Plant variety protection is a controversial topic still being debated in the World Trade Organisation (WTO). This post introduces treaties relevant to the topic.
What is Plant Variety Protection?
Broadly, plant variety protection grants breeders, farmers and farming communities exclusive rights over the vegetative or reproductive materials of plant varieties they have discovered, conserved or developed.
Treaties
The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which entered into force on 1 January 1995 established minimum intellectual property rights (IPRs) standards for a range of subject-matters including plant varieties.
Article 27.3(b) of TRIPS obliges all WTO member states to protect plant varieties through patents, an effective sui generis (unique or special) system or a combination of systems.
However, pre-TRIPS, the International Convention for the Protection of New Varieties of Plants (UPOV) had introduced the plant breeders’ rights system –a type of sui generis plant variety protection system. The UPOV plant breeders’ rights system, focused on the protection of new plant varieties that meet the ‘distinct’, ‘uniform’ and ‘stable’ conditions is primarily suited to commercial plant breeders in industrialised agricultural sectors, predominantly based in the Global North.
Conversely, the United Nation’s Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) introduced access- benefit sharing and farmers’ rights principles. Although access-benefit sharing and farmers’ rights principles are not IPRs, they seek to counterbalance patents and plant breeders’ rights by protecting interests of small-scale farmers especially in the Global South. Access-benefit sharing refers to the way genetic resources may be accessed and how benefits resulting from their use are shared. Farmers rights include rights to protect traditional knowledge relevant to plant genetic resources, rights to participate in decision-making at the national level on matters related to the conservation and sustainable use of plant genetic resources, alongside rights to save, use, exchange and sell farm-saved seed/propagating materials.
In sum, there is a Global North-Global South divide on suitable plant variety protection systems at the WTO. While Global North members promote patent or UPOV plant breeders’ rights systems, Global South members promote sui generis systems that incorporate CBD and ITPGRFA principles. It is important to point out that TRIPS does not refer to UPOV, CBD or ITPGRFA. In other words, despite the lack of consensus on suitable plant variety protection systems amongst WTO members, Article 27.3(b) of TRIPS provides flexibility in its implementation at the national level. Yet, this Global South WTO members’ flexibility is often constrained through bilateral or regional trade/investment agreements (discussed in another post).
Key dates:
• TRIPS: Adopted 15 April 1994, entered into force 1 January 1995.
• UPOV: Adopted 2 December 1961, entered into force 10 August 1968. Revised 10 November 1972, 23 October 1978 and 19 March 1991.
• CBD: Adopted 5 June 1992, entered into force 4 June 1993. (Nagoya Protocol on Access and Benefit Sharing: Adopted 29 October 2010, entered into force on 12 October 2014).
• ITPGRFA: Adopted 3 November 2001, entered into force 29 June 2004.
