Modern research focusing on Africa proposes adoption of a sui generis regime as the best framework for integrating Farmers’ rights and PBRs to support the continent’s food security interests.420 This is based on the fact that alternative sui generis systems for IPRs allow for more flexibility for setting balances between the interests of diverse actors and for harmonizing IP with customary norms in comparison with the predetermined frameworks under TRIPS and the UPOV.
Therefore, West African countries might like to consider developing common standards for regional harmonization of national PVP laws based on a sui generis approach, which will protect the region’s food security interests.
The desirability of sui generis regulation is confirmed by the actions of Africa’s regional organizations. For example, in 1999, Kenya’s communication to the WTO on behalf of the African Group it asked for the revision of TRIPS to prohibit the patenting of life forms and permit national sui generis regulation in African states to protect the rights of farmers, indigenous and local communities, based on a recommendation of the Organization for African Unity (OAU). The African Group and the African Caribbean and Pacific (ACP) countries put forward a similar request in 2001, at the WTO Ministerial meeting in Doha. 421
420 See Alliance for Food Security and Sovereignty in Africa [AFSA], “AFSA Submission for Urgent Intervention in Respect to Draft ARIPO Plant Variety Protection Protocol (PVP) and Subsequent Regulations”, (July 2014). Online:
<http://acbio.org.za/wp-content/uploads/2015/ 02/AFSA-Susbmission-ARIPO-PVP-Protocol.pdf> (accessed 8 June 2016); P Munyi, B de Jonge & B Visser, “Opportunities and Threats for to Harmonisation of Plant Breeders’ Rights in Africa: ARIPO and SADC” (2016) 24:1 African Journal of International and Comparative Law 86; C. M Correa, S. Shashikant and F. Meienberg, Plant Variety Protection in Developing Countries: A Tool for Designing a Sui Generis Plat Variety Protection System: an Alternative to UPOV 1991 (Bonne: ARBREBES 2015); Oguamanam, IP Agricultural Biotechnology and the Right to Adequate Food, supra note 151; Devlin Kuyek, “Intellectual Property Rights in African Agriculture: Implications for Small Farmers”, GRAIN, August 2002, at 16 [Kuyek, IPRs in African Agriculture].
421 Third World Network, “Africa Group Proposals on TRIPS for WTO Ministerial,” online: <http:
//www.twnside.org.sg/title/ trips2.htm>; ACP Declaration on the Fourth Ministerial, Brussels, 5 to 6 November 2001, Communication from Kenya, WT/L/430 (2001).
The ultimate responsibility for implementing farmers’ rights lies on individual states. India and Zambia provide two examples of states that have already taken significant legislative action in this area. The ITPGR leaves states to create their own methods of protecting farmers’ rights and TRIPS leaves the choice of how to implement protection for plants and genetic resources to member countries. As a result, nations are ultimately responsible for the way in which IPRs and farmers’ rights interact domestically.422
In 1998, in an attempt to integrate their obligations under TRIPS to provide PVP, with their commitment in non-IP multilateral agreements to support food security in the African context, 423 the Council of Ministers of the Organization of African Unity (OAU) adopted a Model Law for the Protection of the Rights of Local Communities, Farmers, Breeders and Regulation of Access to Biological Resources. The language of the Model Law indicates that because a majority of food agriculture in the continent is based on subsistence farming, using traditional knowledge and local practices like the free exchange and reuse of seeds by farmers, achieving food security in the region will require the accommodation of community rights, farmers’ rights, prior informed consent and disclosure of origin of plants and genetic materials, and access and benefit sharing obligations as a necessary part of IP regulations in Africa.
According to the Model Law, the rights of local communities over their biological resources, knowledge and technologies represent the very nature of their livelihood systems and have evolved over generations of human history, are of a collective nature and, therefore, are a priori rights which take precedence over rights based on private interests.424 The objective was to recognize
422 Winter, Cultivating Farmers’ Rights, supra note 319, at 251.
423 J. A. Ekpere, The OAU’s Model Law: The Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, An Explanatory Booklet (Lagos: Organisation of African Unity, Scientific, Technical and Research Commission, 2000) at 4.
424 OAU Model Law, Part I, Objectives; Part IV, Community Rights, Articles 16, 18, 20-21 and 23.
and protect the rights of breeders on the one hand and farmers’ rights on the other. The Model Law granted farmers exclusive rights including the rights to use, save, sell and exchange seed or propagating material. In particular, farmers’ rights would include the right to:425 (a) the protection of their traditional knowledge relevant to plant and animal genetic resources; (b) obtain an equitable share of benefits arising from the use of plant and animal genetic resources; (c) participate in making decisions, including at the national level, on matters related to the conservation and sustainable use of plant and animal genetic resources; (d) save, use, exchange and sell farm-saved seed/propagating material of farmers’ varieties; (e) use a new breeders’ variety protected under this law to develop farmers’ varieties, including material obtained from gene banks or plant genetic resource centres; and (f) collectively save, use, multiply and process farm-saved seed of protected varieties. However, farmers would not have the right to sell farm-saved seed/propagating material of a breeders’ protected variety in the seed industry on a commercial scale. In addition, breeders’ rights on a new variety would be subject to restriction with the objective of protecting food security, health, biological diversity and any other requirements of the farming community for propagation material of a particular variety.426
This study views the African Model Law as an example of a framework to provide an effective sui generis system that would protect rights of plant breeders while considering farmers’
rights. Room exists for adoption of sui generis models in TRIPS, and the Doha Declaration.
