Understanding Global Intellectual Property Systems for Plant Genetic Resources

Who owns a plant variety? The answer to that question has shaped global agriculture, trade policies, and the livelihoods of millions of farmers for nearly a century. Intellectual property rights (IPR) for plant genetic resources sit at a complex intersection of science, commerce, food security, and traditional knowledge. Understanding how these systems evolved – and the tensions they create – is essential for anyone interested in sustainability and global food systems.

How plant intellectual property rights began 🔗

The idea of granting exclusive rights over plant varieties is relatively recent. Before 1930, plants were generally considered products of nature and thus ineligible for patent protection under existing laws. That changed when the U.S. House passed the Plant Patent Act of 1930, specifically to protect the intellectual property of horticulturalists who developed new fruits, flowers, and other flora. The law covered only asexually reproduced plants – those propagated through grafting, cuttings, or budding – and did not extend to seeds, grains, or potatoes.

During the 1930s and 1940s, private companies accounted for roughly 55 percent of plant rights; by the 2000s, that figure had risen to 82 percent. Meanwhile, in Europe, countries like Germany and Hungary developed their own approaches to plant variety legislation during the same era. This early movement laid the groundwork for the private monopolisation of plant breeding and the growing belief that breeders deserved exclusive commercial rewards for their innovations.

The next major milestone in the U.S. came in 1970 with the Plant Variety Protection Act, which extended IP coverage to sexually reproduced crops such as grains and oilseeds. This law included a “breeders’ exemption” allowing others to use protected varieties for further breeding, and a “farmers’ exemption” permitting farmers to save seed for their own use. These exemptions would later become flashpoints in global debates over who truly controls plant genetic resources.

The rise of plant breeders’ rights on the international stage 🔗

As commercial plant breeding expanded beyond national borders, the demand for international coordination grew. The original push to establish IP rights for plant varieties came from European breeding companies, trade associations like ASSINSEL, and the International Chamber of Commerce in the 1950s, when plant breeding became economically promising enough to attract significant private sector interest.

UPOV: the cornerstone of plant variety protection 🔗

These efforts culminated in the creation of the International Union for the Protection of New Varieties of Plants (UPOV). UPOV was established by the International Convention for the Protection of New Varieties of Plants, adopted in Paris in 1961, and subsequently revised in 1972, 1978, and 1991. The convention’s goal was to encourage the development of new crop varieties by granting breeders exclusive rights over their creations.

Under the UPOV system, a plant variety can be protected if it meets the DUS criteria – it must be distinct from existing varieties, uniform in its characteristics, and stable over repeated cycles of reproduction. Distinctness means the variety must be clearly distinguishable from any other known variety; uniformity requires that variation within the variety is limited enough to permit accurate description; and stability means essential characteristics remain consistent even after repeated propagation.

The first version of the UPOV convention in 1961 was signed by 12 European countries, and by 1990, only 19 countries had joined – with South Africa being the only Southern Hemisphere member. The dramatic expansion came later, largely driven by trade pressures. By the mid-2000s, 58 states from all continents had acceded to the UPOV Convention.

Key differences between UPOV 1978 and UPOV 1991 🔗

The 1978 and 1991 Acts of UPOV represent significantly different approaches. Each revision strengthened plant breeders’ rights, and today most UPOV member countries are bound to UPOV 1991, though a few remain under UPOV 1978. UPOV 1978 included an implicit farmers’ privilege – farmers could save and replant seeds of protected varieties without the breeder’s authorisation, so long as it was for non-commercial use.

UPOV 1991, however, tightened these provisions considerably. Under UPOV 91, national governments may allow farmers to reuse harvested seed on their own holdings only as an optional exemption, but exchange and marketing of seed from protected varieties without the breeder’s authorisation is prohibited. This shift alarmed many developing countries and farmer advocacy groups, who saw it as a threat to traditional seed-saving and sharing practices that underpin food security in much of the world.

