Balancing Protection of Plant Varieties and Other Public Interests

Abstract

The interplay between intellectual property rights for new plant varieties and public interests, particularly farmers’ rights, is critically examined within the context of global agricultural practices and Sustainable Development Goals (SDGs). According to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), World Trade Organization (WTO) members shall establish a mechanism to grant effective protection to new plant varieties. There are two typical compliance mechanisms with TRIPS: the model developed by the International Convention for the Protection of New Varieties of Plants (UPOV Convention) and India’s sui generis system. A comparison from the sustainable development perspective is conducted through the textual analysis of the regulations of each model. The results show that the UPOV Convention cannot advance the achievement of Sustainable Development Goals and might have adverse effects. Conversely, India’s sui generis system represents a more balanced approach, addressing the needs of the farmers, the community, and environmental protection alongside those of breeders and benefitting sustainable development. The conclusion advocates for revising the UPOV Convention to incorporate broader concerns, including farmers’ rights and environmental sustainability, to ensure a more equitable approach to the protection of plant varieties.

1. Introduction

The 2030 Agenda for Sustainable Development and its 17 associated Sustainable Development Goals (SDGs) were adopted in 2015 by the UN General Assembly, providing a roadmap for countries to achieve Sustainable Development Goals. Sustainable agriculture is vital to achieve Sustainable Development Goals. The international society and national governments have developed various legal frameworks to advance sustainable agriculture. The new plant varieties protection mechanism is a typical example of these mechanisms.

There is no doubt that protecting new plant varieties will promote agricultural advancement and production and therefore contribute to eliminating hunger and protecting the climate. Various researchers suggested this with their studies. Dutfield (2011) [1] argues that new plant variety protection promotes breeders’ motivation to invent and spread new varieties and therefore advances the development of agriculture. Motes (2010) [2] utilizes empirical evidence to prove that new plant varieties promote agricultural productivity. Roberts and Mattoo (2018) [3] provide empirical evidence that new plant variety protection can improve the quality of agricultural products as well as enhance environmental benefits and yield. Michael (2002) [4] discusses the relationship between patents and new plant varieties.

Developing a mechanism to protect plant variety rights is a primary legal pathway to ensure that technological advancements drive agricultural development. The principal ways in which plant genetic resources are translated into food and agriculture production is through plant breeding and plant patenting [5]. Nevertheless, developing countries might doubt whether they can benefit from the new plant varieties protection mechanism.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement makes it necessary for countries to establish a mechanism for protecting new plant varieties as a requisite. Protecting the intellectual property of new varieties of plants is an important part of intellectual property protection. To establish an international framework for the treatment of intellectual property rights, TRIPS, as the international legal agreement to protect intellectual property in the WTO, makes protecting new plant varieties an obligation for WTO members.

However, what the new plant varieties mechanism should be is debated, and there is a divergence between developed countries and developing countries. Because of this, TRIPS leaves legislative gaps allowing different national governments the discretion to establish mechanisms that align with their specific circumstances. TRIPS provides for flexibility in compliance: the member states can opt for protection through patents, an effective sui generis system, or a combination of both to meet their obligations under the TRIPS Agreement.

An appropriate balance is needed that provides an incentive for companies to create new seed varieties while allowing small farmers to build upon those varieties using traditional farming techniques [6]. The balance is pivotal in shaping a legal framework that supports both innovation in plant breeding and sustainable development. On one hand, equitable benefits should be granted to any person or company that innovates through breeding or developing a new variety by patent or an effective sui generis system. The benefits granted to breeders do advance the application of biotechnology, especially plant genetic technology, and further increase productivity and facilitate the commercialization of agriculture. On the other hand, the new plant varieties protection can impede sustainable development, because the protection of new plant varieties can conflict with other public interest.

However, instead of focusing on how to strike a balance between the protection of rights regarding new plant varieties and other public interests, most current legal research on new plant varieties mechanisms is from an intellectual property perspective and focuses on how to better protect the breeders’ rights and make a more effective, efficient, and accurate mechanism to advance the application of biotechnology and genetic technology in agriculture. For example, the research of both Kock (2021) [7] and Rajasingh (2013) [8] focuses on how to set a more accurate standard for new plants.

There are only a few researchers focusing on how to establish a WTO-compliance mechanism that balances the protection of the rights of new plant varieties breeders and the protection of other public interests from a sustainable development perspective. Lertdhamtewe (2013) [9] analyzes the conflict between breeders’ rights and other interests in the new plant variety protection mechanism, but his research is from a developing country perspective; he critiques the coherence of the new plant variety protection mechanism in Thailand. Zaman (2021) [10] researches from a developing countries perspective, evaluating Bangladesh’s new plant variety protection mechanism and comparing it with the international plant variety protection regime.

Although some researchers consider public interests and the benefits to developing countries when evaluating new plant variety protection mechanisms, there is no researcher assessing the new plant variety protection mechanism from a sustainable development perspective. This article aims to fill the scholarly void by examining plant varieties protection mechanisms through the lens of sustainable development.

This article adopts a sustainable development perspective to critically review the new plant varieties protection system and compare it with another typical new plant varieties protection model: the model implemented in India. Each legislative model will be assessed from the perspective of sustainable development rather than solely from the standpoint of intellectual property protection effectiveness. The findings are intended to assist policymakers in developing a more balanced legislative approach that not only satisfies the requirements of the TRIPS Agreement but also upholds the principles of sustainable development. This approach should ensure that the protection granted to new plant varieties also considers broader public interests.

2. Methods

Legal research is either normative or empirical. The results of normative legal research are prescriptive in nature: the norms provide a prescription as to how one should behave in accordance with the norms. Normative legal research involves the study of the law as an object and removes any non-legal material from the scope of this research. In contrast, empirical legal research focuses on the application of law in society [11].

This study is framed within the normative juridical research approach, focusing on the texts and values protected through legal norms. The research methodology primarily follows a normative juridical approach, incorporating textual analysis, value analysis, and comparative methods to thoroughly evaluate the legal texts in question. This multidimensional approach facilitates a deeper understanding of the interplay between theoretical legal provisions and their potential practical implications in the field.

This research mainly utilizes the textual analysis method and value analysis method to assess each model. Subsequently, through a comparative analysis, this study aims to ascertain which mechanisms for the protection of new plant varieties more effectively embody the values of sustainable development and contribute more to achieving the Sustainable Development Goals (SDGs). The comparative method is employed to gain an understanding of the differences between the UPOV model and sui generis system developed by India to protect new plant varieties. This research will compare their sustainability levels based on the analysis of the texts of regulations in each model.

