Intellectual property in plant material and Free Trade Agreements in Asia

This chapter discusses the rise of intellectual property rights in plant material over the last few decades, the expansion of UPOV (UPOV being the French acronym for the International Convention for the Protection of New Varieties of Plants) since the WTO Agreement on Trade Related Intellectual Property Rights (TRIPS), and the considerable impact of current Free Trade Agreements (FTAs) and negotiations on these trends. The analysis will begin with an overview of the instruments of protection in this field and their historical developments. The expansion of UPOV since the World Trade Organization (WTO) TRIPS Agreement will be discussed, in particular the impact of Article 27.3.b. TRIPS and the limited options that it leaves to countries that want to avoid moving towards the use of patents for plant material. The chapter then shows the move to UPOV-style sui generis and further to patent protection, and asks the question why countries have been prepared to sign away even this limited freedom to design their own laws in recent FTAs. This section begins with an analysis of the two currently largest and most interesting multilateral agreements in the Asia-Pacific region, the Regional Comprehensive Economic Partnership (RCEP), which is still being negotiated, and the Comprehensive and Progressive Trans Pacific Partnership (CPTPP), in its amended form after the departure of the United States from the Trans Pacific Partnership (TPP). It then moves on to bilateral agreements, identifying those countries that have shown particular interest in upscaling the intellectual property protection of plant material. A further section focuses on agreements that emphasise cooperation and exceptions to intellectual property protection rather than a further strengthening of the system. The penultimate section presents policy options for developing countries. The conclusion reviews the trends and suggests that countries with significant smallholder agricultural sectors should resist current pressure in FTAs to increase intellectual property protection in this field by joining UPOV or, if already members, upgrading to UPOV 1991 standards.