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Plant Variety Protection and UPOV
The implementation of PBRs at the national level is often easy, but at the international level, it needs to be coordinated. This is done by UPOV (Union International Pour la Protection des Obtentions Vegetables or International Union for the Protection of New Varieties of Plants), with its office in Geneva.
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UPOV Convention ensures that new plant varieties bred in one country are protected by grant of exclusive property rights in other countries also. The variety proposed for protection should fulfil the following requirements: (i) it should be distinct from known varieties; (ii) it should be uniform (homogeneous); (iii) it should be stable; and (iv) it should be new (not commercialized earlier). The first three of these requirements are often referred to as DUS criteria (distinct, uniform and stable; the fourth requirement of novelty was added later).
The UPOV Convention was signed in Paris in 1961, but it came into force in 1968. It was revised in 1972, 1978 and 1991. The 1978 Act came into force in 1981 and the provisions of 1991 Convention are currently being implemented by member, countries through amendments of their corresponding legislation in this connection.
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For three decades (1961-1991), the UPOV Convention provided for the following privileges/exemptions: (i) Breeder exemptions, which allowed the breeders to use the protected varieties for research purposes and for breeding new varieties; (ii) Farmers' privilege, which allowed the farmers to use their
own harvested material of the protected variety for sowing the next crop on their own farm. On-farm seed saving is still a practice in UPOV countries, and the UPOV Convention 1991 contains, 'optional exemption', which outlines that a member state may decide whether or not to permit farmers to use the seeds of a PBR protected variety for propagation on their own farms {Article 52(2)}.
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However, the availability of terminator technology for seed production and protection will not allow this option for varieties that are bred in future using this technology (consult next chapter for terminator technology).
A list of members of UPOV
UPOV member states (as on March 1, 1998) |
States, which are becoming members |
Australia, Belgium*, Canada*, Argentina, Czech Requblic, Danmark*, France*, |
Australia, |
Germany*, Hungary, Ireland*, |
Finland, |
Israel*, Italy*, Japan, Netherlands*, |
Uruguay |
New Zealand*, Poland, Slovak |
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Republic*, South Africa*, Spain*, |
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Sweden*, Switzerland*, UK*, |
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U.S.A*, |
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*UPOV member, which singed but did not ratify UPOV 1991 Convention |
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Some of the features of the UPOV Convention 1991 are as follows: (i) The rights of breeders were strengthened by removing or limiting the 'breeders exemptions' and 'farmers privileges' (ii) The 'breeders exemption' has been limited, so that a breeder may need to take a licence to use a protected variety for research and breeding purposes and that any new variety developed from a protected variety will be 'an essentially derived variety', unless it fulfils certain conditions.
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The farmers' privilege is limited by recognizing the rights of the breeders to the following acts in respect of seed and/or propagating material: (a) production; (b) sale; (c) marketing; (d) export; and (e) import. These rights can also be extended 'over any variety that is 'essentially derived' and/or 'not distinguishable' from the protected variety and also over a variety that requires for its multiplication the repeated use of the protected variety. (iv) Where the propagating material is used without necessary authorization, the breeders' right will apply to harvested material and even if the harvested material escapes authorization, the breeders' right 'will apply to the 'product obtained from the unauthorized use of the harvested material to obtain this product.
An 'essentially derived variety' is defined in Article 14 of UPOV 1991 as follows: (i) it is predominantly derived from the initial variety, or from a variety that was itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety; (ii) it is clearly distinguishable from the initial variety, but except for the differences which result from the act of derivation it conforms to initial variety in the expression of the essential characteristics that resulted from the genotype or combination of genotypes of the initial variety.
The Article 14 of UPOV, 1991 further provides a non-exhaustive list of examples of acts that may result in the essential derivation, including 0) the selection of a natural or induced mutant, or of a somaclonal variant, (ii) the selection of a. variant individual from plants of an initial variety, and (iii) backcrossing or transformation by genetic engineering. This indicates that all acts of breeding, from the most conventional to the one involving use of modern techniques, would be taken into consideration while determining whether or not a new variety is 'essentially derived'.
Some of the features of UPOV 1991 have also been incorporated in the proposed 'Plant Variety Protection and Farmers' Rights Act (PPV and FRA)'. A comparison of UPOV 1978, UPOV 1991, the Indian PPV and FRA, and the patent law.
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