Navigating Plant Variety Protection in Developing Countries

When the World Trade Organization’s TRIPS Agreement came into force in 1995, it set off a quiet but consequential shift in agricultural policy around the world. All WTO members were now required to offer some form of legal protection to plant varieties – either through patents or through what the agreement called an “effective sui generis system.” For developed countries with mature seed industries, the answer was straightforward: align with the International Union for the Protection of New Varieties of Plants (UPOV). But for developing countries – where millions of smallholder farmers depend on saved, exchanged, and locally adapted seeds for their very livelihoods – the question was far more complex. Adopting UPOV wholesale was not a neutral act. It carried real trade-offs between promoting commercial plant breeding and protecting practices that have sustained agriculture for millennia.

The UPOV framework and why it creates tension for developing countries 🔗

The UPOV Convention was first adopted in 1961, primarily at the initiative of industrialised nations seeking to protect their commercial plant breeders in domestic and export markets. It grants breeders exclusive intellectual property rights over new plant varieties that satisfy four criteria: novelty, distinctness, uniformity, and stability – collectively known as the NDUS criteria. The 1991 revision of the UPOV Convention significantly strengthened breeders’ rights, with most developed countries having adopted this version.

The core problem for developing countries lies in how this framework interacts with local farming realities. Subsistence farmers – the majority in many developing countries – who propagate a protected variety to produce food solely for their household may be considered excluded from the scope of the breeder’s right. However, this exclusion is narrow. The moment a farmer sells even a small quantity of farm-saved seed of a protected variety, they can potentially fall within the scope of the breeder’s exclusive rights. The farmer’s exemption under UPOV 1991 does not cover seed exchange between farmers, a practice central to traditional agricultural systems.

The 1991 revision made this tension sharper. The 1991 UPOV Act made the farm-saved seed exception optional rather than mandatory, and extended protection to harvested material and products derived from it. Most developing countries were critical of these changes, even as trade pressures pushed them toward membership. By joining UPOV, countries effectively give up their right to develop independent sui generis legislation and must instead align their national policy with UPOV’s framework.

The pressure to conform and the space to resist 🔗

Developing countries have faced significant external pressure to adopt the UPOV 1991 model, often not through direct negotiation but through bilateral and regional trade agreements. Trade benefits under instruments like the US African Growth and Opportunity Act (AGOA) are partly conditioned on countries going beyond baseline TRIPS standards of intellectual property protection. Similarly, EU economic partnership agreements and G8 agricultural initiatives have included provisions pushing African nations toward stricter plant variety protection regimes.

Yet TRIPS itself preserves policy flexibility. The only condition established by Article 27.3(b) of TRIPS is to provide “effective sui generis protection,” and WTO members have broad policy space to define how that protection is structured. This flexibility is the legal foundation on which developing countries have built alternative models – models that go beyond UPOV’s singular focus on commercial breeders and incorporate farmers’ rights, community rights, and biodiversity conservation as core legal objectives.

The African Model Law: a continental alternative 🔗

Africa’s response to TRIPS came in the form of the African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, adopted by the Organisation of African Unity (OAU, now the African Union) in 2000. The African Model Law rejects both patents for plant varieties and the wholesale adoption of UPOV 1991. Instead, it presents a TRIPS-compliant sui generis option that incorporates access and benefit-sharing principles from the Convention on Biological Diversity, farmers’ rights from the International Undertaking on Plant Genetic Resources, and plant breeders’ rights drawn from elements of both UPOV 1978 and UPOV 1991.

The Model Law’s approach to farmers’ rights is its most distinctive feature. Under Part V of the Model Law, farmers retain the right to save, use, multiply, and process farm-saved seed of protected varieties, and communities can be granted intellectual protection for locally developed varieties even without satisfying the standard NDUS criteria. The law also recognises that breeders’ rights can be restricted in the public interest – specifically to protect food security, health, biological diversity, and the needs of farming communities.

The OAU Model Law process began in 1997, designed to help African countries fulfil obligations under both the Convention on Biological Diversity and the TRIPS Agreement. Its foundational premise was that in Africa, all parties – farmers, breeders, and local communities – have an important role in the conservation, improvement, and sustainable use of biodiversity. This stands in contrast to the UPOV model, which primarily incentivises private commercial breeding.

Despite its significance, the African Model Law has not been formally adopted by any African country. There is increasing pressure through a coalition of Global North countries, international organisations, and multinational firms for African countries to adopt UPOV 1991-style plant breeders’ rights systems instead. Discussions around the African Continental Free Trade Area (AfCFTA) have, however, revived interest in the Model Law as a possible foundation for a continental sui generis framework.

India’s PPV&FR Act, 2001: the most developed sui generis alternative 🔗

Among developing countries, India has gone furthest in translating the sui generis option into a comprehensive legislative framework. The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001 is India’s response to its TRIPS obligations, and it consciously departs from UPOV in several important ways.

The Act’s regime for plant breeders’ rights largely follows UPOV criteria for registration – novelty, distinctness, uniformity, and stability – but incorporates elements from both the 1978 and 1991 versions of UPOV, including the possibility of registering essentially derived varieties. Its second major aim is the introduction of farmers’ rights, which represents the Act’s most significant departure from the UPOV framework.

