UPOV Council To Formalise Access To Documents; Civil Society Seeks Greater Participation

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Members of the International Union for the Protection of New Varieties of Plants (UPOV) meet this week for their annual Council and a series of preparatory meetings. Meanwhile, civil society keeps pushing for greater participation.

The UPOV Administrative and Legal Committee (CAJ) was scheduled to meet early today, followed by the Administrative and Legal Committee Advisory Group (CAJ-AG) into tomorrow. The Consultative Committee will then meet on 31 October, to prepare for the 46th ordinary session of the Council, the governing body of UPOV, to take place on 1 November.

One important item on the agenda [pdf] is the election of a new president and vice-president of the Council. The current UPOV president is Keun-Jin Choi, director of the Variety Testing Division in the Seed & Variety Service of the Korean Ministry for Food, Agriculture, Forestry and Fisheries. The vice-president is Kitisri Sukhapinda, attorney advisor in the Office of Policy and External Affairs at the United States Patent and Trademark Office (USPTO).

NGO Participation in Meetings, Still At Issue

Non-governmental organisations (NGOs) have long protested against closed meetings at UPOV and called for participation in the CAJ-AG. The CAJ-AG, according to UPOV, is open to members and invited observers who have raised issues. This week’s session draft schedule [pdf] shows that about 1.5 hours will be held in the presence of a few observers. They are: the European Coordination of the Via Campesina, the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties, and the International Seed Federations, and the Association for Plant Breeding for the Benefit of Society (APBREBES).

“In most organisations, there are provisions for the members to be able to have discussions among themselves,” vice secretary of UPOV Peter Button told Intellectual Property Watch in an interview. The Consultative Committee provides a space for members to have such discussions, but anything that the Consultative Committee prepares as a basis for a UPOV position always goes to the Council, he added.

“We clarify on our website that ‘Unless otherwise agreed by the Council of UPOV, only documents that have been adopted by the Council of UPOV can represent UPOV policies or guidance,” he said.

Observers can see the proposed positions in the Council and express their views, he said. This allows UPOV to operate in an efficient way. “We want to make sure we can organise our work in an effective way, but certainly not to exclude observers.”

The Council is scheduled to examine a draft revised version [pdf] of the current rules [pdf] governing the granting of observer status in UPOV bodies.

According to François Meienberg, board member of APBREBES, paragraph 4 of the revised document stating that “in the case of an international non-governmental organization with different coordination entities, observer status will be granted to only one coordination per organization” clearly shows reluctance on the part of UPOV to let farmers have a larger participation in UPOV, as “it makes it impossible for other regional coordination offices of Via Campesina to get observer status,” Meienberg said.

“It is important that the very restricted participation of observers is facilitated and improved in the CAJ-AG,” Meienberg added. The CAJ-AG is expected to consider this week a document [pdf] following a suggestion by APBREBES “to include a limited number of permanent places for observers representing various stakeholders groups such as farmers, breeders and certain other observer non-governmental organizations… in the CAJ-AG.”

New Potential Members’ Draft Law Examined

According to Button, one of the most important responsibilities of the Council is to examine laws of potential new UPOV members, because one of the requirements for membership is a positive decision of the Council on the conformity of the law with the UPOV Convention.

This week the Council is expected to examine the draft legislation of two candidate countries: Ghana and Tanzania. “The situation for the United Republic of Tanzania is rather particular,” said Button, because the United Republic of Tanzania comprises mainland Tanzania and Zanzibar, but only the draft law for mainland Tanzania will be examined during this session of the Council.

Ghana’s [pdf] and Tanzania’s [pdf] draft legislations have been analysed by the UPOV secretariat, which provided comments or suggested amendments to be submitted to the Council.

The UPOV Convention, first adopted in Paris in 1961, was revised in 1972, 1978 and in 1991. Complaints have been heard among civil society associations, and farmer associations against the latest version of the convention, characterised as giving more rights to new variety breeders to the disadvantage of small farmers.

According to Button, the UPOV system provides low barriers to entry for breeders. “Actually, anyone can become a breeder,” he said. Because of the breeder’s exemption in the UPOV Convention, which allows anyone to use any protected variety to start a breeding program, “breeders can use the best new, protected varieties as a starting point for their work..”

The core requirements for a new variety to be protected are distinctiveness, uniformity and stability. Those requirements have been said to favour industrial breeders by civil society, as farmer varieties are often not uniform. “It is important to emphasise that Article 8 of the 1991 Convention refers to sufficient uniformity with respect to the particular features of the variety’s propagation,” Button said.

“The uniformity standard is linked to the type of variety: some varieties are inherently very uniform, because of the nature of their propagation, such as roses for example, which are clones. However, if we take varieties of grass, which are cross-pollinated, the plants are not at all identical, and the uniformity standards reflect that inherent variation,” he said.

“Farmers need crops that they can grow in an effective way, which they can harvest efficiently and which meet the requirements of the users,” according to Button. If farmers have crops and products that are neither uniform nor stable, it will be difficult to manage the crops and, therefore, to meet the needs of consumers, he said.

Less Protected Documents, Civil Society Approves

One of the issues that have been raised about UPOV by civil society is the restricted access to documents, which they said was a lack of transparency. Since last year, UPOV has changed its policy about documents, removing a first layer of documents under password.

“It is important to note that the reason to keep those documents protected was seen by some as lack of transparency, while the reason was actually quite different, in some respects even the opposite,” Button said. “The concern was that people would not be able to recognise the status of documents,” he said.

“Maybe 10 years ago, some of UPOV’s views, recommendations and positions were presented in documents that were UPOV session documents … [so] there was no way of knowing which documents represented the views of UPOV and which were just discussion documents, presenting proposals for discussion.” Button said. “Putting those documents under a password was meant to avoid confusion of general readers.”

A document [pdf] on rules governing access to UPOV documents will be submitted to the Council to approve. Only the documents of the Consultative Committed are placed in the restricted area of the “meeting documents” section of the UPOV website, and password-protected, according to the rules document. Documents concerning the ordinary and extraordinary sessions of the Council, the CAJ, the Technical Committee and the Technical Working Parties are freely available.

A source from civil society said this was an improvement, but that the Consultative Committee documents should also be available.

At the close of the week’s meetings, on 2 November, UPOV will hold a symposium [pdf] on the benefits of plant variety protection for farmers and growers.

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

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  1. […] Last year, UPOV’s Council approved a document [pdf] on rules governing access to UPOV documents. This changed UPOV’s policy and removed a first layer of documents under password, which was welcomed by civil society. But documents of the Consultative Committee are still placed in the restricted area of the “meeting documents” section of the UPOV website (IPW, Biodiversity/Genetic Resources/Biotech, 29 October 2012). […]

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