UPOV To Examine ARIPO Legislation On Plant Variety Protection

Several committees of the International Union for the Protection of New Varieties of Plants (UPOV) will meet this week. One of them is called to assess a draft legal framework on plant variety protection from the African Regional Intellectual Property Office (ARIPO).

The draft legislation has drawn ire from civil society who charge that it is detrimental to small farmers and who argue that ARIPO does not have legitimacy to become a UPOV member.

The 50th session of the UPOV Technical Committee will be held from 7-9 April, the 69th session of the Administrative and Legal Committee is scheduled on 10 April, and the 31st extraordinary session of the Council on 11 April in the afternoon. On the morning of 11 April, the Consultative Committee will hold its session.

The extraordinary session of the Council agenda [pdf] includes examination of the conformity of a draft protocol for the protection of new varieties of plants prepared by ARIPO, with the controversial 1991 Act of the UPOV Convention.

According to Peter Button, vice-secretary general of UPOV, extraordinary sessions of the Council are convened regularly, the most common reason being to examine the conformity of laws more than once a year.

The agenda and documents of the Consultative Committee, which is the preparatory committee of the Council, are under restricted access. Last fall, a civil society group released the Consultative Committee documents, which they obtained through freedom of information legislation (IPW, Biodiversity/Genetic Resources/Biotech, 22 October 2013).

The UPOV Convention, which was adopted in 1961 and revised in 1972, 1978 and 1991, represents sui generis IP protection that fulfils countries' requirements in joining the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Under TRIPS, countries must protect plant varieties and they can do so through a sui generis system, such as UPOV. Though, most ARIPO member countries are least-developed countries and are not yet required to implement TRIPS.

ARIPO's draft protocol is modelled after UPOV 1991. In a letter of 6 March, ARIPO submitted its draft protocol for review to UPOV, to determine its conformity with UPOV 1991, according to a UPOV document [pdf] obtained by Intellectual Property Watch. The document contains the draft protocol in an annex.

According to the list of UPOV members [pdf], 71 countries are currently members of UPOV, 51 of which are members of the 1991 Act of the Convention, and 29 which are members of the 1978 Act of the Convention.

Over 35 members of UPOV 1991 are developed countries, while most members of UPOV 1978 are developed countries, including Argentina, Brazil, China, Kenya, and South Africa. Also members of UPOV 1978 are some developed countries, such as Canada, and Norway.

Question on Eligibility of ARIPO
The efforts of ARIPO to adhere to UPOV 1991 have raised the concern of advocates for local farmers.

The non-profit Berne Declaration on behalf of the Association for Plant Breeding for the Benefit of Society (APBREBES), a group of civil society organisations, submitted questions to the World Trade Institute (WTI) concerning ARIPO's membership to the 1991 UPOV Convention.

The legal opinion [pdf] raised two key concerns, according to an APBREBES representative. The first was on the basis of Article 34 (1)(b)(ii) (Ratification, Acceptance or Approval; Accession), which requires that the instrument of an intergovernmental organisation has to be binding on all its member states.

According to the legal opinion, written by Thomas Cottier of WTI, since the draft ARIPO protocol is only binding on member states that sign up to the protocol, “Membership of ARIPO….is not compatible with the requirements of the UPOV Convention.”

The legal opinion also adds that “Basic requirements of UPOV membership are not fulfilled,” since “ARIPO as an Organization … is not in a position to comply with the requirements of Article 30(2) of the UPOV Convention under the draft Protocol of Accession” the APBREBES representative told Intellectual Property Watch.

Article 30(2) deals with the conformity of laws and states that, “It shall be understood that, on depositing its instrument of ratification, acceptance, approval or accession, as the case may be, each State or intergovernmental organization must be in a position, under its laws, to give effect to the provisions of this Convention.”

APBREBES also published comments [pdf] on the UPOV document containing the draft ARIPO protocol. One of the concerns expressed in the comments is that most ARIPO members do not have national legislation that allow them to implement UPOV 1991.

Question on ARIPO Bypassing National Laws
Questions also have arisen over whether ARIPO is attempting to bypass national laws. The Alliance for Food Sovereignty in Africa (AFSA) in a press release said it condemns the “sleight of hand moves by ARIPO to join UPOV 1991” and alleges that ARIPO is bypassing national laws and outlaws farmers' rights.

AFSA warns of implications of a potential ratification of the draft protocol by 18 ARIPO member states.

The release quotes Duke Tagoe of Food Sovereignty Ghana, a non-governmental organisation opposing Ghana's Plant Variety Protection Bill, as saying “this will mean that our government in Ghana, who has been struggling to pass our Plant Variety Protection (PVP) Bill because of local resistance that it is based on UPOV 1991, can simply dump our national processes and disregard farmers' rights, ratify the ARIPO Protocol and become a UPOV 1991 member, all in one foul swoop [sic]. This is wholly unconstitutional, violates the rule of law and is totally outrageous.”

For Mariam Mayet of the African Centre for Biosafety, ARIPO is acting beyond its legal mandate. Furthermore, she said in the release, “We are of the firm view that this move by ARIPO is in violation of several African regional instruments, including and especially the fundamental rights and freedoms protected by the African Charter on Human and People's Rights:”

AFSA has written several submissions to ARIPO detailing their concerns, in particular the fact that UPOV 1991 is unsuitable for African conditions, especially for least developed countries. But it said in the release, “These concerns have fallen on deaf ears.”

