Intellectual Property and Food Security in Least Developed Countries

Abstract

This paper analyses the impact of intellectual property laws on food security in Least Developed Countries (LDCs), taking the Pacific 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 fits all’ approach mandated by the Agreement on Trade-Related Aspects of Intellectual Property Rights.

Notes

1 See, for example, C Chiarolla, Intellectual Property, Agriculture and Global Food Security: The Privatization of Crop Diversity, Cheltenham: Edward Elgar, 2011.

2 See http://www.wipo.int/ldcs/en/ip/seoul_declaration.html. Australia committed $2 million in 2012 to helping LDCs in the Asia-Pacific region strengthen their ip systems. http://keionline.org/node/1443.

3 Chiarolla argues that many of these issues have become ‘decoupled’. Chiarolla, Intellectual Property, Agriculture and Global Food Securtity, p 24.

4 For the 2011 UN hdi ranking for PICs, see the Human Development Reports, at http://hdr.undp.org/en/statistics/.

5 Fiji, Solomon Islands, Papua New Guinea, Tonga, Samoa and Vanuatu.

6 See Vanuatu’s accession to the wto package, at http://vanuatu-wto.blogspot.com.au/.

7 Article 15 of the 1991 upov Convention allows nations to restrict breeders’ rights ‘in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting…the protected variety’. This does not, however, allow sharing or exchange of the propagating material.

8 National legislation can provide exceptions for ‘acts done privately and for non-commercial purposes [and] for experimental purposes’ (Art 15(1)(i) and (ii)). In the Pacific scope and resources for in-country research are extremely limited, as will be shown.

9 O De Schutter, Right to Food, UN Report A/64/170, 23 July 2009, para 14, at http://www.srfood.org/images/stories/pdf/officialreports/20091021_report-ga64_seed-policies-and-the-right-to-food_en.pdf.

10 Previous preferential trade agreements included the 1981 South Pacific Regional Trade and Economic Cooperation Agreement (parteca) and the Lomé Convention in the 1970s.

11 This came into effect in 2002.

12 Launched in 2009 at the instigation of Australia and supported by Forum leaders, this latest fta promises job opportunities, capacity building, higher standards of living and economic growth. Australian Government, Department of Foreign Affairs, at http://www.dfat.gov.au/fta/pacer/index.html. See also the Pacific Institute of Public Policy, ‘Casting the net to define the pacer “Plus”’, Briefing Paper 11, October 2009, at http://www.pacificpolicy.org/wp-content/uploads/2012/05/D11-PiPP.pdf.

13 Chiarolla, Intellectual Property, Agriculture and Global Food Security, p 75.

14 De Schutter, Right to Food, p 14.

15 As experienced in Cook Islands, Niue and Tokelau.

16 It has been estimated that by 2020 more than half the population in a majority of the Pacific island countries will live in towns. See http://siteresources.worldbank.org/INTPACIFICISLANDS/Resources/Chapter+1.pdf.

17 Commonwealth Scientific and Industrial Research Organisation (csiro), ‘New insight into climate change in the Pacific’, 25 November 2011, at http://www.csiro.au/Portals/Media/New-insight-into-climate-change-in-the-Pacific.aspx.

18 R Bourke, ‘Vanuatu agricultural system survey’, April–May 1999, p 1, manuscript on file with author.

19 S Caillon & V Lanouguère-Bruneau, ‘Taro diversity in a village of Vanua Lava island (Vanuatu): where, what, who, how and why?’, paper presented at the Third Taro Symposium, Nadi, Fiji, 22-24 May 2004, p 8.

20 This is a common problem throughout the region. See, for example, M Taylor, ‘New regional genebank in Fiji was made-to-order for Pacific island nations’, Bio Science, 16(4), 2000, p 19.

21 Private correspondence to M Forsyth from M Allen, 5 December 2011.

22 A McGregor P Kaoh, L T Mariner, P N Lal & M Taylor, ‘Assessing the social and economic value of germplasm and crop improvement as a climate change adaptation strategy: Samoa and Vanuatu case studies’, 2011. P. N. Lal, A background case study prepared for IUCN’s report, Climate Change Adaptation in the Pacific: Making Informed Choices, prepared for the Australian Department of Climate Change and Energy Efficiency (DCCEE), IUCN, Suva, Fiji, 2011.

