Background

The creation of legal regimes to protect exclusive intellectual property rights over new plant varieties is not a recent phenomenon. National laws that recognise intellectual property for plant varieties originated decades ago in North America and Europe. The first of these laws took the form of a specialised plant patent regime, which the United States of America introduced in the form of the Plant Patent Act in 1930. A few decades later, laws to protect plant varieties as intellectual property appeared in the form of national plant breeders’ rights regimes in a number of developed countries, initially in Europe and later in other regions. A major motivation for these developed countries to embrace plant breeders’ rights regimes was the advent of the 1961 Convention of the International Union for the Protection of New Varieties of Plants (the UPOV Convention). Mainly after the mid-1990s, an increasing number of developing and least-developed countries in Asia as well have begun either to draft or implement national legislation to grant intellectual property for plant varieties, albeit in ways that are distinct from how developed countries of North America and Europe have conceptualised their national plant breeders’ rights laws.
 
Challenges and developments in Asia

In Asia, there are countries that have already introduced intellectual property laws for plant varieties (e.g., India, Indonesia, Malaysia, Pakistan, Thailand, the Philippines, Cambodia, and Laos); and countries that are in the process of drafting or debating such laws (e.g., Nepal, Sri Lanka, Timor-Leste, and Myanmar).
 
Although these Asian countries are at different levels of development, they face a number of common challenges in their attempt to develop or implement a national law to protect plant varieties as intellectual property. A key common challenge is that they must identify ways to address a diverse set of economic, social, and environmental priorities. These priorities include: the greater involvement of public and private seed entities in the breeding of plant varieties that ensure improved yields and that provide better resilience to pests, diseases, and climate change impacts; the conservation, sustainable use, and development of native plant genetic diversity; and the protection of the rights of local and indigenous farmers who rely on customary forms of use, exchange, and circulation of native plant varieties as well as varieties that adapt to local growing conditions.
 
Another major common challenge that Asian countries face in relation to the implementation of plant variety protection laws relates to the development of policy strategies to use intellectual property as a tool to protect domestic interests and, at the same time, address a range of obligations under relevant international laws. The international treaties that require these countries to address diverse obligations for the governance of plant varieties include: the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); the 1991 UPOV Convention, the 1992 Convention on Biological Diversity (CBD); the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol); and the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (the Plant Treaty).
 
Because these international instruments have a major influence on the governance of the breeding, development, and circulation of plant varieties in Asia, over the past two decades, debates about how to protect plant varieties as intellectual property have evolved substantially in several Asian countries. The initial focus of these debates centred on the legal obligation created by the TRIPS Agreement, mainly in the context of the need to introduce a national law to protect plant varieties. One of the major outcomes of these debates was to suggest Asian countries to conceptualise a sui generis system that is distinct from UPOV-compatible plant breeders’ rights laws of developed countries such as Australia, the United States of America, and a number of European countries.
 
It is evident that since the 1990s to now, the inherent logic behind the proposition to develop unique, sui generis regimes in Asia is based on the concern that UPOV-compatible plant breeders’ rights frameworks only reward the innovators of new plant varieties. More specifically, the concern is that conventional plant breeders’ rights schemes do not take into consideration how the CBD, the Nagoya Protocol, and the Plant Treaty endeavour to protect the rights of local and indigenous farming communities, for instance, by requiring users (plant breeders) to share the benefits accrued from the exploitation of plant germplasm provided by local and indigenous farming communities. A key concern is also that UPOV-compliant plant breeders’ rights schemes restrict farmers’ ability to continue their customary practices of saving, using, exchanging, and selling the seeds or other propagating material of plant varieties.
 
