Sui generis law for plant varieties: preserving the knowledge and creativity of traditional breeders - a Third World view*

By Gurdial Singh Nijar

Draft (26 April 1999)

PART 1 : ASSAULT ON VALUES OF INDIGENOUS PEOPLES AND FARMING COMMUNITIES

Third World - no ownership over life forms

Third World societies - indigenous peoples and other farming communities - had no concept of ownership rights over life forms. In particular, no laws existed to grant exclusive ownership rights to traditional plant breeders for creating new plant varieties and crops. Indigenous peoples and farming communities worked on their fields, developing and innovating new crop varieties to respond to their climatic, soil, water, conditions and food needs. They innovated in a spirit of free exchange. Such innovations have fed the world - providing us the crops in their resilient and nutritional diversity.

Ownership for first time in industrialised countries : UPOV

The concept of owning plant varieties emerged for the first time in the 60s. A few industrialized countries set up an agreement amongst themselves - the Union for the Protection of New Varieties of Plants (UPOV) in 1961. States that became members were required to grant to commercial breeders ownership rights over modified varieties of plants.

UPOV revisions strengthen ownership of plant varieties

UPOV was revised in 1972, 1978 and 1991. The revisions have progressively strengthened the rights of commercial breeders. The 1991 revision allows for patents to be given in addition to plant breeder's rights (PBRs) for plant varieties. Ten years after joining, protection must be given to all plant genera and species unlike UPOV 78 which required protection for a limited number of varieties only.

UPOV '78 gave the breeder rights only in respect of commercial marketing, the offering for sale and the marketing of the reproductive or vegetative propagating material of the protected variety. UPOV '91 extends the scope to (1) the whole propagating material (and not just its reproductive or vegetative part), and, (2) to reproduction, conditioning for the purpose of propagation, offering for sale, exporting, importing and stocking for any of these purposes. Further, the breeder's monopoly rights extend now to the farmer's harvest as well as to the products from the harvest derived from the protected variety. UPOV '91 also extends the breeder's exclusive ownership rights to essentially derived varieties. This means that unless major changes are made to the genotype, the new variety will continue to belong to the owner of the protected variety. The right of farmers to save seeds for their own use is severely restricted. First, it requires the country to allow this and 'within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder. Secondly, the farmer must only use it for propagating purposes on his own holding. Finally, the prohibition extends to seeds that are essentially derived. This effectively ends farmers' traditional right and customary practice of saving, using, exchanging, seeds and sharing or selling, his farm produce.

TRIPS makes ownership mandatory globally

Now the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organisation (WTO) obliges all its members to provide for the protection of plant varieties either by patents or by an effective sui generis system or a combination of both. The US and the European Union indicate that adherence to UPOV will satisfy the requirements of this provision. Developing countries have until 1.1.2000 to fulfil their obligation. UPOV has intensified its 'campaign' to draw as many developing countries to its fold. There has been frantic activity on the part of some developing countries to join one or the other UPOV. Many tried to join the less restrictive '78 UPOV but the dateline had long since lapsed on 24.4.1998. Kenya managed to make it to the 78 UPOV, and deposited its instrument on 13th April 1999. In the course of a few days, there was a flurry of activity to join the '78 instrument. China, Kenya, Panama and Brazil joined. Standing in the wings to join are Zimbabwe, India and Nicaragua.

No need to join UPOV

The TRIPS agreement does not refer to UPOV in the provision dealing with the requirement to provide for the protection of plant varieties, although this Convention was the only instrument in existence at the time TRIPS was formulated. Countries are therefore clearly free to choose any sui generis system provided it is effective. This means no more than that it has to comply with the minimum standards set out by TRIPS.

Present system perpetuates inequity

Commercial breeders access for free the germplasms developed by Third World farmers, and develop varieties from them and then claim exclusive breeders' rights. The innovative activity of farmers is further hampered by giving breeders rights over 'essentially derived' varieties. This perpetuated the inequity between the source provider and the end rights holder even further.

PART 2 : Correcting the imbalance: need for rights regime for traditional breeders

There is a need therefore to restore the imbalance. The creativity of traditional breeders must be insulated from being usurped, marginalised and eventually extinguished by a system of breeders' rights which accords no respect, let alone recognition, of the knowledge systems and innovations of farmers and indigenous peoples in relation to crops and plants. The requirement imposed upon the developing world to provide a system of ownership rights in these areas is antithetical to 3rd World societies' values and cultural and social norms. It has become necessary now to insulate the practices and values of these communities and peoples by a formal recognition of these rights and practices and a commitment by the State to protect them as fundamental and free from expropriation. And at the same time the State should seek to reverse these impositions through TRIPS. The opportunity to do so exists as this year the subparagraph in TRIPS [ subparagraph (b) of Article 27(3)] is up for review.

