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31.08.2014 Special Report

REVEALED: A Private Memo From Nana S. K. B. Asante Pointing To Flaws In The Plant Breeders Bill

By The Insight Newspaper
REVEALED: A Private Memo From Nana S. K. B. Asante Pointing To Flaws In The Plant Breeders Bill
31.08.2014 LISTEN

The Insight has managed to obtain a copy of a memo authored by Nana S.K. B. Asante, easily Ghana most experienced negotiator with transnational corporations on the Plant Breeders Bill.

The Memo was addressed to Professor F.K. A Aclotey, President and all members of the Sub-Committee of the Ghana Academy of Arts and Sciences on the Plant Breeders Bill.

Nana Asante states in very clear language that some of the state objectives of the Bill are not realizable and that it could also lead to a situation in which resources would be siphoned out of the country.

He wrote in the circumstances, the confidence and sanguine assertion that the “Bills will encourage foreign breeders and local breeders to contribute to the development of the agricultural sector, resulting in technology transfer and know-how as new variety enter the trade channels” is with great respect, a piece of wishful thinking….

The full text of the memo is published below;
4th February, 2014.
Professor F.K.A Allotey
Cc: Members of Subcommittee on Ghana Plant Breeders Bill

Dear Mr President and colleague members of the subcommittee,

I must first, apologize for my inability to attend the meetings of the subcommittee due to my indisposition.

I have read the report of the Sub Committee which broadly approves of the main substance of the Plant Breeders Bill. I note with satisfaction that apart from evaluating the scientific merits, considerable attention was paid to the intellectual property aspects of the Bill. While I am not competent to pronounce on the scientific aspects of the matter, I do have some comments on the IP implications of the Bill. My comments are informed by my long professional involvement in the relations between transnational corporations (TNCs) and developing countries, the claims of TNCs about the benign and beneficial impact of the operation of IP rights in the industrial sector on development and my experience of the operation of the legal regime for the transfer of technology in the country and in a number of other developing countries. I recently undertook a project towards the revision of Ghana's Technology Transfer Regulations. The results were by no means reassuring.

An analysis of the Bill should be preceded by an examination of the Memorandum of the Bill, which elaborates the rationale for the proposed legislation and the benefits that would accrue from the implementation of the Act. The memorandum claims inter alia that:

“Variety Protection is particularly relevant at this time when plant breeders are being encouraged to increase their contribution to the development of agriculture in the country and the seed supply system. The protection of plant breeder rights is currently required to support plant breeding activities realized by the private and public breeding activities. Currently, arable land and other

resources needed for agricultural production worldwide are scarce. In view of the potential for productivity growth in Ghana, the provision of better seeds to farmers will result in increased yields on the same piece of land which will thereby enhance the economic development of the country. It is therefore critical that the country creates and promotes an enabling environment for the stakeholders in the agricultural sector especially the seed industry through the development of policies and strategies to ensure food security and increase the efforts of the country on international markets. Food security can be improved by breeding and making available to farmers seeds of high yielding varieties that are not only adaptable to our environment but have good taste and nutritional qualities.

The Bill will encourage foreign breeders and local breeders to contribute to the development of the agriculture sector of the economy, resulting in technology transfer and know how, as new varieties enter the channels of trade.

The Bill seeks to promote agriculture which will complement the committed initiative of the Ministry of Food and Agriculture in the development of the seed industry, as well as on going reforms in the agriculture sector. The Ministry of Justice is responsible for the administration and implementation of intellectual property rights under TRIPS and invariably has a joint responsibility with the Ministry of Trade which is entrusted with the responsibility to comply with Ghana's international obligations under TRIPS. The emerging consensus among stakeholders indicates that variety protection can produce benefits by increasing the scope of plant improvement and help farmers to break out of the cycle of subsistence farming.”

The notion that the mere fact of protecting IP rights will increase plants breeder's contribution to the development of agriculture should be treated with considerable skepticism, if the experience industry is evaluated. No significant contribution to industry has resulted from the bare fact of intellectual property protection. Such protection assures exclusive ownership and use to the registered owners, unless the rights are assigned or licensed to entities. The process of such transfer is riddled with conditions and restrictions which make the so called transfer largely illusory. The concern expressed by developing countries over this process were so grave that

they prevailed on UNCTAD to initiate a negotiation of an international code of conduct to regulate transfer of technology some 20 years ago. In the result TNCs of the industrialized world blocked the negotiation which aborted the Code. My own research into the technology transfer agreement such as licensed agreements, know-how agreement and technical assistance in Ghana disclose that these have proved to be notorious devices for transferring non taxable royalties and other fees from Ghana, without any meaningful transfer of technology to indigenous Ghanaian entities.

