The 2017 Autumn meetings for UPOV’s decision-making bodies ended with a number of decisions with consequences for implementation of Farmers’ Rights and the Sustainable Development Goals (SDGs). Below a report is provided on some of the key decisions taken and its impact.
UPOV’s bodies met in Geneva from 23rd to 27th October.
[Note: Meeting documents of the Consultative Committee and the Working Group on a Possible International System of Cooperation, are not publicly accessible. However they may be accessed here, posted by APBREBES obtained using the Freedom of Information Act.]
Interrelations with the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)
UPOV’s main decision-making forum, the Consultative Committee considered suggestions for possible further action concerning interrelations between the ITPGRFA and UPOV Conventions. This follows a symposium held last October that revealed conflicts in the interrelation between UPOV and ITPGRFA: Symposium Reveals Conflict in Interrelations Between UPOV and ITPGRFA; UPOV To Consider Proposals.
[The identification of interrelations emerged with the adoption in 2013 of Resolution 8/2013 on "Implementation of Article 9, Farmers' Rights" by the ITPGRFA Governing Body. Motivated by concerns that the activities of UPOV and the World Intellectual Property Organization (WIPO) were undermining implementation of Article 9, the Resolution requested the ITPGRFA Secretariat "to invite UPOV and WIPO to jointly identify possible areas of interrelations among their respective international instruments".]
The Committee considered proposals for further action submitted by several member states as well as observers i.e. APBREBES, the International Seed Federation (ISF) and the European Seed Association (ESA). The submissions are contained in CC/93/5. Observers also made interventions at the Committee.
In its intervention, APBREBES recalled that experts participating in the symposium had demonstrated how certain provisions and interpretations of the UPOV Conventions especially its 1991 Act as well as activities of the Office of the Union conflicts with Farmers’ Rights. During the examination of the PVP laws of several developing countries, UPOV has called for the deletion of provisions that safeguard Farmers’ Rights such as the right of small-scale farmers to exchange and sell farm saved seed, said APBREBES.
It further said that independent expert literature to date has also highlighted how UPOV’s requirements are undermining full achievement of Farmers’ Rights. For instance, a study published on behalf of the German Federal Ministry for Economic Cooperation and Development in 2015 concludes: “UPOV 91‐based PVP laws were found to not advance the realisation of Farmers’ Rights; rather they are effective in the opposite direction”
The time has now come for UPOV to address some of these conflicts, added APBREBES.
APBREBES highlighted that an important starting point would be to revise the Explanatory Note on Exceptions to the Breeder's Right under the 1991 Act of the UPOV Convention to allow smallholder farmers complete freedom to operate with regard to protected varieties, noting as well that some UPOV Members as well as the ESA have called for the same. The UPOV’s FAQ (Frequently Asked Questions) on interrelations should not be the starting point, it added.
APBREBES further stated that participation in decision-making is another key issue, adding that much remains to be improved within UPOV in terms of farmer participation, as illustrated by the lack of farmer representatives as speakers at the symposium on Farmers’ Rights in October, as well as when UPOV carries out technical assistance and capacity building activities at national and regional levels. It called on UPOV to adopt a decision to implement Farmers’ Right to participate in all UPOV’s activities and develop guidelines in this regard and referred UPOV Members to its study on the matter.
APBREBES also said that UPOV could better contribute to the realization of Farmers’ Rights by allowing mechanisms to realize Farmers’ Rights to fair and equitable benefit sharing. UPOV’s rejection of disclosure requirements in PVP legislation perpetuates inequity and is unacceptable. It called for a decision recognizing the right of governments to require in their PVP legislations disclosure of origin and evidence of prior informed consent and benefit sharing.
Argentina questioned the need for amending the explanatory note arguing that the note was not obligatory. In response, APBREBES highlighted that UPOV Secretariat assesses PVP laws on the basis of the explanatory note, and accordingly have called several developing countries such as Malaysia and Philippines to delete provisions implementing Farmers’ Rights from their PVP law.
