Breeding Apples for Oranges: Africa's Misplaced Priority Over Plant Breeders’ Rights

Abstract

In 2000, African countries expressed reservation over the adoption of UPOV Act of 1991 as a model of plant breeders’ rights (PBRs) for TRIPS‐compliance. For the continent, an acceptable system of PBRs protection would include the protection of the rights of communities and associated indigenous knowledge, innovations, technologies and farming practices. One and half decades after, Africa has virtually reversed itself and embraced the UPOV‐PBRs system notwithstanding the latter's narrow focus on breeders and marginal reference to farmers. This Article critically explores the concerted sites of pressures, especially free trade and economic partnership agreements, and related policies through which Africa appears to have capitulated and upturned its policy position on PBRs. The continent's present priority over the implementation of PBRs through various regional and national legal initiatives currently at the instance of African Intellectual Property Organization (OAPI), the African Regional Intellectual Property Organization (ARIPO), the Southern African Economic Community (SADC) and specific country initiatives are explored. The article highlights the basis for the incongruity of Africa's newfound interest in the UPOV‐PBRs system—a regime not designed for the farmer‐centered tenor of African agriculture. It calls attention to the continued relevance of Africa's 2000 Model Law, especially as it applies to PBRs and recommends reality assessment as an important step toward the formulation of IPRs system suited for stakeholders in African agriculture for the continent's food security and food sovereignty.

Examining plant variety protection in Nigeria: Realities, obligations and prospects

“…In leaving the implementation of these rights to parties, Keith Aoki and Kennedy Luvai argue that the ITPGRFA is a vague commitment to farmers’ rights (Aoki & Luvai, ) . Similarly, Chidi Oguamanam points out that the inclusion of subject to national law and as appropriate in Article 9.3 of the ITPGRFA allows competing national laws to take priority over the implementation of the ITPGRFA (Oguamanam, ).…”

“…Indeed, these bilateral trade and investment agreements (or TRIPS‐plus agreements) are more instrumental to IPRs reforms in the Global South than TRIPS (Campi & Dueñas, ; Maskus & Ridley, ) . Two other regional intergovernmental organizations: the African Regional Intellectual Property Organization (ARIPO)—which has 19 members and the Southern African Development Community (SADC)—which has 15 members have also initiated the process of acceding to the UPOV 1991 Convention (Oguamanam, ; Strba, ) . ARIPO and SADC's accession to UPOV would result in about 80% of African countries becoming UPOV members because 44 of the 54 African countries belong to OAPI, ARIPO and SADC…”

“…However, the value of having a comprehensive sui generis system is that it not only opens up opportunities for a WTO member state to reconcile conflicting pending obligations, it also allows it to balance stakeholders’ competing interests (Ekpere, ). A comprehensive sui generis system embodies the interconnections between breeder's rights, farmers’ rights, access and benefit sharing as well as biodiversity conservation which is invaluable to small‐scale centered agricultural systems prevalent in the Global South (Oguamanam, ).…”

To make one's name famous:

“…Some in The Gambia and other parts of sub‐Saharan Africa saw this new regulatory infrastructure as vital to efforts to build a commercial seed market and attract private investment in plant breeding (ARIPO ). Others—particularly civil society organizations and the leaders of farmers’ groups—saw the idea of granting exclusive intellectual property to breeders of new varieties as a problem for farmers’ practices of saving, exchanging, and experimenting with seed (ACB ; Oguamanam ). Additionally, many of those who were skeptical of PVP viewed such state‐level support for a highly proprietary iteration of intellectual property protection as a troubling departure from the approach taken in the African Union Model Law (AFSA ).…”

Towards a flexible plant breeders’ rights system in Kenya

“…By establishing a PBRs system at par with UPOV 1991, African countries hope to incentivize breeding and the introduction of new varieties, allowing farmers to access "a wide range of improved varieties to contribute to the attainment of the regional goal of economic development and food security" (ARIPO, 2015, Preamble). Yet, these developments are strongly criticised by several academics (Haugen, 2015;Oguamanam, 2015) and Civil Society Organizations (CSOs) from across Africa and the world. 256 Generally, they are of the opinion that the proposed legal framework is unsuitable for most countries in the region as it exclusively favours "commercial breeders' interests and marginalises the small-scale farmers that for centuries have been the backbone of Africa's agricultural system" (CSOs, 2012).…”