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Legal and institutional considerations for plant variety protection and food security in African development agendas: solutions from WIPO?

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Abstract

African institutions are increasingly embracing high standards of intellectual property protection in their ‘development agendas’. In particular, concerning plant variety protection (PVP), one observes a worrying trend of premature harmonisation of PVP standards despite the possible negative impact on food security and access to food on the African continent. Scholarship and debate on PVP protection has tended to ignore the role of WIPO when consi`dering solutions to PVP and food security. This paper posits that WIPO has a role to play in enabling the use of intellectual property in African ‘development agendas’ for agricultural innovation in a way that leads to long-term food security and access to food. This role stems from the organization’s original mandate as well as the way it has adapted and continues to adapt its programmes in an attempt to provide practical solutions to new challenges of IP governance. The paper addresses the relationship between WIPO, PVP and food security in Africa from a legal and institutional perspective. How can WIPO contribute to agricultural innovation and PVP in a way that caters to African development? Particular attention is paid to WIPO’s contribution to the legal and policy architecture of the African Union (including the implementation of the African Union Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources), the Africa Regional Intellectual Property Organization (ARIPO), the African Intellectual Property Organization (OAPI) and the Southern African Development Community (SADC).
Legal and institutional considerations for plant
variety protection and food security in African
development agendas: solutions from WIPO?
Susan Isiko
Strba*
Introduction
Various African institutions have recently emphasized
the role of intellectual property in their development
programmes. One such prominent area is plant variety
protection (PVP), which has a development impact on
food security and access to food. PVP in Africa has at-
tracted a lot of debate and is often viewed with scepti-
cism as a tool for economic and social development of
the continent. Scholarship and reflection on PVP in de-
veloping countries in general and Africa in particular
has largely focused on the role of various international
institutions, including the International Union for the
Protection of New Varieties of Plants (UPOV), the
Food and Agricultural Organization of the United
Nations (FAO), the Convention on Biological Diversity
(CBD),
1
as well as industry plant breeders. Similarly,
numerous studies have examined the role of the African
Regional Intellectual Property Organization (ARIPO),
the African Intellectual Property Organization (OAPI)
and the Southern African Development Community
(SADC) and their relationship with UPOV, and offered
normative solutions within UPOV or alternatives to the
UPOV system. Consequently, proposals for plant var-
iety protection have included normative solutions
within UPOV, FAO, CBD or crafting sui generis plant
variety protection regimes.
2
Very little attention has
been paid to the role of the World Intellectual Property
Organization (WIPO). Yet because of its close inter-
action and almost privileged position as a partner with
The author
Susan Isiko
Strba is visiting Senior Research Fellow, University of the
Witwatersrand, Johannesburg, South Africa, and a Senior Research
Affiliate, University of Minnesota, Intellectual Property and
Development Program.
This article
African institutions are increasingly embracing high standards of in-
tellectual property protection in their ‘development agendas’. In par-
ticular, concerning plant variety protection (PVP), one observes a
worrying trend of premature harmonisation of PVP standards despite
thepossiblenegativeimpactonfood security and access to food on
the African continent.
Scholarship and debate on PVP protection has tended to ignore the
role of WIPO when consi‘dering solutions to PVP and food secur-
ity. This paper posits that WIPO has a role to play in enabling the
use of intellectual property in African ‘development agendas’ for
agricultural innovation in a way that leads to long-term food secur-
ity and access to food. This role stems from the organization’s ori-
ginal mandate as well as the way it has adapted and continues to
adapt its programmes in an attempt to provide practical solutions
to new challenges of IP governance.
The paper addresses the relationship between WIPO, PVP and food
security in Africa from a legal and institutional perspective. How can
WIPO contribute to agricultural innovation and PVP in a way that
caters to African development? Particular attention is paid to WIPO’s
contribution to the legal and policyarchitectureofthe African Union
(including the implementationoftheAfricanUnionModel
Legislation for the Protection of the Rights of Local Communities,
Farmers and Breeders and for the Regulation of Access to Biological
Resources), the Africa Regional Intellectual Property Organization
(ARIPO), the African Intellectual Property Organization (OAPI) and
the Southern African Development Community (SADC).
* Email: susan.isikostrba@graduateinstitute.ch. The author is grateful to
Olugbenga Olatunji, PhD student at the University of the
Witwatersrand, for his research assistance. This paper has benefitted
from discussions with Prof Jeremy de Beer and Prof Peter Yu. The au-
thor is grateful for their insights. The first and second drafts of this paper
were presented, respectively, at the 35th Congress of the International
Association for the Advancement of Teaching and Research in
Intellectual Property (ATRIP), which took place on 26–29 June 2016 in
Krakow, Poland, and at the 5th Conference of the Society of
International Economic Law, which took place on 26–29 July 2016 at the
University of the Witwatersrand, Johannesburg, South Africa. The author
thanks the participants for their comments and questions, which en-
riched her thinking on the topic. The author remains responsible for any
errors and omissions.
1 [1992] Convention on biological Diversity (adopted 5 June 1009, in force
29 December 1993), 1760 UNTS 79, (CBD).
2 See eg 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), available at <http://acbio.org.za/wp-content/uploads/2015/
02/AFSA-Susbmission-ARIPO-PVP-Protocol.pdf >(accessed 8 June
2016); P Munyi, B de Jonge and B Visser ‘Opportunities and Threats for
to Harmonisation of Plant Breeders’ Rights in Africa: ARIPO and SADC’
(2016) 24(1) Afr J Int’l and Comp L 86; CM 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 (ARBREBES Bonne 2015); C Oguamanam ‘Intellectual
Property, Agricultural Biotechnology and the Right to Adequate Food: A
Critical African Perspective’ (2015) 23(3) Afr J Int’l and Comp L 503.
V
CThe Author(s) 2017. Published by Oxford University Press. All rights reserved. doi:10.1093/jiplp/jpw209
Advance Access Publication 15 February 2017
Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3 191ARTICLE
various African economic and political institutions,
WIPO undoubtedly has a strong influence on national
and regional implementation of international obliga-
tions in the area of IP. This article argues that WIPO
has a role to play in enabling the use of intellectual
property in African ‘development Agendas’ for agricul-
tural innovation in a way that leads to long-term food
security and access to food. This role stems from the or-
ganization’s original mandate as well as the way it has
adapted and continues to adapt its programmes to
evolving demands in an attempt to provide practical so-
lutions to new challenges of IP governance. The pur-
pose of the paper is not to debate the proposed
solutions but to provide another avenue of addressing
PVP and access to food.
This article addresses the relationship between
WIPO, PVP and food security in Africa from a legal
and institutional perspective. It examines how this rela-
tionship impacts on agricultural innovation, food se-
curity and access to food in Africa. How can WIPO
contribute to agricultural innovation and PVP in a way
that caters to African development?
The article accords special attention to the role of
WIPO in the African Union (AU), (including the imple-
mentation of the African Union Model Law for the
Protection of the Rights of Local Communities, Farmers
and Breeders and the for the Regulation of Access to
Biological Resources), the ARIPO, the OAPI and the
SADC.
After the introduction, the article maps the new dir-
ections in PVP in agricultural innovation in African
development agendas, with particular emphasis on the
role of WIPO. Next, the article discusses opportunities,
issues and challenges for agricultural biotechnology for
food security and access to food in Africa. The article
goes on to briefly discuss agricultural biotechnology
that is suitable for African circumstances. Lastly, it
demonstrates how WIPO’s current involvement can be
tailored to promote PVP regimes that support African
development goals.
New directions in agricultural
innovation in African development
agendas: Contribution of WIPO
African leaders have in recent years increasingly empha-
sized the importance of science and innovation in
economic transformation of the African continent.
However, while some institutions have in the past taken
a cautious approach to IP protection in general and
PVP as the solution to the continent’s food security,
recent trends point to a move towards premature har-
monisation of IP standards.
The African Model Law
The first major attempt to regulate plant varieties and ad-
dress food security in Africa was the enacting, by the then
Organization of African Unity, of ‘The African Model
Legislation on the Protection of the Rights of Local
Communities, Farmers and Breeders, and for the
Regulation of Access to Biological Resources.’
3
The Model
Law sought to provide an effective sui generis system that
would protect rights of plant breeders while taking into
account farmers’ rights. According to the Model Law, the
rights of local communities over their biological resources,
knowledge and technologies that represent the very nature
of their livelihood systems and that 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.
4
As will be discussed
below, one of the contentions against PVP is the erosion
of traditional ways of farmers’ livelihood. The objective
was to recognize 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 mater-
ial. In particular, farmers’ rights would include the right
to: (a) the protection of their traditional knowledge rele-
vant 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’ vari-
eties; (e) use a new breeders’ variety protected under this
law to develop farmers’ varieties, including material ob-
tained from gene banks or plant genetic resource centres;
and (f) collectively save, use, multiply and process farm-
savedseedofprotectedvarieties.
5
However, farmers
would not have the right to sell farm-saved seed/propagat-
ing material of a breeders’ protected variety in the seed in-
dustry on a commercial scale.
6
In addition, breeders’
rights on a new variety would be subject to restriction
3 Organization of African Unity (OAU), The African Model Legislation on
the Protection of the Rights of Local Communities, Farmers and
Breeders, and for the Regulation of Access to Biological Resources
(Algeria, 2000), available at http://www.wipo.int/edocs/lexdocs/laws/en/
oau/oau001en.pdf. (accessed 9 January 2017). (Model Law).
4 Ibid, Preamble.
5 Ibid, Art 26(1).
6 Ibid, Art 26(2).
192 ARTICLE Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3
with the objective of protecting food security, health, bio-
logical diversity and any other requirements of the farm-
ing community for propagation material of a particular
variety.
7
The Model Law was heavily criticized by WIPO and
UPOV.
8
UPOV contended that public interest issues such
as food security, community rights and farmers’ rights
which the Model Law promotes should be separated from
the commercial rights of breeders.
9
On its part, WIPO
(not WTO) maintained that the Model Laws’ rejection of
patents on life forms is a violation of TRIPS obligations.
10
The two organizations ignore the primary objective of the
ModelLaw,tostrikeabalancebetweenthecommercial
interests of breeders, food security interests and cultural
and social interests of the community. In 2001, the AU at-
tempted in vain to reconcile its differences with UPOV
and WIPO.
11
Atthesametime,severalAUMember
States did not hold a unified position on the issues, for
various but connected reasons. Kenya and South Africa
were members of UPOV before the Model Law was
adopted. Others like Tunisia and OAPI, with its 16 mem-
bers at the time, were in the process of joining UPOV.
The STISA-24 and CAP
In July 2014, the AU Heads of State and Government
adopted the Science, Technology and Innovation Strategy
for Africa (STISA-2014),
12
a ten-year strategy as part of
the African Union Agenda 2063: The Africa We Want
(AU Agenda 2063).
13
The AU Agenda 2063 recognizes
science, technology and innovation (STI) as multi-
functional tools and as enablers for achieving continental
development goals. The Agenda acknowledges that
Africa’s sustained growth, competitiveness and economic
transformation requires sustained investment in new tech-
nologies and continuous innovation in areas such as agri-
culture, clean energy, education and health. Due to the
cross cutting nature of STI, the STISA-2024 is designed to
meet the knowledge, technology and innovation demands
in various AU economic and social sector development
frameworks. The STISA-2024 has a leading role to play in
increasing efficiency in the design and implementation of
national, regional and African Union policies on STI. In
particular, the Mission of STISA-2024 is to ‘Accelerate
Africa’s transition to an innovation-led, knowledge-based
economy’.
14
African leaders acknowledge that the contin-
entmaynotbereadyforcertainleveloftechnology,thus
emphasis is placed on getting ready for technology ab-
sorption. The STISA-24 recognizes the need for an ena-
bling environment and capacity for innovation and
technology absorption. Therefore, improving STI readi-
ness in Africa in terms of infrastructure, professional and
technical competence and entrepreneurial capacity, is rec-
ognized as a key element for Africa’s transition to an
innovation-led and knowledge-based economy.
15
Equally
important is implementation of specific policies and pro-
grammes in science, technology and innovation that ad-
dress societal needs in a holistic and sustainable way.
16
Priority areas for STISA-2024 include agriculture and
food security, biosciences, governance and African inte-
gration, information and communication technologies
(ICT), natural resources and public health and human
studies. Research and innovation areas for agriculture and
food security include; agriculture/agronomy in terms of
cultivation technique, seeds, soil and climate; and indus-
trial chain in terms of conservation and/or transform-
ation and distribution infrastructure and techniques.