To make the assessment of sustainable more feasible, this paper refers to the study of international law experts of the World Bank by Hofmann et al. (2017) [12]. Drawing on Hofmann’s metrics for measuring the depth of Preferential Trade Agreements (PTAs), this paper develops an index to measure of level of the sustainability of the plant varieties protection mechanism. The index of the sustainability level of the plant varieties protection mechanism is constructed by referring to the rule quantization calculation formula proposed by Kohl et al. (2016) [13], as shown in Equation (1):

$$Mlev={\displaystyle \sum _{i=1}^x{w}_i}Target{s}_i$$

(1)

M_lev represents a certain plant varieties protection mechanism, which in this research is the UPOV model and India model, and x represents the targets of SDGs, which are correlated with the new plant varieties. w_i represents the level of regulations in the mechanism corresponding to the Targets_i embodied in the texts of regulation of the varieties protection mechanism. The value of Targets_i is 1. If there are regulations in the given mechanism that can contribute to the Targets_i of the SDGs, the w_i is assigned a value of 1. If there are regulations in the given model mechanism that can impede the Targets_i of SDGs, the w_i is assigned a value of −1. If the regulation in the plant varieties mechanism does not contribute to the Targets_i of SDGs, the w_i is assigned a value of 0.

Section 3 will analyze the relationship between the protection of new plant varieties and SDGs and determine the value of x, which represents the number of SDGs targets corresponding to the new plant varieties mechanism. In Section 4 and Section 5, the research will analyze the texts of regulations of the UPOV and India models and further define the value of w_i for each target in each model. In Section 6, the research will present the outcomes of the comparative analysis, employing normative methodologies to explain the outcomes. Building on these results, the study will draw a conclusion regarding which model—the UPOV model or India’s approach—is better suited to fostering sustainable development, particularly within the context of developing countries.

3. Protection of New Plant Varieties and Sustainable Goals

Before assessing the current mechanism for new plant varieties protection, it is necessary to address the conflicts that might arise between protecting the intellectual property of new plant varieties and other public rights that can advance sustainable developments. The most significant conflict is between the rights of those breeding new plant varieties and the rights of farmers. Other problems that also arise related to food security and the environment will also be discussed in this section.

3.1. The Relationship of New Plant Varieties Protection and Sustainable Development Goals

The 2030 Agenda for Sustainable Development, adopted by all United Nations Member States in 2015, provides a shared blueprint for peace and prosperity for people and the planet now and into the future. At its heart are the 17 Sustainable Development Goals (SDGs), which are an urgent call for action by all countries—developed and developing—in a global partnership [14]. There are 17 sustainable goals: No Poverty; Zero Hunger; Good Health and Well-Being; Quality Education; Gender Equality; Clean Water and Sanitation; Affordable and Clean Energy; Decent Work and Economic Growth; Industry, Innovation, and Infrastructure; Reduced Inequality; Sustainable Cities and Communities; Responsible Consumption and Production; Ensure Sustainable Consumption and Production Patterns; Climate Action; Life Below Water; Life on Land; Peace, Justice, and Strong Institutions; and Partnerships for the Goals, which aims to strengthen the means of implementation and revitalize the global partnership for sustainable development.

Not all SDGs are related to the new plant varieties protection mechanism. To simplify the assessment process, the related sustainable goals should be identified to assess the level of sustainability of the new plant variety protection mechanism. There are four major legal interests protected in the new plant variety protection mechanism: the rights of breeders, the rights of farmers, environmental protection, and fair competition. The rights of farmers, environmental protection, and fair competition are the main public interests related to the new plant varieties mechanism and have a strong link to SDGs. It is necessary to discuss the relationship between SDGs and new plant varieties from the four legal interests mentioned.

3.2. The Rights of Breeders

The developments and changes in intellectual property rights (IPRs) systems for agricultural innovations (such as varietal improvements) are among the institutional factors expected to impact the productivity of agricultural systems. Other factors that affect agricultural productivity include capital, land, labor, environmental and climatic factors, and technological capabilities [15]. Plant breeders’ rights (PBRs) are a form of intellectual property rights (IPRs) that provide exclusive rights to the breeder so they can benefit from their innovations. This means the breeder has protection from unauthorized imitation of the protected variety for commercial purposes by competitors and farmers [16]. The rights of breeders are related to the Zero Hunger goal (Goal 2). Various empirical studies have demonstrated that plant breeders’ rights are strongly related to agricultural productivity and varietal improvement [16,17,18]. These advancements are crucial for achieving food security, improving nutrition, and promoting sustainable agricultural practices.

3.3. The Rights of Farmers

The rights of farmers are consistently hotly debated in the UN. Farmers’ rights are important for the achievement of SDGs, but there is always a divergence between developing countries and developed countries on what farmers’ rights entail and to what extent these rights should be protected. The concept of protecting farmers’ rights was developed by the Food and Agriculture Organization of the United Nations (FAO). The FAO has made many efforts to establish an international agreement to protect farmers’ rights. The concept of farmers’ rights was formulated in 1989 in the context of the FAO International Undertaking on Plant Genetic Resources (IUPGR) [4].

The FAO subsequently decided to address farmers’ rights through a process of intergovernmental negotiations in the then Commission on Plant Genetic Resources forum [19]. Finally, a global agreement was established on the protection of farmer’s rights. The FAO International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) was adopted in 2001 and entered into force in 2004 [20]. Most FAO members entered into this agreement. According to this treaty [21], the rights include the protection of traditional knowledge relevant to plant genetic resources for food and agriculture; the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture. These rights granted by the FAO can conflict with the protection of new varieties breeders but are beneficial for farmers and the achievement of sustainable development.

The rights of breeders of new agricultural plant varieties and the patenting of genetically modified organisms might conflict with the rights of farmers to have control over their own genetic and natural resources. Farmers’ traditional knowledge contributes to plant genetics usually on a non-commercial basis. Breeding companies might develop or breed new varieties based on this traditional knowledge without compensating the farmers. The economic value of biological diversity conserved by traditional farmers for agriculture is difficult to quantify [22]. The breeder companies usually do not need to pay for this. PBRs might even limit the rights of farmers to further evolve the crops or other varieties that have been registered by breeders as a new variety.

The rights of farmers to make decisions on how to use their products and how to farm can also be impeded by the protection of new plant varieties. In traditional ways, the farmers save, exchange, and even sell farmer-saved seed to evolve the seed and make a living. The FAO also explains the rights of farmers about this in the preamble and Article 9.3. According to 9.3, “Nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate” [20]. In preamble, to save, use, exchange, and sell farm-saved seed and other propagating material as well as participate in decision making regarding these materials are fundamental rights of farmers.

The “inadvertent infringement” of farmers on PBRs is another issue that requires attention. Inadvertent infringement occurs when a farmer’s land is naturally contaminated with seed technology from breeding companies, and the farmer unknowingly saves and uses the seed. Such contamination can occur without farmers’ knowledge as genetic drift disperses seeds through wind, animals, plants, and ocean currents [23]. The inadvertent infringement can have the same effect as purposeful infringement in the patent system. Inadvertent infringement lawsuits are legally permissible because patent infringement does not have an intent requirement [24], and they should not have to spend large amounts of money to avoid the risk of inadvertent infringement.

Balancing the protection of new plant varieties and farmers ‘rights is so important to achieving the Sustainable Development Goals. Firstly, farmers’ rights are intrinsically related to the advancement of food security and therefore have a strong relationship with Zero Hunger (Goal 1). According to the report of the Secretary-General titled “Agriculture development, food security and nutrition” [25], 29.6% of the global population was moderately or severely food-insecure in 2022, with more women and farmers denied access to safe, nutritious, and sufficient food year-round. The restriction on farmers’ rights might also be a threat to food security [23].

