GRAIN | Print article

June 1999

UPOV ON THE WAR PATH

GRAIN

The World Trade Organisation (WTO) has teamed up with the Union for the Protection of New Varieties of Plants (UPOV) to convince Third World governments that UPOV offers the best legal system to satisfy WTO’s intellectual property requirements on plant varieties. Governments are even being led to believe that they have to become members of UPOV in order to be part of WTO! Developing countries urgently need to resist this assault of legal mistruths and agronomic arm-twisting, since the UPOV system is staunchly biased against both biodiversity and farmers. WTO’s new plant patenting rules are under review this year, before developing countries even have to implement them. Instead of joining UPOV, Sojun991-en-p.htmuthern countries should use the review process to get biodiversity scrapped from the WTO trade regime altogether.

The Union for the Protection of New Plant Varieties (UPOV) was created in 1961 in Europe to give plant breeders a legal monopoly over seeds and therefore allow them to collect bigger profits from genetic innovations. It was specifically designed to promote industrial agriculture in industrial countries through a series of fixed requirements. UPOV’s system of Plant Variety Protection (PVP) actually does nothing to protect plant varieties. Instead, it gives patent-like rights to plant breeders, protecting them – and their market shares – instead. There are terrible problems associated with intellectual property over plant varieties – threatening fundamental issues such as food security and human rights – and particularly with the UPOV Convention itself.

Until recently, UPOV’s membership never reached beyond industrialised countries. But in the last couple of years, there has been a flurry of countries falling into its net from the South (see table). The reason for this has to do with the World Trade Organisation’s (WTO) controversial agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS requires governments to provide patent protection for all fields of technology. Article 27 is the section that defines rights to biodiversity. It currently requires all member states to enforce intellectual property laws on micro-organisms and plant varieties. Micro-organisms must be patentable. Plant varieties – the basis of the world’s food supply – must either fall under patent laws, or an "effective sui generis system" or both. No definition of what such a system is, or what would make it effective, is given. Yet developing countries are obligated to put such systems in place by the end of this year if they choose this as an alternative to patenting – and if they wish to avoid sanctions from other WTO members. "Sui generis" simply means special or unique, different from something else: in this case, different from the patent system.

WHAT'S WRONG WITH UPOV?

The UPOV Convention sets out rules for granting monopoly rights over the results of plant breeding. There are two Acts currently in force in the UPOV member states. The 1978 Act gives breeders exclusive ownership over the commercial use of varieties for the purpose of production and sale. The 1978 Act offers two explicit limitations on the monopoly right of the breeder. The first is that other breeders may freely use UPOV-protected varieties for further research. The second is farmers are free to reuse the seed for next year's sowing under certain conditions. When UPOV revised its convention in 1991, it narrowed down the exemption for competing breeders and it deleted the so-called farmers' privilege. Furthermore, the 1991 Act extends the breeders' monopoly right to the products of the farmer's harvest. Any country wishing to join UPOV today must sign the 1991 treaty. The implications of doing so are truly profound:

Impact on producers:

UPOV as such introduces legal and economic restrictions on farmers' livelihood practices. Farmers' rights become nothing but a "privilege" under the 1978 treaty and under the 1991 treaty it is up to individual governments to offer farmers some legal space to reuse proprietary seeds. As a general principle, access to genetic resources is restricted under UPOV whether for production or breeding purposes. Although farmers are responsible for 80-90% of the seed supply in the South, this will massively shift to private control under plant variety rights regimes imposed by the World Trade Organisation. Contrary to what many people assume, private breeders do take farmers to court for alleged piracy of proprietary seed and they are actively pursuing more powerful means to prevent the reuse of seed on the farm (such as contract law governing purchase agreements, "terminator" type technologies and hybridisation).

