Correa 15 [Carlos M. Correa, Official Argentinian delegate to WIPO during negotiations on IPR and Director of the Univerty of Buenos Aires Programme on Science and Technology Policy and Management, October 2015, “Plant Variety Protection in Developing Countries: A Tool for Designing a Sui Generis Plant Variety Protection System: An Alternative to UPOV 1991, APBREBES, https://www.apbrebes.org/news/new-publication-plant-variety-protection-developing-countries-tool-designing-sui-generis-plant] // tara
Countries, even those that are WTO members, are not obliged to join UPOV nor to otherwise apply the standards set out by the UPOV Convention. For the purpose of conforming to the commitments made under the TRIPS Agreement, they can implement other sui generis options which are more suitable to their needs and supportive of small-scale farmers who account for the largest part of food production and employment in many developing countries and of national policies on agricultural development and food security.
While UPOV provides a model of protection focused on breeders' commercial interests, the Convention on Biological Diversity (CBD) and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization, as well as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), include elements reflecting other interests, notably the conservation of biodiversity, the sustainable use of genetic resources, and the fair and equitable sharing of the benefits arising from their exploitation. Since PVP legislation concerns exploitation of plant genetic resources, a sui generis regime on plant varieties should be designed in a manner that is supportive of and coherent with the objectives and elements of these international instruments.
Developing countries are often exposed to arguments about the potential benefits of joining UPOV 1991. In addition to the mentioned pressures and obligations under FTAs, these countries have been constrained by limited expertise, institutional capacity and experience in designing regimes adequate to their realities. However, based on an inclusive process of continual engagement with relevant stakeholders, including farmers, parliamentarians and government agencies, such regimes can be developed and implemented.
This working paper offers a tool to design an alternative to a UPOV-type regime of PVP, one that is suitable to the seed supply and agricultural systems prevailing in developing countries. The proposed sui generis regime is articulated on the basis of three categories of plant varieties: (i) 'new uniform plant varieties'; (ii) 'new farmer and other heterogeneous varieties'; and (iii) 'traditional farmers' varieties'.
In the proposed model provisions, new uniform plant varieties are subject to a regime close to UPOV 1978, whereunder the NDUS (novelty, distinctness, uniformity and stability) requirements for the granting of breeders' rights are applicable and on registration, breeders obtain an exclusive right. This means commercial use of the propagating material of the new uniform plant variety would require prior authorization of the right holder, subject to certain exceptions.
New farmer and other heterogeneous varieties should also be registered but different requirements would apply (novelty, distinctness and identifiability). Right holders would have a remuneration right only (not 'exclusive rights'), that is, the proposed regime would not restrict commercial exploitation of the propagating materials of these varieties; however, it will require payment of remuneration (to individual farmers, farming communities or breeders that registered that variety) when such exploitation takes place. Thus, the regime essentially aims at preventing the misappropriation of varieties developed or evolved by farmers and farmers' communities, as well as of other heterogeneous varieties developed by breeders, including in public research institutions.
Commercial exploitation of the propagating material of traditional farmers' varieties would also give rise to a right to remuneration, but payable to a Seed Fund. The only requirement for this right to arise would be 'identifiability' of a variety; registration would not be needed.
Importantly, in recognition of the crucial role that small farmers play in the production of food in developing countries, the proposed sui generis regime exempts them from any obligation in connection with the categories of plant varieties mentioned, thereby fully safeguarding the right of small-scale farmers to freely save, use, exchange and sell seeds/propagating material. Other exceptions, consistent with the concept of Farmers' Rights, are also contemplated for other farmers.
The proposed sui generis regime also suggests the establishment of a Seed Fund which will collect remuneration from the commercial exploitation of traditional farmers' varieties and a benefit-sharing contribution when a new uniform plant variety is registered. Income from the Seed Fund will be used to support the conservation and sustainable use of plant genetic resources, particularly on-farm conservation and community seed banks, as well as to implement benefit sharing for relevant farmers and farming communities.
The proposed sui generis regime is an attempt to, inter alia, attain a right balance between breeders' rights and those of farmers and the society at large; ensure that farmers' varieties and those developed by public research and breeding institutions are not misappropriated; allow breeders to recoup their investments in the development of new varieties; expand the use of new varieties suitable to the conditions in the country, taking into account particularly the needs of small-scale farmers; support national policies of conservation and sustainable use of plant biodiversity for food and agriculture, as well as compliance with obligations under the CBD, the Nagoya Protocol and the ITPGRFA; preserve associated traditional knowledge and ensure the permanent adaptation of seeds to the evolution of agricultural ecosystems and food security; and respect, protect and fulfil human rights obligations.