Intellectual property rights (IPR's) have become an important tool in ensuring
food security; however, if used inappropriately, it could well create the
reverse. This paper looks at the concept of IPR's in order to find a way to
harness their use so as food security is ensured. A tentative argument proposed
here is that IPR's do not exist in a metaphysical or epistemological vacuum; on
the contrary, research and development leading up to patentable products is
often related to social, economic or political contexts in such a way that the
relation is constitutive.
Thus, it is appropriate that claims to IPR's should
acknowledge these relations through a scheme of benefit sharing that is fair to
all parties. In the course of the paper, I will discuss the four major theories
of IPR's according to Fisher - the consequentialist theory, the Lockean theory,
the Kantian/Hegelian theory, and the democratic order theory.
The aim is to
criticize each of them very briefly in terms of the constitutive external
relations. If it is the case that IPR's are even partly constituted by relations
to outside contexts, then elements of these contexts should have a share in the
benefits that accrue through the use of IPR's also.
There is no easy way to identify the policy, economic and legal linkages between
food security as a goal and intellectual property rights (IPRs) as an instrument
to promote and enhance human creativity and overall social well-being. But
connections do exist. Food security is part of the basic human right to food,
broadly defined as timely access to sufficient and nutritious food.
inseparably linked to the right to health, As far as the presence of IP in the
agricultural sector is concerned, patent laws are applicable for inventions that
are created in the agricultural sector. Moreover, plant variety protection
rights create an effective system that would help protect the protection of
plant varieties as well the rights of farmers and breeders.
The food industry is one of the most important industries in the world economy.
Almost 10 percent of total employment is based on the food industry. The food
industry has total sales of USD 1.4 trillion. In such a large economic sector,
many brands stand robust with their unique products, taste, packaging ideas, and
Any idea that comes to a person's mind concerning a type of food production is a
freely available Intellectual Property (IP) unless and until it gets protected.
Anyone can steal this idea and start trading in the same product. Also, a
complaint cannot be filed unless the IP is registered with proper documentation.
Intellectual Property Protection can safeguard many things right from the
foremost step of manufacturing, i.e., production of ingredients, creation of
recipes, to the last steps such as labelling, marketing, and branding of the
final product. It allows the creator to protect his or her idea. IP protection
in the food industry includes Trademarks, Copyright, Industrial Designs,
Patents, and Trade Secrets.
The ideal example of how much Intellectual Property
Rights (IPRs) can be worth is the Coca-Cola company. The most valuable property
of Coca-Cola is its trademark. In 2001, the Coca-Cola trademark was worth 68.9
billion, and today, it stands at USD 120 billion. Also, the Coca-Cola recipe is
protected as a trade secret, only known to select employees. It has been kept in
a purpose-built vault within the company's headquarters in Atlanta.
has been treated as a trade secret for over 100 years. The most significant
feature of the legal protection for IP is that it transforms intangible assets
into exclusive property rights. In short, IP protection makes intangible assets
a bit more tangible by turning them into valuable, exclusive assets.
Objective of Study:
- To trace out at how the concept of Intellectual property rights helps in
order to find a way to harness their use so as food security is ensured.
- To analyse what all are IP protections works as safeguard for food industry.
- To find out the availability of various kinds of Intellectual property
rights in order to achieve food security.
- Is it the most significant feature of the legal protection for IP is
that it transforms intangible assets into exclusive property rights. In
short, IP protection makes intangible assets a bit more tangible by turning
them into valuable, exclusive assets?
- Any idea that comes to a person's mind concerning a type of food
production is a freely available Intellectual Property (IP) unless and until
it gets protected. Anyone can steal this idea and start trading in the same
product. Also, a complaint cannot be filed unless the IP is registered with
- How the concept of Intellectual property rights helps in order to
find a way to utilise them as food security is ensured.
- What all are the various kinds of Intellectual property rights in
order to achieve food security
The methodology adapted for conducting the proposed research is Doctrinal
research method. Doctrinal research in law field indicates arranging, ordering
and analysis of the legal structure, legal framework and case laws to search out
the new thing by extensive surveying of legal literature but without any field
The researcher has referred secondary sources namely books, journals, research
articles, unpublished theses, newspapers and e- sources for the purpose of
writing this paper.
