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Intellectual Property Rights for New Plant Varieties

Introduction

Climate change will increase the importance of new plant varieties that can adapt to changing climactic conditions. This chapter analyzes intellectual property rights for plant varieties. Section 5.2 analyzes Article 27 of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights. Section 5.3 analyzes the UPOV Convention. Section 5.4 analyzes the Convention on Biological Diversity (CBD). TRIPS Article 27.3(b) requires WTO Members to protect plant varieties with patents, a sui generis system, or any combination thereof. The UPOV Convention and the CBD represent competing visions of what type of sui generis system might be appropriate. However, Sabrina Safrin argues that the combined effect of the two competing systems is to limit genetically based innovations and to create obstacles to international conservation and collaboration.[1]

The appropriate policy choices for WTO Members regarding IPRs for plant varieties will depend on the circumstances of each Member. For developed and middle-income countries with strong biotechnology industries and the financial capacity to pay for climate change adaptation, strong IPRs may be beneficial. They may be less beneficial for developing countries with less financial capacity to pay for adaptation, greater vulnerability to the effects of climate change, and a larger percentage of the population devoted to subsistence farming. However, the circumstances of countries change over time, and the effects of climate change are difficult to predict. As a result, policy choices that are appropriate for a specific country today might not be appropriate tomorrow. Against this backdrop of uncertainty, it is best to maintain flexibility regarding policy choices.

WTO Members do not agree on how to address IPRs for plant varieties. Japan and the United States argue that plant varieties should be protected to allow development of new technological solutions in the field of agriculture.[2] The African Group, Peru, Zimbabwe, and Kenya argue that the protection of plant varieties can have an adverse impact on food security, health, and rural development in developing countries, and fails to protect traditional knowledge systems.[3] Developed countries with a strong biotechnology industry generally have favored stronger IPRs for plant varieties. Developing countries generally have favored weaker IPRs, particularly countries with the greatest biodiversity or large numbers of subsistence farmers. Surprisingly, the relevance of climate change to this debate has not played a significant role in WTO negotiations.

  • [1] Sabrina Safrin, “Hyperownership in a Time of Biotechnological Promise: The InternationalConflict to Control the Building Blocks of Life” (2004) 98 AJIL 641.
  • [2] Note by the Secretariat, Review ofArticle 27.3(b). Paper IP/C/W/369/Rev. 1, revised March 9,2006,para. 45 (accessed August 20, 2011).
  • [3] Note by the Secretariat, Review of Article 27.3(b) para. 46.
 
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