2.6 Conclusion
The multilateral IP regime allows for food security advancement in regulations that provide for public interest objectives for IP protection; along with exceptions and limitations to IPRs for public
425 OAU Model Law, Article 26.
426 Strba, Legal and Institutional Considerations for PVP, supra note 221, at 192-193.
interest purposes including public health, biodiversity, the environment, and the status of a country as an LDC or developing country. However, given the lack of detailed analysis and non-application of TRIPS objectives and flexibilities in international WTO jurisprudence,427 policy space exists for the development and implementation of these flexibilities through regional IP treaties in West Africa.
Furthermore, the multilateral IP regime adopts the principle of differentiation, which allows countries to adopt varying methods or forms in implementing IP standards. The WTO TRIPS Agreement provisions in Article 27 are, especially relevant in relation to food security, as they allow countries and regions to design alternative frameworks for plant protection suited to their food security interests.428 Consequently, harnessing IP regulation to advance food security requires the development of differentiated IP laws and policies at the regional level, specifically designed to support the conditions necessary for food security in West Africa, as espoused in the first chapter of this thesis. Applying the differentiation principle to further food security in West Africa will require provisions for national sovereignty, farmers’ rights, prior and informed consent, access and benefit sharing, and human rights exceptions, at the regional level.
Because IP and food security are regulated by a number of fragmented multilateral agreements whose subject matters overlap, but which vary greatly in overall objectives, advancing food security necessitates development of a framework that integrates multilateral interests like increased global trade with regional food security interests in West Africa. This may be achieved
427 In Canada – Patent Protection of Pharmaceutical Products and European Communities–Protection of
Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, the Panels mention Articles 7 and 8, but stop short of applying them to create legal rights and obligations. Similarly, the decisions in Canada – Term of Protection and US – s211 Omnibus Appropriations Act of 1998 recognize these provisions as expressions of general international law such as the ‘good faith’ principle, without detailed assessment of how these provisions are to be understood and applied.
428 Laurence Helfer “Intellectual property rights in plant varieties: International legal regimes and policy options for national governments” (2004) FAO Legislative Study 85.
by applying the conflict of laws principles found in general international law to the interpretation and implementation of IP regulation.
West Africa’s regional agreements must also allow for dynamic interpretation of IP laws, so as to adopt changing multilateral perspectives of IP norms as demonstrated in the Doha Declaration, which indicate that the public interest objectives of IP protection be given greater weight in the formation and implementing of IP systems. Several IP concepts relevant to food security, including ‘innovation’, remain unclear in multilateral IP agreements and jurisprudence.
With Article 3.2 of the WTO Dispute Settlement Understanding (DSU) in mind, these ambiguities shall be clarified “in accordance with customary rules of interpretation of public international law.”
It is established WTO jurisprudence that this provision calls for the application of Articles 31-32 VCLT, even though the VCLT is not treaty law for all WTO members. Article 31.1 VCLT requires that treaty provisions be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”. Thus, TRIPS objectives will have significant impact on the interpretation of ambiguous terms.429 This leaves room for their description in regional IP agreements and interpretations. Literature exists which has defined innovation to include local inventions and traditional knowledge in Africa.430
429 Henning G. Ruse-Khan, “Proportionality and Balancing within the Objectives for Intellectual Property
Protection” in Paul Torremans, ed, Intellectual Property and Human Rights (Alphen aan de Rijn, The Netherlands:
Kluwer Law International, 2008), at 170.
430 Jeremy de Beer, Izabela Sowa & Kristen Holman, “Frameworks for Analyzing African Innovation:
Entrepreneurship, the Informal Economy and Intellectual Property”, in Jeremy de Beer et al (eds), Innovation and Intellectual Property: Collaborative Dynamics in Africa (Cape Town: UCT, 2014) 32.
Key Findings
• IPRs may be adapted as instruments to support food security, as a public interest objective of IP regulations.
• Food security is protectable either as part of the overarching objectives of IP agreements; or by considering flexibilities and norms in non-IP agreements relevant to food security in Africa, such as the right to food, sustainable development, farmers’ rights, and traditional knowledge to create exceptions and limitations to IPRs; or by considering how IP and relevant non-IP agreements interrelate under general international law in Articles 31.3, 41 and 30 VCLT.
• Both the social, as well as the economic and trade objectives, of IP regulations should be given equal weight in interpreting IP laws. Such balancing of interests requires contextual analysis of the impact of IP regulations and holistic consideration of relevant non-IP agreements such as the CBD and Nagoya Protocol, ITPGRFA, FAO-SDGs and Traditional Knowledge regulations.
• The objectives of various multilateral treaties may be integrated to support food security through adoption of general international laws on conflict of laws. International IP agreements do not operate in a vacuum. Based on the principle of interrelatedness of laws, due consideration must be given to subsequent agreements made within the meaning of Article 31.3(a) of the Vienna Convention on the Law of Treaties.
• Multilateral IP agreements, while providing generally for food security, do not give details on the mode by which it should be applied. Thus, they leave room for regulating the application of food security exceptions and interests at the regional and domestic levels.
• Food security requires differential application of IP protection that varies across countries and sectors (one size does not fit all).
• The public interest objectives and rights affected by IP regulations, including food security, may be integrated through a sui generis regime
• Instrumentalist and differential approaches to IP regulation are not contradictory to IP regimes
• Dynamic interpretation of IP norms is necessary to advance food security. For example, specific regulation is required to adopt and practically implement the paradigm shifts reflected in the WIPO development agenda and WTO Doha Declaration. Room exists for interpretation of terms not defined in multilateral IP agreements at regional levels.
Having highlighted the principles established under multilateral IP agreements that are necessary for harnessing IP regulations to advance food security, the next chapter critically examines the provisions of contemporary regional agreements relevant to IP and food security in West Africa to see whether and to what extent they embrace the above principles.
CHAPTER 3: Integrating Food Security in West Africa’s IP related Regional and