| dc.description.abstract | Many eastern and southern African countrie
s have had to revisit their intellectual
property rights regimes in response to t
he 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 in
ventions. The dearth of human and resource
capacity in both intelle
ctual 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 countri
es 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 th
e region as a whole. The
protection of genetic use restriction technol
ogies (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 th
e Intellectual Property (IP)
legislation. The ambivalence of this legisl
ation 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 Af
rica (tralac) and the
International Centre for Trade and Sustai
nable Development (ICTSD) commissioned
this research on the interface between GURT
s and intellectual property rights (IPRs) on
sustainable use of agro-biodive
rsity and food security. There is particular concern that
IPRs would have a negative impact on agricul
ture, which is the biggest employer and a
great contributor to the economies of Ea
stern and Southern Afri
can (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 im
pacts of IPRs for GURTs on agriculture in the region.
This paper is divided into se
ven parts. Part I comprises the
executive summary. Part II
(1) introduces both IPRs and GURTs from a gl
obal perspective but contextualises them
iii
in the ESA region.
1
It also points out the demands put on
nations in ESA by TRIPs. Part
III (2) discusses trends in the Council for TRIP
s of the WTO and the World Intellectual
Property Organization (WIPO) and the implicat
ions that these have for ESA countries. It
focuses particularly on international rule
making and standard setting on IP, forums at
which such rules and standards
are agreed on, and the costs
of setting up IP systems.
Part IV (3) looks at IPRs and GURTs as di
fferent means of provid
ing control over the
use of genetic material, ar
guing that GURTs are broader, mo
re effective and less limited
by time constraints than the protection
conferred by IPRs. It also puts forward
arguments that have been made for and agains
t GURTs. This paves way for the
discussion in Part V (4) which focuses
on the positive and nega
tive impacts of
intellectual property protec
tion (IPP) for GURTs in the
ESA countries. Part VI (5)
addresses ESA countries’ approach to IPP.
It argues that since IPP laws in ESA
countries can, at least in t
heory, be used to protect GURTs,
there is a need to prevent
the potential negative impacts of such a trend.
As pointed out above, current legislation
is ambivalent on the issue
of GURTs protection through IP
Rs. This situation is not
desirable. Countries
need to decide on the approach to ta
ke to GURTs and use IPR and
other laws to give effect to
that approach. In this regard,
we propose the need to craft
well-thought out sui generis regimes that ta
ke the conditions in ESA countries into
account as one way of addressing this issue.
In a nutshell, both IPRs an
d GURTs allow control over t
he use of genetic materials,
differing in the mode of c
ontrol. The former provide
legal
control
over the use of genetic
material whereas the latter provide
technological control
. Countries have the option to
use both legal and technological
control to protect innovations.
In the light of the lack of
technological capacity in ESA countries, the best means of control remains the legal
one. In this regard, the countries must categor
ically provide for the subject matter of IPP
to either include or exclude G
URTs. Ambivalence of legislat
ion on the matter leaves the
issue open for interpretation; in many in
stances, there is no reason to deny legal
protection of GURTs if they
satisfy IPP requirements. Part
VII proposes strategic and
policy responses to IPP for GURTs, such as
assessment of benefit
s, costs and risks of
IPP for GURTs; alignment of
IPP with national devel
opment imperatives; use of
1
The paper uses South Africa and Kenya as t
he reference points because these have the most
developed IP regimes.
iv
flexibilities under TRIPs; regulation;
engagement in ongoing debates on GURTs
informed by research from the regi
on; development of
a well-thought out
sui generis
regime that takes into account the diversit
y of actors; and putting in place effective
institutional and adminis
trative frameworks. Part VIII (7
) concludes that IPP and GURTs
serve distinct purposes from the perspecti
ves of technology developers and users and
that there is a convergence of interests for
the technology developer in instances where
GURTs are amenable to IPP. In
the light of this, it proposes that ESA countries should
make explicit legal provisions on GURTs by
providing for IPP for all GURTs if they
satisfy criteria set for IPP, provide for
no IPP for GURTs even where they satisfy the
criteria or limit IPP
granted for GURTs | en |
