An analysis by Sangeeta Shashikant (Third World Network)
A new draft legal framework for the protection of new plant varieties under consideration by the African Regional Intellectual Property Organization (ARIPO) has generated significant criticism and controversy.
This legal framework known as the “Draft ARIPO Protocol on the Protection of New Varieties of Plant” will be discussed at an upcoming diplomatic conference in Tanzania on 29 June 2015. If adopted, the Protocol will establish a centralized plant variety protection regime modeled on the heavily criticized 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV 1991), applicable to ARIPO members that ratify the Protocol. A minimum of 4 ratifications is needed for the Protocol to enter into force.
[ARIPO is a regional entity that administers various intellectual property instruments on behalf of its 19 mostly anglophone sub-Saharan African countries: Democratic Republic of Sao Tome and Principe, Botswana, The Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, Somalia Sierra Leone, Sudan, Swaziland, United Republic of Tanzania, Uganda, Zambia and Zimbabwe. Of these 13 are least developed countries (LDCs), i.e. some of the world’s poorest and most vulnerable countries in the world.]
African civil society organizations and related farmer networks have challenged the legitimacy and credibility of the process leading to the development of the Draft Protocol and expressed outrage and vehement opposition to the Draft Protocol.
A major point of contention is the issue of farmers’ right to save, use, exchange and sell farm-saved seed and other propagating material.
The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) recognizes this right “to save, use, exchange and sell farm-saved seed and other propagating material” as being “…fundamental to the realization of Farmers’ Rights, as well as the promotion of Farmers’ Rights at national and international levels”. Article 9 of the ITPGRFA requires its Contracting Parties to take measures to protect and promote Farmers’ Rights. Fourteen ARIPO members are Contracting Parties to the ITPGRFA.
The Alliance for Food Sovereignty Africa (AFSA) a Pan African platform comprising civil society networks and farmer organizations working towards food sovereignty in Africa, and representing millions of small-scale farmers has argued on a number of grounds that the proposed legal framework is unsuitable for ARIPO members. In particular, AFSA has highlighted that it ”erodes farmers rights and the right to seed and food” as it “outlaws centuries-old practices of farmers freely using, exchanging and selling seeds/propagating material” adding that such practices, are often referred to as the informal seed sector, are of crucial importance for seed security in Africa, supplying more than 80% of the total food crop seed used by farmers.
This article analyses the impact of the Draft Protocol on farmers’ right to save, use, exchange and sell farm-saved seed and other propagating material. It argues that restrictions on farmer’s rights contained in the Draft Protocol are inconsistent with national PBR legislation and these restrictions adversely impacts the functioning of the informal sector which is the primary way for small-scale farmers to access seeds including protected varieties.
It also explores potential solutions including the need to rework the Draft Protocol to follow the format of ARIPO’s existing protocols such as its Harare Protocol on Patents and Industrial Designs.
UPOV 1991 & Farmers’ Right to Save, Exchange & Sell Seeds/Propagating Material
The Draft ARIPO Protocol is based on UPOV 1991 as the final aim is that ARIPO, a regional entity and its members will join as Parties to UPOV 1991. To date no ARIPO member is a member of UPOV 1991. Thus it is imperative to understand the provisions of the 1991 Act and the interpretation accorded to such provisions.
In comparison to its predecessor UPOV 1978, the 1991 Act of UPOV greatly expanded the scope of breeders’ rights, and imposed further restrictions on the right to save, use, exchange and sell seed/propagating varieties.
With regard to farmers’ rights, a relevant exception to note is Article 15.2 of UPOV 1991 which states: “to be defined in national law, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, […] in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety.”
The UPOV Council (i.e. the highest body within UPOV) adopts a rather restrictive interpretation of this Article i.e. that it should only apply to crops where there is a “common practice of farmers saving harvested material for further propagation” and “where the product of the harvest is used for propagating purposes, for example small-grained cereals where the harvested grain can equally be used as seed”.(1) It also advocates, where that exception is introduced, “a requirement to provide remuneration to breeders might be considered as a means of safeguarding the legitimate interests of the breeders”.
Another relevant exception is Article 15(1)(i) of UPOV 1991, which states breeders’ rights, shall not extend to “acts done privately and for non-commercial purposes”.
