APBREBES report on the spring 2013 session of UPOV bodies

Thursday, 16 May 2013

The UPOV Council, the Consultative Committee, and the Administrative and Legal Committee met between 20 and 22 March 2013

The key matters addressed were, among others, the Plant Breeders’ Right Bill of Zanzibar; Programme and Budget 2014-2015, Explanatory Notes to the 1991 Convention on three topics, including Essentially Derived Varieties, and Harvested Materials; developments of relevance to UPOV in other international fora; and participation of observers at the Advisory Committee to the Administrative and Legal Committee.

1.  Administrative and Legal Committee

The Administrative and Legal Committee at its 67th meeting (CAJ67) discussed, among others, draft Explanatory Notes, as well as participation of observers in the Advisory Committee to the Administrative and Legal Committee (CAJ-AG).

1.a. Explanatory Note on Acts in Respect of Harvested Material under UPOV 91

UPOV 1978 did not extend breeders’ rights to harvested material. However, Article 14(2) of the 1991 Act extends breeders’ rights to acts “in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorized use of propagating material of the protected variety shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagating material.”

In the discussion, APBREBES raised a general concern with the approach of using explanatory notes to interpret the UPOV Convention – as it would limit the ability of member states to interpret and apply the Convention as nationally appropriate. It would also affect how courts decide on a particular matter. APBREBES referred to a letter by The Netherlands to the UPOV Secretariat pointing at possible reactions by the Court of Justice in The Netherlands who might take note of the Explanatory Notes.

Originally, it was stated that these explanatory notes are not meant to provide an official interpretation of the provisions of the 1991 Act. Nevertheless it is likely that the explanatory notes have an impact on how the provisions of the Convention are interpreted and applied as well as even how courts decide on a particular matter.

Indeed, the breeding industry had pushed for the Explanatory Notes to be tabled at CAJ67 with the aim to reduce the decision making space of national courts.

There were no reactions on the issue of legal status of Explanatory Notes, but the issue will be raised at a Seminar on Essentially Derived Varieties (EDV) planned in October 2013 (“The possible role of future UPOV guidance on EDVs in cases before the courts”, as stated in the CAJ67 report).

The approval of the Explanatory Note on Acts in Respect of Harvested Material under UPOV 91 (UPOV/EXN/HRV Draft 9) was postponed to the October 2013 meeting of CAJ. The reason was, apart from translation issues, a text proposal from Argentina for para 11 of the Explanatory Note that needs further discussion: “Where a member of the Union decides to incorporate this optional exception into its legislation, ‘unauthorized use’ would not refer to acts that were covered by the optional exception. However, subject to Articles 15(1) and 16, ‘unauthorized use’ would refer to acts that were included in the scope of the breeder’s right and were not covered by the optional exception in the legislation of the member of the Union concerned. In particular, ‘unauthorized use’ would refer to acts that did not comply with the terms and conditions of reasonable limits and the safeguarding of the legitimate interests of the breeder provided in the optional exception.”

However, another revision of this Explanatory Note is already in discussion. It was decided that the Advisory Group should start working on two issues originally proposed by the seed industry: Inclusion of illustrative examples, and guidance on 'reasonable opportunity'.

APBREBES argued against the proposal to reopen a discussion to include illustrative examples in UPOV/EXN/HRV Draft 9, since there is already a decision against their inclusion. Bolivia supported the APBREBES’ point. The Chair, however, noted that not all examples will cause confusion, and the decision made at that time was based on the situation of that time. Therefore it was decided that CAJ Advisory Group should start work on a future possible revision in order to include illustrative examples where breeders might be considered to exercise their rights in relation to harvested material.

APBREBES also argued against development of guidance on 'reasonable opportunity', which the breeding industry is seeking. For instance the International Seed Federation is arguing that “it is not a matter for the individual UPOV members to determine the meaning of a 'reasonable opportunity'“.  This is quite concerning because what is 'reasonable opportunity' would very much depend on the facts of each case. Bolivia supported this view. The Chair, however, pointed to a need for more discussion on what 'reasonable opportunity' is and therefore the CAJ decided to invite the CAJ-AG to consider the development of guidance.

1.b. Revision of the Explanatory Note on Essentially Derived Varieties (EDVs) under UPOV 1991

The concept of “Essentially Derived Varieties” is absent in UPOV 1978. It was introduced in UPOV 1991 (Article 14) as a response to the rise in genetic engineering. In comparison to UPOV 1978, introduction of the concept in UPOV 1991 has narrowed the scope of breeders’ exemption.

The EU proposed to postpone the discussion of the draft Explanatory Note on EDVs until after the planned EDV seminar. Bolivia and Norway seconded. The seminar will take place on 22 October in Geneva, at the beginning of the next UPOV session (UPOV/EXN/EDV/2 Draft 3).

