The study "The UPOV accession process: Preventing appropriate PVP laws for new members", published today by the South Centre and APBREBES, analyses the accession process for countries that want to become members of UPOV and provides both surprising and worrying results.
The UPOV accession process is extremely rigid and inflexible.
A comparison of UPOV's accession procedures with other agreements shows that there is no other instrument that requires new members to adopt the agreement so rigidly into their national legislation. Neither the various treaties on intellectual property administered by the World Intellectual Property Organization (WIPO), the accession to the World Trade Organization (WTO), nor other conventions under the UN concerning genetic resources (such as the Convention on Biological Diversity or the FAO Treaty) are anywhere near as rigid as UPOV on this issue. This inflexible system deprives new member states of the opportunity to develop PVP laws adapted to their agricultural system, their level of development, and their needs.
The UPOV accession process is unfair because it treats states unequally.
If a new member wants to ratify the 1991 Act, its legislation is analysed word by word and if it does not conform to the UPOV Act, an amendment of the law is required. The result is that the UPOV Secretariat has more power of definition in the development of a plant variety protection law than an elected national parliament. In contrast, there is no scrutiny whatsoever when an existing member ratifies the same act. This flexibility allowed some existing UPOV members to ratify the 1991 act of the UPOV Convention with laws that would not be accepted by new members. UPOV also differs in this respect from all other international agreements that were analysed.
This rigidity and unequal treatment exacerbate a fundamental problem with UPOV: the Convention was developed by a few industrialised countries to serve their own needs and those of their industry and is now being imposed on the whole world, robbing the countries of the South of the opportunity to develop alternative systems of PVP suiting their needs and priorities.
One of the conclusions of the study is therefore that it would be advantageous for many countries to avoid joining UPOV and retain the freedom to develop legislation adapted to their needs. The study however also identifies room for improvement within UPOV. With the introduction of the principle of national deference in the interpretation of national laws, some of the shortcomings mentioned could at least be reduced. In the end, the authors conclude that discussions on multilateral cooperation concerning PVP could be pursued under the aegis of other fora, such as the FAO, with the participation of all states on an equal footing, as well as all stakeholders representing farmers and smallholders besides the breeders (unlike in UPOV). In this way, breeders’ interests would also be balanced with those of the farming community, and fundamental human rights would be respected.