3. PART III: OPTIONS AVAILABLE TO NATIONAL GOVERNMENTS UNDER EXISTING INTERNATIONAL IPR AGREEMENTS PROTECTING PLANT VARIETIES AND PLANT BREEDERS’ RIGHTS

3.1. Introduction

In order to identify the options available to national governments under international IPR agreements, this section begins by categorizing states according to the agreements to which they are parties. This classification scheme takes into account the fact that a state may be bound by more than one IPR-related treaty, a fact that may significantly limit its discretion. The section then identifies both the mandatory actions required of national governments in each category as well as the discretionary choices available to them. It also identifies trends in national laws which illustrate the manner in which states are complying with their particular set of international obligations.

3.2. Classification of states according to their international IPR obligations

The discretion enjoyed by states to shape their plant variety protection laws to balance the protection of IPRs against other societal concerns is dependent upon the international agreement or agreements to which they are parties. The following table identifies that discretion at a broad level of generality. It does so by listing the mandatory components of plant variety protection that a state must adopt depending upon whether it is a member of (1) WTO only; (2) WTO and the 1991 UPOV Act; (3) WTO and the 1978 UPOV Act; and (4) either the 1991 UPOV Act or the 1978 UPOV Act only; or (5) no IPR agreement relating to the protection of plant varieties.

Note that some developing states, by virtue of having ratified a "TRIPs plus" bilateral or regional trade or investment treaty, may be required to adhere to some or all of the provisions contained in either the 1991 UPOV Act or the 1978 UPOV Act, even if they are not members of UPOV itself. (See para. 2.3.1.6 above) Developing states that are parties to such "TRIPs plus" treaties should carefully consult the text of these agreements to determine the precise scope of their supplementary IPR obligations, including for purposes of applying the classification scheme set forth below. For example, a developing country that is a WTO Member but not a member of UPOV may nevertheless be required to adhere to all of the provisions of the 1991 UPOV Act by virtue of having ratified a "TRIPs plus" treaty. In such a case, the state would be obligated to implement the mandatory components of plant variety protection contained not only in TRIPs but also in the 1991 UPOV Act, and its discretion to balance the protection of IPRs against other competing policy objectives would be reduced accordingly.

Table 3 - Classification of states according to their international IPR obligations

Increasing levels of discretion ®

3.2.1. Cumulative treaty obligations

Table 3 reflects the well settled rule in international law that a state is bound by all of the international agreements to which it is a party, provided that the obligations in those agreements do not conflict with one another. Thus, for example, a state that is a party to a UPOV Act and also to the TRIPs Agreement must comply with its obligations under both treaties. Given that each treaty contains somewhat different but mostly cumulative and consistent rules concerning the protection of plant varieties, a state that is a party to both treaties will necessary have more extensive obligations to protect plant varieties and thus will enjoy concomitantly less discretion.

3.2.2. Conflicting treaty obligations

Where the provisions of two treaties are in direct conflict, the rule is far less settled. If two agreements relate to the same subject matter and the states parties to both agreements are the same, article 30 of the Vienna Convention on the Law of Treaties specifies that the agreement that is later in time is given effect. The obligations in the TRIPs Agreement are thus likely to prevail over any conflicting obligations in the 1978 UPOV Act, such as the ban on protecting varieties within the same genus or species with both a breeders’ right and a patent. (1978 Act, art. 2(1)) Because the 1991 Act entered into force in 1998 and TRIPs entered into force in 1995 (see paras. 2.2 and 2.3.1.5 above) it may be argued that the 1991 UPOV Act is the later-in-time agreement. However, it is unlikely that any conflicts issue will arise between the two treaties, inasmuch as nothing in TRIPs requires conduct that the 1991 UPOV Act forbids. (Such a conflict might arise, however, in the unlikely event that TRIPs were interpreted to impose more restrictive exclusions to breeders’ exclusive rights than the mandatory exclusions found in article 15 of the 1991 UPOV Act.) It can therefore be argued that the two treaty systems are fully compatible, with TRIPs merely augmenting the plant variety protection requirements of the UPOV Acts.

