African IP Body Steps Up Regional Effort To Adopt Plant Protection Protocol

The African Regional Intellectual Property Organization (ARIPO), with the help of the United States and an international plant variety organisation, is working to grow regional support for a controversial draft law. The draft protocol would boost protection for new plant varieties, despite concerns of local civil society that it would not be in the best interest of ARIPO members’ food security due to its potential impact on small farmers. ARIPO held a regional workshop on the issue in recent weeks in part to build support for a treaty negotiation to lock in these protections.

ARIPO is moving toward a diplomatic conference (high-level treaty negotiation) on the draft law raising plant variety protection (IPW, UPOV, 15 April 2014).

The regional workshop on the protocol was convened by the African Regional Intellectual Property Organization (ARIPO) on 29-31 October in Harare, Zimbabwe.

The workshop was organised by ARIPO, with the cooperation of the Geneva-based International Union for the Protection of New Varieties of Plants (UPOV), and the assistance of the United States Patent and Trademark Office (USPTO), according to the programme of the regional workshop [pdf].

The event restricted the attendance of civil society, according to the Alliance for Food Sovereignty in Africa (AFSA). At the event, the group confirmed its fears about the impact of the adoption of the protocol on small farmers and food security. ARIPO, meanwhile, said it had not heard particular worries from farmers over time.

AFSA published a release on 3 November calling for ARIPO member states to postpone the diplomatic conference and for urgent consultation with small holder farmers. The diplomatic conference is foreseen for March 2015, according to AFSA. There has been no information available about this from ARIPO.

AFSA has been opposing the draft protocol and asked that it be revised as they find the current version of the draft, which was approved by UPOV in April (IPW, African Policy, 15 April 2014), as running contrary to the interests of small farmers and the right to food (IPW, African Policy, 3 July 2014).

In particular, the farmers’ group is concerned that following the adoption of the protocol, any ARIPO member can join the 1991 UPOV convention, and the farmers of those countries would be unable to freely save, use, exchange, and sell farm-saved seeds.

In the release, AFSA states that, “Civil society representation through AFSA was severely restricted by the ARIPO Secretariat to only one participant, who attended the proceedings at AFSA’s own cost.”

“Other than the pro-UPOV 91 lobby, the African Seed Trade Association (AFSTA), no farmer or representatives from farmer organisations was present at the workshop,” they added.

ARIPO, meanwhile, told Intellectual Property Watch that it had not restricted attendance of NGOs to the workshop.

AFSA contends that the process leading to the drafting of the protocol has “largely been closed to farmers, farmer organisations or other members of civil society,” while industry associations such as the African Seed Trade Association, the French National Seed and Seedling Association, and “foreign organisations,” such as the USPTO and the European Community Plant Variety Office “have been consulted extensively.”

AFSA added that “The ARIPO Secretariat itself observed and acknowledged that most of the delegations from member states, government officials in particular, did not have full knowledge and understanding of the ARIPO PVP Protocol.”

According to AFSA, during the event, ARIPO proposed a further three-day training of member states “on the huge complexities in the plant variety protection and UPOV 1991 systems.”

According to its website, AFSA is a pan-African platform comprising a number of networks and farmer organisations working in Africa, including the African Biodiversity Network (ABN), Coalition for the Protection of African Genetic Heritage (COPAGEN), Comparing and Supporting Endogenous Development (COMPAS) Africa, Friends of the Earth- Africa, Indigenous Peoples of Africa Coordinating Committee (IPACC), La Via Campesina Africa, and the Network of Farmers’ and Agricultural Producers’ Organizations of West Africa (ROPPA). AFSA was launched at the United Nations Framework Convention on Climate Change Conference of Parties in December 2011.

LDCs May Be Pushed to Protect IP Rights

In its presentation [pdf] to the workshop, AFSA listed key concerns raised by civil society. In particular, they underlined that the draft ARIPO Protocol is based on the 1991 Act of the UPOV Convention, which they see as being more restrictive and offering less flexibility than earlier versions of the UPOV Convention.

The group also remarked that 13 of ARIPO’s 19 member states are least developed countries (LDCs) and as such not do not have to implement the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), since they benefit from a waiver to this implementation until at least 2021. Article 27.3 (b) of TRIPS requests that member states provide for the protection of plant varieties either by patents or with an effective sui generis system.

