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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
@ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 885
Implications of the TRIPS Agreement on Plant
Variety Protection Regulations in Indonesia
Rani Pajrin1
, Jamal Wiwoho2
, Moch Najib Imanullah2
, Pujiyono2
1
Universitas Tidar, Kota Magelang, Jawa Tengah, Indonesia
2
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
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
(ijtsrd), 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
Open Access article
distributed under the
terms of the Creative Commons
Attribution License (CC BY 4.0)
(http://creativecommons.org/licenses/by/4.0)
INTRODUCTION
Since the enactment of Law No. 29 Year 2000
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.
IJTSRD50165
International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470
@ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 886
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, i.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 VarietyProtection is an
intellectual property regime that is still relativelynew
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.
International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470
@ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 887
Table 1 Legal History Legislation regulating the Plant Variety Protection are as follows
No Laws and Regulations Regulated Aspects
1. Laws Number 6 Year 1989
concerning Patent
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.
2. 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
3. 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.
4. 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.
5. 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.
6. 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
International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470
@ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 888
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 companyshould 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 22,7
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 Rijk 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 bythe 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
International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470
@ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 889
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 bythe Ministryof
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
No Explanation
Type of
Regulations
Article
1
The government utilizes protected varieties
for food and medicine procurement policies
Government
Regulation
Article 1 Paragraph
(2) PVP Law
2 License Agreement
Government
Regulation
Article 43 Paragraph
(3) PVP Law
3 Compulsory License
Government
Regulation
Article 55 PVP Law
4 Substantive Examination Fee
Ministerial
Decree
Article 29 Paragraph
(2) PVP Law
5 PVP Right Transfer Fee
Ministerial
Decree
Article 40 Paragraph
(3) PVP Law
6 License agreement registration fee
Ministerial
Decree
Article 43 Paragraph
(1)
7
The provisions regarding the amount of
mentioned fee
Ministerial
Decree
Article 63 Paragraph
(1) and (2)
There are several articles that impreciseabout the
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
concerning inspection procedures, qualification of
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
International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470
@ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 890
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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International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470
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Republic of Indonesia
https://en.dgip.go.id/sejarah-perkembangan-
protection-intellectual-wealth-ki at 10.01 PM, 5
July 2021
[20] Law Number 29 Year 2000 concerning Plant
Variety Protection

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

  • 1. 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 @ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 885 Implications of the TRIPS Agreement on Plant Variety Protection Regulations in Indonesia Rani Pajrin1 , Jamal Wiwoho2 , Moch Najib Imanullah2 , Pujiyono2 1 Universitas Tidar, Kota Magelang, Jawa Tengah, Indonesia 2 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 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 (ijtsrd), 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 Open Access article distributed under the terms of the Creative Commons Attribution License (CC BY 4.0) (http://creativecommons.org/licenses/by/4.0) INTRODUCTION Since the enactment of Law No. 29 Year 2000 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. IJTSRD50165
  • 2. International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 886 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, i.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 VarietyProtection is an intellectual property regime that is still relativelynew 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.
  • 3. International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 887 Table 1 Legal History Legislation regulating the Plant Variety Protection are as follows No Laws and Regulations Regulated Aspects 1. Laws Number 6 Year 1989 concerning Patent 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. 2. 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 3. 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. 4. 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. 5. 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. 6. 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