3.3. Identifying the level of discretion available to states in each treaty classification

In general, the discretion a state enjoys in limiting the scope of intellectual property protection provided to plant varieties increases as one moves from left to right across Table 3.

3.3.1. WTO and UPOV 1991 Act members

States that are members of both TRIPs and the 1991 UPOV Act have the least discretion. This designation in Table 3 currently applies to 27 nations: Australia, Austria, Belarus, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, Germany, Hungary, Israel, Japan, Kyrgyzstan, Latvia, Lithuania, the Netherlands, Moldova, Poland, Romania, Singapore, Slovenia, South Korea, Sweden, Tunisia, the United Kingdom and the United States of America.

3.3.1.1. Mandatory requirements

These 27 states must extend protection to all plant varieties, comply with TRIPs’ national MFN treatment obligations and adopt effective enforcement measures. (See para. 2.3.3.3 above) With regard to breeders’ rights, these states must adopt all of the exclusive rights contained in article 14 of the 1991 Act and summarized in Table 1. The adoption of these rights - (1) production or reproduction, (2) conditioning for the purpose of propagation, (3) offering for sale, (4) selling or marketing, (5) exporting, (6) importing and (7) stocking for any of these purposes - fully satisfies their obligation under TRIPs to protect varieties with an IPR. Finally, states that have agreed to these dual obligations must also comply with all of the other provisions of the 1991 Act, including its terms of protection and limitations on the breeders’ exemption and farmers’ privilege.

3.3.1.2. Options and implementation issues

A state whose plant variety protection laws are already in compliance with the 1991 Act needs to take only limited steps to comply with article 27.3(b) of TRIPs, including immediate protection of all varieties and extension of national treatment to all WTO Members. The most difficult hurdle is likely to involve enacting effective mechanisms for plant breeders to enforce their rights. However, far more detailed enforcement measures must be adopted for the other forms of intellectual property protected by TRIPs. A state may therefore choose to extend to breeders the same domestic enforcement opportunities that it is required to provide to the owners of other IPRs.

3.3.1.3. National implementation

In information submitted to the TRIPs Council in May 1999, the following states indicated that they had adopted plant variety protection laws modeled on the 1991 Act: Australia, Bulgaria, Members of the European Communities, Japan, Morocco, Poland, Romania, South Korea, South Africa, Switzerland and the United States of America. (Other states parties to both UPOV 1991 and TRIPs did not submit information to the Council.) Of the states adopting such laws, Morocco, South Africa and Switzerland had not ratified the 1991 Act. (WTO Doc. IP/C/W/273, pp. 8 and 9)

3.3.1.4. Bilateral IPR agreements and UPOV membership

A separate issue concerns whether WTO Members will continue to join UPOV after the entry into force of the TRIPs Agreement. Some commentators predicted that UPOV membership would stagnate as states capitalized on the greater discretion provided to them under the sui generis option of article 27.3(b). (Leskien & Flitner, 1997, p. 31) Since TRIPs entered into force in 1995, however, 28 nations have become parties to the 1978 or 1991 UPOV Acts. (States Parties to the UPOV, Status on 30 June 2004) The continued expansion of UPOV membership can be traced in part to the recent proliferation of "TRIPs plus" treaties. (See para. 2.3.1.6 above)

3.3.2. WTO and UPOV 1978 Act members

This designation in Table 3 currently applies to 24 nations: Argentina, Bolivia, Brazil, Canada, Chile, China, Colombia, Ecuador, France, Ireland, Italy, Kenya, Mexico, New Zealand, Nicaragua, Norway, Panama, Paraguay, Portugal, Slovakia, South Africa, Switzerland, Trinidad and Tobago and Uruguay. States in this category enjoy somewhat greater discretion as a result of the more limited protection of plant breeders’ rights contained in this earlier UPOV Act.