17
TheCommonAfricanPosition(CAP)onthepost-
2015 development agenda
18
recognizestheroleofsmall-
holder farmers in ensuring food security in Africa.
Consequently, African heads of states and government
committed to sustainable agricultural, food self-sufficiency
and nutrition by improving the productivity of small-
holder agriculture and livestock through extension of
technological support, and calling on multilateral partner-
ships aimed at addressing food shortages.
19
Like the
7 Ibid, Art 26(3).
8 J. Roseboom, ‘Creating an Enabling Environment for Agricultural
Innovation’, in The World Bank (ed), Agricultural Innovation Systems:
An Investment Sourcebook. (The World Bank, Washington, D.C, 2012),
449, 453.
9 E Opoku Awuku, Intellectual Property Rights, Biotechnology and
Development: African Perspectives, in D Wu¨ ger and T Cottier (eds),
Genetic Engineering and the World Trade System: World Trade Forum
(CUP Cambridge 2008) 109.
10 Agreement on Trade-Related Aspects of Intellectual Property Rights
(adopted 15 April 1994, entered in force 1 January 1995), in The Results
of the Uruguay Round of Multilateral Negotiations: The Legal Texts.
Geneva: World Trade Organization, 1995. Annex 1C (TRIPS
Agreement); E. Epoku Awuku, ibid.
11 World Bank, above, n 8, 453.
12 African Union, Assembly of the Union, 23rd Session, 26–27 June 2014,
Malabo, Equatorial Guinea, 23rd Ordinary Session of African Union
Heads of State and Government Summit, June 30, 2014,
Decision on Strategy for Science Technology and Innovation in Africa
2024, Doc EX.CL/839(XXV), Decision Assembly/AU/Dec.520(XXIII),
available at <www.au.int/en/sites/default/files/decisions/9661-assembly_
au_dec_517_-_545_xxiii_e.pdf >(accessed 31 October 2016).
13 African Union, ‘Agenda 2063: The Africa We Want’ (2nd edn, August
2013), available at <http://archive.au.int/assets/images/agenda2063.
pdf >(accessed 7 June 2016).
14 STISA-2024, above, n.12, 11
15 Ibid.
16 Ibid, 11.
17 Ibid,24.
18 African Union, ‘Common African Position (CAP) on the post-2015
Development Agenda’ (March 2014) <www.un.org/en/africa/osaa/pdf/
pubs/2014cappost2015.pdf >(accessed 7 June 2016).
19 Ibid, para 22
Susan Isiko
Strba WIPO and plant variety protection and food security in Africa 193ARTICLE
STISA-24, the CAP emphasizes the need to build an ena-
bling environment for innovation, including strengthening
and creating, where needed, African property rights insti-
tutions and protecting intellectual property and industrial
rights.
20
It seeks to ensure preservation, protection and
promotion of traditional intellectual property and the pro-
motion of knowledge creation through its integration in
development programmes. It is hoped that this will be
achieved through providing an enabling environment for
science, technology and innovation.
21
Pan African Intellectual Property Organization
The AU is in the process of establishing a Pan African
Intellectual Property Organization (PAIPO). According
to the Preamble of the draft Statute, the new institution
will be a specialized agency of the African Union.
22
The
AU is determined to promote development-oriented IP;
recognizes IP as a tool for development, including
through achieving economic growth and development;
and desires to encourage creativity as well as promote
the strategic use, protection and exploitation of IP for
development throughout Africa. ARIPO and OAPI are
considered as building blocks for the creation of
PAIPO,
23
which might mean that IP policies of these
institutions will have far reaching implications for IP
and development on the continent. As will become
clear, the IP laws and policies of ARIPO and OAPI are
far from promoting development of their member
states. Indeed much as the text for establishing PAIPO
was drafted in collaboration with Regional Economic
Communities (RECs) and WIPO, this was done in co-
ordination with ARIPO and OAPI.
24
It has been noted
that ARIPO and OAPI initially opposed the creation of
PAIPO as they had not been consulted by the AU and
because they believed that PAIPO was not feasible.
25
As
we explain below, the two regional IP institutions have
sought to have considerable control of PAIPO since it
became clear that it will be created.
The mandate of PAIPO is to be responsible for IP
and other emerging issues related to IP in Africa and to
promote effective use of IP systems as a tool for eco-
nomic, cultural, social and technological development
of the continent as well as set IP standards that reflect
the needs of the African Union, its Member States and
RECs, ARIPO and OAPI.
26
The functions of PAIPO, as outlined in Art 4, include:
harmonise IP standards that reflect the needs of the
African Union, its Member States and RECs, ARIPO and
OAPI; facilitate the realization and harmonisation of na-
tional legislation and regional and intellectual property
standards on all the AU levels; initiate and facilitate
strategies that shall promote and develop the IP system;
strengthen the existing collective management organiza-
tions (CMOs) to facilitate their establishment in the
Member States which have no CMOs in the field of
copyright and related rights; take deliberate measures to
promote the protection and exploitation of IP rights
within the Member States, including conclusion of bilat-
eral and multilateral agreements; and promote the har-
monisation of IP systems of its Member States, with
particular regards to protection, exploitation, commercial-
ization and enforcement of IP.
27
Article 4 therefore pro-
vides a glimpse into PAIPO’s perception of African
development, which is equated to strong protection of
IP and harmonisation of IP standards. Indeed some
scholars have criticized PAIPO as a barrier to develop-
ment by posing a threat to, for example, access to medi-
cines.
28
The AU’s view of development as portrayed in
the PAIPO text is in stark contrast with the CAP and
STISA-24 which adopt a cautious approach to IP as a
tool for economic and social development.
As to the role of WIPO in the creation of PAIPO,
not only did the PAIPO text receive input from
WIPO,
29
as indicated in the final version, but WIPO
has been a brain behind the formation of the new
African IP organization. To start with, the meeting that
recommended the establishment of PAIPO was
20 Ibid, para 30.
21 Ibid, para 102.
22 African Union, Statute of the Pan African Intellectual Property
Organisation, Extraordinary Session of the African Ministerial
Conference on Science and Technology (AMCOST), 15–18 April, 2014,
Brazzaville, The Republic of Congo, Doc No AU/MIN/CONF V/ST/2 (II)
EN, EX-Cl/839/Annex 3, Art 2 (PAIPO Statute).
23 Ibid, Preamble, para 2.
24 Ibid, Preamble, para 2.
25 M Blakeney & G Mengiste ‘Intellectual Property Policy Formulation in
LDCs in Sub-Saharan Africa’ (2011) 19(1) Afr J Int’l and Comp L 66, 72.
26 PAIPO Statute, above, n 22, Art 3.
27 QUOTE SOURCE? (emphasis added).
28 B Baker, ‘Intellectual Property Policy Incoherence at the African Union
Threatens Access to Medicines’ infojustice.org (28 September, 2012), avail-
able at <http://infojustice.org/archives/27392 >(accessed 7 June 2016).
29 The main drafting of the PAIPO Statute took place between 2008 and
2011 with some technical assistance from WIPO. WIPO ‘World
Intellectual Property Organization Support to NEPAD: Report Period
July 2008 to June 2009’ (March 2013), available at <https://carolinebn
cube.files.wordpress.com/2013/03/wipo-report-support-to-nepad.
pdf >(accessed 9 June 2016). In a petition addressed to the African
Union Commission on Science and Technology, scholars provided com-
ments to the 2012 version of the draft PAIPO Statute and suggested revi-
sions. See D. Kawooya ‘A New Course for The Pan African Intellectual
Property Organization is Urgently Needed’, change.org (18 October
2012), available at <www.change.org/p/a-new-course-for-the-pan-afri
can-intellectual-property-organization-is-urgently-needed >(accessed on
6 September 2016). Member States also made comments to the 2013 ver-
sion of the Draft Statute, which led to some changes being made to the
text. However, the main substantive provisions of the text remain un-
changed. See for example part 4 of the final text of the PAIPO Statute.
194 ARTICLE Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3
arranged by the AU Human Resource, Science and
Technology department, together with the AU General
Office and WIPO.
30
Discussions on the Draft constitu-
tive instrument for PAIPO took place with the partici-
pation of WIPO.
31
The PAIPO text naturally reflects WIPO’s vision of
development of promoting strong IP protection.
32
It is
therefore not surprising that contrary to the African
Model Law, the AU now embraces the view that all
forms of intellectual property protection promote de-
velopment, regardless of the continent’s level of devel-
opment. By recalling the UN resolution adopting the
2030 Agenda for Sustainable Development,
33
the AU
seems to be inspired by the Sustainable Development
Goals (SDGs). It would seem then that strong IP pro-
tection would lead to achieving sustainable develop-
ment. It is arguable that to some extent this makes
sense. SGD 9 aims at ‘Building resilient infrastructure,
promote inclusive and sustainable industrialization and
foster innovation.’ If intellectual property in itself fos-
ters innovation in Africa, it can be concluded that
PAIPO, by promoting strong IP, will foster innovation
and consequently development. However, IP is just but
one element of an innovation system.
African Ministerial Conference
It may be recalled that the STISA-2014 calls for multi-
lateral partnerships aimed at addressing food shortages.
One influential partnership in the field of agricultural
innovation has been WIPO. Quite recently, WIPO, in
collaboration with the Japan Patent Office (JPO) organ-
ized the African Ministerial Conference: Intellectual
Property for an Emerging Africa.
34
It may be noted that
WIPO Secretariat chooses the speakers or panellists.
Neither representatives of the African Group in Geneva
nor pro-development civil society organizations were
invited. At the conference, hosted by the government of
Senegal in collaboration with the African Union,
African Heads of State and Government and other pol-
icy makers explored how IP can promote creativity and
spur growth by building on local strengths and ensuring
the development of a sound innovation system. The
outcome documents of the Conference included a re-
port on science, technology and innovation for the
transformation of African economies,
35
and the Dakar
Declaration on Intellectual Property for Africa,
36
which
emphasized IP protection as a tool for innovation in
Africa, including African agriculture. Participants claim
that the Declaration was not only negotiated behind
closed doors, but African Ministers of Trade were not
present at the time of its adoption. This might raise
doubts about labelling the Declaration an African docu-
ment. However, the Declaration has not been chal-
lenged by the African Union despite the fact that some
delegations at WIPO have publicly argued that the out-
come of the Conference was endorsed by the African
Union.
Specifically concerning agricultural biotechnology,
the programme of the Ministerial Conference featured
a full session on food and agriculture under the theme
‘Promoting Research and Development in Food and
Agriculture’.
37
The session addressed innovation in
agriculture, considered as one of the key drivers for
Africa’s growth. It discussed how IP, science, technol-
ogy and innovation can facilitate the transformation of
the agricultural sector through increased productivity,
improved post-harvest processing and overall value
addition to the sector for increased competitiveness. In
particular, the session featured a presentation on
‘Promoting New Plant Varieties for Enhanced
Agricultural Productivity and Food Security’
38
by Mr
Peter Button, the Vice Secretary-General of UPOV.
Concerning agriculture, IP and PVP, the issues that
were considered to be critical include: transformation
30 T Kongolo, African Contributions in Shaping the World IP System
(Routeledge, London and New York, 2013) 123. For details on the sequence
of events that follow the recommendation, see CB Ncube, Intellectual
Property Policy, Law and Administration in Africa: Exploring continental and
Sub-regional Co-operation (Routledge London and New York 2016) 127.
31 WIPO, ‘Technical Assistance Database: Experts Group Meeting on Pan
African IP Organization (PAIPO), Addis Ababa, Ethiopia’ (18 May
2009); WIPO, ‘Support to NEPAD Period of Report July 2008 to June
2009’ <http://www.wipo.int/tad/en/activitysearchresult.jsp?vcntry=ET>
(accessed 10 July 2016).
32 It is arguable that the WIPO Development Agenda provides a framework
for balanced IP protection. See eg Ncube, above, n 30, 177. But the
Committee on Development and Intellectual Property (CDIP), has been
captured by projects, many of which are not for development of Africa.
33 UN General Assembly Resolution A/RES/70/1, Transforming Our World:
The 2030 Agenda for Sustainable Development (25 September 2015).
34 African Ministerial Conference 2015: Intellectual Property for an
Emerging Africa, 3–5 November 2015, Dakar, Senegal. For the full
Programme, as prepared by WIPO, see Doc No OMPI/PI/DAK/15,
available at <www.wipo.int/edocs/mdocs/africa/en/ompi_pi_dak_15/
ompi_pi_dak_15_inf_1.pdf >(accessed on 1 June 2016).