The CAJ noted that the UPOV Secretariat will prepare a text on the possibility to use molecular marker data information of an initial variety to obtain EDVs for consideration by the CAJ Advisory Group at its October session. This activity was driven by a proposition from International Seed Federation (ISF).

The CAJ also noted that the Secretariat would, for consideration by the CAJ Advisory Group, prepare draft guidance on the relationship between Article 14(5)(b)(i) and (iii) of the 1991 Act of the UPOV Convention, on the basis of the explanatory note 6(ii) on Article 5 “Effects of the Right Granted to the Breeder” presented in document IOM/IV/2. IOM documents refer to stakeholder consultations during the UPOV91 negotiations.

APBREBES commented on the content of the planned seminar on EDVs. The proposal showed that the discussions at UPOV were held between breeders and governments. A main stakeholder was missing: the farmers. The way the concept of EDVs is interpreted and implemented could have a major impact on farmers, food security and agrobiodiversity. According to APBREBES, many farmers are engaged in the adaptation of protected varieties to local circumstances, to increase food security, the sustainable use of plant genetic resources as defined by the FAO Seed Treaty and the growth of agrobiodiversity. Questions would arise regarding the impact of EDVs on farmer-breeders.

APBREBES suggested that the following questions should be considered by the EDV Seminar:

What is the impact of EDV and its interpretations on:
  • the possibility of farmers to adapt protected varieties to their local circumstances and changing climates,
  • the dissemination of these adapted varieties, and
  • food security, agrobiodiversity and sustainable use of genetic resources.

APBREBES suggested holding specific dedicated sessions on these elements in the programme and to involve farmer organizations in the presentations. APBREBES offered to propose speakers. APBREBES suggested further to open the seminar to the public to ensure a diversity of views in the discussion, as currently the discussion is limited to UPOV members and to observers.

Bolivia supported APBREBES’ views, highlighting the unclear impact of breeders’ rights and EDVs on farmers and on agricultural biodiversity.

In conclusion, the CAJ agreedto propose to the Council that a seminar on EDVs be organized on October 22, 2013, in order to consider the following:
  • technical and legal views on “predominantly derived”, “essential characteristics” and “differences which result from the act of derivation” (see Article 14(5)(b) of the 1991 Act of the UPOV Convention), the relationship between Article 14(5)(b)(i) and (iii) of the 1991 Act of the UPOV Convention and the possible impact on breeding and agriculture;
  • existing experience in relation to EDVs; and
  • the possible role of future UPOV guidance on EDVs in cases before the courts.

Following the suggestions and proposals of APBREBES, the CAJ further agreed "with regard to the possible impact on breeding and agriculture, that the seminar should include the perspective of farmer-breeders. It also agreed that consideration should be given to making the seminar open to the public, with the presentations and discussions at the seminar being made available on the UPOV website after a suitable broadcast delay."

1.c. Participation of observers in the CAJ-AG

In 2005 the 52th meeting of the Administrative and Legal Committee (CAJ 52) adopted the following rules for observers in the Committee's Advisory Group (CAJ-AG):

Observer organizations, in particular those representing the interests of breeders, might be invited by the advisory group to present their views on a particular provision of the 1991 Act to assist in their work. Where appropriate, those presentations might be made in conjunction with a CAJ session.” [Emphasis added]

At the 65th meeting of the Administrative and Legal Committee (CAJ65) in March 2012, APBREBES had suggested that the CAJ-AG includes a limited number of permanent places for observers representing various stakeholder groups such as farmers, breeders and certain other observer non-governmental organizations (e.g. two per stakeholder group) in the CAJ-AG and to allow the stakeholder groups to coordinate on the persons to occupy those places at each session of the CAJ-AG, according to the matters under consideration.

This matter was handed over to CAJ-AG for its consideration. The CAJ-AG, at its seventh session in October 2012, considered document CAJ-AG/12/7/5 and the views of APBREBES (see document CAJ-AG/12/7/6 “Report on the conclusions”, paragrapgh 30). CAJ-AG then noted document UPOV/INF/7 “Rules of Procedure of the Council”, Rules 36 and 20, that states as follows:

 “Rule 36: Establishment of Committees

“(1) The Council may set up permanent or temporary committees to prepare its work or to examine technical, legal or any other questions of interest to UPOV.

“(2) When setting up any committees, the Council shall establish the terms of reference of that committee and shall determine whether and to what extent observers will be invited to the meetings of the committee; the Council may, at any time, decide changes in the initials terms of reference and in the decision concerning observers.”

