The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) is particularly relevant for the realization of Farmers’ Rights due to its provisions requiring national legislation on patents and plant variety protection. Despite different opinions on how these provisions shall be interpreted, experience shows that there is much flexibility with regard to Farmers’ Rights.
The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) was adopted in 1994 as one of the three basic agreements on which the World Trade Organization (WTO) was built. The WTO came into force in 1995 and the TRIPS Agreement came into effect in 1996. The purpose of the TRIPS Agreement is to promote the effective and adequate protection of intellectual property rights as a means to reduce distortions and impediments to international trade and to promote technological innovation and its dissemination.
The most relevant provision with regard to Farmers’ Rights is Article 27.3 (b), which sets out that WTO members may exclude from patentability plants and animals as well as essentially biological processes for the production of plants or animals, but that they shall provide for the protection of plant varieties either by patens or by an effective sui generis system (a system of its own kind) or by a combination thereof.
There has been much debate on what this means in practice, inter alia because implementing this provision will in some way or the other affect farmers’ rights to save, use, exchange and sell farm-saved seed. Some have argued that countries would have to join UPOV (see below) to fulfill the requirement in this provision. Others have argued that a sui generis system could really be a system of its own kind, not needing to comply with UPOV. Meanwhile, history has proven that the latter is the case, as several countries have become members of the WTO, thus ratifying the TRIPS Agreement, without being UPOV members. Alternative plant variety protection systems have emerged in e.g. India, Thailand and Malaysia, all of which are WTO-members, but not UPOV-members. Interestingly, Norway as decided to remain member og UPOV 1978 and not to join UPOV 1991 Act, in order to safeguard a balance between farmers’ and plant breeders’ rights.
Article 27.3 (b) of the TRIPS Agreement is a clear expression of an ownership approach to genetic resources, as compared to a stewardship approach. The ownership approach under the CBD was to a large extent developed as a reaction to the ownership approach that took form under the TRIPS Agreement, when the two agreements were negotiated partly in parallel. This has been closely analyzed in the book Governing Agrobiodiversity – Plant Genetics and Developing Countries.
Text: Regine Andersen