TITLE: Hydra-headed UPOV AUTHOR: Ratnakar Adhikari PUBLICATION: Kathmandu Post DATE: 15 August 2003 URL: http://www.nepalnews.com.np/contents/englishdaily/ktmpost/2 003/aug/aug15/features.htm NOTE FROM GRAIN: Nepal, along with Cambodia, is expected to become member of the World Trade Organisation during the Cancun Ministerial in Mexico next month. In the latest round of negotiations on conditions for membership, the US reportedly pushed accession to UPOV as one of those conditions. Nepal ended up rejecting the UPOV card, not without pressure from back home. Kathmandu Post | 15 August 2003 HYDRA-HEADED UPOV By Ratnakar Adhikari Nepal is in the process of acceding to the World Trade Organisation (WTO). To this end, a team led by the Secretary at the Ministry of Industry, Commerce and Supplies (MoICS) is currently participating in a series of bilateral and multilateral negotiations in Geneva. However, the negotiations, which were expected to conclude on the 15 August, seem to have reached a critical point. As if it were a normal practice, the existing member countries of the WTO set the terms and conditions for the accession of the new countries. This is despite the fact that no agreement in the WTO allows the existing members to impose any conditions, which transcend the WTO obligations. These are referred to as "WTO plus" conditions in trade jargon. One of the most severe conditions imposed by the developed member countries of the WTO, which could be extremely deleterious to the interests of the farmers of the developing countries in general and least developed countries (LDCs) in particular is the requirement to become a member of International Union for the Protection of New Plant Varieties (UPOV). To further compound the problem, the developed member countries of the WTO are vociferously pushing for it. Most of the countries, which have acceded to the WTO, have been forced to accept this condition as a part of their accession deal - China and Kyrgystan being living examples. So much so that Cambodia, the first LDC to become a member of the global trade body through accession, too was not spared. It is learnt that Nepal is also under pressure from the developed countries to become a member of the UPOV. Let us now closely see why the entire developing countries are denouncing the UPOV and what it means for Nepal to become its member. Article 27.3 (b) of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which is a part of the WTO, mandates all the member countries of the WTO to provide protection to new plant varieties through one of the following three means: a) patent; b) effective sui generis system; or c) any combination thereof. Neither the above mentioned Article, nor the TRIPS Agreement, nor any other agreement of the WTO defines the term "effective sui generis system", thus leaving it entirely to the discretion of the country concerned to adopt any form of legal protection to plant variety as long as it is compatible with TRIPS. Given the current state of Nepal and its socio-economic reality, Nepal plans to opt for the method (b) mentioned above for the protection of plant varieties. Some member countries of the WTO have chosen UPOV as the template for enacting effective sui generis legislation for the protection of new plant varieties. They have enacted such legislation because it suits the requirement of their industrial farming - where farmers' constitute 1 to 5 percent of their total population. Farming community represents the largest single community in Nepal - more than 80 percent of people are engaged in farming as the major source of their livelihood. Farmers in Nepal practice subsistence farming and have been saving and reusing seeds for time immemorial. They have also been exchanging seeds with their neighbours and selling seeds in limited quantity. Some farmers, who do not have enough land to engage in full-fledged agricultural productions are also engaged in production of seeds in a very limited quantity and selling them at the local market to eke out their living. Thus, saving, exchanging, reusing and selling seeds are the matters of their livelihood. The newer version of UPOV, which was prepared in 1991, provides for high level of protection to the breeders but has severely diluted the Farmers' Privilege thereby restricting the rights of farmers to save, reuse, exchange and sell seeds. Article 15.2 of UPOV is in sharp contrast to the earlier system under which farmers were allowed to re-use protected material without paying any royalty to commercial breeders. The new provisions allow farmers to reuse protected material only if the "legitimate interests of the breeder" are taken care of - the "legitimate interests" being the royalty that the breeder should be paid and this meant "downgrading of the farmers' privilege" in the view of the UN Food and Agriculture Organisation. Almost all agricultural research and plant breeding in Nepal are financed with the taxpayers' money. It is conducted in public institutions like Nepal Agriculture Research Council (NARC). Such research works belong to the public. The UPOV model on the other hand is formulated by societies where seed research is conducted more in private domain than in public institutions; where companies finance plant breeding. Therefore, they seek market control through strong protection of their varieties. These conditions do not prevail in Nepal. By restricting adaptive research by the public institutions in a LDC like Nepal, UPOV is bound to spell disaster for the farming system of the country - which provides for the sustenance of the farmers. As per Gene Campaign (a Delhi non-government organisation (NGO) which is fighting for the protection of farmers' rights), another feature that makes the UPOV system unsuitable developing countries is its sheer cost. Obtaining an UPOV authorised Breeders' Right Certificate could cost several thousands or even hundreds of thousands. Such rates will effectively preclude the participation of all but the largest seed companies. There certainly will be no space in such a system for small companies, farmers' co-operatives or farmers/breeders. In sum, an LDC like Nepal cannot jeopardise the interest of 18.72 million farmers by agreeing to join the UPOV. Once Nepal attains certain degree of industrialisation and farmers gradually shift towards other vocations and remaining farmers develop their ability to compete with the commercial breeders, can it consider becoming a member of this body. Given the above-mentioned scenario, should there be persistent push from the developed countries to Nepal to sign the UPOV, our negotiation team should flatly refuse the same, close the negotiations and come back home. There is more to protecting our poor, marginalised and vulnerable farmers than to obtain WTO membership _ GOING FURTHER (compiled by GRAIN) Ratnakar Adhikari, "Euphoria over WTO membership", Kathmandu Post, 22 August 2003. http://www.nepalnews.com.np/contents/englishdaily/ktmpost/2 003/aug/aug22 Beena Kharel, "Shrimps amidst sharks", Kathmandu Post, 20 August 2003. http://www.nepalnews.com.np/contents/englishdaily/ktmpost/2 003/aug/aug20/features.htm "Nepal rejects WTO-plus commitments", Kathmandu Post, 18 August 2003. http://www.nepalnews.com.np/contents/englishdaily/ktmpost/2 003/aug/aug18/economy.htm "US proposes Nepal to sign UPOV", NepalNews.com, Kathmandu, 14 August 2003. http://www.nepalnews.com.np/archive/2003/august/arc781.htm