INTRODUCTION:

The greatest problems faced by agriculture sectors are how to convert food, feed, andagrofuels into the process of commodification which can give high returns on the investment (Bello, 2009). Agriculture production needs a wide amount of lands and is unforeseeable due to factors for example weather, insects and the perishable food quality. Agriculture sector traditionally has been resistant to the capitalist logic of growth, i.e. conversion of capital in the form of money to the capitalist in the form of commodities and again the conversion of this into a larger amount of capital (Howard, 2009).

After the end of Second World War,specifically, the need to decrease the risk associated with the key elements of agricultural production has headed to the wide range of technologies and research which transformed the agriculture into agribusiness (Downes, 2010). In some cases, the sale of agricultural inputs likes chemicals and equipment formed farmer’s dependency on the corporation's product, for example, Monsanto, seeds have the potential to stop the process of growth due to when one purchased it they can self-reproduce thereby canceling profits if farmers had to purchase these every year. In order to overcome such type of hindrances to accumulation, the reaction of biotechnology corporations since the extensive development of genetic engineering in the initial 1980s has been two responses, i.e. legal and biological (Downes, 2010). The biological response has required the development of hybrid and transgenic crops which do not repeat the same features of earlier generations and need annual re-purchasing. The legal response resulted inthe IPR regime in the area of plant breeders’ rights, best illustrated by the World Trade Organization’s TRIPs Agreement. TRIPs came as a result of the Uruguay Round of trade talks of 1986-93 conducted under the umbrellas of the General Agreement on Tariffs and Trade (GATT) which WTO brought into being in January 1995. The member states of the WTO have signed to accept the principle of this single undertaking which required accepting all the Agreement of WTO as a complete package not on an individual basis and is also unique among the multilateral organizations. Therefore, WTO members are binding to accept all the provisions of TRIPs (Downes, 2010). There is not any chance for members to differ from any WTO agreement irrespective of that member nation’s economic and social development; however, there are some exceptions present in the agreement.

Under TRIPS Agreement all the WTO members require to provide intellectual property rights protection in the form of Plant Breeders’ Right (PBR) on all the new varieties of plants within their legislation (Downes, 2010). This has recognized highly argumentative and motivated the frequent dispute that while PBRs represent that category of IPR greatly appropriate to large-scale agriculture and biotechnology in developed countries, imposing such a provision on WTO member nations where most of the population are reliant on agriculture is possibly counter-productive and harmful for food security (Downes, 2010).

MATERIAL AND METHODS:

Descriptive and review methods have been used in this research article where the secondary sources of data are obtained from various sources such as national and international research papers as well as global reports are also taken into consideration.

RESULTS AND DISCUSSIONS:

TRIPs Agreement:

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was the one of the set of agreement of World Trade Organization’s (WTO’s) in the Uruguay Round (UR) negotiations to provide a strong basis in which WTO member countries could outside the territorial limits should implement the Intellectual Property Rights (IPR) of domestic firms. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is the most significant element of GATT as much as knowledge and invention based industrial segments are concerned. It was prior identified during the trade negotiations that different countries of the world not merely vary extensively in their economic and developmental status but also in their competence to develop or even utilize modern technology (Nair, 2011). Member countries were compelled to start legislative reform to create laws and regulations that fulfill international criteria, as described in the TRIPS Agreement. If the inventing firms from member countries are not satisfied with the type of IPR protection grant for their innovations, then the arguments between the innovating firm’s host country and the guilty country are controlled through the WTO’s Dispute Settlement Understanding (DSU). The DSU permits for cross-agreement retaliation, means that a country which is detected in breach of its TRIPS Agreement commitments can be out through to retaliatory trade sanctions under another WTO agreement; generally the General Agreement on Tariffs and Trade (GATT) (Cardwell and Ghazalian, 2012). The introduction of the TRIPS Agreement into the WTO pointed a remarkable difference for multilateral trade agreements; the highlighting of a major agreement for the first time was a non-trade issue. The requirements that are brought out in the TRIPS Agreement discuss obligations in what way member countries must protect IPR within their domestic frontiers, while the other WTO agreements intents to provide an expected regulatory environment for international trade and to decrease obstacles and trade-misleading policies in the member nations (Cardwell and Ghazalian, 2012). Developing member’s countries of WTO under pressure from developed countries agreed to the insertion of the TRIPS Agreement in return for assured well access to developed country’s markets for industrial and agricultural products (Beck and Katz, 1995). With the implementation of the TRIPS agreement, questions have raised to the expansion of IPR protection to agriculture would be advantageous, both to manufacturers and consumers, as well as its likely impact on food security. (Payumo, Grimes and Wandschneider, 2012). In view of the disparities involves applying the same standards through all members irrespective of their growing requirements. A significant issue is the impact of TRIPs on Food Security by removal of curtailment imposed by TRIPs on patented agricultural products including germplasm, plant varieties, seeds, processed foods, etc. (Nair, 2011). This matter was not talked at Doha because issues related to agriculture are assigning with under the Agreement on Agreement and is one of the important components of conversation in the Doha Development Agenda. A proper clarification of many related articles in TRIPs and equal national regulations could significantly assist developing countries to solve those problems which Intellectual property regime brought in the agriculture and food security (Nair, 2011).

