The Ethiopian Legal Regime on Plant Variety Protection: Assessments of Its Compatibility with TRIPS Agreement, Implications and the Way Forward
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Date
2010-01
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Addis Ababa University
Abstract
Historically the recognition and enforcement of intellectual property rights
(IPRs) were solely a matter of respective national governments. As such
they could have been manipulated so as to fit in a nation’s overall policy
objectives. International agreements have long began to restrain this
autonomy of national governments but the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS), which is one of the
agreements administered by WTO, has never been paralleled by any prior
IPR Agreement in its broader scope of applicability with wider sets of WTO
Members and in its comprehensiveness of various IPRs. TRIPS ventures
into a “one size fits all” approach by prescribing minimum level of IPR
protection and enforcement to be adhered by all of its Members in the
various fields of IP.
Nonetheless, in relation to plant variety protection, the TRIPS Agreement
purports to deviate from the one size fits all approach by permitting
Members either to use patent, or an effective sui generis system or a
combination thereof. In most cases the patent option is ruled out.
Particularly developing and least developed countries resort to the sui
generis option so as to derive some flexibility to accommodate local
contexts and to align plant variety protection into their socio-economic
policy objectives. However, the absence of clarity in the agreement as to
what it takes for a Member to comply with “effective” sui generis system
has rendered the depicted flexibility unreliable.
While there have been some efforts in designing plant variety protection
laws that suits particular context of a given country, restrictive
interpretations of the open ended clauses of the TRIPS Agreement have been
advanced to equate the effective sui generis option to some pre-existing
precedents developed in the context of developed countries such as the
UPOV system of plant variety protection. And as such there is a tendency to
neglect the context of less developed countries and to close the policy space
deliberately left in TRIPS in relation to protection of plant varieties. In
particular, this open ended nature of the clause have been utilized to give the
impression that countries acceding to the WTO need to join UPOV or align
their plant variety protection laws to that of UPOV, not to mention the
bilateral and multilateral trade and investment agreements used by
developed nations towards that end.
However, close investigation of the TRIPS Agreement shows that
considerable leeway is left to Members in designing plant variety protection
laws. TRIPS does not directly or implicitly require Members to align their
plant variety protection laws to that of UPOV system. In some respects
adopting the UPOV system particularly the latest revised one may not fit
well into the context of less developed countries. Other models of plant
variety protection laws can as well meet the effective sui generis
requirement of TRIPS.
Currently, Ethiopia is in the process of accession to WTO and as part of its
accession process its legal regime on plant variety protection shall be the
subject of scrutiny. The study examined whether the Ethiopian plant variety
protection law, which is not based on UPOV, coheres or not with the legal
requirements of TRIPS. It first examines the legal regime in TRIPS and the
Ethiopian law so as to explain where Ethiopian law lies for possible
demands from TRIPS. The study concluded that from legal point of view
Ethiopian law virtually coheres with TRIPS and warns the negotiators not to
yield to political pressures. And to that effect the research has attempted to
identify the potential areas of interest that negotiating parties might tend to
limit the nation’s policy space, by way of political pressure though these
obligations do not spring from law in strict sense.
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Keywords
Historically the recognition, and enforcement of intellectual property