Home | Thailand Law Firm Referral | Thailand Law Journal | Thailand Law News | Directory

 

Thailand Law Journal 2010 Spring Issue 1 Volume 13

3. Effective Plant Variety Protection as National Development Policy  
As discussed in the previous part, South Korea has achieved development by successfully undertaking a series of development initiatives, which included IP policies. Contribution of IP to economic development has been widely studied and well documented.33 Leading scholars such as Mansfield, Straus, and Gervais have studied the effect of IP on development and concluded that the adequate protection of IP had positive effect on economic development in those countries in certain key industries in various ways.34 This part considers the IP option to be utilized as national development policy for Thailand.

3.1 Rationale for the Implementation of Effective Plant Variety Protection as Development Policy
What lesson can be learnt from those East Asian experiences is that any country cannot achieve development without proper protection of IP. Instead of arguing whether or not to protect IP, the focus must move on to the type of IP strategies that can be incorporated into national development policy. It should bear in mind the fact that Thailand is different to South Korea and other East Asian countries, and consequently needs different implementation of IP strategy that can best serve the country’s socio-economic priorities. This raises the question as to what would be the most suitable IP strategies for Thailand.

As discussed earlier, agriculture represents the primary economic activity in Thailand. It specifically employs the greatest portion of the Thai working population,35 and thus Thailand should seek to tailor IP development strategy that consistent with the development interest of the majority of this group of people. Of various IP policies, plant variety protection is particularly relevant, and protecting plant varieties would be stepping stone for Thailand to achieve agricultural development through higher levels of technology transfer, increased R&D and local innovation, inward foreign direct investment, and increased economic growth and development in this sector. It touches the question of economic development, agricultural management, and livelihood of farming population. These are also evidence that PVP have played a positive role in the consolidation of agricultural industries,36 and several studies have shown that an effective PVP system had induced the private sector to increase its investment in developing commercial plant varieties, and thus increasing production and sales.37 Viewed from this angle, an effective plant variety protection would be the most suitable IP strategy for promoting development of Thailand, alternative to other IP strategies promoted by East Asian countries, such as South Korea, in their rapid development period. As noted above, this article does not assume that an effective plant variety protection system alone will be sufficient to promote agricultural development of Thailand. There are a number of factors that would be essential for the promotion of agricultural development. Nevertheless, an effective plant variety protection is one of the most crucial elements for promoting development in this sector.

Rules of international trade under the WTO/TRIPS Agreement control the way in which plant variety protection is implemented, and thus needs to be considered. Currently, the WTO/TRIPS Agreement regulates the conduct of 153 sovereign member states, including Thailand on plant variety protection.38 The following part examines the regulatory framework for plant variety protection under the WTO/TRIPS Agreement that will be relevant to Thailand’s plant variety protection and development issues.

3.2 Rules of International Trade for Plant Variety Protection under the WTO/TRIPS regime
One argument of the article is that effective plant variety protection should be adopted as development policy to promote development. The TRIPS Agreement also supported this effective plant variety protection rationale and provided for the requirements of plant variety protection. Article 27.3(b) of the TRIPS Agreement specifically recognizes the need to utilize plant variety protection system as an instrument of development policy by authorizing all WTO Members to develop any forms of plant variety protection sympathetic to their socio-economic priorities. The provision of this Article states that:
[M]embers shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.39

Clearly, this provision of TRIPS establishes a binding rule on the international protection of plant varieties, but the provision does not require WTO Members to introduce patents.40 The wording of TRIPS Article 27.3(b) specifically creates a flexible standard of protection, which all members of the WTO are free to choose the most suitable type of intellectual property system: (1) patents, (2) an effective sui generis system, or (3) a combination of both patents and sui generis system to protect plant varieties in their jurisdictions.41 This flexibility offers WTO Members some leeway that can and should be utilized plant protection regimes as national development policy suited to their specific needs and priorities, provided that the system is effective.42 Such reading of the plant variety protection requirement fits more comfortably with the objectives and principles of TRIPS, which views plant variety protection system as an IP mechanism to promote members’ social and economic welfare. The objective of the TRIPS Agreement found in Article 7 states that:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conductive to social and economic welfare, and to a balance of rights and obligations.43
More importantly, the principle of TRIPS found in Article 8 of the Agreement recognizes members’ rights to prioritize IP policies consistent with their national public interest. TRIPS Article 8 specifically provides that

Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sector of vital importance to their socio-economic and technological development, provided such measures are consistent with the provisions of this Agreement.44

Clearly, if plant variety protection is implemented in bona fide and correct manner, such protection can contribute to a number of benefits, i.e. the promotion of innovation, increased foreign direct investment (including technology transfer), and enhanced social and economic welfare.

It should be noted however, that at present there are some concerns regarding the interpretation of the TRIPS Article 27.3(b) because the provision of TRIPS Article 27.3(b) provides no guidance on what is meant by effective, and the debate having focused upon which system to satisfy the TRIPS requirements.45 The UPOV Convention appears to be the only system for plant variety protection that exists in international law.46 Specifically, the Convention grants exclusive protection offered to breeders over the propagating material of varieties, but grants very limited privileges to farmer regarding the re-use of harvested seeds, and also to exchange seed with their farm neighbors.47 There is much recent scholarship on the sui generis regime under the UPOV Convention, but whether it has been effective within the context of TRIPS is a matter of opinion. Supports of UPOV assume that the Convention would fit with the requirement of ‘effective’ sui generis system in TRIPS Article 27.3(b).48 Conversely, critics, however, argue that UPOV’s effectiveness is problematic, considering that it does not adequately recognize the rights of farmers.49 Whether or not UPOV is effective within the context of TRIPS is beyond the scope of this article. It is interesting to point out that the TRIPS Agreement does not make any reference to the UPOV Convention that could be compared to the mentioning of the Berne Convention,50 the Paris Convention,51 the Rome Convention,52 and to the Treaty on Intellectual Property in Respect of Integrated Circuits,53 in Article 3 of the TRIPS Agreement.54 Thus, it is arguable that WTO Members have the discretion to choose their own legal system for the protection of plant varieties, which is not the only standard as stipulated in the UPOV Convention. The only requirement for WTO Members is to develop an effective plant protection system that can best serve their local peculiarities and development policies.

[1]  [2]  [3]  [4]

33. United National Educational, Scientific and Cultural Organization (‘UNESCO’), Understanding Creative Industries: Cultural Statistics for Public Policy-Making (Paris: United Nations Educational, Scientific and Cultural Organization, 2006); UNESCO, International Flows of Selected Cultural Goods and Services (Paris: United Nations Educational, Scientific and Cultural Organization, 2005); United Nations Conference on Trade and Development (‘UNCTAD’), The TRIPS Agreement and Developing Countries (Geneva: United Nation Publication, 1996).

34. Mansfield, E, above n 6; Straus, J, above n 7; Gervais, D, above n 8.

35. Centre for Agricultural Information, above n 1.

36. See Graham Dutfield, Intellectual Property and the Life Science Industries: A Twentieth Century History (Aldershot: Asgate, 2003); C.S. Srinivasan, ‘Concentration in ownership of Plant Variety Rights: Some Implications for Developing Countries’ (2003) 28 Food Policy, 519–546; and Daniel Robinson, Exploring Components and Elements of Sui Generis Systems for Plant Variety Protection and Traditional Knowledge in Asia (ICTSD Programme on IPRs and Sustainable Development, Regional Research Agenda, 2007); Bongo Adi, ‘Intellectual Property Rights in Biotechnology and the Fate of Poor Farmers’ Agriculture’ (2006) 9(1) J. World Intell. Prop., 91–112; and Claudio Chiarolla, ‘Commmodifying Agricultural Biodiversity and Development-Related Issues’ (2006) 9(1) J. World Intellectual Property, 25–60 (arguing that plant variety protection regimes should respond to broad societal objectives and promote sustainable agriculture).

