Abstract
Background
In recent years, the cannabis industry has evolved from a world defined by the simplicity and ubiquity of illegality of recreational drug cannabis to a world marked by the legal and geographic complexity of ongoing depenalisation, decriminalisation, and legalisation processes. Within this landscape where drug Cannabis plants and their many derivatives see their legal status change, Cannabis cultigens and end products are increasingly likely to becoming subject to protection by intellectual property rights. This article delves into the implications of these changes for traditional Cannabis farmers, particularly in the Global South, as they face economic and legal threats amidst global legalisation efforts. It examines the potential role of appellations of origin in protecting local Cannabis cultigens and end products, focusing on Moroccan Cannabis and hashish as a case study.
Methods
The text resorts to the treaties and agreements regulating international property rights and plant variety protection, but also to the concepts of terroir and landrace and their definitions, in order to determine, by way of treaty interpretation and conceptual analysis, what type of legal and economic protections can apply to Cannabis landraces and terroir products. The analysis is also based on previous empirical research published by the author.
Results
The text argues that appellations of origin are the best intellectual property protections possible for landraces and terroir products because what needs to be protected is not innovation and individual ownership, but tradition and collective ownership, and because appellations of origin are suitable collective intellectual property rights. It shows that appellations of origin are best suited to protect terroir products and landraces because their originality and distinctiveness are place-based originality and distinctiveness.
Conclusion
The text concludes that appellations or origin offer the only existing intellectual property protection for preserving the distinctiveness of terroir cannabis products, and for landrace conservation. It acknowledges that neither appellations of origin nor existing plant variety protection laws can be legal forms of control of third parties’ uses of landraces but that appellations of origin can help protect terroir products and landraces by way of their associated agro-ecosystems.
Introduction
In recent years, the producers, traders and consumers of recreational drug2 cannabis have been faced with a changing and increasingly complex legal world. A world in which the simplicity and ubiquity of illegality of recreational drug cannabis – which dates back to the Second Opium Convention of 1925 (Société des Nations, 1925) – has been replaced by the legal and geographic complexity of ongoing depenalisation, decriminalisation, and legalisation processes. Within this fast-evolving global legal landscape where drug Cannabis plants and their many end products see their legal status change, cultigens3 of the Cannabis genus and cannabis end products are likely to become increasingly subject to protection by intellectual property (IP) rights, depending on where they are produced, processed, and sold.
It is important to acknowledge from the outset that, according to the 1961 Single Convention on Narcotic Drugs (Article 1 b-d), which elevated the controls of cannabis and other drugs to a global level, “cannabis” refers to the flowering or fruiting tops of the Cannabis plant, referred to as the Cannabis sativa L. species; “cannabis resin” refers to the resin separated from the Cannabis plant, known under the colloquial name hashish; and “extracts and tinctures” refer to any such extracts and tinctures (United Nations, 1961). Hereafter Cannabis will refer to the Cannabis genus, while cannabis will refer to drug cannabis, that is, the psychotropic flowering or fruiting tops. It is worth noting that while the 1961 Convention lists cannabis, cannabis resin, and cannabis extracts and tinctures as controlled substances, it does not list the Cannabis plant itself and, as a consequence, the cultivation of the plant for the production of fibre and other non-psychotropic end products (in which case Cannabis is often referred to as hemp) has long been legal in many countries.
One consequence of the illegality of recreational drug cannabis is that, until recently, traditional4 Cannabis farmers, most of them located in the Global South,5 have been largely protected from the green revolution and the spread of modern hybrids that has replaced many local cultigens throughout the world since the 1950s. Such traditional Cannabis farmers have also been kept away from the strengthening of intellectual property rights for plant “varieties” (strictly speaking, cultivars: see below) within the frameworks of the International Union for the Protection of New Varieties of Plants (UPOV) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) (UPOV, 1961/1991; TRIPS, 1994), both because their productions are illegal and because, as we will see in greater detail, their local Cannabis cultigens are not “new varieties of plants” and do not correspond to the UPOV technical criteria for “varieties”.
While there is some level of legal pluralism throughout the world, the fact remains that the current international legal regimes have been devised and imposed by Western countries, as the foundations of the modern international trade and Western legal regimes were imposed upon the world, and on the customary practices of indigenous peoples, based on power relations inherited from imperialism in the colonial era (Miles, 2010). The granting, or not, of economic rights on traditional knowledge to indigenous people, notably on biological resources and on their uses, has clearly been shaped by imperialism in the colonial era. In fact, “traditional knowledge has often been considered as ‘open access’ by colonial explorers and botanists, with the consequence of placing this knowledge into the public domain without authorization and consent from the communities (Meyer, Naicker, 2023; Thomas, 2006).”
As a result, it has been deemed “important to revise and expand international property rights linked to traditional knowledge (Dutfield, 2000; Harry, 2011; Shiva, 1997) since, according to Okediji (2018:2), the issues related to ‘[t]he protection of [Indigenous] traditional knowledge [are] among the most vexing and morally compelling issues in international IP law today’” (Meyer and Naicker, 2023: 3). In fact, some kind of economic and legal imperialism still takes place throughout the Global South, as many countries are “under pressure to adopt strong IP norms by US and EU trade policies that make foreign direct investment conditional upon strong IP protection” (Peschard et al., 2023: 39). For example, as of 2022, the signing of Euro-Mediterranean Association Agreements with the European Union made accessing to the 1991 Act of the UPOV convention mandatory for Morocco and five other African countries, something that “severely restricts these countries’ ability to adopt legislation that protect peasants’ rights and peasant seed systems” (Peschard et al., 2023: 46). Indeed, when they become a party to the 1991 Act of the UPOV Convention and when they implement its standards of plant variety protection, states undermine the customary practices of their indigenous and local peoples as well as their seed systems and agrobiodiversity, when they could instead rely on the TRIPS Agreement to “design sui generis systems of plant variety protection better suited to the agricultural and socioeconomic conditions” prevailing in their regions (Peschard et al., 2023: 12).
On top of that, after over a century of an international drug control regime (1925 and 1961) and decades of a global war on drugs (since 1971: Idler & Garzón Vergara, 2021), which have also been devised and imposed by Western countries, traditional Cannabis farmers worldwide now see their industries threatened, economically and legally, by ongoing legalisation processes. As a result, they must opt for new strategies of protection, registration and promotion instead of their former strategies of avoidance and concealment. Yet, since the early twenty-first century, the threat to traditional Cannabis farming has also come from the fast worldwide spread of modern Cannabis hybrid cultigens that directly threaten the many unique local cultigens (notably landraces) and their conservation (Chouvy, 2019).
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