APBREBES Report on the UPOV Autumn Session

Monday, 17 November 2014

UPOV bodies – the Council (48th session), the Consultative Committee (88th session), the Administrative and Legal Committee (70th session), and the Administrative and Legal Committee Advisory Group (CAJ-AG) – met in Geneva from 13th to 17th October 2014. Below are highlights of the main discussions and outcomes. 

UPOV Council (48th Session)

The UPOV Council, the highest decision making body in UPOV met on 16th October.

Appointment of the Secretary General of UPOV

The Council extended the appointment of the Secretary-General of UPOV Mr. Francis Gurry (who is also the Director General of WIPO) for the period 16th October 2014 to 30th September 2020. Addressing the Council, Gurry said that his focus will be on maintaining positive partnership with WIPO, dialogue to explore the potential of an electronic filing system, quality assurance and denomination search; and on the Communication Strategy.

Frequently Asked Questions: Subsistence Farmers

At its 31st extraordinary session, held in Geneva on 11th April, 2014, the Council adopted a set of frequently asked questions (FAQs) and answers to those questions. The 88th session of the CC continued the work on the FAQs. A particularly interesting FAQ discussed and adopted by the Council concerns exchange of propagating material by subsistence farmers. The FAQ and answer adopted by the Council is as follows:

Is it possible for subsistence farmers to exchange propagating material of protected varieties against other vital goods within the local community?

Answer: Since the 1991 Act and 1978 Act do not specifically address or define subsistence farmers it is necessary to consult the legislation of each UPOV Contracting Party for the answer to this question specific to that UPOV member.

Within the scope of the breeder’s right exceptions provided under the UPOV Conventions, UPOV Contracting Parties have the flexibility to consider, where the legitimate interests of the breeders are not significantly affected, in the occasional case of propagating material of protected varieties, allowing subsistence farmers to exchange this against other vital goods within the local community.

The Response to the FAQ raises a number of issues. First, there is a suggestion that each UPOV Contracting Party has flexibility to interpret Article 15 of the 1991 Act which concerns exceptions to breeders’ rights. This suggestion is misleading. When examining conformity of national PVP legislations with the 1991 Act, the UPOV Secretariat tends to require strict compliance with the content of the 1991 Act, refusing to accept any interpretation of the exception, other than the narrow interpretation contained in the UPOV Guidance (UPOV/INF/6/3, pp66-70).

Second, the response adopted by the UPOV Council is not supported by the interpretation contained in the UPOV Guidance, UPOV’s practices as well as the content of Article 15 of the 1991 Act.

Article 15(1) states that breeder’s rights shall not extend to “acts done privately and for non-commercial purposes”. This exception is narrowly interpreted in the UPOV Guidance. According to the Guidance, “non-private acts, even for non-commercial purposes, may be outside the scope of the exception”. The Guidance gives the example of “propagation of a variety by a farmer exclusively for the production of a food crop to be consumed entirely by that farmer and the dependents of the farmer living on that holding” as an example falling within the scope of the exception. Thus even the use of the protected variety to produce food crop to be consumed by a neighbor (not living on the holding) is not seen as falling within the scope of the exception.

Following the narrow interpretation given in the UPOV Guidance, the FAQ Response cannot be said to be in line with Article 15(1).  Moreover, Article 15(1) does not attach conditionalities such as “the legitimate interests of the breeders are not significantly affected” or “in the occasional case”. So the FAQ Response would not be consistent with Article 15(1).

In examining the conformity of national PVP legislations with UPOV 1991 (e.g. in the case of Malaysia), the Secretariat has expressly stated “the exchange of protected material for propagating purposes would not be covered by the exceptions under Article 15 of the 1991 Act”.

The condition that “the legitimate interests of the breeders are not significantly affected” can be found in Article 15(2) of the 1991 Act. This provision allows farmers to use seeds obtained from planting of protected varieties and replant them on their own holding but “within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder”. This provision does not concern exchange of propagating material.

The above arguments show that the FAQ Response is deceptive. It is not supported by the interpretation of Article 15(1) that has been applicable thus far or the practices of UPOV, which has consistently rejected national draft PVP legislation that allow exchanges of seeds/propagating material. In addition, there are conditions incorporated in the Response that cannot be justified under Article 15(1).  Further, the Response is also not supported by the text of Article 15(2) of the Act.

