UPOV Marks 50 Years; Breeders Seek More Enforcement, Civil Society Wants In

This week the International Union for the Protection of New Varieties of Plants (UPOV) is celebrating its 50th anniversary. The Union is often criticised by civil society as being opaque, but plant breeders seem reasonably content with the latest version of the convention. However, some breeders that do not rely on seeds to reproduce their plants are seeking a clarification in the convention to prevent illegal use of their protected varieties.

UPOV is an intergovernmental organisation headquartered in Geneva, in the World Intellectual Property Organization’s (WIPO) main building. The declared objective of the UPOV Convention is “the protection of new varieties of plants by an intellectual property right.”

The UPOV Convention was adopted in 1961, after the Diplomatic Conferences held in Paris in 1957 and 1961, and it entered into force in 1968. The first Convention was then amended in 1972, 1978, and 1991.

As of July 2011, UPOV had 70 member countries [pdf]. According to the UPOV website, one of the conditions of membership is the “development of a law in conformity with the 1991 Act of the UPOV Convention (UPOV Convention).”

Asexually Reproduced Varieties

There are two types of plants: those propagated by seeds, and those reproduced from grown plants in ways such as cuttings, which are described as asexually reproduced, said Edgar Krieger, secretary general of an international association of plant breeders of reproduced ornamental and fruit varieties (CIOPORA). CIOPORA considers the production of its breeders as horticulture rather than agriculture. Both agriculture and horticulture have matching interests but also different, specific needs, he told Intellectual Property Watch in an interview.

CIOPORA, headquartered in Geneva but with an operating office in Hamburg, Germany, is also celebrating its 50th anniversary this year. The group is advocating for strong intellectual property protection for breeders of the asexually reproduced varieties on a worldwide basis, Krieger said. Most fruits and a large number of ornamental species, such as roses, carnations, geraniums and poinsettias, belong to the asexually reproduced varieties, he said.

The particularity of asexually reproduced varieties is that they are easily reproduced “true to type”, he said. “It is very easy, from one plant or part of a plant, to multiply and duplicate the exact same plant variety and there are no technical means to restrict duplication,” he said. The majority of asexually reproduced plants are bred by traditional breeding or natural or induced mutations, he added.

According to Krieger, there are too many loopholes in the UPOV Convention to efficiently protect asexually reproduced plants. CIOPORA has been an observer at UPOV for 50 years, and it sees “many positive developments,” he said. “UPOV plays a huge role in harmonisation” and in disseminating “the idea of plant protection into the world.”

But, according to Krieger, the main concern in the current UPOV 1991 Convention is the lack of a clear definition of propagating material, which is protected under the Convention. Propagating material is parts of the plant that can be used for reproduction. Another concern is that the harvest material, such as apples or cut flowers, is protected but under conditions and limitations.

CIOPORA represents over 65 percent of all plant breeders’ rights, titles and plant patents granted worldwide. As such, the largest users of the system with over 1200 species are CIOPORA members.

CIOPORA would like a broad definition of propagating material, Krieger said, such as that “any plant or part of a plant, which is capable to produce an entire new plant true to type should be considered as propagating material,” he said. Last year, CIOPORA made a proposal for a definition. A UPOV commonly agreed definition of such material could be applied by members in their legislation, he said.

Another concern is the farmers’ exception, Krieger said. This exception gives the possibility for a farmer to use his harvest of a protected variety on his own premises for further sowing. The list of crops is at the discretion of each country, he told Intellectual Property Watch. If the farmers’ exception is extended to asexually reproduced crops, “then the whole system is ineffective.” The farmers’ exception normally applies to agriculture only, and on a specific list of crops, but some countries extend it to horticulture, he said.

“Regarding the scope of right we need to have control over the material of a variety beyond propagating material.” Everything that is not propagating material is harvest material and “we need to have a grip on harvest material,” he said.

It is important to extend the protection of the asexual varieties beyond propagating material to avoid infringement, he said. For example, if a farmer buys a licence for a specific apple tree, then all derived products, such as apple juice or jam, can be traded freely. However, if there is no licence on the apple tree, then the right holders must have a way to control the apple juice or the jam, Krieger said.

The goal of CIOPORA, he said, is to get better enforcement tools in many parts of the world, like higher qualification of courts. CIOPORA is also working with the World Customs Organization on infringement of breeders’ rights.

Civil Society Demands Transparency

Meanwhile, on 3 October, the Association for Plant Breeding for the Benefit of Society (APBREBES) sent a letter to UPOV Vice-Secretary General Peter Button, with detailed recommendations to the UPOV working group on rules concerning observers.

In particular, the letter [pdf] asks that all UPOV documents be made publicly available. The UPOV website operates with two layers of restricted areas, they said, which filters access to selected users. According to APBREBES, “as an intergovernmental organization UPOV’s activities must be consistent with the principles of transparency, accountability and participation.” They added that UPOV’s sister organisation WIPO makes all working documents and meetings reports publicly available.

The letter also asks that all observers are invited to join UPOV’s work to achieve “a balanced representation of the different stakeholders and interests.” APBREBES asks UPOV to “ensure balanced representation of different stakeholder groups, especially farmer organizations and other public interest civil society groups, in all its meetings.”

Finally the letter requests that UPOV allows participation of observers in the Consultative Committee.

ABPREBES members include: Berne Declaration (Switzerland); Center for International Environmental Law (USA); Community Technology Development Trust (Zimbabwe); Development Fund (Norway); Local Initiatives for Biodiversity, Research and Development (Nepal); Searice – The Southeast Asia Regional Initiative for Community Empowerment (Philippines); and Third World Network (Malaysia).

The UPOV Administrative and Legal Committee met on 17 October, and the Administrative and Legal Committee Advisory Group met on 18 October, as well as the working group on rules concerning observers. The Consultative Committee met today, and the Council met on 20 October. On 21 October, a closed symposium on Plant Breeding for the Future will take place.