Abstract
This chapter analyzes the relationships between three fields of law: intellectual property rights, the right to food and farmers’ rights. It reviews the development of the right to food under international law, from its recognition in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), to the more recent development of tools to advise states on how to best promote the realization of the right to food, including when states are negotiating trade and investment agreements with chapters on intellectual property protection. It then explores the emerging issue of farmers’ rights, with particular reference to the detailed requirements to realize farmers’ rights in the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). While acknowledging that the World Trade Organization’s 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets high standards of intellectual property protection, which can sometimes be in conflict with rights held under the ICESCR and ITPGRFA, the chapter nevertheless argues that there are several provisions of the TRIPS Agreement that states could make use of in order to expand their policy space, and thereby better ensure the rights of food producers. It illustrates examples of states using this policy space, such as the Indian Protection of Plant Varieties and Farmers’ Rights Act of 2001. Ultimately, this chapter argues that tensions between TRIPS, on the one hand, and the ICESCR and the ITPGRFA, on the other, can only be reduced by a more coherent implementation of the relevant treaties.
Hans Morten Haugen is an Associate Professor at Diakonhjemmet University College, Oslo, Norway. The author wishes to thank Regine Andersen and the editors of the book, who have provided most constructive assistance.
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Notes
- 1.
For more information, see the submission from the government of Germany in International Treaty on Plant Genetic Resources for Food and Agriculture Governing Body, Compilation of Views and Experiences on the Implementation of Farmers’ Rights Submitted by Contracting Parties and Relevant Organizations IT/GB-4/11/Inf. 6, at 7 (Dec. 2010). See also European Group on Ethics in Science and New Technologies to the European Commission, Ethics of Modern Developments in Agricultural Technologies59 (Opinion No. 24, 2008.
- 2.
SeeCharles R. McManis, Fitting Traditional Knowledge Protection and Biopiracy Claims into the Existing Intellectual Property and Unfair Competition Framework, in Intellectual Property and Biological Resources(Burton Ong ed., 2004) (reviewing some of these patents); see also Charles R. McManis, Biodiversity and the Law: Intellectual Property, Biotechnology and Traditional Knowledge (2007).
- 3.
Studies identified by Haugen highlight how both plants, weeds and insects develop resistance to pesticides, such as herbicides and insecticides. See Hans Morten Haugen, Technology and Human Rights: Friends or Foes? Highlighting Innovations Applying to Natural Resources and Medicine125 (2012).
- 4.
For more information, see chapter five in particular of Regine Andersen & Tone Winge, Fridtjof Nansen Inst., Success Stories from the Realization of Farmers’ Rights Related to Plant Genetic Resources for Food and Agriculture (2008).
- 5.
See Agreement on Trade-Related Aspects of Intellectual Property Rights art. 27.3(b), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS].
- 6.
Note, however, that the 33 member states that belong to the category of least-developed countries are currently not required to comply with TRIPS, see World Trade Organization [WTO], IP/C/40, Extension of the Transition Period Under Article 66.1 for Least-Developed Country Members, Decision of the Council for TRIPS of 29 November 2005, para. 1 (Nov. 29, 2005). The extension period is 1 July 2013. There has to be an additional extension while awaiting the decision of the Ninth Ministerial Conference, to be held later in 2013.
- 7.
International Treaty on Plant Genetic Resources for Food and Agriculture art. 13.2(b)(iii), Nov. 3, 2001, S. Treaty Doc. No. 110.19 [hereinafter ITPGRFA]. Similar wording is found in the Convention on Biological Diversity arts. 16(3) & 16(5), June 5, 1992, 1760 U.N.T.S. 79, 31 I.L.M. 818.
- 8.
TRIPS, supra note 5, at art. 8(1).
- 9.
This should not exclude the possibility of amending the TRIPS Agreement (proposals by states point to Article 29 on Conditions on Patent Applicants) to ensure that obligations of other treaties are better reflected in TRIPS. An amendment has already been agreed for Article 31 of TRIPS, on compulsory license for the purposes of producing and exporting pharmaceutical products to states with insufficient or no manufacturing capacities in the pharmaceutical sector. Still, it has not been approved by the required 2/3 of WTO member states. Therefore, it has the status of a waiver.
