Nineteen sub-Saharan African nations, members of the African Regional Intellectual Property Organization (ARIPO) will be meeting in Tanzania on the 29th June-1st July to consider the adoption of a new regional Protocol on the Protection of New Varieties of Plant (Draft Protocol).
The Draft Protocol marks a major shift from the positions that African nations have so far articulated regionally and internationally on issues relating to PVP as it is modeled on the highly controversial 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV 1991). Thus unsurprisingly it has attracted significant attention, concern and criticism.
ARIPO is a regional entity that administers various intellectual property instruments on behalf of its members: Democratic Republic of Sao Tome and Prํncipe, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, Sierra Leone, Sudan, Swaziland, United Republic of Tanzania, Uganda, Zambia and Zimbabwe.
Of its members, 13 are least developed countries (LDCs), i.e. some of the world’s poorest and most vulnerable countries in the world. Four of these LDCs are not members of the WTO.
Article 27.3(b) of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) requires only WTO members to put in place an effective “sui generis” system for the protection of new plant varieties. Considering the special circumstances of LDCs, those that are WTO members have been accorded a transition period until July 2021 (which may be extended), during which period these LDCs do not have to put in place a plant variety protection system. Non-WTO members have the full right to not grant any intellectual property over plant varieties.
Article 27.3(b) is one of the most contentious provisions in the WTO TRIPS Agreement. It gives WTO members full freedom to enact a PVP regime that is appropriate to local needs and realities. Despite this flexibility, developed countries, the UPOV Secretariat, WIPO and the multinational seed industry exert immense pressure and influence on developing countries to adopt UPOV 1991 as the basis for designing PVP systems. Historically and even in the present day context, developing country governments, civil society groups, experts, academics and farmers networks question the suitability of UPOV 1991 for agricultural systems that prevail in developing countries.
Therefore ARIPO’s move to design a region wide PVP regime based on UPOV 1991, through a process that is widely criticised as lacking credibility and legitimacy has outraged some segments of the international community including civil society groups and farmers’ networks across the region.
Topping the list of criticisms are: a flawed process; the Draft Protocol is inappropriate for the region, undermines national sovereignty, erodes farmers’ rights; it compromises implementation of the Convention on Biological Diversity (CBD), the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and diverges from positions articulated by African nations at the regional and international levels.
This list raises the fundamental question of “Whose Interest” does the Draft Protocol serve?
UPOV 1991 & the ARIPO Region
The beginnings of the UPOV Convention can be traced back to demands of private nurseries and commercial breeders as seed trade grew in the US and Europe. Essentially the creation of exclusive rights over new plant varieties is the “triumph of a group of business organizations that were able to articulate their interests through legislative processes, without the participation of other relevant stakeholders, notably farmers and consumers”. (1)
The UPOV Convention, adopted in 1961, set out binding minimum standards of PVP. It was negotiated and adopted by six countries from Western Europe. Historically the membership of UPOV has been small. The situation only changed with the adoption in 1995 of the WTO-TRIPs Agreement.
UPOV 1991 was negotiated by only 20 UPOV member countries, out of which only one (South Africa) was a developing country. It was revised in 1972, 1978 and 1991. The 1991 revision brought about significant changes as it expanded and strengthened the rights conferred to formal breeders while limiting the rights of farmers’ to freely save, re-plant and exchange seeds.
The UPOV regime was clearly conceived for the agricultural systems and modalities of seed production prevailing in the US and European countries. It is as such widely acknowledged that UPOV 1991 is simply an unsuitable PVP regime for developing countries, where informal systems of seed generation and supply prevail.
Evidence of a clear positive benefit of UPOV type legislation is also elusive. If any, the impact is at best limited to certain crops. Often, UPOV Secretariat’s country studies on impact are presented as evidence of the positive impact. But these studies are based on narrow indicators that do not take into account key issues such as food security, agro-biodiversity, availability of seeds for small farmers. (2) Additionally a mere increase in the grants of plant breeders’ rights (PBRs) does not prove that UPOV does in fact result in concrete positive impacts for the countries. Moreover, developing countries analyzed in the UPOV country studies are members of UPOV 1978, which preserves more policy space than UPOV 1991.