Thus the FAQ Response should be seen as nothing more than a “defensive” or “public relations” attempt by UPOV to counter valid and increasing criticisms of the adverse impact of UPOV’s provisions on farmers’ rights, even disallowing practices (such as allowing exchange of seed/propagating material among small-scale farmers) that are unlikely to harm industry. Additionally it has to be noted that following the response to the FAQ, even selling seeds on the local market to other subsistence farmers would not be allowed (as money is commonly not interpreted as a “vital good”). But the sale of seeds is crucial and commonly practiced by subsistence farmers.

The FAQ Response is legally incorrect and deliberately misleading. To address the concerns of subsistence farmers, Article 15 of the 1991 Act needs to be amended. In the immediate term, UPOV should interpret “private and non-commercial use” exception in Article 15(1) as allowing with regard to the use of protected varieties, “small-scale farmers to use, exchange and sell seeds and propagating material among themselves”, without any conditionalities.

Zanzibar’s Plant Breeders Act

The UPOV Council also confirmed the conformity of Zanzibar’s Plant Breeder’s Act with UPOV 1991, thus paving the way for Tanzania to accede to the 1991 Act. 

[In 2013, Tanzanian civil society and farmer organizations issued a statement expressing concerns over Zanzibar’s rush to adopt its Plant Breeders’ Rights Bill aimed at hastening Tanzania’s membership to UPOV. They argued that the entire adoption process had been non­participatory and expressed concern that UPOV 1991 which was heavily tilted in favour of the commercial breeders to the detriment of small-scale farmers, was not a suitable option for Tanzania.]

Other Matters

The Council also among others considered and noted the report of the Secretary-General on the activities of the Union in 2013, the results and performance indicators for 2013, the performance report for the 2012-2013 biennium, and the report on activities during the first nine months of 2014.

The Council meeting documents are available here.


Consultative Committee

The Consultative Committee (CC) met on 15th October. It is the main body that discusses and agrees on policy issues before recommending the same to the UPOV’s highest decision making body, the Council, for formal adoption.

Seed Industry Proposal: International filing system, quality assurance and variety denomination search

The CC considered UPOV Secretariat’s document (CC/88/9) which includes a joint written contribution by the International Seed Federation (ISF), International Community of Breeders of Asexually Reproduced Ornamental and Fruit Plants (CIOPORA) and CropLife International (CLI) elaborating on the elements of an international system of cooperation for processing applications for plant breeders’ rights; and the benefits of such a system. The CC also heard a presentation by the proponents on the matter.

ISF, CIOPORA and CLI jointly represent the interests of the mainstream seed industry, including multinational seed companies such as Monsanto, Syngenta, Bayer, DuPont Pioneer, and DowAgroSciences (which continue to control about 75% of all private sector plant breeding research, and 60% of the commercial seed market) and seed giants in the ornamental and fruit sectors.

With the proposal, the multinational seed industry is pressing for more international harmonization of the plant breeders’ rights protection system that will intensify corporate control. This proposal raises significant concerns e.g. impact on the informal seed sector, biodiversity and food security; further concentration in the seed industry, increase in biopiracy, loss of government revenue and control over the application and examination.

According to sources, when the matter came up for discussion, some developing countries raised concerns and made clear that they did not favor taking forward the industry proposal. On the other hand some developed countries with the support of the UPOV Secretariat wished to further explore the matter.

The CC concluded its discussion on the industry proposal by noting the information contained in CC/8/9 and the joint presentation by ISF, CIOPORA and CLI.

Further, the CC requested the Secretariat “to prepare a document to clarify the issues raised and possible ways forward with regard to an international system of cooperation, for consideration by the Consultative Committee at its eighty-ninth session, in March 2015”.

For more information read: “Multinational seed industry pitches for further harmonization in UPOV”

Interrelation with the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)

In April 2014, the UPOV Council decided to explore the idea of a joint publication with ITPGRFA and WIPO on interrelated issues regarding innovation and plant genetic resources and other suitable initiatives (C(EXTR.)/31/6). This was in response to an invitation by the Governing Body of the ITPGRFA with regard to implementing its Resolution 8/2013 which requested the Secretary of the ITPGRFA to invite UPOV and WIPO to jointly identify possible areas of interrelations among their respective international instruments. The Resolution concerns implementation of Farmers’ Rights (Article 9 of the ITPGRFA).

