by Abraham Aigba
In the wake of the COVID-19 pandemic, global economy has been a major casualty. The International Monetary Fund has projected that global economy will contract by 3% in 2020. To bounce back, economies all over the world (particularly developing economies) will have to diversify and be innovative. New Plant Varieties (NPV) may well be the much-needed diversification.
NPV presents a unique tool for economic diversification and growth for a developing country like Nigeria. It also presents an avenue for breeders to exert their intellectual efforts towards the nation’s economic viability while also ensuring theirs.
The concept of NPV is not entirely new in Nigeria (although not referred to as ‘NPV’). What has been missing is a proper legal framework for its protection and regulation to meet with international best practices and satisfy Nigeria’s international commitments.
Nigeria has no legislation defining or protecting NPV. There is also no legislation conferring intellectual property rights on breeders of NPV. The closest laws in this regard are the National Crop Varieties and Livestock Breeds (Registration, etc) Act (NCV Act) and the National Agricultural Seeds Act (NAS Act).
These Acts are inadequate for the following reasons: firstly, they regulate “crop varieties” and “agricultural seeds” rather than “New Plant Varieties”. Secondly, while the Acts make provision for the registration and certification of seeds, they neither define nor vest any right on “breeders” or farmers. Put differently, the Acts do not acknowledge the intellectual efforts of breeders/farmers and so do not protect them. The concept of NPVs is also different and broader than that of crop varieties under the Acts under reference. Thirdly, under the 2016 Guidelines for Variety Registration in Nigeria (the 2016 Guidelines) small-scale farmers and private individuals are not qualified to develop new crop varieties/farmer’s varieties. See also Section 22 of the NAC Act which places limitations on persons who can produce and market seeds for commercial purposes in Nigeria.
Basically, there are two international regimes for the regulation and protection of NPV: the 1991International Convention for the Protection of New Varieties of Plants (the UPOV Convention) and the Convention on Biological Diversity (the CBD) (under the CBD, the object of protection is the ‘farmer’s right’).
Both regimes, though with largely similar aims, are distinct and appear to have incompatible concepts. Although Nigeria is a signatory to the CBD, her policies on this subject seem to tilt towards the UPOV Convention (to which it is not a signatory).
One would expect that were Nigeria to enact laws on the subject, the provisions of those laws would draw from the provisions of the UPOV Convention notwithstanding arguments that the tenets of the CBD are more suited to Nigeria’s socio-economic realities.
The point needs to be emphasized that the missing piece in Nigeria is the recognition and vesting of intellectual property rights on breeders of NPVs. Article1(iv) of the UPOV Convention defines “breeder” to mean either “the person who bred, or discovered and developed, a variety, or the person who is the employer of the aforementioned person or who has commissioned the latter’s work, where the laws of the relevant Contracting Party so provide, or the successor in title of the first or second aforementioned person, as the case may be.”
The protection of breeders is imperative and is justified by a number of considerations: a lot of research goes into the development of a plant variety which takes between 10-15 years to develop. Following this is the intellectual skills and efforts needed. For instance, where a farmer exerts intellectual efforts in breeding and genetic engineering processes bringing about new varieties with peculiar characteristics (such as drought resistant and high yielding varieties) the breeder is entitled to recover the costs and efforts expended.
Also, the breeding of plant varieties involves the use of vast expanse of land and investment in specialized scientific and agricultural equipment which, given the poverty and illiterate levels in Nigeria, are not easily within the reach of the average Nigerian farmer(the fact that most farmers in Nigeria are in the rural communities has to be borne in mind in this discourse) and so when these farmers go out of their way to breed new varieties, their rights over such varieties should be protected to secure their investment in respect of the varieties and ensure that others do not reproduce such varieties without their authorisation. This will engender the breeding of other varieties, the development of rural communities and a reduction in rural to urban migration.
The rights vested on breeders under the UPOV Convention in respect of propagation and harvested material include the right to production or reproduction (multiplication), conditioning for the purpose of propagation, offering for sale, selling or other marketing, exporting, importing, etc. unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagation or harvested material. See article 14 of the UPOV Convention.
The UPOV Convention also places the traditional IP restriction of acts done privately and for non-commercial and experimental purposes on the breeder’s right in Articles 16 and 17 of the Convention. These restrictions are aimed at balancing the competing interests of breeders to the exploitation of their intellectual exertions and those of the public to having access to the varieties.
To qualify for protection as NPV, the variety sought to be protected must satisfy certain conditions which appear to be more stringent than those of conventional IP rights. Articles 5-9 and 20 of the UPOV Convention list these requirements as: novelty, distinctiveness, uniformity, stability and variety denomination. (it should be noted that under the 2016 Guidelines, for a new crop variety to be registered in Nigeria, it must be distinct, uniform and stable). However, the Industrial Property Bill which seeks to harmonize extant industrial property laws in Nigeria contains different conditions.
Protection of NPV in Nigeria
As a founding member of the World Trade Organization, under Article 27.3 (b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), Nigeria has an obligation to provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof before January 1, 2000. Unfortunately, Nigeria is yet to fulfil this obligation.
The TRIPS Agreement gives Contracting Parties the latitude to protect NPV by whatever system that suits their socio-economic realities; hence, States can protect NPV using a sui generis system.
In Nigeria, NPVs cannot be protected under the Patent and Designs Act by virtue of the express wordings of Section 1(4) of the Patent and Designs Act. A preferred option would be for Nigeria to adopt the CBD regime (as opposed to the UPOV) for the protection of NPV given our socio-economic realities. However, protection by way of a sui generis system drawing from the UPOV Convention, (though not as favourable to Nigeria as it would be under the CBD) would not be wide off the mark. Nigeria can also choose to toe the line of countries like India and South Africa who have successfully married both legal regimes (the CBD and the UPOV).
Whatever model Nigeria eventually adopts, the point is that Nigeria is in urgent need of a robust and comprehensive legislation recognising and protecting the intellectual rights of breeders/farmers over plant varieties developed by them.
Economic Prospects of NPV
From 2010 till date, successive Nigerian governments have realized the importance of the agricultural sector to the diversification of Nigeria’s economy and have introduced various programmes aimed at incentivising national and multinational agribusiness investments, encouraging small-scale farmers et al. such that as of 2014, about 134 companies were registered as certified seed producers in Nigeria.
While the debate as to the best form of protection is likely not to end soon, there is no debate as to the importance of the development of new varieties of plants and crops both in terms of their commercial and economic value. Apart from the revenue accruable from their exportation, their sales, marketing and reproduction can be a source of internal revenue generated for government. Furthermore, with the right system in place, NPV is a good means of emancipation from poverty for rural communities in Nigeria. Food security equals economic stability.
At a time like this when the economy is in need of a boost (considering the global pandemic and downward fall in oil prices), it is important to look within and diversify our economy. Within Nigeria are vast expanse of arable land and a good farming population in need of that extra motivation. This motivation may well come by way of a reward for the intellectual efforts put into the development of NPV. Recognising this, the Industrial Property Bill was introduced to the National Assembly for debate, the passage of which would fill some of the gaps identified above. The earlier this Bill is passed into law, the better for Nigeria’s economy in these very challenging times.