It further clarified that the way in which the explanatory note addresses “private and non-commercial use” exception is narrow and not reflective of the practices of smallholder farmers since it only allows use of farm saved seed for the farmer’s own consumption with no right to exchange or sell to other smallholder farmers. This jeopardizes the realisation of Farmers Rights, stressing it was important for UPOV to recognize smallholder farmers’ full freedom to operate, APBREBES added.
The European Seed Association (ESA) and the International Seed Federation (ISF) reiterated several elements of their respective proposals. In general, both interventions were of the view that the main problem was miscommunication and lack of cooperation, rather than a conflict between the treaties. ESA representative though accepted that the definition of the exception of “private and non-commercial use” should be further worked on. The ISF representative in particular stressed that both the treaties were mutually supportive.
In response, APBREBES stressed that for the treaties to be mutually supportive, countries need to have policy space. Developing countries are being asked to join UPOV 1991 through free trade agreements and the countries that have implemented PVP legislations in a manner supportive of Farmers’ Rights are asked by UPOV to remove clauses that were favorable to farmers. During the symposium experts had highlighted the case of Malaysia and Philippines, which were advised by the UPOV Secretariat to remove Farmers’ Rights clauses from their national PVP legislation, APBREBES said, adding that to realize Farmers’ Rights, developing countries had to have policy space.
On this item, the Committee agreed to “(i) to review the FAQ on the interrelations between the UPOV Convention and the ITPGRFA; and (ii) exchange of experience and information on the implementation of the UPOV Convention and the ITPGRFA, with the involvement of stakeholders.”
“As a next step, the Consultative Committee would consider the need for a revision of the current guidance in the “Explanatory Notes on Exceptions to the Breeder's Right under the 1991 Act of the UPOV Convention” (document UPOV/EXN/EXC).”
The Committee further agreed that “In order to advance on items (i) and (ii), members of the Union and observers to the Council would be invited to make proposals on the revision of the above-mentioned FAQ and proposals on how to facilitate the exchanges of experiences and information on the implementation of the UPOV Convention and the ITPGRFA with the involvement of stakeholders. The Office of the Union would prepare a document containing the proposals received for consideration by the Consultative Committee at its ninety-fifth session to be held in October 2018.”
The decision by the Committee is rather bizarre as it calls for the FAQ to be reviewed when the primary document defining the exceptions to breeders’ rights is the Explanatory Note on Exceptions to Breeder’s Right. It makes one wonder if UPOV members are serious about addressing the conflict between the ITPGRFA and the UPOV Conventions.
UPOV Fit for Purpose to Realize SDGs?
UPOV’s bodies approved a FAQ on how the UPOV system contributes to the SDGs. However in-depth analysis of the FAQ reveals a number of unsubstantiated and misleading assertions.
The FAQ reaffirms the vision of the 2030 Agenda for Sustainable Development which includes a world where “food is sufficient, safe, affordable and nutritious”, there is “sustained and inclusive economic growth, social development, environmental protection and the eradication of poverty and hunger” and one in “which development and the application of technology are climate-sensitive, respect biodiversity and are resilient”. It then goes on to speak of the importance of improved varieties, without recognizing that many of these varieties are not the result of plant variety protection.
The FAQ emphasizes the importance of new varieties of plants with features such as improved yield, resistance to plant pests and diseases, salt and drought tolerance, or better adaptation to climatic stress. Ironically, UPOV only promotes development of uniform varieties, and these varieties are widely acknowledged to be less resilient to the aforementioned challenges and thus a threat to the development of sustainable agriculture. . The International Panel of Experts on Sustainable Food Systems (2016) in “From uniformity to diversity: A paradigm shift from industrial agriculture to diversified agroecological systems found numerous historical examples of vulnerability linked to genetic uniformity in monocultures or industrial scale livestock rearing, resulting in significant economic losses and large-scale suffering”. In UNCTAD, 2013 , it is also stated “Since the modernization of agriculture, farmers and researchers have been faced with a major ecological dilemma arising from the homogenization of agricultural systems, namely the increased vulnerability of crops to pests and diseases, and now to climatic variability. Both these phenomena can be devastating in genetically uniform, large-scale, monoculture conditions.”
