2011 CIOPORA Chronicle - the 50th Anniversary Edition

Quo vadis?
Breeders ask for
clear and effective
rules which
safeguard fair
competition.
Dr. Edgar Krieger, Secretary General CIOPORA.
effective IP for plant varieties claim
that, in order to protect such small
scale subsistence farming, the
unrestricted handling of farm saved
seed would be necessary and that
UPOV 1991 would prohibit such
free handling.
This opposition against effective
Plant Breeders´ Rights protection
in the area of agriculture has
also caused a negative impact on
horticulture. Nowadays, only the
fewest states differentiate between
agriculture and horticulture in their
IP-legislation although subsistence
farming is not at all comparable with
horticultural production, where an
industry-like approach is applied
with large production units and
often a strong export orientation.
As a consequence of this critical
approach towards UPOV 1991,
important countries for the horticultural
business, such as Ethiopia,
India, Indonesia, Malaysia or Thailand
have not acceded UPOV and
do not offer effective IP protection
for plant varieties. Other important
countries have not make the step
forward to upgrade their law from
UPOV 1978 to UPOV 1991.
TRIPS agreement
In addition to the fact that these
countries are missing the chance to
improve and increase their horticultural
industry 3 , it should be noted
that not providing for an effective
protection system for plant varieties
constitutes a breach of Article 27 (3)
(b) of the TRIPS Agreement, according
to which all WTO members shall
provide for the protection of plant varieties
either by patents or by an effective
sui generis system or by any combination
thereof. Although the lack of effective
IP protection for plant varieties in
developing countries has a negative
economic impact in the industrial
countries, the governments of these
countries have so far not shown any
noticeable interest for these breaches
of the TRIPS agreement 4 .
Considering that for vegetatively
reproduced ornamental and fruit
varieties only the UPOV 1991 Act
can be seen as an (almost) effective
sui generis system, one must realise
that in more than 75% of the states
worldwide, no effective protection
for these crops exists. Furthermore,
this figure does not even take into
account that effective enforcement is
also lacking in several UPOV 1991
member states.
Not fully efficient
In view of the too limited expansion
of Plant Breeders´ Rights in the
world, one should not overlook that
the scope of the right as provided
for in the UPOV 1991 Act is still
not fully sufficient for vegetatively
reproduced ornamental and fruit
varieties. UPOV 1991 and the
corresponding national PBR legislations
still do not take into account
that the exploitation of vegetatively
reproduced ornamentals and fruits
follows their own rules, which are
not comparable to agricultural
crops.
The seed-focused terminology of
UPOV 1991 does not apply to vegetatively
reproduced ornamentals
and fruits. In most of these crops, it
is not the production of propagating
material which constitutes the
object of the exploitation, but the
use of the variety for the production
of semi-finished products
like cuttings and young plants or
end-products, such as cut-flowers
and fruits.
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CIOPORA Chronicle April 2011 | CIOPORA.org 27