Plant Variety Protection Meets Resistance in Developing Countries; Consultations Coming

Plant variety protection has raised concerns in Africa and in Latin America, and further developments are expected in 2013.

The African Regional Intellectual Property Organization (ARIPO) has proposed a draft regional harmonised policy and legal framework on plant variety protection based on the International Union for the Protection of New Varieties of Plants (UPOV) Convention of 1991, according to a media release of a number of African civil society organisations in November.

The draft ARIPO legal framework for the protection of new varieties of plants is here [pdf].

The signatories are concerned about “significant adverse consequences for small-scale farmers that dominate the agricultural landscape of ARIPO member states, as well as for food security, agricultural biodiversity, and national sovereignty in Africa.”

The legal framework could facilitate the “theft of African germplasm and privatization of seed breeding,” according to the release, “but it would restrict the offer of the seed market to commercially protected varieties, jeopardising farmers’ rights to freely use, exchange and sell farm-saved seeds.”

Mariam Mayet, director of the African Centre for Biosafety, told Intellectual Property Watch that after several unsuccessful communications with ARIPO, the African Centre for Biosafety wrote to the new director general on 23 January requesting information and a response to their November submission. Fernando Dos Santos was appointed as fifth director general of ARIPO, taking effect on 1 January 2013.

The answer from ARIPO [pdf] was swiftly received on the following day, Mayet said. It said that during the 36th Session of the Administrative Council of ARIPO, held in Zanzibar, Tanzania, from 26-30 November, “the Draft PVP Policy of ARIPO was thoroughly discussed by the Council. Many comments received from different interested parties were also examined by the Council.”

“The Council at the end of its deliberations took note of the revised legal framework for the protection of New Varieties of Plants and directed the ARIPO Secretariat to hold national and regional consultations in the year 2013,” said the letter. Those consultations will open the draft policy “to further debate, examination, revisions,” it said, and create more awareness so that it can be adopted.

According to the release, the legal framework has been developed by ARIPO in consultation with several stakeholders such as CIOPORA, the African Seed Trade Association, the French National Seed and Seedling Association, as well as the United States Patent and Trademark Office and the European Community Plant Variety Office, without the participation of farmers, farmer movements, and civil society organisations.

On the other side of the Atlantic, in Colombia, the Constitutional Court declared [php in Spanish] unconstitutional UPOV 91 in December, according to an informed source. In its release, the court found that indigenous and afro-Colombian peoples should have been consulted before approving Act 1518 of 2012

According to GRAIN, a civil society group, the accession of Colombia to UPOV 91 was an obligation for the country to join the US– Colombia Trade Promotion Agreement.

According to the court’s release, Colombian laws make compulsory the preliminary consultation of indigenous people and tribes about legislative and administrative measures that would affect them directly, since it is a fundamental right of ethnic minorities. Such consultations are mandatory by virtue of Colombian law and omission of this requirement in the legislative process constitutes a violation of the constitution, it said.

In the case of UPOV 91, the court ruled that Indigenous and afro-Colombian communities should have been consulted prior to the adoption of Act 1518 of 2012, as this international convention directly regulates essential aspects affecting these communities, in their capacity of breeders of plant varieties the intellectual property of which is being protected, such as criteria to be recognised as a plant breeder, the grant of the breeders’ right, duration and conditions of the protection, financial regulation and the value of improving or multiplying plant varieties, many of which constitute the traditional knowledge of these peoples.

According to the court, the types of restrictions that would be imposed by a patent on new plant varieties under UPOV 91 could hamper the natural development of biodiversity, which is the result of the particular ethnic, cultural and ecosystem conditions in which these peoples live. Therefore, the court ruled unconstitutional Act 1518 of 2012 and its unenforceability.

According to the informed source, the final decision of the Constitutional Court has not been published yet. He said the government is expected to start a process of consultation with indigenous and afro-Colombian peoples.