3.3.2.1. Mandatory requirements

States parties to both agreements must extend protection to all plant varieties, comply with TRIPs’ national and MFN treatment rules and adopt effective enforcement measures. They must also comply with all of the other 1978 Act requirements, including its eligibility requirements, terms of protection, exclusive rights and mandatory breeders’ exemption. As compared to the 1991 Act, however, breeders’ exclusive rights are more limited, terms of protection for varieties are shorter and exceptions and limitations are broader.

3.3.2.2. Options and implementation issues

States that become Members of the WTO after joining the 1978 UPOV Act and adopting laws to comply with that Act face a similar situation to states that are parties to both the WTO and the 1991 Act. To fully comply with TRIPs, these 1978 Act member states must modify their national laws to protect the four core requirements of article 27.3(b) and they must remove all provisions of their laws which impose a reciprocity requirement as a condition for protecting varieties of foreign breeders. In addition, states in this category may choose to modify their laws to incorporate some or all of the standards found in the 1991 Act without actually becoming a member of that Act. Their refusal to do so, however, does not violate article 27.3(b), inasmuch as the standards found in the 1978 Act satisfy their obligation to protect plant varieties with a sui generis IPR.

3.3.2.3. Trends in national laws

In information submitted to the TRIPs Council in May 1999, Canada, the Czech Republic, Hungary, Norway and New Zealand (the only states submitting information) indicated that they had adopted plant variety protection laws that complied with the 1978 Act. (WTO Doc. IP/C/W/273, pp. 8 and 9) At the time of these submissions, the Czech Republic and Hungary were members of the 1978 Act. They have since acceded to the 1991 Act.

3.3.3. 1991 or 1978 UPOV Act members only

There are few states outside of the WTO that protect plant varieties solely by virtue of being UPOV members. Only the Ukraine and Russia are currently in this category in Table 3, and both are observer governments with the WTO. These nations face a somewhat different set of international legal obligations.

3.3.3.1. Mandatory requirements

They must comply with all of the numerous requirements of the UPOV Act to which they are a party. However, they have no obligation to provide effective enforcement measures to breeders, their national treatment obligations are limited to those states that are members of the same UPOV Act and, in the case of those states bound by the 1978 Act, they need not protect all plant varieties and may impose certain reciprocity requirements on those varieties they do protect.

3.3.3.2. Options and implementation issues

Provided that their laws are in compliance with the relevant UPOV Act and unless they have ratified other international IPR agreements, these states need make no additional changes to their national plant variety protection laws.

3.3.4. Member of WTO only

States that are parties to the TRIPs Agreement but are not members of either UPOV Act enjoy considerably greater discretion than those that are members of either UPOV Act alone. By virtue of their adherence to TRIPs, these states are required only to comply with the four core obligations of article 27.3(b). This "WTO only" categorization in Table 3 currently applies to approximately 95 of the 147 Members of the WTO who are not also members of the UPOV (excluding, however, those countries that have ratified "TRIPs plus" treaties that require them to comply with one of the UPOV Acts). Given the large number of states in this category (and the additional number of states likely to enter this category if their efforts to join the WTO succeed), a more detailed discussion of the numerous options available to them in balancing protection of plant breeders’ rights against the competing policy objectives is provided in section 3.4 below.

3.3.5. Not a Member of WTO, UPOV or other IPR agreements

Nations in this category have no obligation to protect plant varieties or breeders’ rights in any form. Nevertheless, the mandatory requirements and discretionary choices facing other governments are likely to become matters of significant concern to these states as the world trading and intellectual property protection systems expand. Attention to IPR issues will be of particular importance when these states implement the obligations of other international treaties to which they may be parties, such as the biodiversity goals of the CBD or the access requirements of the ITPGR. States in this category should consider whether it is sound policy to enact laws that are incompatible with TRIPs and the UPOV, since such an action will preclude their membership in these treaty systems unless they undertake a further revision of their national laws. In addition, unilateral actions by or bilateral agreements with industrialized nations may pressure these states to comply with international IPR standards even if they remain outside of the WTO or UPOV. For these reasons, states that are not yet Members of the WTO should give careful attention to the discretionary choices available to WTO Members analysed in the next section.

