Farm-Saved Seeds Sow Discord; Breeders, Users, Seek Clear Definition At UPOV 25/10/2016 by Catherine Saez, Intellectual Property Watch 1 Comment 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)When a harvested material from a protected plant variety, such as seeds, is used for further sowing and cultivating, royalties need to be paid to the breeder of this protected variety. However, according to breeders, farm-saved seeds are sometimes used as an excuse to avoid paying royalties, and clear definitions should be established internationally. Conversely, small farmer associations think that once farmers buy a protected variety, they should be able to re-use those seeds, exchange or sell them. The International Union for the Protection of New Varieties of Plants (UPOV) organised a Seminar [pdf] on Propagating and Harvested Material in the Context of the UPOV Convention on 24 October. UPOV Secretary General Francis Gurry, also director general of the World Intellectual Property Organization, said propagating material and harvesting material are at the heart of the effectiveness of the UPOV Convention. Article 14 of the UPOV Convention (Scope of the Breeder’s Right) defines the scope of rights referring to propagating and harvesting material but without a definition of either of those terms, he said. Peter Button, UPOV vice-secretary general, said the discussion of the definition of harvesting and propagating material has been going on for some years at UPOV. The issue of how to define harvested material started as early as 2006 and in 2013 an explanatory note was adopted by the UPOV Council. However, he said in his presentation [pdf] as the document was adopted, the UPOV Administrative and Legal Committee Advisory Group decided to go further and provide illustrative examples how the notion is applied in practice. Explanatory notes serve as guidelines for the users of the UPOV system and the public at large. Button said an explanatory note on propagating material was drafted and presented to the UPOV Council in March, but was not adopted. Ornamental Plant Breeders Need Narrow Definitions Andrea Mansuino, president of the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties (CIOPORA), said there is a need for UPOV to better define propagating material and harvested material. Breeders need clear definitions to develop their strategies, he said, adding that UPOV is a harmonisation system. Breeders need to know if a rose stem is harvesting or propagating material, he said. “CIOPORA loves UPOV,” said Mansuino, and has been its biggest supporter since its inception in 1961, noting that CIOPORA too was created in 1961. The lack of definitions leads to varying definitions and different scopes of protection in UPOV member states, he said in his presentation [pdf]. When UPOV undertook a study [pdf] of the different definitions in the plant breeders’ laws in 39 of its members, it found substantial differences, he said. Those discrepancies make it difficult for breeders to organise licensing, he said. After 25 years of UPOV91 (which is the latest version of the UPOV convention), he said it is concerning that the scope of protection for breeders is significantly different in the various UPOV member states, creating confusion and weakness in the granted rights for international breeders. The mission statement of UPOV cannot be achieved just by adding new country members every year in which approved new plant breeders’ right laws are too weak and too unclear, he said. Formal and Informal Sectors Need to Make Peace European Coordinator of La Via Campesina, a worldwide organisations of small farmers, Guy Kastler said in his presentation [pdf], that more than 70 percent of food on the planet comes from small-scale farmers and is produced on about 25 percent of cultivated land. Most small farmers do not have the means to buy seeds from the formal sector, he said. Many countries, by adopting laws that refer to UPOV are criminalising the exchange of seeds which they do not find in conformity with UPOV standards of stability and homogeneity, he said. If UPOV does not want to be accused of undermining food security, it has to clearly denounce those laws which grant total market monopoly to certified (protected) seeds, he said. Commercial varieties which are protected by the UPOV Convention rely on standardisation and the mechanisation of agriculture, he said, including pesticides, fertilisers, and irrigation. Those plant varieties cannot be used without the entirety of the technological package. The protected varieties of plants have been selected among millions of varieties collected for free from farmers, then put into seed banks, he said, adding that it would only be equitable that farmers are allowed to re-use commercial varieties that they have purchased. In addition, producing on a farm propagating material intended for cultivation on the same farm is the best way of adapting it to the desired growing conditions, he said. Biodiversity is not a collection of inanimate objects, Kastler said, it is continually evolving. The content of seed banks is not inexhaustible and needs to be renewed periodically so that seeds do not lose their germinating capacities. Some 75 percent of agriculture biodiversity has disappeared and such an erosion endangers the possibility of renewal of material in seed banks, he added. Farmers in their fields create more biodiversity than researchers in laboratories, said Kastler, appealing that the formal and informal