UPOV & THE TRIPS REVIEW(S)
GRAIN November 1998
The World Trade Organisation obliges its 134 members countries to provide intellectual property rights on plant varieties through the WTO agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Currently, only a few dozen nations allow for private monopoly rights over plant varieties.
The TRIPS Agreement was signed in 1994. It says that while countries may exclude plants or animals from their patent laws, plant varieties -- the first link in the food chain -- must be subject to IPR either through patents or "an effective sui generis system" (Article 27.3[b]). Developed countries were obliged to implement this by 1996. Developing countries have until 2000. Least-developed countries must implement such laws by 2005.
The question as to what an effective sui generis system might be, for WTO's trade sanctioning purposes, is not answered in the Agreement. It simply refers to an "effective" sui generis -- i.e. special -- system. Some governments think that establishing laws on plant variety protection, or plant breeders' rights, would serve as compliance. This is essentially how developed countries met their TRIPS obligations already. However, only a handful of developing countries have such laws: the Andean Pact countries, Argentina, Chile, China, Kenya, South Korea, Mexico, Morocco, Paraguay, South Africa, Uruguay and Zimbabwe. Such laws provide a monopoly right to plant breeders over a specific variety. This allows the breeder to prevent anyone from making commercial use of the variety, sometimes beyond the point of harvest. Such laws provide no rights to farmers, only derogations.
The Union for the Protection of New Varieties of Plants, or UPOV, is a group of countries implementing such laws under a common framework: the UPOV Convention. Less than 40 countries belong to UPOV at present.  Plant variety protection under the UPOV system is designed to promote genetically uniform, industrialised agriculture.  This is quite in line with WTO's vision of trade maximisation, but goes quite against the premises of sustainable agriculture and the objectives of new environmental treaties such as the Convention on Biological Diversity.
Until very recently, countries could join UPOV on the basis of two options: the 1978 treaty or the 1991 treaty. The 1978 treaty allowed a derogation for farmers and an exemption for researchers to ensure that both had some liberty to use monopoly-protected seeds for production or breeding purposes. In the 1991 treaty, adjusted to the emerging practice of gene patenting, these exemptions have been seriously restricted. The 1991 Act of UPOV also extends the breeder's monopoly to the farmer's own harvest.
The 1991 Act of the UPOV Convention came into force last 24 April 1998. On this date, the 1978 Act was officially closed to further accession.  However, countries which by then had already approached UPOV regarding possible accession are permitted a sort of one-year "grace period" to complete the accession procedure under the terms of the 1978 Act. Those countries are: Belarus, Bolivia, Brazil, China, Croatia, Kenya, Morocco, Nicaragua, Panama, Venezuela and Zimbabwe, as well as the European Community.  Any other country considering accession to UPOV at present is obliged to adhere to the stringent terms of the 1991 Act , which differ little from outright patenting.
However, this is only the situation at present. With 14 months left to implement Article 27.3(b) of the TRIPS Agreement, developing countries are under terrible pressure to adopt UPOV-style legislation. For many of them, the 1991 model is far too severe. From our discussions with UPOV member states in Europe, this may result in real pressure on UPOV to change its accession procedure and re-open the 1978 treaty. The rules are not fixed in gold.
Pressure is all the more possible in the context of the impending Review of Art 27.3(b) in the WTO TRIPS Council in 1999, to be followed by a generalised review of TRIPS implementation in 2000. The UPOV member states want the TRIPS Agreement to be amended to include specific reference to UPOV.  This would make membership in UPOV, or implementation of its specialised IPR provisions, an obligation for all parties to the WTO, subject to multilateral trade sanctions. The United States recently announced that Washington will push for the UPOV system to become the measuring stick of correct implementation of TRIPS Article 27.3(b).  Governments might therefore argue that developing countries need the 1978 treaty option re-opened as a more reasonable measuring stick than the 1991 rules, thereby resulting in pressure on UPOV to change its procedures. Further means of forcing the South to join UPOV as the path to WTO-TRIPS compliance are also conceivable.
GRAIN and other NGOs long working on these issues hold firm to their assessment that the obligation on developing and least developed countries to provide intellectual property rights on plant varieties through the TRIPS Agreement should be resolutely withdrawn during the 1999 Review of TRIPS Article 27.3(b). In virtue of the rights of rural and coastal communities to retain and develop their control of biodiversity and indigenous knowledge, and in virtue of state commitments to the legally binding CBD, the South should be under no obligation by any treaty to privatise these resources through any form of IPR.
NOTES  Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Chile, Colombia, Czech Republic, Denmark, Ecuador, Finland, France, Germany, Hungary, Ireland, Israel, Italy, Japan, Mexico, Netherlands, New Zealand, Norway, Paraguay, Poland, Portugal, Republic of Moldova, Russian Federation, Slovakia, South Africa, Spain, Sweden, Switzerland, Trinidad and Tobago, United Kingdom, United States of America, Ukraine, Uruguay.
 Gaia and GRAIN, "Ten Reasons Not to Join UPOV", Global Trade and Biodiversity in Conflict. Issue No. 2, May 1998, Gaia Foundation, London, and GRAIN, Barcelona. Available online at
 "The 1991 Act, which effects important revisions to the UPOV Convention, came into force on April 24, 1998. The 1978 Act of the Convention became closed to further accessions on April 24, 1998, except for States which have started the accession process prior to that date." See "Accession of the Republic of Moldova to the International Union for the Protection of New Varieties of Plants", UPOV Press Release, No 32, UPOV, Geneva, 28 September 1998,
 André Heitz, UPOV, communication to GRAIN, 13 October 1998.  "Non-member States which have initiated the accession procedure before April 24, 1998, on the basis of the 1978 Act may deposit their instrument of accession to that Act until April 24, 1999. Any other non-member State may become a member of UPOV only by acceding to the 1991 Act." What is UPOV?, UPOV, Geneva,
 "[The UPOV Council] decided to request the Secretary-General to enter into consultations with the Chairman of the Council for TRIPS to ensure that the UPOV Convention be specifically mentioned in Article 1 of the TRIPS Agreement as another Convention providing standards for intellectual property protection, on the occasion of the general review of the implementation of the Agreement in the year 2000." The Fifteenth Extraordinary Session of the Council, in Plant Variety Protection, Gazette and Newsletter of the International Union for the Protection of New Varieties of Plants, No. 84, UPOV, Geneva, April 1998.  'TRIPs Agreement: US Official Urges Inclusion of WIPO Treaties in WTO Accord' in World Intellectual Property Review, Vol. 12, No. 11, Bureau of National Affairs, Washington DC, 15 November 1998.