|Keywords:||Access to genetic resources; Farmers' rights; Patent law; Plant breeders' rights; General Agreement on Tariffs and Trade (GATT).|
|Correct citation:||nn. (1998), "Editorial: Trips and the legal protection of plants." Biotechnology and Development Monitor, No. 34, p. 2-3.|
The legal protection of plant material can be approached from different
angles: On the one hand, plant breeders demand remuneration for their development
of new cultivars. Since the beginning of this century, a plant variety
protection system has developed in a process closely related to advancements
in plant breeding. With the advent of modern biotechnology, more exclusive
protection has been sought, and in the middle of the 1980s, the first patents
on plants were granted.
On the other hand, farmers and many local communities all over the world see this approach as contradictory to their needs. For instance, in many farming communities in developing countries there is no formal distinction between the use and the improvement of plant materials. Local communities often depend on the use as well as the conservation of biodiversity. For them, the legal protection of plants is not primarily intended as a private claim on plant materials but as a way of maintaining their communal use.
The GATT Uruguay Round in 1994 set a milestone on the road towards the privatization of living matter. It puts developing countries under the obligation to protect plant varieties by patents or by an alternative sui generis system. As the article by Seiler points out, the wording of the TRIPS Agreement leaves room to manoeuvre for different sui generis options.
However, the outcome of such systems is not only a question of juridical interpretation. Sui generis systems first of all have to be established at a national level. In this context they will have to satisfy different interests, for instance those of domestic seed and biotechnology industries, farmers and local communities, as well as with regards to the use and conservation of biodiversity. The approach for protecting plant materials therefore depends on the power relations between different actors and their abilities to substantiate their goals. At the same time, this discourse is also embedded in a global context.
One important factor could be the changing situation in Europe. When the TRIPS Agreement was adopted in 1994, the far reaching demands of the USA and Japan to establish patent protection for plants were tempered by the European position. In Europe plant varieties can be excluded from patenting. However, in the new European biotechnology patent directive this exclusion is undermined. With the adoption of this directive, which is expected in 1998, it is very likely that Europe will give up its mediating position.
Another important factor is the establishment of worldwide alliances. For instance, the biotechnology and the seed industry try to coordinate their lobbying activities towards a more rigid protection of inventions related to plant materials. At the same time, NGOs which are opposing life patents have unified their position in the "Thammasat Resolution" (see the article by van Wijk). These groups define sui generis rights independently of intellectual property regimes promoted by the TRIPS Agreement.
Obviously, "sui generis system" is a term presently used for different purposes not only with regard to the TRIPS Agreement, but also to put forward demands for community rights. Community rights are also debated with regards to the FAO’ s concept of Farmers’ Rights and the rights of indigenous communities in the Convention of Biodiversity. At present, it is not clear how the evaluation of TRIPS will interfere with the negotiations of community rights in other international forums.
Developing countries need to prepare for the review of the TRIPS Agreement before it starts in 1999. They should create sui generis systems that are tailor-made for their specific needs. Will these systems comply with the TRIPS requirements or should they even be formulated opposing these requirements by an alternative approach? It remains to be seen to what extend developing countries can formulate a strategy to pursue their interests within the TRIPS Agreement.
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