June 1996

UPOV: GETTING A FREE TRIPs RIDE?

In the early part of this century, plant breeding became an activity completely separate from farming in Europe and North America as seed companies and public research institutes became specialised in crossing and creating new varieties of plants. In the wake of the industrial revolution, the newly emerging breeding sector started clamouring for some form of legal protection over what they considered their "invention". But the conditions to acquire patent protection were not applicable to living organisms like plants. How can you exert legal control over an invention that reproduces itself freely in nature, particularly in farmers' fields where you want it to end up? The US took exception to this problem and enacted a Plant Patent Act in 1930. The Europeans were more sceptical. But after World War II they worked out a sui generis (specifically tailored) intellectual property regime for developers of new crops varieties called plant breeders' rights (PBR).

PBR: a "soft" patent

An international convention establishing the Union for the Protection of New Varieties of Plants (UPOV) and laying out common rules for PBR was signed in 1961. The convention is administered by a small Secretariat, housed within the World Intellectual Property Organisation (WIPO), a UN agency in Geneva. The UPOV Convention was originally signed by six European countries, and as recently as 1990 had only 19 members, all industrialised countries (including South Africa). Today, UPOV has 30 member states, while an additional 14 countries also have some type of PBR system in place (see table). The original convention has been revised several times, the last time in 1991.

The original UPOV Convention laid down the rules for PBR that would have to be included in national laws in order for countries to qualify for membership. In essence, plant breeders are given a limited monopoly over the reproductive material of the variety. Even if it may seem only a nuance, this entails an important difference with patents, since patent holders claim ownership to the germplasm, technology and industrial processes, while breeders - in the original UPOV concept - can only control multiplication and sale of seeds. UPOV has also provided - until the 1991 version discussed below - special protection for farmers and the continued free access to plant genetic resources. Farmers have been allowed to continue with their ancestral costume of saving seeds for the coming seasons and informally exchanging them with other farmers, even from protected varieties, and this right is called the farmers' privilege. Plant breeder and Netherlands genebank director, Jaap Hardon, described this free availability of germplasm once as a " constitutional right" in agriculture. "A right going back 12'000 years to the dawn of agriculture and the domestication of all these crops we grow or have grown." For the same reason, breeders have been allowed to make use of protected varieties' genetic material to develop new lines without having to pay royalties or ask permission. This right is included in UPOV as breeders' exemption. Without the possibility to freely exchange germplasm there is maybe agribusiness but not agriculture.

While UPOV 78 is still valid, a much tougher version was adopted in 1991, to better suit a breeding world divided between conventional breeders and biotechnologists. In essence, the 1991 revision brought PBR closer to their more restrictive IPRs cousins: patents. The most important change in UPOV 91 was the virtual elimination of both the farmers privilege and breeders exemption. Member countries who sign the 91 rules `may' permit farmers to keep seeds and other propagation material from protected varieties for use on their own farms, but it will no longer be an automatic right. At the same time, breeders face new restrictions in the free use of genetic material, since the holder of a variety may now limit the right of another breeder to develop, produce, sell, stock or simply use any variety which is "essentially derived" from a previously protected variety. This is already leading to dependency genetics and to the concentration of commercial breeding in the hands of ever bigger companies.

Other important changes are introduced into UPOV 91 which lead to further erosion of in the free exchange of agricultural genetic material. The ban against double protection has been eliminated, and countries may now provide for simultaneous PBR and patents on everything from genes to entire crops. Another important change is that UPOV '91 rights now extend to the import and export of protected varieties, and to control of the harvest produced from those varieties without breeder authorisation. Thus breeders may now reach all the way unto the farmers field, and follow production from places without compatible PBR if imported into UPOV countries. Finally, UPOV protection has been extended up to 25 years in some cases and to new genera.

What's wrong with UPOV and PBR?

Plant breeders rights — and the UPOV model — have been contested in the North for the last three decades on several grounds: introducing monopoly rights into the food system, increasing genetic erosion through legal requirements of uniformity, imposing royalty payments on farmers, reducing the free exchange of genetic resources, and so on. Because of the controversy, and because PBR is much more designed for industrial agriculture, PBR never looked like a useful option for developing countries. In fact, the basic premise of PBR — that it is in an incentive to breeders and thus good for agricultural research and innovation — has never been proved even after 30 years of UPOV. All of these points are still being debated.