On this as well, the UPOV Council has formally adopted an extremely restrictive approach as follows:
“[….] acts which are both of a private nature and for non-commercial purposes are covered by the exception. Thus, non-private acts, even where for non-commercial purposes, may be outside the scope of the exception [….]. Thus, a farmer saving his own seed of a variety on his own holding might be considered to be engaged in a private act, but could be considered not to be covered by the exception if the said saving of seed is for commercial purposes. The wording [….] suggests that it could allow, for example, the propagation of a variety by an amateur gardener for exclusive use in his own garden (i.e. no material of the variety being provided to others), since this may constitute an act which was both private and for non-commercial purposes. Equally, for example, the propagation of a variety by a farmer exclusively for the production of a food crop to be consumed entirely by that farmer and the dependents of the farmer living on that holding, may be considered to fall within the meaning of acts done privately and for non-commercial purposes.” (2)
Effectively following this interpretation under the exceptions of UPOV 1991, when using the protected varieties, seed saving may be allowed for very specific types of crops i.e. where there is a common practice of farmers using the harvested material for further propagation but this may be subject to payment of remuneration to the right holder.
What is clear is that both the UPOV exceptions do not allow farmers to exchange or sell seeds/propagating material (even small amounts) for further propagation. In fact, even the multiplication of the protected variety to produce food crops to be consumed by a neighbor (not living on the holding) appears not to be falling within the scope of the exception.
This restrictive interpretation of the UPOV Council has been applied to countries that have submitted their Draft Bills to the UPOV Council for its approval.
For example, when examining the conformity of Malaysia’s plant variety protection (PVP) legislation with UPOV 1991, the UPOV Secretariat expressly stated that, “the exchange of protected material for propagating purposes would not be covered by the exceptions under Article 15 of the 1991 Act.” Accordingly, it recommended deletion of Section 31(1)(e) of the Malaysian Protection of New Plant Varieties Act which allows “any exchange of reasonable amounts of propagating materials among small farmers”. (3)
In the case of the Philippines, the UPOV Secretariat concluded that the exchange and sale of seeds among and between the said small farmers in their own land, as provided in the third sentence of Section 34(d) of the Philippines legislation, was in violation of UPOV 1991.
In recent years there is increasing criticism of UPOV 1991 and its inappropriateness for developing countries where the informal seed sector prevails, supported by practices of being able to freely save, exchange and sell seeds/propagating material.
In 2014, to assuage these criticisms, the UPOV Council agreed to a list of “Frequently Asked Questions” (FAQ) which included the following response: “… UPOV Contracting Parties have the flexibility to consider, where the legitimate interests of the breeders are not significantly affected, in the occasional case of propagating material of protected varieties, allowing subsistence farmers to exchange this against other vital goods within the local community”(emphasis added).
The Association of Plant Breeding for the Benefit of Society (APBREBES) referred to this response as being “legally incorrect and deliberately misleading” as it simply cannot be “supported by the interpretation of Article 15(1) that has been applicable thus far or the practices of UPOV, which has consistently rejected national draft PVP legislation that allow exchanges of seeds/propagating material. In addition, there are conditions incorporated in the Response (such as “the legitimate interests of the breeders are not significantly affected” or “in the occasional case”) that cannot be justified under Article 15(1). Further, the Response is also not supported by the text of Article 15(2) of the Act.” (4)
It is worth noting that the official UPOV interpretation has remain unchanged and the FAQ interpretation has no legal force. In any case, the FAQ simply creates more uncertainty and has little value as it allows “occasional” (meaning “infrequent”) exchange subject to protection of breeders’ interest, which means subject to certain conditions (e.g. payment of remuneration to the breeder). Thus even with the FAQ, it is clear that UPOV 1991 does not allow farmers to freely exchange as a regular practice. Additionally sale of seed/propagating material remains prohibited.
The Draft ARIPO Protocol
The Draft Protocol is based on UPOV 1991, and as such it is unsurprising that the Draft Protocol has restrictive provisions with regard to farmers’ rights. Seed saving is only allowed for propagating purposes on a farmer’s own holding and is further limited to specific “agricultural crops and vegetables with a historical common practice of saving seed in the Contracting States [and as] specified by the Administrative Council of Plant Variety Protection” subject to commercial farmers (small and large) having to pay remuneration to the right holder.