In the meantime, States should enact a law which is compatible with, and accords recognition and protection of, the knowledge and creativity of indigenous peoples and farming communities in respect of plants and plant varieties.

The essence of the law is that any variety known to have been developed by, or essentially derived from, the knowledge of indigenous peoples or farming communities belongs to them. They have ownership rights over the variety. Any use of the variety for the creation of any 'new' varieties may only be done with their consent as owners. If the knowledge is in more than one community, then co-ownership rights accrue to all these communities. The consent of all co-owners is then necessary.

What happens to varieties developed from plants which are not known to have been ever developed by indigenous peoples and local farming communities? Then the following options are available:

1. it could be suggested that under the Convention on Biological Resources (CBD) the genetic resources belong to the State and the State decides whether or not to grant any rights in relation to these resources. Article 15(1) of the CBD gives States the authority to determine access to genetic resources on the basis of their sovereignty over their biological resources. This implies their rights over genetic resources as well and on this basis they exercise the aforesaid right.

2. under the provisions of Articles 7, 8, 27(2) and 30 of the TRIPS Agreement, States can for reasons therein set out - promoting the public interest in sectors of vital importance to the country's socio-economic and technological development, for example - restrict commercial breeders' rights if the grant of the right results in traditional farming practices. Most Third World countries have a large agricultural sector of small subsidence farmers which is critical importance to the economic well-being of the country. Even UPOV allows for restriction of the rights of commercial breeders in the public interest. Some countries, for example, Ecuador, accord constitutional status to Farmers' Rights.

In those cases where a claim is made for varieties not invested with the knowledge of indigenous peoples and local farming communities, and States are minded to grant breeder's rights, then the right given should not prejudice, nor be incompatible with, the practice of traditional farmers and the viability of the country's agricultural sector.

The essential elements of such a regime

The law should include the following essential elements:

1. Recognition of Rights

The law should recognise and protect the rights of traditional breeders over plant varieties developed by them - whether inter-generationally, collectively and for the social good or howsoever otherwise and for whatever purpose.

This right should extend to any variety essentially derived from the variety developed by traditional breeders.

The following provisions will have to be included in the law:

a. The State shall recognise and protect the rights of traditional breeders over their traditional varieties and land races.

b. The traditional breeder's prior informed consent must be obtained by any commercial breeder wishing to use the variety to develop other varieties.

c. This protection shall be extended to varieties that are essentially derived from varieties developed by traditional breeders.

1.2 The right should be recognised in accordance with the customs and practices of traditional breeders. This also means that there is no need to apply for the grant of the right. It follows that there will be no need to apply for, and obtain, registration. Further, proof of its existence can be established in a form or manner accepted by the traditional breeder's customary law, traditions and practices. This could include oral tradition. Finally, the customary practice of free exchange amongst communities shall not be affected.

Provisions to be included could be as follows

a. definition of knowledge : to include cultural and traditional practices of communities within which the knowledge is generated.

b. The right to the plant variety is recognised regardless of whether or not it is registered.

c. The right to the plant variety shall be established in a manner and form compatible with the culture, tradition and practices of the community.

d. Nothing in the law affects the right of traditional breeders to freely exchange the plant varieties amongst themselves provided no commercial use is intended.

2. Content of the Right

The right includes the following:

a. the right to save, reuse, and exchange seeds from whichever source;

b. the right to sell the harvest from whichever source;

c. the right over any distinct and identifiable variety wherever derived from.

3. Criteria for the right

a. for traditional breeders the test should be distinctiveness and identifiability of the variety.

In those situations referred to earlier, where a claim is made by commercial breeder in respect of a variety developed from a variety which is not invested with the knowledge of indigenous peoples and local farming communities and the State decides to grant such a right , the following elements may be included:

4. Criteria for the right

a. the test is : the variety shall be new, distinct, uniform and stable.

5. Scope of the right

The right should not extend beyond the production for purposes of commercial marketing, the offering for sale and the marketing, of the reproductive or vegetative propagating material as such of the variety.

In particular, the breeder's rights should not extend to the harvested crop of the traditional farmer growing the breeder's protected variety.

The concept of 'essentially derived variety' should be limited such that it does not impair or stifle innovation of traditional farmers.