In the circumstances, the confident and sanguine assertion that the “ Bill will encourage foreign breeders and local breeders to contribute to the development of the agricultural sector, resulting in technology transfer and know-how as new variety enter the channels of trade” is, with great respect, a piece of wishful thinking. It is an illusory expectation bereft of any empirical evidence. If the Ministry of Agriculture has any empirical evidence of such technology transfer from any developing country, it should display it. Apart from the general observation, let us consider some of the practical implications of the provisions of the registration of foreign IP rights in Ghana in this sector.

According to section 9 of the Bill, virtually any foreign entity or person may apply for registration of a variety of seed in Ghana. The only requirement is that such a foreigner must come from a country with which Ghana has a treaty relationship, whatever the treaty may be. This means that all UN member countries qualify. A foreign entity or person need not be present or operate in Ghana before registration. It can appoint an agent to do so in Ghana on its behalf. It can therefore protect its rights in Ghana without the slightest intention to invest in Ghana or to transfer its technology relating to variety in Ghana. If the experience in industrial technology transfer is any guide, such transfer agreement, if it does take place, will be subject to payment of royalty and numerous restrictions. For example, any refinement of the variety by Ghanaian farmers could be prohibited or appropriated by the foreigner. The owner could also limit the geographical area of operation. An entity in Mongolia or Vancouver could dictate the operation of Ghanaian farmers.

Another practical issue is the registration process.

Foreign companies, with their vast resources, are likely to complete registration of a variety even if Ghanaian scientist has a similar variety, by virtue of the expeditious delivery of registration requirements. This affects two categories of Ghanaian operations namely, our scientist and our traditional farmers.

It is argued that our scientists would benefit from registering their varieties. That may well be true.

However, our past experience has demonstrated that our scientific community has, with the greatest respect, not been particularly successful in marketing their discoveries. A smart foreign entity, equipped with resources, could easily overshadow our scientists in the market place, even though I appreciate that our scientific community has produced excellent plants or seed varieties. The other aspect is that the commercial nature of the process would compel our traditional farmers to “buy” the new varieties from our scientist. This would violate the main rationale of investing public funds for the research of the scientific community which has been seen as our national assistance to the farming community . They would also be constrained by the onerous obligation to buy from foreigners.

Furthermore, how would traditional farmers fare under this new regime? They cannot compete with TNCs for the protections of varieties which they have developed through their tried and tested methods of traditional farming. My colleagues have pointed out that section 21 of the Bill would protect them. Nobody can predict the extent to which our enforcement agencies can resist the aggressive salesmanship of foreign companies. Furthermore the protection given by section 21 is rather limited. It purports to protects farmers ' personal use of their varieties on their own holdings for the purpose of the propagation of the product of harvest which they have obtained on their own holdings. This calls for a definition of “their own holdings”. Are they debarred from large scale production of their varieties outside “their own holdings” ?

In any case, as pointed out above, they cannot use protected foreign variety or varieties developed by locals scientists without paying for them. How will such a situation be conductive to increase in productivity on their part? Farmers are likely to be priced out of the market and reduced to a landless peasantry, a phenomenon evident in other countries.

My concluding remarks have to do with the effectiveness of the proposed regulatory machinery for the new legal regime governing varieties . The experience of Ghana in regulating transfer of technology in the industrial sector makes me extremely skeptical about the prospects of an effective, transparent, objective and fair minded determination by the Registrar or other responsible authorities designated in the Act. For example, the determination of the requirements for the protection of the IP namely: “new, distinct, uniform and stable”. What assurance is there that existing variety in Ghana cannot by some slight foreign infusion be characterized as “new” and therefore entitled to protection to the exclusion of the Ghanaian breeders.

We should also be mindful of the resourcefulness and ingenuity of the Ghanaian farmers whose labours produced and sustained the cocoa industry which has remained the mainstay of Ghana's economy. Professor George Benneh has rightly admonished us that “Technology must consult Traditions”. We should not create a situation where our indigenous knowledge in agriculture, acquired with the sweat and toil of our fore fathers is appropriated or marginalized by unscrupulous foreign operators and their Ghanaian surrogates by virtue of their dexterity in registering “new varieties”.

Since the sub-committee reports has already been sent to the speaker, I shall send a copy of my comments to the Deputy Attorney General Dr Ayine whom I had discussion on this matter.

Respectfully Submitted,
Nana S.K.B Asante
(Past President of GAAS)

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