|Keywords:||Plant breeders' rights; Farmers' rights; Technology transfer; Trade.|
|Correct citation:||Ghijsen, H. (1998), "Plant Variety Protection in a Developing and Demanding World." Biotechnology and Development Monitor, No. 36, p. 2-5.|
According to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), countries have to "provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof". To date, only UPOV provides a workable example of a sui generis system. The UPOV system emerged in Western Europe between 1930 and 1960, when agriculture was dominated by small farmers who became interested in new and improved varieties. UPOV was based on several national European PVP systems. The founding countries Italy, Germany, France, Belgium and the Netherlands did not follow the Paris Convention for the Protection of Industrial Property of 1883. It was felt that, due to the Convention’s scope of protection and the exclusive rights of its patent system, patents would impede the common practice of using protected plant varieties for further commercial breeding. In the UPOV Conventions of 1961 and 1978 this phenomenon was acknowledged by the breeders’ exemption (see box 1).
|Exemptions from PVP
The breeders’ exemption allows plant breeders to freely use protected
varieties for the development of new varieties. However, this has been
limited in the latest UPOV Convention of 1991 by the provision of essential
derivation. This provision extends the scope of protection for a variety
over the material of a newly developed cultivar which is derived from the
original variety. So far the breeders’ exemption plays a key role in the
UPOV - PVP system, as it prevents the monopolization of a particular breeding
aim. Only the specific variety as such is protected and not the breeding
method, nor crops’ ingredients or particular traits like disease resistance.
Therefore any breeder can follow new developments, without infringing the
rights of the previous breeder. This freedom of operation does not exist
under a utility patent system.
Analysing the key issues
In discussing PVP, it is useful to categorize the crops into three groups: (1) open pollinated food crops, (2) inbred lines and horticultural crops, and (3) medicinal plants. For each group specific characteristics have to be taken into account with regards to the application of PVP.
• Open pollinated food crops, such as cereals and tubers, represent the most complicated cases, fuelling most discussions on the PVP issue. Millions of farmers re-use the grains or tubers that they harvest for next season’s production. Moreover, within the context of informal seed systems in which farmers freely exchange, trade and save seeds, landraces and indigenous knowledge often contribute to the adaptation of varieties to specific farming systems. This approach fosters a quick dissemination of newly developed varieties.
In developing countries it seems appropriate to have a Plant Breeders’ Right (PBR) which allows for free seed saving and flow of seeds between farmers for open pollinated food crops. However, to offer an effective sui generis system, care must also be taken for the remuneration of the breeder. This could be done by means of a public or private central fund from which the breeder gets paid on the basis of the acreage of the breeder’s protected variety that is grown by the farmers. The endowment for the fund could be raised by the government, the farmers or both, depending on the national situation.
At the same time farmers may save, exchange and trade non-commercially the seed of the protected variety. Such an approach could be more effective than a system in which breeders collect their royalties from each farmer individually.
There are alternative avenues to pursue a balance between breeders’ remuneration for and farmers’ access to newly developed varieties. For instance, national PVP legislation could include a provision for the compulsory licensing of varieties of open pollinated food crops. This would provide a right for any interested party to save and trade the seed of protected varieties, with or without the obligation to pay a royalty. Another possibility would be to extend the farmers’ privilege (see box 1) to seed exchange and small, non-commercial seed trade. For both alternatives it has to be guaranteed that, if no royalties are paid, the breeder will get a remuneration from, for instance, the central fund.
• For inbred lines and horticultural crops, such as ornamentals, fruits, vegetables and plantation crops, there has been limited discussion about farmers’ privilege. The biological features of the protected material make its re-use unattractive for farmers. For horticultural crops, the harvested product generally cannot be used as propagating material for the next generation as it is the case with grains from cereals. Due to their low yield inbred lines, used to produce seed of hybrid varieties commercially, they are not interesting for the farmer/consumer but only for the competing breeders. PVP for ornamentals can create an incentive to disseminate newly developed varieties. Breeders from industrialized countries will export their best and most recent varieties more easily to countries in which an effective PVP system has been implemented. For these crops the extension of the protection to the harvested product and the concept of essential derivation (see box 2) are important provisions to safeguard breeders’ inventions against plagiarism.
• The property status of medicinal plants is the object of a political debate. It is felt to be an injustice that these valuable plants can be protected by an Intellectual Property Right (IPR), because they are considered as a heritage of humanity and should not be monopolized by a few.
For medicinal plants, the risk of monopolization and unfair appropriation could be minimized by requiring a certificate of novelty as part of the application for protection under a PVP system. This certificate could be provided by an authorized organization, representing the regional community. Some varieties of valuable species may only be known locally, therefore the place of origin should also be stated in the application. By this provision, valuable plants would remain in the public domain. However, it still leaves an open possibility to use them for the development of new distinct varieties.
Another possibility is applied by Ecuador in its PVP legislation under UPOV 1978. PBR cannot be claimed for wild species that have not been planted or improved by human invention.
|Overview of some key provisions of the UPOV
Acts of 1978 and 1991
Incentives for plant breeding
A PVP system can prevent the piracy of landraces, but their in situ maintenance and the sharing of benefits by farmers or communities should be regulated outside the main PVP system, namely to avoid complicated regulations.
Farmers’ Rights as well as provisions for Prior Informed Consent (PIC) in the CBD have a tendency to limit the access to germplasm. This may have an adverse effect on plant breeding as a whole and create the opposite result of their original aims. It may favour the bigger organizations, which can easily, with the help of local communities, prevent competitors from collecting valuable germplasm.
The best way for the local communities to obtain remuneration for their work done in the present and the future is the breeding of improved varieties by local farmer-breeders. This also minimizes the chance that farmers have to buy seeds of foreign varieties that have been improved from farmers’ original landraces. The sui generis PVP system as represented by UPOV has a limited scope of protection and offers two very important exceptions on its exclusive property right: the farmers’ privilege and the breeders’ exemption. These guarantee farmers an easy and cheap access to new varieties and keep the door wide open for breeders freely to use any protected variety for further plant breeding.
The UPOV system could be recommended for all countries for the protection of new plant varieties, as the most experience has been acquired within this legal framework. Furthermore, UPOV contains important exemptions. It is to be hoped and expected that the issue of seed exchange of open pollinated food crops between farmers can be solved within the UPOV Act of 1991.
CPRO-DLO, P.O. BOX 16, 6700 AA Wageningen, the Netherlands.
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C.J.M. Almekinders et al (1994), "Local seed systems and their importance for an improved seed supply in developing countries". Euphytica 78, pp. 207-216.
H.C.H. Ghijsen (1998), "To be or not to be an EDV". Prophyta The Annual, May/June, pp. 24-30.
GRAIN (ed.) (1997), Signposts to Sui Generis Rights. Background discussion papers for the international seminar on sui generis rights. Bangkok, Thailand: BIOTHAI.
International Convention for the Protection of New Varieties of Plants, (1978 and 1991), 1UPOV Acts of 1978 and 1991. Geneva, Switzerland: UPOV.
PVP, APSA workshop Asian Seed, volume 4, No. 2, April 1997, p.3, p.7.
World Trade Organization (1994), Agreement on Trade Related Aspects of Intellectual Property Rights. Geneva, Switzerland: WTO.
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