This provision is even more restrictive than that found in several developed countries (e.g. in Europe) which exempts ‘small commercial farmers’ from the obligation to remunerate the breeder for using farm-saved seed on their own holding. (5)
Additionally the Draft Protocol states “the information to be provided by the farmer to the breeder, shall be stipulated in the regulations”. It is worth noting that in Europe, and especially in Germany, this has led to harassment by breeders of small farmers and requiring farmers to give information is the subject of court battles.(6) The Swiss Parliament has also rejected the idea of requiring farmers to give information to breeders.
[In Germany, for instance, seed companies sent letters to farmers demanding a full inventory for each year of what seed they are growing, in order to determine the royalty on farm-saved seed that the companies should collect. In the Case C-182/01 Saatgut-Treuhandverwaltungsgesellschaft (11 March 2004), the European Court of Justice (available at http://curia.europa.eu/juris/liste.jsf?num=C-182/01) decided, however, that the plaintiff did not have the authority to ask for information about the use of protected seed without evidence that the plant was being used by the farmer.]
The Draft Protocol also contains the exception of “privately and for non-commercial purposes” which is not further defined. Following UPOV’s official interpretation of this exception, exchange of seeds/propagating material would not be allowed. Any selling of seeds/propagating material is prohibited.
Equally important to note is that these provisions of the Draft Protocol are actually inconsistent with the African regional PVP model law and national PVP bills and legislations of some of the ARIPO members.
The African Model Legislation on the Protection of the Rights of Local Communities, Farmers and Breeders and the Regulation of Access to Biological Resources (African Model Law) allows the use of protected seed/propagating material “for purposes other than commerce” with farmers allowed to exchange and sell farm-saved seed/propagating material under certain conditions. The SADC PBR Protocol has the following exception: “acts done by a farmer to save, use, sow, re-sow or exchange for non- commercial purposes his or her farm produce including seed of a protected variety, within reasonable limits subject to the safeguarding of the legitimate interests of the holder of the breeder’s right. The reasonable limits and the means of safeguarding the legitimate interests of the holder of the breeder’s right shall be prescribed.”
The Zambian plant breeders’ rights (PBR) legislation contains farmers’ exception similar to the African Model law. Malawi’s draft PVP bill allows farmers to save, sell, exchange and use farm-saved seed “provided they do not sell…. on a commercial scale”. The Zimbabwean PBR Act allows some level of reusing, selling and exchange of farm saved seeds/propagating material.
It is also worth noting that Ghana’s Draft PBR Bill that is modeled on UPOV 1991, and thus is restrictive of farmers’ rights, has created an outrage in Ghana with several street protests. A key aspect opposed are the restrictions imposed on the right of farmers to save, exchange and sell seeds/propagating material. Despite being at the final stages of approval for the past two years, the Bill has not been passed, and in fact has been withdrawn for more public consultation
Proponents of the Draft Protocol argue that the primary objective of the instrument is to disseminate improved varieties to farmers and to improve their livelihoods. And yet the Draft Protocol works to erode the very practices that underpin the informal seed sector, which is the most common way of disseminating seeds in ARIPO Countries.
