Re-Discovering Policy Space For Plant Variety Protection Lawmaking: The Ecuadorian Experience

Abstract

The global landscape of intellectual property law changed dramatically in 1995. That year marked the finalisation of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, a treaty to which members of the World Trade Organization must adhere. Among other minimum standards that TRIPS establishes, the Agreement requires that World Trade Organization members protect plant varieties as intellectual property in their domestic laws. Subsequently, numerous bilateral and multilateral free trade agreements have increased the TRIPS minimum standards, including in ways that affect plant variety protections. These international instruments have prompted negative reactions from scholars, policymakers, and civil society activists, who have decried the imposition of international constraints on domestic legislative imaginaries.

 Yet at the same time, some prominent experts optimistically claim to have elucidated “policy space” that remains latent yet available in these international legal regimes. The quest for hidden flexibilities, for lacunae in which national-level lawmakers might innovate, has inspired prior proposals for how to maximise the policy space for intellectual property lawmaking that exists under the TRIPS Agreement. However, many of these analyses fail to take into account that the space available to numerous countries has been further reduced by bilateral and multilateral trade agreements.

In my doctoral research, I elucidate various options available to countries to creatively interpret the TRIPS requirement to enact intellectual property laws for plant variety protection. In so doing, I explore sets of possibilities for two categories of countries. On the one hand are options for countries that enjoy broad policy space, subject only to the requirements of the TRIPS Agreement. On the other are opportunities for countries whose policy space is narrow, due to the requirement that these States also comply with obligations delineated in other bilateral or multilateral agreements.

My project builds upon the case study of Ecuador, whose policy space is narrow because the country has entered into several international agreements in addition to TRIPS. In my research, I focus on the recent drafting and implementation of a comprehensive new framework for plant variety protection in Ecuador. In particular, my work considers how the new Ecuadorian regime has taken advantage of available flexibilities, while also identifying areas in which lawmakers’ ability to innovate was curtailed by international obligations.

Additionally, I seek to build upon prior proposals that have been launched for the utilization of policy space, which have focused on options available at the level of legislation (e.g., Correa 2015; Helfer 2004). In my work, I engage with these precedents while also delving deeper, shifting the point of inquiry from the legislative to the administrative realm. Thus, I focus on how regulations might be exploited to create plant variety protection systems that would be adapted to local realities, to protect the rights of a variety of national stakeholders. This research is intended to inform future lawmaking efforts, to ensure that countries are able to simultaneously protect domestic interests and uphold international obligations.

Biography

David is a PhD candidate at the TC Beirne School of Law, University of Queensland. David’s PhD project examines the theory, motivations, objectives, and expected impact of the new draft Ecuadorian intellectual property (IP) law, which is entitled the “Organic Code for the Social Knowledge and Innovation Economy of Ecuador” (the “Código Ingenios”).

David’s research focuses especially on components of the Código Ingenios that are relevant to Andean agricultural practices, food sovereignty, and traditional knowledge. However, the project also broadly investigates how the Código could represent a redefinition – or reconceptualisation – of legal frameworks granting intellectual property rights, both within Ecuador, regionally, and internationally.

David holds a Juris Doctorate (JD) degree from the University of California and a Masters of Arts in Community Psychology from Suffolk University. David has conducted work in the area of intellectual property law for several years, including under the auspices of a United States Fulbright Scholar grant, and as a Law & Policy Analyst with the Public Intellectual Property Resource for Agriculture (PIPRA), based at the University of California, Davis. David has lived in worked in multiple countries, but has a particular interest in Latin America.