UPOV Governing Body Meets This Week Amid Civil Society Concerns Over Harmonisation

The International Union for the Protection of New Varieties of Plants (UPOV) is holding meetings of its governing and technical bodies this week. In particular, the UPOV Council is expected to renew Francis Gurry’s mandate as the organisation’s secretary-general, approve technical documents, and confirm the conformity of a Tanzanian plant breeders’ rights act.

Meanwhile, civil society has sounded the alarm over what it considers to be efforts to harmonise the application and examination procedures by the seed industry. Separately, a civil society study, carried out on three developing countries claims that UPOV 1991 might be threatening the global right to food.

Among the UPOV bodies meeting this week are: the Administrative and Legal Committee (CAJ), the CAJ-Advisory Group (CAJ-AG), the Consultative Committee, and the Council.

The agenda [pdf] of the CAJ, which deals with administrative, legal and financial matters of the organisation, includes a proposal by a working group for a denomination similarity search tool. The working group was seeking to work on a similarity search tool which could narrow the number of denominations requesting individual consideration, according to the proposal [pdf]. Denominations are new plant varieties, which are registered by UPOV members, and which should be checked against existing ones.

The CAJ, meeting on 13 October, is also expected to examine electronic application systems, as well as the development of information materials concerning the UPOV Convention.

The CAJ-AG’s agenda [pdf] includes consideration of possible alternative dispute settlement mechanisms for essentially derived varieties. According to the meeting document [pdf], the aim of the document is “to report on developments on alternative dispute settlement mechanisms at the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties (CIOPORA), the International Seed Federation (ISF) and the World Intellectual Property Organization (WIPO) and to consider the possible role of UPOV in alternative dispute settlement mechanisms.”

Expected to meet on 14 and 17 October, the CAJ-AG will also consider a number of draft explanatory notes on subjects such as harvested material, propagation and propagating material, variety denominations, and the cancellation of the breeder’s right.

A breeder’s right can be cancelled if the protected variety is no longer uniform or stable, and if some conditions are not fulfilled, such as if the breeder fails to pay the fees to keep his right in force, according to UPOV.

The UPOV Council, which is the governing body of the organisation, will meet on 16 October, and according to the agenda [pdf] is expected to appoint Gurry as secretary-general of UPOV for the period from 16 October 2014 to 30 September 2020. Gurry was re-elected director general of WIPO (IPW, WIPO, 8 May 2014), until September 2020. A number of chairpersons of UPOV technical working parties are to be elected. It is traditional that the head of WIPO also serve as head of UPOV, which is housed within WIPO, though technically independent.

According to a UPOV source, the Council is also invited to note the Plant Breeders’ Rights Act of Zanzibar, which was adopted by the Zanzibar House of Representatives, incorporates the changes in the decision of the UPOV Council of 22 March. The Council is also invited “to agree that the additional changes do not concern the substantive provisions of the 1991 Act of the UPOV Convention, and, subject to that agreement confirm the decision on conformity of March 22, 2013 and inform the Government of the United Republic of Tanzania that the instrument of accession of the United Republic of Tanzania may be deposited.”

A number of technical documents are also expected to be approved, as well as the financial management report [pdf] for the 2012-2013 financial period. The Council is also asked to note the report [pdf] of the external auditor on the audit of the 2013 financial statements.

According to the source, information will be provided to the Council on plant variety protection statistics for the period 2008-2012. “We are anticipating a record number of applications in 2013 and a record number of titles in force,” he told Intellectual Property Watch.

Civil Society Raises Issues on Consultative Committee

On its website, the Association for Plant Breeding for the Benefit of Society (APBREBES) raises concerns on several matters to be examined by UPOV Consultative Committee (CC), meeting on 15 October.

The Consultative Committee discusses policy issues that will be recommended for adoption by the Council.

According to APBREBES, the CC will consider a request for observer status by the South Centre. “The South Centre’s request for observer status was discussed during the 2013 Autumn session, however, no agreement could be reached as some developed countries raised concerns and doubts over its involvement in UPOV,” it said.

Also to be discussed by the CC, according to APBREBES, are “proposals by the International Seed Federation (ISF), the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Plants (CIOPORA) and Croplife International on the development of an international filing system, an UPOV quality assurance program and a central examination system for variety denominations.”

Those proposals are viewed as efforts by the seed industry to call for an additional level of harmonisation and centralisation of plant breeders’ rights applications and examination procedures. “The industry aim being to simplify the process and reduce the costs of obtaining PBRs, enabling breeders to obtain faster protection on more crops in more countries,” they said.

The group fears the potential effect of such harmonisation on the informal seed sector, biodiversity and food security, and that it could lead to further concentration in the seed industry. “Of particular concern is the legality or legal basis/mandate of such a proposal as the proposal is pushing for another level of harmonization beyond the 1978 and 1991 Acts but by way of contract,” they said.

“It is also concerning that the CC is being asked to consider the industry proposal, after hearing only industry’s views and without giving other stakeholder groups such as APBREBES and La Via Campesina an opportunity to present their views on the proposal,” they said. La Via Campesina is an international peasants movement.

UPOV 1991 and the Right to Food

Separately, the Berne Declaration published a research document [pdf] entitled, “Owning Seeds, Accessing Food – A human Rights Impact Assessment of UPOV 1991 – Based on Case Studies in Kenya, Peru and the Philippines.” Several other non-governmental organisations, such as the Development Fund, SEARICE, the Third World Network, and Bread for the World, participated in the publication.

UPOV 1991 is the latest version of the UPOV Convention, first adopted in Paris in 1961 and revised in 1972, 1978 and 1991. It is considered by civil society that the 1991 version of the convention is more stringent, in particular preventing farmers from selling, exchanging or re-using farm-saved seeds.

According to the authors, ” The human rights impact assessment of stringent plant variety protection and seed laws based on the 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV 91) provides convincing evidence of the threat to the right to food by small-scale farmers.”

The aim of the publication is “to raise awareness among actors in the North and South about the potential human rights impact of UPOV-like PVP [plant variety protection] laws.” It gives a set of recommendations for governments.

Those recommendations include undertaking a human rights impact assessment “before drafting a national PVP law or before agreeing to introduce IP requirements in trade or investment agreements in the area of agriculture…,” and ensure the participation of all “potentially affected stakeholders” in the drafting and implementation process.

To developing country governments, the publication recommends that they use all the flexibilities available to them, take effective steps toward meeting their right-to-food obligations, and allow small-scale farmers to save, exchange and sell farm-saved seeds.

They ask that developed country governments refrain from requiring developing countries to ratify UPOV 1991, and that UPOV, in particular, “review and revise those aspects of its rules and its workings … that affect the informal seed sector.”

 

Image Credits: Flickr – Dwight Sipler