Plant Breeders’ Rights

The preparation of a book like Enforcement of Intellectual Property Rights in Africa (Oxford University Press, 2020), is a task that is both Herculean as well as Sisyphean. Herculean, because, with nearly 60 separate jurisdictions to cover, the enormity of the task cannot be overstated. Sisyphean, though, due to the impossibility for a book of this nature to be up to date and accurate; even before it is published, laws and situations will likely have changed in one or several jurisdictions. These two factors were clearly on the minds of the authors.

Unlike its West African neighbour, Ghana, where there is a flurry of debates around plant variety protection (PVP), there is silence on the subject in Nigeria. This silence is note-worthy because Nigeria has pending obligations under Article 27.3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to introduce a PVP system. However, the silence should not be equated with absolute legislative inactivity around the subject in the country. Indeed, from 2006, there have been unsuccessful attempts to introduce a PVP system through intellectual property (IP) law reforms.

While it may not be explicitly evident, several statutory tools are available to plant breeders to facilitate the protection of their creations in the market. The primary tool remains plant breeders’ rights (PBRs). An examination of legislation available in Kenya illuminates other mechanisms as well, these being seed certification requirements and anti-counterfeiting legislation. 

Since TRIPS is extremely flexible on the PBRs regime to be adopted, they should obtain guidance from other balanced international instruments such as ITPGRFA. Further, they can obtain vital lessons from states such as India.