The Regulation of Farmer\u2019s Privilege Under Vietnamese IP Law and the Law of the European Union

Abstract

The International Union for the Protection of New Varieties of Plants Convention 1991 (UPOV Convention) recognizes the need to protect plant breeders’ legitimate interests. Without breeders’ innovations, new high-productivity plant varieties can neither be created nor contribute to society as a whole. Without these new varieties, it is impossible to create new high-yield generations of plants for the benefit of society. The absolute protection of breeders’ rights, however, would create many negative impacts for society. In particular, farmers would have to pay higher prices for seeds if breeders’ exclusive rights were to be overprotected, which would also mean consumers having to pay more for basic foodstuffs. This would lead to food insecurity nationally or even globally, in contravention of the right to food as recognized by Art. 25 of the United Nations Universal Declaration of Human Rights in 1948. These situations represent the dilemmas that governments have to cope with in developing national economies. The concept of farmer’s privilege is an exemption that the UPOV Convention recognizes in order to balance benefits between breeders and farmers. Under the optional exception set out in Art. 15(2) of the UPOV Convention, Contracting Parties may adopt the farmer’s privilege exemption in national law. Vietnam’s Law on Intellectual Property contains the farmer’s privilege exemption, yet there are many loopholes regarding this provision, and in reality, its application is limited. This article analyzes European Union regulation on farmer’s privilege and the way in which this exception has been interpreted, and compares and applies it to the Vietnamese law.