Implications of the TRIPS Agreement on Plant Variety Protection Regulations in Indonesia

International Journal of Trend in Scientific Research and Development (IJTSRD)
Volume 6 Issue 4, May-June 2022 Available Online: www.ijtsrd.com e-ISSN: 2456 — 6470

Implications of the TRIPS Agreement on Plant
Variety Protection Regulations in Indonesia

Rani Pajrin', Jamal Wiwoho’, Moch Najib Imanullah’, Pujiyono”

'Universitas Tidar, Kota Magelang, Jawa Tengah, Indonesia

"Law Faculty, Universitas Sebelas Maret, Jawa Tengah, Indonesia

ABSTRACT

Pajrin R, Wiwoho J, Imanullah MN, Pujiyono. 2021. Implications of
the TRIPS Agreement on Plant Variety Protection Regulations in
Indonesia. The purpose of writing this article is to observe the
implications of the TRIPS Agreement on the regulation of plant
variety protection in Indonesia. This research is a normative legal
research, using the Statute, Conceptual, Historical and Case
Approach. The dynamics of the Plant Variety Protection regulation in
Indonesia occurred after Indonesia ratified the international
convention on the approval of the establishment of the world trade
organization (WTO) in 1995. TRIPS Agreement is one of the aspects
agreed in the international convention. This article describes the legal
conditions for the plant variety protection in Indonesia. Plant Variety
Protection in Indonesia has experienced various dynamics due to the
influence of the TRIPS Agreement, UPOV and other international
conventions. The Plant Variety Protection Act itself has undergone
several revisions in substance. At first Plant Variety Protection was
regulated in the Patent Law of 1997, then, Sui Generis, it regulated in
Law Number 29 of 2000 concerning Plant Variety Protection.
Although the regulation regarding the protection of plant varieties in
Indonesia refers to UPOV, Indonesia has not ratified UPOV into
national law in Indonesia until now.

KEYWORDS: Indonesia, Implication, Plant Variety Protection,
Regulation, TRIPS Agreement

INTRODUCTION
Since the enactment of Law No. 29 Year 2000

How to cite this paper: Rani Pajrin |
Jamal Wiwoho | Moch Najib Imanullah |
Pujiyono "Implications of the TRIPS
Agreement on Plant Variety Protection
Regulations in Indonesia" Published in
International Journal
of Trend in
Scientific Research
and Development
(ajtsrd), ISSN: 2456-
6470, Volume-6 |
Issue-4, June 2022,
pp.885-891, URL:
www.ijtsrd.com/papers/ijtsrd50165.pdf

Copyright © 2022 by author(s) and
International Journal of Trend in
Scientific Research and Development

Journal. This is an

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concerning the Plant Variety Protection, there are
legal cases that deceive the farmers. Since 2004 to
2010, there were fifteen cases that have been decided
by District Court in East Java. This law is the impact
of globalization as well as the obligations for
Indonesia because Indonesia has joined and ratified
the establishment of the WTO since 1995. Under the
intellectual property regime, the Plant Variety
Protection becomes the last package after other
intellectual property regimes such as_ patents,
trademark rights, copyrights etc. Globalization was
formalized after the signing of the establishment of
the World Trade Organization (WTO) by the
countries in the world. In globalization era, every
country must submit with regional economic
regulations and world economic organizations and
forbidden to determine the rules that are contrary to
international rules agreement. Economic globalization

will give product market opportunities from domestic
to international market competitively. In addition, it
provides the opportunities for global product in
domestic market. The inclusion of the TRIPs
Agreement6 in WTO brings a new approach to
intellectual property protection at the international
level. For developing country, the existence of TRIPs
Agreement actually enlarges the gap between
developed and developing countries in the economic
and technological fields.

In this article, the authors want to find out the
Implications of the TRIPS Agreement on_ the
Regulation of Plant Variety Protection in Indonesia.
The study wants to reveal whether the existence of
regulations in the field of plant variety protection has
guaranteed the farmers’ rights. This study is crucial
because almost 38.07 million Indonesians work in the
agricultural sector.

