The Ethiopian Legal Regime on Plant Variety Protection: Assessments of Its Compatibility with TRIPS Agreement, Implications and the Way Forward.

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Addis Ababa University


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 tomention 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.



Historically the recognition, and enforcement of intellectual property, rights (IPRs) were solely a mattert