23 Caillon & Lanourguère-Bruneau, ‘Taro diversity in a village of Vanua Lava island (Vanuatu), p 8.

24 See McGregor et al, ‘Assessing the social and economic value of germplasm and crop improvement’, p 2.

25 S Farran, ‘South Pacific intellectual property law’, Supplement, 51st International Encyclopaedia of Laws, The Hague: Kluwer, 1999, pp 1–96.

26 M Forsyth, ‘Cargo cults and intellectual property in the South Pacific’, Australian Intellectual Property Journal, 14, 2003, pp 193–207.

27 The data in this paper are based on two months of fieldwork in 2011 in Samoa, Vanuatu and Fiji. One hundred and ten loosely structured interviews were conducted with a range of stakeholders, including government ministries in the areas of trade, health, education and agriculture; development partners; customary leaders; local businesses; educational institutions; and research stations. This research was made possible by a three-year arc Discovery grant (2011–14). The findings presented in the paper are part of a larger enquiry into intellectual property rights and development in Pacific Island countries. See http://www.ippacificislands.org for a full description of the project and its outputs.

28 The Fiji Fantastic Sheep is a breed of sheep bred in Fiji that has the following characteristics: high fecundity, good amount of meat, and a small amount of wool that is self-shed by 18 months of age making the sheep tolerant of tropical conditions.

29 Interview with Director of the Animal Health and Production Division, Ministry of Primary Industries, Suva, Fiji, 5 October 2011.

30 M Forsyth, ‘Tales of intellectual property in the South Pacific’, ssgm Discussion Paper Series 2012/2, at http://ips.cap.anu.edu.au/ssgm/publications/discussion_papers/dplist.php?searchterm=2012.

31 The conservation of coconut biodiversity is a case in point. See http://www.spc.int/lrd/index.php?option=com_content&view=article&id=655:conservation-of-traditional-coconut-varieties&catid=78:training-and-workshops-&Itemid=30.

32 For an update, see ‘The future is here: dialogue for setting the direction for atoll food production, research and development’, paper presented at the Atoll Agricultural Conference, April 2010, at http://www.faopacific.ws/Portals/167/publications/Reports/Communique%20for%20Atoll%20Conference.pdf.

33 spc, press release, 24 July 2008. About $200 000 of start-up funding was used.

34 ifad, at http://www.ruralpovertyportal.org/web/guest/region/voice/tags/oceania/kiribati_island.

35 Funding was provided by AusAID, the Australian Centre for International Agricultural Research (aciar) and the EU.

36 Plantlets are distributed free of charge to spc countries. Email communication, Dr M Taylor to S Farran, 2 February 2012.

37 Formed in 2001, the Customary Gardening Association operates locally and through a Melanesian network of farmers. See http://kastomgaden.org/about/. A key aspect is the Plant Material Network, which provides members with improved seed and rootstock varieties.

38 Initially a two-year project running from 2005 to 2007, this community-based project is still going strong and has developed to include projects to document pandanus and banana varieties in order to build a database of plant resources to protect their gene bank. Its current work is funded by the US Forestry, Australian government and spc.

39 See ‘Island Food Community of Pohnpei’, Report on the Strategic Planning Retreat, 2004, at http://www.islandfood.org/publications/strategy.pdf.

40 SE Merry, ‘Legal pluralism’, Law & Society Review, 22(5), 1988, p 889.

41 S McDonnell, ‘Masters not mistresses of modernity: preliminary thoughts on the “cultural power” of land law in Vanuatu’, paper presented at the Sally Engle Merry Workshop, Australian National University, 9 March 2011.

42 See Taylor, ‘New regional genebank in Fiji’, p 19.

43 Interview with T Iosefa, Lecturer in Crop Science, University of the South Pacific, Apia, Samoa, 8 April 2011.

44 Interview with an officer in the mnre, Apia, Samoa, 5 April 2011.

45 In Samoa it is known as ‘Niue taro’ as it originally came from Niue, demonstrating that the custom of naming a variety from the place it came from is widespread in the region.

