Despite fulfilling the criteria for graduation from the category of least developed countries (LDCs) for the second consecutive time, Nepal’s bid was rejected citing concerns about the sustainability of its development progress. The United Nations Committee for Development Policy postponed its recommendation for graduation till the 2021 meeting. Nepal has been enjoying the privileges of being an LDC, and graduation will result in loss of special treatment under World Trade Organisation (WTO) agreements.

Among other things, Nepal will be required to implement the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and provide respective intellectual property protection. The country is about to begin an adventurous journey. Citing WTO commitments as one of the primary reasons, Nepal adopted its first ever National Intellectual Property Policy in March last year. The policy acknowledges the need for a legal framework for plant variety protection. With a large number of Nepalis engaged in agriculture, plant variety protection (PVP) laws are one of the important concerns for Nepal. The TRIPS asks countries to protect intellectual property rights over newly developed/improved seeds or propagating materials.

Protection to breeders

The developing countries usually attempt to adopt sui generis (unique) laws as they allow them to design their own plant variety protection laws suitable to their local realities. However, the developed countries often force the International Union for the Protection of New Varieties of Plants (UPOV) Convention as the only effective sui generis model of PVP. The UPOV convention was signed in 1961. It has been revised three times, most recently in 1991 providing the highest possible level of protection to breeders and severely restricting farmers’ rights to save, reuse, exchange and sell seeds.

The issue of criminalisation of farmers in the name of intellectual property rights has been quite serious in some developing countries, Indonesia for instance. Indonesia, which is said to be in consultation to join the UPOV, has adopted a PVP Act which is guided by UPOV standards. As per this law, seeds which are protected by the PVP Act cannot be exchanged except with the permission of the holders of the PVP rights, which are dominated by large companies. Based on such laws, many farmers have been dragged to court and imprisoned for violation of intellectual property rights. Farmers in Indonesia are in constant fear of exercising their freedom of storing and exchanging seeds which they have been doing since time immemorial.

While sui generis means unique, how reasonable is it to apply the same UPOV standard on all countries? The UPOV Convention, which has European roots, is designed to protect plant breeders who are often seed companies seeking returns on their high investment through the effective use of intellectual property rights legislations. Hoverer, for farmers in the developing countries, the practice of saving, exchanging, reusing and selling seeds is their livelihood. The UPOV Convention restricts the ability of farmers to exercise these livelihood options.

The UPOV model has been questioned at several forums for its negative impact on small scale farmers. Olivier De Schutter, former special rapporteur on the right to food, says, “In the process of granting temporary monopoly privileges to plant breeders and patent-holders, the poorest farmers may become increasingly dependent on expensive inputs, creating the risk of indebtedness in the face of unstable incomes.” Several studies have found UPOV provisions to be incompatible with strategies for achieving food security and maintaining agrobiodiversity.

Nepal had successfully resisted pressure to join the UPOV in 2003 during the process of its accession to the WTO. At the very last minute, its membership to the WTO was conditioned upon its admission to the UPOV. However, Nepal managed to gain accession by agreeing to explore the possibility of joining the UPOV at a future date. It has acknowledged the need of PVP laws to fulfil the TRIPS commitment. Nepal’s new constitution has included intellectual property rights under the fundamental right to property, but it should be extremely cautious in recognising intellectual property rights as the concept is expanding, and the developed countries are adopting all possible means to ensure higher standards of protection.

Rights of farmers

Nepal should also take into account obligations arising from the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the Convention on Biological Diversity (CBD) which stipulate provisions for sustainable use of plant and genetic resources. Further, recent news reports of the UN Human Rights Council voting to adopt a declaration on the rights of peasants and other people working in rural areas can be seen as a significant step in recognising the rights of farmers. The text adopted by the council is under discussion by UN member states and is awaiting a final vote in December.

The declaration includes the right of small rural producers to preserve control of their land, their seeds and other genetic resources, and the right to full participation in government policies affecting food production and distribution which impact their communities. Taking advantage of recent legal developments and learning from the experiences of other developing countries, Nepal should adopt a sui generis model favourable to its national interest.

Ghimire is a doctoral researcher at Vrije Universiteit Brussel, Belgium.