The ARIPO Secretariat often refers to the success of the Kenyan cut flower industry as one of the main reasons for adopting the UPOV 1991 model. However in this case, most of the PBR titles granted are for ornamental plants and are held by non-residents. Additionally, the growth of Kenya’s cut flower industry began more than a decade before Kenya became an UPOV member. It still is not a member of UPOV 1991 but a member of UPOV 1978, which is a less restrictive regime that allows farmers to engage in non-commercial practices. Its Plant Breeders Act adopted in 1972 and which was applicable until 2013, was never in compliance with the provisions of UPOV 1991 that are now included in the Draft Protocol. This suggests that it is unnecessary to adopt the restrictive UPOV 1991 for an effective plant variety protection system. Ethiopia, another country with a booming flower industry, shows that this development is also possible without being an UPOV Member.
Available independent studies find no evidence of a positive effect on breeding and diffusion of plant varieties under the UPOV model in the context of developing countries. (3)
It is for this reason few developing countries are members of UPOV 1991, and those that have joined have done so under pressure from the US or the EU. An increasingly common tool to pressure are free trade agreements that make UPOV 1991 membership obligatory.
Against this background, it is difficult to comprehend how UPOV 1991 is a suitable PVP system for the ARIPO region. The majority of the members of this region are LDCs i.e. the poorest and most vulnerable segment of the international community, with more than half of the LDCs’ population living below the poverty line [e.g. Burundi (81%), Malawi (73.9%)], having low levels of adult literacy, access to electricity, water and sanitation and a high prevalence of HIV infections and other diseases. Developing country members of the ARIPO region also face similar challenges.
The vast majority of agriculture systems in the ARIPO countries consist of small-scale farmers, many involved in subsistence farming and heavily reliant on informal systems for access to seeds, irrespective of whether farmers cultivate local or modern varieties. Many of these countries barely have a local seed industry, much less one that is engaged in commercial breeding. Most of the ARIPO members have no experience in dealing with PVP issues or the impacts as they have never had PVP legislation.
Conditions prevailing in the ARIPO region suggest that what ARIPO members need is flexibility to pursue suitable policies that can evolve as their agricultural systems develop. UPOV 1991 does not provide such a framework. Adopting UPOV 1991 essentially ties ARIPO members to a rigid system that was intended for developed countries. Such a system was designed to mainly benefit the breeders from developed countries at the expense of small-scale farmers in the ARIPO region as well as development of local seed breeding capacity.
Actors & Process involved in the Development of the Draft Protocol
Critics of the Draft Protocol contend that the process of developing the Draft Protocol has been un-transparent, dominated by foreign pro-UPOV interests and manipulated by the ARIPO Secretariat.
ARIPO’s official document prepared for the 13th session of the Council of Ministers (ARIPO/CM/XIII/8) states that, on the ARIPO Secretariat’s request, “UPOV prepared draft legislative framework for the Organization”. ARIPO’s documents also reveal that the main actors involved in developing the Draft Protocol, co-sponsoring and participating in the various meetings held to discuss the draft PVP legal framework have been staunch supporters of UPOV 1991 in particular the UPOV Secretariat, the US Patent and Trademark Office (USPTO), the EU, the WIPO Secretariat and the French Seed and Seedling Organization (GNIS).
The documents also reveal that participation of alternative views and voices, particularly of civil society and farmer organizations from the ARIPO region, was severely lacking. In a press release (November 2014) following the Regional Workshop on ARIPO PVP Protocol in October 2014, the Alliance for Food Sovereignty Africa (AFSA) protested that CSO representation through AFSA “was severely restricted by the ARIPO Secretariat to only one participant, who attended the proceedings at AFSA’s own cost. Other than the pro-UPOV 91 lobby, the African Seed Trade Association (AFSTA), no farmer or representatives from farmer organisations was present at the workshop”.
