ALTERNATIVE TO UPOV FOR THE PROTECTION OF NEW PLANT VARIETIES
Prof. J. A. Ekpere Consultant Scientific, Technical and Research Commission of the Organization of African Unity
May 1999
1. INTRODUCTION
The World Trade Organization (WTO) is sponsoring a series of meetings in developing countries to encourage governments to enact patent-like legislation over basic food, medicinal and export crops. The meetings are organized under the auspices of the Union for the Protection of New Varieties of Plants (UPOV), World Intellectual Property Organization (WIPO) and World Trade Organization (WTO). One such meeting was organized for the fifteen Francophone Members of the Organization Africaine de la Propriete Intellectuelle/African Intellectual Property Organization (OAPI) in Bangui, Central African Republic on February 22-25, 1999. A similar meeting was organized for Asia in Bangkok, Thailand on March 18-19, 1999. The meetings were convened to discuss how countries are planning to implement the biodiversity related provisions of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights - (TRIPs). TRIPs requires developing countries to grant monopoly rights over new varieties of plants and animals before January 1, 2000, either through patenting or sui generis legislation.
The principal objective of the UPOV-WIPO-WTO Joint Regional Workshops on "The Protection of Plant Varieties under Article 27.3(b) of the TRIPs Agreement" is to sell itself (UPOV 78 or UPOV 91) as the best solution for governments to fulfill their TRIPs obligation. This may be desirable for most developed countries, but not applicable nor beneficial to the developing countries in general and Africa in particular.
Most developing countries are not members of UPOV because they have no compulsion to do so and principally because it does not address their needs. The basic philosophy of UPOV 91 as entrenched in the concept of breeders' right is totally alien to developing countries. It grants monopoly rights to plant breeders and corporate firms without recognition of farmers' rights.
The UPOV system is predicated on the philosophy of industrialized economies where it was conceived with the objective of protecting the investment and interest of large and influential seed companies who employed plant breeders. The situation is quite different presently in developing countries where the players in the seed sector and major seed producers are small farmers and farmers' cooperatives. Consequently, the law should appropriately focus on protecting the farmer and his interest as a producer and consumer of new plant varieties.
2. THE UPOV OPTION
The UPOV system is a patent type system formulated by countries where agriculture is a business rather than a way of life. In these countries the farming community comprises only 1-5 percent of the population. Their agricultural production profile is a sharp contrast from the agricultural systems of the developing countries. They do not have a large number of small and marginal farmers.
In Africa, as in most developing countries, the farmer plays a significant role in the development of new plant varieties (as breeder) through crossing and selection. These varieties are released for use by other farmers, family members and friends. In most cases, it is these pre-selected planting materials that the research scientist acquires and uses in his/her breeding programme. Agricultural research and plant breeding (crop improvement) is undertaken in Africa, principally by public institutions (Research Institutes, Universities etc.) and funded through tax payers' money. The result of such research is therefore public property.
The laws of UPOV are based on a legal system where plant breeding research is conducted in corporate (private) institutions and funded through company finances.
The high capital investment of seed companies in the breeding method is the justification for seeking stringent intellectual property rights. This procedure though desirable for the developed countries is not applicable in the developing countries in general and Africa in particular, considering their level of agricultural development.
Under the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) all signatory governments must adopt some form of intellectual property rights over plant varieties. BUT, they are under NO OBLIGATION to adopt the highly restrictive UPOV-91 Convention which limits the rights of farmers to save "proprietary" seed for reuse. Instead, they could adopt a sui generis (specially designed) legislation for the protection of plant varieties as well as exercise their ordre public options under TRIPs to prevent privatization of plants and biodiversity.
3. ALTERNATIVE TO UPOV
African countries through the Scientific, Technical and Research Commission of the Organization of African Unity are currently discussing alternative options (within a sui generis legislation) to meet their obligations to TRIPs as well as the 1992 Convention on Biological Diversity. This is so because the WTO Agreement is not consistent with the aspirations of African indigenous communities which represent the innovators and custodians of biodiversity so necessary for the survival of human kind on this planet.