 “Rule 20: Observers and Experts“(1) Observers and experts may take part in debates at the invitation of the chairman. “(2) They may not submit proposals, amendments or motions, and have no right to vote.”

The CAJ-AG said in 2012 that it should seek further guidance from the CAJ before making a proposal (see document CAJ-AG/12/7/6 Report on the conclusions, paragraph 32).

Thus the decision point before the CAJ is that “The CAJ is invited to consider the request from the CAJ-AG for further guidance on the proposals concerning participation of observers in the CAJ-AG” .

APBREBES stated that the current modus operandi is complicated and bureaucratic. The documents are often posted at quite short notice. Then observers are allowed to send in comments till two weeks prior to the meeting. Only thereafter, the CAJ-AG decides whether “the presence of the organization was considered necessary to present its views or to provide further explanations concerning its written comments.” This, according to APBREBES, suggests that if unclear comments are sent, and explanation is required, only then will CAJ-AG invite the observer to participate in the meeting. Often an invitation is only received a few days before the meeting, making it difficult for observers from abroad to organise their travel.

The request of APBREBES was to ensure a more predictable process to allow for travel planning. It has proposed 2 options: (1) to give observer status in the CAJ-AG to all observers of the CAJ. This is probably the simplest solution; or (2) to have a limited number of permanent places for certain stakeholder groups.

According to APBREBES, the rules of procedure of the Council referred to by the CAJ-AG do not seem relevant.  Rule 36 pertains to establishment of Committees and CAJ-AG is not a Committee but a sub-group of the CAJ. Rule 20 is about Observers and Experts in the Council. Further, the Terms of Reference of the CAJ-AG have been decided by the CAJ (documents CAJ/52/4 and CAJ/52/5) and therefore the CAJ has full freedom to change the rules. APBREBES suggests using this space in order to facilitate the participation of observers in the future.

The Chair noted that the current operating arrangements are such that the CAJ approves the report of the CAJ-AG which is an implicit indirect endorsement. The APBREBES request provides an opportunity to clarify these procedures.

APBREBES reiterated that it would like to cooperate with the UPOV bodies, which is hardly possible if participation in the discussion is not admitted. Bolivia agreed that it could be impossible to follow up a topic if participation is not allowed. The Chair said that the APBREBES request would be reflected in the CAJ report.

In conclusion, the following matters were referred by the CAJ to the CAJ-AG for consideration since the sixth session of the CAJ-AG in October 2011:

“The CAJ agreed to invite the Consultative Committee and the Council to provide guidance on the proposals concerning participation of observers in the CAJ-AG, as set out in paragraphs 25 to 27 of document CAJ/67/2.

The CAJ noted that the request by the representative of the Association for Plant Breeding for the Benefit of Society (APBREBES) to participate in the discussions on matters concerning observers would be transmitted to the Consultative Committee and the Council.

2. Consultative Committee

The 85th meeting of the Consultative Committee (CC85) discussed, among others, UPOV Programme and Budget, as well as documents of relevance to UPOV that are dealt with in other international fora.

2.a. Program and Budget 2014-2015

UPOV’s biannual work and budget plans are developed in the Consultative Committee and decided by the Council. The Program and Budget 2014-2015 is scheduled for Council decision in its October 2013 meeting. Document CC/85/4 contains the Secretariat’s proposal as to what should be the basis for the preparation of the Draft Program and Budget for the 2014-2015 biennium.

In the past two biennia, about CHF 3000 was spent on experts while for the 2012-2013 biennium approximately CHF 100 000 is allocated. Bolivia commented on the lack of transparency with regard to external consultants and suggested a database, seconded by Norway who pointed at the existing WIPO database. The Secretary General replied that this should be feasible in view of the available software from databases already developed by WIPO. The US requested that in-kind contributions of member states be reflected.

On page 3 of CC/85/4, four sub-programs are listed. Sub-program UV.3 is on “Assistance in the Introduction and Implementation of the UPOV System”. Bolivia suggested amending the program as follows:

  • To assist States and organizations, particularly governments of developing countries and countries in transition to a market economy, to assess the suitability and relevance of the 1991 Act of the UPOV Convention taking into account local conditions and nature of farming systems. Where relevant and appropriate assistance in the development of legislation in accordance with the 1991 Act of the UPOV Convention will be provided. (suggested amendmends in bold)
  • To assist States and organizations in implementing an effective plant variety protection system in accordance with the 1978 Act of the UPOV Convention and the 1991 Act of the UPOV convention. (suggested amendmends in bold)

Bolivia pointed at the problem that the technical assistance referred only to UPOV 91 and suggested to include references to UPOV 78, noting that about 20 countries continue to be members of UPOV 1978 and thus it is critical that assistance be given to them to implement UPOV 1978 and not UPOV 1991. Bolivia also suggested, before UPOV provides assistance to develop legislation in accordance with UPOV 91, as well as ex ante impact assessments and evaluation of suitability of UPOV 1991 for developing countries and countries in transition, taking into account their level of development and characteristics of their farming system, and to provide assistance where it is found relevant and appropriate.

