The Genetic Use Restriction Technologies, Intellectual Property Rights and Sustainable Development in Eastern and Southern Africa

Abstract

Many eastern and southern African countries have had to revisit their intellectual property rights regimes in response to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization (WTO). This has coincided with the development of new technologies that necessitate changes in the domestic laws on the protection of new inventions. The dearth of human and resource capacity in both intellectual property and the emerging technologies has constrained the space that these countries have to think through and respond to the needs considering their national development agendas. The countries have therefore engaged in legislative changes at the domestic level purely as a legal requirement without the benefit of analyses on the impacts of the changes on the countries and the region as a whole. The protection of genetic use restriction technologies (GURTs) through intellectual property rights could, for instance, impact significantly on access to technology by farmers in the region. However, this has not been explicitly addressed in the Intellectual Property (IP) legislation. The ambivalence of this legislation to GURTS can, in some instances, be interpreted as support for GURTS IPRs. It is in the light of this that the Trade Law Centre for Southern Africa (tralac) and the International Centre for Trade and Sustainable Development (ICTSD) commissioned this research on the interface between GURTs and intellectual property rights (IPRs) on sustainable use of agro-biodiversity and food security. There is particular concern that IPRs would have a negative impact on agriculture, which is the biggest employer and a great contributor to the economies of Eastern and Southern African (ESA) countries. This study examines the role of IPRs in the region and the place of GURTs in that schema. It looks particularly at the role of IPRs in development and the arguments for and against GURTs, proposing possible responses that ESA countries could consider to mitigate the potential adverse impacts of IPRs for GURTs on agriculture in the region. This paper is divided into seven parts. Part I comprises the executive summary. Part II (1) introduces both IPRs and GURTs from a global perspective but contextualises them