Is UPOV 1991 a Good Fit for Developing Countries?

Abstract

In a market of free knowledge, knowledge has all the characteristics of a public good. This may lead to a ‘free-rider’ problem, resulting in market-failure in the form of sub-optimal (incentives for) creation of knowledge in the form, for example, of artistic works and inventive activity. While exclusive rights regimes such as those incorporated in copyrights or patent laws seek to address these market failures, unbridled exclusivity can itself lead to other market failures, by defeating, for example the public interest in wide dissemination of works and inventions. Accordingly, intellectual property (IP) protection regimes are traditionally designed to avoid market failures associated with public goods on the one hand, and those associated with over protection/privatization on the other. This article revisits the market failure theory in the context of plant variety protection regimes in developing countries, with specific reference to the Indian regime in comparison with UPOV 1991. It finds that, unlike knowledge incorporated in other forms of intellectual creations (artistic works, inventions etc.), knowledge contained in formally bred/improved plant varieties are such that do not meet the criteria of non-excludability that characterizes public goods. Outside the scope of such formally bred varieties, farmer ‘copying’ of seeds can (and arguably, does) actually overcome the public goods problem associated with sub-optimal distribution and can even lead to further innovations. Furthermore, the article argues that the most popular IP protection regimes and associated governmental policies in relation to plant varieties fail to recognize the actual market failures that plague this field of innovations today, thereby introducing new forms of market failure rather than addressing any existing ones. The new market failures that can result from such regimes and policies are not limited to sub-optimal dissemination, but, most pertinently, include skewing of the balance of incentives away from informal (farmer level) innovations and in situ agrobiodiversity conservation. The plant breeders’ rights regime under UPOV 1991 and similar legislations, need, therefore, to be re-evaluated, especially in the context of agro-biodiversity rich developing countries. Legal analysis of a recent farmer-innovation related controversy in India, as well as the plant variety application trends under the Indian Protection of Plant Varieties and Farmers’ Rights Act, 2001 (‘PPV&FR Act’) support the findings of this paper.