Secondly, No Poverty (Goal 2) is highly relative to farmers’ rights. According to the report of the Secretary-General titled “Eradicating rural poverty to implement the 2030 Agenda for Sustainable Development” [26], in 2022, about 80% of the world’s poor lived in rural areas and primarily worked in farming. Agriculture is a vital sector that can help raise incomes and facilitate poverty reduction.

Thirdly, farmers’ rights correspond with Reduce Inequalities (Goal 10). Agriculture, being the most important sector of developing countries and least-developed countries, is often undeveloped, and it needs to be modernized and industrialized. Most of the agricultural population is in developing countries [27]. There is no doubt that protecting farmers’ rights can reduce inequalities.

3.4. Protection of Environment

Environmental protection is another public interest related to the protection of new plant varieties. The protection of new plant varieties can have an adverse effect on the environment. Limiting the rights of new plant varieties that can have a negative effect on the environment or human health can be beneficial for the achievement of SDGs.

The Convention on Biological Diversity (CBD) recognized genetic engineering as a concern [28]. According to Article 8 of the CBD, Member States shall “control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health” [29]. Therefore, the Member States of the CBD have the obligation to implement regulations within their legal frameworks to restrict the rights of breeders in order to mitigate the environmental risks posed by modified organisms.

The potential adverse effects of the new plant varieties shall be considered when a right is granted for them. The mechanism shall also forbid the breeders from protect their rights in environment-damaging ways, for example by using terminator technology, which can pose a serious threat to agricultural biodiversity and national food security. New plant varieties can be contaminated from genetically engineered seeds and be harmful to the environment and biodiversity. The terminator technology, which affects the reproduction and viability of a whole crop variety by genetic technology, can contaminate the genes of other plants and cause serious environmental problems. Including regulations that restrict environmentally harmful methods of protecting new plant varieties within the legal mechanism for plant variety protection will promote environmental protection and contribute to the achievement of SDG Goal 15 (Life on Land).

3.5. Antitrust in Agriculture

Imbalance between the protection of farmers’ rights and breeders’ rights can lead to agricultural monopoly and exaggerate economic inequality, which can impede the achievement of Goal 10 (Reduced Inequalities) and have an adverse impact on the achievement of Goal 1 (No Poverty) and Goal 2 (Zero Hunger). Plant breeders’ rights (PBRs) can forbid farmers from storing, propagating, and selling seeds. This is a major conflict between the rights of farmers and the rights of breeders. However, the impulse to save seeds runs deep in the human psyche [30]. Seed saving allows farmers to maintain independence while giving them the ability to predict the following season’s yield and ensures sufficient growing materials for future seasons [31]. However, to encourage farmers to rebuy the seed, many breeders’ companies endeavor to obtain the rights, limiting farmers to saving and exchanging seeds. Monsanto is an example. Monsanto pushes farmers to sign a formal contract when they buy the seed.

Unrestricted rights for breeders can lead to the emergence of agricultural monopoly enterprises. These monopolies can exacerbate social inequality and pose significant threats to the economy and food security of developing countries, adversely affecting the achievement of Sustainable Development Goals 1, 2, and 10. The mechanism for new plant varieties shall collaborate with antitrust law to avoid monopoly breeder companies. Restrictions will render patents unenforceable under the patent misuse doctrine if they impermissibly broaden the scope of the patent monopoly or violate the antitrust rules on vertical restraints [32]. Avoiding the abuse of rights should be considered in the construction of new plant variety protection mechanisms, as this can better advance the achievement of the Sustainable Development Goals (SDGs), especially Goal 10 (Reduced Inequality).

3.6. Sustainability of Protection Mechanisms of New Plant Varieties

After the normative analysis of the legal interest protected in new plant varieties protection mechanisms, we found that the breeders’ rights, farmers’ rights, environment, and agricultural monopoly are the major legal interests related to the SDGs. It is perfectly possible to balance the profit that the inventor or the breeder is legitimately entitled to expect on the one hand, and on the other hand, the general interest of populations as expressed by fundamental objectives such as food security, inequality reduction, and poverty elimination. Comparing the legal interests and 17 SDGs, it can be found that Goal 1, Goal 2, Goal 10, and Goal 15 are directly linked to new plant varieties, and no obvious relationship can be found between other SDGs and new plant varieties protection mechanisms.

Therefore, the assessment of the level of new varieties protection mechanisms will be based on these goals. The “2030 Agenda for Sustainable Development’s 17 Sustainable Development Goals (SDGs)” [33] not only explains 17 goals but also lists several specific targets of each goal. To make the assessment more accurate, the specific targets of each goal are introduced.

Table 1. Related Sustainable Development Goals (SDGs) and their targets.

