New options for African countries regarding protection for new varieties of plants
The issues are examined for:
- UPOV Convention (1978 and 1991 Acts)
- TRIPS
- plant variety protection recommendations and the Convention on Biological Diversity
Further, the laws of some African countries are examined, namely:
- Kenya
- OAPI (Organisation Africaine de la Propriété Intellectuelle)
According to the TRIPS Agreement, a plant variety may be protected under a patent regime, a sui generis system, or a combined system. Developing countries are advised to implement the sui generis system as developed under the UPOV Convention, 1978 Act, because of the negative implications of patents if applied to plant varieties. However, since April 1999, this Act was closed to further accession after the coming into force of the UPOV Convention, 1991 Act. Kenya's legislation on plant varieties has implemented rules embodied in the 1978 Act, whereas the OAPI Agreement, through its Annex X relating to plant varieties, has followed the 1991 Act requirements.
To overcome the flaws in the existing systems of protection of plant varieties, some developing countries have developed, at regional as well as at national levels, hybrid systems that are based mainly on the CBD. Some provisions embodied in the UPOV Convention, 1978 Act, are likewise incorporated. The hybrid system provides for a simultaneous protection of both biodiversity and plant varieties.
Aware of the necessity of safeguarding the interests of traditional communities, local farmers and breeders, the Organization of African Unity set up a Model Legislation called "The African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources". Even though it is not binding on OAU Member States, it can serve as an authoritative reference when designing new laws relating to these matters. This Model has provided for a hybrid system. The guiding principles of the Legislation are prior informed consent and benefit sharing stemming from the commercial use of biological resources. This is a new option offered to African countries with respect to the protection of plant varieties. This system has the merit of balancing the interests of all players. It remains to be seen how African countries will implement, at the national level, the provisions embodied in this Model Legislation.
It is recommended that African countries design their plant variety protection laws in accordance with their needs and priorities, bearing in mind the international ramifications of such commitment. The African Model Legislation meets this criterion. If properly applied, this Model Legislation would enable the growth of the seed industry in these countries, and would induce investment from abroad. In this context, the system to be adopted must be fair and non-discriminatory.
[author]
Article first appeared in the The Journal of World Intellectual Property
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