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Intellectual Property Rights And Food Security

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.

It is 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 marketing strategies.

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.

The recipe 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:
  1. 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.
  2. To analyse what all are IP protections works as safeguard for food industry.
  3. To find out the availability of various kinds of Intellectual property rights in order to achieve food security.
Research Hypothesis:
  • 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 proper documentation?
Research Questions:
  1. How the concept of Intellectual property rights helps in order to find a way to utilise them as food security is ensured.
  2. What all are the various kinds of Intellectual property rights in order to achieve food security

Research Methodology
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 work.

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

Research Analysis
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.

This 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.[1]

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.[2]

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 rice.

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 IP created.

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.[3] 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 substances themselves.

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 India.

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 Bill.[4]

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.

The Act 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 conditions.

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.[5]

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 against farmers.

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 permanent.


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.

For 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 Designs

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 products.

Trade Secrets

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 agreements.

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.

Thirdly, several 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.[6] 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.

The 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.

The 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 products

  1. 5 J.E.M. AG Supply v. Pioneer Hi-Bred International, 10 Dec. 2001, Supreme Court of the United States, 122 S.Ct. 593.
  2. Sachin Chaturvedi, 'Agricultural Biotechnology and New Trends in IPRs Regime � Challenges before Developing Countries', 37 Economic & Political Weekly 1212 (30 March 2002)
  3. Rajeev Dhavan et al. 'Power without Responsibility on Aspects of the Indian Patents Legislation', 33 Journal Indian Law Institute 1 (1991).
  4. Joint Committee on the Protection of Plant Varieties and Farmers' Rights Bill, 1999, Report of the Joint Committee (2000).
  5. This follows significant controversies concerning the potential impacts on Indian agriculture of genetic use restriction technology (specifically, V-GURT) or terminator technology.
  6. Diamond v. Chakrabarty, 16 June 1980, Supreme Court, 447 U.S. 303

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