Goal 1. End poverty in all its forms everywhere
Target 1.1	By 2030, eradicate extreme poverty for all people everywhere, currently measured as people living on less than $1.25 a day
Target 1.2	Implement nationally appropriate social protection systems and measures for all, including floors, and by 2030 achieve substantial coverage of the poor and the vulnerable
Target 1.3	Implement nationally appropriate social protection systems and measures for all, including floors, and by 2030 achieve substantial coverage of the poor and the vulnerable
Target 1.4	By 2030, ensure that all men and women, in particular the poor and the vulnerable, have equal rights to economic resources, as well as access to basic services, ownership and control over land and other forms of property, inheritance, natural resources, appropriate new technology and financial services, including microfinance
Target 1.5	By 2030, build the resilience of the poor and those in vulnerable situations and reduce their exposure and vulnerability to climate-related extreme events and other economic, social and environmental shocks and disasters
Target 1.a	Ensure significant mobilization of resources from a variety of sources, including through enhanced development cooperation, in order to provide adequate and predictable means for developing countries, in particular least developed countries, to implement programs and policies to end poverty in all its dimensions
Target 1.b	Create sound policy frameworks at the national, regional and international levels, based on pro-poor and gender-sensitive development strategies, to support accelerated investment in poverty eradication actions
Goal 2. End hunger, achieve food security and improved nutrition and promote sustainable agriculture
Target 2.1	By 2030, end hunger and ensure access by all people, in particular the poor and people in vulnerable situations, including infants, to safe, nutritious and sufficient food all year round
Target 2.2	By 2030, end all forms of malnutrition, including achieving, by 2025, the internationally agreed targets on stunting and wasting in children under 5 years of age, and address the nutritional needs of adolescent girls, pregnant and lactating women and older persons
Target 2.3	By 2030, double the agricultural productivity and incomes of small-scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers, including through secure and equal access to land, other productive resources and inputs, knowledge, financial services, markets and opportunities for value addition and non-farm employment
Target 2.4	By 2030, ensure sustainable food production systems and implement resilient agricultural practices that increase productivity and production, that help maintain ecosystems, that strengthen the capacity for adaptation to climate change, extreme weather, drought, flooding and other disasters and that progressively improve land and soil quality
Target 2.5	By 2020, maintain the genetic diversity of seeds, cultivated plants and farmed and domesticated animals and their related wild species, including through soundly managed and diversified seed and plant banks at the national, regional and international levels, and promote access to and fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge, as internationally agreed
Target 2.a	Increase investment, including through enhanced international cooperation, in rural infrastructure, agricultural research and extension services, technology development and plant and livestock gene banks in order to enhance agricultural productive capacity in developing countries, in particular least developed countries
Target 2.b	Correct and prevent trade restrictions and distortions in world agricultural markets, including through the parallel elimination of all forms of agricultural export subsidies and all export measures with equivalent effect, in accordance with the mandate of the Doha Development Round
Target 2.c	Adopt measures to ensure the proper functioning of food commodity markets and their derivatives and facilitate timely access to market information, including on food reserves, in order to help limit extreme food price volatility
Goal 10. Reduce inequality within and among countries
Target 10.1	By 2030, progressively achieve and sustain income growth of the bottom 40 percent of the population at a rate higher than the national average
Target 10.2	By 2030, empower and promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status
Target 10.3	Ensure equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory laws, policies and practices and promoting appropriate legislation, policies and action in this regard
Target 10.4	Adopt policies, especially fiscal, wage and social protection policies, and progressively achieve greater equality
Target 10.5	Improve the regulation and monitoring of global financial markets and institutions and strengthen the implementation of such regulations
Target 10.6	Ensure enhanced representation and voice for developing countries in decision making in global international economic and financial institutions in order to deliver more effective, credible, accountable and legitimate institutions
Target 10.7	Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies
Target 10.a	Implement the principle of special and differential treatment for developing countries, in particular least developed countries, in accordance with World Trade Organization agreements
Target 10.b	Encourage official development assistance and financial flows, including foreign direct investment, to States where the need is greatest, in particular least developed countries, African countries, small island developing States and landlocked developing countries, in accordance with their national plans and programs
Target 10.c	By 2030, reduce to less than 3 percent the transaction costs of migrant remittances and eliminate remittance corridors with costs higher than 5 percent
Goal 15. Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss
Target 15.1	By 2020, ensure the conservation, restoration and sustainable use of terrestrial and inland freshwater ecosystems and their services, in particular forests, wetlands, mountains and drylands, in line with obligations under international agreements
Target 15.2	By 2020, promote the implementation of sustainable management of all types of forests, halt deforestation, restore degraded forests and substantially increase afforestation and reforestation globally
Target 15.3	By 2030, combat desertification, restore degraded land and soil, including land affected by desertification, drought and floods, and strive to achieve a land degradation neutral world
Target 15.4	By 2030, ensure the conservation of mountain ecosystems, including their biodiversity, in order to enhance their capacity to provide benefits that are essential for sustainable development
Target 15.5	Take urgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity and, by 2020, protect and prevent the extinction of threatened species
Target 15.6	Promote fair and equitable sharing of the benefits arising from the utilization of genetic resources and promote appropriate access to such resources, as internationally agreed
Target 15.7	Take urgent action to end poaching and trafficking of protected species of flora and fauna and address both demand and supply of illegal wildlife products
Target 15.8	By 2020, introduce measures to prevent the introduction and significantly reduce the impact of invasive alien species on land and water ecosystems and control or eradicate the priority species
Target 15.9	By 2020, integrate ecosystem and biodiversity values into national and local planning, development processes, poverty reduction strategies and accounts
Target 15.a	Mobilize and significantly increase financial resources from all sources to conserve and sustainably use biodiversity and ecosystems
Target 15.b	Mobilize significant resources from all sources and at all levels to finance sustainable forest management and provide adequate incentives to developing countries to advance such management, including for conservation and reforestation
Target 15.c	Enhance global support for efforts to combat poaching and trafficking of protected species, including by increasing the capacity of local communities to pursue sustainable livelihood opportunities

shows all related SDGs and their targets for the assessment of the level of new varieties protection mechanisms. According to the table, 37 specific targets are included, and therefore, the x in Equation (1) should be 37.

4. International Convention for the Protection of New Plant Varieties

The International Convention for the Protection of New Plant Varieties (UPOV Convention), widely used by many countries as a sui generis system to fulfill the obligation of the TRIPS Agreement on the protection of new plant varieties, should be assessed. Although the UPOV Convention is not the only choice for countries to meet the obligation of TRIPS, it is the most influential mechanism for the protection of new plant varieties. More importantly, Free-Trade Agreements (FTAs) nowadays often include the UPOV Convention as a TRIPS-Plus obligation: for example, the China-Australia FTA and NAFTA.

4.1. An Alternative to Patents to Protect Plant Varieties

Before the UPOV Conventions, the rights of new plant varieties were usually protected by patents in some jurisdiction. Initially, support for the idea that plant varieties could be protected using existing patent law relied on Article 1(3) of the Paris Convention. This states that industrial property applies to “agricultural and extractive industries and to all manufactured or natural products, for example wines, grains, tobacco leaf, fruit, cattle, minerals, beer, flower and flour” [34].

With the development of doctrines for the protection of new plant varieties and development of biotechnology, people realized that it is not reasonable to use patents to protect the rights of new plant varieties for several reasons. The fundamental issue is the difference between the nature of new plant varieties and patents. New plant varieties usually cannot meet the requirements of a patent application. It is necessary to have a specific definition of new plant varieties.

Another obstacle to protecting new plant varieties using patent law was that it was difficult, if not impossible, to identify and demarcate the property that was being protected [35]. Plants are dynamic, unlike industrial inventions; the new generation of a plant might revert to the original varieties. Because of this, new and specific requirements should be made for new plant variety applications, which are different from patents.

Moreover, plants can reproduce, unlike inventions, which can prevent unauthorized usage through technological barriers. The dual nature of plants—as both the product and the means of production—means that there was little benefit in protecting individual plants [36]. More and more scientists and breeders realized that the patent system is not suitable for protecting plant varieties, and a new form of intellectual property distinct from patent law is needed.

The idea of a separate law designed to protect new plant varieties was taken up at the International Association of Plant Breeders for the Protection of Plant Varieties (ASSINSEL Congress) of 1956. With the help of the French government, ASSINSEL held a Diplomatic Conference on the Protection of Plant Varieties. Several meetings were held before 1967. The result of these meetings was the UPOV Convention, which was signed on 2 December 1961.

After that, the UPOV gradually became the central body dealing with the protection of new plant varieties. The UPOV Convention also has experienced several emendations, resulting in the Act 1961, the Act of 1972, the Act of 1978, and the newest one, the Act of 1991. The contracting party must be bound to one of them to apply the provisions of this Convention. Due to pressure from the US and a desire to enhance protection for plant varieties, the UPOV Convention made significant changes in 1991.

The changes made by the UPOV Convention in 1991 increased the strength of plant variety protection, including the removal of the ban on dual protection, making the farm-saved seed exception optional, extending protection to harvested material and products derived from the harvested material in certain circumstances and introducing the concept of essential derivation [37]. These changes strengthen the protection of plant varieties but can conflict with the rights of farmers under the FAO plant treaty.

Although this change was supported by many developed countries, most developing countries criticized the change. After the Act of 1991, the Act of 1978 was no longer open for ratification by countries. Despite the Act of 1991 being less attractive for developing country, TRIPS, which formed part of the broader WTO-GATT agreement, imposed a mandatory obligation on WTO members to provide some form of protection for plant varieties in their national laws [38].

