2016 CIOPORA Guide to Plant Breeders' Rights

Guide To Plant Breeders' Rights
2016
Guidance is still somewhat ambiguous,
CIOPORA continues to support a practical
and feasible interpretation of these
terms in the Vertical Guidance, which
it believes to also be in line with both
the text and the spirit of the Nagoya
Protocol.
Breeder’s exemption
In respect of the type of genetic
resources covered by the obligations
of the Nagoya Protocol and the EU
compliance rules, CIOPORA has,
supported by many other stakeholders,
taken the view that this should not relate
to commercially available material of
cultivated plant varieties, since these are
not natural resources over which Nagoya
Protocol Parties can exercise sovereign
rights.
At the very least, the EU compliance
rules should not impose due diligence
obligations in respect of a third country’s
access and benefit sharing legislation
claiming sovereign rights over commercial
varieties, as this would neither be
appropriate or proportionate, as required
by the Nagoya Protocol. Having the due
diligence obligation apply to commercial
varieties used as starting material in a
breeding process would, in the opinion
of CIOPORA, furthermore run counter
with the breeder’s exemption under plant
variety rights law, although this latter
concern is not shared by the Commission
in the Horizontal Guidance.
Clearly, a Nagoya Protocol Party can
impose benefit sharing obligations in
respect of commercial varieties developed
through the use of an accessed
natural resource in the MAT concluded
with the prospective user. However,
such obligations are part of the private
contractual relationship between the
provider country and the prospective
user. It is not a matter to be checked by
the competent national authorities under
the due diligence obligations of the EU
compliance rules, which are limited to a
formal check of the existence of PIC and
MAT, and do not provide for means to
enforce their content.
In respect of the type of activities that
amount to utilisation, which is defined
in both the Nagoya Protocol and the EU
compliance rules as ‘to conduct research
and development on the genetic and/
or biochemical composition of genetic
resources, including through the application
of biotechnology …’, it is the
position of CIOPORA that this is only
the case for activities that involve both
research and development, i.e. activities
of experimental development. Activities
consisting of the screening of biological
material in the wild or in genebanks
The Nagoya
Protocol sets
targets to
protect the
natural environment
and
its endangered
species and
habitats.
to find interesting traits, assessing a
material’s breeding value or the use of
pathogens to find resistance genes, are
not and should not be covered by that
notion.
Workshop Brussels
CIOPORA's representatives will continue
to defend this position and have
most recently done so during a workshop
on the draft Vertical Guidance
which
was held at the European Commission
in Brussels on September 20 th 2016. The
discussion with the Commission was
constructive and, in addition to the
above point, CIOPORA emphasised
that consistency is needed between the
various sectoral guidance documents.
However, it is eventually up to the
Commission to decide on the content of
the Vertical Guidance, which is said
to be due by the end of 2016. Given the
uncertainty surrounding these and
other issues, however, it is possible that
that timeline is further
extended. And it is also expected that
some of them will be addressed during
the second COP in Mexico in December
2016. Reports on these developments
will be provided in the periodical
updates in the CIOPORA newsletter. |||
October 2016 | www.FloraCultureInternational.com 31