A Differentiated Approach to Plant Variety Protection in Africa

• Published date: 01 March 2016
• Author: Peter Munyi,Bram De Jonge
• DOI: http://doi.org/10.1111/jwip.12053
• Date: 01 March 2016

A Differentiated Approach to Plant Variety

Protection in Africa

Bram De Jonge

Wageningen University

Peter Munyi

Wageningen University

Several African countries and regional organizations are investing in the establishment of a plant variety protection

system modeled on the UPOV 1991 Convention, which currently provides the strongest, international standard for

plant variety protection. Whereas proponents argue that strong protection of breeder’s rights will incentivize breeding

and the introduction of new varieties for farmers, opponents fear that the proposed legal framework is unsuitable for

African countries as it may hamper traditional farming practices of using and exchanging farm-saved seed. These

informal or farmer-managed seed systems supply more than 80% of the total food crop seed used by farmers. The

challenge for African countries is to strike a balance between protecting the interests of breeders through the incentive

function of plant breeder’s rights for the commercial market, and the leeway that needs to be provided to smallholder

farmers that depend on informal sources for their seed security and survival. And to do so in a practical and legally

enforceable manner. This paper explores how African countries and regional organizations can establish such balance

through a differentiated approach to plant variety protection, which sets different levels of protection for different

crops in relation to different categories of farmers.

Keywords breeder’s rights; farmers’rights; food security; seed systems; smallholder farmers; UPOV

Plant Variety Protection in Africa

Plant variety protection (PVP) aims to encourage plant breeding by granting breeders of new plant

varieties an exclusive right to commercialize their varieties, once registered for PVP. Most African

countries are members to the World Trade Organization (WTO), which has established minimum

standards of intellectual property (IP) protection for all its member states through the Agreement on Trade-

Related Aspects of Intellectual Property Rights (TRIPS). With respect to plant varieties, TRIPS in its

article 27.3(b) obliges members to provide for the protection of plant varieties either by patents or by an

effective sui generis system or by any combination thereof. No African country grants patent protection on

new plant varieties

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and few countries have so far established an operational sui generis system for that

purpose.

2

However, this situation is about to change as several African regional organizations are in the process

of establishing PVP systems modeled on the 1991 Act of the International Union for the Protection of New

Varieties of Plants (UPOV), which currently provides the strongest, international standard for plant variety

protection. UPOV is an intergovernmental organization, which was established by six European countries

in 1961 through the International Convention for the Protection of New Varieties of Plants in order to

“provide and promote an effective system of plant variety protection, with the aim of encouraging the

development of new varieties of plants, for the benef‌it of society.”

3

This Convention has been revised in

1972 (UPOV, 1972), 1978 (UPOV, 1978) and most recently in 1991 (UPOV, 1991), in particular to remain

consistent with developments in the professional breeding and farming sectors of its member countries,

which, at that time, were almost all major industrialized countries (Louwaars et al., 2013). Despite the fact

28 ©2016 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2016) Vol. 19, no. 1–2, pp. 28–52

doi: 10.1111/jwip.12053

that the agricultural sector in most African countries looks very different from those of the industrialized

countries in 1991, new UPOV members can only sign onto UPOV 1991.

In 2014, the Organization Africaine de la Propri

et

e Intellectuelle (OAPI), the regional IP organization

for French-speaking western Africa countries, joined UPOV as its 5th African member. In that same year,

the African Regional Intellectual Property Organization (ARIPO) consisting of mainly eastern and

southern African countries had its draft PVP law approved by the UPOV Council to be in conformity with

UPOV 1991, and the ARIPO PVP Protocol was adopted in Arusha in 2015. Other regional organizations,

such as the Southern Africa Development Community (SADC), the Common Market for Eastern and

Southern Africa (COMESA), and the East African Community (EAC) are similarly planning to either

enact their own PVP legislation or have their member states harmonize their national legislations in line

with UPOV 1991. Altogether, these regional organizations encompass 48 African countries.

4

By establishing a PVP system on par with UPOV 1991, African countries hope to incentivize breeding

and the introduction of new varieties, allowing farmers to access “a wide range of improved varieties to

contribute to the attainment of the regional goal of economic development and food security”(ARIPO,

2015, Preamble). Yet, these developments are strongly criticized by several academics (Haugen, 2015;

Oguamanam, 2015) and Civil Society Organisations (CSOs) from across Africa and the world.

5

Generally,

they are of the opinion that the proposed legal framework is unsuitable for most countries in the region as it

exclusively favors “commercial breeders’interests and marginalises the small-scale farmers that for

centuries have been the backbone of Africa’s agricultural system”(CSOs, 2012, p. 6). One of the key

concerns is that a UPOV 1991 system “outlaws centuries old practices of farmers freely using, exchanging

and selling seeds/propagating material”(Via Campesina, 2014).

These farmer practices are often referred to as informal or farmer-managed seed systems. Farmer-

managed seed systems are of crucial importance for seed security in Africa because they supply more than

80% of the total food crop seed used by farmers (FAO, 2010; Lipper et al., 2010; World Bank, 2008).

These same farmer practices are also considered important in realization of farmers’rights in the

International Treaty on Plant Genetic Resources for Food and Agriculture (IT).

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In its Preamble, this treaty

aff‌irms “that the rights recognized in this Treaty to save, use, exchange and sell farm-saved seed and other

propagating material, (...), are fundamental to the realization of Farmers’Rights, as well as the promotion

of Farmers’Rights at national and international levels”(FAO, 2001). Thirty-six African countries are

party to the IT and are, thus, under the obligation to take measures to protect and promote farmers’rights.

7

The relationship between UPOV and the provisions on farmers’rights in the IT is increasingly the subject

of debate.

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An ISSD Perspective on Plant Variety Protection in Africa

This paper explores the contours of a PVP system that recognizes the importance of both commercial and

farmer-managed seed systems. Integrated Seed Sector Development (ISSD) is an approach to seed sector

development that builds upon the diversity of seed systems in African countries, recognizing that all play

an important role in providing farmers with seed.

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By recognizing that each seed system has its own

benef‌its and limitations and requires a unique approach in strengthening it, ISSD aims to foster pluralism

and guide policies in their design to strengthen multiple seed systems. The main objective of ISSD is to

guide the design of seed sector interventions that are coherent with farmers’agricultural practices, in order

to enhance farmers’access to quality seed

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of superior varieties (ISSD, 2014). “Superior varieties”are

understood to refer to both formally improved varieties (e.g., new varieties released by public research

institutes or seed companies) and locally improved varieties (e.g., traditional varieties or landraces adapted

to local conditions and preferences) most preferred by farmers (ISSD Africa, 2014).

When approaching plant var iety protection from an ISS D perspective, it is impor tant to look at the

potential benef‌its and drawbac ks of a PVP system for all the different see d systems. As explained

A Differentiated Approach to PVP in Africa Bram De Jonge and Peter Munyi

©2016 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2016) Vol. 19, no. 1–2 29