What is intellectual property?
ACP countries are responding to global pressure to develop and implement policies on intellectual property (IP) to protect ideas and innovations to facilitate global access and trade. IP is an idea that, when expressed in a tangible form, can be protected by law. The owners, both inventors and investors, are granted rights by a state under varying agreements and periods of time so that they can reap the rewards of their investments. The granting of intellectual property rights (IPRs) can help to balance public and private sector interests in that the invention must be disclosed publicly. Technically, it can assist the public good because it allows others to improve upon the invention, after the termination of the monopoly rights, or to develop competing products. However, there is an ongoing international debate about whether the harmonized IPR regimes being promoted benefit technological leaders as opposed to technological followers - mainly developing countries.
The concept of IP is not new; it dates back to medieval guilds in Europe. In many developed countries, the legislative framework to support IP is very strong, in the United States it is codified in the Constitution. In agriculture, the concept of IP is well established, including patents (e.g. on farm machinery), copyright on information products, plant breeders' rights (PBRs) and geographical indications (GIs).
Patents : A patent is an exclusive right granted to an inventor. Once issued, a patent gives the inventor the legal right to create a limited monopoly by excluding others from creating, producing, selling or importing the invention. This right is of limited duration, for a minimum period of 20 years from the date of filing the patent application. In exchange for the right of exclusion, the inventor must disclose all details describing the invention, so that when the 20-year patent right expires, the public may have the opportunity to develop and profit from the use of the invention.
Plant breeders' rights (PBRs) , or plant variety protection (PVP) , allow for the protection of new plant varieties for a term of 20 years (25 for tree crops). A country can develop its own system of protection, referred to as a sui generis system, i.e. a system of rights designed to fit a particular context and need that is a unique alternative to standard patent protection.
PVP versus patents
- Patents are granted provided the invention is novel (new), is non-obvious to one skilled in the field and has a utility (use).
- Patents allow protection of plant genes, rather than just the plant, and to control the use of the genetic material of a number of plants for multiple uses such as pharmaceuticals, pest protection, herbicide resistance, oil production, etc.
- PVP is less expensive than patents and simpler for both applicants and administrators; hence they tend to be favoured by developing countries.
- PVP allows for two important exclusions that patents do not: (a) farmer saved seed, and (b) an exemption for research use.
- Both patents and PVP are enforceable only in the countries for which protection is granted.
Copyright gives authors legal protection to benefit from the sale of published material of their expressions of their ideas contained in a selected format, e.g. books, journals and CD-ROMs. The right extends for the life of the author plus 50 to 70 years.
Geographical indications (GIs) identify a good as originating from a particular region or territory which ascribes to it a particular quality that distinguishes it from a similar good produced in another locality.
The main international agreements that impact intellectual property are highlighted below:
WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
The TRIPS Agreement, adopted in 1994, requires that 'patents shall be available for any inventions, whether products or processes, in all fields of technology'. However, it allows countries to exclude from protection 'plants and animals other than micro-organisms'. It does require that countries provide for the protection of plant varieties either by patents or by an effective sui generis system (i.e. PVP) or both. The TRIPS Agreement permits countries some flexibility in the precise form and the extent of protection. Nonetheless, it promotes the fundamental idea of extending IPRs to agricultural genetic resources. The general objectives of the TRIPS Agreement are the protection and enforcement of IPRs, the promotion of technological innovation and the transfer and dissemination of technology. Under this Agreement a WTO member must be non-discriminatory and extend the same treatment to all other members that it affords one member. Most developing countries are opposed to the use of patent systems in agriculture.
International Convention for the Protection of New Varieties of Plants (UPOV)
The UPOV Convention was signed in 1961, entered into force in 1968 and was then revised several times, in 1972,1978 and 1991. This Convention allows countries to protect plant variety by patents. As of mid-2004, the UPOV Convention had been ratified by 55 states, including a number of developing countries.
Convention on Biological Diversity (CBD)
The CBD entered into force in 1993 and establishes countries' sovereignty and right to control access to genetic resources and biodiversity. The CBD also promotes the sharing of benefits (monetary and other) derived from the use of natural (including genetic) resources/biodiversity in areas such as pharmaceuticals and biotechnology. It contains statements promoting the granting of more favourable IPR terms, particularly patents, to promote fair and equitable benefit sharing and recognizes the right to respect, preserve and maintain indigenous knowledge systems. Some developing countries view the CBD as revisiting the terms of the WTO, but this is a source of controversy.
International Treaty on Plant Genetic Resources for Food and Agriculture
This treaty, which entered into force on 29 June 2004, focuses on agricultural genetic resources - access to and sharing of the benefits derived from them. The treaty is concerned with preserving the genetic resources developed by poor farmers and maintaining access to agricultural genetic resources for international public research.
ACP countries are required to meet their obligations under these agreements and as such may need to amend, update and/or draft IP legislation. Technical and legal assistance and support for capacity building in these areas are also required to facilitate national policy development. The WTO's emphasis on science-based regulatory standards as in the area of biotechnology will require strengthening of the underlying scientific capacity of developing countries. Access to technological developments such as biotechnology and collaboration with public or private sector institutions in other countries, such as the US, Europe or Japan, require an understanding of and the capacity to manage intellectual property in order to encourage investment and ensure benefit sharing through cooperative agreements.
As noted, there is tension between the 'North and South' with respect to the international instruments for IPR (TRIPS versus the CBD). In the past, it was possible to address the policy issues using a bottom-up approach: building a hands-on understanding of IPR and related policies, e.g. biosafety in the context of facilitating access to biotechnology. This was done through engagement of developing countries in these issues as they arose in the collaborative technology development process. Thus IPR and biosafety were part of the process of building access to a particular biotechnology application of national interest, rather than being seen as solely external issues that served the interests of one country or multinational company. With the pressure of compliance with these international IPR agreements, there is likely to be a top-down environment for policy development with politics playing a much bigger role.
As was evident during the negotiations on the Biosafety Protocol, some developing countries came to the negotiations without having held broad discussions at the national level. In some cases, national representatives had little knowledge of the status of biotechnology research and regulations in their countries. Given limited resources, what then should be done to build the underlying scientific and technical capacity to contribute to the policy dialogue, development and implementation of IPR, to ensure the effective participation of ACP scientists in international negotiations and, simultaneously, to enhance their contribution to developing national systems to protect and support inventions and innovation?
For an introduction to intellectual property, see the WIPO Intellectual Property Handbook: Policy, Law and Use.
Basic Workbook in Intellectual Property Management by F.H. Erbisch, ABSP, Michigan State University, June 2004. This book explains the agreements used in transferring intellectual properties from one organization to another or one researcher to another. It aims to provide a base for organizations in various countries to develop 'standard' intellectual property transfer agreements that are in accordance with the country?s laws as well as the organization?s policies.