seed systems cannot survive if they keep fighting each other. The formal sector needs the informal sector, which depends on the right of farmers to use, save, exchange, and sell farm-saved seeds, to survive, he said. Farmers’ rights do not question the funding principles of the UPOV Convention as it was established in 1961, he said. It is a matter of survival for UPOV, that it accepts to evolve to respect the balance between the breeders’ rights and farmers’ rights, and that would benefit society and food security, he said. UPOV Needs to be Efficient Michael Keller of the International Seed Federation (ISF) insisted that there is no clear split between the informal and formal sector. Breeders want UPOV; it is their favourite system, but they need UPOV to be efficient, he said. ISF members want a broad definition for harvesting and propagating material, he said, and with a globalised market, clear rules are needed. “We want to bring the best quality seeds to farmers,” Keller said in his presentation [pdf], with traits that increase yield profitability, resistance to pests and diseases, harvestability, crop quality, input efficiency, nutritional quality, and storage quality. Defining propagating material is critical to clarify the scope of the material on which a breeder can directly exercise his right, he said. Gaps in the protection of harvested material make the misuse by infringers easy, he said, to the disadvantage of honest growers who fulfil their obligations. Courts Decisions Rare, Farm-Saved Seeds Shortfall Axel Metzger of the University of Humboldt, Germany, said not many cases about breeders’ right infringement have been brought to court in Germany. He mentioned in his presentation [pdf] the case of the “Achat” potato variety in which a cooperative society propagated the potatoes without the breeder’s permission, and was found guilty by the German Federal Supreme Court in 1987. The defendant had stored the potatoes without anti-germination treatment and in the following spring had sold them labelled as table potatoes to farmers, who sold some of those potatoes as table potatoes and used others as planting material. The findings of the court were based on the fact that “it is irrelevant whether the potatoes are labelled as table potatoes. However, the distributor is only liable if a possible later propagation if foreseeable for the distributor at the time of sale and if the distributor accepts this possibility,” he said in his presentation. As long as the “Achat” principles apply, a narrow definition of propagating material is fine for agricultural breeders, said Metzger, but loopholes of protection remain for ornamental breeders, which could be addressed by a broad definition of propagating material in UPOV 91. Antonio Villarroel of the Asociación Nacional de Obtentores Vegetales (ANOVE) in Spain, in his presentation [pdf], went through different European countries and how they legislate to prevent breeders’ right infringement. Spain’s seed market appears propitious for infringement, with only 25 percent of certified seed on the market, 35 percent of farm-saved seeds, and 40 percent “brown bags.” Brown bags describe infringing seeds. More than 300 infringers were sentenced in Spain in the last 15 years, he said. Evidence of infringement includes the division and identification of the material by varieties, the presence of seed processing machinery, the processing, cleaning or treating of the seeds, and the dates of sale, which coincide with the sowing season, he detailed. Very few cases of brown bags are found in the United Kingdom or in Germany, said Villarroel. France, for its part, has instituted a “compulsory voluntary contribution” in the price of cereals of €0.7 per ton by farmers, except for small farmers and users of unprotected varieties. According to Geert Staring of the Breeders Trust, Belgium, the breeders’ income comes from royalties per certified kilogram, the granting of licences, and the equitable remuneration of farm-saved seeds. There are three types of infringers, he said in his presentation [pdf]: the unwitting, the unwilling and the undeterred. The most common types of breeders’ right infringements include producing and trading ware potatoes for seeds, multiplying potatoes without the consent of the variety owner, the trading with forged certificates, and the misuse of farm-saved seeds, which he said is a big issue for potatoes and cereals. According to Staring, in the EU, for potatoes breeders, only one-third of potential farm-saved seed royalties is collected, and for cereals breeders, only two-thirds of potential farm-saved seed royalties are collected. All biographies and presentations are here. Weeklong UPOV Meetings This seminar opened a week-long session of meetings of decision-making bodies of the union. On 25 October, the UPOV Administrative and Legal Committee will hold its 73rd session, on 27 October, the Consultative Committee is expected to meet, and on 28 October, the 50th ordinary session of the UPOV Council is scheduled. Also, on 26 October, another symposium will be held, on “Possible Interrelations between the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the International Convention for the Protection of New Varieties of Plants.” Image Credits: Catherine Saez 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 firstname.lastname@example.org."Farm-Saved Seeds Sow Discord; Breeders, Users, Seek Clear Definition At UPOV" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.