Denis Borges Barbosa is a Lawyer in Rio de Janeiro, and Intellectual Property Law Professor at the Catholic University of Rio de Janeiro. Marcus Lessa (Institute of Economics, UFRJ, Brazil) is a Partner at Denis Borges Barbosa Advogados Law Firm, Rio de Janeiro.

The comparison may – or may not – seem strange, but may well define two opposite stances on the proposed amendments to the Brazilian Plant Variety Protection Statute (Federal Law 9.597/1997, the “1997 Statute”) (the “2009 Draft Amendment”), held, respectively, by small-scale farmers and traditional or indigenous populations on one side and the Ministry of Agriculture, commercial agriculture and Science and Technology Institutes on the other.

Brazil is a signatory to the 2006 International Treaty on Plant Genetic Resources for Food and Agriculture. The treaty recognizes the importance of small scale farmers and traditional populations in keeping agricultural crop diversity. According to the FAO, from a stockpile of 10,000 varieties developed since the beginning of agriculture, today, approximately ¾ of the genetic diversity in crops has been lost¹. However, even though the treaty was ratified almost 3 years ago, it is yet to be regulated by an executive decree, to render most of its provisions effective.

Pause. Enter the 1997 Statute and the 2009 Draft Amendment. Since the enactment of the Statute, the law has always honored the notion of breeders’ exception. Even though the 2009 Draft Amendment, as proposed, does not exactly terminate the exception, it does modify the preferential target, by aiming at the product, not the farmer. In a previous article² we wrote:

Marching a few well chosen (and liable) infringers to the gallows whilst sparing the frolicking crowd does make sense, provided the idea of the noose is somehow able to affect the crowd’s behavior. To the extent that the chosen few act as upstream or downstream filters, their supplying of non-infringing inputs or refraining to buy infringed goods may serve as an efficient approach in overcoming the gatekeeper problem.

The idea of aiming at upstream and downstream targets as a reasonable mechanism to tackle the central shortcoming of the law (as voiced by providers) seems a fair proposal. Doing so does not necessarily cause imbalances – as it merely implements efficiently what the 1997 Statute did not.

This dislocation of liability, justifiable by its putative efficiency, should not be compromised by its half-hearted approach. If the 2009 Draft Amendment wants to pick someone to curb piracy, it must do so in a clean and unabashed way: language such as “when the holder is prevented by any reason whatsoever to enforce the right provided in this article” goes against efficiency. The statute should simply make the prospective filters responsible.

But why the outcry? A number of entities have grouped to voice opposition to “any attempt to extend IP rights on genetic resources and restrict traditional agricultural practice”.³  According to the manifesto, the government should put the money where their speech is – and render articles 5, 6 and 9 of the treaty effective by passing an executive decree. Furthermore, any such change should be subject to ample discussion. While their first complaint can foster debate, the last one is spot on: the lack of discussions served as enough pressure to bar the legislative process. Our previous article stated:

(…) [O]ne should assume that 2009 Draft Amendment as approved by the Federal IP Joint Committee expressed a balanced interest of all stakeholders.

Nevertheless, just before being sent to the Congress, in early May 2009, the draft was delayed, reportedly by action of non-governmental organizations opposing its appreciation by the legislative.

One could make the case, however, that lowering the rhetoric might serve some purpose. Both groups may be closer than they know – or at least on the same side of the fence –, especially if one talks of the researchers (both in government-sponsored laboratories as Embrapa and in the private sector) and the NGOs representing small-scale farmers and traditional peoples.

Brazilian commercial agriculture is a success case based on localization: the conquest of the cerrado in the center-west states depended on overcoming regional issues by adaptation (i.e. climate, soil characteristics, and so on). Our knowledge in crop varieties spans centuries since the Royal Family founded the Botanical Garden in Rio de Janeiro in the early 1800s (not exactly a shady promenade, at least back then, but more of a seed bank and research facility). Therefore, it is only fair – if not necessary – that proper protections be put in place in light of economic and social benefits of this leading export item.

However, one must refrain from rationalizing the need to pass the 2009 Draft Amendment as an uncontrollable twitch called “UPOV 1991”. TRIPs requires a protection – which we already have – and tilting the balance of the 1997 Statute in any direction should serve some local need. As far as that goes, the small-scale farmers and their seed swapping has always been an important, if not indispensable part of the equation, and both sides know it. Somehow, the question that set this article in motion hardly feels important. That’s the problem with trick questions: they usually aren’t.

¹ http://www.fao.org/newsroom/en/news/2004/47027/index.html.

² Borges Barbosa, Denis and Lessa, Marcus, The New Brazilian Government Draft Law on Plant Varieties (Or… How a Developing Country May Want to Enhance IP Protection Because It May Actually Need It) (June 6, 2009). Peter Yu, SECOND SUMMER INSTITUTE IN INTELLECTUAL PROPERTY, BIOTECHNOLOGY AND AGRICULTURAL SCIENCES, Drake University Law School, 2009. Available at SSRN: http://ssrn.com/abstract=1415406.

³ Including Land Reform Associations, Agricultural Workers Associations, Peasant Associations, to name a few.

Posted in IP, Innovation, Technology