The rationale behind the TRIPs Agreement and Patent Protection:

TRIPS Agreement was negotiated at the conclusion of the Uruguay Round. The agreement requires members to patenting biotech innovations whether products and processes and plant varieties and it provides for the first time a lawful way for the protection of intellectual property rights. Patent protection in this area offers the organizations exceptional control over research and development along with the above whole food chain. As a result, the sale of seeds has become controlled worldwide by Monsanto, DuPont, and Syngenta (Howard, 2009). More than 80% of the land planted with main field crops in the US carried transgenic traits owned or approved by Monsanto (Fernandez-Cornejo, 2008). Farmers need to pay a licensing fee and sign an agreement with the biotech company if they want to use this patented seed. The authorizations disallow the traditional practice of saving seed, want farmers to follow selected farmer practices and sell in a particular market. In this manner, it is manageable by the company to artificially increase the price of seeds (Brankov and Lovre, 2013). In addition, the providing patent protects the companies’ rights of existing GM production; the company's plan is the protection of upcoming production. Besides this business monopoly position, a specific problem that the patenting has allowed is a threat to natural species and varieties (Paul et al., 2004; Eaton et al., 2009). Developing countries blame developed for stealing their traditional knowledge and varieties. TRIPS Agreement came into existence six months after the Convention on Biological Diversity (CBD). The CBD convention identifies for the first time in global law that the conservation of biological diversity is "a common concern of humankind" and defines equal allocation of resources and access to technology, safety approach, and assessment of traditional knowledge. The two agreements, TRIPS and CBD have a conflict due to the substantial differences (Brankov and Lovre 2013). The related provisions which involve agriculture recommend that however nations are not required to provide patents for plants and animals. They should make available protection of plant varieties through patents or an effective sui generis system or both.

Table 1-Legal and Biological Mechanisms of IPR

Forms of IPR

Example

Focus crops/products

Year (country)

Technology (hybrids

Plant Patents

Plant variety protection

Utility Patents

Trade secret law

Technology

Hybrids

US Plant Patent Act

Plant Variety Protection Act

US Patent Act

US Uniform Trade Secrets Act

Genetic Use Restriction

Technology (GURT)

Sexually propagated plants

Asexually propagated plants

Sexually propagated Plants

Microorganisms

Plants

Animals

Parental lines of hybrids

Genetic modification technology/crops

1920 (USA)

1930 (USA)

1970 (USA)

1980 (USA)

1985 (USA)

1987 (USA)

1994 (USA)

1998 (USA)

Source: Fuglieet al., 1996; Fernandez-Cornejo, 2004 as cited in Srivastava et al, 2016

The application of IPRs in plant breeding in developing nations have raised many important issues, including access to technology by smallholders, the role of agricultural research in the public sector, the development of the local private seed sector, the status of farmer-developed varieties, and the rising North-South technology distribute that restricts access to plant germplasm and research tools. Though access to seed and new crop varieties is essential for agricultural development and rural welfare, it is significant to understand the impact of these legal systems on the breeding and seed sectors in developing nations (Louwaars, Tripp and Eaton, 2006).