There is no requirement for WTO members to join in the UPOV Convention. However, it is still generally accepted by many countries as sui generis for plant varieties because the UPOV Convention can be recognized as an ‘effective sui generis’ system of plant variety protection, while many countries cannot establish effective sui generis by themselves. Therefore, for many developing countries, joining the UPOV is a political expediency to fulfill WTO obligations rather than reflecting an internal need.

The UPOV Convention is regarded as favoring breeders of new plant varieties and developed countries rather than farmers and developing countries. Many developing countries that join the UPOV have not negotiated for it or participated in the process of in its creation. This is also why some commentators, policymakers and advocates have accused the UPOV Convention of lacking transparency, being unaccountable and, in its relationships with developing countries, misusing its influence and power [1]. The UPOV Convention has always been criticized for being self-serving and biased, with some civil society organizations and governments urging developing and least-developed countries to refrain from joining [39].

4.2. Evaluation of the International Convention for the Protection of New Plant Varieties

The UPOV Convention can be more appropriate and effective than patents for protecting new plant varieties. It provides a suitable definition for new plant varieties. According to Article 5, PBRs shall be granted where the variety is new, distinct, uniform, and stable [40]. It requires that new plant varieties shall be uniform and stable, avoiding the circumstance that the new plant varieties revert to original types and guarantee that the new plant varieties can keep their distinct features in future commercial applications. Compared to the application criteria for patents, this better suits the nature of plant varieties. The UPOV Convention also uses “breeder” instead of “inventor” and defines breeders as those who bred, discovered, and developed a variety. This is more accurate than “invent” because plants are natural entities and cannot be invented. With the new definition, it is easier to identify the rights owner and determine whether a plant variety is new.

The UPOV Convention, especially the Act of 1991, exerts stronger protection on PBRs. According to Article 14 of the UPOV Convention, the production, reproduction of propagating material, and stocking for reproducing shall require authorization from breeders. This can provide an incentive to breed new plant varieties. The UPOV Convention, which provides strong protection for new plant varieties, contributes to the unification of international intellectual property law as an international treaty.

However, it conflicts with the farmer’s rights and the FAO Plant Treaty. The Plant Treaty recognizes the famer’s rights to save, exchange, and sell saved seed. Conservation, exchange, and the sustainable use of the world’s plant genetic resources for food and agriculture can secure crop genetic diversity and keep the plant genetic resources more sustainable. Article 15.2 of the Plant Treaty obliges the contracting parties to the international understanding “to take measures”, subject to their national legislation, to protect and promote farmers’ rights.

Nevertheless, under UPOV 1991, farmers are not allowed to save seed from their own harvest and sow it in the following season, although some exceptions can be made for small-scale farmers [41]. This means that the obligations under the UPOV 1991 for national governments to implement plant breeders’ rights that limit farmers saving, using, exchanging, and selling farm-saved seeds and propagating materials (the farmers’ privilege) will trump the Plant Treaty’s farmers’ rights [42]. Additionally, the Plant Treaty’s farmers’ rights maintain the existing obligations under other international agreements, confirming that farmers’ rights realized by national governments will still have to conform to other more imperative international obligations [43]. Because of these factors, if countries join the UPOV Convention, the Plant Treaty cannot be directly referred to protect the farmers’ privilege, and therefore conflicts might arise.

Otherwise, the UPOV Convention can introduce difficulties in pursuing other public interests, including plant genetic diversity and food security. The duration of protection in the UPOV system is long (20–25 years). There is also no system for the protection of the traditional knowledge of farmers, which might contribute to the genetic resource of plants. The sharing benefits between the breeders of new plant varieties and the community where the new plant originates from are also out of consideration of the UPOV Convention.

It can be concluded that the most significant deficiency of the UPOV Convention is that there is a lack of consideration of public interests and limitation on breeder’s rights in the UPOV Convention except for a provision in Article 17 that allows contracting parties to restrict the free exercise of breeders’ rights for reasons of public interest [42]. This weak restriction is not sufficient to keep breeders away from using harmful technologies, making the UPOV Convention an impediment to protecting other public interests and fulfilling the Sustainable Development Goals (SDGs). The UPOV Convention is not even as effective as the Paris Convention, which was adopted in 1883 to limit the abuse of intellectual property rights. The Paris Convention set restrictions on the abuse of patents in Article 5: “Each country of the Union shall have the rights to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work” [44].

The deficiency of the UPOV Convention can lead to various problems, including environmental issues and other adverse effects related to abusing the rights of plant varieties. One major concern related to environment protection is that if the modified gene of a plant has a potential adverse effect on human beings and the environment, the gene can easily contaminate other plants. Nowadays, more and more new plant varieties are being bred by the genetic modified technology. The modified gene can easily contaminate other normal plants, and there is no efficient way for users, usually the farmers, to avoid this contamination of the genetic modified plant. This can threaten the genetic diversity of plants. Some plants that can be harmful to the environment or humans or animals can be regarded as new varieties and be protected by the UPOV Convention. However, there is no obligation for breeders to prove the safety of the plant or use technology to avoid contamination. As mentioned above, some breeding companies, like Monsanto, even use terminator technology to protect their rights. This is also why the UPOV Convention is always criticized by some environmental civil society organizations.

The lack of limitation on plant breeders’ rights (PBRs) can also lead to the monopoly power of breeding companies. Without limitation on the abuse of rights, breeding companies can utilize their rights combined with litigation tactics to pressure farmers into using or rebuying their products. This further infringes on farmers’ rights due to the monopoly status of breeding companies. The granting of monopoly rights to powerful commercial breeders for developing varieties which are genetically uniform may destroy the possibility of genetic diversities in agriculture [45]. The abuse of breeders’ rights is something that should be addressed in a sui generis system for protecting plant varieties, but the UPOV does not include limitations on this.

Therefore, the UPOV Convention is not suitable for developing countries, especially those with large agricultural working populations and food security problems, because it favors PBRs without considering farmers’ rights. The convention also ignores environmental protection and the avoidance of misuse. The UPOV Convention was developed by the International Association of Plant Breeders for the Protection of Plant Varieties (ASSISNEL), which is composed of many large plants breeding companies, so it is not surprising that the UPOV Convention tends to strengthen the protection of varieties with little consideration of other issues.

The UPOV Convention can be an obstacle for countries to pursue public interest. This is why many countries such as Thailand, India, and Malaysia have chosen to implement sui generis national plant variety protection laws rather than join the UPOV Convention. The sui generis system in India will be used as an example to be compared with the UPOV Convention, explaining that a sui generis system can better balance the rights of breeders and other public interests and therefore can encourage the fulfillment of SDGs.

5. Indel Sui Generis System for Protecting New Plant Varieties

As discussed above, the International Convention for the Protection of New Varieties of Plants (UPOV Convention) cannot meet the requirements of some developing countries to balance the rights of the protection of new plant varieties and other public interests. However, since it is an obligation for WTO Member States to establish an effective sui generis system to protect plant varieties, some developing countries have established their own national sui generis systems to comply with Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). India is a successful example, providing an effective TRIPS-compliant sui generis system that balances the protection of new plant varieties and other public interests.

