APBREBES Report from the 2019 UPOV Session

by Francois Meienberg

Seminar on the Impact of Policy on Essentially Derived Varieties (EDVs) on Breeding Strategy, October 30, 2019

The purpose of the Seminar was to consider the impact of EDV policy on breeding strategies and the consequences for the development of new, improved varieties of plants. The Seminar was also expected to assist the Administrative and Legal Committee (CAJ), which was to consider a proposal to review the Explanatory Note on EDVs, later that same day.  

All presentations made and a video of the whole seminar are available on UPOV’s Website at: https://www.upov.int/meetings/en/details.jsp?meeting_id=50787 .

Interestingly, all invited speakers concluded their presentations with the same message i.e. calling for a revision of UPOV’s  Explanatory Note on EDVs. This demand may come as a surprise, as the Note was only recently revised in 2017. The speakers argued that a revision was necessary as new breeding techniques make it easier to improve a variety while maintaining the essential characteristics of the initial variety and that all these improvements should be defined as EDV. In short, there is a move to expand the scope of what is an EDV in the context of UPOV 1991.

During the discussion, other views were also revealed. A participant stressed it was important to ensure that  for breeders of EDVs the access would not be denied – following the term «free access, but not access for free». Another participant countered that the EDV concept may not be a problem for big companies as they tend to use their own varieties to produce new EDVs. However it is a challenge for smaller companies that usually access protected varieties for purposes of further breeding.  Broadening the scope would make these companies susceptible to legal challenges by financially well-resourced companies. As such the EDV concept as suggested by the speakers would be in favour of a select group of companies.  

Comment by APBREBES

The Seminar was clearly staged for the revision of the Explanatory Note on EDVs, to expand the scope of EDVs in favor of a selected group of companies. The panel of speakers from developed countries, was hardly representative of all interests. Obviously absent were the issues and concerns on EDV that prevail in developing countries that are members of UPOV. What is the impact of EDV on farmers and small seed companies in these countries ? How will UPOV address the fundamental double standard in the UPOV system with respect to EDVs, i.e. when new varieties are developed essentially from farmers’ variety, what are the rights of these farmers? These crucial issues were simply ignored at the Seminar. 

Administrative and Legal Committee (CAJ), October 30, 2019

Explanatory Note on EDV

Discussion on the revision of the Explanatory Note on EDVs was the main agenda item at the meeting of the CAJ. Having heard the big seed industry players, US, Europe and Canada called for a revision of the Explanatory Note. Argentina and China declared that they do not have the concept of EDV integrated in their law so far, but did not oppose  the revision. Mr. Peter Buttn, UPOV’s Vice-Secretary General made several proposals to  expedite the process. The delegates finally decided to :

  1. invite members and observers to make contributions by correspondence on policy issues;
  2. invite breeders to provide information on customs and practices on EDV ;  and
  3. based on the replies to (a) and (b), prepare a preliminary analysis on the EDVs issues and practices and draft terms of references for a working group on EDV, for comments by the CAJ by correspondence.

The outcome of this process will then be discussed at the next CAJ.

Development of information materials concerning the UPOV Convention

Following a sugggestion by Japan the CAJ also decided to consider a document with information and proposals from CAJ members and observers concerning the term “unauthorized use of propagating material”, in relation to trees, in Article 14(2) of the 1991 Act during the CAJ meeting in 2020. A question to be raised will be what happens when a tree is planted before plant breeders right is given.

Consultative Committee (CC), October 31, 2019

As always the proceedings of the Consultative Committee were closed to observers and its documents are not publicly available. Nevertheless, using the Right of Information Act, APBREBES has obtained access to the documents, available on its Website, some days after the meeting.  Decisions taken by the Committee are also reported to the UPOV Council and these documents are publicly available from UPOV’s website.

Strategic Business Plan – Restricting Access to the Pluto Database

The Committee decided to restrict access to the Pluto Database that provides information about applied and granted plant breeders rights starting  November 2020. There will still be a free option, where the user will have a search function. But the search results would be limited to an on-screen display of a single page of results.  There would be no facility to download search results or data from the PLUTO database unless users are able and willing to pay a fee of 750 CHF per year to access all data and features. Members of the Union and data contributors (i.e. OECD) will be exempt from payment.

Comment by APBREBES

The fact that an international organisation wants to restrict access to data relating to intellectual property rights is unique. It reaffirms criticisms that UPOV lacks transparency and accountability.
Ironically the World Intellectual Property Organization (WIPO) which hosts UPOV in its building, provides access to databases and statistics such as the search engine of Patentscope which is freely available without registration or restriction. Similarly databases exists sucha as the Variety Finder of the EU Community Plant Variety Office (CPVO) or the Espacenet of the European Patent Office, all provide free access with no restrictions. And there are many more (see also http://www.loadb.org).

The information collected in the Pluto Database has been collected by Member States. It should be  common property, accessible to all on a non-profit basis and free of charge. Maximising access to this information promotes transparency and accountability. Secretariat reasoned that restricting access would generate additional income for the UPOV Secretariat. This reason is shortsighted and possibly incorrect. The  projected income if access is subject to a fee is small (65 subscribers paying CHF 750 each = CHF 48’750) and should not have outweighed the negative effects on its users.  In addition, we suspect that even the projected small income may not materialise as the data of PBRs applied/granted in European countries, the main users of the PVP system as well as, based on a cooperation agreement between CPVO and UPOV, non EU data recorded in the UPOV PLUTO database are loaded in the Variety Finder at the CPVO Website and this data is freely accessible.  

