To Sow or Not to Sow: Dilemmas in Creating New Rights in Food

Abstract

This paper examines the obligations in TRIPS with respect to introducing plant breeders' rights (PBRs) in developing and least developed nations. Furthermore, the article examines the effect of introducing plant variety protection in the context of other policies that impact agriculture. Without addressing directly whether protection of PBRs is justified, this paper makes two arguments. First, the flexibility embedded in Article 27.3 of TRIPS to adopt sui generis systems of protecting PBRs will be defeated if UPOV is deemed to be either a mandatory requirement or if UPOV establishes the minimum standards for a sui generis PBRs system because UPOV is an ineffective mechanism for protecting plant varieties. Second, notwithstanding UPOV, agricultural subsidies will offset any benefits likely to flow to nations introducing PBRs. The effect of agricultural subsidies can be detrimental to the prevailing economic conditions in nations that newly introduce plant variety protection. The immense shortage of food in some developing nations creates the need to be cautious before introducing any mechanism that may upset the status quo. The paper concludes that for developing nations to accrue meaningful benefits, reforms in agricultural subsidies should precede introduction of PBRs. Developing nations, considering the 2005 deadline for TRIPS compliance, should seek an extension of the transitional period for compliance with the plant variety protection requirement under Article 27.3 until completion of the negotiations of the Cancun issues on agriculture.

Keywords: intellectual property, agriculture, plant vareity protection, agricultural subsidies

JEL Classification: N50, Q17, Q18, K32, K39