Although the initial focus of the debates about intellectual property for plant varieties was centred on the obligations under TRIPS and other international agreements, recent debates in Asia have advanced to also consider a number of pertinent additional issues and concerns. These include:
 

• What challenges have Asian countries experienced when they have drafted and implemented sui generis plant variety protection laws?
• Have these countries perceived any benefits from the implementation of their sui generis plant variety protection laws?
• What could be the implications for these countries’ sui generis laws, agricultural sectors, and customary farming practices if they join the UPOV Convention due to bilateral, regional, and trans-regional trade agreements?
• And, how do other national laws – such as seed laws or policies – may complement or complicate the implementation of sui generis plant variety protection laws in these countries?

 
Because most sui generis laws in Asian countries do not only recognise protections for new plant varieties, recent debates about plant variety protection laws in Asia also focus on opportunities and challenges to grant intellectual property protections for different other categories of plant varieties. These include protections for farmers’ plant varieties, traditional plant varieties, wild plant species, and plant varieties which have been essentially derived from intellectual property-protected varieties.
 
Below is a brief summary of some key issues that should be taken into consideration when Asian countries endeavour to develop and/or implement the laws to protect plant varieties as intellectual property.
 
The spread of the UPOV Convention model in Asia

The UPOV Convention model of plant breeders’ rights has influenced several mainland Southeast Asian countries, namely Cambodia, Laos, Myanmar, Malaysia, and Thailand. A number of factors have impelled these countries towards membership in UPOV. On the one hand are ‘hard’ factors, which primarily are embodied in the formal legal obligations that various bilateral, regional, and trans-regional free trade agreements contain. On the other are ‘soft’ factors, evidenced in the pressure that various actors, including representatives of private industry and government institutions, have exerted on lawmakers in mainland Southeast Asian countries. Following an analysis of the ‘hard’ and ‘soft’ factors that have influenced the decisions of Southeast Asian lawmakers surrounding the desirability of the UPOV model to govern plant varieties as intellectual property, it is recommended that these countries consider a strategy of ‘compliance with resistance.’ This approach would enable governments to comply with UPOV and simultaneously to experiment with alternative legislative and regulatory imaginaries. Doing so would address diverse national priorities, including those related to protecting customary farming practices, assuring sustainable food production, and conserving agricultural biodiversity.
 
Essentially derived varieties: A workable compromise against free riding breeders?

A number of issues and concerns could be relevant for countries in Asia and other world regions to address when they incorporate protections for essentially derived varieties into their domestic intellectual property laws. The extension of plant breeders’ rights to cover essentially derived varieties was intended to limit the possibility that later plant breeders could unfairly free ride on the time and investments of another, earlier breeder. However, one of the flaws in the UPOV 1991 conceptualisation of essentially derived varieties is the lack of clarity in relation to certain key terms. An exploration of UPOV guidance documents substantiates the meaning of these terms, towards the aim of understanding what essentially derived varieties are, and the possible implications that protecting these varieties as intellectual property could have for plant breeding, varietal innovation, and the rights of relevant stakeholders.
 
Plant variety protection laws of Indonesia, Malaysia and the Philippines: Implementation trends and future prospects

The governments of Indonesia, Malaysia and the Philippines have innovatively developed and implemented sui generis laws that are distinct from the UPOV-compatible plant breeders’ rights model law. The innovativeness of the sui generis plant variety protection laws of these countries is evident from how these laws have provided for the registration and protection of different types of plant varieties as intellectual property, and not just breeders’ varieties . It is a remarkable development that irrespective of several years of the implementation of their plant variety protection laws, the seed system that is managed by public and private seed entities in these countries has not been able to drive out farmers’ seed systems or restrict customary farming practices of seed saving, use, exchange, and sale. In other words, the public and private sector-driven seed system and farmers’ seed systems continue to coexist in these countries to meet the needs of plant breeding, seed security, and food production. Because Indonesia, Malaysia and the Philippines are likely to join the UPOV Convention, it is however uncertain how possible future reforms to their national plant variety protection laws could impact on their farmers’ seed systems.
 