What farmers’ rights mean under the PPV&FR Act 🔗

Section 39 of the Act provides farmers with a broad bundle of rights. A farmer is entitled to save, use, sow, re-sow, exchange, share, or sell farm produce including seed of a registered variety in the same manner as before the Act came into force. Farmers are, however, not entitled to sell branded seed of a variety registered under the Act. The distinction between selling seeds informally and selling “branded seed” is legally significant – it preserves informal seed exchange while restricting commercial free-riding on protected varieties.

The Act also goes beyond protecting existing practices. Farmers can claim compensation if a registered variety fails to provide its expected performance under given conditions. Additionally, village and local communities are entitled to compensation if a registered variety has been developed using a variety to whose evolution that community contributed significantly. This benefit-sharing mechanism directly addresses biopiracy concerns that are particularly acute in a megadiverse country like India.

The Act further establishes a National Gene Fund, from which awards are granted annually to farming communities engaged in the conservation of plant genetic resources. The Plant Genome Saviour Community Award, carrying a prize of ₹10 lakh per community, recognises communities that conserve genetic resources of landraces and wild relatives of economic plants.

Farmers as breeders under Indian law 🔗

India’s legislation is unique in providing all types of rights for farmers – as a breeder, conserve, seed producer, and consumer – within a single statute. No comparable legislation elsewhere in the world has attempted this comprehensively. Farmers can register their own varieties, including landraces and locally evolved varieties, and are entitled to the same registration rights as commercial breeders. Crucially, farmers are not liable to pay any fee in proceedings before the Authority, Registrar, or Tribunal under the Act. This removes a significant access barrier for small and marginal farmers.

Researchers too receive explicit protection. Under the Act, they retain free access to protected materials for developing new varieties, though a breeder’s authorisation is required when the protected variety is repeatedly used as a parental line for commercial production. This formulation broadly mirrors the breeder’s exemption in UPOV 1978.

Limitations and ongoing challenges 🔗

Despite its ambition, the PPV&FR Act has faced real implementation challenges. The Act provides only one set of criteria for registration – the NDUS criteria designed for commercial breeders’ varieties – which makes it extremely difficult for farmers to register their own varieties even though they are legally entitled to do so. Farmers’ varieties – landraces, folk varieties, and locally adapted cultivars – often do not meet the uniformity and stability requirements that commercial plant breeding readily satisfies.

Other noted challenges include uneven enforcement, bureaucratic delays in the registration process, and concerns about whether the Act adequately protects traditional knowledge from biopiracy. High-profile cases like PepsiCo’s lawsuit against Gujarat farmers in 2019 over a potato variety – which the company eventually withdrew – illustrated just how fraught the boundary between breeders’ rights and farmers’ rights can become in practice.

The wider landscape: other developing country responses 🔗

India and the African Model Law are not isolated experiments. Countries like Malaysia, Thailand, and Ethiopia have also opted to depart significantly from the UPOV 1991 model, adopting legislation that balances the interests of public interest, commercial breeders, and smallholder farmers, while advancing the objectives of the International Treaty on Plant Genetic Resources, the Convention on Biological Diversity, and its Nagoya Protocol on access and benefit-sharing.

The tension these countries navigate is not merely legal – it is structural. In India, smallholder farmers supply around 80% of the seed required in the country, and 86% of farmers operate on land holdings of less than two hectares. A plant variety protection regime calibrated for large commercial seed companies simply does not map onto this agricultural reality. The sui generis option, properly used, allows developing countries to design laws that reflect who their farmers actually are.

Research comparing the UPOV model and India’s sui generis system from a sustainable development perspective has found that the UPOV Convention, as it currently stands, may have adverse effects on the achievement of Sustainable Development Goals, while India’s approach represents a more balanced model that addresses the needs of farmers, communities, and environmental protection alongside the needs of breeders.

Key takeaways for understanding the debate 🔗

The central lesson from this landscape is that plant variety protection is not a one-size-fits-all domain. Developed countries built UPOV to serve mature, commercially dominated seed industries. Developing countries face a fundamentally different challenge: how to encourage investment in plant breeding without dismantling the informal seed systems and traditional knowledge that the majority of their farmers depend on. The African Model Law and India’s PPV&FR Act both represent serious attempts to answer that question on developing countries’ own terms – acknowledging breeders’ rights while insisting that farmers’ rights are not a secondary add-on but a core legal commitment.

The TRIPS Agreement’s flexibility, expressed through the sui generis option, remains the critical legal space within which developing countries can exercise this judgment. The ongoing pressure through bilateral trade agreements to narrow that space is therefore not just a trade policy issue – it is a question of who gets to shape the rules governing food, seeds, and agricultural knowledge in the 21st century.

What do you think? Given that India’s PPV&FR Act legally allows farmers to register their own varieties but the NDUS criteria make this practically very difficult, should developing countries push for international standards that recognise different registration criteria for farmers’ varieties? And with the African Continental Free Trade Area now developing its own intellectual property protocol, does the African Model Law – which no African country has yet formally adopted – deserve a second look as a blueprint for continental-level plant variety protection?

References

1. https://www.undp.org/sites/g/files/zskgke326/files/publications/TowardaBalancedSuiGenerisPlantVarietyRegime.pdf
2. https://www.indiacode.nic.in/bitstream/123456789/1909/1/A2001-53.pdf