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MATERIALS AND METHODS

This research is a normative legal research. The legal
materials used in this study were primary legal
materials (statutory regulations), secondary legal
materials and tertiary legal materials. The approach in
this study uses the Statute Approach, Conceptual
Approach, Historical Approach and Case Approach.

RESULTS AND DISCUSSION

History of PVP Law in Indonesia

In 18th century, Europeans had started to think about
Intellectual Property. This was seen at the
international exhibition of new inventions in Vienna
in 1873. Some countries were then reluctant to
participate in such exhibitions, for fear of the new
ideas being stolen and exploited commercially in
other countries. Since then, the need for intellectual
work protection began to arise internationally. In
1863, Roquefort cheese received protection in the
form of a simple Trademark Certificate. The inclusion
of TRIPs Agreement in WTO carries new approach
toward the protection of intellectual property in
international level. For developing country, the
existence of TRIPs Agreement actually enlarges the
gap between developed and developing countries in
the economic and_ technological fields. The
development of intellectual property cannot be
separated from brands, patents, and copyrights. The
granting of exclusive rights in the form of Statute of
Anne to the first author, where previously only for
publisher occurred in 171020. Intellectual property as
an effort to protect inventors through monopoly rights
granted by law to obtain economic benefits from their
inventions. The understanding of property rights
known in civil law that is happening so far basically
depends on the material conception. More than that,
the concept is very dependent on_ physical
assumptions, namely natural land and other objects
contained on it, then develop on non-physical or
intangible assumptions.

The seed protection was started in 1930 marked by
patent issuance for asexual plants and the Plant
Variety Protection Act of 1970 (PVPA) in America.
From this regulation, a giant seed industry was born
in the world. In European countries, Plant Variety
Protection Act was issued in 1942 in Netherland,
while in Germany was issued in 1953. In general, the
law reviews plants’ uniqueness, homogeneity and

stability. It is almost similar with the legislation
condition in the field of Plant Variety Protection, 1.e.,
New, Distinct, Uniform and Stable or often
abbreviated as NDUS. In Indonesia, there have been
several changes to the legislation regarding
intellectual property. In 1961, several countries in the
world had agreed an international convention on plant
variety protection; this international agreement is
recorded in International Convention for the
Protection of New Varieties of Plants, which is more
known as UPOV. UPOV is an acronym for Union
International pour la protection des obtentions
vegetable. In Indonesia, Plant Variety Protection is an
intellectual property regime that is still relatively new
compared to other intellectual property regimes such
as brands, copyrights and patents. The history of
intellectual property in Indonesia can be broken down
into 4 phases or stages. The 4 stages are as follows:

Dutch Colonial Period. At this time the Dutch
Colonial Government introduced a law at the first
time in 1844. Then, in 1885, the Trademark Act was
issued and followed by the Patent Act in 1910 and the
Copyright Act in 1912. Japanese Colonial Period
During the Japanese colonial period, various laws and
regulations in the field of intellectual property were
still enforced. This intellectual property regulation
was enacted until the independence of the Republic of
Indonesia in 1945. The early period of independence
until the era of New Order after Indonesia
proclaiming independence on August 17, 1945. In
this era, laws and regulations inherited from the
Dutch Colonial were still applied as long as they do
not conflict with the 1945 Constitution of the
Republic of Indonesia. In the Intellectual Property
Regulations, the Copyright Act and Trademark Act
was still used, however, the Patent Act was not
applied because it was requiring the registration
process to the Dutch.28 It is certainly contrary to the
sovereignty of the Unitary State of the Republic of
Indonesia. The beginning of the Reformation to the
present. The first law of Intellectual Property in the
field of plant variety protection in Indonesia was Law
Number 29 Year 2000 concerning Plant Variety
Protection. This law adequately accommodated
various aspect compare to other Plant Variety
Protection laws and regulations.

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1.

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Table 1 Legal History Legislation regulating the Plant Variety Protection are as follows
No Laws and Regulations

Laws Number 6 Year 1989
concerning Patent

Regulated Aspects
Article 7 letter c the discovery of new types or varieties of plants or
animals, or about any process that can be used breeding for plants or
animals and their products; new types varieties of plants or animals
Are referred here food plants or farm animals. This variety cannot be
patented.

