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 Plant Variety Protection in a Developing and Demanding World
 By
Huib Ghijsen
 
 
 
Keywords:  Plant breeders' rights; Farmers' rights; Technology transfer; Trade.
Correct citation: Ghijsen, H. (1998), "Plant Variety Protection in a Developing and Demanding World." Biotechnology and Development Monitor, No. 36, p. 2-5.

The Convention of the International Union for the Protection of New Varieties of Plants (UPOV) is one of the options for sui generis systems for Plant Variety Protection (PVP). This article explores the possibilities of UPOV to accommodate the various demands derived from the Convention on Biological Diversity (CBD), Farmers’ Rights and equitable remuneration mechanisms. It also discusses the potential of UPOV to encourage the informal seed systems and local breeders, besides the established seed companies.

According to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), countries have to "provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof". To date, only UPOV provides a workable example of a sui generis system. The UPOV system emerged in Western Europe between 1930 and 1960, when agriculture was dominated by small farmers who became interested in new and improved varieties. UPOV was based on several national European PVP systems. The founding countries Italy, Germany, France, Belgium and the Netherlands did not follow the Paris Convention for the Protection of Industrial Property of 1883. It was felt that, due to the Convention’s scope of protection and the exclusive rights of its patent system, patents would impede the common practice of using protected plant varieties for further commercial breeding. In the UPOV Conventions of 1961 and 1978 this phenomenon was acknowledged by the breeders’ exemption (see box 1).

Exemptions from PVP 

The breeders’ exemption allows plant breeders to freely use protected varieties for the development of new varieties. However, this has been limited in the latest UPOV Convention of 1991 by the provision of essential derivation. This provision extends the scope of protection for a variety over the material of a newly developed cultivar which is derived from the original variety. So far the breeders’ exemption plays a key role in the UPOV - PVP system, as it prevents the monopolization of a particular breeding aim. Only the specific variety as such is protected and not the breeding method, nor crops’ ingredients or particular traits like disease resistance. Therefore any breeder can follow new developments, without infringing the rights of the previous breeder. This freedom of operation does not exist under a utility patent system. 
The farmers’ privilege allows farmers to save and re-use harvested material such as seeds for the next season. Under the UPOV 78 Act the scope of plant variety protection does not cover farm saved seeds and therefore technically there is no need for an institutionalized farmers’ privilege. Some UPOV members allow farmers to plant back seeds and to exchange limited amounts "over the fence" on a strictly non-commercial basis. In other member countries, especially the USA, under the UPOV Act of 1978 farmers were even allowed to sell certain amounts for reproductive purposes, so-called "brown bagging". 
In contrast to UPOV 78, under UPOV 91 the scope of PVP includes the farm saved seed. The national law may therefore provide for a farmers’ privilege as an exception on the exclusive property rights. It allows farmers to save and re-use the seed of a protected variety without the consent of the owner of that variety but with the safeguard of the legitimate interest of the breeder. This means that the farmer is officially permitted to re-use the saved seed exclusively on her/his own holdings and that she/he should pay a royalty for that use. 
The EU has implemented this provision under its PVP regulation whereby the small-scale farmer does not pay a royalty. Bigger-scale farmer pay a reasonable royalty, for the re-use of the seed, which is in practice about 50 per cent of the normal royalty. The USA has implemented the 1991 Act of the UPOV Convention in a way that the trade of seed is no longer permitted but the farmer still does not pay any royalty for the re-use of the seed of protected varieties.

Analysing the key issues
In discussing PVP, it is useful to categorize the crops into three groups: (1) open pollinated food crops, (2) inbred lines and horticultural crops, and (3) medicinal plants. For each group specific characteristics have to be taken into account with regards to the application of PVP.
  Open pollinated food crops, such as cereals and tubers, represent the most complicated cases, fuelling most discussions on the PVP issue. Millions of farmers re-use the grains or tubers that they harvest for next season’s production. Moreover, within the context of informal seed systems in which farmers freely exchange, trade and save seeds, landraces and indigenous knowledge often contribute to the adaptation of varieties to specific farming systems. This approach fosters a quick dissemination of newly developed varieties.
In developing countries it seems appropriate to have a Plant Breeders’ Right (PBR) which allows for free seed saving and flow of seeds between farmers for open pollinated food crops. However, to offer an effective sui generis system, care must also be taken for the remuneration of the breeder. This could be done by means of a public or private central fund from which the breeder gets paid on the basis of the acreage of the breeder’s protected variety that is grown by the farmers. The endowment for the fund could be raised by the government, the farmers or both, depending on the national situation.
At the same time farmers may save, exchange and trade non-commercially the seed of the protected variety. Such an approach could be more effective than a system in which breeders collect their royalties from each farmer individually.
There are alternative avenues to pursue a balance between breeders’ remuneration for and farmers’ access to newly developed varieties. For instance, national PVP legislation could include a provision for the compulsory licensing of varieties of open pollinated food crops. This would provide a right for any interested party to save and trade the seed of protected varieties, with or without the obligation to pay a royalty. Another possibility would be to extend the farmers’ privilege (see box 1) to seed exchange and small, non-commercial seed trade. For both alternatives it has to be guaranteed that, if no royalties are paid, the breeder will get a remuneration from, for instance, the central fund.
For inbred lines and horticultural crops, such as ornamentals, fruits, vegetables and plantation crops, there has been limited discussion about farmers’ privilege. The biological features of the protected material make its re-use unattractive for farmers. For horticultural crops, the harvested product generally cannot be used as propagating material for the next generation as it is the case with grains from cereals. Due to their low yield inbred lines, used to produce seed of hybrid varieties commercially, they are not interesting for the farmer/consumer but only for the competing breeders. PVP for ornamentals can create an incentive to disseminate newly developed varieties. Breeders from industrialized countries will export their best and most recent varieties more easily to countries in which an effective PVP system has been implemented. For these crops the extension of the protection to the harvested product and the concept of essential derivation (see box 2) are important provisions to safeguard breeders’ inventions against plagiarism.
The property status of medicinal plants is the object of a political debate. It is felt to be an injustice that these valuable plants can be protected by an Intellectual Property Right (IPR), because they are considered as a heritage of humanity and should not be monopolized by a few.
For medicinal plants, the risk of monopolization and unfair appropriation could be minimized by requiring a certificate of novelty as part of the application for protection under a PVP system. This certificate could be provided by an authorized organization, representing the regional community. Some varieties of valuable species may only be known locally, therefore the place of origin should also be stated in the application. By this provision, valuable plants would remain in the public domain. However, it still leaves an open possibility to use them for the development of new distinct varieties.
Another possibility is applied by Ecuador in its PVP legislation under UPOV 1978. PBR cannot be claimed for wild species that have not been planted or improved by human invention.