The FAQ further highlights the relevance of diversity of breeders in the public and private sector claiming that PVP protection “provides a framework for investment in the delivery of seed and other propagating material of varieties suited to farmers’ needs”. This aspect of the FAQ totally fails to acknowledge the role of farmers especially smallholder farmers as breeders, although the past and present contributions of these farmers in the development of plant genetic resources are globally recognized. It also reveals the flawed thinking of UPOV i.e. that farmers are mainly users of seeds. Having said that, in most developing countries it is not the commercial sector supported by the PVP system but rather the informal seed sector (also commonly known as the farmer managed seed system) underpinned by the practices of freely saving, using, exchanging and selling farm saved seed that deliver varieties that are suited to farmers’ needs. Farmer seed systems supply as much as 80% of seeds to farmers in developing countries. Data also shows that small farmers, largely women, are preserving landraces of important food crops including 75% of the global seed diversity of staple food crops such as maize, rice, wheat and potatoes.
A feature specifically highlighted by the FAQ is the breeder’s exemption. On this it states “The “breeder’s exemption” in the UPOV Convention enables plant diversity to be available for further breeding activities because acts done for the purpose of breeding other varieties are not subject to any restriction by the breeder.”
This statement is rather misleading. Both the Conventions of UPOV have breeder’s exemption, but they are somewhat different, a fact ignored by the FAQ
In the 1991 Act, there are restrictions linked to the use of the breeder's exemption. Where the newly bred variety is an essentially derived variety (EDV), or its production requires the repeated use of the protected variety or the newly bred variety is not clearly distinguishable from the protected variety, authorization of the right holder is required for the production and commercial use of the variety.
Under the 1978 Act, breeding of new varieties using the protected varieties and even the marketing of the newly bred varieties is allowed. Authorization of the right holder is only required if the commercial production of a variety requires the repeated use of the protected variety. The concept of EDV does not apply.
The FAQ highlights UPOV’s Impact Study adding that “membership of UPOV provide important technical assistance and facilitate opportunities for cooperation, which enables PVP to be extended to the widest range of plant genera and species in an efficient way thereby enabling the benefits to be maximized.”
However UPOV’s Impact Study has been heavily criticised for the lack of rigorousness. In its critique, the Berne Declaration critically analyses the methodology of the UPOV study and concludes that it used narrowly drafted indicators, without taking into account key issues such as food security, agro-biodiversity, availability of seeds for small farmers, or defining what “for the benefit of society” is supposed to mean. Therefore, it does not provide a reliable basis for decision-making for countries that may be considering joining UPOV 1991.
Also worth noting is that alternative sui generis PVP systems would also allow countries to extend protection to a wide range of plant genera and species, should that be in the interest of the country.
The FAQ also claims without any empirical evidence that the UPOV system has particular relevance in relation to the following United Nations Sustainable Development Goals (SDGs): Goal 1, End poverty in all its forms everywhere (Targets 1.1, 1.4, 1.5, 1.a, 1.b); Goal 2: End hunger, achieve food security and improved nutrition and promote sustainable agriculture (Targets 2.1, 2.2, 2.3, 2.4, 2.5, 2.a); Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation (Target 9.5); Ensure sustainable consumption and production patterns (Targets 12.2, 12.3, 12.4, 12.a); Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss (Target 15.3); Strengthen the means of implementation and revitalize the global partnership for sustainable development: Systemic issues: Multi-stakeholder partnerships (Target 17.17).
In contrast to UPOV’s claims, existing independent literature cautions developing countries about joining the UPOV system and instead recommends that developing countries develop alternative sui generis PVP systems that are more suited to the agricultural systems and needs of their countries.
The UPOV system was crafted taking into account the commercial seed systems prevailing in industrialized countries. Its inflexible and restrictive framework is biased in favour of the commercial seed sector with a focus on commercially viable varieties. As the existing literature shows, this is at the expense especially of smallholder farmers, the environment and public interests. Given this conclusion, it beggars belief that the UPOV system contributes to the achievement of SDGs.
