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The Union for the Protection of New Plant Varieties (UPOV)
was created in 1961 in Europe to give plant breeders a legal monopoly
over seeds and therefore allow them to collect bigger profits from genetic
innovations. It was specifically designed to promote industrial agriculture
in industrial countries through a series of fixed requirements. UPOV’s
system of Plant Variety Protection (PVP) actually does nothing to protect
plant varieties. Instead, it gives patent-like rights to plant breeders,
protecting them – and their market shares – instead. There are
terrible problems associated with intellectual property over plant varieties
– threatening fundamental issues such as food security and human
rights – and particularly with the UPOV Convention itself.
Until recently, UPOV’s membership never reached
beyond industrialised countries. But in the last couple of years, there
has been a flurry of countries falling into its net from the South (see
table). The reason for this has to do with the World Trade Organisation’s
(WTO) controversial agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS). TRIPS requires governments to provide patent
protection for all fields of technology. Article 27 is the section that
defines rights to biodiversity. It currently requires all member states
to enforce intellectual property laws on micro-organisms and plant varieties.
Micro-organisms must be patentable. Plant varieties – the basis of
the world’s food supply – must either fall under patent laws,
or an "effective sui generis system" or both. No definition of what such a system is, or what would
make it effective, is given. Yet developing countries are obligated to
put such systems in place by the end of this year if they choose this
as an alternative to patenting – and if they wish to avoid sanctions
from other WTO members. "Sui generis" simply means special or
unique, different from something else: in this case, different from the
patent system.
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WHAT'S WRONG WITH UPOV?
The UPOV Convention sets out rules for granting
monopoly rights over the results of plant breeding. There are two
Acts currently in force in the UPOV member states. The 1978 Act
gives breeders exclusive ownership over the commercial use of varieties
for the purpose of production and sale. The 1978 Act offers two
explicit limitations on the monopoly right of the breeder. The first
is that other breeders may freely use UPOV-protected varieties for
further research. The second is farmers are free to reuse the seed
for next year's sowing under certain conditions. When UPOV revised
its convention in 1991, it narrowed down the exemption for competing
breeders and it deleted the so-called farmers' privilege. Furthermore,
the 1991 Act extends the breeders' monopoly right to the products
of the farmer's harvest. Any country wishing to join UPOV today
must sign the 1991 treaty. The implications of doing so are truly
profound:
Impact on producers:
UPOV as such introduces legal and economic restrictions
on farmers' livelihood practices. Farmers' rights become nothing
but a "privilege" under the 1978 treaty and under the
1991 treaty it is up to individual governments to offer farmers
some legal space to reuse proprietary seeds. As a general principle,
access to genetic resources is restricted under UPOV whether for
production or breeding purposes. Although farmers are responsible
for 80-90% of the seed supply in the South, this will massively
shift to private control under plant variety rights regimes imposed
by the World Trade Organisation. Contrary to what many people assume,
private breeders do take farmers to court for alleged piracy of
proprietary seed and they are actively pursuing more powerful means
to prevent the reuse of seed on the farm (such as contract law governing
purchase agreements, "terminator" type technologies and
hybridisation).
Genetic erosion:
UPOV is biased towards the specific needs of industrial
agriculture, especially through its Distinction-Uniformity-Stability
criteria; the uniformity criterion alone has been singled out as
promoting the loss of genetic diversity in agriculture. By allowing
companies to collect royalties on seed sales, UPOV stimulates the
corporate take-over of plant breeding which means fewer actors supplying
the market, also leading to erosion. Corporations are not in the
business of genetic conservation (they rely on genebanks for that)
and tend to work with highly stabilised elite material with wide
adaptation. Through intensive promotional or marketing efforts,
these varieties tend to replace more diverse traditional materials,
and consequently the diversity being used by farmers declines. These
are the trends: the reports on varietal replacement and the narrowing
genetic base of modern cultivars are readily available.