A fresh look at the protection of ‘domestic’ and ‘wild’ plant varieties in Thailand

Diverse social actors participated in the lawmaking process that created the sui generis Thai Plant Variety Protection Act B.E.2542 (1999). This regime converges with and diverges from the UPOV Convention model. A unique feature of the Thai plant variety protection law is that it provides for the protection of ‘local domestic,’ ‘general domestic,’ and ‘wild’ plant varieties. The way categories of ‘local domestic,’ ‘general domestic,’ and ‘wild’ plant varieties have been conceptualised in the Thai law, however, reveals that there are certain ambiguities and inconsistencies in these framings. Such ambiguities and inconsistencies could be one of the reasons why not a single local domestic plant variety has obtained legal protection in Thailand, despite the fact that the law has been in force for approximately two decades. It is suggested that Thai lawmakers address the ambiguities and inconsistencies associated with the protection of domestic and wild plant varieties in the country. One way that this could be done would be to foment the registration of local domestic varieties by creating separate criteria for protection that would be easier for farmers to meet. It is also recommended that Thai lawmakers avoid aligning the national plant variety protection framework with the 1991 UPOV Convention, unless the government also enacts parallel reforms that more effectively would protect ‘domestic’ and ‘wild’ plant varieties, including varieties that are being conserved and used by Thai farmers.
 
Opportunities and challenges created by the Plant Variety Protection and Farmers’ Rights Act in India

India is one of the first developing countries to introduce a TRIPS-compatible sui generis law on plant variety protection. In 2001, the country introduced the Protection of Plant Varieties and Farmers’ Rights Act to address its obligations under TRIPS, as well as the CBD and the Plant Treaty. A number of opportunities and protections are available under the Act, for example, for the protection of different categories of plant varieties that have been developed by farmers, public researchers, and private entities. In the course of implementing this Act, the Plant Variety Protection and Farmers’ Rights Authority in India has already granted 3,504 plant variety rights certificates to a number of public research organisations, private seed companies, and farmers. Furthermore, the Act has generated a number of additional opportunities for Indian stakeholders, for example, through the mobilisation of the National Gene Fund and various programmes to reward farmers for their role as conservers and developers of plant genetic resources. Despite these opportunities, there exist several challenges that continue to impede the full realisation of the goals of the plant variety protection law. It is suggested that lawmakers take measures to address the various challenges that agriculture in India continues to face, which include the need to encourage the use of protected farmers’ varieties for breeding and benefit sharing purposes, to enable farmers to commercialise their protected plant varieties, and to harmonise the Plant Variety Protection and Farmers’ Rights Act with the Indian Seed Act.
 
Policy, politics, and implications of Pakistan’s Plant Breeders’ Rights Act

Conflicts between private seed entities and civil society groups and certain political factors forced Pakistan to take nearly 17 years to introduce the Plant Breeders’ Rights Act. This new legal regime could have important implications for diverse actors in the Pakistani agricultural sector, including private companies, public institutions, and local farmers. In attempting to identify such implications, a deeper investigation into areas of convergence and divergence between the Plant Breeders’ Rights Act and the UPOV Convention, and between the Plant Breeders’ Rights Act and the national 2015 Seed (Amendment) Act is needed. Also, tensions between the seed and plant breeders’ rights laws, which are two different, yet inter-related regimes, need to be resolved through subordinate legislation and the institutional infrastructure that will be developed to implement the plant breeders’ rights and seed laws.
 
The National Seed Policy of Timor Leste: Laying the foundation for the regulation of plant varieties as intellectual property

The Timorese government and other national stakeholders have conceptualised the model for plant variety protection in the country’s National Seed Policy. The formation of the National Seed Policy in Timor Leste unfolded in 2013 and several domestic factors led the National Seed Policy Working Group to ensure that certain key provisions are made for the conservation and sustainable use of plant genetic resources; the registration of local plant varieties; and the protection of breeders’ and farmers’ plant varieties as intellectual property. Because it is important for Timor Leste to safeguard the rights of farmers and other relevant stakeholders, local farming communities and civil society organisations need to work together to ensure that the National Seed Policy is implemented to ensure the vitality of agriculture and to protect the interests of both breeders and farmers.
 