At its Summit in Ouagadougou, Burkina Faso, (June, 1998) African Foreign Ministers and Heads of State and Governments agreed to develop an African Common Position to safeguard the sovereign right of Member States, the vital interest of their local communities to protect, conserve and control access to and use of their biological diversity, while forging alliances with other countries of the South in the revision of Article 27.3(b) of the TRIPs Agreement in 1999.
In January 1999, in Lusaka, Zambia, African Representatives at a Regional Workshop on "Understanding Biodiversity Related Instruments" agreed to develop a sui generis intellectual property rights legislation to cover plants, compatible with TRIPs but including farmers rights - the right of farmers to exchange seeds and save seeds for replanting. Similarly, a six-day workshop of over 40 Senior Trade Policy officials from 21 Eastern and Southern African countries in Kampala, Uganda (March 4-9, 1999) criticized the TRIPs Agreement calling attention to fundamental imbalances inimical to the development of Africa. They cited several adverse effects which include constraint on domestic technological development and barriers to technology transfer and monopolistic high prices (on medicinal products, seeds and software),
As far as Africa is concerned, they opined that the most serious problem with TRIPs is that it fails to recognize the rights of local communities to their traditional and indigenous knowledge. This could lead to unjustified patenting of their knowledge, technologies, practices and biological resources by corporate firms. In the context of the review of Article 27.3(b) of the TRIPs Agreement, the trade policy officials advocated the exclusion of life forms and all biodiversity (biological materials) from patentability. They indicated that African countries should develop suitable sui generis systems of protection of plant varieties, indigenous knowledge, technologies, practices and community rights consistent with their national priorities and ensure that the TRIPs Agreement conforms with the objectives of the Convention an Biological Diversity. Yet at another Regional Workshop, on Implementation of Article 27.3(b) of the TRIPs Agreement in Harare, Zimbabwe (March 22-24, 1999), the participants agreed to convene further regional meetings to develop an "African sui-generis model Legislation" soon and articulate a common position on the TRIPs review.
Africa's response to UPOV and review (implementation) of Article 27.3(b) of the TRIPs Agreement is predicated on Africa's commitment to the spirit, principle and relevant provisions of the Convention on Biological Diversity, the Sovereign right of states over the ownership of their biological and natural resources, maintain knowledge, innovations, technologies and practices of indigenous people subject to national legislation as well as equitable sharing of benefits arising from the utilization of such knowledge, innovations, technologies and practices. Africa is a multi-ethnic continent with deep moral, religious and cultural values. Its population consists of a large array of indigenous people whose environment comprising trees (sacred groves), crops, animals, birds, fish, microorganisms, soils, etc. are an integral component of their total lifestyle in fellowship with their fellowmen. Africa's long history, culture, spiritual and political existence has survived centuries of careful growth and development consistent with the available benefits of western civilization. These values are currently being threatened by privatization, multinational corporations, unethical science and technology outcomes through intellectual property rights on life forms. These incursions are totally at variance with Africa's tradition and culture and are therefore unacceptable
Africa is very much in favour of science, technology and innovation derivable from its own natural resources and culture. The development of new technologies and the dissemination of innovation are, indeed, a desirable on-going process that must be supported by Governments and Nations with appropriate incentives and rewards. But the type of rights that Africa needs arc not intellectual property rights monopolized through patenting, but rights that support local communities, farmers, Indigenous peoples and their efforts over the past millenia to conserve and enhance biodiversity for the benefit of human kind in the future.
In the light of the on-going initiatives in Africa and the review of Article 27.3(b) of the TRIPs Agreement in progress, it is premature to sign on to UPOV-91. Not only will such an action be out of step with other developments in Africa, it would lock governments and people of the continent in legislation that few developing countries are willing to adopt and which is far more restrictive than is necessary to meet Africa's international obligations.
For further information, please contact
Scientific, Technical and Research Commission of the Organisation of African Unity (OAU/STRC) PMB 2359 Lagos, Nigeria Tel: (234-1) 263 34 30 or 263 32 89 Fax: (234-1) 263 80 93 OAU/STRC's email: oaustrcl(at)rcl.nig.com Consultant's email: jekpere(at)rcl.nig.com