37. See e.g., Bashar H. Malkawi, and Haiham A. Haloush, ‘Intellectual Property Protection for Plant Varieties in Jordan’ (2008) 11(2) J. World Intellectual Property, 120–138; David S. Locke, ‘Intellectual Property for the Botanist and the Plant Breeder: An Overview of Protection Afforded by Plant Patents and Plant Variety Protection Certificates’ (2007) 6 Chi.-Kent J. Intell. Prop., 198; Mary K. Knudson and Carl E. Pray, ‘Plant Variety Protection, Private Funding, and Public Sector Research Priorities’ (1991) 73(3) American Journal of Agricultural Economics, 882–886.

38. The TRIPS Agreement, above n 9. The protection of plant varieties has been the objective of international trade law since the adoption of the TRIPS Agreement in the multilateral trade agreement of the WTO in 1995. It is noted that there are also a number of regional and bilateral trade agreements that regulate the rules of plant variety protection at international level, and would be relevant to the Thailand’s plant protection issues. These documents include the North American Free Trade Agreement, the Free Trade Area of the Americas, and other Free Trade Agreements (‘FTA’), such as FTAs between Thailand and other countries. However, in light of broad nature of this topic and the desire to discuss issues in depth, this article will be generally limited to the discussion of TRIPS, which has heralded a major shift towards the imposition of plant variety protection in most countries of the world, and thus is particularly relevant for the examination of Thailand’s plant protection issues.

39. Ibid,art 27.3(b).

40. Carlos M. Correa, Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement (New York: Oxford University Press, 2007) at 293–4; and Philippe Cullet, ‘Plant Variety Protection in Africa: Towards Compliance with the TRIPS Agreement’ (2001) 54(1) Journal of African Law, 97 at 99.

41. This flexibility presents a range of possibilities from systems, like plant patents system of the United State or specific plant variety protection of the European Union, to the possibility of modifying plant protection regimes suited to the needs and priorities of developing countries see, Joseph Straus, ‘Bargaining Around the TRIPS Agreement: The Case for Ongoing Public-Private Initiatives to Facilitate Worldwide Intellectual Property Transactions: A Comment on the Paper Presented by Professors David Lange, Duke University, and J.H. Reichman, Vanderbilt University’ (1998) 9 Duke J. Comp. & Int’l L., 91, at 100–1.

42. See, Maristela Basso and Edson Beas Rodrigues Jr., ‘Free Trade Agreements, UPOV and Plant Varieties’ in Christopher Heath, and Anselm Kamperman Sanders (eds), Intellectual Property & Free Trade Agreements (International Intellectual Property Law Series, Oxford: Hart Publishing, 2007) 171, at 171–72 (arguing that plant variety protection imposed by TRIPS is a tool to promote agricultural development in developing countries); see also, Srividhya Ragavan, and Jamie Mayer O’Shields, ‘Has India Addressed Its Farmers’ Woes? A Story of Plant Protection Issues’ (2007) 20 Geo. Int’l Envlt. L. Rev., 97, at 100 (highlighting that the flexibility of TRIPS allows WTO Members to adopt plant protection suited to their development needs and priorities).

43. The TRIPS Agreement, above n 12,art 7.

44. Ibid, art 8.

45. For a discussion see, Ragavan, S, and Mayer, J, above n 35, at 100; Adam Masarek, ‘Treetop View of the Cathedral: Plant Variety Protection in South and Southeast Asian Least-Developed Countries’ (2010) 24 Emory International Law Review 433–467; Dwijen Rangnekar, Geneva Rhetoric, National Reality: Implementing TRIPS Obligations in Kenya (CSGR Working Paper 241/08, March 2008); Olena V. Antonyuk and William A. Kerr, ‘Meeting TRIPS Commitments in Ukraine: An Important Challenge in the Quest for WTO Accession’ (2005) 8(3) J. World Intell. Prop., 271–282; Biswajit Dhar, Sui Generis Systems for Plant Variety Protection– Options under TRIPS (Geneva, Quaker United Nations Office, 2002); Philippe Cullet, ‘Revision of the TRIPS Agreement concerning the Protection of Plant Varieties: Lessons from India concerning the Development of a Sui Generis System’ (1999) 2(4) J. World Intell. Prop., 617–656, 626; and also Dan Leskien and Michael Flitner, Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System (Issues in Genetic Resources, June An1997), at 27, available at <http://www.grain.org/ docs/ipr-tradknowledge.pdf>.

