Ensnaring the South in UPOV net?

by GRAIN

Barcelona, May 25 -- As the developing countries are grappling with the problems of review and implementation of the WTO provisions on plant varieties protection (TRIPS: Art.27.3) for an "effective sui generis system", and issues of patenting of GMOs, bio-safety and bio-diversity, the WIPO-administered UPOV convention, appears to be engaged in ensnaring developing countries into joining UPOV-1991 as the best option.

In conjunction with the World Trade Organization and the World Intellectual Property Organization, and their technical cooperation activities, including regional seminars (from which NGOS are excluded), UPOV is presenting the accession to its 1991 Convention as the best legal option to satisfy the requirements of the WTO/TRIPS Agreement for protection of plant varieties.

Governments, some still in the process of seeking accession to the WTO, are even led to believe that they have to become Members of UPOV in order to be Members of WTO. And some of the least developed countries (LDCs) in Africa, who have actually time till at least 2006 to make their choice, have been hustled into joining the UPOV as something that needs to be done now.

The Union for the Protection of New Plant Varieties (UPOV), one of the intellectual/industrial property Conventions grouped under the umbrella of the World Intellectual Property Organization (WIPO), was created in 1961 in Europe to give plant breeders a legal monopoly over seeds and allow them to collect bigger profits from genetic innovations. It was specifically designed to promote industrial agriculture in industrial countries through a series of fixed requirements. The system actually does nothing to protect plant varieties. Instead, it gives patent-like rights to plant breeders, protecting them, and their market shares.

There are several serious problems associated with IPRs over plant varieties, particularly the UPOV Convention itself. Until recently, its membership was confined to industrialised countries. But in the last couple of years, there has been a flurry of countries falling into its net - some 44 including 14 from the South: Argentina, Australia, Austria, Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, China, Colombia, Czech Republic, Denmark, Ecuador, Finland, France, Germany, Hungary, Ireland, Israel, Italy, Japan, Kenya, Mexico, Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Portugal, Republic of Moldova, Russian Federation, Slovakia, South Africa, Spain, Sweden, Switzerland, Trinidad and Tobago, United Kingdom, United States of America, Ukraine and Uruguay.

The reason for this is WTO's controversial agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS), and in particular its Art. 27.3. This requires all member states to enforce intellectual property laws on micro-organisms and plant varieties. Micro-organisms must be patentable. Plant varieties must either be protected under patent laws, or an "effective sui generis system" or both. TRIPS provides no definition of what such a system is nor what would make it effective. Yet developing countries are obligated to put such systems in place by the end of this year - if they choose this as an alternative to patenting - and if they wish to avoid sanctions from other WTO members.

"Sui generis" simply means special or unique, different from something else: in this case, different from the patent system. Nowhere does TRIPS say that UPOV's plant variety protection scheme is appropriate, effective or even desirable as a sui generis system for WTO's purposes. Critics argue that UPOV can hardly be considered "sui generis" since it virtually amounts to a watered-down patent system for plant breeders.

Nevertheless, UPOV is lobbying hard for the insertion of a reference to UPOV in the TRIPS Agreement as "the" effective sui generis legislation - meaning that all WTO members would be forced to implement it. As if this were not enough, the WIPO secretariat and that of the WTO have joined forces with UPOV to push developing countries into adopting UPOV-compliant legislation this year.

The WTO's involvement in this campaign is particularly alarming. By openly endorsing the campaign, the WTO secretariat has situated itself in one camp: the one championing UPOV as sui generis.

This is making South governments fume, since WTO secretariat's role is not to interpret what an effective sui generis system is (or for that matter any part of the WTO agreements). The right of interpretation belongs to the members of the WTO of which TRIPS is a part.

Industrial countries and large corporations are also lobbying Southern countries to adopt UPOV. They are not particularly great fans of PVP (plant varieties protection) as a legal system of IPR protection. But they know that getting the South to accept PVP is just the first step towards getting it to accept full-fledged patents on life forms. That is the real goal of the forces which pushed IPRs onto the world's trade agenda - where it doesn't belong - in the first place!

