Muhammad Zaheer Abbas discusses recent legislative developments in the protection of plant varieties in Pakistan, which draws from his presentation at the on-going WIPO-WTO colloquium for intellectual property teachers.
Muhammad is a law lecturer at the International Islamic University, Islamabad – Pakistan. He is also a doctoral researcher at the Queensland University of Technology (QUT) as a recipient of the QUT Postgraduate Research Award. He received his LLB and LLM degrees with distinctions from the International Islamic University, Islamabad – Pakistan in 2010 and 2012 respectively. He serves as Associate Editor of the Islamabad Law Review and has published widely on the intersections between intellectual property rights and public interests.
Flora IP (FI): How did you get interested in research on plant variety protection?
Muhammad Zaheer Abbas (MZA): The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requirement for all World Trade Organisation (WTO) member states to provide intellectual property protection for plant varieties triggered considerable debates at the TRIPS Council and beyond.
As a developing country, Pakistan was granted the flexibility to delay its TRIPS implementation until 2000 (transitional arrangements- Article 65, TRIPS). Accordingly, the introduction of a plant variety protection legislation in Pakistan had long been overdue. Pakistan’s legislature took over 15 years to adopt a plant variety protection legislation because of the substantial resistance and opposition from stakeholders. After the long and complex law-making process, the Plant Breeders Rights Bill finally became an Act of the Parliament on the 5th December 2016.
I got interested in research on plant variety protection because of its interesting legislative history in Pakistan and the controversial nature of plant variety protection.
FI: As you mentioned, Pakistan’s Plant Breeders’ Rights Act (PBRA) entered into force in 2016, can you tell me more about this law?
MZA: Although Pakistan is not a member of the International Union for the Protection of New Plant Varieties (UPOV), the PBRA is grounded in the 1991 version of the UPOV Convention. Section 12 of the PBRA provides for the protection of new varieties that conform to the criteria of novelty, distinctness, uniformity, stability, and are designated by an acceptable denomination. Protection under the PBRA also applies to essentially derived varieties.
Section 22 of the PBRA grants the owner of protected varieties exclusive rights in respect of the varieties, including offering for sale or selling, marketing, importing or exporting, and conditioning or multiplying the reproductive or vegetative propagating material of the protected variety and stocking for any of these purposes. Subject to the payment of annual fees, Section 24 of the PBRA grants protection for 25 years in the case of trees and vines, and 20 years in the case of all other plants.
Differing from UPOV, the PBRA provides disclosure of origin as well as access-benefit sharing requirements. Section 15 of the PBRA requires applications for protection to contain ‘a complete identification data of the parental lines from which the variety has been derived along with the geographical location in or outside Pakistan from where the genetic material has been taken’. The application should also be accompanied by written consent of the authority representing the public sector, private sector or the local community in cases where the plant is developed from traditional varieties, alongside documents relating to the compliance of any law regulating access to genetic and biological resources.
Section 25 of the PBRA also grants certain rights to farmers in the form of exceptions. A farmer is entitled to save, use, sow, re-sow, exchange, share or sell his farm produce. However, the farmer is not entitled to sell seed of a protected variety on a commercial basis without complying with the requirements of Seed Act, 1976.
It is important here to touch upon Pakistan’s seed law and regulation because of its close relationship with the plant variety protection legislation. In July 2015, Pakistan enacted the Seed (Amendment) Act 2015 (Seed Act). The Seed Act prohibits sharing and selling of unbranded and unregistered seeds and prescribed fines (up to Rs.200,000) and imprisonment (up to three months) in case of non-compliance. The Seed Act obligates farmers to purchase registered varieties of seeds from licensed seed companies or their agents.
FI: Is the PBRA suited to the socio-economic realities in Pakistan, including its the seed and agriculture systems?
MZA: Agriculture is the backbone of Pakistan’s economy. The livelihood of almost half of Pakistan’s total work force is directly or indirectly linked with agriculture. Agriculture accounts for about 24 percent of the Gross Domestic Product (GDP). The PBRA 2016 may have some positive impact, like healthy competition for development of new plant varieties and access to protected foreign plant varieties.
It is, however, argued that the legislation, giving precedence to plant breeders’ rights over farmers’ rights, may have serious consequences for resource-poor local farmers because of the monopoly rights enjoyed by profit-driven seed companies.
FI: What changes to plant variety protection would you like to see in Pakistan?
MZA: Article 27.3(b) of TRIPS stipulates that “Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof”. Sui generis systems nature or regulations are, however, not specified under the Agreement. TRIPS, therefore, provides flexibility to member states to develop a sui generis system that best serves their public interest.
WTO members are increasingly modelling their plant varieties protection legislations on the UPOV Conventions. There are four versions of the UPOV Conventions (1961, 1972, 1978, and 1991), which provide different levels of protection. Some countries are party to the earlier, less strict, versions of the UPOV in order to protect farmers’ rights. For instance, China adopted the 1978 UPOV Convention to comply with the TRIPS Agreement. However, Pakistan’s PBRA is grounded in the stricter 1991 UPOV Convention.
By not protecting farmers’ rights and local varieties, Pakistan has failed to make proper use of flexibility granted under TRIPS to WTO member states to develop protection mechanisms in line with their national interests.
FI: What suggestions do you have for other Global South WTO members -like Nigeria- seeking to introduce new laws or reform their existing laws to fulfil plant variety protection obligations under Article 27.3 (b) of TRIPS?
MZA:
Global South WTO members need to adopt a balanced plan of action, which takes into account not only their obligations under TRIPS but also their national interests, especially interests of small farmers who are mostly resource-constrained to buy expensive protected varieties of seeds.