- 10.
As an example, the right to benefit from scientific progress and its applications was negotiated with the UNESCO saying that it “would amplify the meaning of the provision”. U.N. Commission on Hum. Rts. para. 19, ECOSOC Records, 14th Session, Supplement No. 4., E/CN.4/669 (1952). However, this only happened in 2009 when the Venice Statement was adopted. See Haugen, supra note 3, at 30–34. For the codification of the right to benefit from scientific progress and its applications, see International Covenant on Economic, Social and Cultural Rights art. 15.1(b), G.A. Res. 2200A, U.N. Doc. A/RES/21/2200A (Dec. 16, 1966) [hereinafter ICESCR].
- 11.
See U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural Rts. [CESCR], General Comment No. 12: The Right to Adequate Food, U.N. Doc. E/C.12/1999/5 (May 12, 1999).
- 12.
Space does not allow for an in-depth analysis of this provision. But see Hans Morten Haugen, The Right to Food and the TRIPS Agreement – With a Particular Emphasis on Developing Countries’ Measures for Food Production and Distribution 130–50 (2007).
- 13.
U.N. Food & Agric. Org. [FAO], Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security para. 8.4 (2004). See also id. at para. 8.5 (discussing access to research results enhancing food security); id. at para. 8.12 (mirroring ITPGFRA Article 9.2).
- 14.
See U.N. Special Rapporteur on the Right to Food, Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, Seed policies and the Right to Food: Enhancing Agrobiodiversity and Encouraging Innovation, delivered at the 64th Session of the General Assembly, U.N. Doc. A/64/170 (July 23, 2009); Olivier De Schutter, The Right of Everyone to Enjoy the Benefits of Scientific Progress and the Right to Food: From Conflict to Complementarity, 33 Hum. Rts. Q. 304 (2011).
- 15.
Art. 1(2) cannot, however, be read so as to give a right for indigenous peoples to reject the inclusion of plant genetic resources in the Multilateral System of the ITPGRFA. The obligations of the ITPGRFA concerning free exchange of the resources included in the Multilateral System must be understood to be lex specialis.
- 16.
U.N. Food & Agric. Org. [FAO], Report of the Conference of FAO, Twenty-Seventh Session, Appendix E, at art. 2.4 (1993).
- 17.
Anke Van Den Hurk, The Seed Industry, Plant Breeding and the International Treaty on Plant Genetic Resources for Food and Agriculture, in Plant Genetic Resources and Food Security: Stakeholder Perspectives on the International Treaty on Plant Genetic Resources for Food and Agriculture 171 (Christine Frison, Francisco López & Jose Esquinas-Alcázar eds., 2011) (arguing that this qualification is a reason why the breeding sector “could support the text of Article 9”).
- 18.
The last part of UPOV 1991 Article 15.2 reads: “permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii) [on essentially derived varieties].” International Convention for the Protection of New Varieties of the Plants March 19, 1991, S. Treaty Doc. No. 104–17 (1995). This provision is most frequently referred to as “farmers’ privilege.” The strength of this UPOV provision is restricted by being introduced by the term “optional exception.”
- 19.
ITPGRFA Governing Body, Resolution 2/2011– Procedures and Operational Mechanisms to Promote Compliance and Address Issues of Non-compliance, Annex, sec. v (2011).
- 20.
Id., at para. 3 (which only requires the Compliance Committee to present to the Governing Body a “synthesis on the basis of the reports that it has considered … and may submit recommendations”).
- 21.
TRIPS, supra note 5, at art. 27.1.
- 22.
See World Trade Organization, Ministerial Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, at paras. 4–5 (2001) (identifying TRIPS provisions that provide for flexible implementation, including Article 6 (exhaustion), Article 7 (objectives), Article 8 (principles), Article 31 (basis for granting compulsory licenses), and Article 31(b) (defining national emergency or other circumstances of extreme urgency)).
