The agricultural industry is one of the most significant fields to understand
and analyze the context of intellectual property rights due to the significant
developments in law and policy in the past decades.
The conservation, use, and commercial exploitation of plant varieties by
farmers, commercial breeders, governments, and international organizations are a
part of plant variety management. One area within this broad field that
concentrates on only the information that can be used commercially is plant
variety protection. Plant variety protection refers to intellectual property
rights over plant varieties that grant holders exclusive commercial rights for a
set amount of time.
Rapid changes in the international regime governing genetic resources are having
a significant impact on the framework of agricultural development in developing
nations. The requirement of WTO Members to extend intellectual property
protection (IPP) in agriculture by shielding improved varieties of plants
through an efficient sui generis system of protection is a key component of this
change, in addition to the Convention on Biological Diversity (CBD) and the
International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR).
This is just one of many requirements of the Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS), which has a significant impact on how
many developing nations protect their intellectual property.
The Paris Convention of 1883 was the first multilateral agreement for
harmonizing IP laws. It not only extended protection to industrial property
but also applied to agriculture and extractive industries. Following this, many
European countries made attempts to extend the protection of intellectual
property to the field of agriculture. However, the USA made the first attempt to
recognize the intellectual property right of a plant breeder by enacting the
Plant Patent Act in 1930.
The act aimed to protect asexually propagated plants
by patents. On the other hand, the enactment of the act fueled debate on the
extension of IPR protection to agriculture. Experts opined that patent
protection should be extended to plants whereas sui generis protection should be
extended to recognize the rights of the plant breeders.
The Convention on the Unification of Certain Points of Substantive Law on
Patents for Invention was adopted by several European nations. The convention
provided for the exclusion of plant or animal varieties or essentially
biological processes for the production of plants and animals from the
definition of patentable subject matter.
Later, in 1973, the European Patent Convention adopted these exceptions in its
Article 53, and the TRIPS Agreement, 1995, adopted the same language in Article
27.3. (b). The 1970s settled the dispute regarding the adoption of IP protection
in agriculture. However, it was in 1995 that the developing nations agreed to it
with the adoption of the TRIPS agreement.
The Convention on Biological Diversity was adopted in 1992. It acknowledged the
sovereign rights of a nation over its biological resources. Article 8 (j) of the
convention acknowledged the role of the local communities and indigenous people
in the preservation and conservation of biological resources along with a fair
and equal share of the advantages brought about by the use of such knowledge.
Later, it was recognized that this benefit-sharing was a crucial element in the
realization of farmers' rights.
With the establishment of the World Trade Organization, the TRIPS Agreement
stipulated that by 1995, intellectual property in agriculture should be
protected by either patent or by effective sui generis protection, or both.
This implied that both developed and developing WTO members would extend some
sort of protection to agriculture. Additionally, the provision for extending the
sui generis protection gave the right to defend farmers' rights and strike a
balance between breeders' and farmers' rights. Additionally, it allowed for the
extension or restriction of farmers' rights based on the requirements of the
The Protection of Plant Varieties and Farmers' Rights Act was passed by India by
TRIPS regulations. The Act takes a comprehensive approach to dealing with plant
varieties protection and farmers' rights. It has advanced the idea of farmers'
rights and genuinely addresses the concerns of farmers as breeders, innovators,
conservers, etc. The sui generis system in India is unmatched in the entire
world. To meet the needs of farmers, it has attempted to combine elements of
UPOV and ITPGRFA with some unique features of its own.
According to Section 39 of the PPV&FR Act of India, farmers have several rights.
The legal systems of other Asian nations' definitions of farmers and further
protections for their rights can be contrasted with those of India. 
The act specifically lays down the rights of the breeders and the farmers. The
breeders have the exclusive right to produce, sell, market, distribute, import,
or export the protected variety. They can also appoint an agent/licensee and
exercise their civil remedies in cases of infringement.
On the other hand, the farmers who have evolved or developed new varieties of
plants are entitled to their registration and protection in the same way as the
breeder of a variety is. Similarly, they are eligible for recognition and
rewards for the conservation of Plant Genetic Resources of landraces and wild
relatives of economic plants. The act provides for various other rights for the
On the international front, most of the international IPR obligations are
adopted in the UPOV Act. The act provides for the eligibility requirements,
exclusive rights, national treatment, terms of protection, and exceptions and
limitations to exclusive rights.
