North/south conflict in plant sui generis systems : an analysis of Article 27(3)b of TRIPS agreement from least developed country perspectives

• Main Author: Upadhyay, Yog
• Published: University of Sheffield 2012
• Subjects: 346.048
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.578697

In recent years, particularly since 1995, intellectual property law has become an integral component of trade, whereas in the past it used to be a fundamental element of development policy. This shift in the primary concept and function of the intellectual property system, due to its association with global trade, demands massive changes in national regimes, which may or may not serve the interest of their citizens and other domestic stakeholders. Such an issue becomes crucial when it is related to basic human necessities such as food and livelihood. It is particularly important when the actors involved are developing and least developed countries (LDCs). While the development of national intellectual property systems requires careful governmental and administrative development because of their important relationship to livelihood, such a need has been overshadowed by the almost coercive position adopted in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). One can argue that the TRIPS agreement is in many ways a defence of sophisticated developed economy trade protection. However, despite this general stance, Article 27.3.b of the TRIPS agreement, in principle, offers an opportunity for countries to develop an effective sui generis system to protect plants and other related materials. Whilst Article 27.3.b of the TRIPS agreement, on its face, offers a powerful freedom, there is enough evidence that the international community, particularly various actors from developed countries, is increasingly circumscribing this discretionary autonomy in many different ways. This thesis, therefore, analyses the spirit of Art. 27.3.b of the TRIPS agreement so as to understand what exactly it means when it states that plants can be protected under an effective sui generis system. For the philosophical underpinning, it considers the "Charter of Economic Rights and Duties of the State", Rawls' concept of "Distributive Justice" particularly in relation to the development of the farmer's right, and Gewirth's moral and ethical philosophy. These established theories are considered in the international law context. Finally, the thesis analyses the current situation in the area, advances an alternative framework for the negotiations of sui generis system by particular States and suggests guidelines for 'effective' plant sui generis systems under Art. 27.3.b of the TRIPS agreement.