment no less favourable than that it accords to its ownnationals with regard to the protection of intellectual property.""Most-Favoured-Nation Treatment.With regard to the protection ofintellectual property, any advantage, favour, privilege or immunity grantedby a Member to the nationals of any other country shall be accordedimmediately and unconditionally to the nationals of all other Members.""Patents shall be available and patent rights enjoyable without discriminationas to the place of invention, the field of technology and whether productsare imported or locally produced." "Exhaustion.For the purposes of dispute settlement under this Agreement, ("exhaustion of patent
subject to the provisions of Articles 3 (National Treatment) and 4 (Most- rights") (Article 6)
Favoured-Nation Treatment), nothing in this Agreement shall be used toaddress the issue of the exhaustion of intellectual property rights." Objectives of TRIPs
"Objectives.The protection and enforcement of intellectual property rights (Article 7)
should contribute to the promotion of technological innovation and to thetransfer and dissemination of technology, to the mutual advantage ofproducers and users of technological knowledge and in a manner conduciveto social and economic welfare, and to a balance of rights and obligations." Protection of nutrition and
"Principles.Members may, in formulating or amending their laws and promoting the public interest in
regulations, adopt measures necessary to protect public health and nutrition, biodiversity and the environment
and to promote the public interest in sectors of vital importance to their (Article 8)
socio-economic and technological development, provided that suchmeasures are consistent with the provisions of this Agreement." Process and product patents
".patents shall be available for any inventions, whether products or (Article 27)
processes, in all fields of technology, provided that they are new, involve aninventive step and are capable of industrial application."".patents shall be available and patent rights enjoyable withoutdiscrimination as to the place of invention, the field of technology and whetherproducts are imported or locally produced."".Members shall provide for the protection of plant varieties either by patentsor by an effective sui generis system or combination thereof." Subject matter which may be
"Members may also exclude from patentability inventions.necessary to excluded from patentability
protect ordre public or morality, including protection of human, animal or [Article 27:3 (b)]
plant life or health.""Members may also exclude from patentability:plants and animals other than micro-organisms, and essentially biologicalprocesses for the production of plants or animals other than non-biologicaland microbiological processes." Limited exceptions, including
"Exceptions to Rights Conferred.Members may provide limited exceptions "Bolar" provisions (Article 30)
to the exclusive rights conferred by a patent, provided that such exceptionsdo not unreasonably conflict with a normal exploitation of the patent and donot unreasonably prejudice the legitimate interests of the patent owner, takingaccount of the legitimate interests of third parties." ‘Where the law of a Member allows for other use of the subject matter of a (Article 31)
patent without the authorisation of the right holder, including use by thegovernment or third parties authorised by the government, the followingprovisions shall be respected:authorisation . shall be considered on its individual merits;such use may only be permitted if, prior to such use, the proposed user hasmade effort to obtain authorisation from the right holder on reasonablecommercial terms and conditions and that such effort have not beensuccessful with a reasonable period of time. This requirement may be waived 18 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
. in the case of a national emergency or other circumstances of extremeurgency or in cases of public non-commercial [governmental] use. [Noticeis required.]the scope and duration of such use shall be limited to the purpose for whichit was authorised .;such use shall be non-exclusive;such use shall be non-assignable .;any such use shall be authorised predominantly for the supply of the domesticmarket .;authorization for such use shall be liable, subject to adequate protection ofthe legitimate interests of the persons so authorised, to be terminated if andwhen the circumstances which led to it cease to exist and are unlikely torecur [with provisions for review] .;the right holder shall be paid adequate remuneration in the circumstancesof each case, taking into account the economic value of the authorization;the legal validity of any decision relating to the authorisation of such useshall be subject to judicial review or other independent review by a distincthigher authority in that Member;any decision relating to the remuneration provided in respect of such useshall be subject to judicial review or other independent review .;Members are not obligated to apply . subparagraphs (b) and (f) where suchuse is permitted to remedy a practice determined after judicial oradministrative process to be anti-competitive [and may take account of anti-competitive practices in setting compensation] .' 20-year minimum term of
‘The term of protection available shall not end before the expiration of a protection (Article 33)
period of twenty years counted from the filing date.' Data protection and
‘Protection of undisclosed information.In the course of ensuring effective Exclusivity (Article 39)
protection against unfair competition.Members shall protect undisclosedinformation.and data submitted to governments or governmental agencies.' Transitional Periods (Articles 65
TRIPs provides a period of transition during which countries are required to conform their national legislation and practices to the requirements. Thelatest dates for WTO Members were/are: 1996 for developed countries;January 1, 2000, for developing countries (as a general rule); January 1,2005, for developing countries who had not introduced patents before joiningthe WTO; and January 1, 2006, for least-developed countries. TRIPsspecifically acknowledges the economic, financial, administrative andtechnological constraints of the least-developed countries and thereforeprovides for possible extension of the transitional period.
Transfer of technology and
‘Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging (Articles 66 and 67)
technology transfer to least-developed country Members in order to enablethem to create a sound and viable technological base.and shall provide,on request and on mutually agreed terms and conditions, technical andfinancial cooperation in favour of developing and least-developed countryMembers.' Review (Article 27:3)
‘The provision of this subparagraph shall be reviewed four years after the (also Article 71:1)
date of entry into force of the WTO Agreement.' ‘The Council for TRIPs shall review the implementation of this Agreementafter the expiration of the transitional period referred to in paragraph 2 ofArticle 65. The Council shall, having regard to the experience gained in itsimplementation, review it two years after that date, and at identical intervalsthereafter. The Council may also undertake reviews in the light of any relevantnew developments which might warrant modification or amendment of thisAgreement.' FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 19
regime or any combination thereof. This is an option, which, if appliedflexibly, may help incorporate into the domestic legislation in South Asiandeveloping countries norms like conservation of biodiversity, protectionof traditional and indigenous knowledge and an equitable system ofbenefit sharing, technology transfer and just rewards54. The sui generis The umbrella of principles, which
framework is, however, subject to the principles of GATT obligations on oversees the TRIPs Agreement,
national and most-favoured-nation treatment of foreign nationals - as envisages that flexibility of
interpretation will provide a balance
asserted in Articles 3,4 and 5. Government cannot, therefore, confine between public and private interests.
