Apr 29, 1998

UPOV 1991 ENTERS INTO FORCE

Geneva, Apr 25 (Chakravarthi Raghavan) -- The 1991 Convention for the Protection of New Varieties of Plants (UPOV 1991) has entered into force effective 24 April 1998, the UPOV secretariat announced Friday.

UPOV is a part of the international conventions and treaties under the common umbrella of the World Intellectual Property Organization (WIPO).

UPOV 1991 was negotiated at a diplomatic conference under WIPO auspices in Geneva in 1991.

For entry into force, UPOV 1991 required a minimum of five ratifications and accessions. Bulgaria and the Russian Federation recently acceded to the Convention, bringing the total to six.

An UPOV press release however said that the protection, based on the 1961 convention provisions, is already available in national laws of some 30 countries.

The original UPOV convention was created in 1961 and provided for protection of plant varieties and created "breeders rights".

The 1991 convention expands the monopoly privileges of "breeders" and to a great extent reduces the rights of farmers.

Under the 1991 Convention, UPOV member states are required to give plant breeders a right over "all production of seed or other planting material".

This considerably reduces the traditional rights of farmers.

However, each UPOV member state in enacting legislation could exclude from the breeders right the use of seed saved and used on the farm.  

However, the traditional practices of farmers, more so in developing countries, where farmers would exchange seeds with other farmers or for other inputs and materials for their use, would no longer be able to do so.

In fact in several developing countries, and even in some of the advanced countries like the United States and the family farms there, this has become a major issue of contention.

And with genetic engineering, the problem has become even more controversial, because of the conflicts between the UN Convention on Biodiversity and the TRIPS accord of the WTO, and the charges of many indigenous communities and farmers that foreign corporations are illegally collecting and using their material, and breeds developed by communities over long periods of time, and claiming patent rights over them.

This has become easier in the United States where the law recognizes as prior knowledge only those "published" in journals etc, and not those available in oral traditions.

The Seed business has now been taken over by major chemical and pesticide transnational corporations, who are trying to assert their "rights" and privileges, forcing farmers to enter into contracts preventing them from using their own saved seeds from a previous harvest, but buy seeds for each season from the corporations.

An UPOV press release, justifying grant of such privileges to breeders, argues that breeding is long-term and expensive, but that plant varieties once released can be easily reproduced, and without intellectual property right protection private finance would not be attracted to plant breeding.

The new convention also requires member States to grant to the breeder certain rights over "the harvested material" or end product of the breeders variety, subject to certain conditions.

These, according to the UPOV press release, include the condition that the harvested material must be derived from planting material used without the breeders authorization, and the breeder not having had a reasonable opportunity to exercise a right in relation to that planting material.

In the United States, the attempts of breeders to write in some contracts with the farmers that would give them a right to enter the farm or field for these and other purposes, even without the prior permission of the farmer, has created some law and order problems.

In developing countries, with millions of farmers on subsistence farms, this is even more acute.

UPOV 1991, also provides that if a genetic engineer uses a protected variety as the carrier for his innovation -- insect resistance or herbicide resistance -- the genetically engineered variety may not be used without the authority of the owner of the protected variety, if the engineered variety is considered to be 'essentially derived' from the protected variety.

Before the 1991 revision, the engineered variety could be exploited with recognizing the rights of the owner of the protected variety.

Major chemical TNCs who have become big players in the seed business try to implant such characteristics in seed varieties, with a view to enhancing the sales of their pesticides and herbicides.

While they are obliged under UPOV to get the authorization of the owner of the protected plant variety, such TNCs are accused of taking over varieties, evolved by Third World farmers, and use them for creating seeds with herbicide and pesticide resistance characteristics, patent them, but pay nothing to the farmers or communities.

The UPOV press release notes that the WTO's TRIPS agreement - Art 27.3 (b) - requires all WTO members to protect plant varieties either by patents or by an effective sui generis system for protection of plant varieties or by a combination.

This provision is already applicable to developed countries, but kicks in for developing countries only in 2000.

The article itself is due to be taken up for review by next year.

Large numbers of environment and development groups, in the North and the South, are already organising themselves to demand changes.

The UPOV press release claimed that the UPOV Convention provides "the only internationally recognized sui generis system for protection of plant varieties".

This view however is contested by a number of IPR experts like Mr. Carlos Correa and trade experts like Mr. Bhagirath Lal Das and jurists like Mr. V.Krishna Iyer, former Supreme Court Judge now heading an Indian non-governmental group on patents.

If the UPOV view prevails, and the WTO adopts that line, it will bring the trading system, already facing problems with the Northern environment community as well as mass movements in the South, into greater problems in the developing world.