Genetic erosion:

UPOV is biased towards the specific needs of industrial agriculture, especially through its Distinction-Uniformity-Stability criteria; the uniformity criterion alone has been singled out as promoting the loss of genetic diversity in agriculture. By allowing companies to collect royalties on seed sales, UPOV stimulates the corporate take-over of plant breeding which means fewer actors supplying the market, also leading to erosion. Corporations are not in the business of genetic conservation (they rely on genebanks for that) and tend to work with highly stabilised elite material with wide adaptation. Through intensive promotional or marketing efforts, these varieties tend to replace more diverse traditional materials, and consequently the diversity being used by farmers declines. These are the trends: the reports on varietal replacement and the narrowing genetic base of modern cultivars are readily available.

Adverse impacts on R&D:

Impact studies conducted in one UPOV member state, the USA, report a decline in the flow of germplasm among breeders, a decline in the sharing of scientific information and a decline in the rate of progress in plant breeding. Scant other studies have been done in countries with UPOV experience, despite nearly 40 years of practice. It is noteworthy, however, that UPOV was obliged to revise its treaty in 1991 in order to address an important dysfunction in its own system: instead of providing an incentive for innovation (the breeding of truly novel varieties), UPOV was providing an incentive for plagiarism (breeders could make minor changes to existing varieties and still call them "new" for the purpose of legal protection).

Source: GRAIN, "TRIPS versus biodiversity: What to do with the 1999 review of Article 27.3(b)", Barcelona, May 1999, 13 pages, http://www.grain.org/publications/reports/tripsmay99.htm

Nowhere does the TRIPS Agreement say that UPOV’s plant variety protection scheme is appropriate, effective or even desirable as a sui generis system for WTO’s purposes. Critics argue that UPOV can hardly be considered "sui generis" since it virtually amounts to a watered-down patent system for plant breeders. Nevertheless, UPOV members are lobbying hard for the insertion of a reference to UPOV in the TRIPS Agreement as "the" effective sui generis legislation – meaning that all WTO members would be forced to implement it. If that were not enough, the World Intellectual Property Organisation (WIPO) and the WTO itself have joined forces with UPOV to push developing countries into adopting UPOV-compliant legislation this year. The WTO’s involvement in this campaign is particularly alarming. By openly endorsing the campaign, the WTO has situated itself in one camp: the one championing UPOV as sui generis. This is making South governments fume, since WTO’s role is not to interpret what an effective sui generis system is; that right belongs to the parties of the TRIPS Agreement alone.

Table 1: UPOV membership as of May, 1999

UPOV 1978	UPOV 1991
Australia, Austria, Argentina, Bolivia, Brazil,Chile, China, Colombia, Czech Republic,Ecuador, Finland, Hungary, Japan, Kenya,Mexico, Norway, Panama, Paraguay, Poland,Portugal, Slovakia, Trinidad and Tobago, Ukraine	Belgium, Bulgaria, Canada, Denmark, France, Germany, Ireland, Israel, Italy, Moldova, Netherlands, New Zealand, Russia, South Africa, Spain, Sweden, Switzerland, United Kingdom, United States

Industrial countries and large corporations are also lobbying Southern countries to adopt UPOV. They are not particularly great fans of PVP as a legal system of property protection. However, they know that getting the South to accept PVP is just the first step towards getting it to accept full-fledged patents on life forms. That is the real goal of the forces which pushed intellectual property onto the world’s trade agenda – where it doesn’t belong! – in the first place. All the talk about how UPOV is so well adapted to agriculture is merely hidden bait to get governments in the South psychologically prepared for the expansion of Northern industrial property rights over biodiversity.

UPOV’s new lease on life

For well over three decades, UPOV officials have been travelling the world to enlist new members from the South into their club. Until TRIPS came around, they had remarkably little success (see Seedling, June 1996, p 23). In January 1995, when TRIPS came into force, UPOV membership comprised 27 countries, all but three of which were industrialised countries. But, thanks to the confusion TRIPS has created, by May 1999, membership had soared to 43 members, 11 of which were developing countries. A number of these countries hastily signed UPOV’s 1978 Convention before the doors were closed to it in April 1999. That month alone saw Bolivia, China, Kenya, Brazil and Panama bloat UPOV’s ranks. Officials in these countries felt that, given the choice between the 1978 treaty of UPOV and the 1991 downgrade, the 1978 Convention was the lesser of two evils. Nicaragua and Zimbabwe just missed UPOV-78’s April deadline and have requested an extension. When Nicaragua’s parliament asked the government what the sudden rush was, it was told that joining UPOV was necessary to escape WTO trade sanctions. When the parliament asked which sanctions, knowing that UPOV is not part of WTO, the government bureaucrats had no answers.

