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TITLE: Norway says 'no' to UPOV '91 on plant breeders' rights AUTHOR: Regine Andersen PUBLICATION: Submitted to BIO-IPR DATE: 7 December 2005
COMMENT FROM GRAIN: Norway's recent rejection of UPOV '91 is not well known outside of Norway right now. It sends an important message to other industrialised countries currently considering "upgrading" from UPOV 1978 to 1991, such as Switzerland and Canada: you don't have to do it. Further, it may complicate European Free Trade Association (of which Norway is member) negotiations with developing countries on bilateral free trade agreements. These agreements typically require developing countries to accede to UPOV, which by UPOV's rules can only be under the terms of the 1991 Act.


NORWAY SAYS 'NO' TO UPOV '91 ON PLANT BREEDERS' RIGHTS

Regine Andersen, The Fridtjof Nansen Institute, Norway

A newly elected Norwegian government has recently turned down a law proposal for Norwegian membership in UPOV 1991. This is an unusual move in a world where steadily more countries join this organisation based on a convention with quite strict plant breeders' rights.

UPOV is the French acronym for the International Convention for the Protection of New Varieties of Plants (UPOV). The UPOV Convention was adopted in 1961 to ensure that member states acknowledge the achievements of breeders of new plant varieties by making available to them exclusive property rights for a given period of time. Instead of using the patent system, there was a need to develop a system that was more adapted to the needs of plant breeders, i.e. continued access to plant varieties for breeding purposes. Therefore it allowed wide exemptions from the property rights for breeders and also for farmers. The Convention entered into force in 1968 and has been revised a number of times since then, each time with more restricted exemptions for breeders and farmers. Today, most member countries are either member of the 1978 Act or the 1991 Act of UPOV. Norway is member of UPOV based on the 1978 Act and upholds its right to continue as a member of UPOV based on that Act.

There are important differences between the 1978 and the 1991 Acts of UPOV with regard to coverage, period, scope and exemptions.

* The '78 Act covers plant varieties of nationally defined species or genera, whereas the '91 Act covers plant varieties of all genera and species.
* The protection period is minimum 15 years under the '78 Act and minimum 20 years under the '91 Act.
* The protection scope under the '78 Act is production for the purposes of commercial marketing, offering for sale and marketing of propagating material of a protected variety. The '91Act adds, among other things, exporting, importing, and stocking for the above purposes of the protected material.
* Breeders are free to use a protected variety to develop a new variety under the '78 Act, but not if it requires repeated use of that variety. Under the '91 Act this exemption is restricted and, among other provisions, it is not allowed to produce varieties which are essentially derived from a protected variety or which are not distinguishable from such a variety.
* Farmers are free to use their harvested material from a protected variety for any purpose under the '78 Act. Under the '91 Act, national governments are entitled to decide whether farmers shall be allowed -- within reasonable limits and safeguarding the legitimate interests of the rights holder -- to reuse the harvest of protected varieties on their own land holdings without the authorisation of the rights holder. It would not be allowed to exchange or sell such material.

The Norwegian law proposal was forwarded because the plant breeding industry in Norway was privatised a few years ago. The former Government expected that the breeding industry would adapt to the market forces over time, and that the costs should be covered through royalties on plant varieties. Therefore the breeding industry suggested changing the Norwegian legislation on plant variety protection to a UPOV '91 conform legislation, thereby becoming member of UPOV '91. This would provide necessary but still not sufficient financial means for the little but vital plant breeding industry in the country. In January 2005, the law proposal was sent out on hearing.

There were loud protests against an adoption of the law, particularly for two reasons:

1. It would limit the customary rights of farmers to save and reuse farm saved seeds and propagating material -- which they still practice to some extent.
2. It would move the costs to the Norwegian farmers. They would have to buy propagating material for each season. For some species they could reuse their farm saved seeds or potatoes upon payment of royalties each time (with exceptions for small-scale farmers with regard to some crop species).

Even the breeding industry, while supporting the proposal, suggested some more exemptions for farmers.