3.4. Discretionary choices available to "WTO only" Members

3.4.1. Introduction

This section identifies the options that states which are WTO Members (but are not a party to either of the UPOV Acts or to a "TRIPs plus" bilateral or regional agreement that requires UPOV-type protection, see para. 3.2) may adopt to tailor IPRs to the particularities of their national legal systems and economies. These mechanisms adjust the scope and content of IPRs to take into account the level of development of a nation’s agricultural and breeding industries and its desire to balance IPR protection against the other important societal objectives identified in Part I. An overview of the various options that may be used to achieve these objectives is provided in Table 3 below.

3.4.1.1. Established approaches to sui generis protection of plant varieties

Once WTO Members adopt the four mandatory obligations of article 27.3(b), they are free to model their national laws protecting plant varieties and plant-related innovations on the 1991 UPOV Act, the 1978 UPOV Act, the patent provisions of TRIPs or some combination of these approaches. Each of these "established" approaches achieves, in different ways, the principal policy goal of the IPR system - the creation of adequate incentives for plant breeders to develop and market new varieties. Whether any of these established approaches is appropriate for a particular nation will depend on the needs of that nation’s agricultural industry and farming sectors, its desire to encourage foreign investment relating to plant breeding and biotechnology and its international trade objectives. These subjects are addressed in greater detail below.

3.4.1.2. Alternative approaches to sui generis protection of plant varieties

None of the "established" approaches to plant variety protection directly furthers the other policy objectives identified in section 1.3.6 above, such as encouraging biodiversity, promoting access to plant genetic resources on fair and equitable terms, recognizing farmers’ rights or protecting the traditional knowledge of indigenous communities. WTO Members have sufficient discretion to achieve both sets of objectives, however, by deviating from strict adherence to a UPOV or a patent model and adopting instead alternative forms of legal protection tailored to the particular needs of their societies and economies. The sections below identify and discuss a number of these alternatives, including: (1) revising eligibility requirements; (2) imposing additional conditions on the grant of protection; and (3) modifying specific features of legal protection such as exclusive rights, protected material, terms or exceptions and limitations.

3.4.2. Revising eligibility requirements

As discussed in paragraph 2.2.1.2, the four eligibility requirements of the UPOV - novelty, distinctiveness, uniformity and stability - have been criticized as unnecessarily rigid, undervaluing plant genetic diversity and precluding IPR claims by traditional farmers as opposed to commercial breeders. WTO Members need not replicate these problems when designing their sui generis legal systems. On the contrary, they are free to improve upon each of the eligibility requirements.

For example, Members may provide protection to plant germplasm that is more heterogeneous than established plant varieties but is nevertheless sufficiently distinct to permit its identification. Extending protection to these heterogeneous varieties would enable farmers and indigenous communities to claim IPR protection in the landraces or plant varieties they have cultivated through traditional farming and breeding methods. (Leskien & Flitner, 1997, p. 53) Such protection would address demands for recognition of "farmers’ rights" and "traditional knowledge" rights (paras. 1.3.6.2 and 1.3.6.3 above) by using IPRs to compensate farmers and local communities for preserving landraces and other traditional cultivated varieties and would provide them with an incentive to continue their preservation activities. It would also prevent third parties (including breeders in other nations) from claiming exclusive rights in the varieties that farmers or indigenous communities have cultivated. It should be noted, however, that much of the plant-related knowledge possessed by these groups is unrelated to plant varieties as such, and thus demands for both sets of rights may not be fully satisfied by this approach.