Adverse impacts on R&D:
Impact studies conducted in one UPOV member state,
the USA, report a decline in the flow of germplasm among breeders,
a decline in the sharing of scientific information and a decline
in the rate of progress in plant breeding. Scant other studies have
been done in countries with UPOV experience, despite nearly 40 years
of practice. It is noteworthy, however, that UPOV was obliged to
revise its treaty in 1991 in order to address an important dysfunction
in its own system: instead of providing an incentive for innovation
(the breeding of truly novel varieties), UPOV was providing an incentive
for plagiarism (breeders could make minor changes to existing varieties
and still call them "new" for the purpose of legal protection).
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Nowhere does the TRIPS Agreement say that UPOV’s
plant variety protection scheme is appropriate, effective or even desirable
as a sui generis system for WTO’s purposes. Critics argue that UPOV
can hardly be considered "sui generis" since it virtually amounts
to a watered-down patent system for plant breeders. Nevertheless, UPOV
members are lobbying hard for the insertion of a reference to UPOV in
the TRIPS Agreement as "the" effective sui generis legislation
– meaning that all WTO members would be forced to implement it. If
that were not enough, the World Intellectual Property Organisation (WIPO)
and the WTO itself have joined forces with UPOV to push developing countries
into adopting UPOV-compliant legislation this year. The WTO’s involvement
in this campaign is particularly alarming. By openly endorsing the campaign,
the WTO has situated itself in one camp: the one championing UPOV as sui
generis. This is making South governments fume, since WTO’s role
is not to interpret what an effective sui generis system is; that right
belongs to the parties of the TRIPS Agreement alone.
Table
1: UPOV membership as of May, 1999
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UPOV 1978
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UPOV 1991
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| Australia, Austria, Argentina, Bolivia,
Brazil,Chile, China, Colombia, Czech Republic,Ecuador, Finland,
Hungary, Japan, Kenya,Mexico, Norway, Panama, Paraguay, Poland,Portugal,
Slovakia, Trinidad and Tobago, Ukraine |
Belgium, Bulgaria, Canada, Denmark,
France, Germany, Ireland, Israel, Italy, Moldova, Netherlands,
New Zealand, Russia, South Africa, Spain, Sweden, Switzerland,
United Kingdom, United States |
Industrial countries and large corporations are also
lobbying Southern countries to adopt UPOV. They are not particularly great
fans of PVP as a legal system of property protection. However, they know
that getting the South to accept PVP is just the first step towards getting
it to accept full-fledged patents on life forms. That is the real goal
of the forces which pushed intellectual property onto the world’s
trade agenda – where it doesn’t belong! – in the first
place. All the talk about how UPOV is so well adapted to agriculture is
merely hidden bait to get governments in the South psychologically prepared
for the expansion of Northern industrial property rights over biodiversity.
UPOV’s new lease on life
For well over three decades, UPOV officials have been
travelling the world to enlist new members from the South into their club.
Until TRIPS came around, they had remarkably little success (see Seedling,
June 1996, p 23). In January 1995, when TRIPS came into force, UPOV membership
comprised 27 countries, all but three of which were industrialised countries.
But, thanks to the confusion TRIPS has created, by May 1999, membership
had soared to 43 members, 11 of which were developing countries. A number
of these countries hastily signed UPOV’s 1978 Convention before the
doors were closed to it in April 1999. That month alone saw Bolivia, China,
Kenya, Brazil and Panama bloat UPOV’s ranks. Officials in these countries
felt that, given the choice between the 1978 treaty of UPOV and the 1991
downgrade, the 1978 Convention was the lesser of two evils. Nicaragua
and Zimbabwe just missed UPOV-78’s April deadline and have requested
an extension. When Nicaragua’s parliament asked the government what
the sudden rush was, it was told that joining UPOV was necessary to escape
WTO trade sanctions. When the parliament asked which sanctions, knowing
that UPOV is not part of WTO, the government bureaucrats had no answers.