Overview of some key provisions of the UPOV  
Acts of 1978 and 1991 
Key provisions UPOV 1978 UPOV 1991
Breeders’ exemption included included
Principle of essential derivation not included included
Scope of protection only traded material all materials 
+ harvested product 
+ end product (optional)
Farmers’ privilege Farm Saved Seed not under scope of PBR included
Number of species to be protected minimal 24 all
Duration of protection 15-18 years 20-25 years
Double protection (e.g. PBR and patent) not possible possible
 
Suggested modalities for PVP
The proposed central funding system which should combine remuneration and stimulation for plant breeders with the interest of farmers freely to re-use and exchange seed material does not address all the outstanding problems of PVP. However, the UPOV system has proven to motivate not only large companies but also small breeders to engage in breeding work. The key element is the simplicity and efficiency of the system. In most UPOV member states, plant varieties are centrally tested. The breeder can suffice for registration by completing a simple application form, sending a sample, and paying a modest fee. The formulation of an extensive and complicated variety description is not necessary.
In order to keep the system simple, relatively cheap, and within the reach of small-scale farmer-breeders, any additional requirement should be assessed very critically. So far, the discussions about additional provisions for Farmers’ Rights, the use of landraces as a genetic source, and the protection of biodiversity raise the concern that the system may become too expensive and complicated. The outcome of such a system might be the opposite of the initial aim: The tendency of monopolizing living material could be enforced because only large companies could afford PVP.
PVP grants landraces the position of "varieties of common knowledge". This means that a new variety must be identifiable as being clearly distinct from the existing landraces. It prevents the monopolization and possible unfair appropriation of these old varieties. Another possibility is the extension of the provision of essential derivation to non-protected varieties in the sense that varieties derived from a non-protected variety could be excluded from PVP. It is, however, neither possible nor sensible to exclude landraces from being freely used as a crossing parent in breeding programmes.
Genebank collections can have the same position as landraces if they are regarded as a variety rather than a population, provided that they are described and the information is published. Genebanks may oppose the granting of PVP for their collections, or the national legislation may exclude genebank accessions from PVP. Genebanks of the Consultative Group on International Agricultural Research (CGIAR), as well as some national genebanks, have introduced Material Transfer Agreements (MTA) for this purpose (see also Monitor No. 24).

Incentives for plant breeding
A PVP system can prevent the piracy of landraces, but their in situ maintenance and the sharing of benefits by farmers or communities should be regulated outside the main PVP system, namely to avoid complicated regulations.
Farmers’ Rights as well as provisions for Prior Informed Consent (PIC) in the CBD have a tendency to limit the access to germplasm. This may have an adverse effect on plant breeding as a whole and create the opposite result of their original aims. It may favour the bigger organizations, which can easily, with the help of local communities, prevent competitors from collecting valuable germplasm.
The best way for the local communities to obtain remuneration for their work done in the present and the future is the breeding of improved varieties by local farmer-breeders. This also minimizes the chance that farmers have to buy seeds of foreign varieties that have been improved from farmers’ original landraces. The sui generis PVP system as represented by UPOV has a limited scope of protection and offers two very important exceptions on its exclusive property right: the farmers’ privilege and the breeders’ exemption. These guarantee farmers an easy and cheap access to new varieties and keep the door wide open for breeders freely to use any protected variety for further plant breeding.
The UPOV system could be recommended for all countries for the protection of new plant varieties, as the most experience has been acquired within this legal framework. Furthermore, UPOV contains important exemptions. It is to be hoped and expected that the issue of seed exchange of open pollinated food crops between farmers can be solved within the UPOV Act of 1991.
Huib Ghijsen

CPRO-DLO, P.O. BOX 16, 6700 AA Wageningen, the Netherlands.
Phone (+31) 317 476 888; Fax (+31) 317 418 094; E-mail h.c.h.ghijsen@cpro.dlo.nl

Sources
C.J.M. Almekinders et al (1994), "Local seed systems and their importance for an improved seed supply in developing countries". Euphytica 78, pp. 207-216.

H.C.H. Ghijsen (1998), "To be or not to be an EDV". Prophyta The Annual, May/June, pp. 24-30.

GRAIN (ed.) (1997), Signposts to Sui Generis Rights. Background discussion papers for the international seminar on sui generis rights. Bangkok, Thailand: BIOTHAI.

International Convention for the Protection of New Varieties of Plants, (1978 and 1991), 1UPOV Acts of 1978 and 1991. Geneva, Switzerland: UPOV.

PVP, APSA workshop Asian Seed, volume 4, No. 2, April 1997, p.3, p.7.

World Trade Organization (1994), Agreement on Trade Related Aspects of Intellectual Property Rights. Geneva, Switzerland: WTO.



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