One of the biggest issues raised by current debates on intellectual property rights (IPRs) — particularly in the context of their impact on developing countries — are the consequences that legislation protecting such rights may have for food security. Food security applies to more than just ensuring that an adequate amount of food is cultivated or available through the market. It also embraces the question of whether people can afford to buy enough food to satisfy their basic nutritional requirements. If not — as is frequently the case throughout the developing world — one can argue that food security is inadequate, if not absent.
Influence of Plant Breeders' Rights
What is the connection between food security and IPRs? In the developed world, plant breeders have generally sought IPR protection for new plants — including new foodstuffs — through the system known as Plant Breeders' Rights (PBRs).
Such rights have existed in individual countries for several centuries; they originated in Holland to protect the breeders of new tulip varieties. However, their international usage stems from an agreement reached in 1961 and known as the UPOV Convention after the administrative organisation L'Union Internationale pour la Protection des Obtentions Végétales or, in English, the International Union for the Protection of New Varieties of Plants.
The point at issue is whether the international acceptance of common standards of PBRs — initially developed to meet the conditions in industrialised countries — may have the effect of undermining the food security of communities in developing countries.
Some non-governmental organisations (NGOs) argue that they may do this by:
- encouraging the cultivation of a narrow range of genetically-uniform crops including non-food cash crops, potentially worsening the nutritional value of people's diets, and making crops more vulnerable to outbreaks of devastating diseases;
- limiting the freedom of farmers to acquire seeds they wish to plant without payment to breeders, thereby impoverishing them further; and
- restricting the free circulation of plant genetic resources, which is generally considered essential for the development of new plant varieties.
Plant Breeders' Rights in practice
PBRs are justified on the basis that they encourage investment in plant breeding, the argument being that without legal protection there would be little incentive to develop new conventionally-bred varieties of plants, especially of crops such as wheat and rice that usually self-pollinate, and therefore retain the same genetic make-up through several generations. Without PBRs, breeders cannot legally prevent farmers and rival companies from selling second generation seed (except perhaps through contracts).
Evidence suggests that the introduction of PBRs in Europe and North America has led to increased private investment in plant breeding overall, but that this increase has been modest and targeted at a small number of crop species.  Also, much breeding effort continues to focus on crops like maize that are relatively easy to hybridise, rather than on self-pollinating crops bred through the more traditional crossing and selecting methods which result in varieties that can be protected by PBRs.
The attraction for farmers is that the first generation of hybrid seed is extremely productive. The drawbacks are that this 'hybrid vigour' does not extend to harvested seed, which does not even breed true to type (i.e. maintain its essential characteristics through the generations). Farmers must consequently buy fresh seed for each planting season. This is a major benefit for the seed companies, which is why they invest so much in hybrid breeding.
One consequence of the World Trade Organisation's (WTO) Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) is that WTO member countries — including developing countries — must provide IPR protection for plant varieties. This is either in the form of patents, or through a sui generis (i.e. one-of-a-kind) system. In principle, the sui generis provision allows countries to develop their own national system for protecting plants. In practice, however, the UPOV Convention is likely to be the most widely used model, as it is the only plant variety protection system that exists in international IPR law.
Concerns about UPOV
But concern has been raised — by NGOs such as Genetic Resources Action International (GRAIN), for example — that the UPOV system was drawn up mainly by European countries, and is designed to accommodate the specific characteristics of the capital-intensive large-scale commercial agricultural systems that generally prevail in the continent. As a result, it is often argued, the system is unsuitable for most developing countries. 
Critics of the current system of IPR protection for plants state several causes of concern over its impact on food security. One of these is that PBRs generally do not encourage breeders to investigate minor crops with small markets. This is because the returns on their research investment will be quite small. Rather, they encourage breeding targeted at major crops, such as wheat, rice and maize, with significant commercial potential.
In reality, many resource-poor farmers rely on minor food crops that enable them to meet the nutritional needs of rural communities much better than if major crops alone are cultivated. In the hills and valleys of Nepal, for example, villages may grow more than 150 crop species and plant varieties.  Moreover, protected varieties of plants may not even be food crops. In Kenya, for example, until very recently, about half the protected new varieties were foreign-bred roses cultivated for export.