5.1. Sui Generis System Developed by India

The agricultural industry and farmers’ rights are crucial to India. Over 200 million people, approximately 33 percent of the Indian population, depend upon agriculture for their livelihood [46]. On one hand, India needs to protect the breeders’ rights as an incentive for biotechnology research to improve crop productivity. On the other hand, India must avoid the adverse effect of protection of new plant varieties on the farmer’s rights and food security. As discussed above, plant breeders’ rights (PBRs) can restrict farmers’ ability to sell, exchange, and reuse the seeds from the crops they harvest, which are traditional way for farmers to keep the crops diversity and evolve the seeds.

Many Non-Governmental-Organizations (NGOs) in India recognize the conflict between farmers’ rights and breeders’ rights and have expressed concerns about this issue. They conduct various research studies, such as Navdanya, Gene Campaign, and the Forum on Biotechnology and Food Security. Each has campaigned for the Indian government to abstain from introducing patent protection for plant varieties in India and has called for the introduction of legislation to protect farmers [47] (p. 190).

After TRIPS came into force, the India government debated whether to use patents or an effective sui generis system to protect plant varieties to meet the TRIPS obligation. These NGOs persuaded India’s government to utilize a sui generis system rather than patents to better protect farmers’ rights and food security. As mentioned above, the most wildly used sui generis worldwide is the UPOV Convention. However, after 1991, the only one India can use is the 1991 version of the UPOV Convention, which restricts farmers’ rights to control the seed from harvest. The NGOs realized that it is necessary to develop a sui generis system that guarantees farmers’ rights while providing effective protection for new plant varieties. Finally, with the help of NGOs, India incorporated Section 39 (1) of the Indian protection of Plant Varieties and Farmers’ rights Act of 2001 [47] (p. 195).

5.2. Evaluation of India Sui Generis System

The Indian Protection of Plant Varieties and Farmers’ Rights Act maintains a good balance between the rights of breeders and other public interests, especially farmers’ rights, as it includes specific provisions designed for farmers’ rights. Firstly, the Act categorizes plant varieties differently. The Indian law relating to the protection of plant varieties classifies plant varieties into three different categories: extant varieties (available in India), farmers’ varieties, and others (general varieties and species as specified under s.29 (2)). This last category includes the new or modern varieties [26]. Furthermore, the Act distinguishes farmers’ varieties from other varieties to better protect farmers’ rights. In section 39 (1) (i), it puts farmers’ rights on a par with plant breeders’ rights by giving farmers the entitlement to apply for the registration of a plant varieties as well as for the registration of a farmer’s rights [47] (p. 196). According to section 2 (k), farmers’ varieties include varieties that have been traditionally cultivated, developed, and evolved by the farmers in their field as well as a wild relative or ‘landrace’ of a variety about which the farmers possess common knowledge [47] (p. 197). This protects the traditional knowledge and the contribution farmers have made to plant varieties.

The Act also protects the rights of farmers to use the seed in traditional ways. According to section 39 (1) (iv), a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share, or sell his farm produce, including the seeds of a variety protected under this Act, in the same manner as he was entitled before this Act came into force [48]. This keeps a balance between PBRs and farmers’ rights and contributes to the genetic diversity of crops.

Another distinctive feature of the Indian system is the duration of plant varieties. The Indian law provides for a duration of six years for varieties except for trees and vines, and periods can be prolonged by renewal, but the total duration cannot exceed 15 years [48]. This is much shorter compared to the 20–25 years outlined in the UPOV Convention. This shorter duration can limit breeders’ ability to monopolize the market and make new varieties more accessible to farmers. It is hard to say whether the Indian system strikes a perfect balance between the breeders’ rights and other public interests. However, there is no doubt that the Indian system is more favorable to farmers’ rights compared to the patent system and the UPOV Convention.

There are many criticisms of the Indian system, most of which represent the interests of breeder companies. Critics argue that the Indian system does not provide enough protection to breeders and gives too many rights to farmers. However, compared to the UPOV Convention, this system is more suitable for India and similar countries that have a large agricultural working population and face food security issues.

One problem with the Indian system is that it is not widely accepted by the international community. If India wants to join a Free Trade Agreement (FTA), it might still need to implement the UPOV Convention as a TRIPS-Plus obligation of the FTA. The Indian government did intend to join the UPOV Convention in 2002 but was stopped due to opposition from NGOs. However, the Indian model should be promoted worldwide because it better protects public interests and can advance the Sustainable Development Goals (SDGs), which are the most important development goals for human society today. Next, the texts of the UPOV model and the Indian model will be compared to explain why the Indian model is more conducive to achieving the global Sustainable Development Goals.

5.3. Sustainability Comparison of Both Models for Protecting New Plant Varieties

As the India model and UPOV model have been analyzed above, the main differences between the India model and UPOV model can be concluded.

Table 2. Differences of PPVFR Act and UPOV1991.

Title	Regulation in Protection of Plant Variety and Farmers Rights Act, 2001 (PPVFR Act)	International Convention for the Protection of New Varieties of Plants 1991
Objective of litigation	Preamble: Establishment of an effective mechanism to protect the rights of farmers and plant breeders, and to advance the development of agriculture.	Does not mention protecting the rights of farmers.
Breeders’ rights	Chapter IV: While breeders’ rights are protected, there is an explicit provision allowing farmers to save and replant seeds of protected varieties.	Article 14: The breeders are granted exclusive rights to authorize or restrict acts in respect of the propagating material, acts in respect of the harvested material, acts in respect of certain products, and possible additional acts, essentially derived and certain other varieties.
Breeders’ limitation	Article 29 (1), Article 34 (h) and Article 53: The rights of breeders can be revoked for public interests. Article 30: Researcher’s rights. Article 39 (1) (iv): A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act except for the sale of branded seeds. Article 39 (2): Disclosure requirement for breeders. Article 40: Contribution of traditional tribal or rural families should be informed in application registration. Article 41: Rights of communities. Article 42: Protection of innocent infringement. Article 42: Farmers’ variety, consent of farmers is required if derived variety is derived from a farmers’ variety. Article 42: Exemption from fees for farmers.	Article 15: Breeders’ rights are primarily focused on commercial propagation and provide exclusive rights to produce and sell the propagating material. Article 15 (1): Non-commercial purposes; experimental purposes; acts undertaken for the purpose of breeding other varieties. Article 15 (2) Optional: To permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or specific variety. Article 17: Public interest (no contracting parties may restrict the free exercise of a breeder’s right for reasons other than of public interest); rights of third party. Equitable remuneration should be granted to the breeders when any such restriction has the effect of authorizing a third party to perform any act for which the breeder’s authorization is required.
Duration of protection of new plant varieties	Article 15: Case by case consideration, usually 15 years.	Article 19: More than 20 or 25 years.
Farmers’ rights	Chapter VI: Limitation on breeders as listed above. A Gene Fund should be founded for farmers.	Article 15 (2) Optional: To permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or specific variety.
Environmental protection	Article 29: Exclusion of certain varieties in cases where the prevention of commercial exploitation of such varieties is necessary to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment.	No
Antitrust in agriculture	A weak limitation to monopoly company as the farmers’ rights and the rights of community can limit agricultural monopoly. The governments are also authorized to limit the breeders’ rights.	No

shows the major differences between the India model and UPOV model in terms of the specific legal interests protected by the regulations. These legal interests were analyzed in Section 3, which include breeders’ rights, farmers’ rights, environmental protection, and antitrust requirement in agriculture. The law in India that grants protection to new plant varieties is the Regulation in Protection of Plant Variety and Farmers Rights Act, 2001 (PPVFR Act), while the latest UPOV version is the International Convention for the Protection of New Varieties of Plants 1991 (UPOV 1991). The differences between the texts are shown in Table 2.