35 African Ministerial Conference 2015, ‘Cluster I Report: Science,
Technology and Innovation for the Transformation of African
Economies’, (5 November 2015), available at <http://www.wipo.int/
edocs/mdocs/africa/en/ompi_pi_dak_15/ompi_pi_dak_15_report_clus
ter_ii.pdf >(accessed 6 June 2016).
36 WIPO, Dakar Declaration on Intellectual Property for Africa, WIPO Doc
(5 November, 2015), para 2. <http://www.wipo.int/edocs/mdocs/africa/
en/ompi_pi_dak_15/ompi_pi_dak_15_declaration.pdf >(accessed 1 June
2016) (Dakar Declaration).
37 African Ministerial Conference 2015 Programme, above, n 34.
38 P Button, ‘Promoting New Plant Varieties for Enhanced Agricultural
Productivity and Food Security: African Ministerial Conference 2015:
Intellectual Property (IP) for an Emerging Africa’. WIPO Doc OMPI/PI/
DAK/15/CLUSTER/AI/5 (EXACT DATE), available at <http://www.
wipo.int/edocs/mdocs/africa/en/ompi_pi_dak_15/ompi_pi_dak_15_clus
ter_i_5.pdf >(accessed on 31 May 2016).
Susan Isiko
Strba WIPO and plant variety protection and food security in Africa 195ARTICLE
of the agriculture sector, public private partnerships,
partnerships among relevant institutions and use of IP
for food security. The conference asserted that the
transformation of the agriculture sector will depend on
moving from raw material based system to added value
products with use of IP. It was agreed that public pri-
vate partnerships are key in realizing the potential of re-
search for development of the agriculture economy.
Quite rightly, inadequate linkages and partnership
among the relevant institutions in the food and agricul-
tural sector were identified as obstacles to agriculture
productivity. In addition, a legal framework for protec-
tion and acquisition of new varieties of plants was con-
sidered paramount, as well as the utilization of all
forms of IP to unlock the potential of meeting the
needs of research and development to provide food se-
curity and enhance sustainable agricultural develop-
ment. The Conference therefore recommended, inter
alia: encouraging use of all forms of IP in meeting the
needs of the agricultural sector; PVP as a particularly
important mechanism to promote research and transfer
of technology to farmers, thereby increasing productiv-
ity and value addition in agriculture. Specifically,
UPOV membership was highlighted as a key factor in
maximizing the impact of PVP,
39
while ignoring the
transition period available to least developed countries
before protecting plant varieties.
As might be expected, the resulting Ministerial
Declaration which endorsed the Cluster I report empha-
sized the role of IP in advancing innovation for sustain-
able agricultural technologies, for the use and transfer of
environmentally sound technologies, and to help guar-
antee food security, and the need for a sound IP policy
and institutional frameworks for the effective and bal-
anced use of the IP system to foster innovation, creativ-
ity, entrepreneurship and development in Africa.
40
It
also highlighted the provision of legislative advice and
creating an enabling legal framework for an effective and
balanced use of the IP system for development by mem-
ber states.
41
As will be explained further below, WIPO
and UPOV are the leading international institutions in
providing legislative advice on PVP in Africa.
At continental level, AU institutions have ignored to
take local circumstances into account when designing
IP policies and have instead relegated their responsibil-
ity to WIPO, UPOV and other IP promoting entities.
While innovation is important for improved agricul-
tural productivity, it is misleading to assert that IP and
PVP will of themselves guarantee African food security.
While the STISA-2014 acknowledges lack of technology
readiness and the need for capacity building, WIPO,
through PAIPO and the African Ministerial
Conference, seems to ignore this fact.
Regional institutions: ARIPO, OAPI, SADC
At a regional level, developments in ARIPO, OAPI and
SADC, in the field of agricultural biotechnology also
highlight the relationship between regional and interna-
tional institutions and their impact on the African de-
velopment. These regional institutions have sought to
restructure their IP laws and policies to align with the
latest international IP standards.
For example, as stated above, ARIPO adopted a Plant
Variety Protection (PVP) Protocol in July 2016.
Attending the ARIPO Administrative Council which
adopted the ARIPO PVP Protocol
42
were inter-govern-
mental organizations and co-operating partners, including
WIPO.
43
The contribution of various organizations to the
ARIPO PVP Protocol goes well beyond that of mere ob-
servers to partnering in designing plant variety laws for
ARIPO (or other African institutions and countries wish-
ing to explore protection of plant varieties). This empha-
sizes the relationship between ARIPO and international
(or regional) organizations and their contribution to
shaping ARIPO’s development Agenda through PVP. For
example, the last Regional Workshop on the Draft ARIPO
PVP Protocol was co-organized by ARIPO, UPOV and
the United States Patent and Trademarks Office
(USPTO).
44
Quite disturbing is the fact that stakeholders,
including representatives of farmersgroupsinAfrica,do
not take an equally active part in crucial meetings of
Administrative Council. Indeed, ARIPO has been strongly
criticized for the failure to admit farmers’ representatives
at its discussions on PVP or consulting relevant
stakeholders.
45
ARIPO is of the view that a harmonised system for
granting plant varieties will lead to economic develop-
ment of its 19 Members. The Arusha Protocol is also
39 African Ministerial Conference 2015,Cluster I Report, above, n 35 (em-
phasis added).
40 Dakar Declaration, above, n 36, Preamble, para 6.
41 Ibid, Preamble, para 2.
42 ARIPO, Arusha Protocol for the Protection of New Varieties of Plants
within the Framework of the African Regional Intellectual Property
Organization (ARIPO), ARIPO Office, Arusha, Tanzania, July 2015
(Arusha Protocol).
43 ARIPO, Administrative Council, 9th Extra-Ordinary Session, Arusha,
United Republic of Tanzania, 2–3 July 2016, Doc No ARIPO/AC/IXEX/8
(3 July 2015), para 3 (on file with the author).
44 Regional Workshop on the Draft ARIPO Protocol for the Protection of
New Varieties of Plants. Organized by ARIPO in Cooperation with
UPOV and with the Assistance of USPTO, 29–31 October 2014, Harare,
Zimbabwe, Doc No ARIPO/HRE/2014/INF/1 (1 September 2014), avail-
able at <http://www.ip-watch.org/weblog/wp-content/uploads/2014/11/
aripo_upov_Harare_14_inf_1_01_09_2014.pdf >(accessed on 8 2016).
45 See eg AFSA, above, n 2.
196 ARTICLE Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3
meant to serve as sui generis system under the TRIPS
Agreement.
46
Thus, according to the preamble, ARIPO,
through the PVP Protocol, seeks to have an effective sui
generis system of intellectual property protection of new
varieties of plants that meets the requirements of
Article 27.3(b) of the TRIPS Agreement, which requires
protection of plant varieties through patents or sui gen-
eris regime or a combination of both. ARIPO believes
plant breeders’ rights will allow farmers access to a wide
range of improved varieties and contribute to the at-
tainment of the regional goal of economic development
and food security. The confidence that plant breeders’
rights will lead to regional development and food secur-
ity is questionable. On the contrary, instead of African
farmers having access to improved varieties, most of
the PVP output is exported to Western markets.
47
ARIPO is also convinced that it has a task to provide an
effective system for the protection of new varieties of
plants with the aim of encouraging the development of
new plant varieties for the benefit of the society.
48
However, there is no obligation under TRIPS for
ARIPO to model UPOV system.
In addition, ARIPO is in the process of becoming a
party to the International Convention for the Protection
of New Varieties of Plants (UPOV Convention).
49
It is
notable that the text of the draft ARIPO Protocol was
approved as being compliant with UPOV 1991,
50
which
technically, qualified ARIPO to join UPOV. However,
during the meeting of the Administrative Council to
adopt the Arusha Protocol, ARIPO member states
opposed and rejected article four of the draft PVP
Protocol which empowered ARIPO to grant PVP rights
on behalf of its members without their consent.
51
The
amendment to this article meant that ARIPO could not
become a member of UPOV 1991. The arrangement be-
tweenARIPO(aswellasOAPIandSADC),andUPOV
challenge the assumption that international norms
provide minimum standards leaving policy space for
countries to tailor IP to their national needs. Member
states of ARIPO remain bound to the strongest PVP re-
gime. The administrative requirements for ARIPO to seek
the consent of its members to grant PVP protection re-
main a formality because similar to other fields of IP,
most ARIPO members do not possess capacity for PVP
examination. This means that ultimately, ARIPO will de-
termine the protection of PVP for the majority of its
member states.
As regards OAPI, the outstanding feature of the revised
1999 Bangui Agreement
52
relating to PVP is the addition
of Annex X to the text of the Agreement which established
a regional PVP regime applicable to the (currently) 17
members of OAPI. Before the text on PVP protection was
adopted, the UPOV Council had to certify it in 2000 as
complying with UPOV 1991, as required under article
34(b)(iii) of UPOV Convention. The coming into force of
Annex X was delayed by lack of capacity to implement
PVP.
53
The revised Bangui Agreement came into force in
2002 for all OAPI members, including the 13 LDC mem-
bers who are not yet obliged to provide PVP under
Article 27.3(b) of the TRIPS Agreement. OAPI joined
UPOV 1991 in June 2014, becoming the first African re-
gional institution to do so.
Likewise, SADC is in the process of crafting a Plant
Variety Protocol with the assistance of UPOV.
54
The
publicly available draft of the Protocol is a template
from UPOV which reflects the text of ARIPO Protocol
and Annex X of the OAPI’s Bangui Agreement. It is im-
portant to highlight that South Africa, arguably one of
the most developed economies in Africa, is not a mem-
ber of either ARIPO or OAPI, but is a member of
SADC. It is also party to the 1978 UPOV Convention.
If the SADC Protocol comes into force, it will upgrade
South Africa to UPOV 1991.
46 TRIPS Agreement, above, n 10.
47 Oguamanam, above, n 2.
48 Arusha Protocol, above, n 42, Preamble. It is notable that the last phrase
reflects the ‘mission’ of UPOV as stated on its website and in the UPOV
Convention.
49 International Convention for the Protection of New Varieties of Plants,
(adopted 2 December 1961, revised at Geneva on 10 November 1972, 23
October 1978 and 19 March 1991, entered into force 24 April 1998), 815
UNTS 89 (UPOV Convention). UPOV, ‘Status in Relation to the
International Union for the Protection of New Varieties of Plants’
(31 October 2016) <http://www.upov.int/export/sites/upov/members/
en/pdf/status.pdf >(accessed 10 January 2017).
50 UPOV 1991 is the latest version of the UPOV Convention. It accords
stricter standards of protection than previous versions. Any country or
organization desiring to join UPOV must accede the 1991 text of the
UPOV Convention as is is no longer possible to accede to the earlier ver-
sions. Unless otherwise stated, reference to UPOV Convention in this
text refers to UPOV 1991.
51 ARIPO, above, n 43.
52 Agreement Revising the Bangui Agreement of March 2, 1977, on the
Creation of an African Intellectual Property Organization (Bangui
(Central African Republic), (adopted 24 February, 1999, entered in force
28 February, 2002), available at <www.wipo.int/edocs/lexdocs/treaties/
en/oa002/trt_oa002_2.pdf>, (accessed 12 January 2017).
53 C Oguamanam, ‘Breeding Apples for Oranges: Africa’s Misplaced
Priorities over Plant Breeders Rights’, (2015) J World IP 1, 9.
54 UPOV Convention, above, n 49. It is not clear whether SADC intends to
join UPOV, but this can be inferred from the fact that it sought help of
the latter to elaborate a law based on UPOV Convention.
Susan Isiko
Strba WIPO and plant variety protection and food security in Africa 197ARTICLE
Efforts by ARIPO, OAPI and OAPI to establish re-
gional plant breeders’ rights protection run counter to
aspirations expressed by the African Group in negoti-
ations or documents
55
and the African Model Law.
While these developments might be a reflection of
the growing importance African political leaders place
on science and innovation for development, several
issues and challenges remain.
African agriculture and agricultural
biotechnology: opportunities, issues and
challenges for food security and access
to food
UPOV has as its mission ‘to provide an effective system
of plant variety protection, with the aim of encouraging
the development of new varieties of plants, for the
benefit of society.’
56
UPOV seeks international harmo-
nisation of PVP. It is perceived that international har-
monisation is essential for effective PVP, trade and
technology transfer.
57
UPOV 1991 is the latest act of
the UPOV Convention. All countries or intergovern-
mental organizations wishing to join UPOV are now
obliged to join the 1991 and not any of the earlier texts.
