UPOV: Symposium Reveals Conflict in Interrelations Between UPOV and ITPGRFA; UPOV To Consider Proposals

Tuesday, 4 April 2017
Sangeeta Shashikant, Third World Networ

Geneva, 4 April (Sangeeta Shashikant) – The International Union for the Protection of New Varieties of Plants (UPOV) will consider suggestions for possible further action concerning interrelations between the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and UPOV, at its sessions this week

These suggestions follow the symposium organized jointly by the ITPGRFA and UPOV on 26 October 2016, whereby several experts explicitly highlighted the multiple conflicts between the requirements of UPOV, especially its 1991 Act, and implementation of Farmers’ Rights by members of the ITPGRFA.      

UPOV’s executive body, the Consultative Committee, will meet in Geneva in the morning of 6 April, while its highest decision making body, the Council, will meet in the afternoon of the same day.

Farmers’ Rights in the context of the ITPGRFA (Preamble and Article 9) includes the right to save, use, exchange and sell farm-saved seed/propagating material; protection of traditional knowledge; the right to equitably participate in sharing benefits arising from the utilization of plan genetic resources for food and agriculture (PGRFA); and the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of PGRFA.

Article 9.1 of the ITPGRFA also recognizes the “enormous contributions” that local and indigenous communities and farmers “have made and will continue to make” not only in the conservation but also the “development of plant genetic resources” which “constitute the foundation for food and agriculture globally”.

The subject of 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".

In March 2015, the Treaty’s Ad Hoc Committee on Sustainable Use met, and drawing from the multiple submissions received on the subject of interrelations, identified a list of issues to be addressed on the matter. (See paragraph 8 of IT/ACSU-2/15/4 available at http://www.planttreaty.org/sites/default/files/acsu2w4.pdf).

Subsequently, in October 2015, the ITPGRFA Governing Body adopted another resolution urging the Treaty secretariat to "continue with the process".

In its 2016 spring session, the UPOV Council decided to hold a joint symposium with the ITPGRFA on the subject of interrelations. However, its decision drew criticism from civil society groups that argued inter alia that the programme for the symposium examined in general the interrelations between UPOV and the ITPGRFA, rather than focusing on the issue of Farmers’ Rights; that the process had been taken over by the UPOV Secretariat and did not include experiences of peasant farmer organizations, or the experiences of Parties to the ITPGRFA that have implemented non-UPOV sui generis plant variety protection (PVP) systems and thus were in a better position to fully realize Farmers' Rights.

 

When the symposium was held, several of these criticisms proved to be valid. The symposium did not feature any representative of farmers. Neither did it include experiences of countries implementing non-UPOV PVP systems.

Guy Kastler from La Via Campesina, a global association of peasant farmers, speaking from the audience, said La Via Campesina asked to join the symposium as a speaker, since the symposium was going to discuss Farmers’ Rights, but did not get any answer to that request.

He also said that there are multiple examples showing that farmers’ seeds, in particular through organic agriculture, led to the same yields as certified seeds. However, they cannot meet UPOV’s criteria of stability and homogeneity, he added.

Farmers’ Rights in ITPGRFA vs. UPOV Requirements: Is there a Conflict?

 

Szonja Csörgő, director of Intellectual Property and Legal Affairs at the European Seed Association in Belgium, said the perceived conflict between breeders and farmers’ rights is a “false conflict.” She also expressed opposition to an article-by-article scrutiny in examining the interrelations between ITPGRFA and the UPOV Conventions.

Csörgő said UPOV has no relevance when it comes to the protection of traditional knowledge in the context of Farmers’ Rights while participation of farmers in decision-making is a matter of implementation at the national level. She added that the right to benefit sharing is also provided by the UPOV system, notably through the breeders’ exemption.

