The Genetic Use Restriction Technologies, Intellectual Property Rights and Sustainable Development in Eastern and Southern Africa

Abstract

Many eastern and southern African countrie s have had to revisit their intellectual property rights regimes in response to t he Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization (WTO). This has coincided with the development of new technologies that necessitate changes in the domestic laws on the protection of new in ventions. The dearth of human and resource capacity in both intelle ctual property and the emerging technologies has constrained the space that these countries have to think through and respond to the needs considering their national development agendas. The countri es have therefore engaged in legislative changes at the domestic level purely as a legal requirement without the benefit of analyses on the impacts of the changes on the countries and th e region as a whole. The protection of genetic use restriction technol ogies (GURTs) through intellectual property rights could, for instance, impact significantly on access to technology by farmers in the region. However, this has not been explicitly addressed in th e Intellectual Property (IP) legislation. The ambivalence of this legisl ation to GURTS can, in some instances, be interpreted as support for GURTS IPRs. It is in the light of this that the Trade Law Centre for Southern Af rica (tralac) and the International Centre for Trade and Sustai nable Development (ICTSD) commissioned this research on the interface between GURT s and intellectual property rights (IPRs) on sustainable use of agro-biodive rsity and food security. There is particular concern that IPRs would have a negative impact on agricul ture, which is the biggest employer and a great contributor to the economies of Ea stern and Southern Afri can (ESA) countries. This study examines the role of IPRs in the region and the place of GURTs in that schema. It looks particularly at the role of IPRs in development and the arguments for and against GURTs, proposing possible responses that ESA countries could consider to mitigate the potential adverse im pacts of IPRs for GURTs on agriculture in the region. This paper is divided into se ven parts. Part I comprises the executive summary. Part II (1) introduces both IPRs and GURTs from a gl obal perspective but contextualises them iii in the ESA region. 1 It also points out the demands put on nations in ESA by TRIPs. Part III (2) discusses trends in the Council for TRIP s of the WTO and the World Intellectual Property Organization (WIPO) and the implicat ions that these have for ESA countries. It focuses particularly on international rule making and standard setting on IP, forums at which such rules and standards are agreed on, and the costs of setting up IP systems. Part IV (3) looks at IPRs and GURTs as di fferent means of provid ing control over the use of genetic material, ar guing that GURTs are broader, mo re effective and less limited by time constraints than the protection conferred by IPRs. It also puts forward arguments that have been made for and agains t GURTs. This paves way for the discussion in Part V (4) which focuses on the positive and nega tive impacts of intellectual property protec tion (IPP) for GURTs in the ESA countries. Part VI (5) addresses ESA countries’ approach to IPP. It argues that since IPP laws in ESA countries can, at least in t heory, be used to protect GURTs, there is a need to prevent the potential negative impacts of such a trend. As pointed out above, current legislation is ambivalent on the issue of GURTs protection through IP Rs. This situation is not desirable. Countries need to decide on the approach to ta ke to GURTs and use IPR and other laws to give effect to that approach. In this regard, we propose the need to craft well-thought out sui generis regimes that ta ke the conditions in ESA countries into account as one way of addressing this issue. In a nutshell, both IPRs an d GURTs allow control over t he use of genetic materials, differing in the mode of c ontrol. The former provide legal control over the use of genetic material whereas the latter provide technological control . Countries have the option to use both legal and technological control to protect innovations. In the light of the lack of technological capacity in ESA countries, the best means of control remains the legal one. In this regard, the countries must categor ically provide for the subject matter of IPP to either include or exclude G URTs. Ambivalence of legislat ion on the matter leaves the issue open for interpretation; in many in stances, there is no reason to deny legal protection of GURTs if they satisfy IPP requirements. Part VII proposes strategic and policy responses to IPP for GURTs, such as assessment of benefit s, costs and risks of IPP for GURTs; alignment of IPP with national devel opment imperatives; use of 1 The paper uses South Africa and Kenya as t he reference points because these have the most developed IP regimes. iv flexibilities under TRIPs; regulation; engagement in ongoing debates on GURTs informed by research from the regi on; development of a well-thought out sui generis regime that takes into account the diversit y of actors; and putting in place effective institutional and adminis trative frameworks. Part VIII (7 ) concludes that IPP and GURTs serve distinct purposes from the perspecti ves of technology developers and users and that there is a convergence of interests for the technology developer in instances where GURTs are amenable to IPP. In the light of this, it proposes that ESA countries should make explicit legal provisions on GURTs by providing for IPP for all GURTs if they satisfy criteria set for IPP, provide for no IPP for GURTs even where they satisfy the criteria or limit IPP granted for GURTs