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IP-Watch Interns Summer 2013

IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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    UPOV Marks 50 Years; Breeders Seek More Enforcement, Civil Society Wants In

    Published on 20 October 2011 @ 9:37 pm

    By , Intellectual Property Watch

    This week the International Union for the Protection of New Varieties of Plants (UPOV) is celebrating its 50th anniversary. The Union is often criticised by civil society as being opaque, but plant breeders seem reasonably content with the latest version of the convention. However, some breeders that do not rely on seeds to reproduce their plants are seeking a clarification in the convention to prevent illegal use of their protected varieties.

    UPOV is an intergovernmental organisation headquartered in Geneva, in the World Intellectual Property Organization’s (WIPO) main building. The declared objective of the UPOV Convention is “the protection of new varieties of plants by an intellectual property right.”

    The UPOV Convention was adopted in 1961, after the Diplomatic Conferences held in Paris in 1957 and 1961, and it entered into force in 1968. The first Convention was then amended in 1972, 1978, and 1991.

    As of July 2011, UPOV had 70 member countries [pdf]. According to the UPOV website, one of the conditions of membership is the “development of a law in conformity with the 1991 Act of the UPOV Convention (UPOV Convention).”

    Asexually Reproduced Varieties

    There are two types of plants: those propagated by seeds, and those reproduced from grown plants in ways such as cuttings, which are described as asexually reproduced, said Edgar Krieger, secretary general of an international association of plant breeders of reproduced ornamental and fruit varieties (CIOPORA). CIOPORA considers the production of its breeders as horticulture rather than agriculture. Both agriculture and horticulture have matching interests but also different, specific needs, he told Intellectual Property Watch in an interview.

    CIOPORA, headquartered in Geneva but with an operating office in Hamburg, Germany, is also celebrating its 50th anniversary this year. The group is advocating for strong intellectual property protection for breeders of the asexually reproduced varieties on a worldwide basis, Krieger said. Most fruits and a large number of ornamental species, such as roses, carnations, geraniums and poinsettias, belong to the asexually reproduced varieties, he said.

    The particularity of asexually reproduced varieties is that they are easily reproduced “true to type”, he said. “It is very easy, from one plant or part of a plant, to multiply and duplicate the exact same plant variety and there are no technical means to restrict duplication,” he said. The majority of asexually reproduced plants are bred by traditional breeding or natural or induced mutations, he added.

    According to Krieger, there are too many loopholes in the UPOV Convention to efficiently protect asexually reproduced plants. CIOPORA has been an observer at UPOV for 50 years, and it sees “many positive developments,” he said. “UPOV plays a huge role in harmonisation” and in disseminating “the idea of plant protection into the world.”

    But, according to Krieger, the main concern in the current UPOV 1991 Convention is the lack of a clear definition of propagating material, which is protected under the Convention. Propagating material is parts of the plant that can be used for reproduction. Another concern is that the harvest material, such as apples or cut flowers, is protected but under conditions and limitations.

    CIOPORA represents over 65 percent of all plant breeders’ rights, titles and plant patents granted worldwide. As such, the largest users of the system with over 1200 species are CIOPORA members.

    CIOPORA would like a broad definition of propagating material, Krieger said, such as that “any plant or part of a plant, which is capable to produce an entire new plant true to type should be considered as propagating material,” he said. Last year, CIOPORA made a proposal for a definition. A UPOV commonly agreed definition of such material could be applied by members in their legislation, he said.

    Another concern is the farmers’ exception, Krieger said. This exception gives the possibility for a farmer to use his harvest of a protected variety on his own premises for further sowing. The list of crops is at the discretion of each country, he told Intellectual Property Watch. If the farmers’ exception is extended to asexually reproduced crops, “then the whole system is ineffective.” The farmers’ exception normally applies to agriculture only, and on a specific list of crops, but some countries extend it to horticulture, he said.

    “Regarding the scope of right we need to have control over the material of a variety beyond propagating material.” Everything that is not propagating material is harvest material and “we need to have a grip on harvest material,” he said.

    It is important to extend the protection of the asexual varieties beyond propagating material to avoid infringement, he said. For example, if a farmer buys a licence for a specific apple tree, then all derived products, such as apple juice or jam, can be traded freely. However, if there is no licence on the apple tree, then the right holders must have a way to control the apple juice or the jam, Krieger said.

    The goal of CIOPORA, he said, is to get better enforcement tools in many parts of the world, like higher qualification of courts. CIOPORA is also working with the World Customs Organization on infringement of breeders’ rights.

    Civil Society Demands Transparency

    Meanwhile, on 3 October, the Association for Plant Breeding for the Benefit of Society (APBREBES) sent a letter to UPOV Vice-Secretary General Peter Button, with detailed recommendations to the UPOV working group on rules concerning observers.

    In particular, the letter [pdf] asks that all UPOV documents be made publicly available. The UPOV website operates with two layers of restricted areas, they said, which filters access to selected users. According to APBREBES, “as an intergovernmental organization UPOV’s activities must be consistent with the principles of transparency, accountability and participation.” They added that UPOV’s sister organisation WIPO makes all working documents and meetings reports publicly available.

    The letter also asks that all observers are invited to join UPOV’s work to achieve “a balanced representation of the different stakeholders and interests.” APBREBES asks UPOV to “ensure balanced representation of different stakeholder groups, especially farmer organizations and other public interest civil society groups, in all its meetings.”

    Finally the letter requests that UPOV allows participation of observers in the Consultative Committee.

    ABPREBES members include: Berne Declaration (Switzerland); Center for International Environmental Law (USA); Community Technology Development Trust (Zimbabwe); Development Fund (Norway); Local Initiatives for Biodiversity, Research and Development (Nepal); Searice – The Southeast Asia Regional Initiative for Community Empowerment (Philippines); and Third World Network (Malaysia).

    The UPOV Administrative and Legal Committee met on 17 October, and the Administrative and Legal Committee Advisory Group met on 18 October, as well as the working group on rules concerning observers. The Consultative Committee met today, and the Council met on 20 October. On 21 October, a closed symposium on Plant Breeding for the Future will take place.

    Catherine Saez may be reached at info@ip-watch.ch.

     

    Comments

    1. UPOV Sprouts A New Public Face – As Farmers Protest | Intellectual Property Watch says:

      [...] The discontent is mainly about UPOV 1991, as Kastler said UPOV 1961 or 1978 were more favourable to farmers. In a release, La Via Campesina said the right for farmers to replant and exchange their seeds is indispensable to adapt cultures to climate change and allow seeds to acclimate to local conditions in order to minimise the use of fertilizers and chemical pesticides. This right to save seeds guarantees the security of global seed stock and food security, he added. Related Articles:UPOV Marks 50 Years; Breeders Seek More Enforcement, Civil Society Wants In [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

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