International Union for the Protection of New Varieties of Plants


The International Union for the Protection of New Varieties of Plants or UPOV is a non-United Nations sui generis intergovernmental organization with headquarters in Geneva, Switzerland. The current Secretary-General of UPOV is Francis Gurry. The expression UPOV Convention also refers to one of the three international legal instruments that relate to the Union, namely the 1991 Act of the UPOV Convention, 1978 Act of the UPOV Convention and 1961 Act of the UPOV Convention with Amendments of 1972

Background

UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 and revised in 1972, 1978 and 1991. The objective of the Convention is the protection of new varieties of plants by an intellectual property right. By codifying intellectual property for plant breeders, UPOV aims to encourage the development of new varieties of plants for the benefit of society.
For plant breeders' rights to be granted, the new variety must meet four criteria under the rules established by UPOV:
  1. The new plant must be novel, which means that it must not have been previously marketed in the country where rights are applied for.
  2. The new plant must be distinct from other available varieties.
  3. The plants must display homogeneity.
  4. The trait or traits unique to the new variety must be stable so that the plant remains true to type after repeated cycles of propagation.
Protection can be obtained for a new plant variety however it has been obtained, e.g. through conventional breeding techniques or genetic engineering.

Members

As of October 2, 2015 the following 74 parties were members of UPOV: African Intellectual Property Organisation, Albania, Argentina, Australia, Austria, Azerbaijan, Belarus, Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, the People's Republic of China, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Estonia, European Union, Finland, France, Georgia, Germany, Guatemala, Hungary, Iceland, Ireland, Israel, Italy, Japan, Jordan, Kenya, Kyrgyzstan, Latvia, Lithuania, Mexico, Moldova, Morocco, the Netherlands, New Zealand, Nicaragua, North Macedonia, Norway, Oman, Panama, Paraguay, Peru, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Serbia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Turkey, Ukraine, the United Kingdom, the United States of America, Uruguay, Uzbekistan, and Viet Nam.
The membership to the different versions of the convention is shown below:
Party1961 Convention1978 Convention1991 ConventionComments
European Netherlands only

System of protection

The Convention defines both how the organization must be governed and run, and the basic concepts of plant variety protection that must be included in the domestic laws of the members of the Union. These concepts include:
In order to be granted breeder's rights, the variety in question must be shown to be new. This means that the plant variety cannot have previously been available for more than one year in the applicant's country, or for more than four years in any other country or territory. The variety must also be distinct, that is, easily distinguishable through certain characteristics from any other known variety. The other two criteria, uniformity and stability, mean that individual plants of the new variety must show no more variation in the relevant characteristics than one would naturally expect to see, and that future generations of the variety through various propagation means must continue to show the relevant distinguishing characteristics. The UPOV offers general guidelines for DUS testing.
A breeder can apply for rights for a new variety in any union member country, and can file in as many countries as desired without waiting for a result from previous applications. Protection only applies in the country in which it was granted, so there are no reciprocal protections unless otherwise agreed by the countries in question. There is a right of priority, and the application date of the first application filed in any country is the date used in determining priority.
The rights conferred to the breeder are similar to those of copyright in the United States, in that they protect both the breeder's financial interests in the variety and his recognition for achievement and labor in the breeding process. The breeder must authorize any actions taken in propagating the new variety, including selling and marketing, importing and exporting, keeping stock of, and reproducing. This means that the breeder can, for example, require a licensing fee for any company interested in reproducing his variety for sale. The breeder also has the right to name the new variety, based on certain guidelines that prevent the name from being deliberately misleading or too similar to another variety's name.
There are explicit exceptions to the rights of the breeder, known as the "breeder's exemption clause", that make it unnecessary to receive authorization for the use of a protected variety where those rights interfere in the use of the variety for a private individual's non-monetary benefit, or the use of the variety for further research. For example, the breeder's rights do not cover the use of the variety for subsistence farming, though they do cover the use of the variety for cash crop farming. Additionally, the breeder's authorization is not required to use a protected variety for experimental purposes, or for breeding other varieties, as long as the new varieties are not "essentially derivative" of the protected variety.
The Convention specifies that the breeder's right must be granted for at least 20 years from grant date, except in the case of varieties of trees or vines, in which case the duration must be at least 25 years.
Finally, there are provisions for how to negate granted breeders' rights if the rights are determined to be unfounded. That is, if it is discovered after the application has been granted that the variety is not actually novel or distinct, or if it is discovered to not be uniform or stable, the breeder's rights are nullified. In addition, if it is discovered that the person who applied for protection of the variety is not the actual breeder, the rights are nullified unless they can be transferred to the proper person. If it is discovered after a period of protection that the variety is no longer uniform and stable, the breeder's rights are canceled.