In September 2005, a new leftist government was elected, and an earlier board member of the largest farmers' union became Minister of Agriculture and Food. One of his first decisions was to turn down the law proposal on UPOV '91 membership. This caused great exultation among farmers. The breeding industry, however, still needs a solution to its financial constraints. The challenge for the new government is now to find public financial sources for the little, but so important, Norwegian breeding industry.

The Norwegian decision is interesting in several perspectives, most notably with regard to the developments pertaining to the TRIPS Agreement and the International Treaty on Plant Genetic Resources for Food and Agriculture.

The TRIPS Agreement states that all WTO member countries must protect plant varieties either by patents, or by an effective sui generis system (a system of its own kind), or a combination. The limits for a sui generis system and the meaning of an "effective" sui generis system have not been explicitly defined. UPOV has advocated that the most effective way to comply with the provision of an effective sui generis system is to follow the model of the UPOV Convention. There are several proponents of this stand. Some of them advocate compliance with the 1978 Act of the UPOV Convention and others with the 1991 Act. Those advocating for the 1991 Act emphasise that this version provides the most extensive protection for plant breeders. Those endorsing the 1978 Act maintain that this was the version of UPOV that was in force when the TRIPS Agreement was adopted. The International Association of Plant Breeders for the Protection of Plant Varieties (ASSINSEL) in 1999 conducted an international congress, with representatives from more than 1000 seed companies, which recommended that developing countries adopt sui generis systems based on the 1991 Act. A number of other models have been suggested, particularly from countries in the South, to adopt genuine sui generis systems adapted to the particular situations and needs of the respective countries. Nevertheless, an increasing number of countries use UPOV as model, often UPOV 1991. In some countries in the South this has reportedly happened as a result of pressure.

The continued Norwegian membership in UPOV 1978 -- while at the same time being member of the WTO -- shows that it is possible to comply with the provisions on intellectual property rights for plant varieties in the TRIPS Agreement based on UPOV 1978. However, UPOV 1978 was closed to further membership in 1998. New members may only join the Union based on UPOV 1991. Countries seeking to implement the provisions of the TRIPS Agreement pertaining to plant variety protection may therefore use UPOV 1978 as a model, but it will not entitle them to membership of UPOV. The important point here is that the Norwegian experience shows that they would fulfil the legal requirements for compliance with the TRIPS agreement by doing so.

The International Treaty on Plant Genetic Resources for Food and Agriculture was adopted in 2001 and entered into force in 2004. It is the first legally binding agreement exclusively pertaining to the management of crop genetic resources. Its objectives are the conservation and sustainable use of these resources, and the fair and equitable sharing of the benefits arising from their use for sustainable agriculture and food security. The International Treaty recognises the past, present and future contributions of farmers in all regions of the world in conserving, improving and making available these resources, and affirms that this constitutes the basis of Farmers' Rights. Farmers' Rights are not defined, but components are suggested. These encompass the protection of relevant traditional knowledge, equitable benefit sharing, participation in decision making, and the rights to save, use, exchange, and sell farm-saved seeds and propagating material. The suggestions are not legally binding, and the governments are free to choose the measures they deem appropriate, according to their needs and priorities. Norway has been an active proponent of Farmers' Rights under the negotiations, and the recent decision to uphold the right to continue as member of UPOV 1978 can be seen in this light.

Lysaker, 7 December 2005


The author has just completed an international stakeholder survey on the state of implementation of farmers' rights under the International Treaty on Plant Genetic Resources for Food and Agriculture, and the options available as seen from the view of the stakeholders: Regine Andersen (2005): "The Farmers' Rights Project - Background Study 2: Results from an International Stakeholder Survey on Farmers' Rights", FNI-report 9/2005 (Lysaker, Norway: The Fridtjof Nansen Institute). Available online at http://www.fni.no/doc&pdf/FNI-R0905.pdf. The Farmers' Rights project website is at http://www.fni.no/farmers/main.html.

For more information, contact Regine Anderson at farmers.rights.project(at)fni.no.

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