On the right to save, exchange and selling farm-saved seed, if a farmer uses protected plant varieties, there is an interrelation between the two instruments. She said that the acts of subsistence farmers were covered by the exception of “private and non-commercial use” in Article 15(1)(i) of UPOV 1991. However, other farmers including small farmers using the protected varieties may be allowed to save seeds but will not be allowed to exchange or sell farm saved seeds.

 

Sangeeta Shashikant, legal advisor of the Third World Network argued that Farmers’ Rights cannot be fully implemented in view of the requirements of UPOV 1991.

She said that Article 15.2 of UPOV 1991 allows a farmer using a protected variety to save seed and replant on the farmer’s own holdings, but this is subject to certain conditions and may be subject to payment of compensation. It does not allow farmers to freely exchange and sell seeds/propagating material.

Article 15(1)(i) of the 1991 Act states that breeders rights shall not extend to “acts done privately and for non‐commercial purposes”, she said, adding that this exception is defined narrowly by UPOV’s guidance on the matter. The guidance states that, “non‐private acts, even where for non‐commercial purposes may be outside the scope of the exception”.

She pointed out that subsistence farming is understood by UPOV to be “propagation of a variety by a farmer exclusively for the production of a food crop to be consumed entirely by that farmer and the dependents of the farmer living on that holding”.

She further said that this extremely restrictive understanding means that even multiplication of the protected variety to produce food crop to be consumed by a neighbour (not living on the holding) would not fall within the exception. Clearly that understanding is not practical nor realistic given that even subsistence farmers would in reality exchange and sell farm saved seed.

Shashikant then critiqued UPOV’s Frequently Asked Questions (FAQ) that state, “within the scope of the breeder’s right exceptions ... UPOV Contracting Parties have the flexibility to consider, where the legitimate interests of the breeders are not significantly affected, in the occasional case of propagating material of protected varieties, allowing subsistence farmers to exchange this against other vital goods within the local community.”

She argued that the FAQ cannot be supported by the text of Article 15 of the 1991 Act, is not supported by practices of UPOV, and covers “occasional” exchange. This means exchange of seeds/propagating material as a regular component of farming practices is still not recognized by UPOV and creates uncertainty as to how a farmer is to know when the breeders’ rights are not affected and exchange is allowed.

Shashikant cited the examples of two members of the ITPGRFA (Malaysia and the Philippines) that were required by UPOV to delete inter alia provisions in their national plant variety protection legislation that implemented farmers’ right to save, use, exchange and sell farm save seeds, if they wished to join UPOV 1991. 

She said it was evident there are contradictions between farmers’ right to use, save, exchange and sell seed/propagating material and the provisions of UPOV 1991.

On the conflict with farmers’ right to equitably participate in benefits arising from the utilization of PGRFA, Shashikant expressed concerns over the lack of mechanisms to prevent misappropriation and facilitate benefit sharing arising from the utilization of plant genetic resources developed by farmers.

She pointed out that disclosure of origin and evidence of compliance with access and benefit sharing requirements in intellectual property applications is widely seen as a crucial tool to prevent misappropriation of genetic resources and associated traditional knowledge, and to facilitate implementation of prior informed consent and fair and equitable benefit sharing arising from the utilization of such resources and knowledge.

However, disclosure is not acceptable to UPOV as a condition for granting breeders’ rights. She also said that UPOV has requested Parties to the ITPGRFA (e.g. Malaysia) to remove provisions concerning disclosure of origin and compliance of access and benefit sharing from national PVP legislations, adding that Peru deleted from its draft legislation a disclosure‐of‐origin obligation in anticipation of UPOV’s opposition.

She further stressed that the UPOV Convention lacked recognition of the contribution of local and indigenous communities and farmers. She pointed as evidence that farmer varieties are usually continuously evolving which increases their resilience against pests and diseases and consequently cannot meet the criteria of uniformity and stability and are not protected, adding that in any case, the cost of filing applications is beyond the reach of most farmers.