Box 8: Article 27:3
1. Parties may exclude from patentability plants and animals.
2. Patent protection to be made available to micro-organisms.
3. Essentially biological processes for the production of plants can be excluded.
4. Non-biological and microbiological processes are patentable.
5. Systems of plant varieties protection must be effective.
the content of the IPRs. The Agreement now provides foreign nationalswith a legitimate expectation of parity in treatment on those aspectsregarding the exploitation, maintenance and enforcement of intellectualproperty rights. The umbrella of principles, which oversees the TRIPsAgreement, envisages that flexibility of interpretation will provide abalance between public and private interests55.
IIt should be stressed that Article
It should be stressed that Article 27:3(b) does not provide a model law 27:3(b) does not provide a model law
for a TRIPs compliant sui generis
for a TRIPs compliant sui generis regime. Neither, however, does it regime. Neither, however, does it
expressly advocate the adoption of existing international conventions, expressly advocate the adoption of
which regulate plant breeders' rights or plant varieties. Furthermore, the existing international conventions,
absence of explanatory notes or drafting history suggest that for the which regulate plant breeders' rights
or plant varieties.
short term at the very least South Asian developing countries adopt abroad approach to implementation of Article 27:3(b).
3.6.1 It is insufficient however for South Asian developing countries toadopt a passive stance towards the growing tendency by commercialbreeders to utilise the TRIPs Agreement to entrench their interests. Forexample, with the introduction of TRIPs, plant breeders and patentowners have attempted to assert property rights over innovations andpractices which have been derived from accessing plant genera ex situand in situ. The indiscriminate grant of patents over what has been termedas ‘biospeculation' or ‘biopiracy' is but one instance of the uneasyrelationship between intellectual property or sui generis systems andfarmer's rights56. Though there is no consensus as to what constitutes‘biopiracy', one that has been favoured is the appropriation of theknowledge and genetic resources of farming and indigenouscommunities by individuals or institutions seeking exclusive monopolycontrol (usually patents or plant breeders' rights) over these resourcesand knowledge57. The following demonstrates the issues and governancechallenges faced by policymakers in developing countries whenimplementing TRIPs obligations.
The indiscriminate grant of patents
over what has been termed as
Allegations about biopiracy of traditional knowledge are not new. The ‘biospeculation' or ‘biopiracy' is but
claim by commercial plant breeders that information regarding the wound one instance of the uneasy
relationship between intellectual
healing properties of haldi and hypoglycaemic properties of karela property or sui generis systems and
illustrates the ease with which traditional knowledge can be patented in foreign jurisdictions to the prejudice of countries/communities wherethe biological materials originate58.
20 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
Box 9: The Relationship between IPR,
Traditional Knowledge and Genetic Resources
The Turmeric Case
Turmeric (Curcuma longa) is a plant of the ginger family yielding saffron-coloured rhizomes used as a spicefor flavouring Indian cooking. It also has properties that make it an effective ingredient in medicines, cosmeticsand as a colour dye. As a medicine, it is traditionally used to heal wounds and rashes.
In 1995, two Indian nationals at the University of Mississippi Medical Centre were granted US patent no.
5,401,504 on "use of turmeric in wound healing".
The Indian Council of Scientific and Industrial Research (ICSIR) requested the US Patent and TrademarkOffice (USPTO) to re-examine the patent.
ICSIR argued that turmeric has been used for thousands of years for healing wounds and rashes andtherefore its medicinal use was not novel.
Their claim was supported by documentary evidence of traditional knowledge, including an ancient Sanskrittext and a paper published in 1953 in the Journal of the Indian Medical Association.
Despite arguments by the patentees, the USPTO upheld the ICSIR objections and revoked the patent.
Observations: The turmeric case was a landmark case as it was the first time that a patent based on the
traditional knowledge of a developing country had been successfully challenged. The legal costs incurred by
India in this case have been calculated by the Indian Government to be about at US $10,000.
The Neem Case
Neem (Azadirachta indica) is a tree from India and other parts of South and Southeast Asia. It is nowplanted across the tropics because of its properties as a natural medicine, pesticide and fertilizer. Neemextracts can be used against hundreds of pests and fungal diseases that attack food crops; the oil extractedfrom its seeds is used to treat colds and flu; and mixed in soap, it is believed to offer low cost relief frommalaria, skin diseases and even meningitis.
In 1994 the EPO granted European Patent No. 0436257 to the US Corporation W.R. Grace and USDA for a"method for controlling fungi on plants by the aid of a hydrophobic extracted neem oil".
In 1995 a group of international NGOs and representatives of Indian farmers filed a legal opposition againstthe patent.
They submitted evidence that the fungicidal effect of extracts of neem seeds had been known and used forcenturies in Indian agriculture to protect crops, and thus the invention claimed in EP257 was not novel.
In 1999 the EPO determined that according to the evidence "all features of the present claim have beendisclosed to the public prior to the patent application. and [the patent] was considered not to involve aninventive step".
The patent was revoked by the EPO in 2000.
FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 21
The Ayahuasca Case
For generations, shamans of indigenous tribes throughout the Amazon Basin have processed the bark ofBanisteriopsis caapi to produce a ceremonial drink known as "ayahuasca". The shamans use ayahuasca(which means "vine of the soul") in religious and healing ceremonies to diagnose and treat illnesses, meetwith spirits, and divine the future.
An American, Loren Miller obtained US Plant Patent 5,751 in June 1986, granting him rights over an allegedvariety of B. caapi he had called "Da Vine". The patent description stated that the "plant was discoveredgrowing in a domestic garden in the Amazon rain-forest of South America." The patentee claimed that DaVine represented a new and distinct variety of B. caapi, primarily because of the flower colour.
The Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA) - an umbrella organisationrepresenting over 400 indigenous groups - learned of the patent in 1994. On their behalf the Center forInternational Environmental Law (CIEL) filed a re-examination request on the patent. CIEL protested that areview of the prior art revealed that Da Vine was neither new nor distinct. They argued also that the grantingof the patent would be contrary to the public and morality aspects of the Patent Act because of the sacrednature of Banisteriopsis caapi throughout the Amazon region. Extensive, new prior art was presented byCIEL, and in November 1999, the USPTO rejected the patent claim agreeing that Da Vine was notdistinguishable from the prior art presented by CIEL and therefore the patent should never have been issued.
However, further arguments by the patentee persuaded the USPTO to reverse its decision and announce inearly 2001 that the patent should stand.