- 23.
Id. at para. 5(a).
- 24.
Anti-Counterfeiting Trade Agreement, at art. 2.3. See also Alison Slade, Articles 7 and 8 of the TRIPS Agreement: A Force for Convergence within the International IP System, 14 J. of World Intell. Prop. 413 (2011) (noting that this provision confirms the relevance of TRIPS Article 7 and 8). For more clarification on TRIPS Article 7 and 8, see Peter K. Yu, The Objectives and Principles of the TRIPS Agreement, 46 Hous. L. Rev. 979 (2009).
- 25.
Dan Leskien & Michael Flitner, Int’l Plant Genetic Resources Inst. (IPGRI), Intellectual Property Rights and Genetic Resources: Options for a Sui Generis System (1997).
- 26.
An example of a national legislation prohibiting such technology is the India Protection of Plant Varieties and Farmer’s Rights Act, No. 53 of 2001, which was revised in 2005 to read in Art. 18. (1)(c): “Every application for registration under section 14 shall be accompanied by an-affidavit sworn by the applicant that such variety does not contain any gene or gene sequence involving terminator technology”.
- 27.
Peter Sutherland, Seeds of Doubt: Assurance on “Farmers’ Privilege”, Times of India, Mar. 15, 1994, at 16. For a more comprehensive overview, see Regine Andersen, Governing Agrobiodiversity. Plant Genetics and Developing Countries 197–208 (2008), analyzing the relationship between TRIPS/UPOV and ITPGRFA.
- 28.
Rob Howse & Ruti G. Teitel, Global Justice, Poverty and the International Economic Order, in The Philosophy of International Law 447 (Samantha Besson & John Tasioulas eds., 2010) (arguing that “certain narrow developed country interests managed to largely capture the interpretative space with respect to TRIPs.”).
- 29.
See TRIPS, supra note 5, at art. 30.
- 30.
For a proposal of having a similar provision in the patent law of a developed country, see Canadian Biotechnology Advisory Committee, Patenting of Higher Life Forms and Related Issues: Report to the Government of Canada Biotechnology Ministerial Coordinating Committee 14 (2002).
- 31.
Herbicide-resistant volunteer canola plants escaping from the fields where they were grown has been identified as constituting a potential weed problem for farmers in Canada. See Royal Society of Canada, Elements of Precaution: Recommendations for the Regulation of Food Biotechnology in Canada; An Expert Panel Report on the Future of Food Biotechnology 129 (2001).
- 32.
The Canadian Patent Act reads: “Where any person has reasonable cause to believe that any process used or proposed to be used or any article made, used or sold or proposed to be made, used or sold by him might be alleged by any patentee to constitute an infringement of an exclusive property or privilege granted thereby, he may bring an action in the Federal Court against the patentee for a declaration that the process or article does not or would not constitute an infringement of the exclusive property or privilege.” Patent Act, R.S.C., ch. P-4, art. 60(2) (1985) (Can.).
- 33.
See TRIPS, supra note 5, at art. 31(b).
- 34.
Legislation in the United States allows for the issuing of compulsory licenses concerning uses of patents, copyrights or plant variety certificates, when the use is by or for the government of the United States of America. See 28 U.S.C. § 1498(a), (b) & (d) (U.S.).
- 35.
Presidential Decree on Compulsory Licensing, Decree No. 3.201 of Oct. 6, 1999 (Brazil). Article 2.2 defines as falling within the public interest: “public health, nutrition, protection of the environment, as well as those of primordial importance to the technological or social and economic development of this country.”
- 36.
Revocation can take place if it is found that the patentability requirements were not met, in other words actions taking place before the grant of the patent, while forfeiture relates to actions after the patent was granted, such as non-payment of fees or abuses.
- 37.
See TRIPS, supra note 5, at art. 32.
- 38.
Id.
- 39.