The same release states, “numerous technical and administrative flaws continue to characterise the process. In particular, member states were forced into accepting a recommendation, disguised as if crafted by them, mandating ARIPO ‘to urgently organize and call for the Diplomatic Conference for the adoption of the Protocol’. In reality, member states, instead, unanimously endorsed the need for further consultations to be held at national levels and independent expert review of the draft ARIPO PVP Protocol and that talk of a Diplomatic Conference to adopt the Protocol is hopelessly premature.”
A recent press release by AFSA states that its appeals to the ARIPO Secretariat to allow AFSA members to attend the upcoming Tanzania meeting that will adopt the Draft Protocol “have been pointedly dismissed and ignored”.
[AFSA represents a Pan African platform comprising civil society networks and farmer organizations working towards food sovereignty in Africa].
There is no indication in any of ARIPO’s documents that any alternative sui generis systems apart from UPOV 1991 was ever presented or considered.
National Sovereignty At Stake
ARIPO was established to harmonize and develop intellectual property “appropriate to the needs of its members and of the region as a whole”, with the aim to pool resources and avoid duplication. Its major Protocols such as the Harare Protocol on Patents and Industrial Designs as well as the Banjul Protocol on Marks harmonizes the filing and examination procedures with the ARIPO Secretariat processing applications with regard to patents, utility models, industrial design and trademarks. However under these instruments governments reserve the right to reject the grant of intellectual property with regard to its territory. In addition, national law governs the substantive rights (extent of rights to be enjoyed by the right holder, exceptions to such rights, revocation, cancellation, issuance of compulsory license, etc). Thus existing ARIPO Protocols do harmonize certain aspects of intellectual property but also allows government to retain their sovereignty and significant flexi bility in the design and implementation of IP legislation at the national level.
The proposed Draft Protocol substantially diverges from the approach taken by existing ARIPO Protocols. It harmonizes both – the procedural and substantive aspects of PVP. It creates a centralized PVP system and accords the ARIPO Secretariat the full authority and decision-making powers with regard to the grant and management of regional PBRs. The approach adopted by the Draft Protocol is premised on the EU Community Plant Variety Rights managed by the Community Plant Variety Office, an active and influential player in the development of the Draft Protocol.
Article 4(1) of the Draft Protocol states that breeders’ rights shall be granted on the basis of “one application, be valid in all the Contracting States” meaning that governments will no longer be able to reject the grant of the PBRs with regard to its territory. Further the Draft Protocol empowers the ARIPO Secretariat to administer PVP applications and rights on behalf of its contracting states. This includes receiving and examining the application; conduct the testing of distinctness, uniformity and stability (DUS); deciding whether or not to grant protection; decide on objections to the applications; whether to issue compulsory licenses; nullification and cancellation of breeder’s right and assessing the suitability of variety denominations.
Article 37 of the Draft Protocol states that “regional breeders’ rights shall have uniform effect within the territories of the Contracting States and may not be granted, transferred or terminated in respect of the above mentioned territories otherwise than on a uniform basis”.
Essentially the Draft Protocol strips away the national sovereign right of governments to intervene and take appropriate decisions on matters concerning PBRs granted under the Protocol, even though these matters may have critical socio-economic implications for the government. For example according to Article 24 of the Draft Protocol, if a government wishes to issue a compulsory license in the public interest (e.g. unavailability of the protected material), it would have to seek the permission of the ARIPO Secretariat, which has to “consult” the Administrative Council, though the final decision rests with the ARIPO Secretariat. Clearly what is in the national/public interest of one ARIPO state may not be in the national/public interests of another ARIPO state. As such under the Protocol, a government’s national interest would very much be at the discretion of the ARIPO Secretariat.
Governments also have no authority to reject the DUS test results, even if such test results are irrelevant for the climatic or local environmental conditions of a country or to impose additional conditions or requirements with regard to PBRs granted under the regional systems.
An argument often put forward in defense of the Draft Protocol is that governments are not precluded from putting in place national PVP systems. However it can reasonably be expected that most foreign breeders are likely to opt to file applications through the regional PVP system, once such a system is in force. Article 39 of the Draft Protocol prohibits cumulative protection i.e. if a plant variety is protected by national and regional PVP systems, the regional PVP system will prevail over national PVP systems. In addition, if a variety is protected only through the regional PBR system, the regional PVP law will prevail. This confirms the supremacy of the regional PVP system over the national PVP system and consequently the regional PVP system “superseding” national PVP laws.