Observation: Because of the date of filing of the patent, it was not covered by the new rules in the US on
inter partes re-examination. CIEL were therefore unable to comment on the arguments made by the patentee
that led to the patent being upheld.
The Hoodia Cactus Case
The San, who live around the Kalahari Desert in southern Africa, have traditionally eaten the Hoodia cactusto stave off hunger and thirst on long hunting trips. In 1937, a Dutch anthropologist studying the San notedthis use of Hoodia. Scientists at the South African Council for Scientific and Industrial Research (SACSIR)only recently found his report and began studying the plant.
In 1995 SACSIR patented Hoodia's appetite-suppressing element (P57). In 1997 they licensed P57 to the UKbiotech company, Phytopharm. In 1998, the pharmaceutical company Pfizer acquired the rights to developand market P57 as a potential slimming drug and cure for obesity (a market worth more than £6 billion), fromPhytopharm for up to $32 million in royalty and milestone payments.
On hearing of possible exploitation of their traditional knowledge, the San people threatened legal actionagainst the SACSIR on grounds of "biopiracy." They claimed that their traditional knowledge had beenstolen, and SACSIR had failed to comply with the rules of the Convention on Biodiversity, which requires theprior informed consent of all stakeholders, including the original discoverers and users.
Phytopharm had conducted extensive enquiries but were unable to find any of the "knowledge holders". Theremaining San were apparently at the time living in a tented camp 1500 miles from their tribal lands. TheSACSIR claimed they had planned to inform the San of the research and share the benefits, but first wantedto make sure the drug proved successful.
In March 2002, an understanding was reached between the SACSIR and the San whereby the San, recognisedas the custodians of traditional knowledge associated with the Hoodia plant, will receive a share of any futureroyalties. Although the San are likely to receive only a very small percentage of eventual sales, the potentialsize of the market means that the sum involved could still be substantial. The drug is unlikely to reach themarket before 2006, and may yet fail as it progresses through clinical trials.
Observation: This case would appear to demonstrate that with goodwill on all sides, mutually acceptable
arrangements for access and benefit sharing can be agreed upon. The importance of intellectual property in
securing future benefits appears to have been recognised by all parties including the San.
Source: CIPR, 2000 22 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
Implementation of Sui Generis Obligations Since South Asian developing countries are not obliged under TRIPs to Farmers' Rights arising from the
past, present and future
provide patent protection for plants and plant varieties any sui generis contributions of farmers in
legislation should be guided by the following principles:59 conserving, improving and making
available plant genetic resources
Ÿ States have the sovereign right over their own natural resources are recognised to allow farmers, t
including their genetic resources.
to participate fully in the benefits
derived at present and in the
Ÿ Farmers' Rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant geneticresources are recognised in order to allow farmers, their communities,and countries in all regions of the world to participate fully in thebenefits derived at present and in the future, from the improved useof plant genetic resources, through plant breeding or other scientificmethods.
Ÿ Biological diversity including genetic diversity shall be conserved, enhanced and sustainably used. Patents and other IPRs shall besupportive of and not run counter to this objective.
Ÿ Access to genetic resources shall be subject to prior informed consent.
Where granted, access shall be on mutually agreed terms.
Ÿ Benefits arising from the commercial and other utilisation of genetic resources shall be shared in a fair and equitable way upon mutuallyagreed terms, multilaterally or on a bilateral basis.
Indigenous and farming
Ÿ The results of research and development arising from the utilisation innovation and practices related to
of genetic resources, as well as the technology using such resources, plants and plant genetic resources
shall be protected and encouraged.
shall be shared in a fair and equitable way on terms mutually agreedupon. Access to, and transfer of technologies relevant to theconservation of biological diversity, to the sustainable use of itscomponents, and to technologies that make use of genetic resourcesshall be provided and/or facilitated under fair and most favourableterms.
Ÿ Indigenous and farming communities' knowledge, innovation and practices related to plants and plant genetic resources shall beprotected and encouraged. Special measures shall be taken to ensurethis, including mechanisms of free and informed consent." The following provides a check-list of the progress of sui generislegislation in South Asian developing countries with the exception ofNepal.
It may be premature to be overly
critical about the efforts of the
policymakers in implementing Article
It may be premature to be overly critical about the efforts of the 27:3(b). The article is presently under
policymakers in implementing Article 27:3(b). The key reason being that review and it is unclear what the
Article 27:3 (b) is presently under review and it is unclear what the modalities are likely to be for the
modalities are likely to be for the future shape of Article 27:3 (b).
future shape of Article 27:3 (b).
FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 23
Plant Varieties Act of Protection of Plant Protection of New Farmers' Right Act (Breeders Rights)2001 (Draft Biodiversity Bill Act of Bangladesh ‘nonexistent plant uniform, stable, and ‘uniformity' and Plant Breeders Rights are made subject to apply to all sexually protected variety.
‘protection' does not species, except plant constitute a right interests extend to terminator genes or stocking harvested intellectual property material(Art 14).
registration attracts 14(5) is suspended Breeders' Exemption protection for the period of nine years Commercial rights instances following Research exemption in the case of trees under Article 7:10 and vines, six years in the case of other Breeders' Exemption crops. This may be A tiered structure under Article 16: harvested material, (a) 7 years for annuals remaining period but with a ceiling not plants and parts of (b) 10 years for Bi- plants are excluded (i) in the case of in specific instances.
breeding varieties Note also Article eighteen years from (d) 25 years for woody plants, utilizing timber.
registration of the breeding varieties.
25 years for treesand vines (ii) in the case of extant variety, fifteen Article 29 provides 25 species will be 25 years from the date years in the case of of the notification of trees and vines and that variety by the 20 years in the case Central Government of all other plants.
under section 5 ofthe Seeds Act,1966; and (iii) in the othercases, fifteen yearsfrom the date ofregistration of thevariety.
