This thesis is divided into seven chapters including this introductory chapter and the conclusion. Chapter 2 explores the current situation in Nigeria concerning plant variety protection. This exploration helps to understand how the obligation to protect plant varieties applies to Nigeria and what type of plant variety protection system is best suited to Nigeria. The chapter begins with the international obligations Nigeria is signatory to, alongside relevant domestic institutions
44 responsible for implementing these obligations. Although Nigeria does not have a plant variety protection system, this chapter highlights the existing legislation regulating the registration and release of new plant varieties. Furthermore, the chapter investigates seed systems and farming practices. It finds that over 80 per cent of the farmers in Nigeria are small-scale farmers who mostly engage in traditional farming practices and source their seeds from the informal seed sector. Thus, the chapter argues that the plant variety protection system suited to Nigeria is one that takes into consideration the interests of both private seed companies and small-scale farmers. What exactly are the different options for the protection of
plant varieties under TRIPS? Why should Nigeria consider choosing a creative sui
generis system over patents or UPOV ‘plant breeders’ rights’? These questions and more are answered in Chapter 3.
Chapter 3 examines the different conflicting plant variety protection systems allowed under TRIPS, explaining the benefits and drawbacks of each of these systems for Nigeria. The systems examined are patents, UPOV plant breeders’
rights system, creative sui generis systems which incorporates legal principles
suited to a country, or a combination of two or more of the aforementioned systems. Using the TWAIL lens, the chapter engages with the debates regarding each of these systems, particularly teasing out the divergences in the Global North and Global South debates. In answer to the central research question about the plant
variety protection system best suited to Nigeria, the chapter finds that the sui
generis system is best suited to Nigeria because it protects the interests of both small-scale farmers and private seed companies (commercial plant breeders). Indeed, Nigeria, as part of the African Group, along with other Global South WTO
members, express preference for the sui generis option at the TRIPS Council.
Nonetheless, Global South countries are increasingly relinquishing the choice offered under TRIPS by designing UPOV plant breeder’s rights systems. Consequently, Chapter 4 investigates factors that influence this proliferation of UPOV plant breeders’ rights systems in Africa.
45 Chapter 4 begins with the African Model Law, which embodies the African position on plant variety protection. Notably, reflecting the TWAIL approach of creating bottom-up alternatives, the African Group went a step further to construct
an African Model Law which presents creative sui generis guidelines for African
countries seeking to design plant variety protection systems. However, rather than drawing inspiration from the African Model Law, African organisations such as OAPI, and countries such as Kenya, South Africa, Tanzania, Tunisia, Morocco, and South Africa have gone the UPOV way. African organisations such as the African Regional Intellectual Property Organisation (ARIPO) and the Southern African Development Community (SADC) have also initiated the process of joining UPOV. Although Nigeria is not a member of any of these regional associations, understanding the rationale for UPOV’s proliferation in Africa is useful, particularly because of the geographical closeness, similar cultures, and farming practices. In answer to the subsidiary research question about variations in plant variety protection systems in the Global South, this chapter finds that factors such as trade agreements, regional associations, pressure from seed companies, and UPOV office lobbies influence the proliferation of the UPOV plant breeders’ rights system and disregard for the African Model Law in Africa. However, as will be seen in Chapter 5, not all Global South countries have succumbed to the pressure to join UPOV.
Chapter 5 investigates how and why India and Thailand translated the common
Global South position – which advocated for a sui generis system – into domestic
legislation. While India and Thailand experienced pressures to join UPOV similar to the African countries in Chapter 4, vibrant CSOs contributed to resisting UPOV
lobbies and the successful design of creative sui generis systems. India and
Thailand exemplify the TWAIL approach of implementing international laws in ways that address the needs and aspirations of marginalised peoples – in this case, small-scale farmers. This is because the Indian and Thai plant variety protection systems both incorporate provisions that reflect small-scale farmers’ interests, such as the protection of farmers’ varieties, as well as farmers’ rights to save and reuse
46 seeds. As such, this chapter further contributes to answering the subsidiary research question about variations in plant variety protection systems in the Global South.
Chapter 6 revisits the Nigerian case study. The analyses in Chapters 2 to 5 reveal that plant variety protection is not simply a linear process. That is, there are a variety of factors that influence the introduction of national plant variety protection
systems. Notably, the thesis finds that while India and Thailand were designing sui
generis systems, Nigeria was under a strict military regime which did not prioritise the fulfilment of international obligations. Furthermore, although Nigeria has not experienced any of the factors that influence the proliferation of UPOV plant breeder’s rights within Africa, such as trade agreements, regional associations, pressure from seed companies, and UPOV office lobbies, it also does not have
vibrant CSOs that can push for a creative sui generis system in the country. While
Nigeria does not have a plant variety protection system, the chapter unpacks the plant variety protection provisions in its IPC Bill. The analysis in this chapter contributes to answering the second central research question about how to
introduce the proposed creative sui generis plant variety protection system suited
to Nigeria.
Chapter 7 concludes the thesis by synthesising the main findings in Chapters 1 to 6. It further sets out recommendations and suggestions for further research.
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