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On: 04 May 2015, At: 18:56
Publisher: Routledge
Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered
office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK
To cite this article: Miranda Forsyth & Sue Farran (2013) Intellectual Property and
Food Security in Least Developed Countries, Third World Quarterly, 34:3, 516-533, DOI:
10.1080/01436597.2013.785345
To link to this article: http://dx.doi.org/10.1080/01436597.2013.785345
ABSTRACT This paper analyses the impact of intellectual property laws on food
security in Least Developed Countries (LDCs), taking the Pacic Islands countries as an example. It argues that IP laws are increasingly impacting upon food
security, but are not being adequately taken into account in national policy
development. Consequently, national IP regimes are developing in ways that
undermine, rather than promote, food security. The paper argues that the particular context of LDCs, including a lack of technological development and reliance upon traditional agricultural systems, requires an approach to intellectual
property that is substantially different from the one size ts all approach mandated by the Agreement on Trade-Related Aspects of Intellectual Property
Rights.
The debate about intellectual property laws and food security has taken place
almost exclusively in the context of developed and developing countries, which
rely heavily on commercial seeds and technology in agriculture. Little attention
to date has been paid specically to the effect of intellectual property laws on
least developed countries (LDCs) and other countries that are far behind the
technological frontier. It may be that this is because it is assumed that the issues
are the same for these countries as for more developed countries, or that intellectual property laws are simply not relevantafter all in such countries the
majority of the population are not in waged employment, public and private
spending on research and development is almost non-existent, and a large
percentage of people live in rural areas where their daily needs are primarily
met by shing, foraging and the cultivation of staple food crops. This paper
challenges both assumptions. First, it shows the growing relevance of global,
regional and national intellectual property regimes to food security in such
countries. Second, by investigating what type of intellectual property regime
would best suit LDCs, it demonstrates that there are good reasons against adopting the same policies as those used in more technologically developed countries
(even though they may still be developing). The paper focuses on the South
Miranda Forsyth is at the Regulatory Institutions Network, Australian National University, Canberra,
Australia. Email: Miranda.forsyth@anu.edu.au. Sue Farran is in the School of Law, Northumbria University,
City Campus East, Newcastle-upon-Tyne NE1 8ST, UK. Email: sue.farran@northumbria.ac.uk.
ISSN 0143-6597 print/ISSN 1360-2241 online/13/000516-18
2013 Southseries Inc., www.thirdworldquarterly.com
http://dx.doi.org/10.1080/01436597.2013.785345
Pacic islands region as a case study, as this region includes a number of LDCs
and many other technologically limited countries.
The paper rst considers the local and regional context of food security in
the Pacic Island countries and queries how intellectual property rights are relevant. We identify a number of ways that intellectual property rights are relevant
to this topic, and also show how at present they are generally being overlooked
by those involved in food security policy, leading to a lacuna in any national
policy development. The paper then examines what types of intellectual property frameworks are being implemented in Pacic Island countries and what the
drivers behind these are. We show that new regulatory frameworks are being
driven by international players such as the World Trade Organization (WTO) and
other trading partners, who often require IP regimes to be introduced as prerequisites to membership of free trade agreements (FTAs), rather than responding
to local needs. These organisations advocate strong intellectual property regimes
on the basis that they promote innovation and diffusion of new technologies.
However, the paper queries the extent to which such regimes are in fact likely
to result in new agricultural innovations or diffusion of new developments in
agriculture in the context of LDCs. It examines who is currently actually conducting innovative research and disseminating new agricultural technology and
knowledge in the region, and what incentivises them. We nd that this area is
almost exclusively dominated by regional research programmes and local NGOs,
with no commercial ventures playing a signicant role. Finally, the paper
identies a regulatory approach that has the best chance of maximising the
development and distribution of new agricultural technology in such contexts.
The paper thus contributes to the developing body of literature on intellectual
property and food security in three main ways. First, it articulates the perspectives of LDCs. which are far behind the technological frontier and whose circumstances are thus radically different from many of the developing Asian
countries most commonly discussed in the literature.1 Second, it presents qualitative empirical evidence to challenge many of the claims made about intellectual property and development by those promoting the one size ts all
approach exemplied by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In particular, it challenges the claims made regularly by institutions such as the World Intellectual Property Organisation (WIPO)
that the creation, protection, management and use of intellectual property rights
[in LDCs] would contribute to economic development by facilitating the transfer
of technology, increasing employment and creating wealth.2 Third, it makes
explicit the links between trade agreements, intellectual property policy making
and sustainable agricultural development, as too often these are not viewed
together.3
How relevant are intellectual property laws to food security in LDCs?
