Case studies essay 2 - Grade: A5 PDF

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The International Convention for the Protection of New Varieties of Plants (UPOV) 1991 provides for plant breeders' rights while the International Treaty of Plant Genetic Resources for Food and Agriculture 2001 provides for the protection of farmers' rights. Discuss plant breeders' rights and farmers' rights as provided in these treaties. Introduction “Intellectual property rights (IPRs) are legal rights granted by governmental authorities in order to control certain products of human intellectual effort and ingenuity”1. Some creations of mind are recognised as special creations and can be protected through law. Under intellectual property law owners can be granted exclusive rights to intangible assets, such as: musical, literary, and artistic works; discoveries and inventions; symbols, and designs2. Copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions are all regarded as types of intellectual property. Plant breeders’ and farmers’ rights are part of intellectual property rights. A sui generis (unique) IPR was specifically created to protect new plant varieties. This was introduced in The International Convention for the Protection of New Varieties of Plants (UPOV) 1991 which enabled different plant varieties to be registered provided they are new, stable and distinguishable3. Protection is similar to copyright as it protects the rights to sell and distribute propagating material, while the use of the protected variety in further breeding and development is not restricted. The International Treaty on Plant Genetic Resources for Food and Agriculture 2001 was introduced in order to work alongside UPOV in protecting the rights of both plant breeders as well as farmers and to achieve sustainable agriculture and food security globally. Plant breeder’s rights The International Convention for the Protection of New Varieties of Plants (UPOV) 1991 was established in order to provide a sui generis form of intellectual property protection which has been specifically adapted for the process of plant breeding. It has been developed with the aim of encouraging breeders to develop new varieties of plants4. UPOV is an intergovernmental organization and its headquarters are located in Geneva. The Convention was first established in Paris in 1961 and later amended in 1972, 1978 and 1991. The mission of the UPOV is 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”5. Under the 1991 UPOV convention, anyone who develops a new variety of plants that may be disease resistant, drought resistant, cold tolerant or more aesthetically pleasing will be no less an inventor than someone who improves an airplane engine or develops a new medicinal drug6. 1 'What Are Intellectual Property Rights (IPR)? | European IP Helpdesk' (Iprhelpdesk.eu) accessed 10 December 2020. 2 Ibid. 3 The International Convention for the Protection of New Varieties of Plants (UPOV) 1991 4 Ibid. 5 Ibid. 6 Laurence R. Helfer, 'INTELLECTUAL PROPERTY RIGHTS IN PLANT VARIETIES: AN OVERVIEW WITH OPTIONS FOR NATIONAL GOVERNMENTS' (FAO Legal Papers Online 2002) accessed 11 December 2020.

