Interrelations Between Plant Treaty, UPOV, WIPO, Farmers’ Rights – Do They Equate? 02/04/2015 by Catherine Saez, Intellectual Property Watch 6 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Farmers’ rights are enshrined in the international plant treaty. However, their implementation is an ongoing issue, which the plant treaty is seeking to address by looking at the interrelation that might exist with other international instruments. Separately, civil society is asserting that the World Intellectual Property Organization favours the International Union for the Protection of New Varieties of Plants (UPOV) in its technical assistance. But the WIPO Director General countered that this is decidedly not the case. At issue is the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) of the UN Food and Agriculture Organisation. The plant treaty includes an article (Article 9) relating to farmers’ rights. In this context, in 2013 its governing body adopted a resolution, 8/2013 [pdf], on the implementation of Article 9 and invitedUPOV and WIPO “to jointly identify possible areas of interrelations among their respective international instruments.” At the centre of the discussion is Article 9 of the ITPGRFA on Farmers’ Rights, and in particular the right for farmers to save, exchange or sell farm-saved seeds. Breeders generally are of the view that some royalties should be paid on further use of their seeds after the first harvest, while farmers hold the view that breeders have been working freely with seeds that generations of farmers saved and maintained for hundreds of years. Interrelations with UPOV and WIPO The ITPGRFA invited stakeholders to send submissions on the interrelations between the three agencies. A number of submissions were received by the ITPGRFA from civil society organisations, such as the joint submission of the Berne Declaration and Third World Network [pdf], SEARICE [pdf], and the Development Fund from Norway [pdf]. The intergovernmental South Centre [pdf] also provided a submission, as well as the European Seed Association [pdf]. The South Centre underlined the importance of protecting farmers’ practices of saving, selling and exchanging seeds. “The purpose of the UPOV system is to protect the rights of breeders. While this objective is legitimate, it should be pursued taking broader public interests into account. The application of the UPOV Convention, as revised in 1991, does not contribute but can effectively undermine the implementation of Farmer’s Rights,” the intergovernmental group said. The South Centre underlined what it considers to be an incoherence in the international legal system, which recognises the rights of farmers to save, exchange and sell seeds, and at the same time restricts such rights “if a country is bound under the UPOV Convention in its 1991 version, as currently interpreted.” Civil Society: WIPO Favours UPOV1991 in Technical Assistance The South Centre also noted that none of the WIPO-administered instruments “has addressed the issues arising from the implementation of Farmers’ Rights.” Both the South Centre and the common submissions by the Berne Declaration and Third World Network insisted that WIPO’s technical assistance does not promote other systems of plant variety protection than UPOV 91. For example, they said, WIPO’s Methodology for the Development of National Intellectual Property Strategies (tool 2 – Baseline Questionnaire – [pdf]) does not include question relating to the implementation of farmers’ rights, “nor about ways to develop a regime compatible with the ITPGRFA….,” the South Centre said. This was also noted by the joint submission of the Berne Declaration and Third World Network. “This is a major omission in a document intended to guide developing countries how to develop their intellectual property systems in the context of the WIPO Development Agenda,” the South Centre added. Tool 3 [pdf] (Benchmarking Indicators) of the strategy, according to the South Centre, “does not mention the contributions that farmers have made, and continue to make in the development of varieties adapted to local evolving conditions…” The document also fails to give any reference to sui generis systems (such as those adopted in India, Malaysia and Thailand) “that do not follow the UPOV model and which recognise rights over farmers’ varieties, it said. Furthermore, according to the Berne Declaration, “the various technical assistance missions of WIPO are also about promoting UPOV 1991.” “WIPO’s technical assistance is undermining implementation of Article 9 [of the ITPGRFA], and consequently achievement of the Treaty’s objectives,” it said.”As a specialized UN Agency, WIPO has a responsibility to provide technical assistance that enables realization of Farmers Rights at the national and regional levels.” Countries wanting to join UPOV can only join the latest version of the Convention: 1991. WIPO: Technical Assistance Unbiased But according to WIPO Director General Francis