Scope/ Limitation of Study
Scope of my research paper is to understand and analyse the concept of
Intellectual property rights helps in order to find a way to utilise them as
food security is ensured. This research limits to the analysis and procedure as
well as kinds of IP protections available for food security
There are a number of links between IPRs and food security. In general, IPRs
such as patents or plant breeders' rights seek to give incentives, mainly to
private sector actors, to develop seeds that either produce higher yields or
have specific characteristics which will improve food security and agro
-biodiversity management. IPR s were for a long time underdeveloped in the
context of agriculture.
Firstly, in many countries and at the international
level, agricultural management was premised on the basis of the free exchange of germplasm and knowledge, a system wherein IPRs did not fit well. Secondly, it
was generally recognised that agriculture was substantially different from other
fields of technology because farmers were often used to save seeds from previous
crops and because the link between the fulfilment of basic food needs and
agriculture made it undesirable to foster commercialisation in this field.
IPRs have progressively been introduced in agriculture in two main phases.
Firstly, a number of developed countries adopted over time a form of
intellectual property protection for plant varieties � plant breeders' rights
which is derived from the patent model.
Secondly, in the context of the
development of genetic engineering, the progressive introduction of patents over
life forms has constituted a major incentive for the overall growth of
agro-biotechnology. At present, the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement) provides a number of specific
minimum levels of protection that all WTO member states must respect.
includes, for instance, the patentability of micro-organisms and a form of
intellectual property protection for plant varieties. Beyond these minimums,
there is no uniformity around the world insofar as some countries like the
United States have gone further than the TRIPS minimums and accept, for
instance, the patentability of plant varieties.
A number of justifications can be offered for the introduction of IPRs with a
view to foster food security in developing countries. In general, the legal
protection offered by IPRs is one of the most important incentives for private
sector involvement in agro-biotechnology.
IPRs are thus primordial in ensuring
the participation of the private sector in the development of improved plant
varieties. Improvements that can be brought about by agro-biotechnology include
plant varieties that produce higher yields by enhancing the capacity of the
plant to absorb more photosynthetic energy into grain rather than stem or leaf,
varieties that have the capacity to combat pests and varieties modified to grow
faster through enhanced efficiency in the use of inputs such as fertilisers,
pesticides and water.
From a food security point of view, another potentially
interesting feature of agro-biotechnology is the possibility to modify varieties
to improve their nutritional value, such as in the case of the pro-vitamin A
Other arguments include the potential of the introduction of IPRs in
developing countries to increase foreign direct investment, increase technology
transfers and R&D by foreign companies while at the same time giving domestic
actors incentives to be more innovative. The food and beverage industry is
exceedingly dependent on the value of the brand and needs the protection of the
It allows consumers to choose the refreshments or foods they want.
The consumer knows that he is buying a drink with the label 'Coca-Cola,' he is
purchasing a carbonated non-alcoholic beverage. Trademarks allow consumers to
make choices easier. They do not need to read the ingredients on the bottle
every time they make a decision. The trademark informs consumers directly about
the commercial origin of the drink, its substance, value, and use.
India is an interesting case study because it has been through different shifts
in policy over food security policies in the context of IPRs since independence.
India inherited at independence a patent law which was deemed inappropriate to
realise the economic development goals of the country because the colonial act
had failed to stimulate invention by Indian citizens and to encourage the
development and exploitation of new inventions for industrial purposes in the
country so as to secure benefits to the largest section of the people. Patent
law was thus overhauled in the decades following independence in an attempt to
make it fit the developmental priorities of the country.
The resulting Patents
Act, 1970 retained the western model of intellectual property but provided a
number of exception with a view to foster the fulfilment of basic needs. In
particular, the Act excluded the patentability of life forms and specifically
precluded the patentability of methods of agriculture or horticulture. Further,
while allowing process patents on substances intended for use as food, medicine
or drug, the Act rejected the possibility of granting patents in respect of the
Insofar as the duration of the rights conferred was
concerned, the normal 14-year term was reduced to 7 years with respect to
processes of manufacture for substances intended for use as food, medicine or
drug. The Patents Act, 1970 also introduced a series of measures restricting the
rights of patent holders, in particular to encourage use of the invention in
The rationale for the introduction of limiting clauses in the Act was in
part to foster the growth of local industries and in part to foster the
availability of essential items such as food and medicine by keeping the prices
as low as possible in areas related to the fulfilment of basic needs.
