PVP for development and innovation - assumptions and needs
It is often assumed that stronger plant variety protection (PVP) would result in more and better plant varieties, leading to higher production and productivity. But evidence has always lacked, and is still lacking. The European Commission in its extensive evaluation of EU plant variety protection legislation of 2009, did not undertake any attempt to prove such basic assumptions. However, evidence clearly shows that successful breeding and innovation is possible without PVP, or with a plant protection system other than UPOV.
Intellectual property rights over plant varieties -whether PVP or patents - give holders a monopoly on the commercialisation of the seed. From an economic perspective, monopolies should be avoided. States should only introduce monopolies if the anticipated benefit – e.g. innovation – is greater than the damage caused. But a balanced approach is necessary. At some point, monopolies start to thwart innovation and development. A few companies enjoy a near monoploy over the global seed market. Only three corporations account for 53% of commercial proprietary seeds that are sold around the world.
PVP legislation must therefore also take account of other important objectives, including
- compliance with Human Rights (in particular Farmers’ Rights and the Right to Food),
- promotion of the domestic economy,
- promotion of national research,
- protection and promotion of biodiversity (implementation of the FAO’s Plant Treaty and the UN Convention on Biodiversity),
- enabling healthy competition
- easy access to diverse seed and food for farmers, breeders and consumers as well as
- avoidance of any negative impact on the informal seed system.
Alternatives to UPOV are possible
The members of the World trade organisation (WTO) can opt for their own plant variety protection legislation instead of UPOV or patents. Among the 157 member states of the WTO, only 74 states and two regional organisations (EU, OAPI) are members of UPOV.
According to the WTO agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), every country has to provide such protection – either by means of patents, a system of its own design (“sui generis”) or a combination of both. Though every nation is free to establish a system of its own, bilateral trade agreements are increasingly forcing developing countries to ratify the UPOV Convention of 1991, thus limiting their freedom to chose appropriate legislation for their national needs and circumstances.
National impact assessments
In practice, nationally adapted systems of plant variety protection make most sense. Governments may assess what serves their countries best: Accession to UPOV 91 or the development of their own legislation? India, for instance, opted for the latter.
The UN Special Rapporteur on the Right to Food, Olivier De Schutter, recommends that every country develop its own PVP legislation, based on its specific needs – thus equally strengthening farmers’ rights and biodiversity. As early as 1999, IPGRI – the International Plant Genetic Resources Institute, which has since been re-named Bioversity International – stated in a report that “there is no ideal and unique (sui generis) system covering all needs.” In 2002, the much-noted report by the UK government’s Commission on Intellectual Property Rights recommended that “developing countries should [thus] consider basing their PVP legislation on a realistic appreciation of how it could benefit their agricultural development and food security, taking account also of agriculture’s role in generating exports, foreign exchange and employment.”