UPOV’s campaign to absorb new members received yet
another serious boost when the WTO and WIPO decided to form a trio with
it and conduct a world tour. The three set out early this year on a series
of joint seminars aimed at pressurising developing countries into adopting
UPOV-type legislation, or joining the Union, as compliance with TRIPS
Article 27.3(b). The series kicked off with a symposium in Geneva for
all developing countries in February. This was followed by regional and
subregional workshops: for Asia-Pacific (Bangkok) in March, for the Arab
world (Cairo) in early May and for Eastern Africa (Nairobi) just after,
with francophone Africa signing the Convention en bloc somewhere in between.
Farmers organisations and NGOs have been barred from these workshops but
different participants have described them as "lobby" exercises,
falling just short of "bribery." As one workshop participant
put it, "UPOV members have been very successful in confusing participants.
Many think the two [UPOV and sui generis] are one in the same. Some seem
to believe they must join UPOV to be a member of WTO."
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THE 1999 REVIEW OF TRIPS ARTICLE 27.3(b)
Article 27.3(b) of TRIPS is one of the most contentious
paragraphs in the whole of the TRIPS agreement, since it requires
member states to grant legal monopolies on the very basis of food
security: crop biodiversity. The implications for farmers, scientists
and consumers on the one hand a few transnational corporations on
the other, are immense. For this reason, the review agenda for TRIPS
is an important and immediate concern for many developing countries.
Some industrialised countries, led by the US, are
pushing to turn the review into a meaningless exchange of information
on implementation, instead of addressing the provisions of the Article.
Their ultimate agenda is to remove the Article from TRIPS altogether,
so that not only plant varieties but plants and animals per se would
be subject to patents in all WTO member states. Fallback positions
for the pro-patenting camp are the removal of the sui generis option
for plant varieties in 27.3(b), or at least inserting a reference
to UPOV in TRIPS.
Meanwhile, an increasing number of Southern governments
see the 1999 review as an opportunity to address the conflict between
TRIPS and their commitments to the Convention on Biological Diversity
(CBD). Countries urging for this substantive discussion include
the Andean Community, Southeast Asia, India, and many Southern and
Eastern African governments. The logical solution for them is to
exclude biodiversity from TRIPS or delay the implementation deadline
so that the issues can be properly sorted out. At halfway the year,
the review has moved slowly and with no real discussion yet. The
remaining sessions are scheduled for 7-8 July, 15-16 September and
23-24 November, all in Geneva.
Source: GRAIN, "TRIPS versus biodiversity:
What to do with the 1999 review of Article 27.3(b)", Barcelona,
May 1999, 13 pages, http://www.grain.org/publications/reports/tripsmay99.htm
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Africa in the crossfire
In Africa, the pressure tactics have been particularly
gruesome. Last February, UPOV forces succeeded in making eleven of some
of the poorest countries in Africa sign the 1991 UPOV Convention to fulfil
their TRIPS obligations. These countries – which, along with a few
developing countries, are members of the French-speaking African Organisation
of Intellectual Property or OAPI – have special status with WTO as
least-developed countries (LDCs). With LDC status, they do not have to
implement TRIPS 27.3(b) until January 1, 2006. Somehow, they were convinced
that they should throw away the seven years of legal and political freedom
ahead of them to work out the most appropriate solution to support agricultural
innovation and simply fall in line with the industrialised countries’
monopolistic UPOV regime.
Pushing the OAPI member states into UPOV’s clutches
is seen by some as a deliberate move to undermine more pro-farmer legislative
processes underway in Africa. The OAPI decision, which still needs to
be ratified in each member country, clashes head-on with the determination
of the Organisation of African Unity (OAU) to develop sui generis systems
that ensure the protection and development of community rights as a cornerstone
of sustainable development in Africa. The OAU Scientific, Technical and
Research Commission’s Dr Johnson Ekpere reacted strongly to francophone
Africa’s unexpected embrace of UPOV. According to Ekpere, "Most
developing countries are not members of UPOV because it does not address
their needs." He points out that, "The UPOV system is predicated
on the philosophy of industrialised economies where it was conceived with
the objective of protecting the investment and interest of large and influential
seed companies who employed plant breeders. The situation is quite different
presently in developing countries where the players in the seed sector
and major seed producers are small farmers and farmers’ cooperatives.