UPOV approves draft PVP laws, jeopardises Farmers’ Rights
UPOV Council approved the draft plant variety protection laws of Myanmar, Guatemala and Brunei Darussalam following an assessment of conformity with the 1991 Act of the UPOV Convention. However the decision comes at a price as UPOV Secretariat advised these countries to remove or to not include provisions safeguarding Farmers’ Rights.
Myanmar is a least developed country meaning one of the most vulnerable economies in the world. Agriculture is a major component of Myanmar’s economy, with the farmer managed seed system (i.e. the informal seed system) providing more than 95% of all seed used by farmers for most crops including rice. This sector is underpinned by the practices of freely saving, reusing, exchanging and selling seed/propagating material.
In Myanmar, farmer seed systems are the backbone of its agricultural system. Despite this fact, UPOV advised the Myanmar government to remove provisions safeguarding farmers’ rights from its draft national PVP legislation. Myanmar’s existing PVP legislation adopted in 2016, allows use of the protected variety for cultivation for non-commercial purposes and exchange of varieties among farmers. However, Myanmar has been advised to drop these provisions implementing Farmers’ Rights from its new draft PVP legislation.
UPOV Secretariat has been providing technical assistance to Myanmar since 2012. In October 2016, UPOV Secretariat informed Myanmar that the PVP legislation that was adopted did not correspond with the 1991 Act, and proposed several changes. Thus the draft law that has been submitted to the UPOV Council, mirrors the 1991 Act. Farmers’ right to exchange has been removed. The broad exception of “non-commercial purposes” has been replaced with the narrow exception of “private and non-commercial use”, which is generally interpreted as not allowing exchange of farm-saved seeds or sale of such seeds to the local markets. The draft law also contains restrictions to seed saving, which goes beyond the requirements of the 1991 Act. When using the protected varieties, only small farmers are allowed to save seeds on their own holdings for a specified list of crops that excludes fruits, ornamentals, vegetables and forest plants. Such a restriction makes Myanmar’s agriculture less competitive than many other UPOV members that do not implement a similar restriction.
According to sources, Myanmar has been unaware of the availability of the LDC transition period during which period it need not implement any TRIPS obligation as well as the possibility of implementing an alternative sui generis plant variety system that is more suited to its agricultural system and needs.
In the case of Guatemala, the UPOV Secretariat has been advising Guatemala on the development of an UPOV compliant PVP legislation since 2006. In 2005, Guatemala signed the US-Dominican Republic-Central America Free Trade Agreement (US-DR-CAFTA), which obliged it to become a member of UPOV 1991.
Given UPOV’s advise to developing countries is to delete provisions safeguarding Farmers’ Rights, it is not surprising that although Guatemala is a member of the ITPGRFA, provisions implementing Farmers’ Rights are missing from its draft PVP law submitted to the UPOV Council for its approval. Even provisions allowing seed saving are limited.
This is Guatemala’s third attempt to become a party to the 1991 Act of UPOV. In 2009, Guatemala informed UPOV Secretariat that the Draft Law of 2006, which was approved by the UPOV Council was no longer relevant and that a different Draft Law (Draft Law of 2009) was being prepared by the Government. The subsequent Draft Law of 2009 also received a positive decision of the UPOV Council. However the Draft law of 2009 which was scheduled to enter into force on 26th September 2014, was repealed by the Congress on 5th September 2014
The law inter alia criminalized the use, exchange and sale of farm-saved seed of a PVP-protected variety and made it punishable with one to four years in prison and a fine of between 1,000 and 10,000 quetzals (US$130- 1,300) according to a publication. The law was drafted with the support of the UPOV Secretariat and without any consultation with farmers, indigenous groups and other parts of civil society that would be affected by the law.
This controversial PVP law triggered mass protests in the country, with indigenous and small-scale farmers in Guatemala referring to it as the “Monsanto law”. A large part of Guatemala’s population of whom more than half are indigenous people, depend on agriculture for their livelihoods and food security. Some 80% of seed production comes from small farmers who produce most of the country’s staple food. Therefore, the PVP law was seen as a violation of the rights of indigenous peoples as well as a threat to food security. The matter was taken to the Constitutional Court, which on 29 August 2014 ruled to suspend the law based on demands of different farmers’ organisations and CSOs.