Most of the countries in the Pacic Islands region are among the least
developed in the world.4 Their imports largely exceed exports and the latter
consist mostly of natural resources or agricultural produce. All depend on
regular injections of foreign aid, some almost entirely. While there are many
517
differences throughout the region that have major effects on countries vulnerability to food poverty, there are a number of common factors that cause IP laws
to have, or to be likely to have, an impact in this area.
There are, however, challenges to the traditional agricultural system which mean
it requires active support, and also cannot be entirely relied upon for food secu520
rity in the future. First, there is pressure on land to produce higher yields to
meet the demands of a growing population and land-poor urban dwellers, and
to produce cash-crops to satisfy the need for disposable income. Second, there
is a signicant decline in biodiversity in agricultural food production.20 Traditionally there was considerable genetic variation in all the staple root crops, but
this is no longer the case. For example, a researcher in Vanuatu observed:
On Malo I recorded language names, and, in many cases, stories for over
100 yam varieties across seven species, ve of which are indigenous. I
never sighted many of these despite surveying literally hundreds of gardens,
implying that they are no longer cultivated; effectively lost though their
names and stories may still be recalled by older folk.21
This loss of biodiversity is of concern in the context of adapting cultivars to climate change, and cultivating crops which are resilient to pests and diseases.
Such decline is partly attributable to population pressures which mean farmers
tend to concentrate on the highest yielding crops, and also on cash-cropping,
which tends to promote mono-crops.22 It is also associated with a loss of cultural traditions related to traditional ways of life, as certain cultivars were also
preserved for the social value of their story of origin.23 A nal threat is the
underlying vulnerability of traditional crops because of their narrow genetic
base, making the introduction of new genetic material imperative to avert future
epidemics and disasters.24
These observations suggest that an intellectual property policy that supports
food security in countries where the traditional economy is still important, or
potentially important, needs to be one that creates an enabling environment for
preserving the indigenous diversity of foods. This requires, among other things,
recognition and promotion of the traditional knowledge and customary
regulatory systems that have evolved to promote food security in the past.
The disjunction between food security policy and intellectual property
policy in the Pacic Islands region
The intellectual property systems in the region were rst laid down by colonial
governments, and these were generally rolled over into the new legal regimes
created upon independence of the countries in the region.25 However, intellectual property regimes have not played a signicant role in practice in most
countries in the region until recently, when a number of them commenced
reinvigorating and reforming their intellectual property systems.26 The stimulation for doing so has overwhelmingly been accession to free trade agreements
such as the WTO, and also as a result of pressure from organisations such as
WIPO, which promotes a view that intellectual property aids development. In
contrast, national and regional organisations involved in promoting food security
and climate change strategies have overlooked intellectual property policy as an
issue almost completely, despite its relevance, as outlined above. As a result,
the new IP regulatory frameworks being introduced correspond to the priorities
521
Western IP rights are not likely to promote innovation and diffusion of new
technology in agriculture in the Pacic Island countries
The state of technological under-development in almost all the countries in the
region means that it is highly unlikely that a Western intellectual property rights
regime will in fact stimulate the development of new agricultural innovation
necessary for increased food security in the region. These countries are far
behind the technological frontier and have few, if any, commercial enterprises
operating in the area, and an almost complete lack of infrastructure. They
therefore lack the capacity to transform genetic resources, which is what TRIPSconsistent IP laws incentivise. Fieldwork conducted in Samoa, Fiji and Vanuatu
in 2011 found that there has been almost no development of new plant or
animal genetic varieties or agricultural technology in the past few decades
(outside of the regional mechanisms discussed below).27 One exception to this
was the development of the Fiji Fantastic Sheep, which was a joint project
between Australia and Fiji over the 1980s to mid-1990s.28 Despite its success,
however, it has not been replicated either with new breeds of sheep or other
livestock. The reasons given for this by the Director of the Animal Health and
Production Division, Ministry of Primary Industries, is that Fiji has neither the
facilities nor the expertise, as there are no qualied animal breeders in the country. Moreover, the overall cost of conducting such a programme in Fiji is higher
than if Fiji were to rely on other institutions overseas to do the research for it.29
A similar issue arose in another example of agricultural innovation in Fiji,
where a local engineer succeeded in inventing, and obtaining a local patent
over, a new method of producing coconut oil. However, he was unable to nd a
way of commercialising it because of a lack of manufacturing capacity and lack
of institutional support. In reecting on why his invention has not been further
developed, and why there have been so few similar innovations, the inventor
cited a general shortage of skilled and qualied personnel in the public sector,
and a lack of awareness of the importance of innovation and technology generally.30 These examples suggest that, while there is scope for in-country research
and development if sufcient resources are invested, the economic viability of
such endeavours is highly questionable regardless of the availability of intellectual property rights. Further, it appears that only governments and foreign aid
donors have either the expertise or resources to conduct such research, and as
they are prompted by general developmental concerns, the stimulation of a patent is not required in order for them to conduct research.
