Intellectual property rights and plant variety protection in South Africa : an international perspective.

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.