IPR and Innovation in Agriculture:

The interaction between IPR and Agriculture can be broadly divided into three parts (Figure 5.4) i.e. Technology development facilitated by IPRs (incentive for present efforts), Technology development is driven by IPRs (requirements of the IPR regime) and Technologies that influence IPRs (Kumar and Sinha, 2015). It is interlinked with one other. The progress of plant varieties depends on the nature of the IPR regime and the extent of investment, the type of technology and the flow of technology development and transfer (Kumar and Sinha, 2015). In another word, the interaction of IPR with the agricultural technology transfer would have many effects on the farmers, organizations, and researchers, the IPR regime will be one of the chiefs. Figure 5.4 shows the relationship between IPR and agriculture in three ways. The WTO members accept the TRIPS agreement which gives a number of specific minimum levels of protection. The implications of technology can be seen on the social, economic and ecological system, the interaction of IPRs with agriculture has in three ways i.e. technology development facilitated by IPRs (incentive for present efforts); technology development driven by IPR (compulsion of IPRs regime) and technology that influence IPR. These are elaborated in the following points

(i) The IPR protection in this area leads to developing investment in two different way. Firstly it increases present research and development without drastically change the paradigm of research. For instance plant breeding to make hybrid which is likely to extend to newer crops (Ravishankar and Archak, 2000). The second area is where the new investment arises just because of the protection available where the protection is guaranteed to attract investment just like High Yielding Varieties (HYV) seeds-here public investment is likely to take off particularly in food grain crops in India. While the public sector will concentrate on basic research, the private sector will focus on applied aspects in India (Kumar and Sinha, 2015).

(ii) The nature of IPR protection influence investment behavior which can happen either in the public or private sector. For example in the public sector, a new regime needs a system for regulation, monitoring and dispute settlement. Due to this a new class of technology emerged. A good example is a growing awareness and expanded investment in DNAfingerprinting technology (Ravishankar and Archak, 2000). In the case of the private sector, firms bounds to increase expenditure for R and D which is the key to innovation.

(iii)Improvement in crop varieties contributes developments in the crop productivity and other technologies that involve. Taking the huge investment that goes into variety development, innovators are developing technologies that help remove difficulties in seeking protection for their innovative varieties with or without a proper system. Such technologies are together termed as Genetic Use Restriction Technologies (GURTs) (Kumar and Sinha, 2015). Many patents have already been issued for these technologies. Products of GURTs are crop varieties with traits whose expression is under the external chemical control. The primary motive of the innovator is not to force farmers to buy seeds every year but to force them to pay for these seeds each year (Ravishankar and Archak 2000). The underlying forces of such interplay will oblige considerable investment (Figure 2). The degree of the technology transfer and imports of these advanced depend on the level of protection and on economic liberalization.

Policy Issues related to IPR:

Researches in plant breeding and seed provision are important to stimulate for food security at the national and international level. The ability of adapted varieties to survive with the stressors of the environment provides strategies for sustainable agriculture. Provision of productive options for marketable farming is vital for broader economic development. IPR model for plant breeding could play a measure in agricultural development, but the challenge is to maintain the right balance between incentives for innovation and access to productive resources. A good IPR regime in plant breeding should capable to perform two basic roles. First one, in the benefits of the public, the IPR should ensure that knowledge and resources enter the public territory at some point, and it should encourage developments and innovations that increase the selections available to farmers and consumers. Second, in the benefits of the rights holder, the IPR regime should deliver opportunities for breeders to recover their investments, which may include the rights to keep farmers from saving protected varieties; to keep challenging commercial seed producers from marketing the protected variety without license and to have competing plant breeders from using protected variety in the development of a new variety (Louwaars, Tripp and Eaton, 2006). The role of IPR in agriculture is an extremely debated subject. The optimal design of IPR regimes will differ to local financial, institutional and agricultural environment and will accordingly change with these conditions. It is so the responsibility of policymakers to define the specific objectives that IPR in agriculture are destined to address and to develop suitable regulation.