A recent human rights impact assessment of UPOV 1991 concluded that “the “informal seed system is by far the primary way for small-scale farmers to access seeds (including seeds of improved varieties and PVP varieties)” and “There is an important interaction between the formal and informal sectors whereby seeds from the formal sector are integrated into the informal sector by seed saving, exchange and sale of farm- saved seeds.” (7)
The impact assessment also concluded that the restrictions of UPOV 1991 “will make it harder for resource-poor farmers to access improved seeds” as it “negatively impact on the functioning of the informal seed system … because if implemented and enforced, UPOV 91 would sever the beneficial inter-linkages between the formal and informal seed systems” adding that “selling seeds is an important source of income for many farmers”. The analysis concludes: “ … from a human rights perspective, restrictions on the use, exchange and sale of protected seeds could adversely affect the right to food, as seeds might become either more costly or harder to access. These restrictions could also affect other human rights, by reducing the amount of household income which is available for food, healthcare or education”.(8)
Other analyses and expert groups have reached similar conclusions. For example, a 2005 World Bank commissioned Study concluded that farmers’ seed systems are the main source of seed and new varieties for most crops in the case study countries. IPRs (intellectual property rights) may reduce the effectiveness of these systems by limiting the saving, exchanging and selling of farmer- produced seed of protected varieties. (9)
In 2001 the UK Commission on Intellectual Property and Development concluded that UPOV “was designed with the commercialized farming systems of the developed countries in mind [and]… therefore concerns expressed about the application of the UPOV model in developing countries” adding that the systems of sale and exchange are an important mechanism by which farmers have traditionally selected and improved their own varieties, and the restriction of this right may impede this process of improvement. (10)
Concerns raised by civil society organizations and related networks with regard to the Draft Protocol are valid and credible and needs to be addressed. ARIPO is a region with 13 LDCs, massive poverty, and significant food and nutritional challenges. The proposed farmers’ rights restrictions simply exacerbate the situation by creating further impediments to accessing seed/propagating materials.
Solutions to Consider
A recent article published by Nature Biotechnology (May 2015) titled “A solution to the controversy on plant variety protection in Africa” points out that the criticism of the Draft Protocol with regard to farmers’ rights “are valid and needs to be addressed”. However its proposed solution is flawed.
The article proposes that “African countries and regional organizations should broaden the interpretation of the private and noncommercial use exemption in their national implementation rules…[to facilitate] seed exchange among smallholder farmers… [and] sale on a local market of a surplus harvest by a subsistence farmer…” arguing that UPOV’s documents (the UPOV Council’s interpretation and FAQ) have no legal force.
The Draft Protocol is about having a centralized PVP regime wherein one set of uniform rules (including the scope of breeder’s rights and exception to those rights) applies to all Contracting Parties of the Protocol. Article 37 of the Draft Protocol explicitly states that “Regional breeders’ rights shall have uniform effect within the territories of the Contracting States and may not be granted, transferred or terminated in respect of the above mentioned territories otherwise than on a uniform basis” (emphasis added). The words “uniform effect” suggests that national implementation rules, presumably with differing interpretations of “private and non-commercial use” to accommodate national conditions is neither envisaged nor possible under the Draft Protocol. In fact, for varieties registered through the regional system, the regional Protocol will prevail over any national legislation or rules. As such this proposal in the Nature Biotechnology article may not be workable.
Further, the suggestion that somehow African nations can adopt a Draft Protocol based on UPOV 1991 but simply ignore the restrictive interpretations accorded by the UPOV Council fails to take into account the persuasive legal value courts or arbitrations would accord to the interpretation of the UPOV Council and various unilateral pressures from the seed industry, developed country governments, UPOV Secretariat etc. The article also fails to recognize that there are numerous other valid concerns that have been raised in opposition to the Draft Protocol (e.g. its adverse impact on national sovereignty, misappropriation of genetic resources) and which also need to be addressed.
To specifically safeguard farmers’ right to save, exchange and sell seeds/propagating material it would be important to amend the Draft Protocol. Saving of seeds should be freely allowed and smallholder farmers (commercial or otherwise) should be exempt from payment of remuneration.
Further the Draft Protocol should explicitly exempt all types of non-commercial uses from the scope of breeders’ rights. This could easily be done by amending Article 22(1)(a) of the Draft Protocol from “privately and for non-commercial purposes” to “private or for non-commercial purposes”. This amendment would also be more consistent with national legislation in the ARIPO region. It would also be important to allow farmers particularly small-scale farmers some leeway to sell seeds/propagating material, for e.g. where it is not on a commercial scale.
However, this will not resolve the other controversies surrounding the Draft Protocol (e.g. that it undermines national sovereignty, facilitates biopiracy etc.), unless other amendments are made to the Draft Protocol to address these points.
