Open letter to members of the international convention for the protection of new varieties of plants (UPOV)
Dear UPOV Members,
(9th April 2014) We the undersigned organizations from Africa and around the world are concerned with the conservation of agricultural biodiversity for livelihood security and food sovereignty, promoting farmers’ rights and citizen involvement in the decision-making process. The undersigned organizations would like to express serious concerns with the ARIPO Draft Protocol that has been submitted by ARIPO (African Regional Intellectual Property Organization) on 6 March 2014, for the consideration of the UPOV Council at its 31st Session in Geneva on 11 April 11, 2014.
12 out of 18 ARIPO members are recognized by the UN as being Least Developed Countries (LDCs), i.e. the poorest and most vulnerable segment of the international community. (1) In these countries the majority of the population lives below the poverty line (e.g. Malawi (90%). These countries face numerous socio-economic challenges (e.g. poor literacy, access to electricity, water, limited infrastructure). In view of LDCs’ special needs, domestic constraints and the need for policy space the WTO has accorded LDCs a transition period until 1 July 2021 (which can be further extended). During this period, LDCs that are members of the WTO are under NO obligation to put in place any regime for the protection of new plant varieties(PVP).(2)
Considering the conditions prevailing in LDCs, the Draft Protocol which is based on UPOV 1991, is very likely to adversely impact these countries. It is worth recalling that UPOV 1991 came about in tandem with industrialization in developed countries (particularly European nations) and the development of large-scale commercial farming and breeding focused on producing uniform plant varieties. Such a regime is unsuitable for the conditions in LDCs.
The informal seed system is the prevailing agriculture system in ARIPO member states and constitutes the primary source of subsistence, employment and income for the majority of the population in the ARIPO region, which consists mainly of the rural poor. About 80%-90% of all seed used in the ARIPO region originates from the informal seed system (i.e. farm-saved seed, exchanges, barter and local markets) independent of whether farmers cultivate local or modern varieties. The reasons for this include: inadequate access to markets; market channels unfavorable to farmers in remote areas; limited access to financial resources or credit to buy seeds; formal system unable to provide timely adequate access to quality seeds of improved varieties and to varieties that are specifically adapted to local conditions. The Draft Protocol ignores this fundamental reality.
The limitations imposed by the Draft Protocol on farmers with regard to use of the protected varieties are scandalous. The Draft Protocol outlaws centuries old practices of farmers freely using, exchanging and selling seeds/propagating material, practices which underpin 90% of the agricultural system within the ARIPO region.
The Draft Protocol does not allow smallholder farmers to freely exchange or sell farm-saved seed/propagating material even if the breeders’ interests are not affected (e.g. small amounts or for rural trade). Use of farm-saved seeds on a farmer’s own holdings is allowed only for certain crops and this too may be subject to payment of royalties to the breeder. Further, farmers will be required to provide information to breeders on the use of farm saved seed.
African nations have championed and called for the strengthening of farmers’ rights in various international fora. (3) About 14 ARIPO members are parties to the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which in its Preamble, affirms that “the rights recognized in the Treaty to save, use, exchange and sell farm-saved seed and other propagating material, and to participate in decision-making regarding……the use of plant genetic resources for food and agriculture, are fundamental to the realization of Farmers’ Rights, as well as the promotion of Farmers’ Rights at national and international levels”. It also requires its contracting parties to take responsibility to realize Farmers’ Rights and “take measures to protect and promote Farmers’ Rights”.(4)
Instead of upholding farmers’ rights, the Draft Protocol goes in the opposite direction and proposes a legal framework, which is inconsistent with the intent and spirit of the ITPGRFA. It proposes an inequitable agriculture policy, fails to recognize smallholder farmers as an integral part of the agricultural innovation systems and undermines farmers’ rights.
