The UPOV accession process: Preventing appropriate PVP laws for new members
By Nirmalya Syam, Shirin Syed, and Viviana Munoz-Tellez
The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organization established by the International Convention for the Protection of New Varieties of Plants adopted in Paris in 1961. UPOV requires its contracting parties to establish an intellectual property system for plant varieties that favors the interests of commercial plant breeders but does not address the needs of farming systems in developing countries or the rights of smallholder farmers.
The accession process for new countries to UPOV as provided in the UPOV Convention is based on an examination of conformity of the plant variety protection (PVP) law of the acceding country with obligations under the UPOV Convention. Only if the UPOV Council gives a positive decision on the basis of such conformity examination, the acceding state can deposit its instrument of accession. This accession process does not allow new members any flexibility to adapt their national PVP law to their own needs and accommodate their traditional agricultural sector and related public policy issues such as the livelihoods of farmers, sustainable agriculture, and implications for food security. Prior UPOV members have greater flexibility than new members in enacting domestic legislation to implement the obligations under the 1991 Act by adopting their own interpretations of the obligations, which cannot be reviewed by the UPOV Council at the time of their accession to the 1991 Act.
The various acts of the convention were essentially negotiated between developed countries. The UPOV accession procedure is unique compared to intellectual property treaties administered by the World Intellectual Property Organization (WIPO) as well as the accession processes in the World Trade Organization (WTO), the Convention on Biological Diversity and its protocols, or the Food and Agricultural Organization (FAO) International Treaty on Plant Genetic Resources. None of these agreements have an obligatory conformity examination of national legislation before accession. In addition, the UPOV Council’s decisions regarding examination of conformity are not always consistent, and significant discretion is exercised by the UPOV Secretariat in interpreting the provisions of the convention as well as their implementation in national law. The UPOV Council’s guidance document for the preparation of laws in accordance with the 1991 Act also provides an extremely narrow interpretation of the provisions of the convention.
Therefore, developing countries should consider whether, instead of accession to UPOV, it would be better for them to adopt their own sui generis system of PVP which allows them to enact a law in accordance with their needs and circumstances. It would also be important for the UPOV Council to adopt a national deference principle in conformity examinations; limit the examinations to a review of adopted laws, as the convention does not mandate the council or the secretariat to intervene in the process of development of national PVP laws; and not undertake additional examinations after a positive decision is given.
Farmers, Seeds & the Laws: Importing the Chilling Effect Doctrine
By Saurav Ghimire
As an increasing number of countries are formulating Plant Variety Protection (PVP) laws, a growing number of farmers are affected by plant breeders’ rights. In addition, the seed certification law also affects farmers’ relations with seeds. Discussing the farmers’ interaction with the PVP law and seed certification law in Indonesia, this article establishes that the farmers have internalised the law beyond the scope of the legal text, such that they self-limit breeding, saving, and exchanging of seeds even in legally permissible situations. Based on the chilling effect doctrine, this article argues that the related laws should be relaxed to ensure that they do not over deter farmers from exercising their rights. This article calls for both negative and positive state obligations to address the chilling effect on farmers arising from both state and private actors.
Misappropriation of Genetic Resources and Associated Traditional Knowledge: Challenges Posed by Intellectual Property and Genetic Sequence Information
By Nirmalya Syam and Thamara Romero
Improper acquisition of genetic resources (GRs) and associated traditional knowledge (TK) without prior informed consent and on mutually agreed terms, in accordance with national laws of the country providing the GR and associated TK, as well as without any fair and equitable sharing of the benefits derived from their utilization, has been a significant concern for developing countries. Intellectual property (IP) rights can serve as one of the means of such misappropriation. One of the mechanisms sought by developing countries to prevent it consists in the establishment of an effective multilateral legal mechanism for defensive protection against misappropriation, primarily through the introduction of a mandatory disclosure requirement about the source and country of origin of such resources in intellectual property right (IPR) applications. These negotiations have been taking place in different fora. However, there is an increased sense of frustration due to the lack of progress in achieving consensus during the last twenty years. Meanwhile, new modes of misappropriation of GRs are evolving through the use of genetic sequence information and data of GRs, and by applying technological developments in synthetic biology. This paper discusses the use of IP and genetic sequence information and data as modes of misappropriation of GRs and associated TK and the deficits of the current international legal framework in preventing such misappropriation. This paper also maps the state of play of the ongoing negotiations in the context of these issues in different fora, and, in conclusion, proposes possible alternative approaches for addressing these pressing issues at the multilateral level.
South Centre Contribution in response to UPOV Circular E-20/246
The South Centre, as an intergovernmental observer to the UPOV Council, submits this contribution on views on the implementation of the exception of acts done privately and for non-commercial purposes in relation to smallholder farmers. The South Centre appreciates this opportunity to inform the possible development of guidance regarding the implementation of the exception of acts done privately and for non-commercial purposes in relation to smallholder farmers.
The Status of Patenting Plants in the Global South
Over the last few decades, the number of patents on plants and plant parts has greatly increased in various parts of the world. This has triggered social debate about possible negative consequences for the breeding sector, farmers and society. Despite the urgency of these questions, most research and literature has focused exclusively on developed countries – the USA and European Union, in particular – while little is known about the extent to which plants are being patented in other parts of the world. This research report, conducted and written by Prof. Carlos M. Correa, aims to fill this information gap by providing an overview of the status of patenting plants in the developing countries and emerging economies of the Global South.
The IP Negotiations Monitor summarizes the latest developments in multilateral and regional fora where intellectual property negotiations are taking place, and informs on upcoming meetings and events.
(Covering period: July – December 2017)
Statement by the South Centre on EU-MERCOSUR Trade Negotiations
EU-MERCOSUR Trade Negotiations must not impose TRIPS Plus provisions on Protection and Enforcement of Intellectual Property Rights