Southern Africa for renegotiation of UPOV 1991

by Lewis Machipisa

Harare, March 23 -- Southern African countries are hesitant to ratify a convention which grants plant breeders Intellectual Property Rights (IPRs) over the trading of products for fear that the move will prevent small farmers from saving seeds for re-use.

In its current form, they say the 1991 International Convention for the Protection of New Varieties of Plants, known as the UPOV convention, gives too much rights to breeders and does not reward communities in which some of the plant varieties are endemic.

The southern African Development Community (SADC) -- which groups Angola, Botswana, the Democratic Republic of Congo (DRC), Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe -- wants to renegotiate the convention.

It wants new legislation delayed until the outcome of a review on the relationship between the Trade Related Aspects of Intellectual Property Rights (TRIPs), the UN bio-diversity convention and the UPOV convention. The review is expected to be completed later this year.

Edward Dalisto Zulu, seed systems expert at the Zambian Ministry of Agriculture, Food and Fisheries, says "Zambia has not yet joined UPOV as Zambians are a bit cautious and not very clear" about the convention. "We have seen the change from the 1978 convention to UPOV 1991 and we feel the 1991 convention is a bit stiffer in that it does not provide for the farmers' privileges," Zulu told IPS.

For example, Zulu fears that ratification will prevent small farmers -- who produce between 65 and 75 percent of food in Zambia -- from saving seeds for re-use. Zulu is attending a three-day Regional Workshop, on Intellectual Property Rights- Patents and the Implementation of Article 27.3 (b) of the TRIPs agreement of the World Trade Organisation, in the Zimbabwean capital of Harare, which winds up Wednesday.

Article 27.3 (b) of TRIPs allows members to exclude from patentability "plants and animals other than micro-organisms."

While under the TRIPS agreement, members are free to provide for additional IPRs or any other rights such as farmers' rights, indigenous rights which are not covered by the agreement, as long as they do not conflict with any obligations the agreement poses to other IPRs.

According to Joseph Gopo, Director-General of the Bio-Technology Research Institute of the Scientific and Industrial Research and Development Centre (SIRDC) in Zimbabwe, current patent laws are too general and do not give adequate protection. "Many plant varieties have been stolen and it's quite difficult to bring them back. What we are saying is let's stop this wanton stealing by foreign nationals," says Gopo.

"We feel that for Zimbabwe, there is a large sector that will not be covered by IPR. We think a system should protect indigenous knowledge. Our grandmothers knew about herbs that could treat diarrhoea but it was taken from them and nothing was paid to them," explains Gopo. "We want a system that will flow back to the discoverer. His or her traditional knowledge should be protected and paid for," Gopo said.

But an African consensus to restrict patenting of plant varieties by overseas companies was split early this month when 16 French- speaking African countries agreed to instead recommend the 1991

UPOV convention. The decision was made three weeks ago at a meeting of the Organisation Africaine de la proprit Intellectuelle (OAPI), the regional patent office for Francophone countries.

The Organisation of African Unity (OAU) had wanted countries to restrict patents of plant varieties until a continent-wide alternative system to patents had been developed.

"Namibia and many countries in the developing world would not draw much maximum benefits from a system of patenting plant varieties and bio-technological process and products," says Edward Tueutjiua Kamboua, deputy director, Registrar of Companies, Patents, Trade Marks and Designs in Namibia's ministry of Trade and Industry.

"By its very essence, patent rights are monopoly rights that are given to individuals and these individuals are from the developed world," Kamboua told IPS. "As such our indigenous bio-diversity is then surrendered by way of patent rights to people that are living in other countries."

For now, much of Africa lacks the bio-tech capacity. But Kamboua fears that when the continent catches up with the rest of the world, natural materials and gene pools that originate from the continent would be in possession of private hands and monopoly rights.

One such genetic material endemic only to Botswana and Namibia, the 'Devils Claw' found in the Kalahari desert and has medicinal value to treat rheumatism and cancerous tumours has been patented by a German.

"There are many others that are endemic to our areas and if these resources are relegated to the private domain, they would not benefit the public domain or the communities that even do physically dig out these roots for these people," says Kamboua. "A number of things that are endemic to our country that have medicinal values or industrial applications should not be exclusive, monopolistic. The communities should benefit and the sovereignty of the states must be respected. These countries should be able to benefit from the royalties if any patent, right is to be given out," he says.

Zulu agreed. He says, for their "forefathers to know that plant A has medicinal value, they must have done a lot of dangerous experiments whereby a lot of people died.... "Someone cannot just come from somewhere and take that information freely," he says.

Kambaou urge African countries to learn from the lessons of Brazil's rubber industry.

"Rubber trees and plantations were originally endemic to Brazil, but look at East Asia today. Rubber plantations are all over there," Kamboua says. "The gene for these plantations was taken from Brazil. What did Brazil get from it?...These are the kind of situations we are trying to forestall," says Kambaou.

The above article by the Inter Press Service appeared in the South- North Development Monitor (SUNS).