All the talk about how UPOV is so well adapted to agriculture is merely hidden bait to get governments in the South psychologically prepared for the expansion of Northern TNCs' IPRs over biodiversity.

For well over three decades, UPOV officials have been travelling the world to enlist new members from the South into their club. Until TRIPS came around, they had remarkably little success: in January 1995, when TRIPS came into force, UPOV membership comprised just 27 countries, all but three of them industrialised countries.

But, thanks to the confusion created by TRIPS, by May 1999, membership had soared to 43, 11 of them from developing countries. A number of the latter hastily signed UPOV's 1978 Convention before the doors were closed to it in April 1999. That month alone saw Bolivia, China, Kenya, Brazil and Panama bloat UPOV's ranks. Officials in these countries felt that, given the choice between the 1978 treaty of UPOV and the 1991 downgrade, the 1978 Convention was the lesser of two evils. Nicaragua and Zimbabwe just missed UPOV-78's April deadline and have requested an extension. When Nicaragua's parliament asked the government what the sudden rush was, it was told that joining UPOV was necessary to escape WTO trade sanctions. When the parliament asked which sanctions, knowing that UPOV is not part of WTO, the government bureaucrats had no answers.

UPOV's campaign to absorb new members received yet another serious boost when the WTO and WIPO secretariats decided to join hand and, under the guise of technical assistance, began a world tour. From early this year they began a series of joint seminars aimed at pressuring developing countries into adopting UPOV-type laws, or joining the Union, as compliance with TRIPS Article 27.3(b).

The series was kicked off with a symposium in Geneva for all developing countries in February, followed by regional and subregional workshops: for Asia-Pacific (Bangkok) in March, for the Arab world (Cairo) in early May and for Eastern Africa (Nairobi) just after, with francophone Africa signing the Convention en bloc somewhere in between. Farmers organisations and NGOs have been barred from these workshops but different participants have described them as "lobby" exercises, falling just short of "bribery." As one workshop participant put it: "UPOV members have been very successful in confusing participants. Many think the two [UPOV and sui generis] are one and the same. Some seem to believe they must join UPOV to be a member of WTO."

In Africa, the pressure tactics have been particularly gruesome. Last February, UPOV forces succeeded in making eleven of some of the poorest countries in Africa sign the 1991 UPOV Convention to fulfil their TRIPS obligations. These countries - which, along with a few other developing countries, are members of the French- speaking African Organisation of Intellectual Property or OAPI. Within the WTO, they have special status as least-developed countries (LDCs), and do not have to implement TRIPS 27.3(b) until January 1, 2006.

Somehow, they were convinced that they should throw away the seven years of legal and political freedom ahead of them to work out the most appropriate solution to support agricultural innovation and simply fall in line with the monopolistic UPOV regime.

Pushing the OAPI members into UPOV's clutches is seen by some as a deliberate move to undermine more pro-farmer legislative processes underway in Africa. The OAPI decision, which still needs to be ratified in each member country, clashes head-on with the determination of the Organisation of African Unity (OAU) to develop sui generis systems that ensure the protection and development of community rights as a cornerstone of sustainable development in Africa. The OAU Scientific, Technical and Research Commission's Dr Johnson Ekpere reacted strongly to francophone Africa's unexpected embrace of UPOV. According to Ekpere, "Most developing countries are not members of UPOV because it does not address their needs... The UPOV system is predicated on the philosophy of industrialised economies where it was conceived with the objective of protecting the investment and interest of large and influential seed companies who employed plant breeders. The situation is quite different presently in developing countries where the players in the seed sector and major seed producers are small farmers and farmers' cooperatives. Consequently, the law should appropriately focus on protecting the farmer ... as a producer and consumer of new plant varieties."

This makes a lot of sense, if we look around Africa. Until now, Kenya, South Africa and Zimbabwe have been the only African countries to offer plant variety protection - basically UPOV-78 type of systems - to breeders. According to one South African government official who firmly believes in UPOV, stimulating the creation of "new and better varieties" through plant breeders' rights is "the only way in which ever-growing populations can be fed."

