Examining plant variety protection in Nigeria: Realities, obligations and prospects

• DOI: http://doi.org/10.1111/jwip.12113
• Published date: 01 March 2019
• Date: 01 March 2019

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36 wileyonlinelibrary.com/journal/jwip J World Intellect Prop. 2019;22:36–58.

DOI: 10.1111/jwip.12113

ORIGINAL ARTICLE

Examining plant variety protection in Nigeria:

Realities, obligations and prospects

Titilayo Adebola

School of Law, The University of Warwick,

Coventry, United Kingdom

Correspondence

Titilayo Adebola, School of Law, The

University of Warwick, Coventry. CV4 7AL.

United Kingdom.

Email: titilayoadebola@gmail.com

Nigeria does not currently have a plant variety protection

system. Three key reasons why Nigerian law and policy

makers should pay attention to plant variety protection are

the country's evolving agricultural sector, susceptibility to

external pressures and pending international obligations.

From 2010, successive Nigerian governments have pro-

moted private sector investments in agriculture, contribut-

ing to the increase in the number of agribusinesses in the

country. Agribusinesses tend to lobby for the introduction or

reform of national plant variety protection systems to suit

their business interests. Furthermore, as a founding member

of the World Trade Organization (WTO), Nigeria has a

pending obligation under Article 27.3(b) of the Agreement

on Trade-Related Aspects of Intellectual Property Rights

(TRIPS) to protect plant varieties through a patent system, a

sui generis system, or a combination of systems. This article

argues that Nigeria should proactively introduce a plant

variety protection system designed to suit its socio-

economic realities before it is pressured to adopt an

unsuitable system. In assessing the options under TRIPS

vis-a-vis the small-scale centered agricultural sector in

Nigeria, the article finds that the best-suited option for

the country is a sui generis system which protects the

interests of both small-scale farmers and agribusinesses.

KEYWORDS

access and benefit sharing, farmers’rights, Nigeria, plant

breeder's rights, plant variety protection, TRIPS

© 2018 The Authors. The Journal of World Intellectual Property © 2018 John Wiley & Sons Ltd

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INTRODUCTION

Agriculture is a historically significant sector in Nigeria. Before the discovery of oil in the 1960s, it was the mainstay of

the economy (Ayoola, 2001; Ekekewe, 1985). Although the discovery of oil in commercial quantities led to the decline

in the exportation of agricultural products such as cocoa, cotton, groundnuts, palm kernel, palm oil and rubber, there

was a seminal resurgence in agricultural prominence from 2010 (Agricultural Research Council of Nigeria, 2010). Plant

varieties embodied in bulbs, cuttings, seeds and other plant-propagating materials are the core of agricultural

innovation on which food supply and agricultural products depend.

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Small-scale farmers, agribusinesses and scientists

continually select, save and recombine plant varieties to increase productivity as environmental conditions and

commercial preferences evolve (Ramanna & Smale 2004; Rangnekar, 2002). While stakeholders in Nigeria's

agricultural sector benefit from access to new plant varieties, there is limited awareness about plant variety protection

in the country (NACGRAB, 2016a Nnadozie, Lettington, Bruch, Bass, & King, 2003).

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This article emphasizes t hree key reasons for the introduction of a suitabl e plant variety protection system in

Nigeria. First, its recent focus on agricultural tran sformation which has ince ntivized national and inter national

investments. Second, its suscep tibility to external pressures, including fro m agribusinesses, the International Union

for the Protection of New Varieties of Pla nts (UPOV) Office, as well as trade and inves tment agreements, which

tend to promote the patent system or the plant breeder's rights system set out in the 1991 International

Convention on the Protection of New Plant Varieties (UPOV, 1991 Convention) (Correa et al., 2015). Third, its

pending obligation to prot ect plant varieties under A rticle 27.3(b) of the World Tr ade Organization's (WTO)

Agreement on Trade-Relat ed Aspects of Intellectua l Property Rights (TRIPS).

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As a developing country WTO

member, Nigeria ought to have i mplemented its TRIPS obligations by 1 January 2000. H owever, multiple reasons

including military dictator ships, political instability and lack of interest ed actors have contributed to the absence of

plant variety protection in the country.

4

The article argues that Nigeri a should proactively introdu ce a plant variety protection sy stem suited to its

socio-economic realitie s before it is pressured to adopt t he patent system or the plant bree der's rights system

which are unsuitable to its sm all-scale farmer centered agriculture sector. Sma ll-scale farmers varieties either do

not meet the stipulated condi tions for protection or the ir traditional farming pract ices such as saving, reusin g,

exchanging and selling farm- saved seeds are restricted under these systems. As such,th e patent system and plant

breeder rights system are bett er suited to countries with indust rialized agricultural sect ors dominated by

agribusinesses.

For conceptual clarity, it is important t o delineate the application of the terms smal l-scale farmers and

agribusinesses. Small-sc ale farmers (also called smallhol ders) refer to subsistence farme rs who mainly use simple

farming tools and employ labor-intensive agroecological farmingpractices (IFAD, 2013; Mgbenka & Mbah, 2016).

Although landholding, such as 0–10 hectares under culti vation is a useful metric for definition , small-scale farmers’

landholding differs depending on the context (Lowder, Skoet, & Singh, 2014; Murphy, 2012). Other key

characteristics of small-s cale farmers include their prac tices of saving, reusing, exchang ing and selling seeds.

Agribusinesses refer to se ed and farm chemical busin esses engaged in the supply of seeds, pe sticides and

fertilizers, such as BASF, B ayer, Dow, Dupont, Monsanto and Syngenta (Fav ereto, 2016; Zylbersztajn, 2017). The

increasing prominence of agri businesses reflects the shi ft in agricultural innovat ion from the farms to labs, the

transition of farmers from se ed savers to seed purchasers an d the growth in profit-oriente d industrialized

agriculture (Fowler, 1994; Kloppenburg, 2004).

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This article is divided into three parts. Part I provides a background on Nigeria's agricultural policies from 2010

which have informed the increase in agricultural investments in the country. Part II discusses Nigeria's international

obligations related to plant variety protection. Part III explores the plant variety protection landscape in Nigeria,

including the current position of the law and attempts to introduce plant variety protection through IPRs reforms. The

article makes an original contribution to the literature onplant variety protection in the Global South, by analyzing the

timely, yet under-explored case of Nigeria.