Some basics about the UPOV Convention
The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organization based in Geneva, Switzerland. UPOV is the French acronym for the “Union Internationale pour la Protection des Obtentions Végétales” which is the name of the organization that established the International Convention (called the UPOV Convention). English, French, Spanish and German are the official languages, and many documents are translated.
By creating UPOV, European plant breeders wanted a mechanism for capturing increased economic value for the varieties developed while also recognizing that breeders need to have access to protected genetic resources in order to create new varieties. The goal was for plant breeders’ rights to grant free access to such varieties while protecting breeders’ innovations. The mission statement is "to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society".
Member countries have "variety offices" to implement plant variety protection (PVP) and charge a fee for variety testing, and well as various other fees, including an annual fee for plant variety protection. Also, requirements to access markets, e.g. in the European Union, need often to fulfill the same conditions as for PVP (DUS).
There are four Acts of the UPOV Convention, the original Act adopted in 1961 and three revisions in 1972, 1978 and 1991, each of the revisions increasing the strength of protection of breeders' rights.
To be eligible for protection, all four versions of the UPOV Convention require that a plant variety be new, distinct, uniform and stable (the ‘DUS criteria’).
Under UPOV, a variety is considered novel if it has not been sold or otherwise disposed of within a specific time-frame. In other words, UPOV defines novelty in relation to commercialisation and not by the fact that the variety did not previously exist.
To be distinct, the variety must be distinguishable by one or more characteristics from any other variety whose existence is a matter of common knowledge. A discussion is ongoing between breeders regarding definition and identification of Essentially Derived Varieties (EDV), a concept that was introduced by UPOV 91 and narrowed the scope of the breeders' exemption. Important breeding services of farmers, however, have not been taken into consideration by UPOV 91. Farmers, by selection breeding, adapt varieties to local circumstances and changing climates. How does the scope of EDV impact adaptation, and the dissemination of these adapted varieties? How does it, in consequence, impact food security, agricultural biodiversity and sustainable use of genetic resources?
Protection under UPOV requires that a variety be sufficiently uniform in its relevant characteristics.
To be considered stable, the variety must remain true to its description after repeated reproduction or propagation.
Farmers' population varieties, also called landraces, in contrast, are neither uniform nor stable, as they possess a diverse genetic potential, enabling adaptation of their performance to various conditions and development with each generation. Such varieties are also not considered prior art if they are not well documented, and IPRs can be granted to breeders if they render landraces or traditional varieties uniform and stable.
As of July 2020, there are 76 Parties to the various Acts of the Convention: 17 countries -mostly from the South- are members of UPOV78; 57 countries, the European Union and the African Intellectual Property Organization (OAPI) are UPOV91 members (current list of UPOV member States). While the 1978 Act allowed new members to the former Acts, the 1991 Act bans access to former Acts from 1996 onwards. Parties may withdraw from UPOV membership at any time: The denunciation takes effect at the end of the calendar year following the year in which the notification was received by the Secretary-General (Art. 39 of UPOV Convention 1991 Act).
The original impetus for creating UPOV came from three organizations based in Europe: ASSINSEL, a commercial plant breeders’ trade association formed to promote plant variety protection; AIPPI, an organization with a mandate to promote industrial patents; and the International Chamber of Commerce. Six countries from Western Europe founded UPOV. With the World Trade Organization’s Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement), and growing number of trade agreements obligating developing countries to join UPOV, the pressure for developing countries to join the UPOV Convention is growing.
The initiative to establish IP rights for plant varieties developed in the 1950s when plant breeding became an economically promising endeavour and began to attract the interest of private companies. Therefore, UPOV serves primarily the needs of Northern breeding companies. In developing countries, the Green Revolution of the 1970s was public sector-led and did hardly involve intellectual property. The drive for intellectual property protection for plant varieties in developing countries was generated by the privatisation of public breeding organisations, often pushed by the World Bank's structural adjustment policies of the 1980s, and by WTO trade liberalisation requirements during the 1990s.
To increase market demand, the private sector wants farmers to regularly buy seed rather than saving it themselves. Because seeds are self-replicable, farmers can reproduce them. If farmers reproduce the seeds of newly created varieties rather than buying them private sector plant breeders generate less profit from their newly developed varieties. Establishing IP protection over new varieties gives breeders exclusive rights to produce and sell those varieties. Other ways plant breeding companies apply to limit farmers' rights to use saved seeds include hybrid seeds. Also, contract production is an increasingly used method to stop farmers using saved seeds or other plant propagating material such as cuttings. Genetic use restriction technologies such as terminator technologies have been developed, but banned by the United Nations.
UPOV is housed and serviced by the World Intellectual Property Rights Organization in Geneva, Switzerland. WIPO provides certain administrative and practical services to UPOV. Though UPOV is a separate legal entity, its ties with WIPO are close. WIPO’s Director-General is, by virtue of position, the Secretary-General of the UPOV with the power to approve the appointment of UPOV’s Vice-Secretary General.
The UPOV Council is the highest body. It is made of one representative of each UPOV member state and has a President and Vice-President each elected for a three-year term.
Sessions of the Council take place twice yearly. Countries that have not ratified the UPOV Convention may send observers as can organizations that have been granted observer status. A growing number of countries committed to joining UPOV 1991 as the result of bilateral and regional trade agreements has meant there a growing number of country observers at UPOV. The Consultative Committee sits below the Council in UPOV’s institutional structure and is not open to observers. There are various other committees dealing with specific topics.
UPOV has a complex legal and institutional infrastructure that is not cheap to administer — the UPOV budget for the 2020-2021 Biennium is 7,347,000 Swiss Francs — in addition to the governance cost incurring at member state level.
- APREBES press release (2011): 50 years of UPOV
- UPOV's organisational structure
- Carlos Correa (2015) : Plant Variety Protection for Developing Countries. A Tool to Design a Sui Generis Plant Variety Protection System: An Alternative to UPOV 1991.