It is commonly held that 80 percent of the seeds used by farmers in the tropics are saved from their own fields or freely exchanged with neighbours. These practices, circulating diversity all the time, constitute an essential component of agroecosystem stability and, therefore, long-term sustainability. Plant Breeders Rights have very little to do with the traditional varieties small scale commercial farmers and peasants usually crop, since they do not meet the usual distinctiveness, uniformity and stability requirements. Seed companies rather displace traditional local varieties by promoting hybrids and homogenous modern varieties, often through government agricultural extension services. And they push for stronger PBR laws and internal policing of national seed markets.

The introduction of PBR in developing countries will further restrict the free availability of plant genetic resources essential for plant breeding. Increased industry awareness of the economic value of genetic resources has raised the strategic importance of publicly held germplasm, thus improving access for the private sector while reducing availability to non-commercial users. According to Ethiopian scientist Tewolde Egziabher, this is vividly illustrated by the granting of patents on cotton in the USA, since the peasants who produced cotton over millennia can now continue to use this fruit of their own intellect only as criminals in the eyes of industrial society. Third World peoples, the source and sponsors of biological diversity, are increasingly seeing their resources and rights appropriated by scientists and corporations. The adoption of PBR legitimises this and undermines local people's capacities to manage sustainable production systems.

UPOV claims that the system of plant variety protection contributes to the maintenance of diversity, but many others seem to disagree with that appreciation. The FAO Draft Report on the State of the Worlds Plant Genetic Resources states that breeders tendency to find new genetic material within their own breeding lines leads to a dependence on a narrower and narrower elite germplasm base for crop improvement. This can directly lead to widespread plant disease epidemics. Recent research on PBR systems in Latin America indicate that where farmers are still making use of traditional varieties under complex and varied environmental conditions - conditions which would fit most subsistence farming communities - modern varieties will most probably not be adequate.

The least worst evil?

Despite the doubts reinforced by current findings about the relevance of PBR for developing countries, pressure on the Third World to jump and enact PBR legislation and join UPOV grows.

With the closing of the GATT Uruguay Round, the member countries accepted an agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The TRIPs agreement states that GATT member must provide for the protection of intellectual property rights over plant varieties either by patents or an effective sui generis system (article 27.3.b). This is where UPOV is trying to sell itself as the solution. Governments are being hounded to believe that if they do not sign the UPOV '78 treaty fast, the only way of meeting the TRIPs obligations in the future would be by enacting the UPOV '91 provisions — or worse, patenting. This is not so.

During a "please meet UPOV" seminar held in Manila on 8 December 1994, the Vice Secretary General of the Union, Barry Greengrass, described how in previous years he had gone around organising similar seminars with government officials and other people from Asia and Pacific states. After 30 years of it, UPOV self-serving propaganda seems to be paying off. Philippine Department of Agriculture officials openly conceded that by adopting the 1978 Convention their country could satisfactorily comply with the TRIPs agreement. Greengrass applauded his hosts. And by opening up the floodgates, the debate has taken off in the Philippines. There are currently about half a dozen draft Congressional bills pending adoption as the country's "compliance" to TRIPs. Half are designed for officially recognised plant breeders (public research agencies and corporations) who are expected to "catapult Philippine agriculture into a super industrialised country", bartering asparagus and cut flowers to supermarkets in Japan. The other half cater to the specific role and needs of farmers and indigenous communities as plant breeders as well, but more aligned with a vision of long-term sustainability and food security.

In Colombia, a wide array of public interest groups working as the Ad Hoc Group on Access to Genetic Resources has stated that UPOV was counsel to the move that brought before the governing body of the Acuerdo de Cartagena — the Andean pact's free trade zone treaty, which includes Bolivia, Colombia, Ecuador, Peru and Venezuela — a proposal which eventually became Decision 345 on Common Provisions on the Protection of the Rights of Breeders of New Plant Varieties (see Seedling March 1995). Decision 345 binds all Andean Pact countries to enact UPOV-friendly PBR legislation, a move which will most probably lead the five Latin American into the UPOV den. According to Greengrass, Colombia, Ecuador and Bolivia have already initiated their accession to the Union.

