Report on the UPOV Autumn 2016 Session

Monday, 12 December 2016
APBREBES

UPOV member states gathered in Geneva between the 24th and 28th of October for UPOV's Autumn session. UPOVs main rule-making body, the Consultative Committee (CC) held its meeting the 27th of October, while the Council, the Union’s highest decision-making body, held its session the 28th of October. The meeting of the Administrative and Legal Committee (CAJ) took place the 25th of October.

The interested public could attend two events: On 24th October, the Seminar on propagating and harvested material in the context of the UPOV Convention was held, while on 26th October, the Symposium on possible interrelations between the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the International Convention for the Protection of New Varieties of Plants (UPOV Convention) took place.

The presentations are available here:  http://www.upov.int/meetings/en/details.jsp?meeting_id=40584

For a media report on the Symposium on Interrelations, see IPWatch (16 November 2016) "Panel Explores Relation Between Plant Breeders’ Convention and Plant Treaty"

On background see APBREBES Press Release ‘UPOV’s Symposium on Interrelations between ITPGRFA & UPOV, Inadequate to Implement “Farmers Rights” Resolutions’ (April 2016).

 

Seminar on Propagating and Harvested Material in the Context of the UPOV Convention

The UPOV Convention does not provide definitions of harvested resp. propagating material. Some national legislations provide definitions of propagating material that differ widely: Some like the European Union, define it along the potential or intended use of the propagating material, others base their definition on the factual use. The industry associations, particularly CIOPORA (International Community of Breeders of Asexually Reproduced Ornamentals and Fruit Plants) are pushing for Explanatory Notes on propagating material. Although such Explanatory Notes are not binding, but influence court decisions. CIOPORA demands a definition where “only material of a variety which is not capable, by any means, of producing another plant with the same characteristics should be considered to be harvested material in the legal sense”, and “Plant material must clearly be classified either as propagating material or as harvested material” (see  http://www.upov.int/edocs/mdocs/upov/en/upov_sem_ge_16/upov_sem_ge_16_ppt_2.pdf)

In the UPOV Conventions, there is also no definition of harvested material, but Explanatory Notes on Acts related to Harvested Material have been developed. CIOPORA demands a larger scope. It would affect harvested material from those developing countries which are no UPOV members but export agricultural products such as ornamentals or fruit to industrialised countries. CIOPORA members would like to levy license fees when the products are imported to UPOV member countries.

While the representative of COPA-COGECA Thor Kofoed commended the breeding progress and described the role of smallholder farmers in the EU as shrinking, Guy Kastler of Via Campesina Europe noted that impeding smallholder farmers to produce seeds would be an attack on food safety as smallholders often do not have access to formal seed markets.

The presentations of several law experts showed that there are only a few cases where definitions played a role, and that the lack of definitions has not been a problem.

In the subsequent negotiations of the Administrative and Legal Committee on the same subject, Susanne Gura of APBREBES explained that the WTO allows the Least Developed Countries to not fulfil the TRIPS agreement at least until 2021, and therefore not establish a PVP legislation. This advantage would be practically cancelled if licence fees would be levied on their agricultural exports, like CIOPORA has proposed. The UPOV member states recommended Explanatory Notes on Propagating Material that did not include a definition but a list of factors that have been considered by those member states that have definitions. The Explanatory Notes on Acts related to Harvested Material were not on the agenda. A draft was unsuccessful in 2014 and tabled again in 2015 without consensus.

 

Administrative and Legal Committee (CAJ)

Apart from the agenda items mentioned above and others, the 73rd session of the CAJ held on 25th October discussed Draft 7 of the Revision of the Explanatory Note on Essentially Derived Varieties. In Draft 7, an unresolved issue was whether the use of a parental line of a hybrid variety would lead to an essentially derived variety (paras 20 and 21). ESA and ISF submitted a joint proposal, which is reproduced in the Annex II of document CAJ/73/2 (LINK). Russia had rejected the proposal because hybrids and their parental lines are independent objects of protection, see their comment: http://www.upov.int/edocs/mdocs/upov/en/caj_73/caj_73_comments_ru.pdf.

Some members, including EU, rejected the proposal for not being clear. Also it introduced a new element, “physical use”, which needs clarification. After a controversial discussion, it was agreed to not include the proposed paragraph in the revised Explanatory Notes. However, the CAJ agreed to consider that matter further at the next CAJ session in view of a further future revision of the Explanatory Notes on EDV. The revised draft without the contested para will be forwarded to the next Council meeting for adoption. The Chair, Martin Ekvad, CPVO, noted the extensive comments provided by CIOPORA on a number of paras, see   http://www.upov.int/edocs/mdocs/upov/en/caj_73/caj_73_comments_ciopora.pdf. He considered not necessary to discuss them now.

The CAJ further noted that a meeting of the UPOV Secretariat with CIOPORA, ISF and WIPO is scheduled for 2017 in order to explore the possible role of UPOV with regard to Alternative Dispute Settlement on EDV matters, including the provision of experts.