According to AFSA, “there is a misconception” that UPOV 1991 represents this “effective sui generis system,” and they cited other such systems implemented in Ethiopia, India, Malaysia and Thailand that could be evaluated.

AFSA also contends that the draft protocol undermines sovereign rights of ARIPO member states as it would establish a centralised plant variety protection system “that will supersede national law.” Moreover, AFSA says that the draft protocol does not require a breeder to disclose the origin of the genetic material used to develop the variety it wishes to protect and neither does it provide mechanisms for prior informed consent and access and benefit sharing.

“It is unacceptable that while African nations champion in various international forums (e.g. the WTO, WIPO) for disclosure of origin and mechanisms for benefit sharing in IP agreements, ARIPO, an African regional organization, is ignoring such mechanisms,” they said.

ARIPO asked that member states be granted “time and resources to initiate an evidence-based impact assessment/cost-benefit analysis of the proposed draft legal framework.” In particular, the assessment should see if the protocol corresponds to the development needs of ARIPO members, they said.

AFSA asked that member states be granted “time and resources to initiate an evidence-based impact assessment/cost-benefit analysis of the proposed draft legal framework.” In particular the assessment should see if the protocol corresponds to the development needs of ARIPO members,” they said, asking that the draft protocol be revised “to comply with the more flexible effective sui generis requirement of TRIPS Article 27.3(b).”

ARIPO Says Civil Society Consulted, Farmers Not Worried

An ARIPO source specified that the workshop was organised for the member states of ARIPO and was aimed at creating awareness among senior policy makers from the ministries of agriculture and senior officials from the national IP offices.

According to the source, non-governmental organisations wishing to participate were asked to send information about their focus “since NGOs focus on different things,” and the workshop was mainly about plant variety protection. According to the source, AFSA and another group from Somalia sent profiles but only AFSA responded to the invitation and asked for four participants to attend the workshop, which was refused on the ground that NGOs should only send one participant each. Governments were limited to two participants, due to a limited budget, the source said.

The source told Intellectual Property Watch that ARIPO has met with farmers, who did not mention such concerns as those underlined by AFSA. The output of PVP is for the “benefit of farmers, particularly commercial farmers,” the source said in an email, however asking if the development of African agricultural development should be based solely on subsistence farming, “given that the continent imports 40 billion [no unit specified] worth of food annually in addition to the growing populations of 3-5 percent per annum” on average.

“What we need to do,” the source said, is “to ensure that all categories of farmers are catered for in terms of their needs and expectations,” adding that it was a matter for policymakers to decide upon.

The source said that NGOs have not pointed out particular challenges posed by UPOV 91, except on essentially derived varieties (EDVs). EDVs refer to plants derived from an initial protected variety. A seminar on EDVs was held last year by UPOV. During this seminar, Normita Gumasing Ignacio, executive director of South East Asia Regional Initiatives of Community Empowerment (SEARICE), said the dynamic informal seed system is threatened by the concept of EDVs (IPW, UPOV, 29 October 2014).

The draft protocol [pdf] Article 22 (Exceptions to Breeder’s Right) addresses some of the concerns mentioned by farmers’ groups, the source said. Article 22 states that “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….”

Article 22 further states that, “The conditions for the implementation of the provisions under paragraph (2), such as the different level of remuneration to be paid by small scale commercial farmers and large scale commercial farmers and the information to be provided by the farmer to the breeder, shall be stipulated in the regulations.”

The source said ARIPO is also developing regulations and “some concerns raised will be incorporated.”

According to the source, l’Organisation Africaine de la Propriété Intellectuelle (OAPI, the Francophone region’s office), joined UPOV recently and did put in place plant variety protection based on UPOV 91 “sometime ago and I don’t seem to hear the NGOs complaining about it or the farmers in the region,” the source said.

He said the draft ARIPO Protocol will be presented to NGOs at the upcoming High Level round table for NGOs in Cape Town, South Africa. “Nobody has closed anything to farmers and NGOs,” he said.

Several seed industries have been contacted on the advantages of UPOV 91 for farmers, but none had answered by press time.

Image Credits: Flickr – Cyndy Sims Parr