UPOV Approves ARIPO Draft Legislation Spreading Plant Variety Protection To Africa

The African Regional Intellectual Property Office last week obtained a positive decision at the international level on its draft law to protect new varieties of plants. Amid protest from civil society, the regional office now has to adopt the draft law and has said it would convene a diplomatic conference (high-level negotiation) in 2014 in order to do so.

The 31st extraordinary session of the International Union for the Protection of New Varieties of Plants (UPOV) was held on 11 April. Its main agenda item was to assess a draft law of the African Regional Intellectual Property Office (ARIPO) to protect new varieties of plants.

According to a UPOV press release [pdf], “the Council took a positive decision on the conformity” of ARIPO’s draft protocol. The draft protocol was evaluated against the 1991 version of the UPOV Convention.

“The Draft Protocol, once adopted with no changes and in force, would allow the Contracting States to the Protocol and ARIPO, in relation to the territories of the Contracting States bound by the Protocol, to deposit their instrument of accession to the UPOV Convention,” the press release stated.

In a 6 March letter to the UPOV secretariat, ARIPO Director General Fernando dos Santos said the 14th session of the ARIPO council of ministers in November 2013 had adopted a revised draft legal framework for the protection of new varieties of plants “as the basis of the conclusion of a Protocol at the Diplomatic Conference to be held in 2014.”

The purpose of the draft protocol is “to grant and protect breeders’ rights,” as stated in the draft protocol [pdf]. The protocol will apply to “all plant genera and species from the date of coming into force” of the protocol, the document states.

Article 3 (Administration) of the draft instrument specifies that “breeders’ rights granted under this Protocol shall, on the basis of one application be valid in all the Contracting States.” It also provides that “the ARIPO Office is empowered to grant breeders’ rights and to administer such breeders’ rights on behalf of the Contracting States.”

“Any state which is a member of ARIPO or any State to which membership of ARIPO is open may become party to this Protocol,” states Article 41 (Entry Into Force). The article also specifies that the protocol “shall come into force three months after four States have deposited their instruments of ratification or accession.”

The protection granted to breeders through the protocol spans over 20 years “from the date of the grant of the breeder’s right” except for trees and vines, which will be protected for 25 years, according to Article 26 (Duration of Breeder’s Right).

Civil Society Says UPOV Breaking Rule

Civil society groups attempted to block the initiative out of concern over the effects of UPOV 1991.

The Alliance for Food Sovereignty in Africa has voiced concerns at the adoption by ARIPO of UPOV 1991, alleging that ARIPO is bypassing national laws and outlaws farmers’ rights (IPW, Biodiversity/Genetic Resources/Biotech, 8 April 2014).

At the same time, the Berne Declaration group on behalf of the Association for Plant Breeding for the Benefit of Society (APBREBES), a group of civil society organisations, submitted legal questions to the World Trade Institute about the eligibility of ARIPO to become a member of UPOV 1991. The legal opinion found that “basic requirements of UPOV membership are not fulfilled.”

The report on the decisions of the UPOV Council states that “The Council noted the intervention made by the representative” of APBREBES.

At the close of the UPOV Council on 11 April, APBREBES issued a press release, stating that, “In order to bring in more African Countries the UPOV Council has blatantly broken its own rules.”

The group contends that a number of western institutions have been “trying for a long time to pressure African countries to adhere to the UPOV 1991 Act.” A main concern with the latest version of the UPOV Convention is the limitation on farmers’ ability to save, exchange and sell farm-seeds.

The press release further notes that the concerns raised, in particular the eligibility of ARIPO, “… have not distracted the UPOV Council to adopt the proposed decision [on the conformity of the draft protocol to UPOV 1991] today.”

‘It is evident that the political goal of many industrialised countries and the aim of the seed industry to expand the coverage of the UPOV as fast as possible was more important than the rule of law,” it said.

Civil society groups have also said that such limitations ran counter to the International Treaty on Plant Genetic Resources for Food and Agriculture, in particular its Article 9 on farmers’ rights. Article 9.3 states that “Nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate.”

Article 22 of the draft ARIPO protocol states that: “for the list of agricultural crops and vegetables with a historical common practice of saving seed in the Contracting States specified by the Administrative Council of Plant Variety Protection which shall not include fruits, ornamentals, other vegetables or forest trees, the breeder’s right shall not extend to a farmer who, within reasonable limits and subject to the safeguarding of the legitimate interests of the holder of the breeder’s right, uses for propagating purposes, on the farmer’s own holdings, the product of the harvest which the farmer has obtained by planting on the farmer’s own holdings, the protected variety or a variety covered by Article 21(3) (a) or (b).”

Current ARIPO member states are: Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Liberia, Rwanda, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.

[Corrected] Most of those countries are least-developed countries, which benefit from an exemption to the implementation of TRIPS running until 2021 (IPW, WTO, 7 June 2013). The UPOV convention represents a sui generis system to protect new varieties of plants, such as required by the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Seed Treaty, WIPO, UPOV to Look at Interrelations

The UPOV Council press release also mentions that the Governing Body of the International Seed Treaty thanked UPOV for its “practical support.” The Governing Body also called for the secretariats of UPOV, the International Seed Treaty, and the World Intellectual Property Organization to identify “possible areas of interrelations among the international instruments” of the three organisations.

According to the press release, the UPOV Council “decided to explore the idea of a joint publication on interrelated issues regarding innovation and plant genetic resources and other suitable initiative.”