The absence of patents in agriculture contributed to the development of a system
of agricultural management based on the sharing of genetic material and related
knowledge. At the same time, it did not provide significant incentives for the
development of a private seed industry. As a result of these policies, the
public sector has until recently been a major force in agricultural management.
The ratification of the TRIPS Agreement by India has been the trigger for
significant changes in the IPRs related national legal framework. This has
included in particular the adoption of a Plant Variety Act, a series of
significant changes to the Patents Act, 1970 and the adoption of IPRs-related
clauses in the recently adopted Biodiversity Act. These three main legislative
instruments are examined in turn.
Historically, the protection of plant varieties through IPRs was barred, as
reflected in the Patents Act, 1970. The introduction of plant variety protection
thus constitutes a step in a completely different direction. As noted, TRIPS
imposes the introduction of plant variety protection but leaves member states to
choose the specific form of protection they want to adopt (sui generis option).
It does not privilege plant breeders' rights (or in other words, the UPOV
Convention) over alternatives such as farmers' rights.
The Indian legislation
was first introduced in Parliament in December 1999, just before the TRIPS
Agreement's compliance deadline. The main characteristic of the first draft was
to propose a plant variety protection model largely fashioned after the UPOV
Convention. This first draft was referred to a Parliamentary Committee which
conducted further hearings in 2000 and put forward a substantially revised
This second draft was adopted by Parliament in 2001 and is now the
Protection of Plant Varieties and Farmers' Rights Act (Plant Variety Act).
Generally, the Act differs from the first draft of the bill insofar as it
clearly seeks to establish both plant breeders' rights and farmers' rights. The
proposed regime for plant breeders' rights largely follows the model provided by
the UPOV Convention.
It introduces rights which are meant to provide incentives
for the further development of a commercial seed industry in the country. The
criteria for registration are thus the same as those found in UPOV, namely
novelty, distinctiveness, uniformity and stability. The Act incorporates a
number of elements from the 1978 version of UPOV and also includes some elements
of the more stringent 1991 version, like the possibility of registering
essentially derived varieties.
The section on farmers' rights constitutes the
most interesting part of the legislation from the point of view of the
development of sui generis regimes. This part was completely changed by the
Parliamentary Committee which added a whole chapter on farmers' rights where the
first draft dealt with the issue in a single short provision.
The Act now seeks
to put farmers' rights on par with breeders' rights. It provides, for instance,
that farmers are entitled, like commercial breeders, to apply to have a variety
registered. Farmers are generally to be treated like commercial breeders and are
to receive the 18 same kind of protection for the varieties they develop.
However, it is unsure whether these provisions will have a significant impact in
practice since the Act accepts the registration criteria of the UPOV Convention
which cannot easily be used for the registration of farmers' varieties.
incorporates other provisions which are directly related to food security
concerns. These include, for instance, a section which specifically bars the
registration of plant varieties with genetic restriction use technologies.
The Act further seeks to foster benefit sharing in the interest of farmers in
cases where registered plant varieties are commercialised. Two different
channels for claiming financial compensation are provided for under Section 26
and Section 41. The main difference between the two is that Section 41
specifically targets village communities and provides less stringent procedural
Thus, it neither provides a time frame nor specifies that claimants
should pay a fee. In both cases, the Plant Varieties and Farmers' Rights
Authority has significant discretion in disposing of the benefit sharing claims.
Interestingly, Section 41 comes closer to recognizing the intellectual
contribution of the benefit claimers than Section 26. The former provides that
claims can be made concerning the contribution to the evolution of a variety by
a group while the latter only mentions the use of genetic material from the
claimant variety as a basis for a claim.
Further, while Section 26 requires the
commercial utility and the demand for the variety in the market to be taken into
account in the assessment of the claims, there is no such requirement under
Section 41. The last major distinction is that Section 41 only provides for
compensation to a community of individuals whereas a single person may benefit
under Section 26.
Overall, the Act is noteworthy for making a real attempt at balancing breeders'
and farmers' rights. However, two main facts are likely to hamper the
effectiveness of the provisions for farmers' rights. Firstly, since farmers'
rights were only added as an afterthought without changing the criteria for
registration of varieties, the existing regime exclusively reflect the
registration needs of commercial breeders and is therefore heavily tilted
Secondly, even though India intended to provide a sui generis
response to the need to provide plant variety protection under the TRIPS
Agreement, it is now in the process of formally joining UPOV, a move which will
tilt the balance further away from farmers.