A Western IP system deects attention from the need to support the
organisations actually generating agricultural innovation in the region
An investigation into agricultural innovation in the region shows that developments in these areas are overwhelmingly occurring in the context of regional
research programmes and local NGOs. Research and the conservation of existing
522
The breeders and those at CEPACT are rmly of the belief that the programme
is a regional one, and as such should benet everyone in the region. A breeder
commented, As a breeder, this is for the whole region.43 He emphasised that
the breeding programme has beneted from regional germplasm and Australian
technical expertise, and was concerned that, if any move was made to try to
patent the new varieties, then other countries would stop sending their germplasm, and this would undermine food security. On the other hand, some government ofcials in agriculture departments in both Samoa and Fiji emphasised
that, where economic interests are involved, national ownership of plant varieties should be considered. One Samoan ofcial stated that the government had
put a lot of resources, and time and effort into breeding new varieties that are
leaf blight-resistant, and in the meantime Fiji had taken over the taro export
market from Samoa as it had not had leaf blight. He was concerned that, if Fiji
does get the leaf blight, it would be unfair for it to be able to simply free-ride
on all the developments that Samoa has done in leaf-blight resistance over the
past decade.44 This is felt particularly keenly because Samoa has not been able
to recover its market from the Fijians, as New Zealand consumers still prefer
the taro that is known as tausala ni Samoa (Samoan taro), despite its being cultivated in Fiji.45 An ofcer in the Fijian Department of Agriculture also commented that, when it comes to trade and competition between Pacic island
countries, Fijis national interests need to be protected, rather than having its
genetic resources shared by the region.46
A third perspective is provided by the Samoan farmers, who have reportedly
been claiming rights over the more successful of the seedlings they are given to
raise and select.47 For example, in one village the farmers found that a particular new taro variety grew very well and gave them a competitive market advantage. The village therefore put a ban on the distribution of the genetic material,
only allowing it to be distributed within the village and refusing to give the
plants back to the MNRE when ofcials came to get it back to redistribute. However, as the MNRE had back-up material it was able to access the genetic materials anyway and so the ban has been lifted. Now the MNRE buys it back from the
farmers and redistributes it to other farmers so they can benet. The farmers
argue that their work in raising, evaluating and selecting varieties means that
they should get some benets from them, but one breeder argued that this recognition should be limited to naming rights.48
This case study demonstrates that there are clear tensions between regulation
of plant varieties for food security and for commercial opportunities and trade.
The former objectives require an environment where the best genetic resources
are freely shared, while the latter encourage countries to utilise their genetic
resources for their own benet to gain commercial advantage over the others,
and also promotes nationalism over regionalism. In many ways this is symptomatic of what is happening on an international level, where conventions are pulling in opposite directions, some in favour of biodiversity and environmental
conservation, others in favour of trade,49 meaning that the demands being made
on signatory or member states are incompatible and that the property regimes
being advocated are incoherent. While at present there are relatively few areas
where the Pacic Island countries compete with each other for export
525
opportunities, this has the potential to change in the new era of free trade agreements, all of which emphasise open markets to a limited range of (mostly agricultural) Pacic island exports. This demonstrates that the discourse of Western
intellectual property rights and the latters strengthened presence in the region
have the potential to undermine regional initiatives to promote food security
through the sharing of plant genetic resources.
The taro case study also illustrates that there are very different viewpoints
about access to genetic resources among different sectors in the region, particularly between those involved in cultivation of resources and those involved in
trade. Policy decisions in the region on issues such as the sharing of genetic
resources are often taken at a sectoral level, without whole-of-government consultation, meaning that different ministries are working with quite different
agendas. For example, a decision was made in 2009 to put all the germplasm
collection in CEPACT into the multilateral system of the International Treaty on
Plant Genetic Resources for Food and Agriculture (PGRFA Treaty). Such a decision could have signicant effects on trade, as demonstrated by the taro example, yet the decision was made by a Heads of Agriculture and Forestry meeting
without any input or consultation with those involved in trade.50
A Western IP system is inconsistent with many cultural values held by the
inhabitants of the region
Finally, the granting of rights over plant, animal and human genetic material is
inconsistent with the cultural values of many in the region.51 This was vividly
demonstrated in the public furore that was generated in the mid-2000s when the
University of Hawaii sought to obtain patents over varieties of hybridised taro.
