Historically, Ecuador has been a country with a reasonable level of plant variety protection and a court system that provided a reasonable basis for the enforcement of IP rights.
The legal basis for the protection of plant varieties is Decision 345 which dates back to 1997. This decision creates a system of plant variety protection for the countries of the Andean Community (Bolivia, Colombia, Ecuador, Peru, Venezuela). Decision 345 provides for the national implementation of the Andean rules with the incorporation of the essential elements of the 1991 Act of the UPOV Convention (even though formally Ecuador has so far chosen to accede only to the 1978 Act).
Under Decision 345 plant varieties could be registered with the IEPI: Instituto Ecuatoriano de la Propiedad Intelectual (Ecuadorian Institute of Intellectual Property). However, as part of efforts to “update” the IP regime in Ecuador, a Presidential Decree has been issued which renames the Ecuadorian Institute of Intellectual Property to the National Service for Intellectual Rights. It is unclear whether the name change is good news for breeders.
New IP laws
Since 2016 Ecuador has become a worrisome territory when it comes to the protection of plant varieties. In December 2016, a new set of IP laws entered into force: the “Code for the Social Economy of Knowledge, Creativity and Innovation”, published on December 9, 2016. This code repeals and replaces Ecuador’s previous national intellectual property law.
Some legal commentators have claimed that the new laws are not decisive in regard to the protection of intellectual property because as a member of the Andean Community, Ecuador continues to be bound by the relevant Andean rules, such as Andean Decisions 345 in respect to plant varieties. These Andean rules, in addition to other treaties and international conventions on IP to which Ecuador adheres, would take precedence over local law.
Nevertheless, on a national level, Ecuador now has legislation which aims to primarily protect the national interests and the local workforce in the plant industry and may be considered fairly extraordinary from an international IP perspective:
- Plant variety rights in regard to varieties developed under contract belong to the employer. However, a breeder who is involved in the creation of a new variety and who works on the basis of an employment contract is entitled to a percentage of ownership no less than 25%.
- Even workers who are not specifically contracted to exercise intellectual activity for obtaining breeders’ rights created under an employment relationship, may qualify to obtain co-ownership of PVRs.
- Under the new code, the term of protection for a national PVR is reduced to 8 years in the case of vines, as well as forest, fruit and ornamental trees, and to only 15 years for all other varieties.
- The new Code provides for increased options for obtaining compulsory licenses, which may be granted for reasons of public interest, emergency or national security. The idea is that this would lead to a broadened scope for compulsory licensing. Even though compulsory licensing should lead to equitable compensation for the breeder/rights holder, this option for growers and breeders is expected to weaken the protection afforded to new varieties of plants.
Memorandum of Understanding
With the goal of working towards an improved utilization, protection and enforcement of IP rights, Ecuador entered into a Memorandum of Understanding (MOU) with the United States in 2017. The MOU is meant to serve as a basis for cooperative activities between the two countries but it is doubtful whether this objective can be met.
In addition, enforcement of IP against widespread counterfeiting and piracy remains weak. Ecuador also lacks effective measures to deter illegal growing of protected varieties. Regarding the Organic Code on Social Economy of Knowledge, Creativity, and Innovation (Ingenuity Code), Ecuador is reportedly in the process of developing and implementing regulations. Stakeholders have raised concerns about how these regulations will address issues, such as the scope of certain exceptions and limitations to protectable subject matter. Another area that has considerably weakened is the combat of widespread counterfeiting and piracy. Therefore, the country needs to make greater efforts to improve its IP enforcement procedures, to provide for customs enforcement on an ex officio basis and to promote more effective means of securing ex parte seizures.
Author: Tjeerd Overdijk