Accordingly, another option to consider is to adopt the approach taken by ARIPO’s existing Protocols, the Harare Protocol on Patents and Industrial Designs as well as the Banjul Protocol on Marks. These instruments harmonize the filing and examination procedures with the ARIPO Secretariat processing applications with regard to patents, utility models, industrial design and trademarks. However, under these instruments governments reserve the right to reject the grant of intellectual property with regard to its territory. In addition, national law governs the substantive rights (extent of rights to be enjoyed by the right holder, exceptions to such rights, revocation, cancellation, issuance of compulsory license, etc). Thus existing ARIPO Protocols do harmonize certain aspects of intellectual property but also allows governments to retain their sovereignty and significant flexibility in the design and implementation of intellectual property legislation at the national level.
In this way every government of ARIPO is free to adopt national legislation that is appropriate to its national conditions and realities, including a more practical and realistic provision with regard to farmers’ rights.
It is worth noting that this option was considered favorably by the 13th session of the ARIPO Council of Ministers in Ghana in 2011 but does not seem to have received sufficient attention or given due regard presumably because the only objective of the ARIPO Secretariat appears to be to join UPOV 1991 irrespective of the suitability of the Draft Protocol for the ARIPO region.
Alternative Sui Generis PVP Regimes
Proponents of UPOV 1991 often argue that only the UPOV 1991 model with its restrictive provisions for saving, exchanging and selling seeds/propagating material works in the interests of commercial breeders. However, available evidence suggests that this is not the case.
For instance, in the case of Kenya, the growth of its cut flower industry began more than a decade before it became a member of UPOV 1978. Its Plant Breeders Act adopted in 1972 and which was applicable until 2013, was never in compliance with the provisions of UPOV 1991 and neither did it include the farmer rights’ restrictions contained in the Draft Protocol. This suggests that it is unnecessary to adopt the restrictive UPOV 1991 for an effective plant variety protection system.
Another case is that of Malaysia’s PVP legislation which allows for the exchange of seeds/propagating material among small scale farmers and this has not deterred foreign applicants, which account for 44% of the total applications. Another example is that of India which in its PVP legislation allows farmers “to save, use, sow, resow, exchange, share or sell farm produce including seed of a variety protected under the Act in the same manner as … entitled to before the coming into force of this Act. Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.” Between 2007 and 2014, India had a total of 6310 PVP applications and 31% of PVP titles were issued to non-residents.
A number of developing countries such as Brazil and China are also not members of UPOV 1991 but of UPOV 1978 which adopts a more flexible approach to farmers’ rights and in particular allows non-commercial uses of protected varieties.
It is apparent that the restrictions imposed on farmers’ freedom to save, use, exchange and sell seeds/propagating material are unjustified, in particular if the objective is to facilitate access by farmers to improved varieties, to improve livelihoods and food security.
[The author thanks Francois Meienberg of Berne Declaration for his comments and inputs.]
(1) Guidance for the Preparation of Laws Based on the 1991 Act of the UPOV Convention, adopted by the UPOV Council on 24th October 2013. See http://www.upov.int/edocs/infdocs/en/upov_inf_6_3.pdf
(2) Guidance for the Preparation of Laws Based on the 1991 Act of the UPOV Convention, adopted by the UPOV Council on 24th October 2013. See http://www.upov.int/edocs/infdocs/en/upov_inf_6_3.pdf
(3) See UPOV document C(Extr.)/22/2 available at http://www.upov.int/edocs/mdocs/upov/en/c_extr/22/c_extr_22_2.pdf
(5) EC Council Regulation (EC) No 2100/94 on Community Plant Variety Rights
(7) Berne Declaration, Owning Seeds, Accessing Food. A Human Rights Impact Assessment of UPOV 1991 Based on Case Studies in Kenya, Peru and The Philippines, available at http://www.bernedeclaration.ch/fileadmin/files/documents/Saatgut/2014_07_10_Owning_Seed_-_Accessing_Food_report_def.pdf.
(8) Berne Declaration, Owning Seeds, Accessing Food. A Human Rights Impact Assessment of UPOV 1991 Based on Case Studies in Kenya, Peru and The Philippines, available at http://www.bernedeclaration.ch/fileadmin/files/documents/Saatgut/2014_07_10_Owning_Seed_-_Accessing_Food_report_def.pdf.
(9) N.P. Louwaars, et. al., (2005) Impacts of Strengthened Intellectual Property Rights Regimes on the Plant Breeding Industry in Developing Countries; A Synthesis of Five Case Studies;
(10) See http://www.iprcommission.org/