IPRs, biotechnology and development

Developing countries are being urged to introduce strong intellectual property rights (IPRs) to enable poor farmers to take advantage of genetically modified crops. IPRs can stimulate trade, investment, innovation and technology transfer for development. However, for many developing countries, the costs of IPR regimes outweigh the benefits and may undermine long-term development. IPRs do little to encourage private research into crops and traits important to food security and often impede public research that could address these needs.

IPRs provide a vital incentive for investment in expensive biotechnological research. They give companies the safeguards necessary to encourage them to commercialise their products in developing countries. Agreed standards of IPR protection have been introduced at a global level, mainly through the World Trade Organisation's (WTO) Agreement on Trade-Related Intellectual Property Rights (TRIP). This requires developing countries to implement strong domestic IPR regimes. This has several consequences for the biotechnology sector, including:

• l dramatic agreements between firms, who are keen to avoid lengthy negotiations for technology licences and legal issues over patents
• l restricted exchange of data, plant material and technologies among researchers in both public and private sectors
• l increased costs of the IPR system, with patent offices being overwhelmed with applications from firms and universities seeking to build a 'defensive' patent portfolio.

A study by the independent UK Commission on Intellectual Property Rights confirms that IPRs may only benefit developing countries with a high level of manufacturing and innovation capacity. For the poorest countries, the costs of strong IPRs outweigh the short-term benefits and potentially the long-term benefits as well. IPRs do little to stimulate investment where there is unlikely to be a profitable market for the end product. While IPRs may interest private investors in cash crops grown in developing countries, they are not effective in attracting investment in subsistence crops, or traits relevant to poor farmers or food security. Also patents may restrict farmers' conventional rights to save and exchange seeds.

Developing countries should tailor their IPR regimes to their national circumstances and developmental priorities. This will require:

• l excluding plants and animals from patent protection
• l ensuring farmers are allowed to save, re-use, sell and exchange harvested seeds
• l allowing access to protected varieties for further research and breeding
• l resisting further attempts in international debates to entrench global IPR standards.

Few developing countries appear to be following this approach. Many rely on multilateral, bilateral and private support, which generally favours strong IPR models. In addition, many developing countries have foregone TRIP's flexibility to maintain key bilateral trade, aid and investment relationships with wealthy countries. Courts and patent offices in developed countries have interpreted intellectual property laws in a manner that supports the biotechnology industry's demands for strong IPRs.

The consensus that strong IPRs are good for development seems to be entrenched amongst policy-makers. Nevertheless, it is coming under increasing scrutiny. The following policy responses are suggested:

• l Give greater attention to the developmental effects of IPRs, particularly the linkages with poverty and food security, the inhibition of knowledge and technology exchange and diversion of scarce resources away from new research.
• l Explore options for common pool or open access arrangements of publicly-owned intellectual property, such as the African Agriculture Technology Foundation.
• l Current proposals for reforming the TRIPs regime should preserve the rights of WTO members to tailor IPR regimes to their particular circumstances, especially with regard to the needs of poor farmers.
• l Donors, international and charitable organisations should provide effective support to developing countries to design and implement IPR laws that support their developmental priorities.

Farhana Yamin
Institute of Development Studies
University of Sussex
Brighton, BN1 9RE
UK
FarhanaY@ids.ac.uk

CIPR report available from: www.iprcommission.org

See also

Yamin, F. (2003) Intellectual property rights, biotechnology and food security. IDS Working Paper 203

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