Genetically modified plant varieties

The UPOV has been updated several times to reflect changing technology and increased understanding of how plant variety intellectual property protection must work. The last revision was in 1991, and specifically mentioned genetic engineering only insofar as it is a method of creating variation. Under the UPOV Convention alone, genetically modified crops and the intellectual property rights granted to them are no different from the intellectual property rights granted for traditionally bred varieties. It is important to note that this necessarily includes the ability to use protected varieties for subsistence farming and for research.
In October 2004, two joint Symposia were held in Geneva with the World Intellectual Property Organization. These Symposia were the WIPO-UPOV Symposium on Intellectual Property Rights in Plant Biotechnology and the WIPO-UPOV Symposium on the Co-Existence of Patents and Plant Breeders’ Rights in the Promotion of Biotechnological Developments. No new policy was created at either of these events, but a consensus emerged that both patents and plant-breeders' rights must combine to promote plant biotechnology.
As a policy matter, the UPOV is known to consider open and un-restricted access to the genetic resources of protected plant varieties to be important to the continued development of new varieties. This opinion is indicated in the "breeders' exemption" clause of the Convention, as described above, and was reinforced in October 2005 in a reply to a notification from the Convention on Biological Diversity.
In April 2003, the Convention on Biological Diversity asked the UPOV for comment on the use of Genetic Use Restriction Technologies as they relate to the promotion of intellectual property rights. In the summary of their response, the UPOV stated that intellectual property protection is necessary because breeders must have the ability to recoup their money and labor investment in creating new varieties, and in that light, plants with 'terminator genes' may still be accepted for protection if they meet the other criteria. However, the UPOV comment states that the Convention and its system of protection is sufficient to protect intellectual property rights, and that with proper legal protections in place, technologies like 'terminator genes' should not be necessary.

Critics and public interest concerns

Whether or not UPOV negatively affects agriculture in developing countries is much debated. It is argued that UPOV's focus on patents for plant varieties hurts farmers, in that it does not allow them to use saved seed or that of protected varieties. Countries with strong farmers' rights, such as India, cannot comply to all aspects of UPOV. François Meienberg is of this opinion, and writes that the UPOV system has disadvantages, especially for developing countries, and that "at some point, protection starts to thwart development".
On the other hand, Rolf Jördens argues that plant variety protection is necessary. He believes that by joining UPOV, developing countries will have more access to new and improved varieties instead of depending on old varieties or landraces, thus helping fight poverty and feed the growing world population.
UPOV supports an agricultural system that is clearly export-oriented. In other words, developing countries moving towards UPOV-consistent systems tend to favour breeders who are producing for export. The example of Kenya is telling in this regard, as UPOV's own study points out, the majority of varieties are owned by foreign producers and are horticultural crops, clearly destined for export. An over-heavy dependence on agriculture for export is increasingly recognized as being unwise.
It would make sense to encourage debate, exchange of knowledge and research on the impacts of UPOV-type plant variety protection on farming, food sovereignty, human rights and other public interest objectives.
However, several Social movements and civil society organisations such as Oxfam, Third World Network and Via Campesina have pointed out the resistance of the UPOV Secretariat and Member States to dialogue with all interested parties, in particular:
A recent study by Professor Graham Dutfield concluded that UPOV's governance falls short in many different ways, UPOV officials know very little about actual farming, and how small-scale farmers actually develop new varieties and produce them, and that they knew much more about breeding, which favours commercial breeders. The UPOV system thus favours commercial breeders over farmers and producers, and private interests over public interests.
The UN Special Rapporteur on the Right to Food, Olivier De Schutter, came to similar findings in his study of UPOV in 2009. He found that IP-related Monopoly rights could cause poor farmers to become "increasingly dependent on expensive inputs" and at risk of indebtedness. Further, the system risks neglecting poor farmers’ needs in favour of agribusiness needs, jeopardising traditional systems of seed saving and exchange, and losing biodiversity to "the uniformization encouraged by the spread of commercial varieties.
The UPOV Convention, in particular UPOV 1991, is often criticized as it overlaps, and is found to be difficult to concile with, other existing and widely ratified international legal instruments such as FAO's International Treaty on Plant Genetic Resources for Food and Agriculture, the Convention on Biological Diversity, or its Nagoya Protocol but also with the United Nations Declaration on the Rights of Peasants and other people working in rural areas adopted by the United Nations General Assembly in 2018.

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