A state that protects heterogeneous varieties may grant exclusive rights either to individuals who demonstrate their involvement in creating or maintaining the heterogeneous variety or to communities of farmers or indigenous populations. Under either option, states will need to develop a mechanism for distinguishing between two or more protected varieties, a task that may involve defining minimum genetic distances between varieties. (IPGRI, 1999, p. 16) And the choice of the latter option may be difficult, as recognition of group rights is a novel feature of intellectual property law and governments have only recently begun to consider how such rights might be structured. (Crucible Group, 2001, pp. 33-124; WIPO, 2001) Finally, protection of heterogeneous varieties creates greater potential for overlapping claims by breeders. It may therefore be advisable to narrow the exclusive rights or term of protection granted to such varieties to limit such conflicts.

3.4.2.1. Altering eligibility requirements to promote genetic diversity

States may also make more significant changes to UPOV’s eligibility requirements as a means of enhancing plant genetic diversity. (See para. 1.3.6.1 above)

Distinctness and identifiability. To achieve greater genetic diversity, commentators have proposed a more flexible "distinctness and identifiability" standard which replaces UPOV’s narrow focus on the specific physical properties of plant varieties with an assessment of the many different characteristics by which a particular variety may be identified. (Leskien & Flitner, 1997, p. 53)

Implementation options. A distinctness and identifiability standard permits states to encourage heterogeneity or polymorphism in non-relevant plant characteristics such as leaf shape or color. (IPGRI, 1999, p. 15) States are not, however, required to adopt this standard for all purposes. They may, for example, apply different eligibility standards to different varieties, using UPOV-type criteria for varieties developed by classical breeding industries and more flexible criteria for more heterogeneous varieties. (Id., p. 17)

3.4.2.2. Protection of discovered varieties

Unlike members of the two UPOV Acts, WTO Members are not required to protect varieties that have merely been discovered. Whether such protection should be provided is a difficult question, however.

Benefits and costs of protection. On the one hand, the "discovery... of mutations or variants in a population of cultivated plants is a source of varieties of great economic importance for agriculture." (Crucible Group, 2001, p. 139) For this reason, it would benefit states’ agricultural systems and food security in general to provide an incentive for both breeders and farmers to discover new varieties. On the other hand, the protection of discovered varieties invites abuse. For example, one empirical study has documented a pattern of breeders seeking protection in one state for the "discovery" of a landrace or other traditional variety that is generally known and cultivated in another state. (Plant Breeders Wrongs, 1999)

Implementation options. There are several options states may adopt to capture the benefits of protecting discovered varieties while avoiding potential abuses. For example, a state could bar protection for varieties "discovered in the wild" and thus focus protection of discoveries where it is needed most - on discoveries that must be evaluated and propagated before they can be commercially exploited. (Crucible Group, 2001, pp. 38 and 140) Alternatively, a state can define "prior art" for plants comprehensively and require a breeder to demonstrate that the variety in which it claims protection has not been used or known (even if not legally protected) in other states. Presumably, discovered varieties would not include varieties that are part of the "multilateral system" of plant genetic resources subject to regulation under the ITPGR. (See section 4.3 below)

3.4.3. Additional conditions on the grant of protection

In addition to the eligibility requirements imposed under the UPOV Acts, states may impose additional conditions upon the grant of protection as a means of implementing their obligations under the CBD. These conditions include a declaration of origin of the plant genetic material in question and a requirement that the entity seeking protection have obtained the prior informed consent of the relevant country or community of origin. Such conditions further the CBD’s obligation to promote fair and equitable sharing of benefits arising out of the utilization of those resources by third parties. As explained below, however, there are many unsettled questions associated with how these conditions would operate in practice.

3.4.3.1. Declaration of origin of plant genetic material

Under this option, a state would require breeders to submit a declaration that discloses the origin of the germplasm or other genetic material from which their new varieties are derived. (Leskien & Flitner, 1997, p. 56) The declaration could identify the country of origin, the local community of origin or both.