UPOV’s campaign to absorb new members received yet another serious boost when the WTO and WIPO decided to form a trio with it and conduct a world tour. The three set out early this year on a series of joint seminars aimed at pressurising developing countries into adopting UPOV-type legislation, or joining the Union, as compliance with TRIPS Article 27.3(b). The series kicked off with a symposium in Geneva for all developing countries in February. This was followed by regional and subregional workshops: for Asia-Pacific (Bangkok) in March, for the Arab world (Cairo) in early May and for Eastern Africa (Nairobi) just after, with francophone Africa signing the Convention en bloc somewhere in between. Farmers organisations and NGOs have been barred from these workshops but different participants have described them as "lobby" exercises, falling just short of "bribery." As one workshop participant put it, "UPOV members have been very successful in confusing participants. Many think the two [UPOV and sui generis] are one in the same. Some seem to believe they must join UPOV to be a member of WTO."

THE 1999 REVIEW OF TRIPS ARTICLE 27.3(b)

Article 27.3(b) of TRIPS is one of the most contentious paragraphs in the whole of the TRIPS agreement, since it requires member states to grant legal monopolies on the very basis of food security: crop biodiversity. The implications for farmers, scientists and consumers on the one hand a few transnational corporations on the other, are immense. For this reason, the review agenda for TRIPS is an important and immediate concern for many developing countries.

Some industrialised countries, led by the US, are pushing to turn the review into a meaningless exchange of information on implementation, instead of addressing the provisions of the Article. Their ultimate agenda is to remove the Article from TRIPS altogether, so that not only plant varieties but plants and animals per se would be subject to patents in all WTO member states. Fallback positions for the pro-patenting camp are the removal of the sui generis option for plant varieties in 27.3(b), or at least inserting a reference to UPOV in TRIPS.

Meanwhile, an increasing number of Southern governments see the 1999 review as an opportunity to address the conflict between TRIPS and their commitments to the Convention on Biological Diversity (CBD). Countries urging for this substantive discussion include the Andean Community, Southeast Asia, India, and many Southern and Eastern African governments. The logical solution for them is to exclude biodiversity from TRIPS or delay the implementation deadline so that the issues can be properly sorted out. At halfway the year, the review has moved slowly and with no real discussion yet. The remaining sessions are scheduled for 7-8 July, 15-16 September and 23-24 November, all in Geneva.

Source: GRAIN, "TRIPS versus biodiversity: What to do with the 1999 review of Article 27.3(b)", Barcelona, May 1999, 13 pages, http://www.grain.org/publications/reports/tripsmay99.htm

Africa in the crossfire

In Africa, the pressure tactics have been particularly gruesome. Last February, UPOV forces succeeded in making eleven of some of the poorest countries in Africa sign the 1991 UPOV Convention to fulfil their TRIPS obligations. These countries – which, along with a few developing countries, are members of the French-speaking African Organisation of Intellectual Property or OAPI – have special status with WTO as least-developed countries (LDCs). With LDC status, they do not have to implement TRIPS 27.3(b) until January 1, 2006. Somehow, they were convinced that they should throw away the seven years of legal and political freedom ahead of them to work out the most appropriate solution to support agricultural innovation and simply fall in line with the industrialised countries’ monopolistic UPOV regime.