We hope that this decision will be reversed as soon as possible.

Communication Strategy - Propaganda or facts?

A frequently asked question (FAQ) on «How does the UPOV system support sustainable development?» was prepared by the Office of the Union. The Consultative Committee agreed that the draft text below prepared by the Office would be circulated for comments and a new draft will be considered at the next meeting.  One paragraph in the FAQ reads as follows :

“From the outset, the UPOV system was conceived to deliver greatest progress in plant breeding and, therefore, to sustain greatest advances in agriculture for the benefit of farmers and society as a whole.  This concept is enshrined in the “breeder’s exemption”, a feature unique to the UPOV system, which enables protected plant varieties to be available for further breeding by all breeders."

Comment by APBREBES

As with other FAQs published by UPOV, it seems merely interested in promoting its system despite any facts or evidence. In the text, the achievements of plant breeding are attributed to the UPOV system without further questioning. It is always consistently forgotten that there are also other types of plant variety protection system which are presumably better adapted to the conditions in developing countries. For example in the FAQ «How does the UPOV system support sustainable development?» it is asserted that the breeder’s exemption is a feature unique to the UPOV System. This is simply an erroneous assertion .  It is well known that there are many other pvp systems – outside UPOV that also feature a breeders’ exemption – for example pvp laws in South Asia or the African Model Law as implemented by Ethiopia.

Interrelations with the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) – a new attempt?

After the Meeting of the Consultative Committee decided in 2017 that «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” the item was not discussed at the Committee last year. At this UPOV session, Netherlands proposed to invite the authors of the “Report and Recommendations of the project ‘Options to interpret the notion of private and non-commercial use as included in Article 15. 1. I of the UPOV 1991 Convention’” by Oxfam, Plantum and Euroseeds to present at their ideas at the next UPOV session in 2020. This proposal was agreed by the Committee.  

Comment by APBREBES

APBREBES welcomes the decision of the Consultative Committee and and hopefully at its next session it will also consider, as a next step, the revision of the current guidance in the “Explanatory Notes on Exceptions to the Breeder's Right under the 1991 Act of the UPOV Convention”.

We stress that discussion on «private and non-commercial» would be incomplete if the discussion is not open to participation of civil society and farmer groups that would be affected by the interpretation. In the spirit of transparency and to ensure robust discussions we urge UPOV Member States to open up discussion on this matter by allowing broad participation especially of civil society and farmer groups.

Discussion on the Explanatory Note is urgently needed as the current version of the Explanatory Note on Exceptions to breeders’ rights is out-dated. It does not reflect international developments, scientific research and discussions of the last years. A revision that allows full implementation of Farmers’ Rights could relieve – at least partially - the burden on small farmers and their families in developing countries in particular and thus benefit society.

Council(C), November 1, 2019

Examination of the conformity of the Draft Law of Mongolia and Afgahnistan

The Council took a positive decision on the conformity of the draft laws with the provisions of the 1991 Act of UPOV. In both countries the draft law has not been adopted so far.

Developments in Egypt and Myanmar

In both countries a new Plant Variety Protection law has already been adopted which is in line with 1991 Act of UPOV. Egypt deposited the instrument of accession of Egypt to the 1991 Act of the UPOV Convention the same day.

We also refer to a 2017 article on Myanmar’s PVP legislation which is now in line with UPOV. The article titled « UPOV approves draft PVP laws, jeopardises Farmers’ Rightsshows how UPOV’s technical assistance to Myanmar on PVP has jeopardised implementation of Farmers’ Rights in Myanmar. Its 2016  PVP legislation allowed use of the protected variety for cultivation for non-commercial purposes and exchange of varieties among farmers. However, on advise of UPOV these key provisions safeguarding Farmers’ Rights were dropped as its PVP legislation moved towards compliance with the 1991 Act of UPOV.
This is despite the fact that Myanmar is a least developed country meaning one of the most vulnerable economies in the world and 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.
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.

Report by the President on the work of the ninety-sixth session of the Consultative Committee; adoption of recommendations, if any, prepared by that Committee

The President reported about the outcome of the Session of the Consultative Committee held the day before (for more details see above).

APBREBES made an Intervention to emphasise the need for revision of the Explanatory Note  on Exceptions to the Breeder's Right and to point out the weaknesses of the FAQ on «How does the UPOV system support sustainable development?»

Election of new Chairpersons

The Council elected, in each case for a term of three years  following Chairpersons:

         (a)    Mr. Marien Valstar (Netherlands), President of the Council;

         (b)    Mr. Yehan Cui (China), Vice-President of the Council;

         (c)    Mr. Patrick Ngwediagi (United Republic of Tanzania), Chair of the Administrative and Legal Committee;

         (d)    Mr. Manuel Antonio Toro Ugalde (Chile), Vice-Chair of the Administrative and Legal Committee;

         (e)    Mr. Nik Hulse (Australia), Chair of the Technical Committee; and

         (f)     Ms. Beate Rücker (Germany), Vice-Chair of the Technical Committee.