Consequently, the law should appropriately focus on protecting the farmer
… as a producer and consumer of new plant varieties."
This makes a lot of sense, if we look around Africa.
Until now, Kenya, South Africa and Zimbabwe have been the only African
countries to offer plant variety protection – basically UPOV-78 type
of systems – to breeders. According to one South African government
official who firmly believes in UPOV, stimulating the creation of "new
and better varieties" through plant breeders’ rights is "the
only way in which ever-growing populations can be fed." New and better
varieties are a fine objective if they help Kenyans, who are dealing with
famine in various parts of the country right now, feed themselves. But
is PVP – or UPOV for that matter – helping them get there? The
answer is a resounding "no." Kenya adopted its PVP law in 1975.
By May 1999, of the 140 PVP applications approved, only one was on a food
crop: a variety of green bean, which Kenya packs on an airplane to Europe.
More than 90% of the PVP certificates were for flowers, while the rest
went to coffee, sugarcane and barley for the beer industry (see graph).
Governments might need to study more closely the evidence of how this
kind of intellectual property system helps "ever-growing populations
to be fed."
IPR IN AFRICA: PROMOTING FOOD SECURITY?
PVP Certificates applied for in Kenya, as of May
1999
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1 coffee
1 green bean
5 barley
6 sugarcane
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123 ornamentals
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Compiled by GRAIN from Kenya Plant Health Inspectorate
Service data, 3 May 1999
Well aware of the complexities of trying to develop a
more equitable system, the OAU Heads of State agreed in Ouagadougou last
June that Africa’s compliance with TRIPS has to put the interests
of Africa’s majority – more than 20 million small farmers on
whom fathomless foreign aid and inappropriate technology have been dumped
– at the top of the agenda. To achieve this, the OAU set out a step
by step path:
1. Construct a viable response to the sui generis option
in TRIPS in the form of model legislation which takes account of Africa’s
commitments to the Convention on Biological Diversity and the International
Undertaking on Plant Genetic Resources and its promising recognition
of Farmers Rights;
2. Adopt a Common African Position for the 1999 TRIPS
Review;
3. Forge a South-wide alliance for the TRIPS review
so that implementation of this agreement does not sacrifice the gains
developing countries have made in terms of improving their systems to
control and benefit from the biological diversity generated through
a far greater history of innovation than the industrialised countries
can speak of.
OAU governments seem to understand well that if plant
breeding hinges on farming and vice versa, then any system to protect
plant varieties or promote technology under TRIPS has to reckon with Farmers
Rights. There has been international consensus on Farmers Rights, which
recognise the contribution of farmers to plant breeding, since the 1980s.
They simply haven’t materialised yet since Northern governments don’t
want Farmers Right to restrict access to germplasm or require payments
to farmers. In this context, UPOV is not a valid sui generis option for
TRIPS compliance because it’s utterly ineffective. UPOV-based systems
provide nothing for farmers – neither rights, nor nutritious crops,
if Kenya’s example is anything to go by.
Zambian experts have noted that under the UPOV Convention,
"it might be difficult for Zambia to achieve the goals of integrating
the formal and informal seed supply systems which is the current government
direction. It is further feared that with this Act, government’s
commitment to the CBD might be compromised." Instead, the Lusaka
government is focusing on "a well-designed and effective sui generis
system which will be broad-based as to recognise the rights of farmers
and communities at large, who have over the years conserved various plants
and animals."
Zimbabwe is also considering joining UPOV, if its request
for an extension of the deadline to sign the 1978 treaty, like Nicaragua’s,
is approved. But Zimbabwe is concerned that "it does not cover other
aspects of protection that Zimbabwe needs, particularly regarding medicinal
and industrial wild plants." In the meantime, it is now working on
its own sui generis legislation to this end. Morocco has recently adopted
a PVP law while Algeria, Tunisia, Egypt, Tanzania and Uganda are preparing
their own. Whether the OAU process can help them avoid the worst of UPOV
and fight for an exception on biodiversity under TRIPS remains to be seen.