Paris Convention for the Protection of Industrial Property, March 20, 1883, 21 U.S.T. 1583, 828 U.N.T.S. 305, in Article 5A(3)-(4) specifies the proceedings for the forfeiture or revocation of a patent. Revocation is also regulated by TRIPS Article 62.4 and 62.5. See TRIPS, supra note 5.
- 40.
George H. C. Bodenhausen, Guide to the Application of the Paris Convention for the Protection of Industrial Property as Revised at Stockholm in 1967, at 70 (1968); see also Jayashree Watal, Implementing the TRIPS Agreement on Patents: Optimal Legislative Strategies for Developing Countries, in Competitive Strategies for the Protection of Intellectual Property 111 (O. Lippert ed., 1999).
- 41.
Compare Wanda Werner, Article 32, in WTO – Trade-Related Aspects of Intellectual Property Rights, Max Planck Commentaries on World Trade Law, Vol 7 (Peter T. Stoll, Jan Busche & Karen Arend eds., 2009) (arguing that this measure is “permissible only as a last resort after the grant of the compulsory license” and that “[m]embers must follow the procedure laid down in … Paris Convention [Article 5A(4)] when revoking a patent in the public interest”),with Watal, supra note 40, at 111 (arguing that “the conditions and time limits of Article 5A do not apply if the public interest, rather than abuse of patent, is the basis of revocation”).
- 42.
The Patents Act in India also provides for revocation in a number of circumstances: Article 66 is the general revocation provision, Article 65 is a revocation provision applying to atomic energy, and Article 89 allows for revocation in cases of non-working of patents. See The Patents Act, No. 39, Acts of Parliament 1970 (Ind.).
- 43.
Annette Kur, Limitations and Exceptions Under the Three-steps Test – How Much Room to Walk the Middle Ground?, in Intellectual Property in a Fair Trade System: Proposals for Reform of TRIPS 246, 249 (Annette Kur & Marianne Levin eds., 2011) (finding that “the panels’ restrictive approach towards limitations and exceptions has no justification in TRIPS.”). But see Henning Grosse Ruse-Khan, Assessing the Need for a General Public Interest Exception in the TRIPS Agreement, in Intellectual Property in a Fair Trade System: Proposals for Reform of TRIPS 183 (Annette Kur & Marianne Levin eds., 2011) (finding that the TRIPS exceptions provisions “does not allow anything close to the policy space available in Art. XX GATT and Art. XIV GATS”).
- 44.
Joan G. Robinson, The Accumulation of Capital 87 (3rd ed., 1971).
- 45.
U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural Rts. [CESCR], General Comment No. 3: Nature of States Parties Obligations (Art. 2, para. 1 of the Covenant), para. 9, U.N. Doc. E/C.12/1999/5 (Dec. 14, 1990).
- 46.
Both the ICESCR Article 11 and the ITPGRFA Articles 10 through 13 specify in great detail what measures the states are to take by applying the verb “shall”, while ITPGRFA Article 9 is somewhat weaker by applying the verb “should”.
- 47.
For a criticism of the narrow definition of conflict, see Erich Vranes, The Definition of "Norm Conflict" in International Law and Legal Theory, 17 Eur. J. Int’l L. 395 (2006). For a clarification of the difference between the incompatible and inconsistent concepts and conflicting norms, see Haugen,supra note 12, at 336–43 (reviewing the principles for determining treaty conflict).
- 48.
Vranes makes no distinctions between prescriptive and prohibitive norms. Vranes, supra note 48. The present author rather concurs with the definitions provided by Piyabutr Bunaramrueang, Normative Dynamics of Competition Laws, U. Thai Chamber Com. L. R. 1 (2010) (“Prescriptive norms attempt to achieve a certain behavior; prohibitive norms seek to prevent one from doing something; and permissive norms endow one with the legal right to do certain things.”).
- 49.
The term regulatory chill appeared first in the context of environmental regulation; see Hakan Nordstrom & Scott Vaughan, Trade and Environment, WTO Special Studies 4 (1999).
- 50.