TRIPS and the globalisation of plant IPR 🔗

The most transformative force behind the spread of plant variety protection worldwide was the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), adopted in 1994 under the World Trade Organization. TRIPS was the first and only IPR treaty to establish universal minimum standards of protection across all major fields of intellectual property, and its adoption did more to encourage the legal protection of plant varieties than any other international agreement.

Article 27(3)(b) of the TRIPS Agreement requires WTO members to provide protection for plant varieties either through patents, an effective sui generis system, or a combination of both. Critically, TRIPS does not mandate UPOV membership – it leaves flexibility for countries to design their own protection systems. This flexibility has been important for developing nations seeking to balance breeder incentives with farmer welfare.

Despite this legal flexibility, many countries have been pushed to join UPOV through specific clauses in bilateral trade agreements, particularly with the EU, the USA, Japan, and EFTA. The result has been a rapid expansion of UPOV-style plant variety protection across the developing world, sometimes without adequate consultation with the farmers most affected.

Developing countries and sui generis alternatives 🔗

Not all countries have followed the UPOV template. Several developing nations have created their own legislative frameworks that attempt to balance breeders’ rights with the needs of smallholder farmers. India is a prominent example – its Plant Variety Protection and Farmers’ Rights Act contains provisions for benefit sharing, acknowledging local communities as contributors of landraces and farmer varieties used in breeding new plants. India is not a UPOV member, yet it has one of the most dynamic seed sectors among developing countries.

Many developing nations, particularly in Africa, have resisted ratifying the 1991 Act; the African Union called for a hold on IPR protection until an Africa-wide system granting greater recognition to indigenous cultivation practices could be developed. Countries like China and Thailand have also opted for protection systems that deviate from the UPOV model in significant ways.

These sui generis systems often include stronger provisions for farmers’ seed-saving rights, benefit-sharing mechanisms, and recognition of traditional varieties – elements that UPOV’s standardised framework tends to overlook.

The farmer vs. breeder rights tension 🔗

At the heart of the global plant IPR debate lies a fundamental tension: the rights of commercial plant breeders versus the rights of farmers who have cultivated and conserved crop diversity for millennia.

Private breeding firms have long argued that without IP protection, they cannot recoup the significant investment required for developing improved varieties – an argument that intensified as biotechnology raised research costs dramatically. Modern plant breeding using genetic engineering, marker-assisted selection, and genomic tools requires substantial capital. Stronger IPR protections through patents or PVP certificates became the primary mechanism for ensuring returns on these investments.

On the other side, farmer organisations and developing countries – often with FAO support – have pushed for the recognition of farmers’ rights. For thousands of years, farmers have selected, saved, exchanged, and improved seeds. These practices are the foundation of the crop genetic diversity that modern breeders depend upon. Yet under strict IP regimes, particularly UPOV 1991, farmers’ traditional practices of saving, exchanging, and selling seeds of protected varieties are restricted, and in many developing countries, small-scale farmers lose access to an inexpensive source of seeds while commercial alternatives remain unaffordable.

The Convention on Biological Diversity and traditional knowledge 🔗

The Convention on Biological Diversity (CBD), adopted at the 1992 Earth Summit in Rio de Janeiro, brought a new dimension to these debates. The CBD was the first international treaty to address three interconnected goals: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from genetic resources.

Article 8(j) and the protection of traditional knowledge 🔗

For plant genetic resources, the CBD’s most significant provision is Article 8(j), which requires parties to respect, preserve, and maintain the knowledge, innovations, and practices of indigenous peoples and local communities that are relevant for the conservation and sustainable use of biological diversity. It also calls on parties to promote the wider application of such knowledge with the approval of its holders and to encourage equitable benefit-sharing.

However, despite this recognition, traditional farmer knowledge has received insufficient attention under most IP frameworks. The formal requirements of patent systems and UPOV-style protection – with their emphasis on novelty, uniformity, and distinctness – are fundamentally misaligned with the way farmers develop and maintain crop varieties. Landraces and traditional varieties are typically diverse, evolving, and collectively managed. They do not fit neatly into an IP system designed for commercially bred, uniform varieties.