Law Number 5 Year 1990
concerning Biological
Resources and their
Ecosystems

This law not only stipulated the protection of plant varieties explicitly,
but also generally regulates the use of wild plant and wild animal
species. Article 36 Paragraph (1) stipulates the procedure for
utilization. The utilization of wild plants and animal species can be
carried out as follows:

Assessment, research, and development;

Captivity

Hunting

Trade

Demonstration

Exchange

Medical plant cultivation

Breeding for pleasure

Law Number Year 1997
concerning Patent

The revision of La number 6 Year 1989 to become Law Number 13
Year 1997 concerning Patent in the form of revocation or abolition of
Article letter C where there are varieties of both plants and animals
that cannot patented. That revocation or abolition of Article 7 letter C
is occurred because Indonesia participated in TRIPs Agreement.
Which in Article 27 Paragraph (3) letter b stipulates that: “However
member shall provide for the protection of plants varieties either by
patent or by an effective sui generis system or by any combination
thereof’. According to that article, then in 2000, sui generis, Indonesia
creates Law concerning Plant Variety Protection.

Law Number 12 Year 1992
concerning Plant
Cultivation System

This law is one of the media in managing and utilizing various kinds
of vegetable natural resources in a sustainable, harmonious and
balanced in order to provide the greatest prosperity to the people.
Article 8 explains that the acquisition of the quality seeds for plant
development is carried out through the discovery of superior varieties
and/ or introduction from abroad. In detail, it is written in Article 9:
The discovery of superior varieties is carried out through plant
breeding activities.

The search and collection of germplasm in the context of plant
breeding is performed by the government.

The search and collection of germplasm as referred to paragraph (2)
can be accomplished by individuals or legal entities based on permits.
The government conserves the germplasm with the community.

Government Regulation
Number 44 Year 1995
concerning Seeding

This Government Regulation aims to provide the guarantee of
adequate and sustainable quality seeds; as a means of preserving
germplasm which is a national asset that needs to be increased to
support the development of plant cultivation as well as the effort to
regulate Law Number 12 Year 1992 concerning Plant Cultivation
Systems.

Law Number 29 Year 2000
concerning Plant Variety
Protection (PVP)

This law has been applied since 2000. PVP Law is expected to be able
to provide a strong legal basis in encouraging the creation of superior
and new varieties in the context of developing seed industry. In
accordance with international conventions in the field of intellectual
property, it is necessary to regulate sui generis regarding the plant
variety protection

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The Regulation of PVP in Indonesia

Intellectual Property Rights are granted to breeders, or anyone who claims to have discovered or developed new
varieties of plants. The law guarantees ownership and assures everybody to control and enjoy the objects or
creations they produce with the help from country exclusively. Therefore, that description shows that legal
protection is for the benefit of the owner (breeder), either personally or legal subject groups.

The world faces the condition where the seed internalization is happened. One of the disseminations means of
the world's seed business is international conventions. Each international convention has their own
characteristics and aspects. UPOV is one of the international conventions which affects the regulation of plant
variety. At first, UPOV was only ratified by six countries. Then, after WTO agreed the TRIPS Agreement, there
were 75 countries ratified UPOV. Although the legislation in the field of plant variety protection in Indonesia
refers to UPOV, Indonesia has not ratified UPOV yet. Based on Erizal Jalam, in his presentation in Bogor, 19
January 2018, the condition in Vietnam is not much different with Indonesia before and after becoming the
member of UPOV. Nevertheless, in contrast to China, there has been a significant change. China's Seed Industry
is advanced and has a wide market. In its record, Indonesia requires to strengthen the domestic seed industry if
Indonesia desiderate to join UPOV. The world’s seed company should notice the seed condition in Indonesia and
its market share. The data can be seen in the table below.

