Intellectual property rights and plant variety protection in South Africa : an international perspective.
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Date
2003
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Abstract
This work will investigate the implementation of plant variety protection obligations
that African states, and in particular South Africa, have to undertake under the various
relevant international agreements, especially the Agreement on Trade Related Aspects
of Intellectual Property Rights and the Convention on Biological Diversity. The
property rights regimes set up in the different international instruments do not
necessarily culminate in a coherent whole. While a trend towards the privatisation of
plant genetic resources is evident and notable, continuous upholding of the sovereign
rights of states over their natural resources is also present. In particular, this work will
investigate the question of whether intellectual property rights support or undermine
the objectives of the Convention on Biological Diversity. Article 27.3(b) of the
Agreement on Trade Related Aspects of Intellectual Property Rights provides for the
mandatory patenting of micro-organisms and microbiological processes. This
provision has, however, been the source of much controversy and was inserted under
the proviso that it be reviewed four years after the coming into force of the Agreement
(i.e. 1999). To date, such review has not occurred. Accordingly, it will be argued that
the obligation to implement the Agreement on Trade Related Aspects of Intellectual
Property Rights in African Member States should be suspended pending the outcome
of the review. This work will critically consider the effects that the introduction of
patents over plant varieties are likely to have in Africa, focusing on the fulfilment of
basic food needs for all individuals and the sustainable management of biological
resources in African countries. It will be argued that African states should take
advantage of the possibility of devising a property rights system adapted to their
needs and conditions and should avoid any system involving the introduction of
monopoly or exclusionary rights, such as patents or plant breeders' rights.
Description
Thesis (LL.M.)-University of Natal, Durban, 2003.
Keywords
Intellectual property--South Africa., Environmental law--South Africa., Theses--Law.