Brazil a country which has been subjected to impressive bilateral pressures from the United States and transnational corporations to strengthen IPRs has had a protracted parliamentary discussion process with wide civil society opposition, which ended in approval early this year of a proindustry law which allows, among other things, patents on transgenic plants. Now the government has introduced a PBR Cultivars Act and tried to ramrod it through Congress under the same excuse: urgent approval of the 1978 Convention in order not to be forced unto UPOV 1991. According to Brazilian NGO sources, Mr. Greengrass has been in the country a few times in the past year to help government officials in the Agriculture Ministry and the Industrial Property Institute with their efforts to draft a bill which would qualify Brazil for entry into UPOV. (Mr Greengrass, by the way, worked for Nickerson Seed Co. and later in the biotechnology division of Shell International Chemical Co. before his UPOV appointment in 1988.) Brazilian NGO campaigning on the Cultivars Act has been focused not on direct opposition to PBR but on bringing the legislation in line with "still soft" provisions of UPOV 78, in order to leave space open for compliance with the Biodiversity Convention and an eventual enactment of farmers' rights. While fullfledged patenting of biotechnology inventions is a real threat, they feel that UPOV '78 was the least worst evil to fulfill the country's GATT obligations.

UPOV 78 went through parliament in Uruguay with very little previous information and no real discussion. The approval process was not publicly informed and NGOs did not have any real chance to input. Once again, one of the arguments used was the need to meet GATT/TRIPs obligations. The government official who orchestrated Uruguay's UPOV entry has been described as having very close links to national and transnational seed companies. Those same sectors are already suggesting that Uruguay should consider accession to UPOV 91, but this time NGOs are prepared to make themselves heard. In Argentina ratification of the UPOV 78 Convention was promoted by the Ministry of Agriculture under pressure from the local and multinational seed industry. Seed companies in that country have been very active in policing the enforcement of PBRs.

Notwithstanding all the rush to join UPOV 1978 before the 1991 Convention comes into force, the reality is that many of the laws being debated or approved are hybrids of both: even if they are designed to comply for the moment only with the 1978 version, more restrictive UPOV 91-like provisions are being included. Many of the laws approved or under discussion in Latin America follow UPOV 91 criteria for length of protection and scope of genera. The Costa Rica draft includes the extension of protection to production, adopts UPOV 91's "essentially-derived variety" clause, and makes fun of the farmers' privilege by insisting that farmers apply for a permit from the national seeds authority in San Jose. The latest Philippine draft is basically UPOV '78 with a dash of UPOV 91's extended scope of protection.

Sewing together sui generis stitches

What really is meant by effective sui generis system in TRIPs may be wide open to some, though others only see a two decade-old UPOV '78 behind it. As Barry Greengrass stated in Manila in 1994: "A system would hardly be an effective system of protection if it granted the breeder less than the minimum rights required by the 1978 Act of the UPOV Convention."

Fortunately, no one has an intellectual monopoly on the options. NGO, farmer, indigenous peoples, university, scientific and governmental sectors in many countries and regions are creatively working on alternatives to the PBR monopoly scheme (or worse, patents). These alternatives should be presented to the World Trade Organisation (heir to GATT) as effective sui generis systems required by TRIPs. The box on Needs and Alternatives offers some of the basic premises which could be included in effective sui generis options.

Third World Network has developed and is promoting a Collective Intellectual Rights (CIR) system as a response to TRIPs. According to Dr. Tewolde Egziabher of Ethiopia, CIR are an instrument to redress the injustice done in the Convention on Biological Diversity. While the Convention recognises indigenous peoples and local communities, "it falls short of accepting the rights of these communities to the protection of their intellectual achievements in knowledge and technology". Instead, the Convention grossly endorses the intellectual property rights systems of industrialised societies alone. CIR would recognise community organisations, both national or multinational, as legal personalities with rights to resources, innovations and lifestyles. Such rights would have no time limits nor would there be any limitations to the traditional free flow of technology, art, craft or knowledge among indigenous peoples and local communities. Additionally, CIR would have a compulsory financial mechanism within a future multilateral system on access to agricultural genetic resources, so that the benefits would reach local communities.