Pushing the OAPI member states into UPOV’s clutches is seen by some as a deliberate move to undermine more pro-farmer legislative processes underway in Africa. The OAPI decision, which still needs to be ratified in each member country, clashes head-on with the determination of the Organisation of African Unity (OAU) to develop sui generis systems that ensure the protection and development of community rights as a cornerstone of sustainable development in Africa. The OAU Scientific, Technical and Research Commission’s Dr Johnson Ekpere reacted strongly to francophone Africa’s unexpected embrace of UPOV. According to Ekpere, "Most developing countries are not members of UPOV because it does not address their needs." He points out that, "The UPOV system is predicated on the philosophy of industrialised 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 … as a producer and consumer of new plant varieties."

This makes a lot of sense, if we look around Africa. Until now, Kenya, South Africa and Zimbabwe have been the only African countries to offer plant variety protection – basically UPOV-78 type of systems – to breeders. According to one South African government official who firmly believes in UPOV, stimulating the creation of "new and better varieties" through plant breeders’ rights is "the only way in which ever-growing populations can be fed." New and better varieties are a fine objective if they help Kenyans, who are dealing with famine in various parts of the country right now, feed themselves. But is PVP – or UPOV for that matter – helping them get there? The answer is a resounding "no." Kenya adopted its PVP law in 1975. By May 1999, of the 140 PVP applications approved, only one was on a food crop: a variety of green bean, which Kenya packs on an airplane to Europe. More than 90% of the PVP certificates were for flowers, while the rest went to coffee, sugarcane and barley for the beer industry (see graph). Governments might need to study more closely the evidence of how this kind of intellectual property system helps "ever-growing populations to be fed."

IPR IN AFRICA: PROMOTING FOOD SECURITY?

PVP Certificates applied for in Kenya, as of May 1999

1 coffee
1 green bean
5 barley
6 sugarcane

123 ornamentals

Compiled by GRAIN from Kenya Plant Health Inspectorate Service data, 3 May 1999

Well aware of the complexities of trying to develop a more equitable system, the OAU Heads of State agreed in Ouagadougou last June that Africa’s compliance with TRIPS has to put the interests of Africa’s majority – more than 20 million small farmers on whom fathomless foreign aid and inappropriate technology have been dumped – at the top of the agenda. To achieve this, the OAU set out a step by step path:

1. Construct a viable response to the sui generis option in TRIPS in the form of model legislation which takes account of Africa’s commitments to the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources and its promising recognition of Farmers Rights;

2. Adopt a Common African Position for the 1999 TRIPS Review;

3. Forge a South-wide alliance for the TRIPS review so that implementation of this agreement does not sacrifice the gains developing countries have made in terms of improving their systems to control and benefit from the biological diversity generated through a far greater history of innovation than the industrialised countries can speak of.

OAU governments seem to understand well that if plant breeding hinges on farming and vice versa, then any system to protect plant varieties or promote technology under TRIPS has to reckon with Farmers Rights. There has been international consensus on Farmers Rights, which recognise the contribution of farmers to plant breeding, since the 1980s. They simply haven’t materialised yet since Northern governments don’t want Farmers Right to restrict access to germplasm or require payments to farmers. In this context, UPOV is not a valid sui generis option for TRIPS compliance because it’s utterly ineffective. UPOV-based systems provide nothing for farmers – neither rights, nor nutritious crops, if Kenya’s example is anything to go by.

Zambian experts have noted that under the UPOV Convention, "it might be difficult for Zambia to achieve the goals of integrating the formal and informal seed supply systems which is the current government direction. It is further feared that with this Act, government’s commitment to the CBD might be compromised." Instead, the Lusaka government is focusing on "a well-designed and effective sui generis system which will be broad-based as to recognise the rights of farmers and communities at large, who have over the years conserved various plants and animals."

Zimbabwe is also considering joining UPOV, if its request for an extension of the deadline to sign the 1978 treaty, like Nicaragua’s, is approved. But Zimbabwe is concerned that "it does not cover other aspects of protection that Zimbabwe needs, particularly regarding medicinal and industrial wild plants." In the meantime, it is now working on its own sui generis legislation to this end. Morocco has recently adopted a PVP law while Algeria, Tunisia, Egypt, Tanzania and Uganda are preparing their own. Whether the OAU process can help them avoid the worst of UPOV and fight for an exception on biodiversity under TRIPS remains to be seen.

