An Answer to the Plant Variety Controversy in Chile

• Date: 01 November 2016
• Author: Viola Prifti
• DOI: http://doi.org/10.1111/jwip.12062
• Published date: 01 November 2016

An Answer to the Plant Variety Controversy in Chile

Viola Prifti

Bournemouth University

Chile has failed to ratify the 1991 International Convention for the Protection of New Varieties of Plants (UPOV) as

stipulated in the free trade agreement (FTA) with the United States. Since Chile is amongst the US Priority Watch List

countries, it is imperative for Chile to emanate a UPOV 1991-compliant law. The ratif‌ication of UPOV 1991, however,

has encountered strong resistance within the country and it is not yet clear when and how Chile will adopt UPOV 1991

provisions. Through an analysis of legal and economic aspects of the domestic plant variety law, this paper explains

that Chile should make better use of UPOV f‌lexibilities and gives recommendations in order to accommodate the

interests of all stakeholders.

Keywords plant variety protection; farmers’privilege; free trade; Chile

Although the free trade agreement (FTA)

1

with the United States requires Chile to ratify or accede to the

1991 act of the International Convention for the Protection of New Varieties of Plants (UPOV)

2

, Chile

continues to apply law nr. 19.342 on plant breeder’s rights (PBR) in conformity with UPOV 1978. The

ratif‌ication process of UPOV 1991 in Chile started in 2009

3

and was accompanied by broad social

controversy because of its effects on Chile’s economic progress (Jefferson, 2014, p. 35). For this reason,

the Chilean President, Michelle Bachelet, withdraw the bill in 2014. Non-compliance with the FTA

provisions on plant variety protection provides a basis for including Chile in the US Priority Watch List

(Off‌ice of the United States Trade Representative, 2016, p. 49). Since the US government may impose

unilateral trade sections or initiate dispute settlement proceedings at the world trade organization (WTO)

against countries included in the Watch List, it is important for Chile to design a plant variety protection

law in line with its commitments under the US FTA and at the same time responsive to its socio-economic

concerns.

This paper will offer guidance through an analysis of the legal controversy, interests of the parties

involved, the legal and economic aspects of the proposed plant variety law and an exploration of UPOV

1991 f‌lexibilities. To this purpose, the paper is organized as follows. Firstly, it brief‌ly introduces the reader

to the legal vicissitudes of the ratif‌ication process, the decision of the Constitutional Court of Chile and the

interests of all stakeholders. Secondly, it compares the current plant variety protection law with the UPOV

1991-compliant proposal in order to better understand the controversy. Thirdly, it broadens the

understanding of legal provisions through an economic perspective and empirical observations on plant

variety certif‌icates in Chile. Fourthly, it seeks an appropriate legal framework for Chile by investigating

UPOV 1991 f‌lexibilities as well as the interaction between plant variety and patent rights. Finally, it

concludes and gives recommendations for a UPOV 1991-compliant law that promotes Chile’s interests in

plant breeding.

The Proposal to Adopt a UPOV 1991-Compliant Law

The process for adopting a national law in compliance with UPOV 1991 started on 3 March 2009 with the

proposal of the Chilean President Michelle Bachelet.

4

The bill, named “Monsanto Law”by populist

movements (Jefferson, 2014, p. 39), encountered strong resistance from civil society. Farmers, various

178 ©2016 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2016) Vol. 19, no. 5–6, pp. 178–202

doi: 10.1111/jwip.12062

social groups and senators themselves denounced the negative effects of the proposed law on small-scale

farming, food sovereignty and biodiversity. These concerns were especially emphasized in a petition in

front of the Constitutional Tribunal of Chile. On 20 May 2011, 17 senators claimed the unconstitutionality

5

of UPOV 1991,

6

but the Tribunal rejected their petition.

7

The grounds for the petition and the reasons for

its rejection will be here brief‌ly illustrated in order to better understand the matter at hand. The main

arguments put forward by the senators were as follows:

1. The restriction of the farmers’privilege violates the right of property as established in art. 19. N. 24 of

the Constitution.

8

2. The provisions of UPOV violate the duty of the State to protect the preservation of the environment as

required by article 19 n. 8 of the Constitution and the scope of protection on plant varieties in UPOV

1991 obstacles the movement of goods.

9

3. Violation of the State’s duty to promote the harmonious integration of all sectors of the country and

guarantee to the people the right to participate with equal opportunities in the national life as required by

article 1, last paragraph of the Constitution.

4. Violation of the right to equality before the law (stated in article 19. n. 2 and n. 22 of the Constitution)

considering that UPOV 1991 provides for no compensation for farmers that supply the genetic material

possessed by the right holder.

The Tribunal dismissed these arguments as follows:

1. The contested rules do not relate with the right to acquire a private good, but with the protection and

regulation of ownership. UPOV 1991 does not impede farmers to acquire ownership if their varieties

comply with its requirements.

10

Although farmers’varieties are not registered, they are

commercialized through local channels. This means that there is established knowledge on these

varieties and there is no need for registers.

11

2. There is no direct relationship between UPOV and contamination of the environment

12

and UPOV does

not regulate the commercialization of plant varieties. Article 18 of the 1991 act clarif‌ies that the

breeder’s right shall be independent of any measure taken by a Contracting Party to regulate within its

territory the production, certif‌ication and marketing of material of varieties and that such measures shall

not affect the application of its provisions.

3. The Tribunal decided that UPOV 1991 does not affect equality before the law. The formulation of the

petition was deemed too generic since it did not specify how the Constitutional provision was violated.

Thus it failed to provide the Tribunal the basis for a decision (p. 74). Similarly, the judges argued that

the petition lacked suff‌icient elements to issue a verdict on a hypothetical violation of State’s rights on

the integration of the nation (p. 75).

The above arguments are undoubtedly thought-provoking but their analysis falls beyond the scope of

this paper. The decision of the Constitutional Tribunal is yet relevant for the matter at hand as it offers

important insights into the reasons for the controversy, and consequently helps f‌ind a solution. The

decision reveals a clash between two major interests in plant breeding: those of commercial plant breeders

and those of smallholder farmers. Commercial plant breeders are public institutions or breeding

companies, which engage in creating new varieties of plants with enhanced qualities (to respond to

consumers’preferences or climate conditions). Advanced biotechnological techniques and laboratory

research allow these varieties to express identical characteristics through generations and control quality

and yield performance. Smallholder farmers, on the other hand, often comprise indigenous people and

families, who have undertaken plant breeding activities since time immemorial. They, however, do not

The Plant Variety Controversy in Chile Viola Prifti

©2016 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2016) Vol. 19, no. 5–6 179