N/Available 24 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
Article 22 creates the Express provision farmer's right and plant an exhaustive set covering a farmer's provision in the Act.
protection fund. The traditional right to rights extends to fiscal 14(4) (II) provides and institutional exchange, share or that the Minister may by regulations, genetic resources within reasonable of land races and protected variety. It limits and subject to under Article 20:5-7 wild relatives of does not extend to the safeguarding of sale for the purpose holders of breeder's through selection right, restrict the breeder's right in Note in particular the notion that sale genera or species in subject matter of a mature legal right.
farmers to use for himself of this right purposes, on their the farmer cannot own holdings, the designations that harvest which they association with the planting, on their own holdings, the protected variety ora variety covered by section14(3)(a)(i) or infringement under s42Authorisation offarmer's varietyunder s43 reflects the needs of knowledge existing in nature through Knowledge (TK) or patent legislation the needs of local traditional practices and knowledge .
Note the concept of a met if publication ‘community variety' under Article 4.
Article 7:2 provides that all plant varietiesexisting constituteprior knowledge andhence ineligible.
Article 7:6 ‘culturalerosion' as acondition for refusingregistration.
Also Article 20:knowledge, cultureand practices ofcultivation FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 25
No Provision.
and Benefit
Compulsory licensing under section 41;compulsory National GeneFundCompulsorylicenses unders47 Market incentives for Article 40 contains farmers as innovators outside the limited under Article 7 (cf penalise the rights strong monitoring provision in Article Note Article 7:6 which information filed in importance of the new the application.
plant variety being biodiversity and/or particular varieties existing genetic or under the heading of novelty anddistinctiveness Burden of proof on claimant to show that the plant variety is novel (Article 7:2) Article 7:7 places the burden of proof on the innovator of transgenic plants to fulfil bio- safety standardsArticle 10 prescribespunitive measures forviolations andinfringements of theAct.
Article 7:3 regards see "Statement of A declaration from state patronage of and genetic
plant variety rights as the variety is safe substantial benefit to the population.
animal health and permits refusal of registration where it Creation of Plant is contrary to public policy or morality.
Article 9 fromroyalties 26 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
1. The absence of any explicit reference to the UPOV can be utilised for the benefit of South Asian developing countries to pursue theirnational social and ecological policies whilst providing a minimalplant property protection system which is effective. ‘Effectiveness'can be interpreted in the narrowest sense of ensuring the existenceof clear registration, monitoring and enforcement mechanisms.
2. The legislation adopts the criteria under the 1978 Act for plant variety. One suggestion is that the critera of ‘uniformity' and ‘stability'be replaced by the criterion of ‘identifiability'. It is possible to arguethat this loose terminology will include the diverse plant andecological materials that presently exist in rural communities inthis region.60 3. The obligations under Article 27:3 (b) must be read alongside Article 7 and 8 to give particular priority in policymaking towards retainingsovereign autonomy over genetic resources, the protection of localand traditional knowledge and the creation of benefit sharingsystems (eg. gene bank depositories, compensation funds,registries for recording innovation and traditional knowledge). It isparticularly noticeable that the legislation in Pakistan and Sri Lankadoes not deal with some or all of these aspects comprehensively.
4. To facilitate technology transfer, a form of positive discrimination could be pursued to encourage investment by foreign transnationalcorporations and joint ventures.
5. Greater emphasis could also be placed by governments in Sri Lanka and Pakistan on the communities rights to traditional orindigenous knowledge.
6. The maturation of the concept of farmer's privilege into a fully blown right with commercial attributes is critical to ensuring thatmultinational corporations do not dominate the seed market in India.
7. Need to review the administration and operationalisation of the FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 27
The Doha Declaration and the Process of Review NGOs and religious organisations
5.1 The fact that there was no separate declaration in the Doha expressed concern that with the
Ministerial Round of meetings on TRIPs and Food Security has caused expanding net of intellectual property
some concerns. NGOs and religious organisations expressed concern rights the livelihood of communities,
that with the expanding net of intellectual property rights the livelihood of particularly amongst the farming
sector in the developing world would
communities, particularly amongst the farming sector in the developing be mostly under threat.
world would be mostly under threat61. Whilst not minimising the gravityof the concerns the TRIPs Agreement is envisaged as posing for foodsecurity, conservation and biosafety of ecosystems and traditionalknowledge, these must not be overstated. Two reasons may be given.
First, the foregoing indicates that plant varieties and breeders' rightlegislation go some way to providing a counterpoint to the problemspotentially created by an Agreement that has been regarded as beingparticularly biased towards the appropriation of information existing innature by the private sector. Second, the absence of clear prescriptionsin Article 27:3 (b) arguably provides South Asian developing countrieswith an opportunity to entrench non-economic and socio-cultural valuesand norms with regard to genetic resources, biodiversity and traditional The absence of clear prescriptions in
knowledge. What is unclear at this juncture however is whether added Article 27:3 (b) arguably provides
South Asian developing countries with
pressure may be brought to bear on developing countries either through an opportunity to entrench non-
bilateral pressures or concessions in return for amending Article 27:3(b) economic and socio-cultural values
to incorporate the 1991 Act.
and norms with regard to genetic
resources, biodiversity and traditional
5.2 The mandate for the present review of Article 27:3(b) is nowcontained in the Doha Declaration, paragraph 19, which states that:'19. We instruct the Council for TRIPs, in pursuing its work programmeincluding under the review of Article 27.3(b), the review of theimplementation of the TRIPs Agreement under Article 71.1 and the workforeseen pursuant to paragraph 12 of this declaration, to examine, interalia, the relationship between the TRIPs Agreement and the Conventionon Biological Diversity, the protection of traditional knowledge and folklore,and other relevant new developments raised by members pursuant toArticle 71.1. In undertaking this work, the TRIPs Council shall be guidedby the objectives and principles set out in Articles 7 and 8 of the TRIPsAgreement and shall take fully into account the development dimension.' 5.3 In its meeting during March 2002, the TRIPs Council requested theCouncil for Trade-Related Aspects of Intellectual Property Rights toprepare short papers, inter alia related to the review of Article 27:3(b).
Two separate areas were considered by the Council as part of the DohaProcess: (i) review of the provisions of Article 27:3(b)62 and (ii) The During March 2002, the TRIPs Council
Protection of Traditional Knowledge and Folklore63. The broad impression meeting two separate areas were
gained from a survey of the documentation made available to the WTO considered as part of the Doha
underlines the need for a Ministerial communication that states clearly Process.Rreview of the provisions of
the relationship between TRIPs, CBD, UPOV and the International Treaty.
Article 27:3(b)62 and the Protection of
Traditional Knowledge and Folklore.
