Plant Breeders’ Rights Act 2016: Prospects and challenges for Pakistan as an agricultural country

• Published date: 01 July 2020
• Author: Muhammad Z. Abbas
• DOI: http://doi.org/10.1111/jwip.12148
• Date: 01 July 2020

J World Intellect Prop. 2020;23:185–201. wileyonlinelibrary.com/journal/jwip © 2020 John Wiley & Sons Ltd

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DOI: 10.1111/jwip.12148

ORIGINAL ARTICLE

Plant Breeders’Rights Act 2016: Prospects and

challenges for Pakistan as an agricultural country

Muhammad Z. Abbas

Faculty of Shariah & Law, International Islamic

University, Islamabad, Pakistan

Correspondence

Muhammad Z. Abbas, Faculty of Shariah & Law,

International Islamic University, Islamabad,

Pakistan.

Email: m.zaheer@iiu.edu.pk

Abstract

With diminishing land availability and increasing popu-

lation, food security and loss of agricultural biodiversity

are two of the current common challenges faced by the

global community. In this context, the Plant Breeders’

Rights Act 2016 (PBRA 2016) may have far‐reaching

consequences for Pakistan, an agricultural country where

the livelihood of a majority of the population is linked

with agriculture. This paper critically analyses the new

legislation and seeks to answer the following research

questions: To what extent the PBRA 2016 complies with

Pakistan's obligations under Article 27(3)(b) of the TRIPS

Agreement and to what extent has Pakistan availed itself

of the flexibility or latitude offered under TRIPS? What

are the salient features of the Act? What are the pro-

spects and challenges for the seed industry in Pakistan?

What are practical implications for farmers, especially

small farmers, who find it difficult to access protected or

certified varieties of seeds from the formal seed sector

due to physical and financial constraints? To what extent

the Act is able to reconcile Pakistan's conflicting obliga-

tions under the UN Convention on Biological Diversity

(CBD), the Cartagena Protocol on Biosafety (CPB) and

the International Treaty on Plant Genetic Resources for

Food and Agriculture (ITPGRFA)?

KEYWORDS

agriculture, biodiversity, food security, genetic resources,

Pakistan, plant breeders

1|INTRODUCTION

Pakistan is a member of the World Trade Organization (WTO) and a signatory of the Agreement on Trade‐Related

Aspects of Intellectual Property Rights (TRIPS Agreement). Pakistan is obliged, under Article 27(3)(b) of the TRIPS

Agreement, to provide protection of plant varieties either by patents or by an effective sui generis system or by a

combination thereof (WTO, 1994). Pakistan is also a member of the International Treaty on Plant Genetic

Resources for Food and Agriculture (ITPGRFA) which recognizes the right of farmers to save, use, exchange and sell

farm‐saved seeds. Agriculture plays a pivotal role in Pakistan's national economy. The traditional and age‐old

practice of saving, using, exchanging, and selling farm‐saved seeds is considered as the backbone of the agricultural

system in Pakistan because it is the main channel through which farmers get access to seeds. The Plant Breeders’

Rights Bill remained pending for more than 15 years. On 5 September 2016, Pakistan's National Assembly finally

adopted the Plant Breeders’Rights Act 2016.

Under the newly enacted Act, the protected varieties of seeds cannot be offered for sale, sold, marketed,

imported or exported, conditioned or multiplied without the authorization of the breeder (Plant Breeders’Rights

Act, 2016, s.22). The breeder has exclusive rights and is entitled to initiate civil proceedings against the persons

found infringing their rights (Plant Breeders’Rights Act, 2016, s.38). This protection is granted for 25 years in the

case of trees and vines and 20 years in the case of all other plants (Plant Breeders’Rights Act, 2016, s.24). The Act

aims at ensuring the availability of high‐quality seeds and planting material to farmers by keeping a check on poor

quality seeds and establishing a viable seed industry in Pakistan (Muhammad, 2016). The protections provided

under the Act are aimed at encouraging plant breeders and seed organizations in both public and private sectors to

engage in healthy competition in seed variety development and to invest in research and plant breeding.

This paper critically analyses Pakistan's new PVP legislation. Part II of the paper discusses Pakistan's response

to obligations under Art. 27.3(b) of the TRIPS Agreement; to what extent has Pakistan availed itself of the flexibility

or latitude offered under TRIPS and what are the salient features of the Act? Part III discusses the practical impact

of the PBRA 2016. It analyses prospects and challenges for the seed industry in Pakistan and evaluates prospects

and challenges for Pakistan as an agricultural country. This part focuses on practical implications of plant variety

protection for a vast majority of Pakistani farmers who lack financial resources to purchase protected varieties.

This part also emphasises how the PBRA 2016 conflicts with Pakistan's obligations under international treaties

related to agrobiodiversity and farmers’rights. Part IV concludes the discussion and highlights key concerns for

Pakistan.

2|PAKISTAN'S RESPONSE TO OBLIGATIONS UNDER ARTICLE 27(3)(b)

OF THE TRIPS AGREEMENT

Pakistan acquired membership of the WTO in 1995. Pakistan has ratified the TRIPS Agreement as all WTO

members are required to sign up to TRIPS Agreement as a requisite condition of their membership (Abbas &

Riaz, 2018). TRIPS Agreement required member states to provide some form of minimum protection for plant

varieties. Article 27(3)(b) stipulates that “[m]embers shall provide for the protection of plant varieties either by

patents or by an effective sui generis system or by any combination thereof”(WTO, 1994). TRIPS require the sui

generis system to comply with the basic principles of national treatment. Sui generis system's nature or regulations

are, however, not specified under the Agreement.

The best policy option for the WTO Member States is to avail themselves of the TRIPS flexibility, under Article

27(3)(b), to exclude plants from patent protection. It is a wise policy option for the WTO Member States to “avoid

the monopolization of plant genetic resources, including their parts and components, such as genes”(Correa, 2014).

Moreover, complex problems arise from the patenting of plant‐related materials (Correa, 2014). For instance,

“seeds may be self‐reproduced, or a single plant may incorporate several patented gene constructs or components,

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