A brand is the prime component of a food company, food product, or a
restaurant's success. A trademark is a legally protected word, name, design,
logo, or any other symbol of a product or business. For instance, 'Oreo' is a
trademarked product name. It means that no one else can use the name 'Oreo' to
sell his or her cookies.
A trademark can be obtained for a food product, dish
name, logos, slogans, layout, d�cor, restaurant, and chef's name. Nusret G�k�e
(popularly known as 'Salt Bae') succeeded in registering a motion trademark for
a video of him sprinkling salt over the meat, which went viral in 2017.
Trademark Registration can also increase the restaurant/brand's sale value and
facilitate the licensing of the trademark. Registration is essential for
franchising. If international expansion is sought in the future, an entity
should also consider whether its trademarks are already being used or otherwise
'registrable' in foreign jurisdictions.
A copyright is an exclusive and assignable legal right given to the creator of
original, artistic work for the use and distribution of the artistic work for a
limited period. Copyright is considered to be a territorial right, which means
that it does not extend beyond the territory of the specific jurisdiction.
Copyright does not protect simply utilitarian articles, ideas, facts, or
formulas. It protects the expression of ideas in a tangible form. Since food is
a useful article, Copyright Law will apply only if the food incorporates highly
creative features that are separable (either physically or conceptually) from
the food's utilitarian features.
In the food industry, chefs sometimes borrow and build upon ideas from others.
Appropriately applied, IP law is flexible enough to shield highly creative food
designs from substantial copying. Copyright Registration is not mandatory but
imperative because it serves as a timestamp of the date of creation of the work.
A person who, without permission, makes a derivative food design that is
substantially similar to another's copyright-protected food design or other work
could be at risk for Copyright Infringement claims.
The typographical arrangement of the recipe book could be protected, but this
protection is narrow and would only prevent specific acts such scanning or
photocopying the recipe book pages without permission.
IP protection for the plating of food has also become a popular subject. Some
critics recommend that plating should be protected as form of trade dress if it
has earned a sufficient reputation to indicate the source of the dish. Others
opine that plating, if original, may be protected by copyright as an artistic
work. This may need clarification from the judicial authorities as to whether
plating is in a sufficiently "fixed" form to receive Copyright Protection, as it
has theoretically been required that a work be in a material form that is
In contrast to copyright, which protects the expression of an idea, patents can
protect ideas themselves. While recipes are patentable in theory, it can be
arduous in practice to overcome the challenges of proving novelty and
inventiveness when applying for a patent. The applicant would need to show that
the recipe has not been used by anyone else anywhere. If novelty is established,
the next challenge is to demonstrate that the recipe would not have been obvious
to a person skilled in the art of food creation.
In the food industry, a patent can be obtained on a novel and non-obvious recipe
or cooking technique. Patents can also be obtained for a novel food processing
strategy. Furthermore, Patent Rights can be used to protect new ideas, which
arise from the Research and Development departments in the food industry.
instance, the meat substitute market has been undergoing explosive growth in
recent years, and inventors are quickly applying to protect their food products.
California-based company, Impossible Foods has several European Patents for its
plant-based food products, which include a plant-based cheese.
The food and
beverage sector is one of the biggest manufacturing sectors, and the industry
invests deeply in R&D. Many food industries overlook the chance to patent
features of their food products or specialized manufacturing processes. Food
preparation processes may potentially be patentable if they are novel, useful,
and not obvious.
Industrial Design Protection is provided for the shape, configuration, surface
pattern, colour, or line (or a combination of these), which, when applied to a
functional article, produces or increases aesthetics and improves the visual
appearance of the design. In the food industry, designs can be found in the
packaging (either bottle or the whole package) or shape of the product (for
example, Toblerone chocolate bar).
Industrial Design Rights are provided for ten
years and can be renewed for an additional period of five years. For a design to
qualify for the protection, it should be novel, original, non-obvious, and
should be visible on a finished functional article.
Registration of one's design ensures that other entities do not use the same
bottle, packaging, or even similar containers. If another entity makes only
minor changes in a protected design, but the overall look of the products is
similar, such a competitor would infringe the rights of the registered design's
owner. The design should not only be new, but it should also differ from earlier
A trade secret is business information that derives value from its secrecy. The
owner of a trade secret must take all reasonable measures to protect the
secrecy. Recipes can be protected as trade secrets. Restaurants, chefs, or
brands should consider notifying the recipients of the recipe that the recipe is
a trade secret and demand them to sign non-disclosure and non-competition
Franchise agreements will have specific terms in this regard.
