African Regional Plant Variety Protection Draft Legislation Raises Protest
By Catherine Saez, Intellectual Property Watch on 05/04/2013 @ 4:10 pm
A draft protocol for the protection of new varieties of plants proposed by an inter-governmental African regional economic community is provoking the ire of civil society concerned about the potential impact of the protocol on small farmers, and the lack of consultation of farmers.
The Southern African Development Community (SADC ) is working on a protocol for the protection of new varieties, which civil society says is modelled after the last version (1991) of the International Convention for the Protection of New Varieties of Plants (UPOV ).
The SADC gathers 15 member states: Angola, Botswana, Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe. Established in 1992, the SADC “is committed to regional integration and poverty eradication within Southern Africa through economic development and ensuring peace and security,” according to their website .
The draft protocol  [pdf] builds on “the need to have an effective sui generis system of intellectual property protection of new varieties that meets the requirements of Article 27.3(b) of the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.”
On 2 April, over 80 civil society groups, from Africa and elsewhere, including the African Biodiversity Network, Biowatch South Africa, the Third World Network, the Berne Declaration, Southeast Asia Regional Initiatives for Community Empowerment (SEARICE), and the German Campaign against Biopiracy, provided a submission  [pdf] expressing strong concerns about the draft protocol.
According to the draft protocol, plant breeders’ rights “in the region will allow farmers access to a wide range of improved varieties to contribute to the attainment of the regional goal of economic development and food security.”
The civil society groups have countered that the TRIPS agreement “allows its members to develop an ‘effective sui generis” system for plant variety protection (PVP). The rationale for the flexibility is to allow governments the freedom to adopt a PVP system that is tailored to accommodate the specificities of local agricultural systems.”
Restriction on Farmers’ Rights?
The civil society groups said that the protocol would not develop a suitable regime to the needs of SADC members states and their farmers. “The draft Protocol is modeled after the 1991 Act of the Convention for the Protection for New Varieties of Plants (UPOV 1991 ). This Convention was developed by industrialised countries to address their own needs, and does not reflect the concerns and conditions of African nations,” they said.
According to the submission, under the SADC protocol, “the unauthorized sale of seeds stored after harvesting a crop grown from the seeds of a protected variety may become forbidden.” However, some 80 percent of all seed used in Africa comes from the informal seed systems, they said, and this number is close to 100 percent for “many crops.”
“Farmers rely heavily on farm saved seed, exchanges with relatives and neighbours, bartering with other farmers or local markets to access seeds. Reliance on informal seed sources is independent of whether farmers cultivate local or modern varieties,” they said. In practice, “when farmers sell part of their harvest in markets, they do not keep the product of protected seeds separate from that of farm seeds,” they added.
Relation to International Seed Treaty
According to the civil society groups, most of the SADC member states are parties to the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), and “thus under an obligation to develop and maintain policies and measures that promote and protect the development and maintenance of plant genetic resources diversity as well as Farmers’ Rights.”
If the protocol is adopted, it will be “binding on all member states to domesticate its provisions” in their national laws and “it will be a regional legal instrument,” one of the signatories told Intellectual Property Watch.
The ITPGRFA Article 9 on farmers’ rights, which says that “each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers’ Rights,” also stipulates in its 3rd paragraph that “Nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate.”
According to a source at the ITPGRFA, the treaty is a legally binding instrument but despite the fact that it recognises the contribution of farmers, the responsibility of realising farmers’ rights remains with national governments. The question of saving, exchanging and selling farm-saved seed is of particular importance in Africa, he told Intellectual Property Watch, as the majority of farmers use local seeds and exchange material every day. One solution, he said, would be to acknowledge farmers’ rights in the draft protocol, the source said.
Protocol Goes Beyond UPOV 91, Groups Say
The UPOV 91 convention includes, in Article 15 on “Exceptions to the Breeder’s Right,” an optional exception that provides that “each Contracting Party may, within reasonable limits … restrict the breeder’s right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings…”
According to the civil society groups, the farmers’ exception in the draft protocol is limited in scope as it “only allows an exception for subsistence farmers.” The groups interpret this provision as describing situations where farm saved seed is for the survival of the farmer,” which makes it “even more restrictive than the exception found in UPOV 1991.”
Other reasons for concerns for civil society are the scope and the length of protection. According to them, while UPOV 1991 requires new members to provide protection to at least 15 plant genera and species for the first 10 years, the draft protocol indicates that the framework would cover all plant genera and species and does not provide for any transition period.
The length of protection, which is 25 years for trees and vines and 20 years for the other species is denounced as “excessively long,” in particular as “most SADC members have never had a PVP legislation.”
The signatories are calling for SADC member states to reject the draft protocol, and to “conduct independent and participatory impact assessments to assess the impact such a PVP system will have on small-scale farmers and rural communities, the right to food, livelihoods, crop diversity etc., in order to inform the process of developing a plant variety protection system for the region.” They also asked that consultations be undertaken with farmers, farmer movements and civil society organisations working in the agricultural area before further work on the draft protocol.
A number of protocols  have been agreed upon by SADC members. The SADC considers those protocols as instruments providing the community codes of procedure and practice on various issues. According to the website, “a protocol is a legally binding document committing Member States to the objectives and specific procedures stated within it.” In order for a protocol to enter into force, it has to be ratified or signed by two thirds of the member states, it said.
Variety Protection Meets Resistance in Developing Countries; Consultations
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