UPOV 1991 and the TRIPS Agreement: reinforcing PGRFA appropriation

The commodification of crop diversity is defined by Chiarolla (2011: 1) as being ‘the adoption, harmonization and implementation of laws and inter­national law instruments, which determine the allocation of legal entitle­ments to manage and control plant genetic resources, their derivatives and the benefits thereof’.

The UPOV Convention⁶⁶ provides a sui generis form of IP protection for plant varieties specifically, by setting forth standards for the granting of ‘breeders’ rights’ (Helfer, 2004: 20—32). They are known under the term Plant Breeders’ Rights (PBRs). A plant variety must meet several requirements to

History of the seed regulatory setting 41 be eligible for protection. The variety must be (commercially) novel (1991 UPOV Convention, Article 6.1), distinct (ibid Article 7), uniform (ibid Article 8) and stable (ibid Article 9) (the so-called DUS criteria); and the variety must have a denomination (ibid Article 5.2). Under UPOV 1978, it was admitted that a farmer could save seeds from his harvested material and use it for sowing on his own land (the so-called ‘farmer’s privilege’).⁶⁷ Simi­larly, there was a mandatory exception for breeders, who could use protected material for their breeding and research activities. With the 1991 Act (1) the rights of holders (plant breeders) are extended to the harvested material (ibid Article 14(2));⁶⁸ (2) a breeder may seek simultaneously PBRs and pat­ent protection; (3) the protection is extended to all plant genera and species (ibid Article 3); and the exceptions are permitted rather than mandatory. The protection is granted for 20 or 25 years, depending on the plant.

As indicated above, under UPOV 1991, exceptions for the use of protected varieties for specific purposes, i.e. seed saving by farmers⁶⁹ and the breeder’s use for further breeding,⁷⁰ are permitted (but no longer mandatory), thereby recognizing the importance of free access to research material in the breeding process (Fowler, 1994: 166). According to Blakeney (2011: 73-75), however, both these exceptions, and in particular the farmer’s privilege,⁷¹ have been fairly limited since the 1991 act, raising concerns that these restrictions hamper the informal exchanges practices of farmers and breeders (Cullet and Kolluru, 2003; Cullet, 2005; Shashikant and Meienberg, 2015: 7-9). Indeed, examining the UPOV Guidance documents made available to help member countries establish their national legislation according to UPOV obligations, it is noted that UPOV is promoting a limited interpretation of the farmers’ exception (UPOV, 2013: 65). This is further confirmed by the examination of national legislations showing that countries adopt and implement a narrow interpreta­tion of these exceptions in their legislations.⁷² Academics (Morten Haugen, 2015; Oguamanam, 2015) have also examined the impact of seed laws with regard to other international obligations (such as conservation, sustainable use and ABS) and promote a more coherent and complementary implementation of the various instruments at stake (Louwaars, 2008; Anvar, 2008; Santilli, 2012; Morten Haugen, 2014).⁷³

The Trade-related Aspects of Intellectual Property (TRIPS) Agreement⁷⁴ was signed at the WTO ministerial meeting held in Marrakesh in April 1994.⁷⁵ The TRIPS Agreement is the first comprehensive international agreement on IP law at the interface with international trade law and estab­lishes minimum standards for different forms of IP legislation.⁷⁶ Its wide scope of application has led to a multilateral protection of IPRs (Chiarolla, 2011: 76) affecting genetic resources generally (Helfer, 2004: 33). Article 27 of TRIPS specifies that patents are granted⁷⁷ in all fields of technology, although exceptions are provided to protect ‘order public and morality, including

to protect human, animal or plant life or health or to avoid serious preju­dice to the environment’.⁷⁸ Protecting plant varieties is compulsory, either through a patent system or a sui generis protection, or a combination of both.

According to Helfer (2004: 2), granting IPRs to plant varieties — whether patents or PBR - results from developed countries’ policy objectives to enrich society’s welfare in the field of agricultural innovation. But this can only work for developed countries. Studies have shown that this system is designed for developed economies, and that it is not adapted to agricultural development in developing economies where most seeds are accessed through informal seed systems (Tripp et al., 2007; Chiarolla, 2006; Anvar, 2008; Bertacchini, 2007). Adding to this controversy, experts fear that the promotion of wide IPRs over plants leads to some impediments in research activities. For example, Van der Kooij (2010) promotes the establishment of a breeders’ exemption for pat­ent law, to mitigate the reduced accessed to breeding material due to wide patents in the field and promote breeding innovation. Difficulties in identify­ing proprietary rights (for many different owners, on different technologies and products situated in different jurisdictions) have contributed to tracking issues. Bragdon (2004: 75) gives the anecdotal example of the Golden Rice, where several years of searches and compromise with the rights’ holders were necessary for the researchers to conduct their work lawfully, and in the end not even be able to commercialize their product. Furthermore, fears also arise as to blocking-position patents or defensive patents (ibid: 76-78), where right owners claim patents to impede their competitors from accessing the necessary material and technology.⁸⁰

Box 2.6 Reinforcing PGRFA appropriation through UPOV 1991 and the TRIPS Agreement

• 1991: Revision of the UPOV Convention

• 1992: Adoption of the Convention on Biological Diversity

• 1993: The CGRFA agrees to renegotiate the IU

• 1994: Adoption of the Marrakech Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS)