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“Legal framework for investment”

by Rolf Jördens
The International Union for the Protection of New Varieties of Plants (UPOV) is an inter-governmental organisation based in Geneva. UPOV members subject specific acts of reproduction and exploitation of a protected variety to the authorisation of the breeder. Civil-society organisations bemoan that this practice restricts farmers’ freedom of choice. In our interview, Rolf Jördens, Vice Secretary-General of UPOV, responds by emphasising the relevance of plant variety protection for rural development and global food security. [ Interview with Rolf Jördens ]

Why do you advise the governments of developing countries to join UPOV?
Developing countries urgently need new and improved plant varieties in order to improve agricultural productivity, feed their fast growing populations and help their farmers to get out of the cycle of poverty. New plant varieties are most important for rural development. Often farmers in developing countries depend on old varieties. Their yields are low and unstable. The crop is of poor quality. New and improved varieties are critical to success, indeed. We know that more than 50 % of the average yield increase per hectare is due to the performance of improved varieties. Plant variety protection according to the UPOV Convention and membership of UPOV have demonstrated to encourage breeding and the introduction of better varieties of benefit to farmers and to society at large.

The model is about high-yielding varieties boosting the incomes of individual farmers, which in turn stimulates rural development and the diversification of the rural economy, which then results in additional jobs and incomes. To achieve this kind of take-off, more is needed than seed. You also have to build rural infrastructure, for instance.
The focus is not on high-yielding varieties. I am thinking of more productive varieties in a broader sense. Increased productivity may also imply stable yields and improved resistance to drought or pests and diseases. Better quality is always the concern. Thus, breeding objectives go far beyond just high yield. On the other hand, in modern agriculture, new varieties contribute more than 50 % to yield increases. Therefore, suitable plant varieties are a big step forwards. Of course, improved agricultural technology is also important, but without good varieties, the best technology is useless.

To what extent can improved seed help if there is no integrated rural development in terms of distribution channels and transport routes, processing methods, access to fertilisers and credit and so on?
First let me clarify that UPOV makes a distinction between the terms “variety” and “seed”. The starting point is the genetic potential of any given plant variety. It is useless to try to improve seed of poor varieties. So, the first issue is whether improved varieties are available in a country at all. If there are no sustainable breeding programmes in a developing country because the private sector is not investing, an important requirement for progress is simply not met. Sustained breeding is indispensable, both in the private and in the public sectors. But take a look at government-run breeding facilities in developing countries: they are short of funds, they are poorly equipped and staffed. So, they are really not in a position to provide farmers with better varieties. That has become clear over the past decades. There needs to be private-sector involvement too, and that will only happen if there are incentives for breeders and the entire value chain of the seed industry. For this reason, plant variety protection is necessary.

Aren’t the international agricultural research institutes doing research for developing countries?
This impression is widespread, but international agricultural research centres alone will simply not do. They are considering how to make sure that their results are more widely made use of. All too often, innovations don’t make it to the villages. Results end up on shelves, and the new varieties are not cultivated. Therefore, the international institutes are increasingly thinking about using intellectual property rights – including plant variety protection – to provide incentives with a view to getting innovation out to the farmer.

Plant breeders rely on gene banks, which in turn draw on the traditional landraces that display various features agriculture needs. One objection to using high-yielding varieties is that they supersede the genetically more diverse local varieties.
The sad truth is that landraces perform rather poorly, so farmers stay poor. Hunger and malnutrition are still widespread in rural areas. Families of subsistence farmers hardly get enough to eat, and they normally live in great hardship. Nevertheless, landraces are indeed very important as plant genetic resources. If you want to keep them in cultivation, you will have to pay farmers a compensation. Farmers who use traditional varieties instead of modern varieties lose out on income. Farmers who are in a position to choose among varieties will always go for the option which offers the greatest economic benefit and, thus, there is a tendency for landraces being replaced by better varieties. In the end, however, this has little to do with plant variety protection. Plant variety protection may just contribute to a broader choice among varieties for farmers.

But aren’t the landraces important for world nutrition in the long run?
Yes, preserving plant genetic diversity and increasing farmers’ yields and incomes are both important goals. Maintenance of traditional varieties is definitely a public-sector responsibility, which deserves to be supported. But it also matters to provide better varieties to farmers. Otherwise, rural areas will not escape from poverty and adversity. Global hunger cannot be stopped by growing landraces. They do not even yield enough today, and the world’s population is growing – and particularly fast in developing countries.

Won’t the local varieties die out if only new varieties are cultivated?
No one disputes that landraces are valuable genetic resources which need to be preserved. But doing so requires appropriate instruments. It will not help to stem progress, deny farmers new varieties and say that developing countries do not need any breeding of more productive varieties. Poverty reduction is too important. Feeding a growing world population and reducing hardship against the background of climate change are challenges which require most urgent responses.

Does your call for innovative and productive varieties include genetically modified organisms?
This is not an issue for UPOV. Plant variety protection does not depend on how a new variety is created. That can be done by traditional breeding or genetic engineering. Whether a variety qualifies for protection only depends on the criteria specified by the UPOV Convention: novelty, distinctness from all other varieties in the world, sufficient uniformity to be identifiable and stability over growing cycles. If these criteria are met, plant variety protection is granted, irrespective of the breeding method.

