Understanding Intellectual Property Rights in the Context of Food Systems

 

Traditionally, African farmers have innovatively maintained and shared a rich cultural heritage of seed collection depending on desirable traits (Kuyek, 2002) cognizant of the value of a large seed collection. Using their traditional knowledge, farmers were able to obtain from every harvest the best seed for the next season. When one visited family or friends, it was a common occurrence for the farmer to return with unique yet desirable seeds. The collection and saving of desirable varieties helped promote seeds with desirable traits (food diversity and healthy foods). The rich traditions and knowledge was freely passed down over generations (Kuyek, 2002). Embracing free trade and the competition that comes with free trade, these traditions are gradually vanishing as farmers scramble for a common market.  To be able to compete in the common market, farmers are faced with the dilemma of choosing between the local and the aggressively promoted high yielding modified varieties.  This has pushed local varieties to the peripheral in favor of the vastly promoted improved varieties considered high yielding and more resistant to pests and diseases.  Overlooking the fact that local varieties provide for 80% of the local food in Africa (AFSA, 2019) and are better adopted to the local conditions. Improved seeds on the other hand require high maintenance and are expensive as they require purchasing every season.

A cereal grinder in a mill at Fort Portal, Uganda 

 

While African knowledge and technology is freely handed down through generations, “improved’ varieties are grounded in intellectual property rights (IPRs) only reproducible by the inventors. These patented varieties have swarmed the global market displacing local varieties. Free trade has therefore created a common market established on uneven ground as African farmers compete with established multinational farmers whose patented technologies dominate the market. To survive the competition that comes with free trade, farmers are obliged to shift from local varieties to the “improved” high yielding seeds. This has not only resulted in the gradual decline in use of local varieties, a threat to food security and sovereignty, but has challenged the survival and existence of small-scale farmers whose knowledge and technology has remained in the rim of the public domain.

 

In traditional Africa, although particular people were custodians of specific indigenous knowledge, knowledge in general and agricultural knowledge in particular was solely communal. This tradition was later reinforced by publicly funded research whose results remained open to the public. As farmers, my parents have always meticulously observed their harvests, selecting the next seed based on the best harvests, information and seed they unreservedly shared. This practice maintained the seed stock for generations, and my memories as a child helping with shelling beans are those of multiple varieties of seeds.  It was very thrilling seeing all these different colors (varieties) as we shelled the beans. Today, shelling beans produces a single colored bean variety, a result of mono-culture breeding closely linked to IPRs. 

Sacks of different varieties of millet and corn at the mill

 

IPR knowledge and understanding in Africa remains low with technology development marred by pirating and illegal duplication, creating a disincentive to the inventors. The lack of proper understanding of IPR leaves many countries without a proper promotion, implementation and monitoring structure. For Africa to promote the local varieties and preserve their stock there is a need to understand and exploit the value of IPR for their benefit. Most countries in Africa do not have well defined rules and regulations on IPR (Kameri- Mbote, 2005), with some still depending on regulations set during the colonial times or a copy and paste from donor countries that do not reflect the needs of the local community. The laxity in the system is associated with a shortage of scholars in IPR; with a country like Uganda with a handful of IPR legal experts (Van Woensel, 2021 personal communication). This has translated into high levels of pirating and illegal use of copyrights.  The end game has been a loss of motivation as traditional knowledge is maintained as public property and local communities turned into consumers of patents while proprietors enjoy the ridiculous profits associated with IPRs.

 

Although IPRs may be an incentive for disclosure as inventors are financially rewarded for their inventions (Van Woensel, 2021 personal communication), to some extent introduction of IPRs established an element of knowledge “hoarding” and commercialization where one owns a right and only realizes it for commercial purposes.  In agriculture, the lucrative IPRs have increased enthusiasm in research and innovation by the private sector causing knowledge confinement and inaccessibility by those with less purchasing power (Drahos, 2016) while capitalists amass wealth.  IPRs have therefore facilitated a market concentration dominated by multinational co-operations causing an anti-competitive behavior (ActionAid, 2002) where only a few players are able to compete. This is well elaborated in public research done by the Consultative Group on International Agricultural Research (CGIAR) Centers like International Institute of Tropical Agriculture (IITA) where technologies are developed and freely shared and researchers recognized for the exemplary work.  This has enabled publicly funded research, with minimal IPR restrictions, to continue flourishing as a public product accorded equal accessibility for all. In collaboration with the CGIAR centers, National programs have developed new varieties resistant to deadly diseases and pests such as cassava mosaic virus that had threatened the existence of cassava (Manyong et al., 2000), Honduran Foundation for Agricultural Research (FHIA) bananas resistant to fusarium wilt (Ploetz, 2015) among many others. On the contrary, private sectors like Bayer Monsanto, although they may depend on public funds to facilitate part of the research, have developed new seed varieties under extended IPRs only commercially accessible by the wealthy.

