Scope of protection

Despite the seemingly diluted definition for determining both novelty and distinc-tiveness, the scope of breeders' rights, including the term, remains equivalent to that of IPRs. Breeders' rights extend by virtue of art. 14(5)(a) to the protected variety and 'varieties not clearly distinguishable' from the protected variety (UPOV, 1991). Article 14(5)(b), however, extends breeders' rights to 'essentially derived varieties', which are defined as predominantly derived either from the initial variety or from another variety that is predominantly derived from the initial variety and is clearly distinguishable from the initial variety. In essence, breeders' rights extend to clearly indistinguishable varieties and also to clearly distinguishable varieties derived from the initial variety. The breeders' rights over fruit X include rights over fruit X itself, and over clearly indistinguishable varieties or derivatives of fruit X. Assume that farmer F, using the art. 15 personal experimentation exception, derives fruit Y from fruit X, where fruit Y is clearly indistinguishable from fruit X. Then, the farmer derives another variety, pea Z, from fruit Y. Pea Z is clearly distinguishable from both fruit X and fruit Y. The breeders' rights under UPOV extend to the clearly indistinguishable varieties like fruit Y provided it is derived from fruit X. Breeders' rights also extend to varieties like pea Z that are clearly distinguishable from fruit Y and fruit X. Thus, a breeder can claim rights of other farmers' or breeders' experimented varieties even if such varieties are clearly distinguishable from the protected variety (UPOV, 1991, art. 14). Considering that plants essentially derived from genetic materials are protected as hybrids, it is ironic that plants essentially derived from the hybrids are not entitled to new protection, even if distinguishable from the initial variety, but instead fall within the scope of breeders' rights.

The lack of appropriate limitations under UPOV further broadens the scope of breeders' rights. Article 15 discusses two types of exceptions to breeder's rights: compulsory and optional (UPOV, 1991). The compulsory exceptions include acts done for private, non-commercial and experimental purposes. Breeders can override even these limited exceptions by conditioning initial access to the protected variety on forfeiture of these rights. Article 14(5), under which varieties 'essentially derived' either from the initial variety or its first generation fall within the scope of breeders' rights, further limits the scope of the experimental purposes exception

(UPOV, 1991). In effect, acts done for experimental purposes do not amount to infringement. However, if the acts done for experimental purposes on a protected variety result in another variety, the breeder gets the rights over that variety even if it is clearly distinguishable from the initial variety. Furthermore, the exceptions meant for private and non-commercial use have minimal benefits. That is, farmers generally plant protected varieties to commercially capitalize on higher yield. Considering this, farmers' benefits will be marginal from the yield if it cannot be commercialized. In the context of agricultural subsidies, the fourth section of this chapter argues that the operation of the exception becomes inconsequential to farmers.

The broad scope of breeders' rights in UPOV has resulted in a correspondingly narrow scope of farmers' rights. For example, UPOV 1978 did not embody detailed limitations on farmers' rights. UPOV 1991, however, limits farmers' rights to save seeds for replanting only within their own holdings. Furthermore, art. 15 limits the governments' ability to provide for farmers' rights. Governments can provide farmers' rights 'within reasonable limits and subject to the safeguarding of the breeder's legitimate interests' (UPOV, 1991, art. 15(2) ). The art. 15 language in UPOV provides primacy to breeders' rights and derogates farmers' rights. The limited scope of art. 15 prevents governments from making concessions to farmers towards balancing welfare with trade. Such a balance is especially important for farmers in the Third World who belong to the poorer societal classes. The public interest exception detailed in art. 17 is the only limitation on breeders' rights (UPOV, 1991). It is unclear whether a welfare issue arising from the effect on farmers alone could qualify as a public interest requirement, even though a substantial portion of the population may be dependent on agriculture.

Similarly, breeders' rights under UPOV 1978 extended to 'production for commercial marketing, offering for sale, marketing; extensive protection may be agreed' (art. 5(1) ). UPOV 1978 also states that '[authorisation by the breeder shall not be required either for the utilisation of the variety as an initial source of variation for the purpose of creating other varieties or for the marketing of such varieties' (art. 5(3) ). Correspondingly, however, UPOV 1991 extends breeders' rights to 'harvested material, produce from the harvested material, essentially derived varieties, varieties not clearly distinguishable, [and] varieties that need repeated use of the protected variety'.

Ultimately, UPOV treats farmers' rights as negotiated exemptions of breeders' rights (Pegu, 2002). The increasing scope showcases UPOV's inability to balance breeders' rights with farmers' rights. Since developing nations house more small farmers, the inefficiency from a system like UPOV that does not balance breeders' rights with farmers' rights can result in increased welfare issues, thereby impeding countries from attaining social and economic goals.