UPOV is exclusively pro-breeder regime that perceives
farmers’ practices of free sharing and exchange of seeds
to be in conflict with breeders’ rights.
58
Proponents of
plant variety PVP expend considerable amount of en-
ergy and money encouraging, convincing and some-
times coercing developing countries to join UPOV
1991. It is, therefore not by coincidence that African
Regional IP Institutions or economic blocks have
embraced or are in the process of embracing harmo-
nisation of PVP, arguably, for the development of their
member states.
The TRIPS Agreement requires the protection of
plant varieties either by patents, sui generis system or a
combination thereof.
59
However, least developed coun-
tries (LDCs) have no obligation to protect plant varieties
under the TRIPS Agreement before 2021, with a possibil-
ity of extension.
60
Many African countries are fast-
tacking the protection of plant varieties, including least
developed countries (LDCs) which are not required to
provide PVP before 2021. Currently, five African states –
Kenya, Morocco, South Africa, Tunisia and the United
Republic of Tanzania – are members of UPOV.
61
The
OAPI is a member of UPOV since 10 July 2014. OAPI is
party to the 1991 Act of UPOV and operates a plant
breeders’ rights system which covers the territory of its
17 member States (Benin, Burkina Faso, Cameroon,
Central African Republic, Chad, Comoros, Congo, Coˆte
d’Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-
Bissau, Mali, Mauritania, Niger, Senegal, Togo). This
brings to 21 the number of African countries which are
party to UPOV. In July 2015, the ARIPO adopted a
Protocol on plant variety protection,
62
and has initiated
the process of acceding to UPOV.
63
When ARIPO joins
UPOV, its 19 members (Botswana, The Gambia, Ghana,
Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia,
Rwanda, Sao Tome and Principe, Sierra Leone, Somalia,
Sudan, Swaziland, Uganda, United Republic of
Tanzania, Zambia, Zimbabwe),
64
will be bound by the
1991 Act of UPOV. On a regional level, the SADC, is in
the process of crafting a plant variety protocol based on
UPOV Convention, with the aim of subsequently acced-
ing to UPOV 1991.
65
When the Protocol comes into
force, it will bind the 15 members (Angola, Botswana,
Democratic Republic of the Congo, Lesotho,
Madagascar, Malawi, Mauritius, Mozambique, Namibia,
Seychelles, South Africa, Swaziland, United Republic of
Tanzania, Zambia, Zimbabwe) of SADC. OAPI, ARIPO
and SADC represent 44 African countries. In addition,
most of the remaining African countries have elaborated
or are in the process of elaborating PVP laws. Outside
55 See African Union Commission, Communique´ on Integrated Seed Sector
Development under the auspices of the AU-African Seed and
Biotechnology Programme, 2010; and Doc No IT/GB-4/11/Circ.1-Input
paper submitted by Ethiopia based on Global Consultations on Farmers’
Rights in 2010, quoted in P Munyi et al, ‘A GAP Analysis on the African
Model Law on the Protection of the Rights of Local Communities,
Farmers, and Breeders, and for the Regulation of Access to Biological
Resources’, Paper Commissioned by the Department of Human
Resources, Science and Technology of the African Union Commission
(February 2012), 55, available at <www.abs-initiative.info/uploads/
media/GAP_Analysis_and_Revison_African_Model_Law_FINAL_2902_
01.pdf>, (accessed 15 October 2016).
56 UPOV, ‘Welcome,’ available at <www.upov.org/portal/index.html.
en >(accessed on 27 May 2016).
57 UPOV, ‘Harmonization is Essential for Effective Plant Variety
Protection, Trade and Transfer of Technology’, UPOV position, based
on an intervention in the Council for TRIPS (19 September 2002), avail-
able at <www.upov.org/export/sites/upov/about/en/pdf/international_
harmonization.pdf >(accessed on 27 May 2016).
58 Oguamanam, above, n 51, 4.
59 TRIPS Agreement, above, n 10, Art 27(3)(b).
60 Ibid, Art 66.
61 Kenya, Morocco, Tunisia and the United Republic of Tanzania are party
to the 1991 Act of UPOV, which is more restrictive on farmers’ rights
and exceptions to plant breeders’ rights than UPOV 1978.
62 Arusha Protocol, above, n 42.
63 UPOV 1998 is the last revision of the UPOV Convention before the 1991
text. See UPOV Convention, above, n 49. At the adoption of the Arusha
Protocol (above, n 42), ARIPO did not qualify for Membership to UPOV
because of a provision that was not agreed to by Member States at the last
minute. See ARIPO, above, n 43. Yet it would seem, according to available
information on UPOV website, that ARIPO is making another attempt.
64 Kenya and the United Republic of Tanzania are already members of
UPOV.
65 UPOV, above, n 49. It is not clear whether SADC intends to join UPOV,
but this can be inferred from the fact that it sought help of the latter to
elaborate a law based on UPOV Convention.
198 ARTICLE Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3
OAPI, ARIPO and SADC, four African countries (Egypt,
Ghana, Mauritius and Zimbabwe) are contemplating to
accede to UPOV,
66
while six countries (Algeria, Libya,
Mozambique, Namibia, Sudan and Zimbabwe) have re-
quested UPOV for assistance to develop laws based on
the UPOV Convention.
67
This brings to 48 the number
of African countries whose plant variety laws are based
on or are strongly influenced by UPOV and whose legis-
lation on PVP is currently or is likely to be modelled on
UPOV 1991.
68
Only seven African countries (Burundi,
Cape Verde, Djibouti, Eritrea, Nigeria, Somalia and
South Sudan) are currently excluded from UPOV 1991
or its influence. PVP is now a continental affair, which
justifies an inquiry into the implication of this develop-
ment for the continent as a whole.
These developments have triggered mixed reactions,
often being embraced by proponents of PVP on the one
hand but criticized and opposed by those against such
protection. Proponents argue that PVP will attract in-
vestment in biotechnologies which are essential for
ensuring improved access to food and food security in
Africa. Large seed companies contend the view that if
African countries want to benefit from new varieties,
then they will have to adjust to the ‘worldwide’ applic-
able rules as laid down by the Geneva-based UPOV.
69
Detractors on the other hand are weary of the negative
impact of PVP on access to food and food security.
They argue that, as a matter of principle, plant varieties
can be nobody’s property and fear that millennia-old
traditions of farmers of exchanging seed will now sud-
denly become illegal. There is concern that UPOV 1991
on which many PVP laws are modelled, is unsuitable
for developing countries in general and Africa in par-
ticular since it outlaws practices of smallholder farmers
of freely using, exchanging and selling seed or propagat-
ing material. These ‘informal farming’ practices are
deemed key to sustainable seed supply in Africa.
70
For
example, opponents of the Uganda Plant Variety Act,
71
contend that the legislation should protect farmers’ and
community rights which are necessary to ensure food
security. Since the majority of Uganda’s farmers and
their communities are very poor people who cannot af-
ford to buy commercial seeds every planting season,
they rely on their traditional system of seed saving,
reusing and exchange as the most important source of
seed supply for agricultural production. It is argued
that this system, ‘backward as it may be branded, has
been very instrumental in contributing to household
and national food security. In particular, the farmers’
system of seed saving, reusing and exchange has helped
to ensure that farmers and their communities maintain
sovereignty and control over their systems of food pro-
duction, distribution and supply’.
72
By the practice of
using, exchanging and selling seed or propagating ma-
terial, smallholder farmers feed most of the developing
world population. This fact could not be stressed better
than the UN which has reported that smallholders
manage over 80 per cent of the world’s estimated 500
million small farms and provide over 80 per cent of the
food consumed in a large part of the developing world,
contributing significantly to poverty reduction and
food security.
73
66 In addition, Ghana is in the process of elaborating a plant variety protec-
tion legislation: see Plant Breeders Bill, 2013 (Ghana). The draft bill,
which reflects UPOV 1991, above, n 49, is the subject of opposition by
farmers’ organizations. See C Walker, ‘Battling the “Monsato Law” in
Ghana’ New Internationalist Blog, available at <https://newint.org/blog/
2014/10/20/plant-breeders-bill-ghana/ >(accessed 31 October 2016).
67 UPOV, above, n 49.
68 South Africa is the only African country that is part to UPOV 1978,
above, n 49.
69 The Netherlands Organization for Scientific Research (NWO), ‘Food for
the Many Mouths in Africa: Plant Variety Protection Can Support Food
Security’ available at <http://www.nwo.nl/en/research-and-results/cases/
food-for-the-many-mouths-of-africa.html >(accessed 11 April 2016).
70 Association for Plant Breeding for the Benefit of Society (APBREBES),
‘AFSA Makes Small Gains for Farmers’ Rights in Draft SADC PVP
Protocol’ (22 June 2014), available at <www.apbrebes.org/news/afsa-
makes-small-gains-farmers-rights-draft-sadc-pvp-protocol >(accessed 20
June 2016); La Via Campesina, ‘ARIPO’s Draft Protocol for the
Protection of New Varieties of Plants (DRAFT Protocol) Undermines
Farmers’ Rights, Lacks Credibility & Legitimacy’ La Via Compesina
(14 April, 2014), available at <http://viacampesina.org/en/index.php/
main-issues-mainmenu-27/biodiversity-and-genetic-resources-main
menu-37/1591-aripo-s-draft-protocol-for-the-protection-of-new-vari
eties-of-plants-draft-protocol-undermines-farmers-rights-lacks-credibil
ity-legitimacy >(accessed 3 May 2016); African Center for Biosafety,
‘Civil Society Concerned with the Draft Protocol for the Protection of
New Varieties of Plants (Plant Breeders’ Rights) in the Southern African
Development Community Region (SADC)’ (2 April 2013), available
at <http://acbio.org.za/wp-content/uploads/2015/02/CSO-submission-
SADC.pdf >(accessed 3 May 2016); African Center for Biosafety,
‘Declaration on Plant Variety Protection and Seed Laws from the South-
South Dialogue’, Durban, South Africa (29 November 2015), available
at <http://acbio.org.za/declaration-on-plant-variety-protection-and-
seed-laws-from-the-south-south-dialogue/ >(accessed 31 October 2016);
AFSA, above, n 2.
71 Plant Variety Protection Act, 2014 (Uganda).
72 R Naluwairo and E Tabaro, ‘In Defence of Farmers’ and Community
Rights: Justifying their inclusion in Uganda’s Plant Variety Protection
Legislation’, ACODE Policy Briefing No 20 (2010) 6, available at <www.
acode-u.org/documents/PBP_21.pdf >(accessed on 18 May 2016).
73 United Nations, Sustainable Development Goals, Facts and figures on
hunger and Food Security (25 Septemb er, 2015), available at <www.un.
org/sustainabledevelopment/hunger/ >(accessed 1 June 2016); United
Nations Environmental Program (UNEP)/International Fund for
Agricultural Development (IFAD), ‘Small Holders, Food Security and the
Environment’ (2013), 6, available at <www.ifad.org/documents/10180/
666cac24-14b6-43c2-876d-9c2d1f01d5dd >(accessed 20 October 2016);
see also P Hazell and C Poulton ‘All-Africa review of experiences with
commercial agriculture: case study on food staples’, BackgroundPpaper
for World Bank’s Competitive Commercial Agriculture in Sub-Saharan
Africa Study (May 2007), 12, available at <http://siteresources.world
bank.org/INTAFRICA/Resources/257994-1215457178567/Ch10_Food_
Staples.pdf>, (accessed 12 June 2016).
Susan Isiko
Strba WIPO and plant variety protection and food security in Africa 199ARTICLE
Agriculture remains the primary source of subsistence,
employment and income for a majority of African popu-
lation. An example from SADC illustratesthispoint.In
the SADC region, farms of less than two hectares account
for 70–90 per cent of all farms. Agriculture is also funda-
mental to addressing nutrition and food security issues,
which remain a critical challenge in some regions like the
SADC. According to SADC, the current status of food in-
security in the region can be measured by the prevalence
of undernourishment, which is ‘high’ to ‘very high’ (ie
above 25% of the population) in eight SADC countries
(Angola, Democratic Republic of Congo, Malawi,
Madagascar, Mozambique, Tanzania, Zambia and
Zimbabwe).
74
It is estimated that 80 per cent of all seed
used in Africa originates from the informal seed systems
(through on-farm seed saving and unregulated distribu-
tion between farmers, also known as ‘farmer-managed
seed systems’),
75
while for many crops, this estimate is
close to 100 per cent.
