UPOV is the Union for the Protection of New Varieties of Plants, an intergovernmental organisation based in Geneva, Switzerland. The UPOV Convention gives exclusive patent-like protection to corporate plant breeders. This means that companies like Monsanto and Novartis are allowed to extract fees from farmers and other breeders who want to use new seeds. Protests against this are mounting from India to the Philippines.

By an OIF* Team

May 1999

The World Trade Organisation (WTO) sponsored a meeting in Bangkok, Thailand on 18-19 March which aims to push Asian governments into enacting patent-like laws over basic food and export crops. Organisations representing farmers and rural communities who will be adversely affected by such laws were denied participation in the discussion.

The meeting was sponsored by the Union for the Protection of New Varieties of Plants (UPOV), an intergovernmental organisation based in Geneva, Switzerland, with active support from the WTO and the World Intellectual Property Organisation. Government representatives from India, Indonesia, Pakistan, the Philippines, South Korea and Thailand attended, alongside industry leaders from Europe and North America.

The meeting's agenda was to discuss how Asian countries are planning to implement the biodiversity provisions of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). TRIPs requires developing countries to grant monopoly rights over new varieties of plants before 1 January 2000, either through patenting or sui generis (special) laws.

'UPOV is here in Bangkok trying to sell itself as the best solution for governments to fulfil their TRIPs obligations in Asia,' says Witoon Lianchamroon of BIOTHAI, a multisectoral group working closely with Thailand's Forum of the Poor and Alternative Agriculture Network.

Lianchamroon added: 'However, the UPOV system completely overrides farmers' rights and Thai communities cannot accept it.' BIOTHAI sought permission for farmers' groups to participate in the discussion, but this was flatly rejected.

A Patent-like System

The UPOV Convention gives exclusive patent-like protection to corporate plant breeders. This means that companies like Monsanto and Novartis are allowed to extract fees from farmers and other breeders who want to use new seeds. The system was created by industrialised countries back in 1961 as an 'alternative' to patenting. However, each revision of the Convention blurs this distinction.

UPOV has been trying to get Asian governments to adopt its law for many years, but national scientists have resisted it. They fear that transnational corporations will be the ones to benefit. Today, farmers and non-governmental organisations (NGOs), as well as indigenous communities outraged by 'biopiracy', are waging a frontline battle against any form of intellectual property on life.

UPOV is No Option

The WTO is lending support to the concerted campaign of UPOV, the US government and the $23-billion commercial seed industry to force plant breeders' rights legislation as the only option for developing countries.

This is angering many agencies working to strengthen food security throughout Asia, because UPOV would legally restrict farmers' rights to manage and benefit from biodiversity.

'The UPOV option is not suitable for India,' says Ashish Kothari of Kalpavriksh, a not-for-profit organisation in Pune which helped draft India's Biodiversity Act. 'It only protects the interests of the formal seed sector, ignoring the interests and rights of millions of farmers who have been breeding and developing seeds for thousands of years. UPOV would sharply accelerate genetic erosion in India.'

Binu Thomas of ActionAid India's National Food Rights Campaign, operating from Bangalore, concurs. 'Transnational corporations (TNCs) spend millions of dollars developing a few new plant varieties which they then have to get planted on millions of hectares to recoup their investment costs. Monopoly rights, like UPOV, fast-track this profit-seeking exercise for big TNCs but at the expense of the farmer's capacity to feed his or her own family. Because the farmers legally lose control over the seed in this system. They're forced to pay for inappropriate research like genetic engineering. That's very threatening to a country like India.'

The spectre of monopolies on biodiversity worry many sectors in Indonesia as well. Since the late 1980s, rice production has been dominated there by one single variety (IR 64), which has Indonesia in a state of severe food vulnerability.

Local NGOs have been trying to help farmers broaden their options, while the government imports five million tonnes of rice a year. The introduction of private monopoly rights for breeders could destabilise the situation even further.

'The Indonesian government has been doing little to face up to the real meaning of WTO-TRIPs,' explains Riza Tjahjadi of PAN Indonesia. 'It revised the patent law in 1997 to make plant varieties patentable, but it has not enacted it yet. In the meantime, the sui generis option is being ignored.' According to Tjahjadi, 'any sui generis system for Indonesia would have to be based on farmers' rights. UPOV only protects industry's rights.'

A Moratorium on TRIPs

The biodiversity clause of TRIPs, Article 27.3(b), is so controversial that when governments signed it at the closing of the GATT Uruguay Round in 1994, they did so under the proviso that they would review it in 1999 - one year before developing countries actually have to implement it.

According to Cecilia Oh of Third World Network, based in Penang, 'The pressure bearing down on developing countries to join UPOV as a means of fulfilling TRIPs Article 27.3 (b) is an attempt to sidestep and weaken the review process at WTO.'

She points out that, 'The ASEAN group in the TRIPs Council has requested that WTO conduct a serious and substantive review of the provision of Article 27.3 (b) itself. However, countries like the US want to reduce the review to a meaningless exchange of information about implementation.'

Renee Vellve from GRAIN's office in the Philippines adds, 'In Africa, both the Organisation for African Unity and a grouping of Southern and Eastern African trade negotiators are also pushing for a complete review of TRIPs Article 27.3 (b). Their main concern is that systems such as as patenting or UPOV fail to recognise the collective rights of local communities to genetic resources and traditional knowledge, and therefore foster biopiracy. African governments want to secure the sovereign right of nations to exclude biodiversity from TRIPs.'

Not only governments, but the people who stand to be most affected, are agitating for a real challenge to TRIPs before its 'life patenting' clause is implemented in Asia. Recently, 7,000 Filipino farmers publicly demonstrated their opposition to TRIPs in Negros, central Philippines.

With support from groups like MASIPAG - a national farmer-scientist partnership helping farmers in their own breeding work - and the Philippine Greens, debates and mobilisations have been organised throughout the country to examine the options for small-scale food producers. 'Biodiversity should be taken out of TRIPs,' MASIPAG farmers contend.

'Farmers manage the country's genetic resources as the peoples' resource. We are innovators, too. Intellectual property rights on seeds are anti-farmer, anti-biodiversity and immoral,' they say.

The tension is growing perceptibly. In April, one trade official in Europe, who goes unnamed, described the TRIPs Review as '1999's MAI'. This is a haunting reference to the way public opposition sank the Multilateral Agreement on Investment last year. And we pray he's right.

In the meantime, many groups in Asia might agree with the position articulated by Third World Network: 'Developing countries should call for a moratorium on the implementation of Article 27.3 (b) before 1999 runs out. Not until a substantive review - the terms of which must be openly and transparently determined, and agreed upon by the South - is conducted should developing countries implement Article 27.3 (b), much less consider joining UPOV.'

A moratorium would allow governments to consult the farmers on the best way forward. Which is not the way UPOV or the WTO apparently work. - Third World Network Features/Other India Features

* Other India Features