The exclusive rights granted to the breeder, often referred to as "breeder's rights" require that another party must receive the breeders’ authorization before performing the following acts in respect of the propagating materials7. However, the breeders’ authorization is not always necessary. For example, if the protected variety is used for private and non-commercial purposes, for experimental purposes, or for the purpose of breeding new plant varieties8. The UPOV Convention also allows each member nation to restrict the breeder’s rights by permitting farmers to use some of their harvest in their own land. Nevertheless, UPOV disregards small-scale farmers needs due to its strict conditions. For example, novelty under Article 8 restricts many farmers from developing countries from meeting this requirement due to the need to save, exchange, sell or re-use seeds in order to survive9. The convention should focus on legitimate interests of the breeder as well as developing countries that struggle with meeting the full UPOV criteria. Article 14 of UPOV 1991 further explains the rights of plant breeders. It states that breeders’ exclusive rights will cover harvested materials including, “entire plants and parts of parts….”. It also explains that “contracting parties may further extend such rights to products made directly from harvested material of a protected variety ….”10. The scope of breeder’s rights also extends to derived varieties and certain other varieties, including “varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety; varieties which are not clearly distinguishable in accordance with Article 7 from the protected variety and varieties whose production requires the repeated use of protected variety”11. Under Article 19, the plant breeder’s right will be granted for a period not shorter than 20 years, while for trees and vines, not shorter than 25 years12, this ensures that the plant breeders will be granted a suitable period of time of protection over the plants. Farmer’s rights In order to protect the rights of farmers, The International Treaty on Plant Genetic Resources for Food and Agriculture 2001 also known as the “Plant Treaty” was created. It was adopted by the Conference of the Food and Agriculture Organization of the United Nations on the 3rd of November 2001 by the Members of the Food and Agriculture Organization (FAO)13. The main aim of this treaty is to recognize the enormous contribution of farmers to the diversity of crops as well as establishing a global system to provide plant breeders, farmers and scientists with access to plant genetic materials14. It also aimed to ensure that recipients share benefits they obtain from the use of genetic materials with the countries where they have been originated. The Plant Treaty provides access to the genetic materials of 64 crops in the Multilateral System for research, breeding and training for food and agriculture15. The main requirement 7 Article 14 (1) (a) UPOV, 1991 8 Ibid. 9 Article 8 UPOV, 1991 10 UPOV, 1991 11 Article 14 (2), (3), (4), (5) 12 Article 19, UPOV 1991. 13 'Overview | International Treaty On Plant Genetic Resources For Food And Agriculture | Food And Agriculture Organization Of The United Nations' (Fao.org) accessed 12 December 2020. 14 Ibid. 15 Articles 10, 11, 12 & 13 of The International Treaty on Plant Genetic Resources for Food and Agriculture 2001 (ITPGRFA)

of accessing the crops for research is that those who access the materials must be from the Treaty’s ratifying nations. Any interesting parties must also agree to use the materials purely for research, breeding and training for food and agriculture. The Treaty prevents any recipients from claiming intellectual property rights over plant sources in the form in which they received them. It also ensures that access to genetic resources already protected by international property rights is consistent with international and national laws 16. Under Article 9.1 of the treaty, there is an emphasis on the fact that contracting parties must recognize the huge contribution of local farmers of all regions of the world17. This shows the protection and appreciation of farmers’ work which has an enormous impact on global agriculture. Article 9.2 further states that the contracting parties must “agree with the responsibility for realizing farmers’ rights, as they relate to plant genetic resources for food and agriculture, rests with national governments”. Under this section, each contracting party subject to its national legislation should take measures to protect and promote farmers’ rights. This includes: “protection of traditional knowledge relevant to plant genetic resources for food and agriculture; the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture”18. Section 9.3 of the Article mentions that “nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate”19. Conclusion In conclusion, during its years of development and application, the international convention and treaty both work together in order to protect the rights of plant breeders’ and farmers’. Both encourage the creation of new varieties of plants into agricultural and horticultural practice for the benefit of society. The findings throughout this essay demonstrate that the UPOV system contributes to further innovation and investment in plant breeding as well as more and better varieties for farmers and growers. Both of these treaties aim to increase income for farmers and plant breeders which will ultimately ensure the development of international markets.

Bibliography 16 'About Farmers' Rights' (Farmersrights.org) accessed 10 December 2020. 17 Article 9.2 (ITPGRFA) 18 Ibid. 19 Article 9.3 (ITPGRFA)

Primary Sources The International Convention for the Protection of New Varieties of Plants (UPOV) 1991 The International Treaty on Plant Genetic Resources for Food and Agriculture 2001 Secondary sources 'About Farmers' Rights' (Farmersrights.org) accessed 10 December 2020 Helfer L, 'INTELLECTUAL PROPERTY RIGHTS IN PLANT VARIETIES: AN OVERVIEW WITH OPTIONS FOR NATIONAL GOVERNMENTS' (FAO Legal Papers Online 2002) accessed 11 December 2020 'Overview | International Treaty On Plant Genetic Resources For Food And Agriculture | Food And Agriculture Organization Of The United Nations' (Fao.org) accessed 12 December 2020 'What Are Intellectual Property Rights (IPR)? | European IP Helpdesk' (Iprhelpdesk.eu) accessed 10 December 2020...