The CAJ also discussed possible revisions of the Explanatory Notes on Conditions and Limitations Concerning the Breeders’ Authorisation in Respect of Propagating Material under the UPOV Convention, as well as the Explanatory Notes on Provisional Protection under the UPOV Convention. In both cases, the related proposals by the Russian Federation will be circulated and additional proposals requested. The next CAJ session would then decide whether to start revision of the two Explanatory Notes.

The CAJ also recommended the launch of the Electronic Application Form for rose, soybean, lettuce, apple and potato.

Another issue on the agenda of the CAJ was "Molecular techniques". The CAJ discussed a report of a recent meeting of the Working Group on Biochemical and Molecular Techniques, and DNA-Profiling in Particular (BMT). It includes cooperation with the OECD, the International Seed Trade Association (ISTA) and ISO, as well as the use of molecular markers for the enforcement of plant breeders' rights in international trade.

For Background, see Susanne Gura, APBREBES (May 2015) Working Paper: Global, Profitable, Secret? DNA Fingerprints for Enforcement of UPOV’s Plant Variety Protection

 

Consultative Committee

Among many items on the agenda of the 92nd meeting of the Consultative Committee, this report highlights the International System of Cooperation, the Interrelation between the ITPGRFA and the UPOV Convention, the evaluation by WIPO’s Internal Oversight Division, and a proposed text for the Frequently Asked Questions on the contributions of UPOV to the UN Sustainable Development Goals.

The full report on decisions by the CC is available here: http://www.upov.int/edocs/mdocs/upov/en/c_50/c_50_17.pdf

  • Interrelations between the ITPGRFA and the UPOV Convention

Refering to the deliberations at the Symposium on Interrelations between the ITPGRFA and the UPOV Conventions, the Consultative Committee agreed that members of the Union and observers be invited to provide suggestions on any possible further action concerning interrelations between the ITPGRFA and the UPOV Convention for the consideration by the Consultative Committee at its ninety-third session, which is scheduled for Spring 2017.

  • International System of Cooperation (ISC)

Industry associations have in 2014 proposed an International System of Cooperation (ISC). UPOV members asked them to establish the need for such a system. A report was submitted in 2015, based on a questionnaire answered by seed companies. UPOV members were not satisfied with the data and concluded that the need for an ISC was not established yet.

The CC considered a proposal for mandate and Terms of Reference (document CC/92/10). An analysis of the need for an ISC was added to TORs, as well as advantages and disadvantages for farmers. Reference to the right of members to implement measures for achieving the objectives of the CBD was replaced by reference to international conventions more generally. The CC approved the Mandate and Terms of Reference of a Possible ISC Working Group, and the new “ISC Working Group” held a meeting on the same evening. The mandate now includes that the ISC-WG should assess whether an ISC is needed.

The ISC Working Group is composed by Bolivia, Brazil, Canada, Chile, Colombia, Ecuador, European Union (European Commission, Community Plant Variety Office of the European Union (CPVO), Estonia, France, Germany, Netherlands and United Kingdom), Japan, Norway, United States of America. Other members of the Union would be free to participate. If the WG-ISC recommends to invite observers or experts to any of its meetings, it would revert back to the CC. The meetings will be chaired by the Vice Secretary-General.

For more background information on the proposed International System of Cooperation:

Multinational seed industry pitches for further harmonization in UPOV (TWN 2014)

A simple “agreement” proposed to accommodate Industry’s UPOV-plus demands (TWN 2015)

Vague Results Question the Need for Harmonized PVP Filing System in UPOV (APBREBES 2015)

 

  • Evaluation by the WIPO Internal Oversight Division (IOD)

The WIPO Internal Oversight Division (IOD) presented its evaluation report on the 2014-2015 biennium. The main recommendation is that UPOV should prepare a draft Strategic Business Plan. The CC agreed to publish the report on the UPOV website (to be posted).

 

  • Communication strategy

A presentation was made by Steffen Nolappa of HFFA Research GmbH, Berlin, on the preliminary findings of “the socioeconomic and technological benefits of plant breeding in Vietnam since the introduction of PVP/UPOV membership – Preliminary results of an ex post assessment”. It was decided that it was not possible to prepare an impact study update, but members were encouraged to undertake their own studies and transmit results to the UPOV Secretariat. Also the UPOV Secretariat should prepare videos to illustrate benefits of UPOV.

 

  • FAQs on Sustainable Development Goals

The CC agreed that the UPOV members will be invited to comment and present new proposals and texton the proposed FAQ on how UPOV contributes to Sustainable Development Goals.

 

Council

The 50th Council session noted that Kenya, which since 1999 had been a member of the 1978 Act, had deposited its instrument of accession and become a member of the 1991 Act. Currently, 56 members out of 74 are members of UPOV 1991.

The Council elected Raimundo Lavignolle (Argentina) as its President and Marien Valstar (Netherlands) as Vice-President. Anthony Parker (Canada) was elected CAJ Chair and Patrick Ngwediagi (Tanzania) as Vice-Chair.

The Council received a presentation on the Evaluation Report of WIPO’s Internal Oversight Division, adopted a series of document revisions, and approved the launch of the Electronic Application Form, among other agenda items. The report on decisions is available here: http://www.upov.int/edocs/mdocs/upov/en/c_50/c_50_19.pdf.