46 Interview with an officer in the Ministry of Primary Industries, Suva, Fiji, 27 September 2011.

47 See H Jaenicke, ‘Indigenous agricultural knowledge in the Pacific: (with special reference to article 9 of the International Treaty for Plant Genetic Resources for Food and Agriculture)’, Secretariat of the Pacific Community, Suva, 2011, p 11, at http://www.spc.int/.

48 Interview with T Iosefa.

49 This is not just in the Pacific. See P Cullett, ‘Plant variety protection in Africa: towards compliance with the trips Agreement’, Journal of African Law, 45(1), 2001, pp 97–122.

50 Interview with Dr M Taylor, Land Resources Division, spc, Suva, 22 September 2011.

51 See A Te Pareake Mead & S Ratuva (eds), Pacific Genes and Life Patents, Call of the Earth (Llamado de la Tierra)/Tokyo: United Nations University Institute of Advanced Studies, 2007, p 111.

52 ‘Hawaiian Taro Patent discussions’, at http://manoa.hawaii.edu/ovcrge/taro.html.

53 Honolulu Star Bulletin, 25 May 2005, at http://archives.starbulletin.com/2005/05/25/news/story4.html. This interrelatedness of people and landscape is found throughout the Pacific. See, for example, the Maori whakapapa.

54 Chiarolla, Intellectual Property, Agriculture and Global Food Security, p 29.

55 See, for example, the 1993 Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples; the 1988 Declaration of Belem; the 1999 Indigenous Peoples Seattle Declaration; and the 1995 South Pacific undp Regional Consultation on Indigenous Peoples and Intellectual Property Rights (which some Pacific islands seem to have lost sight of).

56 Mead & Ratuva,Pacific Genes and Life Patents.

57 L Bolton, ‘Describing knowledge and best practice in Vanuatu’, in E Hviding & K Rio (eds), Made in Oceania: Social Movements, Cultural Heritage and the State in the Pacific, Oxford UK: Sean Kingston Publishing, 2011, pp 302–321.

58 A project between local people and the Anglican Church, assisted by the Episcopal Relief and Development Fund. G Kiriau, ‘Pacific region: food security’, Anglican Alliance, 2011, at http://clients.squareeye.net/uploads/anglican/documents/Food_security_in_the_Pacific.pdf.

59 See http://kastomgaden.org/.

60 M Forsyth, ‘Do you want it giftwrapped? Protecting traditional knowledge in the Pacific island countries’, in P Drahos & S Frankel (eds), Indigenous Peoples’ Innovation: ip Pathways to Development, Canberra: anu ePress, 2012, pp 189–214; Forsyth, ‘Lifting the lid on “the community”: who has the right to control access to traditional knowledge and expressions of culture?’, International Journal of Cultural Property, 19, 2012, pp 1–33; Forsyth, ‘How can traditional knowledge best be regulated? Comparing a proprietary rights approach with a regulatory toolbox approach’, Contemporary Pacific, 25(1), 2013 pp 1–31; and Forsyth, ‘The traditional knowledge movement in the Pacific island countries: the challenge of localism’, Prometheus, 29(3), 2011, pp 269–286.

61 Jaenicke, ‘Indigenous agricultural knowledge in the Pacific’, p 17.

62 De Schutter, Right to Food, p 14.

63 For example by securing access and benefit -sharing agreements rather than plant breeder rights and restrictions.

64 These dangers are not as pronounced with regard to other types of intellectual property laws, such as trademarks and geographic indications, which may in fact be of considerable utility to the region.

65 See, for example, the fao briefing note ‘Climate Change and Food Security in the Pacific’, 2009, p 6, at ftp://ftp.fao.org/docrep/fao/012/i1262e/i1262e00.pdf; adb, ‘Food Security and Climate Change in the Pacific: Rethinking the Options’, Pacific Studies Series, Philippines, 2011, at http://www.adb.org/publications/food-security-and-climate-change-pacific-rethinking-options; and the mixed menu of measures for imports, exports and domestic markets suggested by Oxfam Australia and New Zealand, ‘The Future is Here: Climate Change in the Pacific’, Oxfam Briefing Paper 2009, at http://reliefweb.int/report/fiji/future-here-climate-change-pacific.

66 P McMichael & M Schneider, ‘Food security politics and the MillenniumDevelopment Goals’, Third World Quarterly, 32(1), 2011, pp 119–139.