  • 4. International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 888 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 companyshould 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 22,7 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 Rijk 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 bythe 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
  • 5. International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 889 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 bythe Ministryof 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 No Explanation Type of Regulations Article 1 The government utilizes protected varieties for food and medicine procurement policies Government Regulation Article 1 Paragraph (2) PVP Law 2 License Agreement Government Regulation Article 43 Paragraph (3) PVP Law 3 Compulsory License Government Regulation Article 55 PVP Law 4 Substantive Examination Fee Ministerial Decree Article 29 Paragraph (2) PVP Law 5 PVP Right Transfer Fee Ministerial Decree Article 40 Paragraph (3) PVP Law 6 License agreement registration fee Ministerial Decree Article 43 Paragraph (1) 7 The provisions regarding the amount of mentioned fee Ministerial Decree Article 63 Paragraph (1) and (2) There are several articles that impreciseabout the 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 concerning inspection procedures, qualification of 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
  • 6. International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 890 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. REFERENCES [1] Abdolali Monsef, Majid Sameti, Mansa Mojahednia, 2011. The Effect of Intellectual Property Rights and Information and Communication Technology on Human Development Index in Developing Countries During 2005-2010, Australian Journal of Business and Management Research, 1(9) 105- 112 [2] Agus Candra Suraatmaja. 2017. Perlindungan Varietas Tanaman (Plant Variety Protection). Pustaka Literasi, Jogjakarta, Indonesia. [3] Huala Adolf. 1998. Hukum Ekonomi Internasional Suatu Pengantar (International Economic Law an Introduction). PT Raja Grafindo Persada, Jakarta, Indonesia. [4] Bernard O'Connor. 2004. The Law of Geographical Indications, Cameron May Ltd, London, England. [5] Jamal Wiwoho. 2014. Instrumen-Instrumen Pasar Modal Indonesia, (Indonesian Capital Market Instruments), Journal Hukum Bisnis Yayasan Pengembangan Hukum Bisnis, 33 (4), 345-354 [6] Krisnani Setyowati. 2001. Pokok-Pokok Peraturan Perlindungan Varietas Tanaman (The Basic of Plant Variety Protection Regulations), delivered at the Training of the Trainer Intellectual Property Rights Cluster Manager, Jakarta 24-27 September 2001 [7] Muhammad Djumhana and R. Djubaedillah. 2003. Hak Milik Intelektual (Intellectual Right), History. Theory and Practice in Indonesia, Citra Aditya Bakti, Bandung, Indonesia. [8] Murshamshul Kamariah Musa, Zuhairah Arif Abd Gadas, Mohd Shahril Nizam Md Radzi. 2015. The Plant Variety Protection Law in Malaysia: Issues on Protection of Farmers’ Rights, Journal of Management Research, 7 (2) 1-594 DOI: https://doi.org/10.5296/jmr.v7i2.6941 [9] R. Murjiyanto. 2016. Konsep Kepemilikan Hak Atas Merek Di Indonesia (Studi Pergeseran Sistem "Deklaratif' Ke Dalam Sistem Konstitutif’) The Concept of Brand Rights Ownership in Indonesia (Studyof Shifting from “Declarative to Constitutive System), [Dissertation], Universitas Islam Indonesia. [10] Phillippe Cullet and Radhika Klorulu. 2003. Palnt Variety Protection and Farmers Rights, Delhi Law Review, International Enviromental Law Research Centre. [11] Rezky Fatma Dewi. Purwaka Heri Prihantono, Jaya Kusuma Edy, 2016. Analisis penyerapan tenaga kerja pada sector pertanian di Kabupaten Tanjung Jabung Barat (Analysis of labor absorption in the agricultural sector in West Tanjung Jabung Regency), E Jurnal Ekonomi dan Sumber Daya Lingkungan, Fakultas Ekonomi dan Bisnis, Universitas Jambi, Jambi, 5(1) 1-41. [12] Suratman and Philips Dillah. 2013. Metode Penelitian Hukum (Legal Research Method), Alphabeta Publishers Bandung, Indonesia. [13] Sri Mulyani. 2012. Pengembangan Hak Keakayaan Intelektual Sebagai Collateral (Agunan) Untuk Mendapatkan Kredit Perbankan di Indonesia (Development of Intellectual Property Rights as Collateral to get bank credit in Indonesia), Journal of Legal Dynamics, 12 (3) 569-578. DOI: http://dx.doi.org/10.20884/1.jdh.2012.12.3.128 [14] Sulasi Rongiyati. 2016. Kekayaan Intelektual Atas Pengetahuan Tradisional (Intellectual
  • 7. International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD50165 | Volume – 6 | Issue – 4 | May-June 2022 Page 891 Property Over Knowledge Traditional), Jurnal Negara Hukum, Jakarta, Indonesia. 2 (2) 213- 238 DOI: 10.22212/jnh.v2i2.214 [15] Tomi Suryo Utomo. 2010. Hak Kekayaan Intelektual di Era Global (Intellectual Property Rights in the Global Era), Graha Ilmu, Yogyakarta, Indonesia. [16] The data is from Bina Tani Makmur Documentation, KIBAR Kediri Investigation Results, Indonesian Peasants Alliance (API) and Case Handling of the Indonesian Human Rights Committee for Social Justice (IHCS) Investigation Results which are accessed on http://en.ihcs.or.id/?p=429 on November 3, 2020 at 14.19 WIB [17] The TRIPS Agreement came into force on January 1, 1995, but in Indonesia the TRIPS Agreement came into force on January 1, 2000 [18] Accessed on the official website of the Ministry of Agriculture of the Republic of Indonesia Diapositiva 1 (pertanian.go.id) at 1 pm on 8 July 2021 [19] Accessed on the official website of the Directorate General of Intellectual Property, Ministry of Law and Human Rights of the Republic of Indonesia https://en.dgip.go.id/sejarah-perkembangan- protection-intellectual-wealth-ki at 10.01 PM, 5 July 2021 [20] Law Number 29 Year 2000 concerning Plant Variety Protection