While the world is struggling to come to terms with COVID-19 outbreak, developing countries and organizations have to deal with yet another problem-‘Food Security’. According to an FAO analysis (as of 24 April 2020), due to a lack of timely and effective policies, millions are likely to join the ranks of the hungry as a result of the COVID-19-triggered recession. Farmers and small scale agro-businessmen will also face challenges in accessing markets to sell their products or buy essential inputs or struggle due to higher food prices and limited purchasing power. When it comes to the battle against COVId-19 IPR has had a positive impact in the form of a patent pool, but can IPR be used to overcome food insecurity? Or does IPR in agriculture only aims towards the commercialization of agriculture?
According to World Food Summit, 1996, “Food security, at the individual, household, national, regional and global levels [is achieved] when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life”. In simpler terms, food security is achieved by a country when all people, at all times have access (both physical and economical) to nutritious food which meets their dietary needs to lead a healthy life. Considering Article 25 of the Universal Declaration of Human Rights (1948), ‘Right to Food’ is an important human right; and food security is essential to exercise this right. Thus, every country aims to achieve ‘Food Security’.
The food security of a country has a direct relation to its agrarian capabilities, trade abilities, and economic development. Introducing IPR in agriculture ensures that the most developed nations with agricultural innovations can easily overcome food insecurity. When it comes to developing and underdeveloped member countries, The World Trade Organization and FAO induced them to introduce IPRs into the agricultural sector by showing the economic benefits involved in that.
FAO came up with PGRFA (Plant Genetic Resources for Food and Agriculture) treaty in 2001, this treaty focuses on farmers’ rights and was the first treaty to link PGRFA with IPR instruments. It recognized farmers’ rights over traditional knowledge and the right to participate in decision making for the management of plant genetic resources. In order to balance the interests of small farmers and big private seed companies, this treaty put forth a Material Transfer Agreement according to which the monetary benefits from the benefit-sharing arrangements should be primarily transferred to farmers who conserve PGRFA. This treaty aimed at providing legal status to agricultural plant generic resources and granting incentives to commercial breeders through IPR.
Even the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement talks about IPR and its position in agriculture and food security. Article 8 states that while implementing TRIPS at the domestic level the member nations can adopt measures to promote public interest and nutrition to facilitate their socio-economic development. Even though TRIPS dictates member nations to impose IP protection of plant varieties, it also grants some exceptions where countries can exclude patentability where it is necessary to protect human, animal or plant life or health.
Further, Article 27(3)(b) gives the member states the liberty to introduce an alternative system to deal with the patentability of plant varieties. Thus, developing countries can frame their policies in a manner that attracts private seed research companies but doesn’t compromise with the public welfare.
In 1961, the International Convention for the Protection of New Varieties of Plants (UPOV Convention) was adopted. It is the only IP treaty that directly focusses on agriculture. This convention sheds light on plant breeders’ rights. Plant breeders’ rights provide exclusive commercial rights to the breeder of a new variety, it rewards the inventive process and rights are granted for a limited period after which it is available for public use.
UPOV recognized the exclusive rights of plant breeders to produce protected varieties and to commercialize them. Under the 1991 version of the Convention, farmer’s privilege (The legal ability to reuse IPR-protected seed) was made optional.
Countries can choose any method from commercialization-oriented UPOV to farmer oriented PGRFA, but they should keep in mind that the UN Charter prevails over all other treaties. Thus, when the choice is between human rights (Right to Food) and agriculture-related IPRs, the former will prevail. Ideally developing countries should go for a farmer-oriented IPR regime, but in practice, they cannot avoid the commercialization of agriculture due to the increasing global trend of establishing sovereignty over plant resources.
Another con to the introduction of IPR in agriculture is that IPR systems are underdeveloped in areas like farmers’ rights and traditional knowledge, primarily because IPR's main focus is to protect state-of-the-art inventions. IPRs tend to prefer control over seeds and concerned knowledge by agri-businesses at the expense of small farmers. The other problem is that the research agenda is not often aimed towards the needs of the poor since most research is carried out with a view to developing commercially beneficial products.
Thus, while forming agriculture-related IPR policies the developing countries have to ensure that the research is geared towards the needs of low-income groups who are struggling with the hunger crisis. E.g. According to existing studies, in India, neither the public nor the private domestic sector has been able to take advantage of the new IPR regime in agro-biotechnology.
However, provisions such as Article 27(3)(b) of the TRIPS Agreement provide such developing countries an option within the TRIPS framework to develop new forms of IP protection which also takes into account their food security objectives and other social objectives which have not been addressed in the agreement.
Developing countries can still claim benefits from IPR, by using it as a tool to promote the development of biotechnology industries that can genuinely contribute to food security. IPR involvement in agro-biotechnology also provides legal security for those private investors who, in absence of such protection, would not have invested in the field.
Intellectual property rights in the agricultural sector have their fair share of pros and cons, it all comes down to how the developing countries adopt the treaties and balance them with their food security goals. IPR cannot be completely ignored in this field, these rights are crucial in achieving security for investors. Such investments fuel innovation and innovation fuelled the Green Revolution, which previously defeated food security issues. Thus, proper IPR framework which is tailored according to the social needs of the respective developing/underdeveloped country will certainly prove to be beneficial for food security.
References:
COVID-19: Using economic stimulus to reduce the long-term hunger impact, FAO, (Accessed on May 30, 2020, 11 AM), http://www.fao.org/news/story/en/item/1273127/icode/
Chapter 2. Food security: concepts and measurement, FAO, (Accessed on May 30, 2020, 12:30 PM)
Universal Declaration of Human Rights, UNITED NATIONS, (Accessed on May 30, 2020, 13:15 PM), https://www.un.org/en/universal-declaration-human-rights/
Part II — Standards concerning the availability, scope and use of Intellectual Property Rights, WORLD TRADE ORGANIZATION, (Accessed on May 30, 2020, 13:40 PM)https://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm
Dr. Philippe Cullet,Food security and Intellectual Property Rights in Developing Countries, International Environmental Law Research Centre, (Accessed on May 31, 2020, 2 AM)http://ielrc.org/content/w0303.pdf
Anitha Ramanna, Policy implications of India’s patent reforms- patent applications in post1995 era’, XXXVII economic & political weekly 2065 (2001).