World Bank Report Urges Caution In Adopting Plant Breeding IP Policy

Developing countries should use international law on plant breeding but not necessarily sign up to binding conventions as they could have a negative impact, argues a new World Bank-commissioned report presented at a joint event on 20 June at the World Trade Organization.

The report was authored by Niels Louwaars of the Centre for Genetic Resources at the Wageningen University and Research Centre in the Netherlands.

Louwaars strongly warned against intellectual property rights in agriculture becoming primarily a trade issue instead of a research and development issue aimed at increasing innovation in developing countries. He cited food security and rural development as areas where the right to breeding is critical.

“Intellectual property rights in agriculture is not the same thing as [illegally] copying CDs,” he said, as it has a more profound impact on people’s lives.

Geoff Tansey, a consultant to the Quaker United Nations Office in Geneva, said at the meeting that the debate is about “who will control food in the future,” citing goals such as eliminating poverty, delivering food security and promoting nutrition worldwide.

Intellectual property rights in agriculture “should not be regarded by developing country negotiators as a bargaining chip that can easily be surrendered for trade advantages,” Louwaars said in his presentation.

One worrying trend could be the change away from publicly funded seed research as “most national research institutes look at IP rights as their saviour in financially hard times,” Louwaars said. This could lead to the research focus being led away from the poor and could “backfire on the poor,” he said.

The report, “Intellectual property rights; Designing regimes to support plant breeding in developing countries,” was commissioned by the World Bank’s Agriculture and Rural Development Department. The report assessed the initial impacts of strengthening IP rights in developing countries and looked at China, Colombia, India, Kenya and Uganda.

Plant breeding is currently regulated under plant variety protection (PVP), which is covered by conventions at the International Union for the Protection of New Varieties of Plants (UPOV), the only harmonised system for PVP.

The original International Convention for the Protection of New Varieties of Plant was adopted in Paris in 1961 and was revised in 1972, 1978 and 1991 (forming different acts), according to UPOV, a Geneva-based intergovernmental organisation.

In 2005, some 2,300 plant species and varieties were protected under UPOV, according to UPOV.

It is only the 1991 version of the convention that requires that the signatories protect all plant varieties (for the previous versions, countries may draw up a list of plants to be protected), Louwaars said. But it is also only by signing up to the 1991 convention that a country becomes a new member of UPOV.

Developing Countries Under Pressure to Join UPOV

Currently, most of the 30 member countries of the Organisation for Economic Co-operation and Development (mainly developed countries) have signed up to one of the UPOV conventions, and more and more developing countries are joining, the report said. But many of them want to join on special terms.

For example, Indonesia is not a UPOV member, while Kenya, which has a large flower industry, joined the 1978 Act in 1999. India has been waiting to join for six years, Louwaars said. The francophone West African countries, which have a joint patent office, are planning to join but want to have special plant breeders’ rights for cereals, for example, he said. A list of UPOV members is located here.

Developing countries now constitute the majority of UPOV members, Louwaars told Intellectual Property Watch, yet they did not participate in the formation of any of the conventions as they all joined after 1991. He said that despite developing country concerns about the existing conventions, there is no discussion of changing the conventions, though perhaps of adding an annex.

Louwaars said that developing countries should not join the UPOV conventions at any cost, arguing that some developing countries are being forced to join the UPOV.

The report points out that there is increasing pressure on developing countries, particularly in bilateral trade negotiations, to go beyond the requirements for intellectual property regulation for plant varieties found in international trade law.

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) “requires all WTO members to introduce at least a minimum level of protection in their national laws for plant varieties and inventions in biotechnology,” the report states.

Tansey said that developing countries had “carved out” a little exception in TRIPS Article 27.3(b), which says that plants and animals may not be patentable. This is currently being reviewed by the WTO.

Rolf Jördens, vice secretary general of UPOV, told Intellectual Property Watch that countries are not forced to join UPOV. In his presentation, he said that China (maize), Kenya (cut flowers), Korea (ginseng) and Poland (potatoes) had all seen an increase in foreign investment and new breeds since joining UPOV.

A seed industry representative at the meeting said that he “could sign up to the report.” He said intellectual property is only a small part of plant breeding and is useless if there is not a market. He said the industry prefers higher protection with flexibilities.

One advantage of joining the UPOV is that the members can share test data with each other, saving time as well as money, Louwaars said. But it has been questioned whether this is fully compliant with TRIPS as this forms an “exclusive club” and may contradict the most favoured nation status under the WTO, he said.

Some participants asked whether UPOV is “TRIPS-plus,” going beyond agreed TRIPS rules, while others argued that it is not even compatible with TRIPS. There are also examples of countries joining UPOV that have no seed industry, sources said.

No Easy Answer

The report found that although plant breeders’ rights and trademarks are regulated in several countries, “patents are currently not very important in plant breeding practice except in Bt-cotton and RR-soy,” Louwaars said in his presentation.

Thus the seed industry prefers, in order of importance, trademarks, plant breeders’ rights (UPOV and others), patents and trade secrets, Louwaars said. Patents on new seed varieties are only allowed in Australia, Japan and the United States, while patents on biotechnologies and genes are more widely used, he said.

But there is “no easy answer” to reducing the impact of IP on seed sector development as it is linked with issues such as liberalisation policies, seed laws and public expenditure, he said.

Louwaars said that while “well-designed IP rights can assist an emerging sector,” there are differences between and within countries and he pointed to the risk of over-protection. He said that in India, biosafety laws had helped companies protect themselves, and in China companies used contracts (China joined the 1978 Act in 1999).

Louwaars said that there are two options for IP rights and seeds: Low basic protection with extra rules for some sectors, or a high level of protection with exemptions, such as the European Union Biotechnology Directive’s exemption for patents on plants.

But he emphasised that the commercial seed sector did not emerge as a result of IP rights, and nor are they likely to lead to investments beyond current markets.