Resistance in Asia
In other parts of the world, opposition to UPOV as the
sui generis solution to compliance with TRIPS is also gathering strength.
Civil society organisation representing NGOs, farmers and scientists from
five Asian countries protested the UPOV/WIPO/WTO meeting in Thailand,
last March, having been refused entry to it. In their joint statement,
they accused the WTO of "lending support to the concerted campaign
of UPOV, the US government and the $30 billion commercial seed industry
to force plant breeder’s rights legislation as the only option for
developing countries." According to Witoon Lianchamroon of BIOTHAI,
"the UPOV system completely overrides Farmers’ Rights and Thai
communities cannot accept it." Ashish Kothari of Kalpavriksh, who
is a member of the drafting committee of India’s Biodiversity Act,
added that "The UPOV option is not suitable for India ... [because
it ignores] the interests and rights of millions of farmers who have been
breeding and developing seeds for thousands of years." According
to Binu Thomas of ActionAid India, "Transnational corporations spend
millions of dollars developing a few new plant varieties which they then
have to get planted in millions of hectares to recoup their investment
costs. Monopoly rights, like UPOV, fast-track this profit-seeking exercise
for big corporations at the expense of the farmer’s capacity to feed
his or her own family."
Some delegates at the meeting had similar perspectives
to share. As the Fijian representative put it, "The new UPOV stance
of 1991 seems to provide exclusive protection of commercial plant breeders
and multinational companies, with the total exclusion of farmers, indigenous
custodians and all others." This poses a real problem because Fiji
is very eager to see farmers and indigenous peoples’ rights safeguarded
and advanced, especially since the country has been subject to biopiracy
and overexploitation of its unique kava plant, which has become popular
in the West for its ginseng-like qualities.
The Thais were acutely bothered by the discussions. "I’m
worried, because more and more nations are joining UPOV, the essence of
sui generis will be changed in favour of UPOV (...). It wasn’t a
good sign either that the WTO co-organised this workshop," one Kasetart
University official said. Thailand has been working hard to draw up sui
generis legislation that really balances the interests of Thai farmers
with multinational seed companies. That is why it cannot accept a reduction
of the sui generis option to something as narrow and biased as UPOV. "UPOV
is a type of sui generis but is not sui generis – don’t be brainwashed
like others," another Thai academic cried out after the workshop,
calling for "Third World unity" against UPOV’s campaign
to co-opt TRIPS.
Over the in the Philippines, resistance to UPOV and to
any form of intellectual property regime over life forms has been strong.
Back in 1994 when Barry Greengrass, Vice-Secretary General of UPOV, visited
the islands to promote his wares, Filipino scientists and administrators
questioned him hard as to whether compliance with TRIPS meant they had
to adopt a UPOV type of law. He said "no" at the time, acknowledging
that "it was possible (but difficult!) to imagine having a national
system of protection that did not conform with UPOV but would still be
considered an effective sui generis system, for the purposes of [WTO]."
He seems to have changed his mind – but the Philippine government
agency responsible for this part of TRIPS has not.
The Philippine Department of Agriculture (DA) has finalised
its position on the TRIPS review, which holds that countries do not need
to adopt legislation in conformity with UPOV, nor join the Union, should
they chose the sui generis option. The government is working out its own
sui generis system, like some other Southern countries including Thailand
and India. However, that doesn’t the resolve the overriding problem
of conflicts, ambiguities and uncertainties that all developing countries
are facing. As the Philippine DA’s position paper says, "Issues
relating to breeders’ rights, farmers’ rights and community
rights have yet to be entirely understood in the discussions at the UPOV
and the WTO. The WTO Agreements are currently silent on the issue of how
to protect and promote the rights of indigenous, agricultural and other
local communities. This concern is serious and deserves discussion and
elaboration alongside any sui generis rights on plant varieties. The DA
encourages the Philippine Mission in Geneva to include this matter as
an integral part of the Philippines’ position before the TRIPS Council
review."