The Nagoya Protocol and benefit-sharing 🔗

The Nagoya Protocol, adopted in 2010 and entered into force in 2014, provides a legal framework for the fair and equitable sharing of benefits arising from the utilisation of genetic resources. Under this protocol, parties must ensure that traditional knowledge associated with genetic resources is accessed with prior informed consent (PIC) and on mutually agreed terms (MAT) with the indigenous and local communities that hold this knowledge.

The more recent Kunming-Montreal Global Biodiversity Framework, adopted in 2022, has further strengthened the focus on indigenous rights and knowledge systems. The framework explicitly acknowledges indigenous peoples and local communities as custodians of biodiversity and partners in conservation. Still, translating these international commitments into meaningful on-the-ground protections for farmers remains a significant challenge.

The role of the FAO and the International Treaty on Plant Genetic Resources 🔗

The Food and Agriculture Organization (FAO) has played a crucial role in advocating for equitable governance of plant genetic resources. The FAO’s International Undertaking on Plant Genetic Resources, adopted in 1983, was one of the first instruments to frame plant genetic diversity as a common heritage of humanity. Though not legally binding, it established the principle that genetic resources should be freely available for plant breeding and scientific research.

Until the International Treaty on Plant Genetic Resources for Food and Agriculture was adopted in 2001, the CBD was the only legally binding international agreement pertaining to the management of crop genetic resources. The Plant Treaty introduced the concept of a Multilateral System of access and benefit-sharing for a list of 64 of the world’s most important food crops, recognising that these resources are interdependent and cannot be managed under purely national ownership frameworks.

Crucially, Article 9 of the Plant Treaty formally recognises farmers’ rights – including the right to save, use, exchange, and sell farm-saved seed. However, the realisation of these rights is left to national governments, and progress has been uneven across countries.

Biotechnology and the push for stronger IPR 🔗

Advances in biotechnology from the 1980s onward fundamentally changed the economics and politics of plant breeding. The ability to insert specific genes into crops, develop genetically modified organisms, and utilise molecular markers vastly expanded what could be patented. The 1980 Diamond v. Chakrabarty ruling by the U.S. Supreme Court established that living organisms made by human effort could be patented, opening the door to utility patents on plant varieties and gene products.

These developments led to an unprecedented concentration of power in the seed industry. Large multinational corporations invested heavily in both R&D and IP portfolios, often acquiring smaller breeding companies. The rising cost of research became a justification for stronger patent protections – but it also raised concerns about restricted access to genetic materials essential for public-sector breeding and food security in the developing world.

Looking ahead: balancing innovation and equity 🔗

The global IP system for plant genetic resources continues to evolve. Digital sequence information (DSI) on genetic resources – essentially, genomic data stored in databases – is now a major topic in CBD negotiations, raising new questions about benefit-sharing in an era where physical access to seeds is no longer necessary to exploit their genetic value.

The core challenge remains the same: how to incentivise investment in plant breeding while ensuring that the world’s crop genetic diversity – built and maintained by farming communities over millennia – is conserved, accessible, and equitably governed. No single international agreement has fully resolved this tension. UPOV prioritises breeders’ commercial rights. The CBD and the Plant Treaty emphasise conservation, sovereignty, and benefit-sharing. TRIPS sets minimum IP standards but offers flexibility in implementation. The question is whether these overlapping and sometimes conflicting frameworks can be harmonised in a way that serves both innovation and justice.

What do you think? Should traditional farmer knowledge receive the same level of IP protection as commercially bred plant varieties? And how can developing countries balance the pressure to adopt international IP standards with the need to protect their farmers’ seed sovereignty?

References

1. https://pmc.ncbi.nlm.nih.gov/articles/PMC4297641/
2. https://www.fao.org/4/y5714e/y5714e03.htm
3. https://www.farmersrights.org/international-negotiations/other-international-processes/the-convention-on-biological-diversity-cbd/
4. https://www.fao.org/
5. https://www.cbd.int/