See Keith E. Maskus, Inst. for Int’l Econ., Intellectual Property Rights in the Global Economy (2000) (calculating that a GDP per capita level of 7750 US dollars is generally required if the country in question can be expected to benefit from a stronger patent system); Keith E. Maskus, Int’l Ctr. on Trade and Sustainable Dev., Encouraging International Technology Transfer, Issue Paper No. 7, 26 (2004) (confirming prior calculation, by showing that strengthened patent protection enhances investments and licensing, but only for middle-income and large developing countries).
- 51.
Vienna Convention on the Law of Treaties art. 60.5, May 23, 1969, 1155 U.N.T.S. 331 (“Paragraphs 1 to 3 [regarding termination or suspension of the operation of a treaty as a consequence of its breach] do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character”).
- 52.
United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc.A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007). Article 31.1 of the Declaration states: “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora”. Id. at art. 31.1.
- 53.
Peter K. Yu, Intellectual Property and Human Rights in the Non Multilateral Era, 64 Fla. L. Rev.1043 (2012) (linking benefit-sharing to self-determination, the right to development, the right to cultural participation, and the right to benefit from scientific advancements); see also Kal Raustiala, K. & David G. Victor, The Regime Complex for Plant Genetic Resources, 58 Int’l Org. 277, 292 (2004) (emphasizing the centrality of benefit-sharing, noting that the CBD introduces benefit-sharing “through several controversial provisions”).
- 54.
ITPGRFA, supra note 7, at arts. 13.2(a)-(d). The Multilateral System is established by Articles 10 through 13 in the ITPGRFA and is encompassed by the crops listed in Annex 1 of the ITPGRFA.
- 55.
Id. at art. 13.2(d) (“commercial benefit-sharing, through the involvement of the private and public sectors…”); id. at art. 18.4(f) (“Voluntary contributions … by … the private sector”); see also id. at art. 19.3(j).
- 56.
David Vivas-Eugui, Bridging the Gap on Intellectual Property and Genetic Resources in WIPO’s Intergovernmental Committee (IGC) 11 (2012).
- 57.
Andersen & Winge, supra note 4, at 31.
- 58.
ITPGRFA, supra note 7, at art. 12.3(d) (“not claim any … rights that limit the facilitated access to the plant genetic resources … in the form received”); id. at 12.3(f) (”Access to plant genetic resources for food and agriculture protected by intellectual and other property rights shall be consistent with relevant international agreements, and with relevant national laws”).
- 59.
Note that the term applied in the ITPGRFA is “Trust Account”, and that the Fund is also referred to as “the mechanism”. Id. at art. 19.3(f). Article 6.7 of the Standard Material Transfer Agreement (SMTA), contained in International Treaty on Plant Genetic Resources for Food and Agriculture Governing Body, Report Of The Governing Body Of The International Treaty On Plant Genetic Resources For Food And Agriculture IT/GB-1/06/Report, Appendix G (2006), refers to this mechanism, but Article 6.11 and Annex 4 to the SMTA provide for a “crop-based payments under the alternative payments scheme.” According to Esquinas-Alcázar et al., this crop-based payment is more attractive for the industry than the standard payment. See Christine Frison, Francisco López & Jose Esquinas-Alcázar, Introduction, in Plant Genetic Resources and Food Security, supra note 17, at 16. See also Carlos M. Correa, An Innovative Option for Benefit-sharing Payment Under the International Treaty on Plant Genetic Resources for Food and Agriculture: Implementing Article 6.11 Crop-Related Modality of the Standard Material Transfer Agreement, in Plant Genetic Resources and Food Security, supra note 17 (arguing that SMTA Article 6.11 is better than SMTA Article 6.7, as the former is easier to comply with for recipients, and as the latter will not result in immediate and substantial payments to the mechanism).
- 60.
Article 12.4 of the ITPGRFA provides the mandate for the subsequent negotiations in the Governing Body on the content of SMTA.
- 61.