In India, Dr. Vandana Shiva and a coalition of farmer groups and NGOs are proposing alternative community rights (CR) to counter western IPRs as imposed by TRIPs. CRs would set the basis upon which IPRs could be granted, i.e. if indigenous innovations are protected by community rights, they would not be patentable since such innovations could not be treated as novel. Other sui generis propositions are being discussed in India, such as the work being done by the M.S. Swaminathan Research Foundation on the implementation of a farmers' rights regime that would simultaneously deal with breeders' rights. Thailand has also been discussing a PBR law, with a multisectorial group proposing a Farmers' Rights Law that departs from PBR but tries to meet the country's obligation with TRIPs.

In Colombia, the Ad Hoc Group on Access to Genetic Resources has worked extensively on developing sui generis options. In an on-going consultation process of NGOs and university people with indigenous, afro-Colombian and peasant leadership, the Group has proposed several elements to be forged into national law and a regional agreement. As a departure point, they insist that any IPR regime must recognise community rights as a distinct framework that does not, and should not, meet patent law requirements. Such sui generis regimes must lead to control by the communities over their resources and rights, and resources are to be understood as to include both tangible and intangible.

Time to consolidate

Surely much more will come forth in the near future on sui generis IPR options that are more attuned to the needs of the majority and long-term food security. Many developments have not been dealt with here (see Towards a Community Rights Regime in the October 1995 Seedling).

Indigenous peoples groups, farmers' and peoples' organisations, scientists and NGOs worldwide have been and are working on ways to counter the elitist and destructive drive for the privatisation of resources and knowledge through GATT/TRIPs. As a way of furthering initiatives and actions, some clear messages can be drawn up at this stage:

- The TRIPs agreement Art. 27 obliging signatories to provide IPR for plant varieties is up for review at the end of 1999. Those countries which prepare new legislation to meet this requirement should do so taking fair and explicit heed for the rights of rural communities and biodiversity concerns, in the interest of equity and agricultural sustainability. Sui generis options under TRIPs should take into consideration developments on indigenous peoples' and local farming communities rights both in the renegotiation of the International Undertaking on Genetic Resources for Agriculture in FAO and the implementation of the Convention on Biological Diversity.

- However, governments have no need to rush into approving legislation to comply with TRIPs, since developing country GATT members have five years from signing to fully comply with the obligations, and least-developed country members have 10 years for compliance. That time can be used fruitfully to work on local, national and regional alternatives to the PBR/UPOV mirage. And the review of the TRIPs clause in 1999 could very well result in a further extension of the review period if enough countries push for it.

- Research must continue on identifying non-western systems of belonging, development strategies sensitive and coherent with local realities, true biodiversity and associated knowledge management, and on preserving/constructing social structures that lead to indigenous peoples and local community control and empowerment.

Sources:

* FAO (1996), The FAO Draft Report on the State of the Worlds Plant Genetic Resources, Rome.

* J.J. Hardon (1989), "Industrial patents, plant breeding and genetic resources: a plant breeder's view", in Patenting Life Forms in Europe, ICDA Seeds Campaign, Barcelona.

* J. Guiard (April 19 1996), The technical criteria for the grant of protection under the UPOV Convention, UPOV, Geneva.

* Jaffé and J. van Wijk (1995), The impact of plant breeders rights in developing countries: debate and experience in Argentina, Chile, Colombia, Mexico and Uruguay, IICA and University of Amsterdam, The Hague.

* C. Montecinos and G. Castaqo Arcila (1993), Aportes a la Discusión del Proyecto de Ley de Obtenciones Vegetales, CIPAV, Cali.

* B.G. Tewolde Egziabher (1996), Collective Intellectual Rights, Addis Ababa.

* Shiva (1995), Protecting our biological and intellectual heritage in the age of biopiracy, Delhi.

* G. Singh Nijar (1994), Towards a legal framework for protecting biological diversity and community intellectual rights: a Third World Perspective, Third World Network, Penang.

* M.S. Swaminathan (1996), Agrodiversity and Farmers Rights: The final milestone, Madras.