The right to freely save, use, exchange and sell farm-saved seed/other propagating material is the backbone of the informal seed sector, which prevails in the agricultural systems in the ARIPO region. The informal seed system is by far the primary way for small-scale farmers to access seeds (including seeds of improved varieties). Seeds from the formal sector are integrated into the informal sector by seed saving, exchange and sale of farm-saved seeds. Thus to ensure access by farmers to seeds including improved varieties, it is important to safeguard these practices. The ITPGRFA also recognizes these practices as being “fundamental to the realization of Farmers’ Rights, as well as the promotion of Farmers’ Rights at national and international levels”.
Proponents of the Draft Protocol argue that the primary objective of the instrument is to disseminate improved varieties to farmers and to improve their livelihoods. And yet the Draft Protocol works to erode the very practices that underpin the informal seed sector.
As it is based on UPOV 1991, the Draft Protocol does not allow farmers that use the protected variety to freely exchange or sell farm-saved seed/propagating material. Even seed saving for propagating purposes on a farmer’s own holding is limited to specific “agricultural crops and vegetables with a historical common practice of saving seed in the Contracting States [and as] specified by the Administrative Council of Plant Variety Protection” subject to commercial farmers (small and large) having to pay remuneration to the right holder. Additionally farmers will also be required to provide information to breeders on use of protected varieties.
According to a 2014 human rights impact assessment, these restrictions “will make it harder for resource-poor farmers to access improved seeds” as it “negatively impact on the functioning of the informal seed system … because if implemented and enforced, UPOV 91 would sever the beneficial inter-linkages between the formal and informal seed systems” adding that “selling seeds is an important source of income for many farmers”. (4) The analysis concludes: “ … from a human rights perspective, restrictions on the use, exchange and sale of protected seeds could adversely affect the right to food, as seeds might become either more costly or harder to access. These restrictions could also affect other human rights, by reducing the amount of household income which is available for food, healthcare or education”.Consistency with the Convention on Biological Diversity & the ITPGRFA
Supporters of the Draft Protocol argue that the CBD and the ITPGRFA pursue different objectives and should be addressed in a separate legislation. This argument reveals an unwillingness to acknowledge the inter-linkages between PVP, the CBD and the ITPGRFA and the need to address such linkages in a manner that does not compromise implementation of the CBD and the ITPGRFA.
The CBD and its Nagoya Protocol on Access and Benefit Sharing sets up rules for access to genetic resources including plant genetic resources with the aim to prevent misappropriation of genetic resources and facilitate fair and equitable benefit sharing. In various international forums (WTO, WIPO, CBD) African nations have championed the need for a disclosure of origin in IP applications as a critical checkpoint for monitoring the utilization of plant genetic resources, including compliance with the access and benefit sharing rules. And yet the Draft Protocol is lacking in this regard. Obviously it is because the Draft Protocol is modeled on UPOV 1991, which does not allow the inclusion of a disclosure of origin as a condition for granting PBRs.
The resulting effect is that any breeder may utilize plant genetic resources and associated traditional knowledge from the ARIPO region to breed new plant varieties and apply for breeders’ rights over the variety across the ARIPO region, without having to pay fair and equitable benefit sharing. The case of the ‘Turkey carrot’ shows how misappropriation can take place in the context of PVP.(5) Monsanto’s subsidiary Seminis “went to a part of the world where coloured carrots never stopped being cultivated – in this case, southern Turkey – and purchased some farmers’ seed. After a simple process of selection, the company called this carrot its own, and has obtained plant variety rights (PVR) over it in both the United States (US PVPA Certificate 200400327) and Europe (European Union CPVO Certificate 20050779).