It is possible, then, that PBRs may become responsible for a trend whereby traditionally diverse agro-ecosystems, containing a wide range of crop varieties, are replaced with monocultures of single agrochemical-dependent varieties, with the result that the range of nutritious foods available in local markets becomes narrower. Admittedly this trend is a global phenomenon whose beginning predates the introduction of PBRs. Nevertheless it is one that the existence and increasingly widespread use of PBRs may indirectly encourage.
Another issue concerning food security is that in most developing countries, a large proportion of the population depends on agriculture for employment and income. Many of these farmers are small-holders for whom seed saving, across-the-fence exchange and replanting are common practices. This is especially true in countries — many of which are in Africa — where neither the public nor private sectors play a significant role in producing or distributing seed. Although the UPOV system allows on-farm replanting, its rules restrict farmers' freedom to buy seed from sources other than the original breeders.
In response, seed companies argue that farmers do not have to purchase PBR-protected seed just because it is available. They point out that farmers are free to continue cultivating non PBR-protected seed — including traditional local varieties — if they so wish. Therefore their basic freedoms are unaffected by PBRs. While this is likely to be true, folk varieties are often disparaged and may be excluded from government-approved seed lists. 
A further cause for concern is based on the fact that UPOV rules require individual plant varieties to be genetically uniform. The problem is that the mass-cultivation of uniform varieties based on a narrow range of breeding material can result in outbreaks of devastating diseases. This happened with the potato crop in Ireland in the 1840s, and the United States in the 1960s and 1970s with wheat and maize respectively. 
It is often pointed out that many such disease outbreaks predate the introduction of PBRs to the affected countries. Despite this, critics argue that PBRs encourage the genetic uniformity that can potentially increase the dangers of such outbreaks occurring. Plant breeding companies, in response, argue that such concerns are exaggerated since outbreaks linked to widespread cultivation of PBR-protected varieties have not been common so far.
One final concern is about the effects of IPRs, especially patents, on the availability of genetic material for the breeding of new varieties. This is directed more at the patent system than UPOV. Indeed, plant breeders and other supporters of UPOV tend to stress the necessity of being able to freely access genetic material including that which is IPR protected.
This is why the UPOV Convention contains a broad breeders' exemption. Patent law tends to have a much narrower research exemption, which is often limited to non-commercial scientific or experimental use. Moreover, while a PBR-protected plant variety is covered by a single title, plant-related biotechnological inventions are likely to be protected by a patent and in some cases several patents. The patents may cover not just plants, but also genes and DNA sequences.
The effect of patents is to restrict access to the patented 'products'. It has been argued that 'locking up' genetic resources with patents is a bad thing because innovation in plant breeding is cumulative and depends on being able to use as wide a stock of material as possible. However, apart from patents, the restrictions on access to breeding material may have other causes than IPRs. For example, some countries rich in biodiversity are restricting access to their resources, an approach that will be detrimental to long-term food security.
Beyond issues about how specific IPRs restrict genetic material needed for breeding, is the association of IPRs with the privatisation of agricultural research, the shrinkage of non-proprietarian public sector research, and the increased concentration of ownership of breeding material, research tools and technologies in the hands of a small number of giant corporations. 
The sui generis clause in TRIPS does give governments a certain amount of freedom to tailor their PBR systems to address such concerns. As a result, while an increasing number of developing countries are joining UPOV, some countries are devising alternative PBR systems that aim in part to strengthen food security. They do this, for example, by allowing farmers to acquire PBR-protected seed from any source and requiring protected varieties to display qualities that are genuinely superior to existing ones.
For example, the Indian parliament recently passed legislation that would maintain the freedom to save, sell and exchange all produce of a protected variety. And the Organisation of African Unity has developed a model law for the consideration of member governments, known as the African Model Legislation on Rights for Communities, Farmers and Breeders and Access to Biological Resources. In both cases at least as much importance is attached to the interests of farmers as to those of breeders.
In drawing up their IPR rules for plant varieties, developing countries must strike a balance so that the livelihoods of impoverished farming communities are enhanced while maximising the availability of nutritious food for the general public. It remains to be seen whether existing IPR instruments can do the job.
The author is based at the Queen Mary Intellectual Property Research Institute, University of London.
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