Providing such information will create a publicly accessible database of the geographic and genetic origins of legally protected varieties. Such a database provides a check against "biopiracy" by helping to identify breeders seeking protection of plant genetic material that is widely known or used in other jurisdictions or found in ex situ collections. (See para. 1.3.6.5 above) It may also facilitate the CBD’s benefit sharing goal by providing information to governments or communities negotiating with private entities seeking protection over terms of access or compensation.

A declaration of origin requirement raises many implementation questions. First, it is often impossible to identify the source of genetic material with precision even using state of the art techniques. Such material may also be attributable to more than one country or local community. Moreover, even where identifying a variety’s geographic origin is possible, the cost of documenting it may deter some breeders from seeking legal protection in that state or even from creating new varieties. From a practical perspective, a state would need to choose the methods used to verify the information in the declaration and, in addition, the sanctions to be imposed in the event of non-compliance. (Crucible Group 2001, pp. 158 and 159) Although most of these issues can be addressed, states may also achieve the CBD’s objectives through other means, such as by adopting national access laws to regulate at the source the conditions under which private parties may access and use plant germplasm.

3.4.3.2. Requiring prior informed consent

A second way to promote the CBD’s objectives is to require applicants for plant variety protection to demonstrate that they have obtained the prior informed consent of the country and/or community in which the germplasm originated. (Crucible Group, 2001, p. 159)

Unlike a declaration of origin condition, a prior informed consent requirement denies breeders legal protection for their innovations of plant genetic material in one state unless they have actually negotiated with the government or community in another state. It could thus become a mechanism for promoting benefit sharing relating to plant genetic resources. (Leskien & Flitner, 1997, p. 46)

Many of the same difficulties associated with a declaration of origin requirement also apply to prior informed consent. Theoretical issues include determining how far back the ancestry of a variety needs to be traced and whether to make the requirement retroactive. Practical issues include verification of information and enforcement. (Crucible Group, 2001, pp. 160 and 161) Here, too, national access laws provide a non-IPR method to achieve the same objectives. For example, access laws can require that the state or community in which plant genetic resources are located be compensated for its past efforts to preserve plant diversity by those seeking to develop such resources.

3.4.4. Modifying exclusive rights, protected material, terms or exceptions and limitations

Once a state chooses the eligibility requirements and conditions that determine which varieties may be protected under its national laws, it must then decide whether to modify the other elements of the sui generis breeders’ right, including protected subject matter, exclusive rights, term of protection and exceptions and limitations to exclusive rights. Each of these elements is open to variation by WTO Members.

3.4.4.1. Tailoring plant variety protection to a state’s agricultural economy

States with large-scale agriculture or plant breeding industries are likely to benefit by adopting relatively robust IPR protection, with a broad array of exclusive rights, an expansive list of protected material and relatively limited exceptions and limitations (with the possible exception of a breeders’ exemption, which breeders’ advocacy groups have described as essential to promoting plant-related innovations). (FIS/ASSINSEL, 1999) Such strong protections will facilitate exports of harvested products, imports of propagating materials and investment by foreign firms. (IPGRI, 1999, p. 10)

States with agricultural systems that are domestically focused or rely upon the cultivation of traditional varieties by small-scale farmers face a different set of interests and incentives. Their populations are likely to prefer relatively weak IPR protection with a broad farmers’ privilege that permits farmers to both save and exchange seeds. Protection that is too weak is not advisable, however, as it will discourage foreign breeders from importing seeds or other propagating material (which may be an important component of the nation’s food supply) and may deter investment by foreign businesses or researchers for whom IPR protection is essential.

States with mixed agricultural economies may benefit from adopting different levels of protection tailored to the needs of their domestic industries. For example, they may adopt different standards of protection for commercial and noncommercial breeders, with higher standards for the former to compensate them for their investment of capital and distribution costs. They may also permit protection of the same variety with both a breeders’ right and a patent (for example, in countries where both classical breeding methods and methods making use of genetic manipulation are prevalent). Conversely, such states may adopt different and exclusive standards for specific varieties. Strong IPR protection in the form of a patent may be used to encourage the creation of new ornamental and high-value export crops without harming domestic consumers, whereas breeders’ rights may be used for other species where the state seeks to balance IPR protection against the interests of farmers. (IPGRI, 1999, pp. 6, 7 and 17)

3.4.4.2. Additional options

The following paragraphs discuss four additional options available to states seeking to create sui generis plant variety protection laws. It should be noted, however, that these options deviate substantially from established models of plant variety protection. They are thus likely to be compatible with TRIPs only if they are implemented with restraint in the manner described below.