The ITPGRFA is yet another instrument championed by African nations. Many ARIPO members have ratified this instrument and are under the obligation to realize farmers’ rights (Article 9 of the ITPGRFA). However the restrictive provisions of the Draft Protocol sabotages implementation of the key component of farmers’ rights i.e. the right to freely save, use, exchange and sell farm-saved seed/other propagating material which is “fundamental to the realization of Farmers’ Rights, as well as the promotion of Farmers’ Rights at national and international levels”.
Additionally, despite the national implications arising from the Draft Protocol, the process of developing the Draft Protocol has also been in total disregard of Article 9.2 (c) of the ITPGRFA, which speaks of farmers’ right to participate in making decisions
Consistency with Positions of African Nations Articulated at the Regional & International levels
The Draft Protocol marks a substantial shift from the positions that African nations have so far articulated regionally and internationally on Article 27.3(b) of TRIPS Agreement.
At the regional level, the African Union adopted the African Model Legislation on the Protection of the Rights of Local Communities, Farmers and Breeders and the Regulation of Access to Biological Resources (African Model Law), which presents an “effective sui generis system” for PVP protection while balancing the interests of the breeders’, farmers and the public interest including farmers’ rights to save, use, exchange and sell farm saved seed as well as to use the protected variety to develop farmers’ varieties.
In the WTO, the Africa Group submitted several proposals and vehemently objected to UPOV 1991 and defended the right for all WTO members to “determine and adopt appropriate regimes”. It stressed that the “appropriate and beneficial approach is to have systems of protection which can address the local realities and needs”.
It further added that “non commercial use of plant varieties, and the system of seed saving and exchange as well as selling among farmers, are rights and exceptions that should be ensured as matters of important public policy to, among other things, ensure food security and preserve the integrity of rural or local communities. While the legitimate rights of commercial plant breeders should be protected, these should be balanced against the needs of farmers and local communities, particularly in developing Members”, further stating that “any sui generis system should enable Members to retain their right to adopt and develop measures that encourage and promote the traditions of their farming communities and indigenous peoples in innovating and developing new plant varieties and enhancing biological diversity”. It also stressed that the TRIPS Agreement, the CBD, as well as the ITPGRFA “should be implemented in a mutually supportive and consistent manner”.
It is apparent that by modelling the Draft Protocol on UPOV 1991, ARIPO is taking a step that is clearly inconsistent with the vision and principles that African nations have championed over decades regionally and internationally.
So the Draft ARIPO Protocol raises fundamental questions on whose interest is served. The main winners are very likely the foreign entities that have been sponsoring the development of the Draft Protocol.
(1) Forthcoming publication by Prof. Carlos Correa: “Plant Variety Protection for Developing Countries A tool to design sui generis PVP system: An alternative to UPOV 1991”.
(2) Berne Declaration, ‘UPOV report on the impact of plant variety protection - A critique’, http://www.evb.ch/fileadmin/files/documents/Saatgut/2014_07_Critique_UPOV_report_final.pdf
(3) Eaton, D. 2013. Trade and Intellectual Property Rights in the Agricultural Seed Sector studied the effects of the introduction of PBRs in almost 80 importing countries on the value of exports of agricultural seeds and planting material from 10 exporting EU countries as well as the USA and concluded “Our results do not find any evidence that adoption of UPOV-approved system of PBR positively influences the seed imports”. See alsoBerne Declaration, Owning Seed, Accessing Food: A Human Rights Impact Assessment of UPOV 1991. Based on Case Studies in Kenya, Peru and The Philippines, 2014, available at https://www.bernedeclaration.ch/fileadmin/files/documents/Saatgut/2014_07_10_Owning_Seed_-_Accessing_Food_report_def.pdf, p. 7.
(4) Berne Declaration, Owning Seeds, Accessing Food. A Human Rights Impact Assessment of UPOV 1991 Based on Case Studies in Kenya, Peru and The Philippines, available at http://www.bernedeclaration.ch/fileadmin/files/documents/Saatgut/2014_07_10_Owning_Seed_-_Accessing_Food_report_def.pdf.
(5) Edward Hammond, “Biopiracy of Turkey’s Purple Carrot”. See http://seedfreedom.in/biopiracy-of-turkeys-purple-carrot/