Traditional farmers should be entitled to save, exchange, use their seeds and market their harvest from protected varieties.

6. No commercial plant breeders' rights shall be granted in the following situations (based on the provisions of the CBD and Articles 7, 8 and 27.2 of TRIPS and the 'public interest' element in Article 9 of UPOV 1978 and Article 19 of UPOV 1991) :

a. where biodiversity may be affected;

b. where the variety poses a possible hazard to the agricultural system and to human, animal and plant life or health, based on the precautionary principle;

c. where the variety does not possess the normal regenerative and reproductive capacity associated with the variety;

d. where the introduction of the variety may have an adverse socio-economic affect on the country or indigenous peoples and local communities;

e. where there are ethical reasons for rejecting the right.

7. The following exclusions/limitations to the breeder's rights should be provided for (permitted by Article 30 of TRIPS and Article 15 of UPOV 1991) :

a. acts done privately and for a non-commercial purpose;

b. use of the variety for research and experimentation not designed for commercial exploitation;

c. use of the variety for teaching purposes;

8. Compulsory licensing should be allowed in certain situations (permitted by Articles 30 and 31 read together with Article 8, 7 and 27.2 of TRIPS) :

a. where anti-competitive practices of the rights holder are identified;

b. where food sovereignty, food security or nutritional or health needs are affected;

c. where a high proportion of the plant variety offered for sale is being imported;

d. where the requirements of the farming community for propagating material of a particular variety are not met;

e. where it is considered important to promote the public interest for socioeconomic reasons and for developing indigenous and other technologies.

9. The breeder's right may be revoked if, after the grant, any of the reasons set out in paragraph 6 (i) -(e) above are found to apply.

10. "Parallel imports" of any varieties in respect of which rights have been granted shall be allowed. (This is permitted by Article 6 of TRIPS).

9. No patents shall be granted in respect of plants, plant varieties or any parts or modifications thereof.

10. There shall be a ban on any technology such as that which renders the seed infertile in the following generation or which switches on, or off, specific genes, or, multi-gene traits, by the application of an external catalyst.

PART 3 : Need for developing countries to clarify their right to include these elements in their national laws

Countries are obliged by the CBD to conserve and use sustainably use their biodiversity. Member States must ensure that the knowledge, innovations and practices of indigenous peoples and local communities - considered key to the attainment of these objectives, are respected, preserved and maintained [Article 8(j)]. Governments are also obliged by the CBD to protect customary use of bio-resources[Art 10(d)], to act according to national law to develop and use traditional and indigenous technologies[Art 18(4)], and to adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biological diversity[Art 11]. The cumulative effect of these provisions is to make it mandatory for Member States to enact a law recognising indigenous and local community knowledge systems. In any event, the knowledge, innovations and practices of farming communities must not be impaired in any way.

There cannot also be any grant of intellectual property rights to breeders if the grant of such rights may undermine the objectives of the CBD[Art 16(5)]. The provisions of the WTO should be supportive of the CBD. This is the view of the WTO's Committee on Trade and Environment. The European Commission also advocates for these two international treaties to be mutually supportive.

This requires that the review exercise required to be accomplished in 1999 of the sub-paragraph dealing with plant variety protection [Art 27(3)(b) of TRIPS] should clarify the right of countries to enact laws protective of the practices and creativity of traditional farmers. At the very least, a footnote to this effect should be added to the subparagraph. [A formulation of the proposed footnote is set out in Appendix 1.The WTO and its several Agreements are replete with footnotes clarifying the meaning or interpretation of its Articles.]

Appendix 1

A footnote that reads as follows be inserted to the text of Article 27(3)(b) of TRIPS at the end of the sentence requiring plant variety protection by patents or a sui generis system or a combination of both:

"This option allows Members to take measures including legislation which favour traditional breeders and allows them to claim rights over any distinct and identifiable varieties developed by them as well as those essentially derived from these varieties; and for the continuation of their traditional farming practices including the right to save, exchange and reuse seeds, and sell the harvest wheresoever derived from.

To further these objectives, as well as the matters set out in Articles 7, 8 and 27.2 of this Agreement, such measures/legislation may impose limitations on any rights given to commercial breeders.

Any limitations imposed as a result shall be deemed to satisfy the requirements of Article 30 and 31 of this Agreement.

Any measure taken or law enacted by Members to further this objective shall not be subject to the proviso set out in Article 27.2 of this Agreement."

(* Gurdial Singh Nijar is a senior practising lawyer in Malaysia and Legal Advisor to the Third World Network.)