by GRAIN | 10 Oct 1990


The Brussels-based European Commission has ended a long journey in putting together a proposed Community Plant Variety Rights (CPVR) law. The initiative is meant to be a response to EC breeders ' long-standing complaints about loopholes in the current Plant Breeders ' Rights (PBR) system. According to the Commission, the new proposal will harmonise the PBR system, so that breeders can get their protection EEC-wide rather then having to apply for it in each single country. However, as with many of the recent EEC proposals, when the Commission talks about "harmonisation", it really means "strengthening". If adopted, this proposed law would dramatically expand the property rights of plant breeders to the extent that the only difference between a plant patent and a plant breeders right might be in the name.

The draft regulation, some five years in the making, was prepared by the Commission's Directorate General for Agriculture and adopted by the Commission in August. It must now make its way through Parliamentary and Council approval. It came into being after heated debate between the Commission's agriculturalists and their colleagues from the industry department who were simultaneously preparing a proposal for the patenting of life forms. It looks like the folks from agriculture lost the debate, as this proposal basically serves to make way for the industrial patent system to be applied to plants while at the same time further strengthen the rights of the plant breeders

The new regulation aims to do away with the current farmer practice of saving part of the harvest grown from certified seeds for future sowing. It would also infringe upon the principle of "free access" to genetic resources by imposing stricter limits on the breeder's freedom to use protected varieties for further improvements. In fact, the Commission's proposal offers many deviations from the current PBR legislation functioning in most EEC memberstates as based on the Convention of the Union for the Protection of new Varieties of Plants (UPOV).

The Farmers ' Privilege Down the Drain

European breeders have long been attacking the UPOV-enshrined right of farmers to re-use seed for successive sowing. This is common practice in many EC countries for small grain cereals and other non-hybrid crops, whereby farmers renew their commercial seed stock on average one year out of two, depending on the crop and country. While farmers are struggling to defend this right as a leverage to economic survival and security of the food supply, breeding operations view large-scale seed cleaning by cooperatives and farms as a source of unfair competition and a loss of hard spent research money.

Clearly on the side of the breeding industry, the European Commission boldly proposes to do away with the legality of farmer-saved seed altogether. The proposed regulation would prohibit the private or commercial reproduction of protected seed as propagating material. This would amount to a small cultural revolution in the countryside and is bound to spark off intense opposition. Fearing this, the Commission tactlessly offers one provision to hold off the bloodshed: in the lofty name of "safeguarding agricultural production", it may be possible to authorise the use of farmer-saved seed at the EC level, but upon the noble initiative of the European Commission only. The masters decide and the masters provide.

"Free Access" Revised: Towards a Hierarchy of Breeders

While farmers resowing their seed might be seen as one group of adversaries to European breeders, so are fellow breeders. In setting new rules for the game, the Commission tries to be fair to the profession. Breeding is impossible without an available pool of genetic resources to select from and improve on. To foster continuous progress in the field, the current PBR system allows breeders to freely use each other's protected varieties for further improvement, without the constraints of licenses or royalties. The seedsmen have been protesting, though, that such liberalism does not serve innovation; rather, it allows breeders to easily make minor, cosmetic changes on valuable varieties and get new, "unjustified" royalty rights over them.

The most logical solution to this abusive outcome of the "breeders ' exemption" would have been to increase the so-called minimal distance between varieties eligible for PBR protection. This would also serve to force a much needed widening of the genetic base of European crop production by imposing stronger requirements for variability among cultivars before they can be marketed. However, the Commission chose to go soft on the top breeders and merely infringe the cultivar counterfeiters.

Basically, the Commission proposes that the breeder of a "essentially derived variety" (a variety essentially derived from an already protected parent) simply gets joint protection together with the breeder of its superior kin. This presumably entails that part of the royalties go back to the original breeder. But joint protection is not necessarily a deterrent to cosmetic breeding; it simply creates more hierarchy in the breedering sector. It does not address the currently widely shared criticism that todays intellectual property right systems increase genetic uniformity.

 Jumping the Gun on UPOV

Many other changes over the current PBR tradition regulated by the UPOV Convention, can be found in the proposed EC system. All of them increase the rights of the breeder. The most spectacular one is that the Commission finally comes up with a definition of what a plant variety is, something that the drafters of the UPOV system never got around to. A plant variety in the EC will be "any group of plants as well as parts of those plants as far as they comprise more than a cell or cell line and are usable for the production of plants." Thus, anything more complex than a cell line that produces a plant can be covered by a CPVR certificate, which goes way beyond the current UPOV system. Also, the Commission's proposal magnifies the time period of the protection to 30 years.

Additionally, the EC system would differ radically from the current PBR scheme in allowing breeders from non-EC member states to apply for European protection only if their home country provides for proper protection of plant varieties. This is especially bad news for breeders from the Third World and smells like the infamous USA trade clause known as "Super 301", whereby the Americans can use bilateral retaliation to bring foreign countries in line with their own patent policies. Registered as this year's Commission proposal number "347", the CPVR law could become known as "Super 347".

Perhaps the point where the EC Commission most bluntly gives in to the pressures of the biotechnology industry is in the newly defined prohibition of "double protection". The UPOV system blocks the patenting of any plant species that are eligible for PBR protection, which in practice means virtually all major crop species. The EC proposal only stipulates that a variety already protected by CPVR cannot be patented at the same time. Depending on how the European Patent Convention is finally being interpreted, this leaves the door wide open for the patenting of plant varieties, an option where the multinational biotech industries have been pushing for all the time.

Finally, a major problem of this proposal lies in its timing. It comes as a finalised package to the European Parliament and Council just when the GATT negotiations on intellectual property are about to be settled in one direction or another. The Commission wants to have its proposal entering into force on the 1st of April 1991, at about the same time as the major revision of the PBR system is expected to take place, and just a few months before the Paris Convention governing international patent law is up for a total rehaul. What, then, is the EEC supposed to decide on when these overriding international frameworks are in total flux? Why adopt a new system when it will have to be amended at least three times in light of the results in the above three fora?

Hence the political problems, to which we should add that farmers and consumers may not be so willing to accept any of these proposed changes. Monopoly control over the basis of our food supply has never fared well in the public eye. By raising the form and substance of plant breeders ' rights to the heights of a quasi-patent sysrem may do more to block the better protection breeders want than facilitate its establishment. Were the regulation to go through, alongside the EC patenting directive, farmers would be faced with two legal systems governing their seed supply and simply no way out on their own.

Author: GRAIN