Protecting varieties with a plant variety protection seal. One way to provide minimal legal protection to plant breeders while still complying with article 27.3(b) would be to grant breeders the exclusive right to advertise or market a variety using a seal or certificate issued by state authorities. Unlike the exclusive rights recognized under the UPOV Acts, which relate to particular uses of propagating and harvested material of a protected variety, a seal system would permit free use of such material and only require the right holder’s authorization for its use together with the seal. (Leskien & Flitner 1997, p. 62) It would thus have the advantage of simplicity over the UPOV system, inasmuch as no specific exceptions or limitations would need to be recognized. In addition, because of the weaker rights that a seal provides, a state might choose to extend the terms of protection enjoyed by breeders. (Id.) However, it is uncertain whether a seal system would create sufficient incentives to breed new varieties. In markets where consumers place a premium on the quality and source of the seeds they purchase, protection of new varieties with a seal alone may provide adequate compensation to breeders. Where seed consumers are less concerned with these attributes and more focused on a variety’s physical properties, a seal system would be ill-advised because consumers would be more likely to purchase seeds from any available source and less likely to pay a premium to breeders for the quality represented by seal-protected seeds.

Recognizing farmers’ rights through a detailed farmers’ privilege. A state seeking to recognize the concept of "farmers’ rights" (see para. 1.3.6.2 above) can do so by enacting a broader or more detailed farmers’ privilege than that found in either of the UPOV Acts. Unlike the protection of heterogeneous varieties cultivated by farmers (see para. 3.4.2 above), a farmers’ privilege does not create incentives for farmers to preserve plant genetic diversity. It recognizes instead the claims of farmers to engage in traditional practices such as planting seeds saved from an earlier purchase, exchange of seeds and even limited sale of seeds to other farmers free from the costs and constraints that IPRs impose. However, an unduly broad farmers’ exemption could significantly undermine a plant variety protection law by limiting breeders’ exclusive rights over a market from which they derive a large portion of their revenue. One way to reconcile these competing interests would be to adopt a clear definition of which farmers are entitled to the privilege, with a strong preference given to small-scale farmers. According to one recent study, such farmers can defined by reference to variables such as (1) the proportion of total yield used for personal consumption, (2) the number of acres cultivated with a protected variety, (3) the number of harvested tonnes produced with the variety or (4) the number of harvested tonnes of all crops produced by the farmer. (Crucible Group, 2001, pp. 144 and 145)

Privileging use of varieties derived from germplasm of local origin. This privilege, which could take the form of either an exemption or a compulsory licence, would permit the residents of a state, without the permission of the right holder, to use plant varieties derived from germplasm collected in that state. The exemption provides a mechanism to realize the CBD’s objective of fair and equitable sharing of benefits arising from the utilization of plant genetic resources. It achieves this objective by limiting breeders’ rights in those territories that provided the raw genetic materials upon which improvements were based. There are several difficulties with this "local origin" privilege, however. First, the exemption may hurt the domestic breeding industry in states where breeders collect germplasm locally. (Crucible Group, 2001, pp. 171 and 72) For this reason, a state may be tempted to apply the local origin exemption only to foreign breeders. However, such a limitation would clearly violate the national treatment rule and thus be incompatible with the core obligations of TRIPs article 27.3(b).