A major concern with UPOV 1991 is the inability of farmers to exchange or selling farm-saved seed/propagating material, “even in circumstances where breeders' interests are not affected,” AFSA Coordinator Million Belay said in the release. “Use of farm-saved seeds on a farmer's own holdings is allowed only for certain crops and this too may be subject to the payment of royalties to the breeder,” the coordinator said.

ARIPO member states are: Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.

AFSA calls on UPOV member states not to allow ARIPO to join UPOV 1991 and “that the Draft Protocol be sent back to the drawing board,” so that ARIPO can consult with smallholders.

UPOV: Convention Does Not Harm Farmers
According to UPOV, the UPOV Convention upon which the ARIPO draft protocol is modelled “only offers protection to new varieties of plants. UPOV does not regulate varieties that are not covered by plant variety protection. Therefore, plant variety protection does not restrict the ability of farmers to grow and sell propagating material of non-protected varieties.”

When it comes to protected varieties, “the 1991 Act of the UPOV Convention has a compulsory exception for private and non-commercial purposes activities, which may include 'subsistence farming', such that subsistence farmers can freely benefit from the availability of protected new varieties,” Button told Intellectual Property Watch.

Furthermore, he said, UPOV 1991 includes an optional exception to the breeders' rights according to which UPOV members can decide to allow farmers to replant seed on their own farms without the authorisation of the breeder, under certain circumstances.

Article 15 (Exception to the breeders' right) paragraph 2, of UPOV 1991, states that “[Optional exception] Notwithstanding Article 14 [Scope of breeders' right], each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by Article 14(5)(a)(i) or Article 14(5)(a)(ii).”

Article 14(5)(a)(i) refers to “varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety” and Article 14(5)(a)(ii) deals with “varieties which are not clearly distinguishable in accordance with Article 7 [distinctness] from the protected variety ..”.

Further UPOV 1991 Concerns
The 1991 version of the UPOV Convention has been the target of a number of concerns over the years. An analysis by the Association for Plant Breeding for the Benefit of Society (APBREBES) compares the 1978 and 1991 versions of the convention.

In particular, they note that in the 1991 version, farmers can no longer freely save seeds from protected varieties for their own use, and new varieties can benefit from a double protection, as breeders are allowed to have protection under UPOV 1991 and also patent their invention, which was banned under the previous UPOV Acts.

Furthermore, the document says, UPOV 1991 also extends the breeders' rights to harvested material. “If the farmer sowed his or her field with a PVP [plant variety protected] variety without paying the royalty fee, the breeder can claim ownership of the harvest and the products made from the harvest,” it says.

The document also explains that further breeding is restricted as only major changes in the variety can be protected, or else it will be considered as an “essentially derived” variety of the original plant.

The requirement for stable and genetically uniform plants imposed by UPOV for protection can also lead to the replacement of genetically-diverse traditional varieties by genetically uniform modern seeds, civil society says the report

Farmers groups and civil society have been protested their governments signing the UPOV 1991 convention, such as Ghana, Canada and Colombia (IPW, Biodiversity/Genetic Resources/Biotech, 25 February 2014).

On 20 February, some 50 civil society organisations from different parts of the world sent a letter [pdf] to the Parliament of Ghana, protesting against a currently pending plant breeders' bill that they say is modelled after UPOV 1991.

Technical, Administrative and Legal Committees
According to the Technical Committee draft agenda [pdf], the development of test guidelines will be discussed, as well as trial design and techniques used in the examination of distinctness, uniformity and stability of plants, including the revision of a number of further documents pertaining to examination.

The Technical Committee, according to the UPOV website, was established to provide a common approach to the concepts of distinctness, uniformity and stability for the different plant species and in particular for harmonising the different guidelines.

The Administrative and Legal Committee deals with all matters except from the areas covered by the Technical Committee. It addresses administrative, legal and finance policy matters, according to UPOV. On the draft agenda [pdf], is a document on matters raised [pdf] by the International Seed Federation (ISF).

The ISF raised some issues considered during the UPOV Consultative Committee during its 47th session on October 2013. The issues included confidentiality of information during the application process, the possibility of filing applications electronically, and the request by certain countries that the applicant provide seeds of the patent lines although “often the material is not used for the examination of the variety.”

The Consultative Committee said the issues raised could be addressed through existing and possible future UPOV information materials, according to the session document. In particular, being considered are an international filing system, a UPOV quality assurance programme and a central examination system for variety denominations.

Related Articles:
Critical Moment For Africa's Small Farmers As ARIPO Decides On Plant Variety Protection

African Regional Plant Variety Protection Draft Legislation Raises Protest

Plant Variety Protection Meets Resistance in Developing Countries; Consultations Coming

Catherine Saez may be reached at [email protected].
Categories: Features, Biodiversity/Genetic Resources/Biotech, Developing Country Policy, Development, English, Environment, Patents/Designs/Trade Secrets, Technical Cooperation/ Technology Transfer, WIPO

Source: UPOV To Examine ARIPO Legislation On Plant Variety Protection | Intellectual Property Watch http://www.ip-watch.org/2014/04/08/upov-to-examine-aripo-legislation-on-plant-variety-protection/