ITPGRFA Governing Body, supra note 59, at 74 (Appendix G, Annex 2) & 69 (Appendix G, Article 6.7). For an assessment of the various income losses for the breeding sector, estimated to be approximately 30 per cent, see Anke van den Hurk, The Seed Industry: Plant Breeding and the International Treaty on Plant Genetic Resources for Food and Agriculture, in Plant Genetic Resources and Food Security, supra note 17, at 169.
- 62.
Thailand Plant Varieties Protection Act, B.E. 2542 (1999), sec. 49.
- 63.
The 19 Projects can be found at http://www.planttreaty.org/content/Call-Proposals-2010-2011 (Oct. 7, 2013).
- 64.
ITPGRFA Governing Body, Approval of the First Projects Under the Benefit-sharing Fund, IT/GB-3/09/Inf. 11, at 5–6 (2009).
- 65.
Id. at 5.
- 66.
ITPGRFA Governing Body, Report of the Governing body of the International Treaty on Plant Genetic Resources for Food and Agriculture, IT/GB-3/09/Report, at 32 (2009) [containing Res 3/2009, Implementation of the funding strategy of the treaty].
- 67.
ITPGRFA Governing Body, Report of the Governing body of the International Treaty on Plant Genetic Resources for Food and Agriculture, IT/GB-4/11/Report, at 31 (2011) [containing Res 3/2011, Implementation of the funding strategy of the treaty]. All resolutions on the funding strategy can be found in ITPGRFA Governing Body, Funding Strategy for the Implementation of the International Treaty on Plant Genetic Resources for Food and Agriculture (2011).
- 68.
U.N. Food & Agric. Org. [FAO], Focus On: Right to Food and Indigenous Peoples (2007).
- 69.
Vivas-Eugui, supra note 56, at 25.
- 70.
Oliver De Schutter, U.N. Special Rapporteur on the Right to Food, Guiding Principles on Human Rights Impact Assessments of Trade and Investment Agreements, U.N. Doc. A/HRC/19/59/Add.5, at principle 2 (Dec. 19, 2011).
- 71.
U.N. Development Programme [UNDP], Towards a Balanced ‘Sui Generis’ Plant Variety Regime: Guidelines to Establish a National PVP Law and an Understanding of TRIPS-Plus Aspects of Plant Rights (2008); The World Bank, Intellectual Property Rights: Designing Regimes to Support Plant Breeding in Developing Countries (2006); Laurence R. Helfer, FAO, Intellectual property rights in plant varieties (2004).
- 72.
UNDP,supra note 71, at 6.
- 73.
Vivas-Eugui, supra note 56, at 20–21 (noting that European Free Trade Agreement (EFTA) agreements, in particular, establish strong obligations).
- 74.
For a list of examples, see McManis, supra note 2.
- 75.
For a review of patents that were later revoked, see id.. For more recent revocation decisions in the European Patent Office, on broccoli and tomatoes, respectively, see Decision by the Enlarged Board of Appeal of Dec. 9, 2010, G 0002/07 (OJ EPO 2012, 130) and G 0001/08 (OJ EPO 2012, 206).
- 76.
See UNDP supra note 71, at 13–14 (listing grounds for excluding plant varieties from protection).
- 77.
I d.
- 78.
Andersen & Winge, supra note 4 (presenting success stories of the realization of farmers’ rights).
- 79.
It should additionally be noted that there are also African states (Namibia, Uganda, and Ethiopia) which have adopted legislation recognizing the rights of farming communities, based on the African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, adopted by the Organization of African Unity (OAU) in 2000. Juliana Santilli, Agrobiodiversity and the Law: Regulating Genetic Resources, Food Security and Cultural Diversity 232 (2012).
- 80.
Tonge Winge, Regine Andersen and Anitha Ramanna-Pathak Combining Farmers’ Rights and Plant Variety Protection in Indian Law, in Realising Farmers’ Rights TO Crop Genetic Resources (Regine Andersen and Tonge Winge, Eds., 2013).
- 81.
See supra note 30 and accompanying text.
- 82.
