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Introduction
The recent influx of Genetically Modified Organisms (“GMOs”) in global agriculture begs serious legal and ethical questions. Although experts have expressed concerns against its incorporation into the natural food chain, consumption of GMOs remains prevalent in many developed countries of the world. For a country like Nigeria where agriculture contributes about a quarter of our Gross Domestic Product, it is important that we pay attention to the legal dimensions of the conversation in order to keep pace in this every-changing world.
In this article, we focus on the legal nature of GMOs, the nature of intellectual property rights (if any) which may attach to them in Nigeria and sundry legal questions arising therefrom.
What are GMOs?
GMOs are plants, animals, or organisms whose genetic material have been altered using scientific procedures for better efficiency. According to Britannica1, GMOs are organisms whose genomes have been engineered in the laboratory in order to favour the expression of desired physiological traits or the generation of desired biological products. To understand GMOs better, we may need to talk a bit about Deoxyribonucleic Acid, DNA for short.
Every living organism has what is known as a DNA. The DNA of an organism is its basic life code. It is like the manual which contains all genetic information about a particular organism and determines how that organism looks or functions. The DNA of an organism contains its most granular hereditary information. To create GMOs, scientists use very complex scientific procedures to extract the DNA of an organism. Then they modify it for better results. The modification could involve removing negative genes from the DNA of the organism, including positive genes, or even both.
The scientific process of creating a GMO differs depending on the desired results. It could be by way of recombinant DNA technology which involves extracting DNA from two different organisms and fusing them together into a new organism. It could also be by way of reproductive cloning which involves enucleating an organism i.e taking away its nucleus and replacing it with another nucleus extracted from a different organism (the “Donor”). This process results in the generation of an offspring that is genetically identical to the Donor.
Although GMOs recently gained attention in Nigeria, they have been around for a while. Since the 1990s, many developed countries have approved GMOs for commercial use and consumption, albeit with tight regulatory frameworks. For instance, GMOs have been approved for human consumption in the United States since 1994. China also approved the use of GMOs since 1993. Other developed countries of the world have also taken cue. But while GMOs portend several benefits especially in relation to increased plant/animal yield and better nutrition, scholars have also expressed concerns against its infiltration into the natural food chain, particularly in relation to the negative effects of glyphosate, an active ingredient used in the production of GMOs2.
Difference between GMOs and other Breeding Techniques
There is an important distinction between GMOs per se and organisms created using other artificial breeding techniques like cross breeding, backcrossing, apoximis etc. The distinction is that for GMOs, there is an artificial modification of the genetic code of at least one of the propagating or parent organisms. In some cases, a GMO may be created though natural reproduction of two organisms. But although the reproductive process itself may still be natural, in so far as there has been a modification of the natural genetic code of one of the parent organisms, the resultant offspring is a GMO. This differs from other breeding techniques where two parent organisms with their natural genetic code are bred through natural or even artificial means to create a new variety of offspring. In this case, while the process of reproduction may be artificial, the offspring is not a GMO because the parent organism retained its natural genetic code.
IP Rights in GMOs and Legal Frameworks.
Some IP rights are relevant to GMOs. Some of them and their legal frameworks are discussed below.
1. Patents
S. 1(4) of the Patents and Designs Act 1971 provides that patents cannot be validly obtained in respect of plant and animal varieties or biological processes for the production of plants or animals, except microbiological processes and their products. This is a blanket provision against patents in GMOs. The only exception here is that patents may validly be granted in respect of microbiological processes and microbiological products like bacteria, viruses etc. But under the current state of Nigerian law, there cannot be a valid patent for GMOs created in respect of plants and animals.
However, although patents may not be granted in respect of GMOs in plants and animals, the scientific processes through which they are created may be patented. This is because Nigerian law recognizes “process patents” i.e patents in respect of processes. This is as opposed to “product patents” which are granted in favour of the product created using those processes3. So, while patents granted in respect of GMOs for plant and animals may be invalid, a patent granted in respect of a process for the creation of a GMO is generally valid.
The grant of a patent confers on the patentee the exclusive right to make, import, sell or use the product/process or stock it for the purpose of sale or use4.
2. Plant Varieties
This is perhaps the most germane IP right on the concept of GMOs. Thus, while GMOs in respect of plants and animals may not be “patentable”, under the Plant Varieties Protection Act 2021 (the “PVPA”), plant varieties qualify for protection through the grant of breeders' rights. For such right to be granted, the plant variety has to be new, distinct, uniform and stable5. The reader is referred to our previous paper titled “Understanding Breeders Rights” for a more detailed discussion on the nature of plant varieties6. There is no similar legislation for animal varieties in Nigeria.