Shashikant also highlighted an inequality regarding Essentially Derived Varieties i.e. if a small change is made to a protected variety, breeders’ authorization is needed for commercialization. However, farmer varieties can be freely used for further breeding but a farmer has no rights over the varieties.

She also raised the concern of lack of recognition of traditional knowledge of farming communities and adverse effects on traditional knowledge, adding that UPOV’s restrictions on saving, exchange and selling protected seeds/propagating material could have a detrimental effect on the protection of traditional knowledge as farmers gradually lose their know‐how related to seed selection and seed preservation.

 

Another conflict in interrelations is UPOV’s activities including its support of processes that are neither participatory nor inclusive of farmers or their representatives. She referred to the recommendation of the previous UN Special Rapporteur on the Right to Food which recommended that governments put in place mechanisms for the active participation of farmers ... “particularly in the design of legislation covering [...] the protection of plant varieties so as to strike the right balance between the development of commercial and farmers’ seed systems”

As an example, Shashikant referred to UPOV’s support of the process of development of the Arusha Protocol for the African Regional Intellectual Property Organization, which repeatedly ignored requests of farmer organizations to be allowed to participate in meetings and engage in the process.

She concluded that non‐UPOV sui generis PVP systems offer Parties to the ITPGRFA full freedom to put in place mechanisms to implement all aspects of Farmers Rights, adding that some countries have done just that (Malaysia, India, Philippines, Ethiopia etc.).

In support, she referred to a study published by Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) on behalf of the German Federal Ministry for Economic Cooperation and Development in June 2015 titled “The UPOV Convention, Farmers’ Rights and Human Rights – An integrated assessment of potentially conflicting legal frameworks”.

The study concluded that “UPOV 91‐based PVP laws were found to not advance the realisation of Farmers’ Rights; rather they are effective in the opposite direction”. The study recommends that “Developing countries that have not yet joined UPOV should consider opting for alternative sui generis systems of PVP that allow for more flexibility in meeting the obligations of different treaties, for balancing the interests of diverse actors, and for protecting and promoting Farmers’ Rights, compared with the UPOV”.

The second conclusion of Shashikant was that there are conflicts between the requirements of UPOV and realization of Farmers’ Rights by Parties to the ITPGRFA, which need to be recognized and addressed.

Bram de Jonge, seed policy officer at Oxfam Novib, the Netherlands, stressed on the importance of Farmer Seed Systems which provides more than 80% of the total food crop seeds used by farmers. It is also the main channel through which smallholder farmers access new improved varieties from the formal sector, he added, as agro-dealers might be miles away, and the seeds are mostly unaffordable.  Farmer seed systems maintain agrobiodiversity (in situ conservation) and continue to create agrobiodiversity.

He referred to a study which made 9660 observations across six sub-Saharan countries, covering 40 crops which analysed how farmers access seeds: 51% from local markets; 31% farmers’ own stock; 8.6% from neighbours; 7.3% from government/NGOs/UN and 2.6% from agro-dealers.

He stressed that the use, exchange and selling in local markets of farm-saved seed forms the universal practice and backbone of farmer seed systems, and a key aspect of Farmers’ Rights and the ITPGRFA.

He said UPOV’s interpretation of its exception on ‘private and non-commercial use’ and subsistence farming is too narrow.

If the definition of subsistence is restricted to farmers cultivating land for their own use, it is invalid, said de Jonge. “No farmer in the world would be a subsistence farmer,” he said. “Any farmer after a good season would try to sell the harvest surplus.”

He urged UPOV to establish a proper and explicit balance between Farmers’ Rights and Plant Breeders’ Rights in order not to obstruct the practice of seed exchange and trade among smallholder farmers.

He also said that the Acts of the UPOV do not include concrete mechanisms that secure compliance with access and benefit sharing rules as required by the Convention on Biological Diversity, the Nagoya Protocol on access and benefit sharing and the ITPGRFA.