Malaysian New Plant Varieties Act of 2004 (Act 634), sec. 13.1(d) (Malay.).
- 83.
Id. at sec. 14(2) & 14(1).
- 84.
Thailand Plant Varieties Protection Act of 1999 (Act 2542), sec. 43 (Thail.).
- 85.
Id. at sec. 49.The author is not aware of extraordinarily high incomes resulting from the commercialization of any variety developed by farmers, but high incomes are reported from many wild species that have been used for developing new medicines. See, e.g., Peter Jaszi & Martha Woodmannsee, Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge, in Scientific Authorship: Credit and Intellectual Property in Science 200–201 (Mario Biagioli & Peter Galison eds., 2003).
- 86.
There has still not been any Ministerial Regulation on the profit-sharing agreement, implying that no farmers have been able to claim benefits under the benefit-sharing agreement. Pawarit Lertdhamtewe, Thailand’s Plant Protection Regime: A Case Study in Implementing TRIPS, 7 J. Intell. Prop. L. & Practice 186, 192 (2012).
- 87.
Decree-Law No. 118/2002 of 20 April (Autochthonous plant material), arts. 9.2 & 9.1(a) (Port.).
- 88.
Andersen & Winge, supra note 4, at 14.
- 89.
Shashank Mauria, Access to Genetic Resources and Benefit Sharing in India 7 (Apr. 21, 2010) (listing those agricultural goods that are registered as geographical indications in India, with a requirement to share benefits with farmers); see also Ritika Banerjee & Mohar Majudmdar, In the Mood to Compromise? Extended Protection of Geographical Indications Under TRIPS Article 23, 6 J. Intell. Prop. L. & Prac. 657 (2011) (discussing the extension of the scope of TRIPS Article 23 beyond wines and spirits).
- 90.
Peter K. Yu, Intellectual Property and the Information Ecosystem, 1 Mich. St. L. Rev. 1 (2005) (identifying the mutual recognition of the right to benefit from scientific advancements and the rights of the authors relating to their intellectual works, as outlined in the Universal Declaration of Human Rights Article 27– see also ICESCR Article 15.1– as a basis for identifying reconciliation or reduced tensions). The ITPGRFA does not reject intellectual property in general, but says in Article 12.3(d) that intellectual property rights shall not be claimed over any genetic resources in the form received from the MLS.
- 91.
Daniel J. Gervais, Intellectual Property and Human Rights: Learning to Live Together, in Intellectual Property and Human Rights 17 (Paul L. C. Torremans ed., 2008); Christophe Geiger, The Constitutional Dimension of Intellectual Property, in Intellectual Property and Human Rights 131 (Paul L. C. Torremans ed., 2008).
- 92.
Ruth L. Okediji, The Limits of Development Strategies at the Intersection of Intellectual Property and Human Rights, in Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS-Plus Era (Daniel J. Gervais ed., 2007); Geertrui Van Overwalle, Human Rights’ Limitations in Patent Law, in Intellectual Property and Human Rights: A Paradox (Willem Grosheide ed., 2010); Charles R. McManis, Human Rights as a Constraint on Intellectual Property Rights: the Case of Patent and Plant Variety Protection Rights, Genetic Resources and Traditional Knowledge, in Intellectual Property and Human Rights: A Paradox (Willem Grosheide ed., 2010); Gervais, supra note 91, at 131.
- 93.
J. Koopman, Human Rights Implications of Patenting Biotechnological Knowledge, in Intellectual Property and Human Rights 575 (Paul L. C. Torremans ed., 2008); R. C. Dreyfuss, Patents and Human Rights: Where is the Paradox?, in Intellectual Property and Human Rights: A Paradox 90 (Willem Grosheide ed., 2010) (calling for a “shift in focus from rights to pragmatics”).
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Haugen, H. (2014). The Right to Food, Farmers’ Rights and Intellectual Property Rights: Can Competing Law Be Reconciled?. In: Lambek, N., Claeys, P., Wong, A., Brilmayer, L. (eds) Rethinking Food Systems. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7778-1_9
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