As a step forward, the Philippine government paper proposes
that, "To further protect the rights of farmers and local communities,
the review process should try to get life forms (plants and animals) and
biodiversity (and indigenous knowledge) out of the jurisdiction of WTO."
This is the most clean-cut solution (see box). No one disputes the value
of stimulating innovation and technology development. What is under dispute
is how best to do it and what kind of technology should be promoted. Systems
like patenting or UPOV take us in one direction only: toward greater control
over food and farming by a few large corporations in the industrialised
countries.
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BIODIVERSITY OUT OF TRIPS
This is the most clear cut position being voiced
for the review agenda: to remove the legal obligation embedded in
WTO's trade regime for countries to apply IPRs (patent or sui generis
system) toward any form of biodiversity. Both the patent and sui
generis systems under TRIPS imply private and exclusive monopolies.
Implementation of such regimes, under the guise of incentives for
R&D, should be optional not compulsory.
For many grassroots groups in the South, and for
GRAIN, this is a non-negotiable position. Providing incentives for
innovation with biodiversity – or "sustainable use"
in environmental jargon – is not a trade issue. It is about
strengthening capacities and rights at the local and national levels,
rather than forcing people to rely on technology packages from outside.
In practical terms, it means that the 1999 review will need to amend
Article 27.3(b) to provide member states with the option of excluding
all biological diversity-related inventions from their IPR laws.
"Biodiversity-related" includes inventions based on traditional
knowledge which do not necessarily involve biological resources
per se. This exemption will also require changes to Article 27.2
in the 2000 review of the whole TRIPS Agreement, since this article
currently requires the patenting of micro-organisms.
This option calls for an expansion of what may
be excluded from TRIPS. Many Southern groups supporting this position
are not calling for a new obligation on countries that currently
provide IPR on life forms to prohibit this. The idea, rather, is
to use the review to adjust TRIPS to the needs of developing countries
and reconcile it with the Convention on Biological Diversity (CBD).
With a full exemption for biodiversity in TRIPS, countries would
have greater scope to implement the conservation and sustainable
use objectives of CBD and devise more appropriate incentives for
exploitation of biodiversity in the national interest.
Source: GRAIN, "TRIPS versus biodiversity:
What to do with the 1999 review of Article 27.3(b)", Barcelona,
May 1999, 13 pages, http://www.grain.org/publications/reports/tripsmay99.htm
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Rather than being forced to accept what they don’t
need, developing countries should use the 1999 review to stand up for
what they want. If Asian countries support the Philippine position and
OAU adopts a similar Common Position for Africa, then there is ample ground
for the TRIPS Council session in July to put the real issues on the table.
Rather than giving in to UPOV as a means of currying favour at the WTO,
South governments should demand – as is their right – that biodiversity
be removed from the legal reach of the WTO’s intellectual property
agreement. They need to do this now, before they are forced to implement
the existing agreement.
Main Sources:
* Gaia Foundation and GRAIN (1998), "Ten reasons
not to join UPOV." Global Trade and Biodiversity in Conflict, No.
2, London/Barcelona, May. http://www.grain.org/publications/gtbc/issue2.htm
* GRAIN (1996), UPOV: Getting a Free Trips Ride? Seedling,
Vol.13, No.6, p 23. http://www.grain.org/publications/seedling.htm
* GRAIN (1999), "TRIPS versus Biodiversity: What
to do with the 1999 review of TRIPS Article 27.3(b)." Barcelona,
May, 13 pp. http://www.grain.org/publications/reports/tripsmay99.htm
* RAFI (1999), TRIPS Traps for Small Farmers: The impact
of IPRs on sustainable food security and farm families remains to be felt.
Genotypes, Winnipeg, May. http://www.rafi.org
* Newspaper clippings and the papers distributed at various
sessions of the UPOV/WIPO/WTO Joint Regional Workshop series on "The
Protection of Plant Varieties under Article 27.3(b) of the TRIPS Agreement"
(Geneva, February 15, 1999; Bangkok, March 18-19, 1999; Nairobi, May 6-7,
1999).
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