Gurry, when WIPO delivers technical assistance, people are told “about flexibilities and options.” “UPOV is a good balanced system for plant protection,” he told Intellectual Property Watch. All available options are presented to countries through WIPO technical assistance, he insisted, adding that the 1991 Act of the UPOV Convention is the latest expression of member states. More than 30 countries have ratified both the UPOV 1991 Convention and the ITPGRFA, said Gurry, concluding that those countries did not consider any inconsistencies between the two instruments. The WIPO director general also holds the position of UPOV secretary general, and the UPOV offices are hosted in the WIPO premises. The ESA, in its submission noted that “the UPOV Convention clearly should not be scrutinized on how it supports the various elements of Farmers’ Rights (such as for example protection of traditional knowledge or the participation of farmers in decision-making on matters concerning the conservation and sustainable use of PGRFA) for the simple reason that it is not a task for UPOV to deliver on such goals; the joint exercise should nevertheless reflect on areas where there are some clear interrelations.” During the second meeting of the Ad Hoc Technical committee on sustainable use of plant genetic resources for food and agriculture of the ITPGRFA on 2-3 March, a tentative list [pdf] of some of the issues mentioned in the submissions was reviewed. It was recommended by the committee that the list be sent to UPOV and WIPO. The report [pdf] of the meeting notes that “different instruments recognize and promote different forms of innovation in the use of PGRFA by farmers and breeders, including formal and informal systems.” [Update:] According to Peter Button, vice-secretary general of UPOV, “The members of UPOV were updated on developments within the ITPGRFA and will consider this matter in October 2015 on the basis of any developments in the meantime, as appropriate. ” Implementation of Farmers’ Rights Stakeholders were also encouraged by the plant treaty to submit inputs on the implementation of farmers’ rights. This follows a resolution [pdf] by the Plant Treaty governing body in 2011. Madagascar [pdf], Norway [pdf] and Poland [pdf] offered inputs, as well as a number of civil society organisations, such as the Berne Declaration [pdf], the Development Fund [pdf], La Via Campesina [pdf], and the Fridtjof Nansen Institute [pdf]. The European Seed Association [pdf] also provided an input. For example, Norway, which is a member of the 1978 UPOV Convention, says the 1978 Convention “protects Plant Breeders’ Rights’ but still allows farmers to save seed from their own harvest of protected varieties to use the following season and exchange them with other farmers.” Norway rejected the 1991 version of the UPOV Convention in 2005 on the grounds of farmers’ rights, which were restricted by the new version, Norway said in its submission. The Berne Declaration said the Swiss federal patent and plant variety protection laws were revised in 2008, and a revised ordinance on seeds and propagation material entered into force in 2010. In its view, “both laws narrow the farmer’s privilege by restricting the reproduction and suppressing the exchange of protected varieties.” However, it said, if compared with the current European patent and plant variety protection law landscape, the revised Swiss legislations “also provide for a number of progressive provisions in specific areas. The provisions have the potential to reduce the adverse impacts of intellectual property laws on the enjoyment of Farmers’ Rights in the spirit of the International Treaty.” The Development Fund, a Norwegian non-governmental organisation said that in many of the countries where it has projects, such as in Africa, Central America, Southeast Asia, and South Asia, there is little awareness of farmers’ rights and agricultural biodiversity. The European Seed Association (ESA) said that because plant varieties, “especially the open pollinated types, can very easily be reproduced by anybody, breeders, whether companies or individuals, must have the opportunity to protect their new varieties through intellectual property rights.” “ESA is strongly in favour of Plant Breeder’s Rights based on the UPOV 1991 Convention as it provides an adequate protection of plant varieties against inappropriate exploitation by others,” it said. “This protection is combined with free access and use for further breeding purposes (breeder’s exemption) and the compulsory exception of acts done privately for non-commercial purposes allowing subsistence farmers in developing countries to save and use seed from their own harvests.” Image Credits: Flickr – ICRISAT Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Catherine Saez may be reached at email@example.com."Interrelations Between Plant Treaty, UPOV, WIPO, Farmers’ Rights – Do They Equate?" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.