The following additional points should also be noted: It is becoming apparent that there are markedly different views aboutthe scope of the review process. On the one hand, countries likethe United States, Switzerland, EC and Japan are keen on usingthe review process to increase protection for commercial plant 28 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
breeders. One way of achieving this would be to amend Article27:3(b) so that patent protection is extended to plant and animalinventions64. Submissions by Japan, Singapore and Australiasuggest that the reduction in pluralist approaches will betterguarantee market incentives for private investment in innovation, Developing countries strongly
facilitate transfer of technology and address the problems faced by raise ther voice against the imbalance
in the international arrangements
both developing and developed countries in agriculture, nutrition, arguing that there was no
health and environment65. The submission by Australia adopts a counterpoint to the system of
less aggressive stance and proposes preservation of the status quo intellectual property rights set in place
without any further dilutions of Article 27:3(b) which attempts to by TRIPs and UPOV.
maintain a balance between sovereign integrity and rights of privatebreeders as well as commercial innovators in the biotechnologyindustries.66 Developing countries however argue that such policyprescriptions are counterproductive to sustaining the viability oftraditional knowledge and practices and do not necessarily addressthe particular needs and values of agricultural communities indeveloping countries67. One view strongly echoing the concernsraised by developing countries about the imbalance in theinternational arrangements is that there was no counterpoint to thesystem of intellectual property rights set in place by TRIPs andInternational Agreements on Plant Varieties and Breeders' Rights.
b.) To better enable countries to implement Article 27:3(b) in the light of their social and environmental policies it is imperative that theterms within the sui generis regime are made reasonably clear. Forexample, the submissions by India, Brazil, Thailand and Peruexpress concerns that the distinction between plants, animals andmicro-organisms and what constitutes an effective sui generissystem are not readily apparent.68 Kenya, which was representingthe African Group, together with India called for either an amendmentor at the least clarification of Article 27:3(b).69 For example, it isproposed that life forms, in particular, plants and animals, micro- To better enable countries to
organisms, genes and natural processes should not be patentable70.
implement Article 27:3(b) in the light of
their social and environmental policies
Developing countries have also tabled a recommendation that Article it is imperative that the terms within
27:3(b) expressly prohibit the patenting of inventions based on the sui generis regime are made
traditional knowledge or those that violate Article 15 of the CBD71.
This proposal perhaps reflects the impression held by many in thedeveloping world as to the present imbalance in the TRIPsAgreement which seems to regard knowledge and informationregarding genetic resources, traditional knowledge and other formsof public goods as being legitimate subject matter for privateappropriation72. A suggestion which attempts to reorientate theproperty model so that other interests can be accommodated, isthat a footnote be inserted into Article 27:3(b) to remove anyuncertainties regarding the scope of the term, plant variety protection,by stating that any sui generis protection can73:"provide for: (i) the protection of innovations of indigenous and localfarming communities in developing countries, consistent with CBDand the International Undertaking on Plant Genetic Resources; (ii)the continuation of traditional farming practices including the right Developing countries have tabled
to save and exchange seeds, and sell farmers' harvest; and (iii) the a recommendation that Article 27:3(b)
expressly prohibit the patenting of
prevention of anti-competitive rights or practices which threaten the inventions based on traditional
food sovereignty of developing countries, as is permitted by Article knowledge or those that violate Article
31 of the TRIPs Agreement." 15 of the CBD.
With regard to the concept of ‘farmer's rights', which is not expresslyreferred to in Article 27:3(b), the submission by Thailand advocatesthat the derogations from the plant variety protection should as aminimum prescribe that the farmers' rights include the right to sowand share harvested seed of a protected variety, communities' rights FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 29
and compulsory licensing in the event of national emergencies andpublic non-commercial use where costs of purchase prove to beprohibitive74.
Given the extent to which South Asian developing countries in Given the extent to which South
particular have relied on the 1978 UPOV rather than the 1991 Asian developing countries in
particular have relied on the 1978
Convention, there has been some discussion whether the UPOV rather than the 1991
enactments in national legislations constitute an effective sui generis Convention, there has been some
regime. The United States has strongly argued that the rights of the discussion whether the enactments in
commercial breeders be clearly ascertainable and the scope of national legislations constitute an
effective sui generis regime.
genera or species extended to all plant varieties and has stronglypursued a course which favours Article 27:3(b) as incorporating the1991 Act75. Furthermore, it is suggested that the rights under theplant varieties legislation should accrue to the rights holder eitherthrough contract or succession and not by tradition.
30 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
Summary and Conclusions Any plant indigenous to India or
1. A literal construction of the rights under Article 28 would now mean Bangladesh were subjected to a
that if neem, turmeric or any other plant indigenous to India or process of reverse engineering and a
Bangladesh were subjected to a process of reverse engineering and transgenic plant were to be produced.
a transgenic plant were to be produced, its owner would now have Its owner would now have commercial
rights over any subsequent
commercial rights over any subsequent exploitation or use of the exploitation or use of the product or
product or process76.
2. TRIPs is directed against establishing systems of property protection to spheres of economic activity like plant breeder's rights, agro-chemical products and processes, food, and pharmaceuticals.
Member States still retain some autonomy when determining themanner in which the obligations are to be implemented but anyframework provided cannot be discriminatory in terms of nationalityor technology. The word "may" suggests that TRIPs only requiresMember States to set in place minimal standards. To a number ofdeveloping and least-developed countries this exceeds the standardscurrently in place.
3. Exemptions that exist are crafted in broad terms thereby "delaying" the problems that are likely to emerge when private and publicinterests conflict with each other77. Article 27:2 provides that: ‘[m]embers may exclude from patentability inventions, the preventionwithin their territory of the commercial exploitation of which isnecessary to protect ordre public or morality, including to protecthuman, animal or plant life or health or to avoid serious prejudice tothe environment, provided that such exclusion is not made merelybecause the exploitation is prohibited by their law'.
4. The scope of this exemption has yet to be clarified but it is safe to assume that any claim to patent inventions which pose dangers orthreats to human, animal or plant life or health, or more generallycause potential risks to the environment seriously prejudicial to theenvironment can be legitimately turned down. That said, the scopeof government manoeuvre is however limited, since it is incumbenton those relying on this exception, to provide empirical evidence tosupport the reasons why the commercial exploitation of the inventionis necessary for the protection of ordre public or morality.