He further urged UPOV to facilitate and support the possibility for Member States to grant plant breeders’ rights only to applicants that can show compliance with relevant access and benefit sharing requirements in order to prevent misappropriation of genetic resources and associated traditional knowledge.

Repeatedly (prospective) UPOV members establish or upgrade their PVP laws “behind closed doors” without a transparent and inclusive decision-making process, he said, and urged UPOV to promote transparency and democratic accountability in its decision-making processes and that of its (prospective) members, and support the active participation of farmers.

De Jonge also remarked on the importance of including farmers in discussions and on the fact that the symposium did not include any representative of small farmers.

Ms. Svahild-Isabelle Batta Torheim, Senior Advisor, Department of Forest and Natural Resource Policy, Ministry of Agriculture and Food of Norway said that the recognition of Farmers' Rights in the ITPGRFA is based on the fact that Farmers' Rights are essential for conservation and sustainable use of PGRFA as farmers are custodians and innovators of crop genetic diversity, adding that the legal space for farmers to save, sell and exchange varieties is therefore crucial. Furthermore, farmers' seeds systems provide reservoirs of PGRFA of great importance to agricultural production in light of climate change and other challenges in agriculture, such as emerging pests and diseases.

Particularly in developing countries, farmers' seed systems are the main source of seed for the majority of farmers, and these systems are embedded in local cultures and provide important means to maintain identity and traditions.

Batta Torheim also explained that Norway which is a member of UPOV 1978 has decided not to join UPOV 1991 as the 1978 Act provides for a better balance between plant breeders’ rights and Farmers' Rights. She added that keeping the 1978 Act is one example of how activities in the realm of plant variety protection took into account the concerns and perspectives of the ITPGRFA.

She added that while there were complementarities between the ITPGRFA and UPOV, there were also potential conflicts of objectives. The clearest conflict of policy objectives is between the need for farmers to save, sell and exchange seeds in order to conserve, sustainably use and further develop diverse and adapted varieties on the one hand, and the need for recognizing the right of breeders to commercialize protected varieties. ”In Norway, we considered the best way of balancing these two legitimate objectives, by keeping the 1978 Act and at the same time also continue with some public funding of plant breeding”, she added.

Another example of mutually supportive implementation is the inclusion of the requirement of disclosure of origin in both the PVP and patent laws of a country, adding it is a first step to ensuring fulfillment of access and benefit sharing obligations. Furthermore, since 2009, Norway has given an annual contribution to the Benefit-sharing Fund equal to 0.1% of seed sales.

In ending her presentation, Batta Torheim highlighted a few lessons for learning i.e. that plant breeding needs to meet local agroecological conditions; there is a need to balance plant breeders’ rights and Farmers’ Rights according to national context and the need for broad participation and inclusiveness.

Simon Maina from the Kenya Plant Health Inspectorate Service said that breeders obtain plant germplasm for breeding from farmers and this creates the need for benefit sharing and implementation of prior informed consent and mutually agreed terms.

He referred to a plant breeder’s right application of a variety of Cenchrus ciliaris which has for many years been utilized by pastoralist communities as a naturally occurring rangeland grass in the semi-arid parts of Kenya.

He raised the question even if the applicant establishes distinctness from a land race would the communities demand a share of the benefits accruing from the protection, considering that they have been conserving the germplasm from which the new variety is developed?

Maina also spoke of another case whereby the breeder had applied for protection of varieties of 5 traditional vegetables, which were selections derived from landraces, whose characteristics have not been documented before in descriptors. He added that there is much traditional knowledge associated with these species regarding their use as food and medicine, further stating that questions on benefit sharing are likely to arise once the applications are gazetted.

The symposium also included two academic experts nominated by the UPOV Secretariat as well as country experiences of Argentina, the European Union and the United Kingdom.

During the discussion, several of the presenters as well as participants in the symposium stressed on the need to have participatory and inclusive processes in relation to plant variety protection that involves farmers in the decision-making processes.

