UPOV’s 2014 Autumn Session – Upcoming Issues

Wednesday, 8 October 2014

UPOV will be meeting in Geneva for its Autumn session from 13th to 17th October 2014. Its Administrative and Legal Committee (CAJ) will meet on 13th October, the Administrative and Legal Committee Advisory Group (CAJ-AG) on 14th and 17th October, the Consultative Committee (CC) on 15th October while its highest decision-making body, the UPOV Council on 16th October. The meetings of the CAJ-AG and the CC are closed to observers.

Key upcoming issues:

UPOV’s highest body – the UPOV Council will be extending 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.  UPOV Council is also expected, among other issues, to confirm the conformity of Zanzibar’s Plant Breeder’s Act with UPOV 1991, thus paving the way for Tanzania to accede to UPOV’s 1991 Convention.

While the UPOV Council formally adopts the final policy decision, the Consultative Committee (CC) is the main body that discusses and agrees on policy issues before recommending the same to the UPOV Council for adoption.

When it meets on 15th October, the CC will be considering whether to grant observer status, among others, to the South Centre, an intergovernmental organization of developing countries. South Centre’s request for observer status was discussed during the 2013 Autumn session, however, no agreement could be reached as some developed countries raised concerns and doubts over its involvement in UPOV1. Decision on the matter was deferred to the upcoming Autumn session to enable South Centre “to explain how its constituent treaty provided the basis to determine “competence in areas of direct relevance in respect of matters governed by the UPOV Convention”.

The CC will also discuss proposals by the International Seed Federation (ISF), the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Plants (CIOPORA) and Croplife International on the development of an international filing system, an UPOV quality assurance program and a central examination system for variety denominations. Essentially the highly concentrated seed industry is calling for an additional level of harmonization (beyond UPOV 1978 and 1991) focused on harmonizing and centralizing PBR applications and examination procedures. The industry aim being to simplify the process and reduce the costs of obtaining PBRs, enabling breeders to obtain faster protection on more crops in more countries.

This industry 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 process. Of particular concern is the legality or legal basis/mandate of such a proposal as the proposal is pushing for another level of harmonization beyond the 1978 and 1991 Acts but by way of contract. The entire proposal is premised on developing a new entity/initiative called the international system of cooperation (ISC). But the legal basis for developing such an entity is unclear. So are issues such as how the terms of ISC will be developed, how will it be financed, how will decisions be taken, to whom will ISC be accountable to.

It is also concerning that the CC is being asked to consider the industry proposal, after hearing only industry’s views and without giving other stakeholder groups such as APBREBES and La Via Campesina an opportunity to present their views on the proposal.

Further the CC will discuss implementation of Resolution 8/2013 of the Governing Body of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) which requested the Secretary of the ITPGRFA to invite UPOV and WIPO to jointly identify possible areas of interrelations among their respective international instruments. Doc. CC/88/10 (Annex IV) presents possible initiatives (including suggestions from Norway and the European Union) as a basis for future joint work of UPOV with the ITPGRFA and WIPO, for the consideration of the CC. The list of possible initiatives includes joint publication by ITPGRFA, UPOV, WIPO on interrelated issues regarding innovation and plant genetic resources among their respective international instruments; joint symposiums/seminars and/or side events to explore and/or explain the areas of interrelations among the international instruments.

Resolution 8/2013 specifically concerns implementation of Article 9, which is about Farmers’ Rights. Thus the proposals would fall outside the scope of the Resolution. Civil society organizations around the world have raised similar concerns in their letter to Dr. Shakeel Bhatti, Secretary to the ITPGRFA.

The CAJ-AG will be considering various “Explanatory Notes” on Cancellation of Breeder’s Rights, Essentially Derived Varieties, Acts in Respect of Harvested Material, Nullity of Breeders’ Rights, Propagation and Propagating Material and Provisional Protection. These Explanatory Notes are intended by UPOV to provide guidance with regard to implementation of UPOV 1991, though the only binding text is the Act of 1991. However for purposes of interpreting national PVP legislation, national courts and others may potentially rely on these Notes. Thus it is importance to ensure that these Notes do not include a prescriptive interpretation. For APBREBES comments on these Notes see http://www.upov.int/edocs/mdocs/upov/en/caj_ag_13_8/caj_ag_13_8_www_285387.pdf

On the agenda of he CAJ-AG is also the consideration of a document prepared by the UPOV Secretariat on “Possible Alternative Dispute Settlement Mechanisms [ADR] for Essentially Derived Varieties”. With this document, the UPOV Secretariat is seeking a mandate, enabling it “to organize a meeting to exchange information with CIOPORA, ISF and WIPO in order to explore the possible role of UPOV in alternative dispute settlement mechanisms for matters concerning essentially derived varieties, including the provision of experts on EDV matters”.

UPOV (WIPO’s sister organization) is keen to find a role for itself in ADRs mechanisms with regard to EDV and to this end has also been advertising WIPO ADR mechanism. At a seminar on EDVs2 Mr. Erik Wilbers, Director, Arbitration and Mediation Center of WIPO, explained: “Parties involved in disputes in the area of EDVs could benefit from availability of such tailored ADR procedure….. The procedure could be developed to specifically address a range of particularities related to EDV-related disputes, such as their often international character, and resulting need to establish jurisdiction and achieve enforceability of the arbitral award; and the need for specialized expertise in the procedure which could be supported through the availability of a WIPO list of EDV-specialized neutrals and experts….”.

In response, in a letter dated 2nd October the International Seed Federation, which represents the mainstream seed industry, explains about its own arbitration procedures, guidelines and experts for dealing with EDVs. Should UPOV or WIPO be involved in or promote ISF mechanisms, it would undermine the independence and intergovernmental stature of UPOV as the ISF mechanisms or procedures have not been developed through an intergovernmental process.

1 See http://www.apbrebes.org/files/seeds/F%20APBREBES%20report%20on%20Council...

2 http://www.upov.int/meetings/en/details.jsp?meeting_id=29782