Resistance in Asia

In other parts of the world, opposition to UPOV as the sui generis solution to compliance with TRIPS is also gathering strength. Civil society organisation representing NGOs, farmers and scientists from five Asian countries protested the UPOV/WIPO/WTO meeting in Thailand, last March, having been refused entry to it. In their joint statement, they accused the WTO of "lending support to the concerted campaign of UPOV, the US government and the $30 billion commercial seed industry to force plant breeder’s rights legislation as the only option for developing countries." According to Witoon Lianchamroon of BIOTHAI, "the UPOV system completely overrides Farmers’ Rights and Thai communities cannot accept it." Ashish Kothari of Kalpavriksh, who is a member of the drafting committee of India’s Biodiversity Act, added that "The UPOV option is not suitable for India ... [because it ignores] the interests and rights of millions of farmers who have been breeding and developing seeds for thousands of years." According to Binu Thomas of ActionAid India, "Transnational corporations spend millions of dollars developing a few new plant varieties which they then have to get planted in millions of hectares to recoup their investment costs. Monopoly rights, like UPOV, fast-track this profit-seeking exercise for big corporations at the expense of the farmer’s capacity to feed his or her own family."

Some delegates at the meeting had similar perspectives to share. As the Fijian representative put it, "The new UPOV stance of 1991 seems to provide exclusive protection of commercial plant breeders and multinational companies, with the total exclusion of farmers, indigenous custodians and all others." This poses a real problem because Fiji is very eager to see farmers and indigenous peoples’ rights safeguarded and advanced, especially since the country has been subject to biopiracy and overexploitation of its unique kava plant, which has become popular in the West for its ginseng-like qualities.

The Thais were acutely bothered by the discussions. "I’m worried, because more and more nations are joining UPOV, the essence of sui generis will be changed in favour of UPOV (...). It wasn’t a good sign either that the WTO co-organised this workshop," one Kasetart University official said. Thailand has been working hard to draw up sui generis legislation that really balances the interests of Thai farmers with multinational seed companies. That is why it cannot accept a reduction of the sui generis option to something as narrow and biased as UPOV. "UPOV is a type of sui generis but is not sui generis – don’t be brainwashed like others," another Thai academic cried out after the workshop, calling for "Third World unity" against UPOV’s campaign to co-opt TRIPS.

Over the in the Philippines, resistance to UPOV and to any form of intellectual property regime over life forms has been strong. Back in 1994 when Barry Greengrass, Vice-Secretary General of UPOV, visited the islands to promote his wares, Filipino scientists and administrators questioned him hard as to whether compliance with TRIPS meant they had to adopt a UPOV type of law. He said "no" at the time, acknowledging that "it was possible (but difficult!) to imagine having a national system of protection that did not conform with UPOV but would still be considered an effective sui generis system, for the purposes of [WTO]." He seems to have changed his mind – but the Philippine government agency responsible for this part of TRIPS has not.

The Philippine Department of Agriculture (DA) has finalised its position on the TRIPS review, which holds that countries do not need to adopt legislation in conformity with UPOV, nor join the Union, should they chose the sui generis option. The government is working out its own sui generis system, like some other Southern countries including Thailand and India. However, that doesn’t the resolve the overriding problem of conflicts, ambiguities and uncertainties that all developing countries are facing. As the Philippine DA’s position paper says, "Issues relating to breeders’ rights, farmers’ rights and community rights have yet to be entirely understood in the discussions at the UPOV and the WTO. The WTO Agreements are currently silent on the issue of how to protect and promote the rights of indigenous, agricultural and other local communities. This concern is serious and deserves discussion and elaboration alongside any sui generis rights on plant varieties. The DA encourages the Philippine Mission in Geneva to include this matter as an integral part of the Philippines’ position before the TRIPS Council review."