From Table 2, it can be clearly seen that while the UPOV Convention focuses on the breeders’ rights with limited consideration of other public rights, the PVFR Act of India considers various public interests, including farmers’ rights, the rights of the community, and environmental protection when granting protection to breeders. Based on the normative analysis of the UPOV model and the India model, the two models can be compared from a sustainable perspective. The related SDGs targets will be introduced as indices to assess the level of sustainability of each model. The texts of regulation in the India model and UPOV model will be reviewed to determine their effects on specific SDGs targets and whether these effects are positive or negative. The level of sustainability will then be assessed using Equation (1) based on the texts shown in Table 2. As stated in the Methods section, the value of w_i is defined by the effect of each model on specific SDG targets, and whether the model has a positive or negative effect is judged by the text shown in Table 2. The level of each model is shown by M_lev, which is the sum of all the w_i values of each model. If a model’s M_lev is positive, it indicates that after text analysis, the number of targets positively affected by the rules in the model exceeds the number negatively affected by the rules by M_lev. Conversely, if a model’s M_lev is negative, it suggests that the number of targets positively affected by the rules in the model is fewer than those negatively affected by the absolute value of M_lev. M_lev can be used to simply assess the level of consideration for Sustainable Development Goals (SDGs) in a plant variety protection model, as a model with a higher level of protection is capable of promoting the achievement of more specific targets under the SDGs while having negative impacts on fewer specific targets.

The findings from the assessment procedure applied to the India model and UPOV model are detailed in

Table 3. Assessment of the level of the UPOV model and India model according to Sustainable Development Goal 1 and its targets.

	Targets of Goal 1 (End Poverty in All Its Forms Everywhere)	Effect of UPOV Model on Specific SDG Targets	Effect of India Model on Specific SDG Targets
1	Target 1.1 By 2030, eradicate extreme poverty for all people everywhere, currently measured as people living on less than $1.25 a day	No effect	Positive effect
2	Target 1.3 Implement nationally appropriate social protection systems and measures for all, including floors, and by 2030 achieve substantial coverage of the poor and the vulnerable	No effect	Positive effect
3	Target 1.3 Implement nationally appropriate social protection systems and measures for all, including floors, and by 2030 achieve substantial coverage of the poor and the vulnerable	No effect	No effect
4	Target 1.4 By 2030, ensure that all men and women, in particular the poor and the vulnerable, have equal rights to economic resources, as well as access to basic services, ownership and control over land and other forms of property, inheritance, natural resources, appropriate new technology and financial services, including microfinance	Negative effect	Positive effect
5	Target 1.5 By 2030, build the resilience of the poor and those in vulnerable situations and reduce their exposure and vulnerability to climate-related extreme events and other economic, social and environmental shocks and disasters	Positive effect	No effect
6	Target 1.a Ensure significant mobilization of resources from a variety of sources, including through enhanced development cooperation, in order to provide adequate and predictable means for developing countries, in particular least developed countries, to implement programs and policies to end poverty in all its dimensions	Negative effect	Positive effect
7	Target 1.b Create sound policy frameworks at the national, regional and international levels, based on pro-poor and gender-sensitive development strategies, to support accelerated investment in poverty eradication actions	No effect	No effect

,

Table 4. Assessment of the level of the UPOV model and the India model according to Sustainable Development Goal 2 and its targets.

	Targets of Goal 2 (End Hunger, Achieve Food Security and Improved Nutrition and Promote Sustainable Agriculture)	Effect of UPOV Model on Specific SDG Targets	Effect of India Model on Specific SDG Targets
8	Target 2.1 By 2030, end hunger and ensure access by all people, in particular the poor and people in vulnerable situations, including infants, to safe, nutritious and sufficient food all year round	Positive effect	Positive effect
9	Target 2.2 By 2030, end all forms of malnutrition, including achieving, by 2025, the internationally agreed targets on stunting and wasting in children under 5 years of age, and address the nutritional needs of adolescent girls, pregnant and lactating women and older persons	No effect	No effect
10	Target 2.3 By 2030, double the agricultural productivity and incomes of small-scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers, including through secure and equal access to land, other productive resources and inputs, knowledge, financial services, markets and opportunities for value addition and non-farm employment	Positive effect	No effect
11	Target 2.4 By 2030, ensure sustainable food production systems and implement resilient agricultural practices that increase productivity and production, that help maintain ecosystems, that strengthen capacity for adaptation to climate change, extreme weather, drought, flooding and other disasters and that progressively improve land and soil quality	Positive effect	Positive effect
12	Target 2.5 By 2020, maintain the genetic diversity of seeds, cultivated plants and farmed and domesticated animals and their related wild species, including through soundly managed and diversified seed and plant banks at the national, regional and international levels, and promote access to and fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge, as internationally agreed	No effect	Positive effect
13	Target 2.a Increase investment, including through enhanced international cooperation, in rural infrastructure, agricultural research and extension services, technology development and plant and livestock gene banks in order to enhance agricultural productive capacity in developing countries, in particular least developed countries	Positive effect	Positive effect
14	Target 2.b Correct and prevent trade restrictions and distortions in world agricultural markets, including through the parallel elimination of all forms of agricultural export subsidies and all export measures with equivalent effect, in accordance with the mandate of the Doha Development Round	Positive effect	No effect
15	Target 2.c Adopt measures to ensure the proper functioning of food commodity markets and their derivatives and facilitate timely access to market information, including on food reserves, in order to help limit extreme food price volatility	No effect	No effect

,

Table 5. Assessment of the level of the UPOV model and India model according to Sustainable Development Goal 10 and its targets.