Further, several participants called for UPOV to allow smallholder farmers greater freedom to operate when using protected varieties, in particular to allow smallholder farmers to freely save, use, exchange and sell farm saved seeds.

 

Suggestions For Further Action Concerning Interrelations

Following the symposium, UPOV’s 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.

The upcoming meeting of the Consultative Committee will consider document CC/93/5 that compiles suggestions from Member States (Ecuador, Norway, Peru and the Russian Federation) and observers [the Association for Plant Breeding for the Benefit of Society (APBREBES), the European Seed Association (ESA) and the International Seed Federation (ISF)].

A common suggestion emerging from several submissions (from ESA, Norway and APBREBES) is to review the current Explanatory Note on exceptions to the breeder’s rights (UPOV/EXN/EXC/1).

APBREBES expands on the suggestion, stating that the aim of the revision should be inter alia to incorporate within the scope of the exceptions all acts of smallholder farmers in relation to the protected variety i.e. to freely save, use, exchange and sell farm saved seed/propagating material as well as to clarify that all breeding activities of farmers, including breeding by selection, would fall within the scope of breeders’ exemption. The latter aspect may also require revision of the Explanatory Note on Essentially Derived Varieties under the 1991 Act.

ESA’s suggestion is more focused on the exception related to the private and non-commercial use exception.

However, also noteworthy is ESA’s critique of UPOV’s current FAQ, which it states, “may be seen as too restrictive of certain practices which are carried out by subsistence farmers as part of their normal livelihoods”. It called for a review of the current FAQ so that the exception of private and non-commercial use “can be interpreted in a flexible manner to reflect and not to disturb existing practices”.

Another common element emphasized in the submissions is the subject of participation. Norway proposed to prioritise the topic of “participation” in the next stage of the process of identifying possible interrelations, adding that the ITPGRFA recognises farmers' right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.

It further recalled that the topic is also included as a target in the Sustainable Development Goals: “Ensure responsive, inclusive, participatory and representative decision-making at all levels” (SDG 16.7).  It queried “What is the status today regarding the participation of farmers and other stakeholders? What options are there to further strengthen the inclusiveness in decision-making in UPOV?”

APBREBES specifically proposes the adoption of a decision that the Office of the Union (i.e. UPOV Secretariat) as well as all UPOV Members will respect, promote and implement Farmers’ Right to participate in decision-making processes in all UPOV activities and subsequently develop guidelines to implement farmers’ right to participate in decision-making in relation to activities of the UPOV secretariat (especially its technical assistance activities on plant variety protection) and of UPOV Member states. The guidelines should be developed through a credible, transparent and participatory process involving farmers and build on the good practices of the UN system for participatory mechanisms and processes, paying special attention to participation by disadvantaged groups, in particular smallholder farmers, APBREBES adds.

Noteworthy is also APBREBES’s proposal for UPOV “to adopt a decision recognizing the right of governments to implement in their PVP legislation provisions to realize fair and equitable benefit sharing, in particular to require as part of the application process for an applicant to disclose the origin of the variety including the pedigree information and associated passport data, on the lines from which the variety has been derived, along with information relating to the contribution of any farmer, community, institution or organization upon which the applicant relied to derive the new variety, evidence that the material used for breeding, evolving or developing the variety for which protection is sought has been lawfully acquired, and that the applicant has complied with prior informed consent and benefit-sharing requirements.”

The decision should be applicable to all UPOV Members and be followed by a revision of the Guidance for the preparation of laws based on the 1991 Act of the UPOV Convention (UPOV/INF/6/4), to reflect the abovementioned decision, APBREBES adds.

Ecuador calls for the UPOV Convention to respect farmers’ rights to keep, use, exchange and sell seed, participation in decision-making, protection of traditional knowledge relevant to the conservation and use of seeds, and the sharing of profits from the use of those seeds.+