Before the review of the World Trade Organizations (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1999, attention is increasingly drawn to the formulation of sui generis systems for the legal protection of plant varieties. The Latin term "sui generis", meaning "of its own kind of class", leaves broad space for interpretation. Therefore, sui generis systems are not only discussed in relation to the TRIPS Agreement, but also in relation to enforcing the rights of local communities and with regards to other international treaties such as the Convention on Biological Diversity (CBD). Biotechnology and Development Monitor No. 34 focused on the legal requirements of sui generis rights systems under TRIPS and the review of this provision in 1999. In this issue we present an overview of the different sui generis rights systems, and compare their underlying assumptions, their compatibility with TRIPS and the CBD, and their effects on local communities and plant breeding activities.
The suggested alternatives differ widely in the definition of innovation and in the mechanisms for protecting it. The contribution by Ghijsen concentrates on minimizing negative effects of Plant Breeders’ Rights (PBR) that are laid down in the Convention of the International Union for the Protection of New Varieties of Plants (UPOV) and is mainly intended to prevent an extension of intellectual property claim towards patents. On the other hand, the Community Intellectual Rights system as envisioned by Nijar, questions the notion of "innovation" as it is used in the context of the industrialized countries. This tends to bypass the inter-generational, communal innovations of indigenous peoples and local communities. Hence, Nijar finds it necessary to vest the rights in a community and not on a personal title. This approach is, however, not only in contrast to the standard IPR but also to the suggestion by Wood to vest Farmers’ Rights on a personal title, similar to PBR.
Obviously, there is a need to include other issues in these sui generis systems that go beyond the framework of the TRIPS Agreement. For instance, the concept of Farmers’ Rights by Swaminathan emphasizes the need to maintain genetic diversity in the farmers’ fields, whereas in Thailand biosafety requirements are part of the Plant Variety Protection Bill (see the article by Lianchamroon).
It might therefore be difficult to combine the various objectives of promoting commercial R&D, equity in natural resource distribution, and conservation of (agro-) biodiversity, in one national law. In his comparison of the different sui generis approaches Louwaars concludes that problems may arise when only a single framework has to regulate all the different issues. Such regulation might become too rigid and complicated, thereby favouring those actors who have the resources to handle such complications.
An alternative would be to develop a bundle of rights for the different fields of protection. One option is a rights system that is in compliance with the legal requirements of TRIPS. Additional legislation should then take into account the protection of Farmers’ Rights and the equitable sharing of benefits arising from the use of (agro-) biodiversity. This could, for instance, be a "TRIPS Plus" framework as suggested by Balakrishna. Such a complementary approach to the aims of the TRIPS Agreement and the CBD bears several implications. For instance, the time pressure for developing countries to comply with the TRIPS requirements is dominating over the implementation schedule of the CBD. On a national level, fast solutions could therefore have negative repercussions on the ongoing efforts to formulate alternative protection systems targeting the CBD.
The comparison of different sui generis rights also highlights the lack of experience in formulating such rights as alternatives to regular IPR systems. However, the creativity and effort that is spent on the drafting procedures of these systems will finally be judged by their performance in practice. Although it is desirable to create sui generis legislation which takes into account all the different needs and aims, its implementation will still depend on a number of factors, such as structural capacities, financial resources and expertise. In any case, their practical consequences on, for instance, plant breeding and biodiversity conservation will only become obvious in the long run. Therefore it seems likely that the review of the TRIPS provision on the legal protection for plant varieties in 1999 will be less based on experience but rather on general attitudes towards IPR and knowledge systems.