New and better varieties are a fine objective if they help Kenyans, who are dealing with famine in various parts of the country right now, feed themselves. But is PVP - or UPOV for that matter - helping them get there? The answer is a resounding "NO."

Kenya adopted its PVP law in 1975. By May 1999, of the 140 PVP applications approved, only one was on a food crop: a variety of green bean, which Kenya packs on an airplane to Europe. More than 90% of the PVP certificates were for flowers, while the rest went to coffee, sugarcane and barley for the beer industry.

Governments might need to study more closely the evidence of how this kind of IPR system helps "ever-growing populations to be fed." Well aware of the complexities of trying to develop a more equitable system, the OAU Heads of State agreed in Ouagadougou

last June that Africa's compliance with TRIPS has to put at the top of the agenda the interests of Africa's majority - over 20 million small scale farmers on whom fathomless foreign aid and inappropriate technology have been dumped. To achieve this, the OAU set out a step by step path:

1. Construct a viable response to the sui generis option in TRIPS in the form of model legislation which takes account of Africa's commitments to the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources and its promising recognition of Farmers Rights;

2. Adopt a Common African Position for the 1999 TRIPS Review;

3. Forge a South-wide alliance for the TRIPS review so that implementation of this agreement does not sacrifice the gains developing countries have made in terms of improving their systems to control and benefit from the biological diversity generated through a far greater history of innovation than the industrialised countries can speak of.

OAU governments seem to understand well that if plant breeding hinges on farming and vice versa, then any system to protect plant varieties or promote technology under TRIPS has to reckon with Farmers Rights. There has been international consensus on Farmers Rights, which recognise the contribution of farmers to plant breeding, since the 1980s. They simply haven't materialised yet since Northern governments don't want Farmers Right to restrict access to germplasm or require payments to farmers. In this context, UPOV is not a valid sui generis option for TRIPS compliance because it's utterly ineffective. UPOV-based systems provide nothing for farmers - neither rights, nor nutritious crops, if Kenya's example is anything to go by.

Zambian experts have noted that under the UPOV Convention, "it might be difficult for Zambia to achieve the goals of integrating the formal and informal seed supply systems which is the current government direction. It is further feared that with this Act, government's commitment to the CBD might be compromised." Instead, the Lusaka government is focusing on "a well-designed and effective sui generis system which will be broad-based as to recognise the rights of farmers and communities at large, who have over the years conserved various plants and animals."

Zimbabwe is also considering joining UPOV, if its request for an extension of the deadline to sign the 1978 treaty, like Nicaragua's, is approved. But Zimbabwe is concerned that "it does not cover other aspects of protection that Zimbabwe needs, particularly regarding medicinal and industrial wild plants." In the meantime, it is now working on its own sui generis legislation to this end. Morocco has recently adopted a PVP law while Algeria, Tunisia, Egypt, Tanzania and Uganda are preparing their own. Whether the OAU process can help them avoid the worst of UPOV and fight for an exception on biodiversity under TRIPS remains to be seen.

In other parts of the world, opposition to UPOV as the sui generis solution to comply with TRIPS is also gathering strength. Civil society organisation representing NGOs, farmers and scientists from five Asian countries protested the UPOV/WIPO/WTO meeting in Thailand, last March, having been refused entry to it. In their joint statement, they accused the WTO of "lending support to the concerted campaign of UPOV, the US government and the $30 billion commercial seed industry to force plant breeder's rights legislation as the only option for developing countries."

According to Witoon Lianchamroon of BIOTHAI, "the UPOV system completely overrides Farmers' Rights and Thai communities cannot accept it." Ashish Kothari of Kalpavriksh, who is a member of the drafting committee of India's Biodiversity Act, added that "The UPOV option is not suitable for India ... [because it ignores] the interests and rights of millions of farmers who have been breeding and developing seeds for thousands of years." According to Binu Thomas of ActionAid India, "Transnational corporations spend millions of dollars developing a few new plant varieties which they then have to get planted in millions of hectares to recoup their investment costs. Monopoly rights, like UPOV, fast- track this profit-seeking exercise for big corporations at the expense of the farmer's capacity to feed his or her own family."