The Response of Developing Nations:

Many developing nations have handled the pressure of the TRIPS’ deadline and have submitted their laws at the last moment. Most of the Asian countries with PVP laws do not have UPOV membership; however, in many cases, their laws reflect the main components of the UPOV 1978 system. India has applied for the membership, which is still under consideration by the secretariat of UPOV. India’s PPV and FR Act 2001 includes an extremely liberal provision for farmers to save, use, and exchange seed of protected varieties. Farmers can also register their own varieties (Louwaars, Tripp and Eaton, 2006). Other developing countries are similarly making an effort to implement a sui generis national legislative framework for the protection of new plant varieties. Besides India, Malaysia and Thailand have also given examples of a framework for PBRs outside the UPOV system. Finally in some countries for example in Zimbabwe, Ethiopia, and Zambia, PBR legislation comprises certain sui generis elements, even though these laws usually follow the UPOV model (Correa et al. 2015; Chaturvedi, Srinivas and Kumar, 2016). One benefit of executing a country-specific form of IP protection for new plant varieties is that specific nations may protect significant national priorities in law, like the recognition of farmers’ rights and limitations on the breeder’s right based on public interest concerns, though still remaining compliant with TRIPS requirements (Correa et al. 2015). In November 2015 Pakistan’s government announced in the National Assembly a proposal for its own sui generis system, via the Plant Breeders Rights Bill (Chaturvedi, Srinivas and Kumar, 2016). Likewise, in Bangladesh, the draft of Plant Variety and Farmers’ Right Protection Act of 2015 is currently undergoing an apparently final stage of review before the national Cabinet (Siddique 2015; Chaturvedi, Srinivas and Kumar, 2016)).

China has the most experience of the case study countries. Patents are administered by the State. Beside methods of breeding can be patented which allow patent protection on hybrid varieties. Many patents have been granted but the scope of permissible claims and the impact of these patents is not well identified (Louwaars, Tripp and Eaton, 2006). The new Chinese seed law which was published in 2015 was widely considered as a great upgrading in the PVP legislation in China (Gu, 2017).

India presents a sharp divergence. Though India has a well-established patent regime, the law has particularly excluded the protection of methods of agriculture. The amended law in 2005 extends protection to areas like agrochemicals and biotechnological products. It allows microorganism protection as required by TRIPs article 27 and genes, while case law will have to regulate the degree to which agricultural exemption will restrict the presence of plant varieties in the scope of protection.

Few developing countries have significant experience with protecting varieties. The preliminary evidence suggests that the application of PVP in developing countries be likely to reinforce major domestic trends in the development of commercial seed sector than to open a new door for opportunities. In a system where the large emphasis on hybrid varieties and extensive commercial competition, for example, India and China most focused center for PVP are for parental lines and hybrid (Louwaars, Tripp and Eaton, 2006). In a market having commercial open-pollinated varieties (OPVs) are established already, PVP regime facilitate additional protection for those markets. In regions where the local seed industry newly emerging, companies may not feel it is useful to take PVP advantage. While developing countries have less experience with PVP, the systems that are in place reveal a reasonably broad range of approaches to the issues like saving seeds, varieties range that are eligible for protection and dealing with farmers rights (Louwaars, Tripp and Eaton, 2006).

Figure 3 shows the world trend of plant varieties application received and titled issued from 2003 to 2017.

PV (Plant Variety) applications rose at a speedy rate in the past 15 years. About 18900 PV applications were filed globally in 2017, up to 11.7 percent on 2016-the greatest increase in applications in 15 years (see figure 3). China, the United Kingdom (U.K.), the Community Plant Variety Office of the European Union (CPVO), Viet Nam and Ukraine accounted for most of this progress (WIPO, 2018). However in 2017, the total number of PV titles issued a decline for the first time in the past five years by 3.8%, reducing to 12780 (figure 3). China responsible for most of this decline, its title issued decreasing by 22.8%, while still representing the second largest office with 1,646 titles in total (WIPO, 2018).

