Authors: Carlos M. Correa (University of Buenos Aires) (main author), with contributions from Sangeeta Shashikant (Third World Network) and François Meienberg (Berne Declaration)
Published by: Association for Plant Breeding for the Benefit of Society (APBREBES) and its member organisations: Berne Declaration, Development Fund, SEARICE, Third World Network
A new tool to assist developing countries in designing a “custom made” plant variety protection suitable for the seed and agricultural systems that prevail in developing countries has been published by an international group of NGOs.
Members of the World Trade Organization with the exception of least developed countries are required to make available some form of intellectual property protection for plant varieties. They have ample flexibility to design a sui generis (unique) system that is appropriate for their agricultural systems.
The 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 1991) offers a rigid model inappropriate for developing countries. It ignores the characteristics of the seed supply systems in those countries, where farmers produce a large part of the seeds and other propagating material, and limits farmers’ traditional practices of saving, exchanging and selling plant materials. These activities are crucial to preserving a diversified supply of seeds, adapted to local conditions and a changing environment as well as support farmers’ livelihoods.
UPOV 1991 requirements also undermine implementation of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), the Convention on Biological Diversity (CBD) and its Nagoya Protocol on Access and Benefit Sharing.
Therefore the purpose of this tool is to present an alternative to UPOV 1991 taking into account the needs and realities of farmers in developing countries as well as alternative sui generis plant variety protection systems that exist in some developing countries. This tool is to support policy makers, civil society organisations and farmer organizations engaged in the development of a plant variety protection system.
Chapter 1 examines the origins of plant variety protection through intellectual property rights and UPOV. Chapter 2 elaborates on the requirements of the Trade-related Aspects of Intellectual Property Rights Agreement administered by the World Trade Organization (WTO) that has flexibilities available to WTO members as well as the context and provisions of other international instruments relevant to plant genetic resources. These currently include the CBD, its Nagoya Protocol and the ITPGRFA. Chapter 3 discusses the key features of UPOV 1991 and its implications for developing countries.
Chapter 4 proposes model provisions for key features that are essential to designing a sui generis plant variety protection regime and these may be adapted to national circumstances. Chapter 5 addresses the obstacles that developing countries may face in designing sui generis plant variety protection legislation, arguments against and in favour of non-UPOV- type of sui generis regimes, and recommendations for actions to be taken when developing a national law.