76
Farmers rely heavily on farm saved
seed, exchanges with relatives and neighbours, bartering
with other farmers or local markets to access seeds, re-
gardless of whether farmers cultivate local or modern
varieties.
77
These informal systems may be represented by
individuals, groups of individuals or associations.
78
In the case of SADC, farmers’ organizations includ-
ing members like the African Seed Associations (AFSA)
have raised serious concerns regarding the draft SADC
PVP Protocol, whose architecture and design is based
on UPOV 1991. One of the main concerns is that
UPOV 1991 is a restrictive and inflexible legal regime
that grants extremely strong intellectual property rights
to commercial breeders and that it undermines farmers’
rights. Such a regional law will most certainly increase
seed imports, reduce breeding activity at the national
levels, facilitate monopolization of local seed systems by
foreign companies and disrupt traditional farming sys-
tems upon which millions of African farmers and
their families depend for their survival.
79
These
apprehensions are not only unique to SADC but have
also been expressed in relation to ARIPO.
80
Recent efforts at implementing plant variety laws ren-
der support to some of these fears and concerns. An ex-
ample from South Africa illustrates this point. On 15 May
2015, South Africa’s Portfolio Committee on Agriculture
held public hearings on two Bills that protect and regulate
the commercial seed industry; the Plant Breeders’ Rights
Bill (PBR Bill) and the Plant Improvement Bill 2015. The
PBR Bill aims to stimulate innovation in plant breeding
by awarding extremely strong intellectual property rights
to breeders while the Plant Improvement Bill allows only
certiedseedtobesoldonthecommercialmarket.
Several NGOs and smallholder farmers made submissions
to the Committee, cautioning that the laws will entrench
inequality and deepen the hunger crisis in the country be-
cause the Bills are oblivious to seed systems that support
smallholder farmers and ecological forms of farming.
81
As
noted above, these laws do not recognize or protect
farmer-managed seed systems or agricultural biodiversity
but undermine the rights of farmers, including their right
to re-use, exchange and sell farm-saved seeds. It is yet to
be seen if the concerns expressed by farmers’ groups will
be considered and reflected in the final legislation.
Agricultural biotechnology for African
local needs and policies
Indeed, views on the importance of biotechnology
farming, especially in Africa, differ widely. On the one
hand is the view that ‘appropriate technologies’ which
in the case of agriculture might include genetically
modified farming,
82
is the solution to Africa’s food
problems. For example, development specialist and ex-
pert on hunger Sylvie Bunet argues that African farmers
need certified, quality, genetically modified seeds which
will yield much with less work.
83
Recent developments
in Africa call for a critical reflection on this assertion.
74 SADC Regional Agricultural Policy; Priority Policy Issues and
Interventions (July 2012), 8, available at http://www.sadc.int/sadc-secre
tariat/directorates/office-deputy-executive-secretary-regional-integration/
food-agriculture-natural-resources//docs/rap/RAP%20-%20Priority%
20Issues%20and%20Interventions%20-%2012%20July%202012.pdf
(accessed 10 June 2016). It may be recalled that the United Republic of
Tanzania provides PVP but its population remains undernourished.
75 M Smale, D Byerlee and T Jayne, ‘Maize Revolutions in Sub-Saharan
Africa’, World Bank, Development Research Group Policy Research
Working Paper (May 2011) 7, available at <http://dx.doi.org/10.1596/
1813-9450-5659 >(accessed 31 May 2016); APBREBES, above, n 70.
76 NP Louwaars and WS De Boef ‘Integrated Seed Sector Development in
Africa: A Conceptual Framework for Creating Coherence Between
Practices, Programmes and Policies’ (2012) 26 J Crop Improvement
39, 45.
77 Ibid.
78 Networks of organizations supporting small scale farmers, have for example,
been loosely defined as ‘informal seed sector’. APBREBES, above, n 70, 1.
79 Ibid, 4.
80 See eg, AFSA, Appeal to ARIPO and African Union Member States and
UNECA for an Effective ARIPO Protocol Supportive of Farmers’ Rights
and Right to Food, Harare, Zimbabwe (29 October 2014), available
at <www.ip-watch.org/weblog/wp-content/uploads/2014/11/AFSA-state
ment.pdf >(accessed 23 June 2016).
81 African Centre for Biosafety, ‘Laws Regulating Seeds in South Africa to
Entrench Hunger and Inequality’ (20 May 2015), available at <http://
acbio.org.za/laws-regulating-seeds-in-south-africa-to-entrench-hunger-
and-inequality/ >(accessed on 3 May 2016).
82 I am mindful of the fact that genetically modified farming is not always
synonymous to plant variety protection, although a GM product can
qualify for protection as PVP or patent.
83 Carayol and M Douet, ‘OGM: “Afrique a tout prix” ’[GMO: Africa at all
Cost], in Jeune Afrique, No 2885-2886 (24 April–7 May 2016) 22, 35.
200 ARTICLE Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3
Let me explain. South Africa is the most advanced in
agricultural biotechnology on the continent. It has been
producing GMOs since 1998, a year after its legislation
on GMOs
84
entered into force.
85
Indeed, South Africa
ranks ninth among 14 top producers of GMOs in the
world.
86
But there is no evidence to show that PVP or
GMOs in South Africa is the solution to the country’s
food security. On the contrary, the country has not
escaped the food crisis that many Southern African
countries experienced recently.
87
Recent examples or research from Africa demon-
strate that while agricultural biotechnology can accord
certain advantages like producing high-yielding,
draught or insect resistant varieties, there are can be
costs, disadvantages and threat to food security and ac-
cess to food. Jose´ Bove´, a French farmer and member of
alter-globalization, has rightly argued that the main ob-
jective of biotechnology companies is to create mono-
culture and, secondly, make smallholder farmers
dependent on industrial seed while destroying depend-
ence on farm saved seed.
88
Indeed, empirical research
has demonstrated failed yields of, for example, GMO
crops leading to economic detriment of farming com-
munities.
89
These examples illustrate the fact that PVP
or GMO in themselves cannot meet Africa’s food de-
mands. There is need to tailor agricultural technology
to local needs and other development policies.
Innovation in agriculture is considered one of the
key drivers for Africa’s growth, as demonstrated by pol-
icy aspirations of STISA 2014 and CAP. At a global
level, the UN has advised that better use of agricultural
biodiversity can contribute to more nutritious diets,
enhanced livelihoods for farming communities and
more resilient and sustainable farming systems. The
global organization sees investing in smallholder
women and men as an important way to increase food
security and nutrition for the poorest, as well as food
production for local and global markets.
90
While not
married to the small scale farming and informal sector,
it is acknowledged that these play pivotal role in
African Agriculture and access to food. Therefore ef-
forts to ascertain food security and sustainable access to
food in Africa ought to include strengthening the
informal systems. The FAO has recognized the import-
ance of supporting the informal seed system in addition
to the formal seed system.
91
Specifically concerning IP/PVP and the informal sec-
tor, there is need for capacity building among small-
scale farmers. Efforts at improving agricultural food
production in Africa should target improving capacity
of small scale farmers instead of incapacitating them by
handing over their means of seed production to plant
variety rights owners. In terms of legislation, the chal-
lenge is to design national and regional laws that take
into account the level of plant breeding and biotechnol-
ogy capacity and need to develop that capacity. Strong
legislation on PVP will not achieve this. A detailed ana-
lysis of these issues is beyond the scope of this article.
Instead, we focus on the role of international institu-
tions, in particular WIPO in promoting agricultural
biotechnology regimes that are supportive of African
development.
Indeed the question of how IP, science, technology
and innovation can facilitate the transformation of the
agricultural sector through increased productivity, im-
proved post-harvest processing and overall value add-
ition to the sector for increased competitiveness was
one of the preoccupations of African Trade Ministers
and prominent policy makers, at the recently con-
cluded Ministerial Conference of the African Ministers
of Trade referred to above.
92
It may be recalled that
the Conference, which was organized by WIPO and
JPO, stressed PVP as the solution to African agricul-
tural problems. This is one example of the important
role played by WIPO as an organization in promoting
PVP in Africa. It thus makes sense that discussions on
the role of different actors in PVP in Africa accord
particular attention to WIPO. Proposals on plant PVP
policy and legislative framework in developing coun-
tries have often conspicuously excluded or ignored
WIPO. But a meaningful search for solutions or redir-
ection in focus, architecture and design of PVP in
Africa is hard to imagine with the exclusion of WIPO,
as has been the case. The following section clarifies
why WIPO should be part of this architecture and
how this can be done.
84 See Genetically Modified Organisms Act, 1997 [No. 15 of 1997].
85 R Carayol and M Douet, above, n 83, 23.
86 Republic of South Africa, Ministry of Trade and Industry, The Bio-
economy Strategy (2013), 7.
87 J Vidal, ‘Across Africa, the Worst Food Crisis Since 1985 Looms for 50
Million’, The Guardian (22 May 2016), available at <www.theguardian.
com/global-development/2016/may/22/africa-worst-famine-since-1985-
looms-for-50-million >(accessed 20 October 2016).
88 Carayol and Douet, above, n 83, 25.
89 An example in Africa is the Bt Cotton in Burkina Faso. See ibid, 23.
90 United Nations, Sustainable Development Goals, Facts and Figures on
Hunger and Food Security, <www.un.org/sustainabledevelopment/hun
ger/ >(accessed 1 June 2016).
91 Food and Agricultural Organization of the United Nations, Voluntary
Guide for National Seed Policy Formulation, Commission on Genetic
Resources for Food and Agriculture, 15th Regular Session, Rome Doc No
CGRFA 15/15/Inf.25 (19–23 January 2015), available at <www.fao.org/3/
a-mm546e.pdf >(accessed 1 June 2016).
92 African Ministerial Conference, above, n 34.
Susan Isiko
Strba WIPO and plant variety protection and food security in Africa 201ARTICLE
Matching WIPO’s work on PVP with
African development agendas to
support food security
The STISA-24 and CAP stress the need to get ready for
technology absorption, an enabling environment and
capacity for innovation and technology absorption. Yet
African institutions are embracing strong PVP protec-
tion. WIPO is an important player in plant variety le-
gislation, management and enforcement in Africa.
Consequently, it should and can contribute to agricul-
tural innovation and PVP in a way that caters to
African development by tailoring its activities accord-
ingly. This can be done through a number of ways.
Tailoring technical assistance, capacity
building, education and training
The implementation of intellectual property in develop-
ing countries, in particular Africa is largely done by
WIPO through activities such as designing Intellectual
Property Development Plans (IPDPs), National IP
Strategies, providing capacity building, technical and le-
gislative assistance, IP education and training as well as
IP awareness-raising. While IP education takes various
forms and is conducted by various actors, WIPO re-
mains their major provider in developing and least de-
veloped countries. Indeed ‘[t]here are few, if any,
developing or least-developed countries where WIPO
does not play or has not played some role in developing
IP training and education initiatives, and there is almost
no aspect of IP training and education that WIPO does
not cover in at least some respect.’
93
Promotion and im-
plementation of PVP have not been exceptional. Specific
to PVP, WIPO Academy manages two long distance
courses and one training course dedicated to this field of
IP. In addition, the Organization offers three other train-
ing courses which include a module on PVP.
94
A bal-
anced curriculum and transparent choice of tutors is one
way of ensuring development-oriented courses on PVP.
The Guidelines for drafting national IP strategies
(NIPS) are contained in a template, which was
approved by the WIPO Member States under the
‘Development Agenda project on Improvement of
National, Sub-regional and Regional Institutional User
Capacity.’
95
The project was triggered by the need for a
harmonised and integrated approach in guiding na-
tional undertakings for the formulation of intellectual
property (IP) strategies. Therefore WIPO was mandated
to produce a standard, yet flexible, methodology which
was validated in a pilot process in six countries —
Algeria, Dominican Republic, Mali, Moldova, Mongolia
and Tanzania—and produced a number of important
outputs, including, in particular, a set of tools and
mechanisms to assist interested countries in formulat-
ing IP strategies which are aligned with national devel-
opment priorities.
96
The Guidelines contain four
elements considered key in formulating NIPS—The
Process,
97
Baseline Questionnaire,
98
Benchmarking
Indicators
99
and online survey on NIPS.
