In This Article Africa and Intellectual Property Rights for Plant Varieties

  • Introduction
  • Monographs: Historical Analysis of Intellectual Property Rights for Plant Varieties
  • Edited Books: Intellectual Property Rights for Plant Varieties
  • The Africa Group and the African Model Law
  • Case Studies around Africa

International Law Africa and Intellectual Property Rights for Plant Varieties
by
Titilayo Adebola
  • LAST MODIFIED: 22 April 2020
  • DOI: 10.1093/obo/9780199796953-0210

Introduction

The entry into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on 1 January 1995 reversed Africa’s relationship with intellectual property rights for Plant Varieties. Except for Kenya, South Africa, and Zimbabwe, no other African country had intellectual property rights systems for plant varieties before TRIPS. However, the obligation set out in Article 27.3(b) of TRIPS for all World Trade Organization (WTO) members to protect plant varieties through patents, an effective sui generis system, or a combination of systems, heralded revisions to the intellectual property laws and policies on the continent. Africa’s response to Article 27.3(b) of TRIPS was the Organization for African Unity (now African Union—AU) African Model Law for the Protection of the Rights of Local Communities, Farmers, and Breeders, and for the Regulation of Access to Biological Resources (African Model Law), adopted in 2000. Grounded on the dynamic social, economic, and political realities in Africa, the African Model Law seeks to balance small-scale farmers’, farming communities’, and commercial plant breeders’ interests. The African Model Law rejects patents for plant varieties and the wholesale adoption of the 1991 version of the International Convention on the Protection of New Varieties of Plants (UPOV). Instead, it presents a TRIPS-compliant model sui generis option that provides for access and benefit-sharing principles from the Convention on Biological Diversity (CBD), farmers’ rights from the International Undertaking on Plant Genetic Resources for Food and Agriculture (IUPGRFA), and plant breeders’ rights from UPOV 1978 and UPOV 1991. Despite the commendable efforts at creatively designing the Model Law and its historical significance as an African-rooted response to the international debates on the overlapping and conflicting international treaties for plant varieties, the Model Law failed to gain traction in Africa. No African country has adopted it. On the contrary, there is increasing pressure through a coalition of Global North countries, international organizations, and multinational firms for African countries to adopt UPOV-1991-styled plant breeders’ rights systems.

WTO, CBD, Nagoya Protocol, ITPGRFA, and UPOV Resources

As a useful starting point, the partially overlapping and nonhierarchical institutions and instruments that make up the international intellectual property rights architecture for Plant Varieties provide access to a wide range of useful historical and contemporary documents. The main institutions and instruments are as follows: (i) WTO and TRIPS, adopted 15 April 1994, entered into force 1 January 1995; (ii) United Nations and CBD, adopted 5 June 1992, entered into force 4 June 1993; (iii) United Nations and Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol), adopted 29 October 2010, entered into force 12 October 2014; (iv) United Nations and International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), adopted 3 November 2001, entered into force 29 June 2004; and (v) International Union for the Protection of New Varieties of Plants and UPOV Convention, adopted 2 December 1961, entered into force 10 August 1968, revised 10 November 1972, 23 October 1978 and 19 March 1991. WTO-TRIPS has several web pages dedicated to Article 27.3(b) of TRIPS. These pages are excellent sources for WTO members’ discussions on the pending review of Article 27.3(b) of TRIPS (as provided in the last subparagraph of the article), and the relationship between TRIPS and other international treaties. The webpages of the UN CBD, Nagoya Protocol, and ITPGRFA are excellent sources for updates on members’ submissions, research documents, educational materials, and interactive courses. Similarly, the webpages of UPOV are excellent sources for both dated and up-to-date documents about the organization, including seminars, symposiums, meetings, courses, and cases. While these organizations and treaties cover related subject matters, the differences in documents generated and disseminated reflect their divergent mandates. This section is divided into the following subsections: WTO: TRIPS, United Nations: CBD, Nagoya Protocol and ITPGRFA, United Nations: ITPGRFA, and UPOV: UPOV Conventions.

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