Some delegates at the meeting had similar perspectives to share. As the Fijian representative put it, "The new UPOV stance of 1991 seems to provide exclusive protection of commercial plant breeders and multinational companies, with the total exclusion of farmers, indigenous custodians and all others." This poses a real problem because Fiji is very eager to see farmers and indigenous peoples' rights safeguarded and advanced, especially since the country has been subject to biopiracy and overexploitation of its unique kava plant.

The Thais were acutely bothered by the discussions. "I'm so worried, because more and more nations are joining UPOV, the essence of sui generis will be changed in favour of UPOV (...). It wasn't a good sign either that the WTO co-organised this workshop," one Kasetart University official said. Thailand has been working hard to draw up sui generis legislation that really balances the interests of Thai farmers with those of TNC seed companies. That is why Thailand cannot accept a reduction of the sui generis option to something as narrow and biased as UPOV. "UPOV is a type of sui generis but not sui generis - don't be brainwashed like others," another Thai academic cried out after the workshop, calling for "Third World unity" against UPOV's campaign to co-opt TRIPS.

In the Philippines, resistance to UPOV and to any form of IPR regime over life forms has been strong. Back in 1994 when Barry Greengrass, Vice-Secretary General of UPOV, visited the islands to promote his wares, Filipino scientists and administrators questioned him hard as to whether compliance with TRIPS meant they had to adopt a UPOV type of law. He said "no" at that time, saying "it was possible (but difficult!) to imagine having a national system of protection that did not conform with UPOV but would still be considered an effective sui generis system, for the purposes of [WTO]." He seems to have changed his mind - but the Philippine government agency responsible for this part of TRIPS has not.

The Philippine Department of Agriculture (DA) has finalised its position on the TRIPS review, which holds that countries do not need to adopt legislation in conformity with UPOV, nor join the Union, should they chose the sui generis option. The government is working out its own sui generis system, like Thailand and India.

However, that doesn't the resolve the overriding problem of conflicts, ambiguities and uncertainties that all developing countries are facing. As the Philippine DA's position paper says, "Issues relating to breeders' rights, farmers' rights and community rights have yet to be entirely understood in the discussions at the UPOV and the WTO. The WTO Agreements are currently silent on the issue of how to protect and promote the rights of indigenous, agricultural and other local communities. This concern is serious and deserves discussion and elaboration alongside any sui generis rights on plant varieties. The DA encourages the Philippine Mission in Geneva to include this matter as an integral part of the Philippines' position before the TRIPS Council review."

As a step forward, the Philippine government paper proposes that, "to further protect the rights of farmers and local communities, the review process should try to get life forms (plants and animals) and biodiversity (and indigenous knowledge) out of the jurisdiction of WTO."

This is the most clean-cut solution. No one disputes the value of stimulating innovation and technology development. What is under dispute is how best to do it and what kind of technology should be promoted, and how to reward it. Systems like patenting or UPOV take us towards greater control over food and farming by a few large corporations in the industrialised countries.

Rather than being forced to accept what they don't need, developing countries should use the 1999 review to stand up for what they want. If Asian countries support the Philippine position and OAU adopts a similar Common Position for Africa, then there is ample ground for the TRIPS Council session in July to put the real issues on the table. Rather than giving in to UPOV as a means of currying favour at the WTO, South governments should demand - as is their right - that biodiversity be removed from the legal reach of the WTO's intellectual property agreement.

They need to do this now, before they are forced to implement it. (SUNS4442)

(* GRAIN is a Barcelona-based international public-interest NGO specialising in biodiversity issues. The above is from the GRAIN publication, Seedling Vol. 16:2 <www.grain.org/publications/seedling.htm>)