The Draft Protocol also undermines sovereign rights of member states by putting in place a centralized regional PVP system under the control and powers of ARIPO Office, which will prevail over national PVP regimes. The ARIPO Office will have the full and absolute authority to grant and administer breeders’ rights on behalf of all contracting states. This top-down approach prevents sovereign nations from taking any decision related to the plant varieties granted breeders rights by the ARIPO Office; decisions that are at the very core of national socio-economic development and poverty reduction strategies.
The Draft Protocol facilitates biopiracy as it does not require a breeder to prove that the genetic material used in the development of the protected variety was lawfully acquired. More specifically it does not require disclosure of origin and evidence of prior informed consent and access and benefit sharing arrangements, where applicable. While the Draft Protocol fails to protect the legitimate interests of sovereign African nations and their local communities against misappropriation, it quite willingly protects the “confidential information” of breeders on their request. This position is untenable as it makes a mockery of the efforts of African nations that have for decades championed in various international forums for measures and mechanisms, including in intellectual property laws, to safeguard against biopiracy.
The Draft Protocol lacks credibility in that no independent assessment has been conducted to justify the suitability of UPOV 1991 for the ARIPO region or of its impacts on farmers, food sovereignty, agrobiodiversity, local breeders and seed companies. In short, there is no empirical basis for the Draft Protocol. This is unacceptable especially considering that most ARIPO members are LDCs, most ARIPO members do not even have PVP legislation in place and none have experience with UPOV 1991.
The process of developing the Draft Protocol has been untransparent and largely closed to the participation of farmers, farmer organisations or other members of civil society.(5) By contrast industry associations such as the CIOPORA, African Seed Trade Association (AFSTA), French National Seed and Seedling Association (GNIS)) and foreign entities such as the United States Patent and Trademark Office (USPTO), the UPOV Secretariat, the European Community Plant Variety Office (CPVO) have been consulted extensively.
This is a violation of Article 9(2)(c) of the ITPGRFA which recognises the rights of the local and indigenous communities and farmers “to participate in making decisions…..on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.” The UN Special Rapporteur on the Right to Food has also recommended that governments: “Put in place mechanism ensuring the active participation of farmers in decisions related to the conservation and sustainable use of plant genetic resources for food and agriculture particularly in the design of legislation covering…. the protection of plant varieties so as to strike the right balance between the development of commercial and farmers’ seed systems”.(6)
Finally we are of the view that the Lusaka Agreement that constituted ARIPO, an intellectual property office does not provide ARIPO the authority to join UPOV 1991 as a contracting party. Unlike the European Union, ARIPO is merely a regional intellectual property office and cannot undertake commitments on behalf of ARIPO member states.
The Draft Protocol clearly lacks credibility and legitimacy. We strongly urge you to reject the Draft Protocol and that the Draft Protocol should be sent back to the drawing board; that ARIPO consult with smallholder farmers and civil society in all ARIPO member states; and, especially, that it discusses appropriate and equitable PVP regime that reflects conditions and realities prevailing in ARIPO countries, the obligation of protecting biodiversity, incorporates farmers’ interests and rights and safeguards to protect public interests and prevent biopiracy.
1. Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Nambia, Rwanda, Sierra Leone, Somalia, Sudan,Swaziland, Tanzania, Uganda, Zambia, Zimbabwe (18 members, of which the12 underlined members are LDCs).
2. ARIPO Members – Liberia, Somalia and Sudan – are NOT members of the WTO and thus are also under NO obligation to implement the TRIPS Agreement.
3. e.g. in the WTO (see IP/C/W/163; IP/C/W//206; IP/C/W/404); see also Articles 6 and 9 of the ITPGRFA.
4. Article 9 of the ITPGRFA.
5. For more information see AFSA’s response to ARIPO available at http://www.acbio.org.za/images/stories/dmdocuments/AFSA-letter-ARIPO-March2014%20.pdf
6. See UN General Assembly Document A/64/170 titled “Seed Policies and the right to food: enhancing agrobiodiversity and encouraging innovation”