The identification of plants as a subject matter that can properly beexcluded should be expressly stated in the national legislation. So TRIPs is directed against
that there is no doubt as to the scope of the exclusion, reference establishing systems of property
should be made to products and processes with regard to hybrids, protection to spheres of economic
activity like plant breeder's rights,
transgenic plants, cells and seeds78.
agro-chemical products and
processes, food, and pharmaceuticals.
5. Art 27:3 (b) empowers Member States to exclude the following subject matter from patentability: ‘plants and animals other than micro-organisms, and essentiallybiological processes for the production of plants or animals otherthan non-biological and microbiological processes.' FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 31
This is not as broad sweeping as it might seem as the sub-paragraphgoes to impose on Member States the obligation to ‘provide for theprotection of plant varieties either by patents or by an effective suigeneris system or by any combination thereof.' The inclusion of plantvarieties and the restricted scope of Article 27:3(b) more generally The inclusion of plant varieties and
raises a challenge for policymakers in developing countries to ensure the restricted scope of Article 27:3(b)
that implementation of this Agreement does not dilute the domain of more generally raises a challenge for
policymakers in developing countries.
farmer's rights as envisaged in the UPOV Convention, theInternational Undertaking on Plant Genetic Resources and theConvention on Biological Diversity.
6. There is now a clear need to obtain a Ministerial Declaration which articulates the interface between Article 27:3(b), the UPOV, CBDand the International Treaty.
This study provides some foundation for the view that through creativeinterpretation of Article 27:3 (b) South Asian developing countries canfulfill their obligations under TRIPs whilst resolving the key socio-culturaland ecological objectives. India's efforts in enacting legislation thatattempts to balance the interests of commercial breeders and its socialand economic interests provides a useful source for undertaking furtherstudy on how best the entire region can benefit from a coordinate strategythat transcends national boundaries. It could be that a separate Ministerial Through creative interpretation of
Declaration will be needed to clearly articulate the interface between Article 27:3 (b) South Asian developing
TRIPs and other international conventions. During the interim a hybrid of countries can fulfill their obligations
measures along the lines adopted by India, in the form of the Patents under TRIPs whilst resolving the key
(Second Amendment) Act 2000, the Protection of Plant Varieties and socio-cultural and ecological
objectives. A separate Ministerial
Farmers' Right Act 2000 and the Biodiversity Bill 2002 provide the best Declaration will be needed to clearly
way forward. That said, the paper also advises a degree of circumspection articulate the interface between TRIPs
since the present review of Article 27:3 (b) does leave developing and other international conventions.
countries open to bilateral trade pressures and lobbying from multinationalcorporations to increase plant property protection via the adoption of the1991 Act.
32 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
Since patent rights on plants and plant varieties enable informationregarding genes and specific traits in developing countries, plantsand other materials subsisting in nature should be specificallyexcluded from the patent regimes as patentable subject matter.
‘Microorganisms' which is not defined in TRIPs can be expresslyrestricted in national legislation which corresponds with life formslike viruses, algae, bacteria, fungi and protozoa.
Biological processes with regard to traditional plant breedingmethods are not patentable.
Should plants be deemed to be patentable, safeguard provisionswith regard to compulsory licensing, revocation mechanisms,administration of patent applications and scrutinising of claims shouldbe instituted.
In addition to this, the domestic legislation should clearly prescribethe extent of the access rights conditional on the patent holder'sapproval and entrench the concept of farmers' rights.
There is now a need for a clear Ministerial Declaration which clarifiesthe relationship between TRIPs and agreements like the CBD andPGRFA.
FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 33
World Bank, Knowledge for Development - World Development Report 1998/99 (OUP, 1998). Available at http://www.worldbank.org MP Ryan, Knowledge Diplomacy: Global Competition and the Politics of Intellectual Property (Washington: BrookingsInstitution Press, 1998) See Food and Agricultural Organisation, The State of Food Insecurity in the World (2000) and MG Desta, "FoodSecurity and International Trade Law: An Appraisal of the World Trade Organisation Approach" (2001) 35 Journal ofWorld Trade Law 449.
MP Ryan, Knowledge Diplomacy: Global Competition and the Politics of Intellectual Property (Washington: BrookingsInstitution Press, 1998).
OECD, Economic Globalisation and the Environment (Paris: OECD, 1997) and UNDP, Agroecology: creating thesynergisms for sustainable agriculture (New York: UN, 1995). D Glover, "Modern Biotechnology and DevelopingWorld Agriculture" Available at http://www.ids.ac.uk/ids/env/bioview.html Also CISDE, ‘Biopatenting and the Threatto Food Security' (2000) Available at www.cisde.org See FAO, Report of the World Food Summit: Five Years On (20020. Available at http://www.fivims.org/index.jsp?LANG_CODE=EN ) G Tansey, "Geoff / Food for Thought" (2002) Harvard International Review http://www.wtowatch.org/library/admin/uploadedfiles/Intellectual_Property_ Rights_Food_and_Biodiver.html Carlos Correa in Intellectual Property Rights, the WTO and Developing Countries (TWN, 2000) R Ostergard Jr (et al), "Stealing from the past: globalisation, strategic formation and the use of indigenous intellectualproperty in the biotechnology industry" (2001) 22 Third World Quarterly 643. C Bright, "Invasive Species: Pathogensof Globalisation" (1999) Foreign Policy 50. Submissions to the Council for Trade Related Aspects of IntellectualProperty Rights by Japan (IP/C/M/32 para. 142), Switzerland (IP/C/M/30 para 161 and IP/c/w/284, para 4). Availableat www.wto.org RV Mariano, "Benefits and Shortcomings of Intellectual Property Rights for Small Scale Farmers in DevelopingCountries" Available at http://www.infoagrar.ch/ipr-symposium/documents/paper_mariano.pdf D Glover, "Modern Biotechnology and Developing World Agriculture" Available at http://www.ids.ac.uk/ids/env/bioview.html V Shiva, "The Green Revolution in the Punjab" (1991) 21 The Ecologist 57 and A Krattiger, "Protect Knowledge toFeed the World?: The Application of Intellectual Property Rights in International Agriculture Today and Tomorrow"Available at http://www.infoagrar.ch/ipr-symposium/documents/Paper_Krattiger.pdf See World Trade Organisation,Council for Trade-Related Aspects of Intellectual Property Rights - Review of the Provisions of Article 27:3(b) -Submission by Thailand IP/C/W/125. Also see World Trade Organisation, Council for Trade-Related Aspects ofIntellectual Property Rights - Review of the Provisions of Article 27:3(b) - Submission by Cuba, Honduras, Paraguayand Venezuela IP/C/W/166 Ibid. Also J Kloppenburg, First the Seed: The Political Economy of Plant Biotechnology, (Cambridge: 1988). See inparticular, J.H. Barton, "The Impact of Contemporary Patent Law on Plant Biotechnology Research.", S.A. Eberhart(eds), Global Genetic Resources: Access and Property Rights. Madison/Wisconsin, (USA: Crop Science Society ofAmerica, 1998) pp. 85-97.
