Exploring Elements and Components of Sui Generis Systems for Plant Variety Protection and Traditional Knowledge in Asia

Research
Date period
1 March 2007

SummaryThe main objective of this paper is to outline components and elements of sui generis Plant Variety Protection (PVP) systems and measures to protect traditional knowledge (TK) based on recent experiences in Asia. One of the main outcomes of this paper is the demonstration that developing countries have options with regards to PVP and the legal handling of TK. While some governments in Asia have already adopted patent or International Union for the Protection of New Varieties of Plants (UPOV) standards for PVP, others may wish to develop unique systems which respond to the diverse needs of the country’s farmers and local communities. To date the response throughout Asia reflects its diversity.

A number of Asian countries have developed UPOV-style laws or have joined and ratified UPOV. Whilst this helps satisfy their commitments to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), there have been various criticisms of the appropriateness of UPOV plant variety protection systems for developing country needs. The UPOV model provides a generic solution, meaning that initially it is likely to be easier to administer, but in the long run could end up only protecting the interests of large-scale commercial breeders and biotechnology companies. A number of these countries have utilised the flexibilities in UPOV and TRIPS to include additional elements in their laws that address their concerns. For example, they have included “disclosure of source and/or origin requirements” (in the Indian, Thai, Singaporean and Vietnamese laws), farmers’ rights elements (see the Indian law), prior informed consent (PIC) procedures and access and benefit sharing (ABS) arrangements. Some countries from the region have opted to develop truly unique laws for PVP – most notably India and Thailand. Across Asia a range of other related agro-biodiversity, community and indigenous rights laws are also being developed, which could see a broader range of rights-based approaches offering protections for indigenous and local communities, and over TK.

Drawing on the experiences of different countries throughout Asia, this paper suggests a range of potential components and elements that can be introduced into sui generis laws for PVP and TK. For simplicity, throughout the paper the main recommendations of each section have been summarised for consideration. Namely, countries might extend PVP coverage to cover domestic or extant varieties and farmers’ varieties (including both local and wild). They may wish to explicitly detail requirements for access to genetic resources, as well as benefit sharing arrangements arising out of their utilisation and commercialisation. Countries will need to carefully consider how to equitably distribute funds or other non-monetary benefits via appropriately administered funds, directly to communities (where the variety has a limited distribution), or by establishing beneficial projects for farmers. A range of other incentives could be offered (as part of a sui generis law or separately) by the government or other projects to actively promote the breeding, development and consumption of domestic, local and wild varieties. These could include government support of research and breeding programmes, support of traditional seed exchange networks, providing standard labelling and indicative marks, establishing “protected commons”, or by targeting consumers.

Prior informed consent procedures provide an important process for the respect of sovereign state control over genetic resources, as well as for local community or farmer control. Countries could explicitly detail elements such as those in the Bonn Guidelines (competent authorities, timing and deadlines, specification of use, procedural aspects, and mechanisms for consultation), or develop their own procedures to assure transactions are made under mutually agreed terms.

Additionally, treaties such as the International Treaty on Plant Genetic Resources for Food and Agriculture, and laws in countries such as India, provide impetus for the protection of farmers’ rights. These laws explicitly allow farmers to save, use, sow, resow, exchange, share, or sell their farm-saved seed. Sui generis laws may include elements for the protection of traditional agricultural knowledge, as well as the inclusion of farmers in decision-making and policy-making. Other elements which are relevant to farmers’ rights might include the restriction of potentially harmful technologies, and technologies contrary to the maintenance of public order. In India, for example, Genetic Use Restriction Technologies (GURTS) have been restricted by law. Deceptive or misleading marketing practices may also impinge upon farmers’ rights to food sovereignty, and such practices have been targeted by PVP laws in India and Vietnam.

It is likely that the protection of TK cannot be achieved through any singular means. Because we are generally referring to biodiversity-related TK here, the protection of genetic resources often entails protection of TK either explicitly or implicitly. Therefore a combination of the above components (i.e. a disclosure of source/origin requirement, ABS measures, PIC, promotion of local and domestic innovations, and farmers’ rights provisions) will have cumulative effects towards TK protection and promotion. Additional measures could include having accessible and clear databases and registries containing information on genetic resources, their distribution, associated TK, and potentially even associated customary protocols. The documentation or at least recognition of customary protocols could help strengthen community and indigenous rights, as could more explicit legal assertions such as those in the Philippines.

Countries may wish to draft different sui generis laws for PVP and TK protection. Indeed, a one-size-fits-all law may be inoperable or dysfunctional by attempting to resolve too many concerns. Countries also need to recognise that over- regulating agricultural genetic resources may have the negative consequence of discouraging innovation, and may be contrary to the historical interdependence between countries regarding the sharing of germplasm. National authorities will need to balance these factors against desires to ensure sovereign control of biological resources. Therefore a careful selection of the most pertinent sui generis components and elements would be prudent, in order to balance the promotion of agricultural innovations and the protection of broader public interests.

National authorities should continue to closely watch the regulatory development of PVP and biodiversity laws, particularly in India and Thailand. Both these countries are on the verge of advancing the implementation of sui generis laws, which has been a considerable challenge to date. The Thai PVP law (favouring liability rather than exclusive property protections) in particular presents a model which has fewer substantial administrative burdens, and would be suitable for most developing countries in Asia.