Article 58 of the 1978 act provides any person who engages in (i) production for
commercial marketing, (ii) the offering of sale, and (iii) marketing concerning
a protected variety's reproductive or vegetative propagating material, must
obtain the prior authorization of the breeder.
These exclusive rights come with two major exceptions and limitations. These
The exemption under article 5(3) precludes member states
from granting to breeders of protected varieties, the right to authorize or
refrain from authorizing other breeders seeking to use the protected variety to
create new varieties or to market those new varieties. States are allowed to
grant such an authorization right only if the repeated use of the protected
variety is necessary for the commercial production of the new variety. According
to the International Association of Plant Breeders and the International Seed
Federation, this breeders' exemption "is essential for continued progress from
According to the 1978 Act on commercial exploitation of
protected plant varieties, seeds, and propagation materials may be used for
non-commercial purposes without the prior consent of the breeder. The most
frequent beneficiaries of this implicit non-commercial exception are farmers who
buy seeds from protected varieties.
The introduction of new technologies and the ability to discover and incorporate
exotic genetic material into commercial products, has accelerated the pace of
change in the industry and IP systems. The future will be decided by the
extensive economic exploitation of genetic variety driven by research and
development for obtaining IPR.
The transition phase for the developing countries is coming to an end. The
timescale has been insufficient due to the lack of capacity and limited
financial assistance from developed countries. Some people have to still fulfill
their responsibilities whereas others have adopted ready-made models from the
industrialized world in response to time constraints.
Opinions and Suggestions:
The current international legal framework is still partly inconclusive
concerning the type of agricultural management that it seeks to promote. The
PGRFA treaty seems to be more practical because it aims to foster a free flow of
plant genetic resources while accepting the validity of intellectual property
rights claims over transformed material, in contrast to the TRIPS Agreement,
which generally seeks to encourage private appropriation of inventions. This
demonstrates that there is no inherent reason to emphasize on improving IPR
There are several treaties with the same mandates that lack coordination
mechanisms in their provisions, possibly as a result of the decentralized nature
of international law. The TRIPS Agreement and the biodiversity convention are in
a relationship of equality since they were negotiated separately by the member
states and have the same legal weight. No environmental treaty is mentioned in
the TRIPS Agreement, and any potential overlaps are not acknowledged. Although
there is a general IPR provision in the Biodiversity Convention, there is no
mechanism in place in the event of a conflict.
It is critical to conclude that intellectual property protection in agriculture
and sustainable development are indeed integrated into the light of the
fragmented position of international law. It is impossible to separate the
introduction of intellectual property rights from the preservation of
agrobiodiversity, the general protection of traditional knowledge, and the reach
of life patenting which influences the advancement of genetic engineering.
Sound international decisions are key to maintaining the delicate balance
between the complex aspirations and vulnerabilities of the present. The only way
to address the shared needs of the North and the South is to harmonize the
fragmented body of international law.
Sui generis protection for IP in agriculture has helped countries in
incorporating rights for plant breeders and farmers. However, the understanding
of farmers' rights lacks a clear definition and is vague. The ITPGFRA has made
an effort to provide a unified concept, but the elements of farmers' rights
differ from nation to nation as nations are free to choose their methods based
on their priorities and resources.
The countries in South and Southeast Asia have given significant attention to
the rights of the farmers. The sui generis protection tool has been used
extensively in India to strike a fair balance between the rights of farmers and
plant breeders. However, many other Asian nations have used it to defend the
rights of plant breeders rather than those of farmers.
The sui generis protection provided by WTO enables the member nations to adopt
laws that satisfy their needs while safeguarding their interests. Nevertheless,
it is up to the countries to determine how to recognize and address the benefits
and/or shortcomings of the current IPR system.
- WIPO Intellectual Property Law Handbook, Policy, Law and Use, (last visited Jul. 18, 2022).
- Convention on Biodiversity, Article 8, (last visited Jul. 17, 2022).
- TRIPS Agreement, Article 27.3.(b), (last visited Jul.17, 2022).
- Rohan Dang and Chandni Goel, Sui Generis Plant Variety Protection: The Indian Perspective, 4, American Journal of Economics and Business Administration, 303-312 (2009).
- Leskien & Flitner, 1997, p. 61.