Plant Variety Protection in Sri Lanka and its Impact on Sri Lanka's Agricultural Economy: A Critical Analysis

Abstract

Plant variety protection legislation, commonly known as plant breeder's rights laws, is a concept novel to Sri Lanka and this paper discusses certain safeguards. The requirement to provide intellectual property rights for plant varieties arrived for the first time with the ratification of the Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS Agreement). Yet Sri Lanka still debates how to meet those requirements sixteen years later. As a member of the World Trade Organization (WTO) and as a signatory of the TRIPS Agreement, Sri Lanka is obliged to confer effective protection on plant varieties either by patents, by a system specifically for plant varieties (sui generis) or any combination thereof. A sui generis system with regard to plant varieties is provided in the International Convention for the Protection of New Plant Varieties (UPOV). The UPOV 1978 or 1991 model is another way in which Sri Lanka could provide a sui generis system. At present, there is still no intellectual property protection for plant varieties in Sri Lanka and hence Sri Lanka is non‐compliant with TRIPS. In order to fulfil its article 27.3 (b) TRIPS obligations, the National Intellectual Property Office (NIPO) in Sri Lanka introduced the Protection of Plant Varieties Bill 2001 (the Draft), based on the UPOV 1991 Convention, as its version of the new sui generis regime. This article discusses safeguards for traditional varieties and for small farmers. For the time being, my discussion will address the merits of protection. In the course of the discussion, I shall refer to the Indian legislation along with other national legislation and international agreements additional to TRIPS.