Table 2 The seed condition in Indonesia

No Before merger | After merger
Company % Market Share Company % Market Share |
1. | Mosanto 26,5 Mosanto Bayer Crop Science 30,1
2. | DuPont (Pioneer) 18,7 Dow-DuPont 22,1
3. | Sygenta 7,8 Sygenta 7,8
4. | Vilmorin & Cle 4,4 Vilmorin & Cle 4,4
5. | Dow 4,0 Dow 4,0
6. | KWS Saat 3,7 KWS Saat 3,7
7. | Bayer Crop Science 3,6 DLF 1,3
8. | DLF 1,3 Sakata 1,2
9. | Sakata 1,2 Rik Zwaan 1,0
10. | Rijk Zwaan 1,0 Takil and Co 1,0
11. | Other 27,8 Florimond Desprez 0,7
12, - - Other 22,1

Source: Official Website of the Ministry of Agriculture of the Republic of Indonesia

The data illustrates that the world's seed industry is dominated by giant seed companies. However, in
comparative superiority, Indonesia is actually very rich in natural resources or often called as mega biodiversity.
Roscoe Pound in his theory of Law as Tool of Social Engineering can create the big scheme in mobilizing all the
potential in realizing seed sovereignty to be able to compete with other seed industries in the world. The
selection of legal source and the decision to make law is one of the keys in achieving the goal. Plant Variety
Protection (PVP) is the right granted to the breeders and/or PVP rights holders to use their own breeding
varieties or give approval to other people or legal entities. Plant variety protection by Sui Generis is regulated in
Law Number 29 Year 2000, which was previously regulated in Patent Law. The PVP Law is validated to
encourage the agriculture field to be advanced, efficient, resilient, and to have an important role to achieve
national development goal. Moreover, the validation of PVP law creates superior varieties, preserves germplasm
as the main ingredient in plant breeding without damaging any parties and encourages the growth of seed
industry. PVP Law also increases the interest and participation of individual and legal entities to perform plant
breeding activities to produce new superior varieties. The right granted for the breeders or PVP right holders is a
form of consequence of international conventions in the field of Plant Variety Protection that need to be
regulated by law. Those cases are the reason for the enactment of PVP Law in 2000. Since the PVP Law was
validated, Indonesia has promulgated all branches of intellectual property as required by the TRIPS Agreement.
PVP Law has 76 articles. If it was seen from the law history in Indonesia, PVP Law is the first law by Sui
Generis regulates the plant variety protection which previously regulated in Patent Law where the regulation is
not as detail as PVP Law. From all the existing articles, it can be concluded that the main principle behind the
law is the balance between the public interest and the interests of the PVP holder. There are several important
principles contained in the PVP Law as following: PVP Law focuses on plant varieties and the right of plant

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breeders as an effort to create legal protection for plant breeders; PVP Law regulates farmers’ interest in Article
10 as a form of public interest protection. Through this article, farmers can use the seeds protected by PVP Law
and plant them without a permit on condition that the seeds are used only for farmers’ interest and not distributed
to others; PVP Law controls plant varieties that cannot be protected even though the plants meet the requirement
to be protected. Law, Public Order, morality and religion are the important factors to exclude in plant variety
protection; PVP Law only protects new plant varieties and does not protect the process of acquiring the new
plant varieties; The protection period given to plant varieties is divided into two categories: annual plants and
perennial plants. The division is made because there are fundamental differences between two types of plants.
PVP Law provides the opportunity to plant breeders to register their commercialized plant varieties as long as it
does not exceed a certain time limit. This policy is taken since commercialization is one of the important factors
to reap the economic benefits of plant variety protection system; Plant breeders must apply to PVP office
appointed by government so that they can be protected by PVP Law. In other words, registration in PVP Law is
the vital requirement for legal protection of new plant varieties produced by plant breeders. Unlike other
intellectual property branches whose administration is under the Ministry of Law and Human Rights of the
Republic of Indonesia, PVP Law is under the Ministry of Agriculture. The main reason for this separation is that
the process of examining plant varieties is highly technical and requires expertise. According to those
considerations, the examination of plant varieties application will hit the target if it is handled by the Ministry of
Agriculture. Unlike other intellectual property branches, PVP settlements are handled by the District Court not
Commercial Court; PVP Law also provides opportunities for PVP application to resolve their legal problems
through institutions arbitration and alternative dispute resolution. For further implementation, the legislators
order to make implementing regulations in government regulations and ministerial regulations.

