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Plant variety rights protection

Plant variety protection titles are intellectual property rights for a plant variety. They give plant breeders monopoly rights over the plant varieties developed by them for 20 to 30 years.

The UN Special Rapporteur on the Right to Food, Olivier De Schutter, recommends that each country develop its own system adapted to its needs, which also strengthens the rights of farmers and biodiversity. This is not currently the case. The most widely spread are plant variety protection rights according to UPOV, which were negotiated by industrial states in the presence of the seed production industry. Such plant variety protection rights take into account neither the situation and needs of the countries of the South nor the rights of farmers nor questions of food security and agricultural biodiversity.

What is UPOV

UPOV is the abbreviation for the International Union for the Protection of New Varieties of Plants, with its headquarters in Geneva (Union internationale pour la protection des obtentions végétales). The association as well as the first UPOV Convention were established in 1961 by a diplomatic conference in Paris. The Convention came into force in 1968, after it had been ratified by Great Britain, The Netherlands and Germany. It was revised in 1972, 1978 and 1991. The objective of the Convention is to further develop intellectual property rights in such a way that plant breeding is protected and thus the development of new plant varieties is fostered.

The Convention of 1991 strengthens the rights of the breeders drastically – to the detriment of the rights of farmers. Because under UPOV-91 the exchange of protected seeds and reproductive materials among farmers is prohibited. Likewise reproduction with propagating material (e.g. fruit trees, berries, vegetables) is prohibited. The re-sowing of seeds can be approved to a limited extent by member states as an exception. In any case only seeds that were reproduced on one’s own farm can be re-sown. At the same time however, the legitimate interests of the breeder must always be respected, which means that with larger amounts a fee is charged for re-sowing.

The legal situation in Switzerland

The Swiss plant variety rights protection law governs whether farmers can hold back seeds from their own harvest and whether breeders can freely use protected varieties for further breeding. Switzerland has ratified the UPOV Act of 1991 and almost all the provisions of this act have been transposed into Swiss law. One important exception is free reproduction (for varieties for which reproduction is allowed) and the fact that the law does not provide either for payments or for a duty of the farmers to supply information. A further particularity is the regulation that contractual agreements that restrict or revoke these rights of farmers are invalid.

Umbrella organisation: APBREBES

The Association for Plant Breeding for the Benefit of Society (APBREBES) was founded by non-governmental organisations that are concerned with questions of plant breeding and plant variety protection rights. Members of this organisation include, in addition to Public Eye, which helped to initiate APBREBES, the Development Fund (Norway), LI-Bird (Nepal), SEARICE (the Philippines), the Community Technology Development Trust (Zimbabwe), the Third World Network (Malaysia) and the Center for International Environmental Law (USA). APBREBES is the first global umbrella organisation of civil society that - after a tough struggle – has achieved observer status in the UPOV.

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