As a step forward, the Philippine government paper proposes that, "To further protect the rights of farmers and local communities, the review process should try to get life forms (plants and animals) and biodiversity (and indigenous knowledge) out of the jurisdiction of WTO." This is the most clean-cut solution (see box). No one disputes the value of stimulating innovation and technology development. What is under dispute is how best to do it and what kind of technology should be promoted. Systems like patenting or UPOV take us in one direction only: toward greater control over food and farming by a few large corporations in the industrialised countries.

BIODIVERSITY OUT OF TRIPS

This is the most clear cut position being voiced for the review agenda: to remove the legal obligation embedded in WTO's trade regime for countries to apply IPRs (patent or sui generis system) toward any form of biodiversity. Both the patent and sui generis systems under TRIPS imply private and exclusive monopolies. Implementation of such regimes, under the guise of incentives for R&D, should be optional not compulsory.

For many grassroots groups in the South, and for GRAIN, this is a non-negotiable position. Providing incentives for innovation with biodiversity – or "sustainable use" in environmental jargon – is not a trade issue. It is about strengthening capacities and rights at the local and national levels, rather than forcing people to rely on technology packages from outside. In practical terms, it means that the 1999 review will need to amend Article 27.3(b) to provide member states with the option of excluding all biological diversity-related inventions from their IPR laws. "Biodiversity-related" includes inventions based on traditional knowledge which do not necessarily involve biological resources per se. This exemption will also require changes to Article 27.2 in the 2000 review of the whole TRIPS Agreement, since this article currently requires the patenting of micro-organisms.

This option calls for an expansion of what may be excluded from TRIPS. Many Southern groups supporting this position are not calling for a new obligation on countries that currently provide IPR on life forms to prohibit this. The idea, rather, is to use the review to adjust TRIPS to the needs of developing countries and reconcile it with the Convention on Biological Diversity (CBD). With a full exemption for biodiversity in TRIPS, countries would have greater scope to implement the conservation and sustainable use objectives of CBD and devise more appropriate incentives for exploitation of biodiversity in the national interest.

Source: GRAIN, "TRIPS versus biodiversity: What to do with the 1999 review of Article 27.3(b)", Barcelona, May 1999, 13 pages, http://www.grain.org/publications/reports/tripsmay99.htm

Rather than being forced to accept what they don’t need, developing countries should use the 1999 review to stand up for what they want. If Asian countries support the Philippine position and OAU adopts a similar Common Position for Africa, then there is ample ground for the TRIPS Council session in July to put the real issues on the table. Rather than giving in to UPOV as a means of currying favour at the WTO, South governments should demand – as is their right – that biodiversity be removed from the legal reach of the WTO’s intellectual property agreement. They need to do this now, before they are forced to implement the existing agreement.

Main Sources:

* Gaia Foundation and GRAIN (1998), "Ten reasons not to join UPOV." Global Trade and Biodiversity in Conflict, No. 2, London/Barcelona, May. http://www.grain.org/publications/gtbc/issue2.htm

* GRAIN (1996), UPOV: Getting a Free Trips Ride? Seedling, Vol.13, No.6, p 23. http://www.grain.org/publications/seedling.htm

* GRAIN (1999), "TRIPS versus Biodiversity: What to do with the 1999 review of TRIPS Article 27.3(b)." Barcelona, May, 13 pp. http://www.grain.org/publications/reports/tripsmay99.htm

* RAFI (1999), TRIPS Traps for Small Farmers: The impact of IPRs on sustainable food security and farm families remains to be felt. Genotypes, Winnipeg, May. http://www.rafi.org

* Newspaper clippings and the papers distributed at various sessions of the UPOV/WIPO/WTO Joint Regional Workshop series on "The Protection of Plant Varieties under Article 27.3(b) of the TRIPS Agreement" (Geneva, February 15, 1999; Bangkok, March 18-19, 1999; Nairobi, May 6-7, 1999).