46. See Graham Dutfield, and Uma Suthersanen, Global Intellectual Property Law (Cheltenham: Edward Elgar, 2008) at 191; Michael Blakeney, ‘Plant Variety Protection, International Agricultural Research, and Exchange of Germplasm: Legal Aspects of Sui Generis and Patent Regime’ in Anatole Krattiger et. al. (eds), Intellectual Property Management in Health and Agricultural Innovation: A Handbook of Best Practices (Oxford: MIHR, 2007) 401.

47. The UPOV Convention, above n 14.

48. The arguments in favor of the UPOV Convention are discussed in a large body of work including: Review of the Provisions of Article 27.3(b) Summary of Issues Raised and Point Made, WTO Doc IP/C/W/369/Rev.1 (9 March 2006) (Note by the Secretariat) [61]; Nuno Pires de Carvalho, The TRIPS Regime of Patent Rights (The Hague: Kluwer, 2002), 219; Barry Greengrass, Plant Variety Protection and the Protection of Traditional Knowledge, UNCTAD Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices (Geneva, 2000) at 4 available at <http://www.unctad.org/trade_env/docs/upov.pdf>; Michael Halewood, ‘Indigenous and Local Knowledge in International Law: A Preface to Sui Generis Intellectual Property Protection’ (1999) 44 McGill Law Journal, 953 at 962; Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis (London: Sweet & Maxwell, 1998) 151; Geoff Tansey, Trade, Intellectual Property, Food and Bodiversity (London: Quaker Peace & Services, 1999); Buswajit Dhar, and Sachin Chaturvedi, ‘Introducing Plant Breeders’ Rights in India: A Critical Evaluation of the Proposed Legislation’ (1998) 1(2) J. World Intell. Prop., 245 at 257; and Peter Sutherland, ‘Seeds of Doubt – Assurance on Farmers’ Privilege,’ The Time of India (India), 15 March 1994 (arguing that the UPOV Convention would enjoy the presumption of the effectiveness requirement of TRIPS Article 27.3(b) with respect to sui generis system for plant variety protection).

49. For a discussion see, Prabhash Ranjan, ‘Recent Developments in India’s Plant Variety Protection, Seed Regulation and Linkages with UPOV’s Proposed Membership’ (2009) 12(3) J. World Intell. Prop., 219; Kanchana Kariyawasam, ‘The Recent Law Reforms and Plant Intellectual Property Law in Sri Lanka: Compliance with the TRIPS and CBD’ (2005) 7 The Australian Journal of Asian Law, 169 at 173–74; Dwijen Rangnekar, ‘Plant Breeding, Biodiversity Loss and Intellectual Property Rights,’ Economic Discussion Paper (Kingston upon Thames: Kingston University, Faculty of Human Sciences, 2000); Genetic Resources Action International, Ten Reseasons Not To Join UPOV: Global Trade and Biodiversity in Conflict (GRAIN Publication Issue No. 2, May 1998) available at <http://www.grain.org/ seedling/?id+10>; see e.g., Ragavan, and Mayer, above n 35 at 110–11; Cullet, above n 38, at 655.

50. Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, as last revised at Paris, 24 July 1971 (amended 1979), 828 UNTS 211.

51. Paris Convention for the Protection of Industrial Property, 20 March 1883, as last revised at Stockholm, 14 July 1967, 21 UST 1538.

52. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 26 October 1961, 12 UST 2377.

53. Treaty on Intellectual Property in Respect of Integrated Circuits, 26 May 1989, 28 ILM 1477 (1989).

54. See, the TRIPS Agreement, above n 12.



 

© Copyright Thailand Law Forum, All Rights Reserved
(except where the work is the individual works of the authors as noted)