Recognising the importance of farmers’ plant varieties in Sri Lanka

It is in the interest of Sri Lanka to incentivise farmers to obtain legal protections for the plant varieties that they have been conserving, using, and cultivating for generations. However, in the Sri Lankan Draft Bill on the Protection of Plant Varieties (Breeder’s Rights), no effort has been made to capitalise on different options available to grant protections for farmers’ varieties. There are two potential approaches that Sri Lanka could follow to protect farmers’ varieties in the Draft Bill on the Protection of Plant Varieties (Breeder’s Rights). The first approach would be to create a ‘dual system’ that recognises intellectual property protections for both breeders’ and farmers’ plant varieties. The second approach would be to protect farmers’ plant varieties based on non-proprietary principles. In other words, under this approach, farmers’ plant varieties would only be protected to prevent possible misappropriation by third parties, for example, through the CBD/Nagoya Protocol-based system of access and benefit sharing, and not by any exclusive plant variety rights.
 
What does it mean to protect plant varieties?: Lessons from India, Thailand, Malaysia and Nepal

Farmers’ varieties evolved as a legal construct in ‘UPOV plus’ plant variety rights laws of India, Thailand, and Malaysia. Nepal’s approach to protect farmers’ varieties as intellectual property is, however, different than that of India, Thailand, and Malaysia. In Nepal, farmers’ understandings of different categories of native, local, traditional, and indigenous plant varieties formed the basis for the development of the notion of farmers’ varieties into a legal concept. This is evident from how a new definition of farmers’ varieties has been included in the Draft Bill on Plant Variety Protection and Farmers’ Rights. Despite this, the case study of the ‘Jethobudho’ rice cultivar that is traditionally grown by local farmers in the Pokhara valley of Nepal reveals that there exists a number of questions and concerns in relation to the conceptualisation of farmers’ varieties as intellectual property. These questions and concerns range from whether farmers have the ability to leverage the necessary resources to develop and protect farmers’ varieties as intellectual property, to the implications that participatory plant breeding programmes between farmers and non-farmer entities may have for obtaining intellectual property rights for locally-bred varieties. Of equal importance are other questions and concerns, such as: should farmers’ varieties be subject to any protection period, or should these varieties be in the public domain? What kinds of exclusive rights do farmers need to commercialise their varieties? What are the implications of consumer-farmers’ rights to save, use, exchange, and sell the seeds of protected farmers’ varieties? What are the access and benefit sharing obligations of the owners of farmers’ varieties in cases where they use other farmers’ local varieties as source germplasm? And, should the rights of consumer-farmers to receive compensation and to access protected varieties through compulsory licensing apply to farmers’ varieties?
 
 
This article was prepared by Dr. Kamalesh Adhikari, Research Fellow, Australian Research Council (ARC) Training Centre for Uniquely Australian Foods and Member of the ARC Laureate Project ‘Harnessing the Potential of Intellectual Property to Build Food Security’, TC Beirne School of Law, The University of Queensland.
 
 
The article is based on the introduction chapter of the book Intellectual Property Law and Plant Protection: Challenges and Developments in Asia. The book provides a detailed and critical account of the origin, evolution, and implementation of intellectual property laws for plant varieties in Asia. In so doing, the book, which is edited by Dr. Kamalesh Adhikari and Dr. David J. Jefferson, undertakes a comprehensive socio-legal investigation into a number of developments and challenges concerning the governance of plant varieties in two types of Asian countries: countries that have already introduced intellectual property laws for plant varieties (e.g., India, Indonesia, Malaysia, Pakistan, Thailand, the Philippines, Cambodia, and Laos); and countries that are in the process of drafting or debating such laws (e.g., Nepal, Sri Lanka, Timor-Leste, and Myanmar).
 
For more information about the book, visit https://www.crcpress.com/Intellectual-Property-Law-and-Plant-Protection-Challenges-and-Developments/Adhikari-Jefferson/p/book/9780367180997.