Exempting customary uses of plant varieties. Another way to recognize the rights of indigenous communities would be to privilege their customary uses of plant varieties, an ambiguous term that could be defined to include uses that indigenous communities have traditionally and regularly engaged in as part of their agricultural or cultural practices. (Crucible Group, 2001, p. 168) Such an exemption would likely be compatible with article 27.3(b) only if the state defined with precision the types of customary uses permitted under its laws and provided equitable remuneration to breeders in the event that the exemption were especially broad. Leaving this concept undefined would invite abuses, particularly in states that also choose to adopt minimal procedures for breeders to enforce their rights.

Table 4 below illustrates many of the options available to "WTO only" states to achieve the societal objectives discussed in the preceding sections. It divides the options into three categories: (1) those consistent with established approaches to plant variety protection under patent or UPOV-type laws; (2) those that could be adopted under alternative approaches to plant variety protection that are nevertheless TRIPs-compatible; and (3) options at the margins of compatibility with TRIPs.

Table 4 - Achieving societal objectives under different sui generis systems

3.5. Current trends in national laws

Although the foregoing sections have identified numerous options for "WTO only" states, thus far only a few states have chosen to exercise the discretion granted to them under the TRIPs Agreement to adopt national plant variety protection laws that do not follow one of the two UPOV Acts. Indeed, information submitted by UPOV to the TRIPs Council suggests that the number of states likely to adopt plant variety protection laws based on one of the two UPOV Acts may soon approach one hundred. (IP/C/W/305/Add. 4, 2001; see also GRAIN, 2004a (collecting texts of national plant variety protection laws))

3.5.1. Alternative plant variety protection laws

A plant variety protection law in India (the Protection of Plant Varieties and Farmer’s Rights Act) provides a notable counterexample to this trend of following UPOV standards. That legislation seeks to implement both breeders’ rights and farmers’ rights by recognizing the concept of farmers’ rights and by allowing farmers to register the varieties they cultivate. The Act also contains benefit sharing provisions that allow individuals and communities to claim compensation for their contributions to plant genetic diversity. It provides for meaningful representation of farmers in the National Biodiversity Authority. Finally, a section of a bill to amend the Indian Patents Act requires inventors to disclose the source and geographical origin of biological material used in their inventions. (Collet, 2001, pp. 219-222) Other proposed laws that deviate from strict adherence to UPOV include bills in Bangladesh, Nicaragua, Thailand and Zambia (GRAIN, 1998, p. 5; GRAIN, 1999, pp. 2-7), and a model law drafted by the Organization of African Unity which covers not only breeders’ rights but also farmers’ rights, benefit sharing and access to genetic resources. (African Model Legislation, 1998)

3.5.2. Failure to enact plant variety protection laws

The most notable current trend, however, is the large number of WTO Members that have not enacted any plant variety protection laws notwithstanding the 2000 deadline for developing nations to implement such laws. According to a May 2000 study, 80 percent of African countries, 80 percent of countries in the Asia-Pacific region and 56 percent of Latin American and Caribbean states which should have implemented TRIPs article 27.3(b) by 2000 had not done so. (GRAIN, 2000, pp. 5 and 6) This failure can be attributed to the controversial nature of article 27.3(b) and the fact that the article was scheduled to be reviewed in 1999 one year prior to the 2000 implementation deadline. The pace of implementation is likely to be affected by how WTO Members address the scope of plant variety protection as part of the Doha Round of trade negotiations that commenced in November 2001. (See Part IV below).

3.6. Understanding the limitations of sui generis IPR systems

Although non-IPR societal objectives can be incorporated into sui generis plant variety protection laws, such an approach is likely to be insufficient in itself to achieve these objectives. States seeking to achieve these objectives may therefore turn to other legal approaches, such as access regulations, seed laws and biodiversity legislation. (Correa, 1998, pp. 9 and 10) Governments are free to enact such laws, provided that the laws do not conflict with the requirements of any international IPR agreements to which they are a party. As explained in the next section, however, recent developments raise the possibility that international agreements may evolve in ways that limit states’ discretion to adopt such laws or to give effect to non-IPR objectives.