The only UPOV restriction on breeders' rights exists under the public interest exception of art. 17 (UPOV, 1991). The term 'public interest' is undefined. UPOV does not indicate what the term is and who determines when public interest is affected. Reading the terms of the Doha Declaration into public interest by virtue of TRIPS may enable countries to determine when they may invoke the exception. Even so, it is in the interest of the member states to either define or appropriately clarify constituents of the public interest exception. Critics may argue that, should the necessity to define public interest arise in the future, countries have the right to take the issue to the WTO Panel for settlement of disputes for failure to appropriately implement art. 27.3. The necessity to resolve disputes in an international forum in an emergency is not per se a demonstration of inefficiency. At the very minimum, however, clarity on the constituents of the exception would help developing nations balance breeders' rights with other vital national interests. Moreover, leaving the definition of public interest to the predilections of a WTO Panel is bound to create dissatisfaction among member states. If a public interest emergency is at stake vis-à-vis food rights, a WTO panel may be ill-equipped to take over the sovereign responsibility of deciding whether there is in fact such an emergency. A WTO Panel may also be a grossly inadequate forum to supersede sovereign determination of public interest emergency considering that abundance is the source of problems in developed nations compared with deprivation in developing nations. The task of the WTO Panel to appreciate and understand the unique ramifications of the national needs of a member state may be challenging.

Determining the limitations of breeders' rights and defining public interest is important to avoid the maladies developing nations previously faced with the pharmaceutical patent issue. With respect to the debate on pharmaceutical patents, the term 'national emergency' in art. 31 of TRIPS was left undefined. Article 31 of TRIPS provides for compulsory licensing of pharmaceutical patents 'in the case of a national emergency, or other circumstances of extreme urgency or in cases of public non-commercial use' (TRIPS, 1994). When developing nations like South Africa, Thailand and Brazil attempted to invoke the national emergency exception in art. 31 of TRIPS, debate arose regarding interpretation of the term (TRIPS, 1994). Attempts by developing nations to use the right to compulsorily license patents were met with resistance (Marc, 2001). Developed nations argued that the level of threat to public health was not necessarily a national emergency as contemplated under TRIPS (Ford, 2000; Marc, 2001). The road to the WTO to define national emergency proved to be time-consuming and expensive for developing nations. South Africa first requested a price reduction for pharmaceuticals in 1996 (Cooper et al., 2001). After 5 years, in 2001, the Doha Declaration attempted to clarify the rights of the developing nations under TRIPS (Doha, 2001). Meanwhile, distinct suffering in terms of resources, human lives and national health occurred in the countries involved. Most importantly, by the time the WTO recognized the issues developing nations faced, the southern regions of Africa accounted for approximately 25 million, or approximately 70%, of the world's human immunodeficiency virus (HIV)-infected patients (IIPI, 2000). In the face of a public interest situation, the time and effort that would have to be invested to get a clarification of the exceptions from the WTO may be better used to tackle the situation at hand. In the case of the dispute with pharmaceutical patenting, the time taken to resolve the dispute itself proved to be a detriment. Resolving or clarifying definitional ambiguity in international conventions increases the economic efficiency of its functioning by saving time and other resources that would otherwise be invested. It is in the interest of developing nations to avoid a similar situation in UPOV. The pharmaceutical patents dispute exemplifies the need for term clarifications under UPOV for developing countries. Importantly, the issue with the pharmaceutical dispute highlights that developing nations need to be aware that under a much higher standard (national emergency standard) there was substantial resistance to limitations on rights.

The difficulties the European Technical Board of Appeal, established under the EPC, faced in interpreting the 'morality' exception demonstrate the complexities that arise from introducing unclear exceptions to rights. In Plant Genetic Systems v Greenpeace, Ltd. (Greenpeace, 1995), the Technical Board of Appeal (hereinafter Board) scrutinized the meaning of the morality exception to art. 53(a) of the EPC (EPC, 1975). In discussing the term morality, the Board focused its analysis on 'conventionally accepted standards of conduct pertaining to European culture' (Greenpeace, 1995). There are, however, no conventionally accepted European standards of conduct. Although EPC's ruling on the meaning of morality has little relevance to interpretation of the term 'public interest' in UPOV, it demonstrates the ambiguities that can arise from introducing unclear exceptions. The subjectivity will almost always be detrimental to the interests of developing countries because they are more likely to use the public interest exception. With UPOV, if developing nations use the exception under art. 17 to limit breeders' rights in public interest, a disagreement similar to the pharmaceutical patent dispute may arise with respect to the definition of public interest. There is no guarantee that the developed and the developing nations will necessarily have consensus on what amounts to 'public interest.'

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