Brief remarks on current UPOV controversies: is it about good & bad?

In my previous post, I anticipated the controversy on UPOV 1991 in developing countries. Today I will briefly comment on the main reason for the contentious implementation of UPOV 1991.

At the basis of the ongoing debate is a clash of interests between commercial breeders and smallholder farmers, despite the fact that farmers’ varieties are not covered by UPOV. So why do farmers oppose UPOV 1991? UPOV provisions grant breeders the right to exclude third parties from several acts on the protected variety. Since farmers are dependent on the seed market for developing their own varieties, breeder’s rights are inevitably intertwined with farmers’ freedom (not rights)* to freely use varieties and the respective propagating material. Broad rights for breeders mean less freedom for farmers & more freedom for farmers requires less rights for breeders. The UPOV 1991 art. 15(2) on farmers’ privilege allows farmers to save and resow harvested seed obtained by planting a protected variety on their own holdings. The use of the variety on own holdings is a significant restriction for small farmers as it precludes their traditional practice of seed exchange. Seed saving on own holdings is further constrained through “reasonable limits” and the “safeguarding of breeder’s rights”. Recent national implementations of UPOV (e.g. South Africa) pose further limits by permitting seed saving only for certain crops, excluding fruits, ornamentals, and trees. These restrictions are too burdensome for small farmers who engage in farming activities for ensuring their livelihoods. Even if they obtain any profit, this profit would be paltry; it could not discourage breeders’ investments. Therefore, a solution to this controversy would be that of differentiating between different types of farmers. Different privileges for different farmers have been already implemented in the EC Regulation (art. 14.3 on small farmers) & have been object of detailed research in a paper for Africa. In one of my papers, I also propose to exempt smallholders under the mandatory exemption  of “private use and non-commercial activity” & leave countries the freedom to decide on adopting the UPOV farmers’ privilege for other categories of farmers. A differentiated approach to the ongoing controversy on farmers’ privilege seems to be in the spirit of UPOV, which aims at advancing the plant variety business, not farmers. If farmers had the technical and financial capabilities to engage in commercial plant breeding, they could ask for plant variety protection.

In the end, the controversy is not about “good” and “bad” as often appears in social media. Farmers and breeders are on different points of the innovation chain; their clash of interests is reasonable. What may not appear reasonable is misinformation, especially for national legislators who should decide on these matters.

What about penal sanctions?

Firstly, it should be clarified that UPOV does not provide for penal sanctions, some laws do. Thus the issue is a matter of national legislation, it is not related to UPOV. If national legislators decide to criminalize the use of seed, a differentiation between farmers would appear reasonable. Penal sanctions would stop smallholders from farming. This is especially the case of family farming, where all family members play a role in breeding. Given that penal responsibility is always personal, whole families may be punished while trying to feed themselves.

*To be noted that “farmers’ rights” are a political concept, not a legal one.

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