Under pressure from activists in 2006 the University gave up all claims to rights
and royalties, or ownership on patents from the three varieties of hybridised taro
which had been developed.52 Three factors seem to have played a key role in
informing the opposition. The rst was some misunderstanding about the nature
of the research being undertaken, the second was fear that GM taro would crossbreed with Hawaiian native taro and thereby contaminate or mutate the native
taro. This concern was strongly linked to the third and overriding concern,
which was the cultural association with taro by native Hawaiians as a plant of
origin.53
An alternative approach to IP regulation in Least Developed Countries
This section draws together the various strands of this paper to identify a regulatory approach to agricultural innovation that has the best chance of maximising the potential for food security in LDCs.
In the discussion above we have identied two primary goals for such a regulatory policy. The rst is ensuring the continued traditional development and
distribution of genetic diversity of crop species, especially those crop species
which are central to local diets: yams, taro, bananas, sweet potato and cassava.
The second is stimulating the development of new agricultural technology,
including new plant varieties, that increase yield, ensure biodiversity and
526
change. Examples of such programmes are prizes for new and improved varieties at agricultural shows or in national competitions, the promotion of education in the cultivation and use of traditional foods, revival programmes for
traditional agricultural practices (such as yam towers in Erromango),57 documenting and recording existing traditional knowledge in respect of Pacic ora
and fauna, such as the development of salt-water resistant swamp-taro in Lord
Howe Island in Solomon Islands,58 and mainstreaming the distribution of new
varieties of essential food-crops, as is occurring through the Solomon Islands
Kastom Gaden programme.59 Customary protocols that encourage the sharing
of genetic resources, such as the practice of naming new varieties after the person responsible for their introduction or the place they came from, should be
deliberately built upon. At the same time care should be taken not to introduce
notions of exclusionary rights into programmes concerning traditional knowledge, as is unfortunately occurring in a number of drafts of traditional knowledge legislation throughout the region.60 There is a danger that such laws,
which take a broadly proprietary approach, will impede the current relatively
open-access model to genetic resources, and so exceptions for maintaining food
security should be explicitly incorporated.61 As the Special Rapporteur on Food
observed, rather than preventing access to traditional varieties and associated
knowledge by creating a new system of enclosures, what is required is proactive
support for their development.62
Promote innovation in agriculture through government- and donor-funded local
and regional programmes
Governments and donor agencies also need to increase their funding of regional
and national research programmes, such as the Solomon Islands Planting Materials Networks, CEPACT, Pacic Agriculture Plant Genetic Resources Network
(PAPGREN) , and the Community Gardens scheme in Federated States of
Micronesia (FSM). Such programmes are able to focus the limited expertise
available in the region on crucial issues in agriculture and, ideally, then distribute the benets throughout the region. If benets are to be shared equitably and
traditional innovation encouraged, then research and development have to
remain in the public domain and work collaboratively with traditional knowledge.63 However, as demonstrated in the case study on taro, such initiatives are
threatened when national and regional interests are in conict, or trade policies
conict with those which focus on future food security. The undermining nature
of these conicts is exacerbated when there are no clear cross-sectoral policies
or legal frameworks on access to genetic materials. As we saw, this has led to
undercurrents of resentment that do not bode well for future regional cooperation programmes. These problems are compounded by the short institutional
memory of many government departments and institutions in the region, meaning that people coming in after a project has been established are unlikely to be
conversant with its aims and objectives. One way to counter these problems is
the development of national and regional open-access policies as discussed
above.
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Notes on Contributors
Miranda Forsyth is a postdoctoral fellow at the Regulatory Institutions
Network, Australian National University. She is currently working on a three
year ARC Discovery-funded project to investigate the impact of intellectual laws
on development in Pacic Island countries. Previously she was a senior lecturer
in criminal law at the University of the South Pacic, based in Port Vila,
Vanuatu. Her research interests include intellectual property law; criminal law
and procedure; law and development; customary law; and legal pluralism. Her
most recent book is A Bird that Flies with Two Wings: Kastom and State
Justice Systems in Vanuatu (2009).
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