IPR and Patent related Objections:

The use of patents on plant genetic resources in the developing countries has been identified to threaten food security where three fourth of the population in the world lived below the poverty line engaged in agriculture (Downes, 2004). “Anything that increase the costs of agriculture seed or other inputs could be damaging” (Watkins and Fowler 2002). Patents also put a restrictionon the poor farmers to save the seeds on which the next year harvest is dependent. Conventionally, farmers reserve seeds after each harvest and regrow them in the next year. Farmers in developing countries particularly exchange the seeds with the local farmers. Breeders do not want this because they could not cover the investment made in improved varieties by repeat sales. Several plant varieties have created in the seeds that farmers have selected and propagated for many hundred years. Such actions of on-farm research and preservation give the foundation of food security and incomes for societies in the developing domain (UNDP, 2001¹ as cited in Downes, 2004). In industrialized countries too, it is a very common activity for farmers to re-use seed from an earlier harvest, even though for many crops “legal purchase is now the rule” (CIPR, 2002)². Lawful instruments, like the responsibility of nations to protect new plant varieties in Article 27.3(b) of the TRIPs Agreement, could raise the prices to farmers by requiring them to buying seeds every year. Questions related to patents in agro-biotechnology are distributed in two manners. Firstly, TRIPs levies the patentability of micro-organism and secondly, it also obliges all member nations to introduce IP protection for plant varieties. The question related to plant varieties protection is the purpose of a distinct provision, article 27.3b which was framed as an exception to the general rule of article 27(1). It provides that all member states will provide for protecting plant varieties either patents or sui generis system or a combination thereof.³

IPR on biotechnological inventions has a primary incentive for research initiative related to genetic resources. Biotechnological companies utilized many forms of IP protection to protect their investment. In the USA, genetic engineering has been established to cut costs in the food industry by way of the replacement of ordinary products by equivalent genetically engineered or only artificial ones. Although advocates of biotechnology such as the Biotechnology Industry Organization get agricultural biotechnology as a means to support and solve problems of hunger and unnecessary pesticide use on the other hand criticizers of the technology have says that plant biotechnology is useless, will be evil for users’ health, will weaken small farmers, and increase use of pesticide and decrease biodiversity (Pray, Ma, Huang, and Qiao 2001). Although the leading transgenic crops grown-up in the developing countries remain to be herbicide-resistant soybeans and maize, those main foodstuffs such as sorghum, cassava, and other root crops are infrequently developed. Small numbers of the newly engineered seeds on the market or in production are intended to fulfill the requirements of the rural poor or to improve the efficiency of smallholder families (Watkins and Fowler 2002).

CONCLUSION:

With all the debates and loopholes raised by the opponents in general and issues related to developing and Low Developing Countries, it has been noticed that the TRIPS Agreement is the greatest comprehensive legal regime and more successful agreement ever included at the mutual level in the field of IPR.With the implementation of the TRIPS agreement, questions have raised to the expansion of IPR protection to agriculture would be advantageous, both to manufacturers and consumers, as well as its likely impact on food security. The related provisions which involve agriculture recommend that however nations are not required to provide patents for plants and animals. They should make available protection of plant varieties through patents or an effective sui generis system or both.

Article 27.1 of TRIPs Agreement entail members to provide for patents "for all inventions, whether products or processes, in all fields of technology". Article 27.3(b) permits the exclusion of plant and animals from patentability but not microorganisms. Also, it entails member nations to allow for the protection of new plant varieties by means of patents, or an effective sui generis system, or a combination of both. The application of IPRs in plant breeding in developing nations have raised many important issues, including access to technology by small farmers, the role of public sector in the agricultural research, the expansion of the local private seed sector, the position of farmer-developed varieties, and the expanding North-South technology distribution that restricts access to plant germplasm and research.

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Received on 09.04.2019 Modified on 09.05.2019

Int. J. Rev. and Res. Social Sci. 2019; 7(2):329-336.

DOI: 10.5958/2454-2687.2019.00023.6