Restaurants and chefs should also choose at the initial stage who will own any
trade secrets in recipes. This kind of protection can be very powerful and can
last indefinitely if the recipe is strictly kept confidential and not
communicated to third parties.
The international legal framework for food security is found in a number of
different treaties and instruments which belong to completely different areas of
international law. Firstly, some treaties and institutions deal with food
security from the point of view of agriculture. Secondly, IPRs treaties only
deal indirectly with food security but their implementation has significant
impacts for food security in developing countries.
environment-related treaties have important implications for food security.
Finally, human rights treaties focusing on the right to food or related rights
also have a central place in the overall framework.
Law and Policy Trends
The legal regime for food security in the context of IPRs has evolved in
different ways and in response to different developments. Firstly, the legal
framework has evolved with regard to states' claims over their resources.
On paper, the basic principle of state sovereignty over natural resources has
been consistently upheld in relevant treaties. However, the scope of this
principle has been qualified over time. Thus, while the Biodiversity Convention
reiterates the basic assertion of sovereignty, it qualifies it by conceding that
biological resources are a 'common concern of humankind', a notion which implies
that sovereignty is maintained but with a duty of states to participate in the
formulation and implementation of international legal instruments to foster the
sustainable conservation and use of biological resources. While states have
claimed for several decades' absolute rights over their natural and biological
resources, the situation was different in the case of PGRFA.
In the latter case,
the international community traditionally worked on the basis of the principle
of 'common heritage of humankind'. This was enshrined in the 1983 International
Undertaking. In the last twenty years, there has been a fast movement towards
the assertion of claims over PGRFA which have resulted in the PGRFA Treaty
conceding 'common concern' status to PGRFA.
In other words, biological resources
and genetic resources have the same status under international law, that of a
common concern of humankind which gives full control to the state of origin but
with an associated duty to participate in international law making towards the
sustainable conservation and use for the benefit of the whole of humankind.
In summary, while it remains challenging to protect recipes and food
comprehensively using IPRs, it is not impossible. IPRs can play an exceedingly
vital role in a business. If used astutely, with the correct kind of IP
portfolio management, the brand can reach new heights of success.
manufacturing of products is getting cheaper, becoming close to zero marginal
costs. Consumers need novel, unique products with distinct labels and designs.
Therefore, a company must first take into account its consumers and products and
then invest in the intellectual creation of something new and attractive.
way food is consumed, created, and protected is undergoing a revolution and the
current regulatory regime of IPRs must be one that is adhered to by food
entrepreneurs everywhere. There is no easy way to identify the policy, economic
and legal linkages between food security as a goal and intellectual property
rights (IPRs) as an instrument to promote and enhance human creativity and
overall social well-being. But connections do exist.
Food security is part of
the basic human right to food, broadly defined as timely access to sufficient
and nutritious food. It is inextricably linked to the right to health, discussed
in an earlier chapter. It is linked to intellectual property (IP) inasmuch as
plant variety protection (PVP; also known as plant breeders' rights) and
patents, as applied to genetic resources, biodiversity components and
biotechnological processes, may be limiting the possibilities of cultivators to
freely grow certain crops, and of people to consume resulting agricultural
- 5 J.E.M. AG Supply v. Pioneer Hi-Bred International, 10 Dec. 2001, Supreme Court of the United States, 122 S.Ct. 593.
- Sachin Chaturvedi, 'Agricultural Biotechnology and New Trends in IPRs Regime � Challenges before Developing Countries', 37 Economic & Political Weekly 1212 (30 March 2002)
- Rajeev Dhavan et al. 'Power without Responsibility on Aspects of the Indian Patents Legislation', 33 Journal Indian Law Institute 1 (1991).
- Joint Committee on the Protection of Plant Varieties and Farmers' Rights Bill, 1999, Report of the Joint Committee (2000).
- This follows significant controversies concerning the potential impacts on Indian agriculture of genetic use restriction technology (specifically, V-GURT) or terminator technology.
- Diamond v. Chakrabarty, 16 June 1980, Supreme Court, 447 U.S. 303