The Secretary General replied that UPOV 91 is the latest expression of the collective will of the membership, and therefore the natural objective, but of course UPOV78 should be taken into account. Norway appreciated that the Union will include references to the Act of 1978. The US, referring to Bolivia’s suggestion regarding impact assessments and evaluation of suitability of UPOV 1991 for developing countries and countries in transition before assistance to develop legislation in accordance with the 1991 Act of the UPOV Convention is given, expressed concerns about UPOV making policy judgments specific to a country. The US would like UPOV to help a country understand the changes needed in its law, and do studies after a country has joined UPOV to show the benefits. The Secretariat concluded in the meeting report, that the Program and Budget wording will be changed from “the 1991 Act of the Convention” to “the Convention”.

In the sub-program 2 on External Relations, in paragraphs of the draft Program and Budget, the UPOV Secretariat states that it “will maintain contacts with other non-governmental organizations representing stakeholders, including farmers and growers, in order to explain the UPOV system of plant variety protection”. Bolivia suggested an amendment that there should be an exchange, not only explaining UPOV but also learning from others in order to reflect the diversity of views and situations of UPOV Members. Bolivia also suggested that the communication materials should be approved by the Council. The Secretary General replied that the Secretariat will reflect on these points; however, the discussion was not reflected in the meeting report.

2.b. Developments of relevance to UPOV in other fora

Document CC/85/9 updated the Consultative Committee on developments in other fora that are relevant to UPOV and the action/involvement of the UPOV Secretariat in those developments. These included, among others, the FAO Commission on Genetic Resources for Food and Agriculture which has collected comments from international organisations on its Draft Guide for National Seed Policy Formulation.

Norway drew attention to FAO activities described in paragraph 16 of CC/85/9 and its Annex. The UPOV Secretariat had provided written comments on the Draft Guide for National Seed Policy Formulation. The written submission on behalf of the Secretariat, according to Norway, seeks to take the attention away from farmers’ rights and their right to save and re-use seeds. Norway said that being a member of the Commission on Genetic Resources for Food and Agriculture, it considered this text in a broader context. Of particular importance is the recognition on farmers’ rights and the right that farmers have to save and re-use seeds in the context of food security and sustainable use and conservation of plant genetic resources. Norway emphasised flexibility regarding these rights. This is an important reason for the Norwegian affiliation to the 1978 Act of the UPOV Convention.

Norway also noted the twenty-third session in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in Geneva, in February 2013. Norway had a short comment on this at the UPOV meeting in March 2012 supporting the introduction of mandatory disclosure of origin of genetic materials and traditional knowledge. The UPOV members in response, had expressed a wish for more information. Norway therefore provided information about the disclosure requirement in Norwegian Law. Japan underlined that its position is to reject the disclosure of origin requirement.

The Secretary-General underlined that, regarding the contribution to FAO, it was not the intention to influence discussions which are not in the scope of UPOV, but to provide accurate and neutral information. Farmers’ rights, according to the Secretary-General, are not a consideration for UPOV.

Bolivia requested further information on the comments provided on the WIPO questionnaire, and the Secretariat announced to provide this information.

3. UPOV Council Examination of the Conformity of the Plant Breeders’ Right Bill for Zanzibar with UPOV91

At this thirtieth extraordinary session the Council C(Extr.)/30/5 considered the Examination of the Conformity of the Plant Breeders’ Right Bill for Zanzibar with UPOV91, among others.

At the last Council meeting Tanzania had submitted its law for approval; but for Tanzania to accede to UPOV, its Union member Zanzibar also had to get its law approved. APBREBES reported to the Council (see INTERVENTION) that civil society organisations from the region pointed out that the Zanzibar law was made in great hurry, without consulting major farmer and civil society organisations. They warned against the bad experiences of other developing countries having strict plant variety protection rights in place, where farmers’ rights were outlawed (see  http://www.ip-watch.org/weblog/wp-content/uploads/2013/03/UPOV-Tanzania-CSO-Statement-1.pdf).

After the intervention by APBREBES, Kenya took the floor in the Council meeting and stated that with regard to many illiterate farmers, African countries had different and respected ways of consultation, that the protesting organisations were insignificant and that Kenya has benefitted from UPOV. Kenya, however, did not mention that the country is a member of UPOV78 which does not interfere with farmers’ rights in the same way as UPOV91.