	Targets of Goal 10 (Reduce Inequality within and among Countries)	Effect of UPOV Model on Specific SDG Targets	Effect of India Model on Specific SDG Targets
16	Target 10.1 By 2030, progressively achieve and sustain income growth of the bottom 40 percent of the population at a rate higher than the national average	Negative effect	Positive effect
17	Target 10.2 By 2030, empower and promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status	Negative effect	Positive effect
18	Target 10.3 Ensure equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory laws, policies and practices and promoting appropriate legislation, policies and action in this regard	Negative effect	Positive effect
19	Target 10.4 Adopt policies, especially fiscal, wage and social protection policies, and progressively achieve greater equality	Negative effect	Positive effect
20	Target 10.5 Improve the regulation and monitoring of global financial markets and institutions and strengthen the implementation of such regulations	Positive effect	Negative effect
21	Target 10.6 Ensure enhanced representation and voice for developing countries in decision making in global international economic and financial institutions in order to deliver more effective, credible, accountable and legitimate institutions	Negative effect	Positive effect
22	Target 10.7 Facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies	No effect	No effect
23	Target 10.a Implement the principle of special and differential treatment for developing countries, in particular least developed countries, in accordance with World Trade Organization agreements	Negative effect	Positive effect
24	Target 10.b Encourage official development assistance and financial flows, including foreign direct investment, to States where the need is greatest, in particular least developed countries, African countries, small island developing States and landlocked developing countries, in accordance with their national plans and programs	No effect	No effect
25	Target 10.c By 2030, reduce to less than 3 percent the transaction costs of migrant remittances and eliminate remittance corridors with costs higher than 5 percent	No effect	No effect

and

Table 6. Assessment of the level of the UPOV model and India model according to Sustainable Development Goal 15 and its targets.

	Targets of Goal 15 (Protect, Restore and Promote Sustainable Use of Terrestrial Ecosystems, Sustainably Manage Forests, Combat Desertification, and Halt and Reverse Land Degradation and Halt Biodiversity Loss)	Effect of UPOV Model on Specific SDG Targets	Effect of India Model on Specific SDG Targets
26	Target 15.1 By 2020, ensure the conservation, restoration and sustainable use of terrestrial and inland freshwater ecosystems and their services, in particular forests, wetlands, mountains and drylands, in line with obligations under international agreements	No effect	No effect
27	Target 15.2 By 2020, promote the implementation of sustainable management of all types of forests, halt deforestation, restore degraded forests and substantially increase afforestation and reforestation globally	No effect	No effect
28	Target 15.3 By 2030, combat desertification, restore degraded land and soil, including land affected by desertification, drought and floods, and strive to achieve a land degradation neutral world	No effect	No effect
29	Target 15.4 By 2030, ensure the conservation of mountain ecosystems, including their biodiversity, in order to enhance their capacity to provide benefits that are essential for sustainable development	No effect	No effect
30	Target 15.5 Take urgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity and, by 2020, protect and prevent the extinction of threatened species	Negative effect	No effect
31	Target 15.6 Promote fair and equitable sharing of the benefits arising from the utilization of genetic resources and promote appropriate access to such resources, as internationally agreed	Positive effect	Positive effect
32	Target 15.7 Take urgent action to end poaching and trafficking of protected species of flora and fauna and address both demand and supply of illegal wildlife products	No effect	No effect
33	Target 15.8 By 2020, introduce measures to prevent the introduction and significantly reduce the impact of invasive alien species on land and water ecosystems and control or eradicate the priority species	No effect	No effect
34	Target 15.9 By 2020, integrate ecosystem and biodiversity values into national and local planning, development processes, poverty reduction strategies and accounts	Negative effect	No effect
35	Target 15.a Mobilize and significantly increase financial resources from all sources to conserve and sustainably use biodiversity and ecosystems	Negative effect	No effect
36	Target 15.b Mobilize significant resources from all sources and at all levels to finance sustainable forest management and provide adequate incentives to developing countries to advance such management, including for conservation and reforestation	No effect	No effect
37	Target 15.c Enhance global support for efforts to combat poaching and trafficking of protected species, including by increasing the capacity of local communities to pursue sustainable livelihood opportunities	No effect	No effect

. The level of sustainable development is further evaluated by Equation (1) based on the findings. According to Equation (1) and the findings in Table 3, Table 4, Table 5 and Table 6, it can be calculated that x is 37, the M_lev value of the UPOV model is −3, and the M_lev value of the India model is 14.

Based on Equation (1) and the assessment procedure shown in Table 2, Table 3, Table 4, Table 5 and Table 6, it can be concluded that the M_lev of the India model (14) is higher than the M_lev of the UPOV model (−3). This indicates that the UPOV model hinders three more SDG targets than those it positively impacts, while the India model positively influences 14 more SDG targets than those it hinders. This means that the India model has more positive aspects for the achievement of SDGs, while the UPOV model has more negative aspects for sustainable development. Therefore, the India model was established with more sustainable development factors considered, enabling it to promote the achievement of the Sustainable Development Goals at a higher level.

6. Conclusions

This article analyzes problems arising from the protection of plant varieties. A major problem is that the protection of plant varieties can conflict with the rights of farmers, environmental protection, and agricultural antitrust measures, further impeding sustainable development. Although the current version of the Convention for the Protection of New Varieties of Plants (UPOV Convention) can be a better system for protecting new plant varieties compared to patents, it is partial toward PBRs and conflicts with the famers’ rights under the Food and Agriculture Organization of the United Nations (FAO) International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty). The UPOV Convention does not set sufficient restrictions on plant breeders’ rights (PBRs), either. The UPOV Convention can cause potential risks in food security, environmental protection, and the abuse of rights. While the UPOV Convention is a wildly accepted sui generis system to meet the TRIPS requirements, it is not suitable for many developing countries. Instead of joining the UPOV Convention, many countries develop their own system.

This article takes the mechanism developed by India as an example to analyze a national sui generis system. It shows that the India system can better balance the protection of new plant varieties and other public interests, which can encourage the achievement of Sustainable Development Goals (SDGs). However, the India system is not accepted widely by international society and might be an obstacle for India in entering into Free-Trade Agreements (FTAs) or other international agreements. The comparison between the India model and the UPOV model shows that the UPOV grants excessive rights to breeders with insufficient restrictions and overlooks the farmers’ rights, environmental protection and antitrust requirement. The UPOV model also ignores the benefits of developed countries and can exaggerate the economic gap between the poor and the rich, as well as developing countries and developed countries, because it overlooks farmers’ rights while granting excessive rights to breeders. Most breeders are based in developed countries, while most farmers live in developing countries. Due to the lack of protection for public interests and consideration of developing countries, the UPOV model does not contribute to SDGs and can even impede the achievement of SDGs.

Based on the comparison, it can be concluded the UPOV Convention should be amended, as it does not encourage the achievement of SDGs. Developing countries, internation organization, and Non-Governmental-Organizations (NGOs) representing the rights, views, and benefits of a broader society rather than a small circle of breeding companies should participate more in the negotiations of internation conventions on new plant varieties protection. Good practice in systems developed by some countries like India can be discussed and included in the UPOV Convention. Other international conventions, such as the Convention on Biological Diversity (CBD), the International Plant Protection Convention (IPPC), and the FAO Plant Treaty, which is highly related to sustainable development, should also be considered when amending the international conventions of new plant varieties.

A new version of the UPOV Convention is needed, one that considers more issues beyond just the protection of plant varieties. This new version should be more suitable for both developed and developing countries and contribute more to the sustainable development of biotechnology. The current version of the UPOV Convention overly favors breeders’ rights while neglecting farmers’ rights and environmental protection, leading to potential issues with food security and biodiversity. A revised version of the UPOV Convention can balance breeders’ rights and farmers’ rights, and incorporate environmental safeguards, which will better support Sustainable Development Goals.