100
IP strategies are demand-driven but the actual fram-
ing of the strategies is guided by the Guidelines and
terms of reference provided by WIPO. The IP policies
are technically the responsibility of stakeholders, but for
lack of technical capacity, member states increasingly
seek WIPO’s technical advice to craft their national IP
Policies. PVP is one of the three pillars of an IP strategy;
the other two being industrial property and copyright
and related rights. According to WIPO methodology,
indicators which are relevant in successfully protecting
plant varieties include: (i) plant variety protection of-
fice: legal status, autonomy, key functions and staffing;
(ii) importance of breeders’ rights; (iii) national agri-
cultural policy or strategy; and (iv) plant breeding and
seed associations.
101
The fact that the guidelines or
methodology for developing national IP strategies were
approved by WIPO Member States, arguably opens a
window for their revision by the Member States if ne-
cessary. However, revision of the Methodology alone is
unlikely to influence the established practice of promot-
ing PVP. IP Strategies often include a recommendation
to the country receiving technical assistance to accede
to UPOV and establish a PVP office as part of legislative
and institutional reform. In many countries, NIPS now
include reference to areas related to breeders’ rights in
their national IP strategies and policies.
102
There is no
obligation to impose PVP on a country that does not
93 J de Beer and C Oguamanam, ‘Open Minds: Lessons on Intellectual
Property, Innovation and Development from Nigeria’, in M Smith and K
Reilly (eds), Open Development: Networked Innovations in International
Development (MIT Press Cambridge MA 2013) 249, 252.
94 See eg WIPO, The WIPO Academy Education and Training Program
Portfolio. (WIPO Publication no. 467) (2016), available at <www.wipo.int/
edocs/pubdocs/en/wipo_pub_467_2016.pdf >(accessed 10 January 2017).
95 Committee on Development and Intellectual Property, WIPO Methodology
and Tools for the Development of National IP Strategies: Development
Agenda project on Improvement of National, Sub-regional and Regional
Institutional User Capacity, Development Agenda Project DA_10_05
(2014), available at http://www.wipo.int/ipstrategies/en/methodology/
(accessed 31 October 2016).
96 Ibid.
97 Ibid, Tool 1: The Process.
98 Ibid, Tool 2: Baseline Questionnaire.
99 Ibid, Tool 3: Benchmarking Indicators.
100 Ibid, Tool 4: National IP Strategies, Online Survey.
101 Ibid, Tool 1: The Process, 50.
102 Ibid, Tool 3: the Benchmarking Indicators, 73.
202 ARTICLE Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3
have the capacity to use it. WIPO may avoid prema-
turely advising countries to accede to UPOV or amend
their laws to include PVP.
WIPO’s target in the 2016–17 biennium is to de-
velop national innovation and IP strategies and plans
consistent with national development objectives. The
cumulative number of countries in the processes of for-
mulating national IP strategies in 2015 was 24, with a
target of three more within the biennium.
103
In his keynote address to the WIPO Conference on
IP and Development,
104
Mr Rob Davies, South African
Minister of Trade and Industry, drew attention to the
fact that the Conference took place at a time when
many developing countries are revising or formulating
their intellectual property policies and therefore
offered a timely and important opportunity to re-
flect on how least developed and developing countries
can use the IP system to achieve their development
goals.
105
One such area that calls for serious reflection
is PVP.
Partnering in IP governance
WIPO plays a pivotal role as part of a public private
partnership (PPP) in IP governance. As the Director-
General of the Organization recently pointed out in his
opening statement at the International Conference on
Intellectual Property and Development, ‘WIPO has at
its base a public private partnership.’
106
While in prin-
ciple a member driven organization, 97 per cent of
WIPO’s revenue is derived from fees for services ren-
dered directly to the private sector.
107
Only 21 per cent
of WIPO’s expenditure is spent on development and
capacity building.
108
WIPO works on the basis of ‘an
interesting partnership’.
109
The key partners have
included industry and developed country IP offices.
Apart from the JPO which for example partnered in
organizing the African Ministerial Conference, the
USPTO and the EU have been key partners in enforcing
IP in Africa. In particular, in the case of PVP, the
Community Plant Variety Office (CPVO) has been ac-
tive, together with the USPTO, in influencing PVP le-
gislative and enforcement design, through aggressive
coercion, policy and legislative endeavours in Africa.
110
UPOV, WIPO, USPTO and CPVO participated in
ARIPO and SADC meetings on deliberations on the
plant variety protocols and indeed assisted in the devel-
opment of the relevant texts,
111
despite having the des-
ignation of ‘observers. Financing participation of
development-oriented partners in PVP activities is one
possible contribution WIPO can make.
Meetings, information session, seminars
Apart from the Ministerial Conference discussed above,
WIPO hosts a number of seminars or workshops on
food security and IPRs.
112
A number of these activities
have been conducted under the auspices of the IP and
Global Challenges Division, while others take place
through the Regional Bureau for Africa and other div-
isions. Through the Division of IP and Global
Challenges, WIPO addresses innovation and IP at the
nexus of interconnected global issues in particular glo-
bal health and climate change and, to a lesser extent,
food security.
113
These three subject areas have been
chosen because developing countries face particularly
acute challenges in these domains and because solutions
from innovation-driven initiatives are feasible.
114
The
implementation strategies include developing and
maintaining practical IP-based platforms and tools for
addressing global challenges.
115
Indeed while reporting
on the activities of the IP and Global Challenges
Division, WIPO indicated that ‘[a] strategy to address
IP and food security that builds upon WIPO’s previous
activities in this area will also be developed during the
biennium in consultation with relevant WIPO
Programmes, as well as external stakeholders, notably
IGOs, the private sector and civil society.’
116
Work on
103 WIPO, Programme and Budget for the 2016/17 Biennium , Approved by
the Assemblies of the Member States of WIPO on 14 October 2015, para
18.7. <www.wipo.int/export/sites/www/about-wipo/en/budget/pdf/
budget_2016_2017.pdf >(accessed 31 May 2016).
104 WIPO, International Conference on Intellectual Property and
Development, April 7–8, 2016, Geneva, Switzerland, available at <www.
wipo.int/meetings/en/details.jsp?meeting_id¼28522 >(accessed 1 June
2016).
105 WIPO, ‘South Africa Trade Minister IP and Development Keynote’ (7
April 2016), <www.youtube.com/watch?v¼2e3T8KgL9J0 >(accessed 27
April 2016).
106 WIPO, ‘WIPO DG Opens Conference on IP and Development’ (7 April
2016), available at <www.youtube.com/watch?v¼cex5iUgHWQs >(ac-
cessed 27 April 2016).
107 Ibid.
108 Ibid.
109 Ibid.
110 On the coercive role of the USA and the EU in general, see Oguamanam,
above, n 53, 5–6.
111 See UPOV, 49th Ordinary Session, Geneva, 29 October 2015, Reports by
Representatives of Members and Observers on the Legislative,
Administrative and Technical Fields, UPOV Doc No C/49/15, Annexes
XIV, XVII and XVIII.
112 S Mbithi, ‘IPR and Food Security: a Perspective from Developing
Countries Farmers’, WIPO Workshop, Geneva (14 June 2011), available
at <wipo.int/export/sites/www/meetings/en/2011/wipo_ip_lsbiot_ge_11/
presentations/mbithi.pdf >(accessed 30 May 2016).
113 WIPO, above, n 103, para 18.7.
114 WIPO, Global Challenges Division, available at <www.wipo.int/about-
wipo/en/activities_by_unit/units/global_challenges/ >(accessed 31 May
2016).
115 WIPO, above, n 103, para 18.5.
116 Ibid para 18.7.
Susan Isiko
Strba WIPO and plant variety protection and food security in Africa 203ARTICLE
food security has been put on hold, but it could be
revived and accorded the same priority as WIPO
Re:Search or WIPO Green. Under the work on food se-
curity, WIPO could encourage technology transfer plat-
forms for agricultural biotechnology, which could be
extended to other interested developing countries. In
addition, African countries could propose projects
under the WIPO Development Agenda.
Another strategy, outlined in the Programme Budget
for the 2016/17 biennium, is through providing
enhanced access to, and use of, IP information to sup-
port Member States, IGOs, the private sector, civil soci-
ety and other stakeholders and assisting them in the
identification of feasible approaches. Under this strat-
egy, Programme 18 will continue to contribute to hold-
ing policy dialogues on IP and global challenges, with
the aim of reinforcing WIPO’s role as a credible source
of fact-based information and analysis, offering WIPO
events as a forum for discussion on these issues. Work
will be guided by the relevance of IP and innovation to
global health, climate change and food security, the
Development Agenda and the UN post-2015
Development Agenda.
117
At the African Ministerial Conference, participants
committed themselves to take advantage of opportuni-
ties available within WIPO technical assistance and cap-
acity building programmes including access to data,
multi-stakeholder platforms and scientific and techno-
logical information. It is arguable that WIPO
Committees fall under the ‘multi-stakeholder platform’
for addressing PVP issues.
These activities by WIPO provide a window and
partly a framework within which to address PVP
The purpose for having a conversation on PVP
in WIPO
The purpose would be to have an inclusive debate in a
transparent environment. It is hoped that this will en-
able open scrutiny of WIPO and the various developed
country members who promote strong PVP in Africa
or developing countries. It is also an opportunity for
scrutiny to African institutions or members who em-
brace high PVP standards but plead coercion. The task
of scrutinizing will not be left only to scholars and
NGOs, but it will be an opportunity for the African
Group at WIPO (a group comprised of representatives
of African Missions in Geneva which articulates African
interests at WIPO), and other interested develop-
ing countries to engage with the issue and determine the
direction of the PVP in a manner that is transparent and
development-oriented. The Development Agenda re-
quires that:
WIPO technical assistance shall be, inter alia, development-
oriented, demand-driven and transparent, taking into ac-
count the priorities and the special needs of developing
countries, especially LDCs, as well as the different levels of
development of Member States and activities should include
time frames for completion. In this regard, design, delivery
mechanisms and evaluation processes of technical assistance
programmes should be country specific.
118
The Committee on Development and Intellectual
Property (CDIP) is one possible, but not the only, av-
enue to scrutinize WIPO’s work in this area. A conver-
sation in WIPO is an opportunity to task WIPO to
implement and respect the development Agenda rec-
ommendations. Member states and civil society have
through WIPO Committees exercised checks on its
work in other areas of IP, for example the CDIP or
Standing Committee on the Law of Patents. Doing so
with respect to plant varieties should not be strange.
Unbalanced PVP is not a problem peculiar to Africa,
but the African Group at WIPO can take the lead. Indeed,
one member of the African Group at Intergovernmental
Committee on Intellectual Property and Genetic
Resources (WIPO) proposed a discussion on plant vari-
eties in the Traditional Knowledge and Folklore (IGC),
which is a good start and an indication that the option of
such a discussion taking place in WIPO is possible.
The other purpose would be to keep a watch on the
kind of capacity building WIPO provides in the areas of
PVP. Member states could go a step further and pro-
pose capacity building projects to the Committee on
Development and Intellectual Property. The role of the
CDIP are to (i) develop a work programme for imple-
mentation of the adopted recommendations; (ii) moni-
tor, assess, discuss and report on the implementation of
all the recommendations adopted, in coordination with
relevant WIPO bodies; and (iii) discuss intellectual
property and development related issues as agreed in
the Committee, as well as those decided by the WIPO
General Assembly.
119
The most significant form of im-
plementation has been through projects, initiated either
by Member states or the WIPO Secretariat. Members
could propose projects leading to capacity building.
117 Ibid para 18.8.
118 WIPO, The 45 Adopted Recommendations of the Development Agenda,
Recommendation 1, <available at http://www.wipo.int/export/sites/
www/ip-development/en/agenda/recommendations.pdf>, (accessed 10
January 2017).
119 WIPO, Report of the Provisional Committee on Proposals Related to a
WIPO Development Agenda (PCDA), 4th Session, Geneva, 11–15 June
2007, Doc No PCDA/4/3 (4 September 2007), Annex 1, para 76.
204 ARTICLE Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3
Furthermore, a discussion at WIPO should target
getting political commitment, which is essential to the
effective implementation and enforcement of PVP.
Possible hurdles and challenges to a
conversation on PVP in WIPO
It would be naı¨ve to imagine that an experiment on a
conversation on PVP in WIPO would be embraced by
everyone. There might be some challenges, triggered by
potential or apparent conflict of interest. First, there
might be the argument that WIPO does not have a
mandate to discuss or address PVP. Similar arguments
are often advanced by developed countries when de-
veloping countries demand development-oriented dis-
cussions on IP, most notably in the CDIP. But yes,
WIPO has a mandate, both de jure and de facto, to dis-
cuss and indeed address PVP. De jure, the WIPO
Convention defines intellectual property to include
rights related to ‘inventions in all fields of human en-
deavour’ and ‘all other rights resulting from intellectual
activity in the industrial, scientific, literary or artistic
fields’.