What Next for the International System of Cooperation (ISC)?
The third meeting of the Working Group on a Possible International System of Cooperation (WG-ISC) heard presentations by several UPOV members on selected topics with the Consultative Committee noting that progress was made.
The ISC agenda item follows a 2014 proposal by industry associations, the International Seed Federation (ISF), the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Plants (CIOPORA) and CropLife International (CLI), that jointly represent the interests of the mainstream seed industry, including multinational seed companies such as Monsanto, Syngenta, Bayer, DuPont Pioneer, and DowAgroSciences (which continue to control about 75% of all private sector plant breeding research, and 60% of the commercial seed market) and seed giants in the ornamental and fruit sectors.
Since then several UPOV members have questioned the need for an ISC.
Despite reservations of several UPOV members, in October 2016, the UPOV Council agreed to establish a Working Group on a Possible International System of Cooperation (WG-ISC). The first meeting of the WG-ISC ended with some members indicating some of the needs of PVP Offices in connection with examination of distinctness, uniformity and stability (DUS), novelty, variety denomination, cooperation in administrative matters and facilitating applications.
However at the second meeting of the WG-ISC, it emerged that there was no concrete evidence to show that these were indeed the need of PVP offices. In contrast, UPOV’s own technical survey shows that ISC proposals are unjustified: “Vague Results Question the Need for Harmonized PVP Filing System in UPOV”.
More recently a survey on cooperation in DUS examination (TC/53/20) revealed that an overwhelming majority of PVP offices are of the view that nothing more needs to be done in that area.
In addition, UPOV members further highlighted that there is no empirical evidence that the need of one or two countries is indeed representative of the needs of all UPOV members and thus action is needed and that there is significant duplication in the activities of UPOV.
Even more importantly, it was pointed out that many of the ISC proposals were beyond the terms of reference of the Working Group, were not a high priority and/or were not seen to be feasible in the short-/medium-term.
Essentially Derived Varieties Dominates the 74th Session of CAJ
Essential derivation is an issue introduced by the 1991 Act of the UPOV Convention and is heavily contested. The CAJ is considering possible revision of document UPOV/EXN/EDV/2 “Explanatory Notes on Essentially Derived Varieties under the 1991 Act of the UPOV Convention”
Given the differences in views, the CAJ has agreed to include in the program for its seventy-fifth session the following three items and to invite presentations by members and observers to share their perspectives on the indicated substantive matters:
(a) Essentially Derived Varieties: (i) essential characteristics, (ii) predominantly derived, (iii) indirect derivation, including in relation to parent lines and hybrids. (iv) assessment of essentially derived varieties
(b) Conditions and Limitations Concerning the Breeder’s Authorization in Respect of Propagating Material - suitable examples of conditions and limitations
(c) Scope of Provisional Protection
Minimum Distance: In response to a suggestion by CIOPORA and AIPH for the CAJ to consider the matter of minimum distance, the CAJ agreed to invite CIOPORA and AIPH to make a joint presentation on minimum distance at its seventy-fifth session.
CIOPORA represents breeders of fruits and ornamentals; almost half of protected varieties globally are ornamentals while the AIPH is the International Association of Horticultural Producers.
A CIOPORA letter dated 18th October 2017, states that it would like to raise the awareness of the CAJ of the topic of Minimum Distance / Distinctness, namely the questions
“- whether characteristics used for uniformity and stability could differ from those used for distinctness under the UPOV 1978 Act and the UPOV 1991 Act”
“- whether a differentiation of important characteristics and unimportant characteristics for the evaluation of Distinctness is permissible under the UPOV 1978 Act and the UPOV 1991 Act”
“- whether it is permissible under the UPOV 1978 Act and the UPOV 1991 Act to apply different rules for the evaluation of Distinctness for vegetatively reproduced ornamental and fruit species versus seed propagated agriculture and vegetable species.”
The letter further adds that the “background of the discussion is the joint request of the breeders of asexually reproduced ornamental and fruit varieties, organized in CIOPORA, and the horticultural producers, orgainzed in AIPH, to have sufficient minimum distance between varieties for an effective Plant Variety Right”.