Thus following the meeting, the UPOV Secretariat prepared for the consideration of the CC, a list of possible initiatives (including suggestions from Norway and the European Union) as a basis for future joint work of UPOV with the ITPGRFA and WIPO (CC/88/10). At the top of the list was a joint publication by ITPGRFA, UPOV, WIPO on interrelated issues regarding innovation and plant genetic resources among their respective international instruments.

However the idea of such a joint publication had been firmly rejected by civil society organizations in their Open letter dated 18th September 2014, to Dr. Shakeel Bhatti, Secretary to the Treaty, on the basis it fell outside the scope of the Resolution. The CSO letter was also sent to Mr. Francis Gurry, in his capacity as the Secretary-General of UPOV and Director General of WIPO, and thus was reproduced for the consideration of the CC in (CC/88/10/Add. (Annex))


During the CC, UPOV members considered an email from the Treaty Secretariat stating: “Following the comments from Treaty member countries as well as from civil society organizations.....the Treaty intends to refer the matter to the Treaty’s Ad Hoc Technical Committee on Sustainable Use of Plant Genetic Resources for Food and Agriculture. The Committee will meet in the first quarter of 2015 and includes a representative range of Treaty stakeholder participation. Based on a compilation of comments of Treaty Contracting Parties and stakeholders, the identification of interrelations between the Treaty and the relevant instruments will be added to the agenda of the meeting. After the Committee processes the identified interrelations, it will transmit the interrelations identified to UPOV and WIPO. Based on the interrelations thus identified, a joint report will be prepared by a small team of 3-4 experts agreed with the Treaty, UPOV and WIPO. Public comments will be invited and incorporated both on the draft outline and draft joint report prepared by the experts. The joint report would then be submitted to the Governing Body.” ( CC/88/10/Add)

The CC noted the communication by the ITPGRFA Secretariat, summarizing the latest situation in relation to the matter.

For background information see Newsletter Issue #9  8 October 2014

Other decisions of the Consultative Committee

The CC granted observer status to the South Centre (an intergovernmental organization of developing countries) and to the World Farmers' Organisation (WFO). Observer status request of Friends World Committee for Consultation (FWCC) was rejected on the basis that “it was not possible to decide that FWCC had demonstrated its competence in areas of direct relevance in respect of matters governed by the UPOV Convention”.

For the full report on the work of the 88th session of the Consultative Committee see C/48/19 .

Documents of the CC are restricted to UPOV Member States. However using national Freedom of Information Acts, APBREBES has gained access to these documents, which are now available here.


The Administrative and Legal Committee (CAJ) (70th Session)

The Administrative and Legal Committee (CAJ) met on 13th October and agreed that all matters under consideration by the CAJ Advisory Group (CAJ-AG) after its 9th session (October 2014 session) should be considered by the CAJ and that “CAJ-AG should only be convened, on an ad hoc basis, as considered appropriate by the CAJ”.

Reasons given for the shift are lack of efficiency as the experts attending the CAJ-AG also attend CAJ and the high costs of translation.

The CAJ also noted the interest to discuss the relationship and effects of the implementation of the “Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity” for the breeder’s exemption. The same was reported to the CC and the Council.

The CAJ further noted that the report on the work of the 9th session of the CAJ-AG would be presented to the CAJ, at its seventy-first session, to be held in March 2015.

CAJ Meeting documents are available here.


The Administrative and Legal Committee –Advisory Group (CAJ-AG) (9th Session)

The 9th session of CAJ-AG met on 14th and 17th October 2014. CAJ-AG discussed various Explanatory Notes: propagation and propagating material; cancellation of the breeder's right; nullity of the breeder's right; variety denominations; matters concerning variety descriptions;  Provisional Protection; and on essentially derived varieties. It noted that the issue of “Possible alternative dispute settlement mechanisms for essentially derived varieties” would be referred to the CAJ for consideration at its 71st session in March 2015.

It has proposed to the CAJ to discontinue the development revision of UPOV/EXN/HRV/1: Explanatory Notes on Acts in Respect of Harvested Material under the 1991 Act.

CAJ-AG Meeting Documents are available here.