Just like patents, when breeders' right is granted over a plant variety like a GMO, the breeder has the exclusive right to produce or reproduce, condition for the purpose of propagation, offer for sale, sell or market, import, export, or even stock the GMO for any of the purposes aforementioned7. It is an infringement of breeders' right to do any of these acts without the consent of the breeder.
3. Trade Secrets
A trade secret is any confidential information used by a business in order to gain a competitive advantage over others who do not know of it. At law, the subject of a trade secret must first be a secret. That is to say, it should not be public knowledge or something that is generally known in that trade or business. Also, the trade secret must be subject to reasonable efforts to maintain its secrets. These elements were affirmed in the classic case of Kewanee Oil v. Bicron Corporation 416 U.S. (1974).
There is no unique legal framework for trade secrets in Nigeria. At best, the closest provision is Art. 39 of the TRIPS Agreement which essentially enumerates the same conditions for protection of trade secrets as stated in Kewanne Oil v. Bicron Corporation (supra). However, due to Nigeria's dualist approach to international law, this provision has no domestic force of law until it is domesticated by an Act of the National Assembly as required under s. 12 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). There may however be some pockets of other related legislations in point, although these are limited in scope8.
In appropriate circumstances, the scientific processes for the creation of GMOs may constitute trade secrets. However, whether or not such processes will qualify as trade secrets depend on whether they satisfy the legal conditions we have earlier identified. For instance, if the technology is public knowledge, it is doubtful whether same will be considered as a trade secret.
4. Trademarks
GMOs are products. And like other products, they need to be marketed using a distinctive name in order to distinguish them from other products. It is therefore important that the name of the GMO is protected and the best way to do so is through to utilize the law of trademarks under the Trademarks Act 1967 and Trademarks Regulations 1967. That is not to say that the unregistered name of a GMO is not protected. Indeed, such an unregistered GMO name is still protected under the common law of passing off. However, succeeding in an action in passing off comes with the problem of proving goodwill and damage, which is not always easy. However, if the name is registered, all one needs to prove to establish infringement of trademark is that the mark is registered, and that it was used by another person. There is no requirement to prove goodwill or damage.
Big GMO brands like Bayer, Corteva, and Syngenta all take their product names seriously. “Rainbow Papaya” for instance is a GMO developed in Hawaii by Cornell University in conjunction with the University of Hawaii and the US Department of Agriculture. It is modified to resist the ringspot virus, a pandemic which nearly wiped out all the papaya fruits in Hawaii in 1992. The name “Rainbow” has since been trademarked in Hawaii as a brand name for the product.
International Frameworks
At the international level, there are also legal frameworks for the protection for the protection of GMOs. The first is the International Convention for the Protection of New Varieties of Plants 1991 (the “UPOV Convention”). The UPOV Convention is the primary legal instrument for protection of plant varieties in international law. Nigeria recently became a signatory to the UPOV Convention on February 27, 2025. The UPOV protects GMOs in respect of plant varieties.
The Convention on Biological Diversity (“CBD”) is the international legal instrument for "the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources". It has also been ratified by 196 nations including Nigeria. The CBD aims to protect the local biological species from the extinction caused by possible adverse impacts which arise when GMOs coexist in the same geographical area with the local species.
Conclusion
GMOs are produced through very complicated scientific processes. It is very important for any person who intends to create one, to ensure that all IP rights in relation to the GMO are protected. In absence of proper legal protection and advice, one may lose all IP rights in the GMO thereby jeopardizing the potential returns on investment.
Footnotes
1. Britannica, “Genetically Modified Organisms” https://www.britannica.com/science/genetically-modified-organism
2. American Academy of Pediatrics “Use of Genetically Modified Organisms (GMO) Containing Food products in Children https://publications.aap.org/pediatrics/article/153/1/e2023064774/196193/Use-of-Genetically-Modified-Organism-GMO
3. See s. 6(1)(b) Patents and Designs Act 1976.
4. See s. 6(1)(a) Patents and Designs Act 1976.
5. Section 14-16 PVPA.
6. Accessible at https://www.gelias.com/images/Newsletter/Understanding_Breeders_Rights_under_Nigerian_Law.pdf
7. See s. 29(1)(a-g) PVPA.
8. See s. 15 Freedom of Information Act 2011.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