120
Much as plant variety rights are not expressly
mentioned, they fall in these two categories of rights.
De facto, WIPO is already engaging in various activities
on plant varieties, directly or indirectly, through tech-
nical assistance activities, education and training.
Second, since the Director-General of WIPO doubles
as the Secretary-General of UPOV, WIPO may be reluc-
tant to encourage a discussion on PVP in WIPO.
121
However, the purpose of the conversation is not for
WIPO to take the leading role on technical issues of PVP,
which are already handled by UPOV, but to allow trans-
parent discussion and scrutiny of its activities; something
similar to WIPO Green, in relation to Green technologies
or WIPO Re:Search in relation to technology transfer for
neglected tropical diseases, TB and malaria. It is arguable
that these two are the domain of UNEP and the World
Health Organization, respectively. Yet there is no impedi-
ment to WIPO engaging with these issues.
Third, there might be argument of lack of funding.
However, the activities envisaged are often budgeted for
under meetings, technical assistance, or conferences.
There will be no need for extra funding, but what will
be needed and required of WIPO is to include an item
on PVP on the agenda, emphasize the importance of
flexibilities to PVP while providing technical assistance
and legislative advice or conducting information sem-
inars and conferences on PVP, designing curriculum
for WIPO Academy courses on PVP and selecting in-
structors who will provide a balanced view of PVP.
Conclusion
Several African institutions have embraced agricultural in-
novation as the solution to food security on the continent.
African institutions are working towards premature har-
monisation of PVP on the continent. Instead of address-
ing the development needs of their member states, they
have responded to external demands, adopting standards
and policies dictated by international institutions and
plant variety industry-rich countries. Among the multilat-
eral institutions, WIPO has been a key player in determin-
ing the policy and legislative architecture of PVP on the
continent. Yet scholarship and debates on or attempts to
find PVP regime that promotes access to food and food
security in Africa has conspicuously excluded WIPO.
A meaningful discussion on PVP and food security in
Africa calls for attention to be paid to the work and role
of WIPO. The task can no longer be left to NGOs and
scholars as has largely been the case. There is a need to
address the issue in WIPO. WIPO has a role to play in
enabling the use of intellectual property in African ‘devel-
opment agendas’ for agricultural innovation in a way that
leads to long-term food security and access to food. This
role stems from the organization’s original mandate as
well as the way it has adapted and continues to adapt its
programmes to meet evolving demands in an attempt to
provide practical solutions to new challenges of IP gov-
ernance. Because of its almost privileged status in provid-
ing technical assistance, capacity building, education and
training in the majority of African countries, WIPO has
room and indeed responsibility to promote access to food
and food security as part of honouring its commitment to
the WIPO development agenda. At the minimum, WIPO
could provide technical assistance and capacity building
for research in agricultural biotechnology. This will not
only create capacity for future generations of IP assets in
agriculture but will also be a step forward to meeting the
development needs of access to food and food security.
Taking a discussion on PVP in WIPO is likely to
meet resistance from UPOV and its beneficiaries. The
purpose of bringing the debate to WIPO is not to sup-
plant UPOV, but rather allow for open discussion be-
tween different interest groups in a transparent
environment before getting political commitment.
WIPO already has the legal and administrative frame-
work in place to facilitate discussion on PVP.
120 Convention Establishing the World Intellectual Property Organization
(signed 14 July 1967, in force DATE, amended 27 September 1979) 331
UNTS 217, Art 2(viii).
121 This idea was conceived during a discussion with Prof Jeremy de Beer
during the welcome reception at the 35th Annual Congress of the
International Association for the Advancement of Teaching and Research
in Intellectual Property, Krakow, Poland, 26–29 June 2016.
Susan Isiko
Strba WIPO and plant variety protection and food security in Africa 205ARTICLE
... Agreement between the World Intellectual Property Organization and the International Union for the Protection of New Varieties of Plants (WIPO/UPOV Agreement) signed on 26 November 1982 (UPOV/INF/8). 37 OAU(2000);Straba (2017), p. 192. 38 GRAIN (2001; OpokuAwuku (2008), p. 114. ...
Chapter
According to the French terroir theory, natural milieus play an essential role in the formation of a Geographical Indication (GI). However, it has always been unclear what the human contributions are? As such, the European Union (EU) introduces only a vague concept of human factors under the Regulation (EU) No. 1151/2012 on quality schemes for agricultural products and foodstuffs. Along with the unclearness of the human’s role, battles are frequently arising among competing stakeholders with some giant food companies lobbying for a simpler regime that would allow innovation without triggering a complicated amending procedure. Small producers and consumer organizations are in opposition to such developments and are appealing to save traditions. In response, the European Commission proposed to amend the definition of the Protected Designation of Origin, one of the GI categories in 2018. According to the proposal, human factors are no longer indispensable but optional underpinning factors. Though the European Parliament opposes such change, it narrowly defines human factors and leaves the traditional processing know-how out of the underpinning factors of GIs. In order to solve the conflicts, this Chapter explores the human’s role in GI protection by tracing the transformation of the meaning of terroir in France and analyzing the rational bases of GIs as a kind of intellectual property. The French experience demonstrates that humans’ contribution and traditions they create are indispensable underpinning factors of GIs. Notwithstanding the importance of tradition and heritage, innovation as a way of pursuing desirable qualities for consumers is also allowed under GIs. Different from patent and trademark law, the direction of innovation under GIs should adapt to and express the natural factors that make the product distinctive and typical for the geographic location without forcing producers to ensure natural restrictions and hardships that can be overcome through innovation as long as overcoming such natural restrictions does not undermine the typicity and special origin-linked characteristics. Finally, suggestions about amending the EU Regulation relating to GI’s definition, product’s specification, and amending procedures are proposed.
... It is based on UPOV and the OAPI and ARIPO instruments (Isiko Štrba, 2017, p.50), but is also not yet in force. It is subject to similar critiques as the OAPI and ARIPO schemes from academics, farmers' organizations and civil society stakeholders (Masinjila and Mayet, 2018;Isiko Štrba, 2017;Oguamanam, 2015). ...
Technical Report
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Africa is one of the world’s most biodiverse regions, and many African countries have a comparative advantage in the abundance and variety of biological resources. Furthermore, a majority of the population in Africa depends directly upon biodiversity and ecosystem services for their food and livelihoods,6 whereas natural capital accounts for between 30 per cent and 50 per cent of the total wealth of most African countries. The creation of the African Continental Free Trade Area (AfCFTA) through the entry into force of the Agreement Establishing the AfCFTA (AfCFTA Agreement), on 30 May 2019, presents important opportunities for boosting intra-African trade and promoting development that is environmentally, socially and economically sustainable. The AfCFTA is central to achieving the continental integration envisioned in the Organization for African Unity’s Treaty Establishing the African Economic Community (Abuja Treaty) and the African Union’s Agenda 2063: The Africa We Want (Agenda 2063). It is also expected to drive the economic transformation needed to foster the sustained and inclusive growth required to help African countries to implement the 2030 Agenda for Sustainable Development (Agenda 2030) and achieve the Sustainable Development Goals. The AfCFTA is pivotal to Africa’s development strategy and ambitions. Concerted efforts must be made to ensure that the instruments still under negotiation under the AfCFTA framework deliver a comprehensive set of agreements that boosts intra-African trade, using the opportunity to include features and policies that serve the needs of all African countries. Supplying growing global consumer demand for natural, healthy, environmentally friendly, just and ethical products and services offers a new avenue to strengthening the legal and sustainable production, trade and consumption of biodiversity-based goods and services. A targeted approach under the AfCFTA could thus foster intra- African trade in biological resources and derived value added products and services, while conserving globally significant biodiversity, furthering mitigation of and adaptation to climate change, and improving livelihoods. This study reviews the potential implications of, and opportunities presented by the AfCFTA for legal and sustainable trade in biodiversity/BioTrade and access and benefit-sharing (ABS). Section 1 explores the concept of BioTrade, addresses the substance of the updated BioTrade Principles and Criteria published in 2020 by UNCTAD, and illustrates how BioTrade has been implemented in Africa. Section 2 presents a historical overview of African trade integration, beginning with the creation of the Organization for African Unity (OAU) in 1963 and concluding with the entry into force of the AfCFTA Agreement in 2019. Section 3 provides a general overview of the broader links between trade and environment, trade in goods, including non-tariff barriers (NTBs), trade in services, intellectual property rights (IPRs), competition policy, and cooperation. The study concludes by identifying potential points for engagement, as implementation is still in the very early stages, and negotiations on protocols and additional annexes continue.
... India, Thailand, and Malaysia have opted for plant variety protection systems that comply with the TRIPS Agreement, but not necessarily with the UPOV requirements (Haugen, 2014, pp. 215-216), while there are two treaties based on UPOV 1991 that have been adopted by two distinct African IPR organizations (Haugen, 2015;Štrba, 2017). ...
Article
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The UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) was adopted by the UN General Assembly in 2018. One provision that caused opposition by certain states was Article 19 on the right to seeds. The article discusses whether the right to seeds is implicitly recognized by Article 15.1(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) on “benefits of scientific progress…,” seen in light of ICESCR Article 11.2(a) on “improving methods of production…” as well as the Convention on the Elimination of All Forms of Discrimination against Women Article 14.2(g), on rural women's right to appropriate technology. Moreover, the positive protection of farmers' breeding efforts is covered by the wording of ICESCR Article 15.1(c). Other treaties and soft‐law sources also direct states to improve peasants' livelihoods, including seeds. States can legislate to serve peasants' interests and strengthen their rights when adopting IPR legislation. The article shows how this can be done, for instance by introducing exclusions and limited exceptions to IPRs. States have a policy space when implementing IPR legislation that should be utilized to promote the right to food and the livelihood of peasants.
... Beyond these farmers' fields, crop varietal innovation has emerged as a major issue in discussions about economic and agricultural development in both The Gambia and other parts of sub-Saharan Africa (Marenah 2012;Strba 2017). During fieldwork, my conversations with researchers at The Gambia's National Agricultural Research Institute and the leaders of farmers' organizations repeatedly returned to the need for a greater focus on innovation in seed quality and varietal development. ...
Article
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Recent efforts to draft plant variety protection (PVP) legislation in The Gambia and sub-Saharan Africa have sparked criticism from civil society organizations. Citing incongruences between intellectual property law and practices of farmer seed management, these organizations have emphasized the importance of “unfettered” seed exchange among farmers even as they have called for farmers to be granted certain exclusive rights to the varieties they develop. Where the appeals invoked a language of limits familiar to PVP, they also departed from Gambian farmers’ accounts of varietal innovation and its rewards. For farmers, attaining varietal namesakes that could travel across vast networks of farmers generated the rewards of innovation. In this way, farmers articulated a version of claims that pushes against the analytical limits set by calls for exclusive rights. [agriculture, intellectual property, innovation, value, nonhumans, Gambia, West Africa] Kata kuwolu be keriŋ saaying ka turu kantoo luwa (PVP) londi Kambiya aniŋ a jenjeŋolu la Moofiŋdu jaŋ ye jalayiroo warandi kabo Mansakundariŋolu la kafolu bulu. ˜ Niŋ kafolu la daliloo mu ˜ nineti ko, wo luwalu niŋ senelaalu la turu kuluroo maŋ ˜noo taa, wo kamala, ˜ niŋ kafolu ye turu faliŋo bambandi senelalu teema hanniŋ a ye a tara kumandiroo keta le puru ka samaalaalu la ˜nantoo yiriwandi turoolu la i faŋolu ye meŋ dooku. I ye kumandiroo ke dulalu la meŋnu muluntaŋ˜noyata turoolu la tanko la, i naata bondiri ke Kambiya samaalaalu la karoo la turoo kutakutayandoo la aniŋ a la nafaa. Puru samaalalu, turu toomalu soto meŋ ka taama samaalaa jamaalu teema wo ye turu kutakutayando londi le. ˜ Niŋ silo la, samaalaalu la kumoolu aniŋ kumandiroo meŋ keta puru samaalu la ˜nantoolu nanee wolu maŋ ˜noo taa. [senoo, turu kantoo luwa (PVP), ˜nakeseyaa, tinewo, sarililalu, Kambiya, Moofiŋdu Tilijiyoola]
Chapter
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The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) annexed to the Marrakesh Agreement establishing the World Trade Organization (WTO) contains some important flexibilities. In relation to plant variety protection (PVP), TRIPS indicates the necessity of devising a legal regime tailored to local realities. It is disappointing to witness that the International Convention for the Protection of New Varieties of Plants (UPOV Convention) has been advocated as the most appropriate regime and even least-developed countries are being brought under the UPOV framework (The acronym UPOV is based on the French title of the treaty: Union internationale pour la protection des obtentions végétales). The applicability ratione materiae of the UPOV Convention has expanded by encompassing a broad range of activities under ‘commercial breeders’ rights’. The applicability ratione loci has been widened by applying persuasive force on developing countries through bilateral and regional arrangements. This chapter shows how national laws based on the UPOV Convention negatively affect smallholder farmers and over the long-run affects the realisation of many countries’ policy objectives such as poverty alleviation and human rights protection. Showing how the support of developed countries is making UPOV an undeniable force, and considering the fact that WTO members are obliged to provide for PVP, this chapter argues that countries should devise suitable laws in line with their national objectives before committing to any bilateral or regional obligation to accede to the UPOV Convention. Further, this chapter suggests that along with protecting farmers from the detrimental effect of PVP laws, national laws should be designed in such a way that farmers make use these laws and benefit from the PVP regime.
