Is UPOV 1991 a good fit for developing countries?

Intellectual property (IP) protection regimes aim to avoid market failures associated with public goods and free riding on the one hand, and those associated with over protection on the other. This article revisits the market failure theory in the context of plant variety protection (PVP) regimes, with specific reference to the Indian regime in comparison with UPOV 1991. It finds that knowledge contained in formally bred/improved plant varieties do not meet the criteria of nonexcludability that characterizes public goods. The article argues that current PVP regimes and associated policies fail to recognize actual market failures that plague this field of innovations today, thereby introducing new forms of market failure rather than addressing existing ones. The new market failures that result from such regimes and policies perpetuate suboptimal dissemination and skew the balance of incentives away from informal (farmer level) innovations and in situ agrobiodiversity conservation.