Using the unused policy space in intellectual property law to ensure food security

ARC Australian Laureate Fellowship

In the wake of the World Trade Organizations’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), member countries are required to protect biological innovations under intellectual property laws, of one form or another. One of the challenges facing many countries is how to build legal regimes that are suited to, and appropriate for, cultural, social, political, and agricultural needs of local peoples. The aim of this project is to investigate the realm of what scholars have called the ‘unused policy space’ that exists in intellectual property lawmaking to achieve these ends. The project builds upon the idea that there is no ‘one-size-fits-all’ solution for tackling the complex range of problems faced by actors across disparate food and agricultural systems. Thus, it is important to elucidate where flexibilities remain for experimentation in intellectual property lawmaking.

Focusing on Ecuador, Nepal, and Sri Lanka the project aims to identify the opportunities that exists in intellectual property law to craft legal regimes suited to local needs.  Ultimately, the project aims to contribute both to international legal scholarship and national lawmaking initiatives by identifying how the goal of building food security can be promoted through intellectual property laws that are meaningful to local populations. Building on this, we plan to look both at flexibilities with the relevant legal regimes (particularly in relation to the adjectival or procedural dimensions of the law) and at localised responses spearheaded by farmers, scholars, and activists around the world. The project will critically review such initiatives to assess their impact and success. Some relevant experiments in lawmaking include the way distinctiveness, uniformity, and stability criteria are applied, the registration of farmers’ plant varieties, protection of essentially derived varieties, defensive patenting, humanitarian clauses, traditional knowledge databases, and the notion of juridical commons for food and agriculture.