Article
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In this article, I examine whether the contemporary regional intellectual property (IP) agreements negotiated by West African countries are more suitable than multilateral agreements to advance food security in the region, based on the provisions they make for applying the differentiation principle. In this paper, the term “West Africa” is used to designate the 15 countries that are members of the Economic Community of West African States (ECOWAS), the major regional organization in the area (The founding members of ECOWAS were: Benin, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania [left 2002], Niger, Nigeria, Senegal, Sierra Leone, Togo, and Burkina Faso [which joined as Upper Volta]. Cape Verde joined in 1977). By reviewing relevant literature and theories, I propose that the human right to development as a differentiating paradigm may be applied in IP regulation, without compromising the requirement of nondiscrimination in IP regimes. I argue that human rights linked to the food security should be differentiated from the proprietary rights granted in IP. After critical doctrinal analysis of West Africa's regional agreements related to IP rights and food security, I conclude that rather than maximising the adoption of the differentiation principle to advance the regions food security, these treaties are surprisingly less flexible than multilateral agreements, creating further challenges for food security in the region. Consequently, I propose an alternative regional framework for differentiation, that allows for differentiation between IP and human rights norms based on the instrumentalist approach to law, as being more suitable for advancing development and food security in West Africa.
Thesis
This thesis aims to examine the status of seed security and seed sovereignty among female lowland rice farmers in Guinea Bissau. It draws from different, while complementary strands of the literature, investigating seed systems. One focusing on functional aspects of farmers’ seed systems, such as availability, access and varietal suitability, while the other stems from seed sovereignty movement which looks at seed systems from a rights perspective. This research objective is to contribute to this literature by providing new insights on seed security measures, quantitative evidence of the effects of seed security on food production and on how farmers, in context of limited statehood can protect their rights under a multi-level governance system “pushing” their rights’ in different directions. Chapter 1 provides an introduction on the issues surrounding seed systems, seed security and seed sovereignty in developing countries, the motivation and the research objectives. Chapter 2 develops a comprehensive measure of seed security with the objective to capture in a single measure all the different dimensions behind seed security. Chapter 3 builds on findings of the previous chapter, by employing the seed security index and other seed security measures, to estimate the determinants of seed security and the effect of seed security on food production. Chapter 4 puts the former research in a broader context. Using qualitative evidence in the sector, this last chapter looks at seed sovereignty from the perspective of a fragile state in the context of international and national governance regimes. Overall this thesis has found that availability and social access are currently the key dimensions driving seed security status among lowland rice farmers. This is a result of high levels of poverty and a residual formal seed market, where farmers resort predominantly on their own seed and seed in their social networks, to produce rice, their major staple crop. Area owned and household labour are found to be the key determinants of seed security while results also suggest that seed security has a positive effect on rice production. This research has also found that external forces accruing from global and regional seed governance regimes are not currently undermining nor reinforcing seed sovereignty rights that lowland farmers’ seem to be enjoying. However, the uneven influence between regimes might change the status quo towards the erosion of farmers’ rights, with consequences for their livelihoods and agro-biodiversity.
Book
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This book explores the emergence and development of the legal concept of fair and equitable benefit-sharing, and its application in agriculture. Developed in the 1990s, the concept of fair and equitable benefit-sharing has been deployed in an ever-wider variety of international instruments, including those on biodiversity, climate change and human rights. A lack of clarity persists, however, on what fair and equitable benefit-sharing requires and entails, and whether its implementation supports or eventually undermines equity and justice. This book examines these questions in the area of land, food and agriculture, addressing for the first time several instances of the agricultural production chain, including research and development, land governance and land use and access to markets. It identifies challenges regarding implementation of the concept as enshrined in environmental treaties and soft-law instruments, with a focus on the International Treaty on Plant Genetic Resources for Food and Agriculture, the Voluntary Guidelines on Tenure and the UN Declaration on the Rights of Peasants. It investigates its role, enabling conditions and limitations, in a contradictory policy context involving environmental, food security and human rights objectives but also a growing web of multilateral and bilateral trade and investment agreements. Linking international law research with a socio-legal analysis, the book addresses four grassroots examples, which offer ideas for institutional and legal innovation from the local to the global level.
Thesis
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This thesis explores the limitations and possibilities for the making of intellectual property laws for plants. The analysis is grounded in the contention that in recent years, a particular logic – understood here as a certain set of assumptions about the purpose of legal regimes – has come to dominate the way that lawmakers think about how to structure relationships between people, institutions, and plants. Thus, the dominant form of intellectual property for plants has materialised in systems that grant “plant breeders’ rights.” These regimes are predicated on a number of conventions, including that new plant varieties should be conceived as marketable technologies, that innovative activities undertaken by private actors to create plants with favourable traits should be incentivised, and that investment in breeding activity should be rewarded via exclusive commercial exploitation rights. The plant breeders’ rights model has influenced the way that different social actors think about how different uses of plants should be regulated, and about the meaning and purpose of intellectual property. Nevertheless, many options remain accessible for governments to design innovative legal frameworks for the regulation of relationships between people, institutions, and plants. This is true even where certain international legal instruments have to some extent limited the formal legal space available for domestic experimentation. Using a case study format focused on recent lawmaking projects in Ecuador, this thesis recounts how rationalities alternative to the conventional plant breeders’ rights model have manifested in new legislative and regulatory frameworks in that country. The methodology employed centres on doctrinal analysis of Ecuadorian and international legal regimes, and a socio-legal approach involving ethnographic fieldwork in Ecuador that occurred over the course of approximately seven months, in 2016 and 2018. The conclusion extrapolates several lessons from the Ecuadorian experience, which could be used to inform future initiatives for the making of novel intellectual property laws for plants in other countries.
Article
Nigeria does not currently have a plant variety protection system. Three key reasons why Nigerian law and policy makers should pay attention to plant variety protection are the country's evolving agricultural sector, susceptibility to external pressures and pending international obligations. From 2010, successive Nigerian governments have promoted private sector investments in agriculture, contributing to the increase in the number of agribusinesses in the country. Agribusinesses tend to lobby for the introduction or reform of national plant variety protection systems to suit their business interests. Furthermore, as a founding member of the World Trade Organization (WTO), Nigeria has a pending obligation under Article 27.3(b) of the Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS) to protect plant varieties through a patent system, a sui generis system, or a combination of systems. This article argues that Nigeria should proactively introduce a plant variety protection system designed to suit its socio‐economic realities before it is pressured to adopt an unsuitable system. In assessing the options under TRIPS vis‐a‐vis the small‐scale centered agricultural sector in Nigeria, the article finds that the best‐suited option for the country is a sui generis system which protects the interests of both small‐scale farmers and agribusinesses.
Article
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Public sector seed programs in most sub-Saharan African countries targeted the dissemination of quality seed of improved varieties in the 1970 and '80s, assuming that the informal seed system would disappear. The orientation in 1990s shifted toward withdrawal of the public sector, promoting privatization and liberalization of the seed market. The informal seed system remained dominant. Integrated seed sector development aims to better link informal and formal seed systems, and balance public and private sector involvement. It explores variation among seed value chains, with the aim of making seed programs and policies more coherent with farmers' practices and more effective at reaching food security.
Although the original mandate was to conduct studies on L&Es for educational activities, the focus of the resulting studies ranged from just teaching (WIPO Document SCCR/19/5) to education and research (WIPO Document SCCR/19/4) and educational activities/purposes in general
Although the original mandate was to conduct studies on L&Es for educational activities, the focus of the resulting studies ranged from just teaching (WIPO Document SCCR/19/5) to education and research (WIPO Document SCCR/19/4) and educational activities/purposes in general (WIPO Documents SCCR/19/6, SCCR/19/7 and SCCR/19/8).
Commentary on the WIPO Study on Limitations and Exceptions to Copyright and Related Rights for the Benefit of Teaching in Africacommentary-on-sccr-study-on-le-for-africa); and 'Commentary on the WIPO-SCCR Information Meeting on Limitations and Exceptions for Educational Activities
  • Susan Isiko
Susan Isiko Štrba, 'Commentary on the WIPO Study on Limitations and Exceptions to Copyright and Related Rights for the Benefit of Teaching in Africa', IQsensato (2009), <http:// www.iqsensato.org/blog/2009/12/13/commentary-on-sccr-study-on-le-for-africa/> (accessed 20 December 2011); and 'Commentary on the WIPO-SCCR Information Meeting on Limitations and Exceptions for Educational Activities', IQsensato (2009), <http://www.iqsensato.org/blog/ 2009/12/16/commentary-on-the-wipo-sccr-information-meeting-on-le-for-education/> (accessed 20 December 2011).
Commentary on the WIPO Study on Limitations and Exceptions to Copyright and Related Rights for the Benefit of Teaching in Africa
  • Susan Isiko Štrba
Susan Isiko Štrba, 'Commentary on the WIPO Study on Limitations and Exceptions to Copyright and Related Rights for the Benefit of Teaching in Africa', IQsensato (2009), <http:// www.iqsensato.org/blog/2009/12/13/commentary-on-sccr-study-on-le-for-africa/> (accessed 20
Edward Kwakwa has rightly recommended that the Organization adapts its traditional rulemaking process by adopting more rapid, transparent, effective and politically acceptable means of norm creation. See Edward Kwakwa
In the case of WIPO in particular, Edward Kwakwa has rightly recommended that the Organization adapts its traditional rulemaking process by adopting more rapid, transparent, effective and politically acceptable means of norm creation. See Edward Kwakwa, 'Some Comments on Rulemaking at the World Intellectual Property Organization' (2002) 12(1) Duke Journal of Comparative and International Law 179-95, at 179.
Intellectual Property Rights, Biotechnology and Development: African Perspectives
  • Awuku E Opoku
E Opoku Awuku, Intellectual Property Rights, Biotechnology and Development: African Perspectives, in D Wüger and T Cottier (eds), Genetic Engineering and the World Trade System: World Trade Forum (CUP Cambridge 2008) 109.
The draft bill, which reflects UPOV 1991, above, n 49, is the subject of opposition by farmers' organizations. See C Walker, 'Battling the "Monsato Law
In addition, Ghana is in the process of elaborating a plant variety protection legislation: see Plant Breeders Bill, 2013 (Ghana). The draft bill, which reflects UPOV 1991, above, n 49, is the subject of opposition by farmers' organizations. See C Walker, 'Battling the "Monsato Law" in Ghana' New Internationalist Blog, available at < https://newint.org/blog/ 2014/10/20/plant-breeders-bill-ghana/ > (accessed 31 October 2016).
ARIPO's Draft Protocol for the Protection of New Varieties of Plants (DRAFT Protocol) Undermines Farmers' Rights, Lacks Credibility & Legitimacy' La Via Compesina
  • La Via
La Via Campesina, 'ARIPO's Draft Protocol for the Protection of New Varieties of Plants (DRAFT Protocol) Undermines Farmers' Rights, Lacks Credibility & Legitimacy' La Via Compesina (14 April, 2014), available at < http://viacampesina.org/en/index.php/ main-issues-mainmenu-27/biodiversity-and-genetic-resources-main menu-37/1591-aripo-s-draft-protocol-for-the-protection-of-new-vari eties-of-plants-draft-protocol-undermines-farmers-rights-lacks-credibil ity-legitimacy > (accessed 3 May 2016);