Table 3 The results of the study of PVP Law are as follow
Type of

Regulations BNE

No Explanation

1 The government utilizes protected varieties | Government | Article | Paragraph
for food and medicine procurement policies Regulation (2) PVP Law
: Government | Article 43 Paragraph
e | Pacense a ereeneat Regulation (3) PVP Law
3 | Compulsory License Gove prt Article 55 PVP Law
Regulation
: f).- Ministerial Article 29 Paragraph
4 | Substantive Examination Fee Davee (2) PVP Law
: Ministerial | Article 40 Paragraph
5 | PVP Right Transfer Fee Riéofee (3) PVP Law
6 | License agreement registration fee ea Augicle ay Fametapn
Decree (1)
7 The provisions regarding the amount of Ministerial Article 63 Paragraph
mentioned fee Decree (1) and (2)

There are several articles that imprecise about the concerning inspection procedures, qualification of

derivative arrangements in PVP Law. PVP Law only
mentions that the articles will be regulated by the
government. Those articles are as follows:36 The
provision for naming, registering, and using varieties
as original varieties for essential derivative varieties
as the Agency assigned to implement (Article 6
Paragraph (7)); The provision for naming, registering,
and using local varieties as well as the agencies
assigned to implement (Article 7 Paragraph (4)); The
provision regarding the registration requirements as
PVP consultant (Article 13 Paragraph (2)); The
provision regarding PVP rights application using
priority rights (Article 14 Paragraph (2)); The
provision regarding the withdrawal of PVP
application (Article 21 Paragraph (2)); The provision

PVP examiners and officials (Article 30 Paragraph
(4)): The provision concerning granting or refusing an
application for PVP rights, form, and content (Article
35 Paragraph (4)); The organizational structure and
working procedure of PVP appeal commission
(article 39); Terms and procedures for the transfer of
PVP rights (Article 40 Paragraph (4)). PVP Law has
been implemented in Indonesia for 21 years. On 25
and 26 August 2020, The Centre for Crop Variety
Protection and Agricultural Licensing held a Focus
Group Discussion (FGD) to inventory the various
problems from PVP Law. Some notes for that activity
were as follows: The effort in providing services to
the community is needed, especially in the use of
information and technology through simplifying and

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acceleration process of the application; there are 792
PVP right applications recorded by Centre for Crop
Variety Protection and Agricultural Licensing until
2020. There are 50 varieties applied every year. From
the data, there are 30 applicants of PVP rights both
individual and institution. It shows the lack of
breeders who register to get PVP rights; In law
enforcement context, PVP Office should technically
take part in overseeing the legal process if there is a
violation. However, practically, ninety percent of the
legal process is carried out by law enforcement
parties; PVP Law needs to be amended because 30%
of the social substance needs to be changed.

In conclusion, Plant Variety protection in Indonesia
has experienced various dynamics due to the effect of
TRIPS Agreement, UPOV and other international
conventions. The Plant Variety Protection Act has
undergone several revisions in substance. Previously,
PVP is regulated in Patent Law Year 1997 before sui
generis regulated in Law Number 29 Year 2000.
Although the regulation of plant variety protection in
Indonesia refers to UPOV, Indonesia has not ratified
UPOV into national law in Indonesia.

ACKNOWLEDGEMENTS

The author is gratefull to the Dean of the Faculty of
Law and Chancellor of Sebelas Maret University,
Surakarta, Indonesia. And we wish to thank all parties
who participated in this research.

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The TRIPS Agreement came into force on
January 1, 1995, but in Indonesia the TRIPS
Agreement came into force on January 1, 2000

Accessed on the official website of the Ministry
of Agriculture of the Republic of Indonesia
Diapositiva | (pertanian.go.id) at 1 pm on 8
July 2021

Accessed on the official website of the
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protection-intellectual-wealth-ki at 10.01 PM, 5
July 2021

Law Number 29 Year 2000 concerning Plant
Variety Protection

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