A Sen, Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford: 1981). Also see MG Desta, "FoodSecurity and International Trade Law: An Appraisal of the World Trade Organisation Approach" (2001) 35 Journal ofWorld Trade Law 448 and K Kate and Sarah Laird, "Biodiversity and Business: Coming to Terms with the ‘grandbargain'" (2000) 76 International Affairs 241.
Ibid. Also D Rangnekar, "Access to Genetic Resources, Gene-based Inventions and Agriculture" Study paper 3a,UK Commission on Intellectual Property Rights. Available at http://www.iprcommission.org/papers/pdfs/study_papers/sp3a_rangnekar_study.pdf. Also M Blakeney, "Access to Genetic Resources, Gene-based Inventions and Agriculture"Study paper 3b, UK Commission on Intellectual Property Rights Available at http://www.iprcommission.org/papers/pdfs/study_papers/sp3b_blakeney_study.pdf This Convention was established by the International Convention for the Protection of New Varieties and first adoptedin the Diplomatic Conference held in Paris in 1961. The Convention came into force in 1968, after ratification by theUnited Kingdom, the Netherlands and Germany. The developments in techniques relating to plant breeding throughadvances in technology and research led to subsequent revisions being made to the Convention. The most recentbeing the 1991 Act. See www.upov.org 34 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
See Article 4.
The scope of this privilege is not entirely clear. One view is that farmers' privilege does not extend beyond replantingof seeds from previous purchase. See Leskin & Flitner (1997). The 1991 Act will not be considered since theconstraints imposed on farmers' privilege indicate that ratification would be contrary to the interests of rural farmingcommunities in developing countries: see Watal and Leskien & Flitner 1997.
Orthodox farming practices involve saving parts of the harvest, in particular annual cereal and pulse crops to be re-used during the following season. Alternatively, farmers tend to save seeds with a view to replanting in the followingseason. This runs counter to the interests of commercial plant breeders whose corporate business model requiresseeds to be purchased on an annual basis for all plant varieties.
The 1978 and 1991 Acts of the UPOV Convention differ in the balance struck in this key area.
This is not an absolute exemption since the claimant must show that use of the protected variety is critical for thecommercial production of the new variety.
This example is drawn from World Trade Organisation, Council for Trade-Related Aspects of Intellectual PropertyRights - Review of the Provisions of Article 27:3(b) - Submission by FAO IP/C/W/347.
F. McConnell, The Biodiversity Convention: A Negotiation History, (Kluwer: 1996) See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) - Submission by the US IP/C/W/257.
See World Trade Organization, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) - Submission by India IP/C/W/198 para 1.
See Articles 1, 3 and 5 Article 16(2) states: "Access to and transfer of technology referred to in paragraph 1 above to developing countriesshall be provided and/or facilitated under fair and most favourable terms, including on concessional and preferentialterms where mutually agreed, and, where necessary, in accordance with the financial mechanism established byArticles 20 and 21. In the case of technology subject to patents and other intellectual property rights, such accessand transfer shall be provided on terms which recognise and are consistent with the adequate and effective protectionof intellectual property rights. The application of this paragraph shall be consistent with paragraphs 3, 4 and 5below.". Article 16(3) states: "Each Contracting Party shall take legislative, administrative or policy measures, asappropriate, with the aim that Contracting Parties, in particular those that are developing countries, which providegenetic resources are provided access to and transfer of technology which makes use of those resources, ormutually agreed terms, including technology protected by patents and other intellectual property rights, wherenecessary, through the provisions of Articles 20 and 21 and in accordance with international law and consistent withparagraphs 4 and 5 below.".
Article 16(5) states: "The Contracting Parties, recognising that patents and other intellectual property rights mayhave an influence on the implementation of this Convention, shall cooperate in this regard subject to nationallegislation and international law in order to ensure that such rights are supportive of and do not run counter to itsobjectives.". Article 16(4) states: "Each Contracting Party shall take legislative, administrative or policy measures,as appropriate, with the aim that the private sector facilitates access to, joint development and transfer of technologyreferred to in paragraph 1 above for the benefit of both governmental institutions and the private sector of developingcountries and in this regard shall abide by the obligations included in paragraphs 1, 2 and 3 above." The following account draws on WTO- Committee on Trade and Environment - The Relationship Between theConvention on Biological Diversity and the Agreement on the Trade-Related Aspects of Intellectual Property Rights;with a focus on Article 27:3(b) WT/CTE/125. Also WT/CTE/W/158 Following the meeting in Rome on 3/11/2001 it is now known as the InternationalTreaty on Plant Genetic Resources for Food and Agriculture (2001). Available at www.fao.org/biodiversity/doc_en.asp See Resolution 8/83 of the 1983 FAO Confernece and subsequent Conference Resolutions (4/89, 5/89 and 3/91) Full text available at: ftp://ext-ftp.fao.org/waicent/pub/cgrfa8/iu/ITPGRe.pdf See Res. 4/89 adopted by FAO Conf. 25th Sess., Rome Nov. 11-20, 1989 S Gauri and J Christie "Intellectual Property, Biodiversity and the Rights of the Poor" Canadian Council for InternationalCo-operation, Trade and Poverty Series, 3. Global Trade/Global Poverty, NGO Perspectives on Key Challenges forCanada. Available at h t t p : / / w w w. g e f o o d a l e r t . o r g / l i b r a r y / a d m i n / u p l o a d e d f i l e s / I n t e l l e c t u a l _ P r o p e r t y _Biodiversity_and_the_Rig.htm See MS Swaminathan, "Farmer's Rights and Plant Genetic Resources" (1998) Biotechnology and DevelopmentMonitor, No. 36 http://www.biotech-monitor.nl/3603.htm D Wood, "Real Rights for Farmers" (1998) Biotechnology and Development Monitor, No. 36 Note for example the UPOV Acts only regard the contributions as a ‘privilege' not as a right.
FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 35
See International Union for the Protection of New Varieties of Plant and International Undertaking [(FAO)Resolution4/89].
Res. 5/89 adopted by FAO Conf. 25th Sess., (Rome Nov. 11-20, 1989) G Pursell, Some Aspects of the Liberalisation of South Asian Agricultural Policies: How Can the WTO Help? (WorldBank, 29) Ed B Blarel G Pursell and A Valdes (Washington: World Bank, Allied Publishers, 1996).
Alberto Valdes , ‘Overview of the Global Impact of the Uruguay Round and Lessons from Early Reformers', B BlarelG Pursell and A Valdes (eds), n5, pp4-5 See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) - Submission by India IP/C/W/198 World Bank Report, p 139 See generally, K Maskus, Intellectual Property Rights in the Global Economy (International Institute of Economics,2000); J Watal, Intellectual Property Rights in the WTO and Developing Countries (Kluwer, 2001).
See Article 7 and 8.
See India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WTO Document WT/DS50/R (Panel Report) and WT/DS50/AB/R (Appellate Body Report).
See WIPO, The Role of Industrial Property in Economic Development WIPO/IP/ACC/86/5. WIPO, Introduction toIntellectual Property Theory and Practice (Kluwer, 1997) 45-57, PW Grubb, Patents for Chemicals, Pharmaceuticalsand Biotechnology (Oxford: Clarendon Press, 1999) 16-23.
See for example section 102(a), 35 USC which regards relevant public disclosure as not taking place if it is madeoutside the territorial jurisdiction of the United States.
Under Article 3:2 of the European Directive it is stipulated that: ‘Biological material which is isolated from its naturalenvironment or processed by means of a technical process may be the subject of an invention even if it is alreadyoccurred in nature'.
See Carlos at p182. Examples include: US Patent 4,594,810 which relates to a claim for an inbred corn line havingthe designation of AI; US Patent 4,762,964 stipulates a claim for a new and distinct plant variety, Yensen 3a, ofDistichlis palmeri; Claim 7 of US Patent 4,626,610 relates to novel soybean varieties.
See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) - Submission by India IP/C/W/198 See India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WTO Document WT/DS50/R (Panel Report) and WT/DS50/AB/R (Appellate Body Report).
World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of the Provisionsof Article 27:3(b) - Submission by Kenya IP/C/W/163 and by India IP/C/W/161 See Article 7 and the Preamble.
See www.etcgroup.org World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of the Provisionsof Article 27:3(b) - Submission by India IP/C/W/198.
Leskien & Flitner, "Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System",Issues in Genetic Resources No. 6, IPGRI, Rome 1997 Available at www.grain.org/publications/chapter4-en.cfm A Seiler, "Sui Generis Systems: Obligations and Options for Developing Countries." Biotechnology and DevelopmentMonitor, No. 34, http://www.biotech-monitor.nl/3402.htm See Actionaid, ‘Trade Related Intellectual Property Rights and the Threat to Food Security and Farmers' Rights',Briefing Paper for the Conference of the Commission on Intellectual Property Rigths (2002) Available atwww.actionaid.org. See also Bob van Dillen and Maura Lean, ‘Biopatenting and the Threat to Food Security' (CIDSE,2000). Available at http://www.cidse.org/pubs/tg1ppcon.htm. See D Green, ‘CAFOD analysis of WTO DohaDeclarations' (2001). Available at http://www.cafod.org.uk/livefromdoha/doha_analysis.shtml#11.
See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) IP/C/W/369 See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) IP/C/W/370 36 FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES
Submission of the United States at See World Trade Organisation, Council for Trade-Related Aspects of IntellectualProperty Rights - Review of the Provisions of Article 27:3(b) IP/C/M/29 para 185 See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) at para 6; also submissions by Japan, IP/C/M/32 para 142, Singapore, IP/C/M/25 para80 and Australia, IP/C/M/24 para 83 Australia's submission at IP/C/M/28 at para 152. See also the submissions by Canada IP/C/M/25 para 91 by Korea,IP/C/M/26 para 70 and by Japan, IP/C/M/32 para 142 See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) at para 7. See also See World Trade Organisation, Council for Trade-Related Aspectsof Intellectual Property Rights - Review of the Provisions of Article 27:3(b) submissions by India, IP/C/M/24, para 80,IP/C/M/25, para 24 and Kenya, IP/C/M/28 paras 143 and 145 See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) at para 9. Also see IP/C/M/26 para 55 (India), IP/C/M/30 para 156 and 183 (Brazil), IP/C/M/25 para 78 (Thailand) and IP/C/M/29 para 175 (Peru) See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) IP/C/W/163 (African Group)and IP/C/M/28 para 146 (Kenya), IP/C/M/29 para 163(India) Ibid. See Review Paper paras 10-17 See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) submission by India IP/C/M/25 para 25 See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) at para 36. See World Trade Organisation, Council for Trade-Related Aspects ofIntellectual Property Rights - Review of the Provisions of Article 27:3(b) submission of Kenya on behalf of theAfrican Group IP/C/W/163 See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) IP/C/M/25 para 78 See World Trade Organisation, Council for Trade-Related Aspects of Intellectual Property Rights - Review of theProvisions of Article 27:3(b) IP/C/W/209 See for example US Patent Number 5,159,135 and 5,304,718. Cited in C Correa p 176 See for example Article 30 which enables encroachments into the grant holder's rights so long as this does notunreasonably, on balancing the legitimate interests of both parties, conflict with normal exploitation of the patent.
The ‘Bolar' exception under Article 8 introduces the ‘research exception' and the abuse of monopoly exceptionunder Article 40.
Carlos Correa in Intellectual Property Rights, the WTO and Developing Countries (TWN, 2000).
The following draws on the recommendations proposed by Carlos Correa in Intellectual Property Rights, the WTOand Developing Countries (TWN, 2000).
FARMERS' RIGHTS: LESSONS FOR POLICYMAKERS INSOUTH ASIAN DEVELOPING COUNTRIES / 37

Source: http://www.cuts-international.org/Disc_paper.pdf