 

Short-term restrictive IPRs promote creativity and innovation and promote the wellbeing of the community as they allow room for generics which are cheaper and at times are improved versions. For example, in Uganda, the development of a generic HIV/AIDS drug by Cipla Quality Chemical Industries (CQCI) was able to bring down the cost of medication from $16,000 to $100 per annum and saved the lives of millions who still depend on the generic drug (Charon and Soustras, 2020). Prolonged and exaggerated restrictions especially in sectors pertinent to human survival like agriculture and health are a concern particularly for technologies heavily supported by public funds.  There has been ashift in the duration and scope of IPRs from the initially shorter, geographically limited scope to a globalised system (Shah, 2013).  This has been linkedto the high profit margins associated with IPRs. To further consolidate their profits, IPRs were globalized through an introduction in the World Trade Organization (WTO). Globalization of IPRs has been effected by the World Trade Organization (WTO) under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) (Drahos, 2016). Introduction of TRIPS meant price hikes due to IPR’s related royalty payments on innovations. These unconscionable restrictions have left IPRs a subject of discussion with a thin line between the interests of proprietary holders and users of the technology (Drahos, 2016). TRIPS (Trade-related aspects of intellectual property rights) was instituted as a tool to ensure participating WTO countries abide by the rules to curtail losses incurred through plagiarism, pirating and illegal copying. However, the pervasive patenting of innovations through TRIPS was initiated with selfish intentions leading to a slow diffusion and utilization of new inventions in the less developed economies.  Thus the regulations of TRIPS have tended to destroy the actual essence of creativity and innovation, raising the question of the ethics of IPRs. 

 

Although IPRs are meant to be an incentive for disclosure, extended patents may cause a market failure due to the exclusion factor (Selgelid, 2008). This is elaborated in the HIV/AIDS prevalenceas millions of lives were lost in low income countries due to ridiculous prices for anti-retroviral drugs creating drug inaccessibility. The impact of medication accessibility still lingers-on 30 years after the on-set of HIV/AIDS. Bread winners were wiped out, households left under the care of teenage kids and the mother to child transmission resulted in millions of deaths and suffering of children.  Children born with HIV/AIDS continue facing the consequences of an avoidable problem. Motivated by the records of patenting, giant companies continue in the “game of profits” as the COVID 19 vaccine rolls out.  It should be noted that human life is more than a game and a gamble between profit making giants. Countries should be able to have a civil conversation and agree to regulations that protect humanity.

 

TRIPS recognizes the challenges of struggling economies through the provision of flexibilities under a national emergency. However, the standard definition of national emergency has remained a contentious issue, with some countries threatened with sanctions if compulsory licensing is applied. When is it an accepted national emergency?  Is COVID 19 considered a state of emergency for some countries?  Meanwhile, the fear of the unequal COVID 19 vaccine roll-out is real in the developing economies as expressed by Adekunle (2020), in his piece based on the Socratic Method -Iatrogenic: The Dilemma of Ingenuity. Knowing more pandemics are likely, what options do we have?  For sure IPRs should be utilized to promote technological innovation while promoting the transmission and diffusion of innovation for the mutual benefit of everyone. It is necessary to revisit the regulations of TRIPS with clearly defined rules and regulations governing the implementation of IPR and application of compulsory licensing.

 

As mentioned earlier developing economies especially Africa, lag in their knowledge and ability to analyze, construe and implement IPRs. As a result, African farmers have perpetually remained a consumer rather than beneficiaries of IPRs as their government officials are unable to favorably negotiate for their people. Countries need to take an initiative in developing capacity in understanding and managing IPRs for a meaningful negotiation and leverage the regulations to their advantage. For Africa to develop and have an equitable benefit from IPRs, there should be a strengthening of the South – South regional partnership in innovation (Shah et al., 2013). Countries should work together to strengthen their understanding of IPR and use the regional networking to lower costs and enhance their R&D through shared infrastructure, expertise and knowledge.

 

Reference

Aakash Kaushik Shah, Jonathan Warsh, and Aaron S. Kesselheim (2013).  The Ethics of Intellectual Property Rights in an Era of Globalization.

ActionAid, 2002.  From Rhetoric to Rights: Towards gender – Just Trade. from_rhetoric_to_rights_towards_gender-just_trade_actionaid_policy_briefing.pdf

Adekunle, B., 2020. Iatrogenic: The dilemma of Ingenuity.

AFSA, 2019. African farmers’ seed rights threatened: An AFSA briefing Paper. Alliance for FoodSovereignty in Africa.   African Farmers’ Seed Rights Threatened : an AFSA briefing paper – AFSA (afsafrica.org)

Drahos. P., 2016.  The Real News Network. (2016, October 22). TRIPS: Linking Intellectual Property to Trade - Peter Drahos 1/7 [Video]. YouTube. https://www.youtube.com/watch?v=BCJ2cDgoZ_Q

Kameri- Mbote. P., 2005.  Intellectual Property Rights in Africa: An Assessment of the Status of Laws, Research and Policy analysis on Intellectual Property Rights in Kenya. IELRC working paper. Intellectual Property Protection in Africa (ielrc.org)

Manyong, V.M., Dixon, A.G.O., Makinde, K.O., Bokanga, M. and Whyte J. (2000).  The contribution of IITA-improved cassava to food security in sub-Saharan Africa: an impact study. Nigeria. IITA and Modern Design & Associates Ltd.

Ploetz R. C., 2015. Fusarium Wilt of banana. Phytopathology.  APS Publications.105: 1512- 1521.  Fusarium Wilt of Banana | Phytopathology® (apsnet.org)

Selgelid, M. J. ‘A Full-Pull Program for the Provision of Pharmaceuticals: Practical Issues.’ Public Health Ethics 1.2 (2008): 134–45.

Shah, K. A., Warsh, J and Kesselheim., A. S., 2013. The Ethics of Intellectual Property Rights in an Era of Globalization Journal of Law, Medicine and Ethics 41 (4):841-851 (2013).

Van Woensel, 2021. Personal communication. Examiner at European Patent Office.

 

Christine Kajumba Kaahwa

Food and Digitalization Expert

Guest Contributor

ECV Ontario