Isn’t plant variety protection synonymous with economic commercialisation?
No, authorisation for commercialisation is quite a different matter, unrelated to plant variety protection. This issue is regulated in many different ways at the national or regional level. UPOV is only concerned with providing incentives to breeding with the objective of providing farmers and growers with more and better varieties.

Why do civil-society organisations often get upset about UPOV?
We are not really aware of that. Our talks with the NGOs are not that difficult. We have convincing answers to their questions. Above all, however, we notice that a growing number of developing countries wish to introduce the UPOV system after some debate, in the past, on the appropriate policy. In Africa, for example, we are now seeing a considerable trend towards plant variety protection because governments are recognising that progress cannot be made by sticking to old methods. In countries that are sticking to the past, agriculture is falling behind, whereas the neighbouring countries that have introduced the UPOV system are making headway. Jobs are being created and rural development is gaining momentum.

Which African countries have successfully introduced UPOV?
Kenya and South Africa are two examples. The effects in Kenya are extraordinarily positive. The cut flower industry, which has created 2 million jobs, would not even exist if Kenya were not a member of UPOV. Two million Kenyan families live predominantly from income generated in this sector.

Flowers, however, are not a basic food item.
No, of course not. But people are earning money on which they can live, and rural development is moving ahead. This is what matters. Those who have jobs obviously do not want to forsake that income and eke out a meagre subsistence-level living instead. They have the choice, after all. Let me also point out that women have traditionally been disadvantaged, and they are often the ones who find new opportunities in the flower industry. Plant variety protection in Kenya is also available for varieties of grain and other food crops of course, but it would be inappropriate for UPOV to interfere with agricultural priorities in a particular country. We cannot anticipate where plant breeding is heading and which sectors will develop. We simply provide, in the first instance, a legal framework which is designed to reward creativity and stimulate investment in plant breeding.

Is there also an example of an African country where grain production has increased thanks to UPOV?
Yes, take South Africa. Grain yields there compare to those of industrial nations. Incidentally, South Africa has been a UPOV member for a very long time.

Your critics say that the UPOV rules are unfair, because the 1978 regulations still apply to some of the old members, whereas new members must comply with the stricter standards of 1991.
Currently 44 of 68 UPOV members are bound by the 1991 Act, while the others have still not ratified this Act. However, I would dispute that the 1991 Act is stricter. It has taken into account progress made in terms of breeding methods. UPOV updated the Convention on the basis of decades of experience. Indeed, the 1991 Act is even more attractive than the old one for developing countries because of some specific elements that matter to these countries. For example, the 1991 Act contains the concept of essentially derived varieties.

What is that?
I will explain it by using the example of cotton farming in Mali. In that country, there are cotton varieties which have been bred by state facilities and which are proving quite good in practice. However, development does not stop. It may so happen that someone succeeds in using genetic engineering to integrate some kind of pest resistance into such a variety without otherwise modifying that variety. In such a case the concept of the essentially derived variety means that multiplication and commercialisation of the new variety requires the authorisation of the breeder of the initial variety. For instance, he may subject his authorisation to being given a share of the revenue of the new variety. This is a major advantage of the 1991 Act.

Nevertheless, the same rules do not apply to all UPOV countries.
This is not as dramatic as some people believe. Almost all UPOV members who are bound by the 1978 Act are revising their laws in order to accede to the 1991 Act. Many Latin American countries already have laws which conform to the 1991 principles – even though these countries are bound by the 1978 Act. This is also the case for South Africa. It is really no sacrifice to accede to the 1991 Act, nor can it be seen as some kind of punishment. To the contrary. The current version is up to date; it is precise and provides clear definitions.

But if the issue ruffles feathers, couldn’t UPOV allow poor countries to accede to the old conditions in the first instance?
Our approach is quite normal. International conventions are revised from time to time. Eventually the previous act is closed for accessions of new members. A particular feature of the UPOV system is that new members can only join once the UPOV Council has favourably assessed the conformity of their laws with the UPOV Convention. This is actually a strong point. The effectiveness and hence the attractiveness of UPOV hinge on the common understanding shared by all members – developed and developing countries alike – in regard to the goals, principles and procedures of plant variety protection.

Has India become a member yet?
India intends to join UPOV, but has not yet done so. Talks are going on. We know that there is a need in India to make more productive varieties available to farmers. The Indian government is fully aware of this fact. Rural poverty as well as malnutrition continue to be severe problems in India and, at the same time, fast growing cities need to be fed.

Indian law protects “farmers’ rights” among other things. This means that farmers are allowed to do with their crops what they like, including the sale of seed from their harvest. This does not fit the UPOV model.
I am not quite sure what exactly is meant by “farmers’ rights”. This is an area outside our responsibility. The term is mentioned in the FAO’s International Treaty on Plant Genetic Resources for Food and Agriculture, for instance. As I understand the term in that context, it applies to landraces, an area the UPOV Convention does not cover at all. Our concern is the protected varieties and, of course, the breeder must be in a position to authorise, or to refuse to authorise, their reproduction, for otherwise, there would be no economic incentive to create improved varieties. Insofar, I see no conflict.

Let me return to India, where lentils and other pulses play a major part in traditional diets. Many Indians are vegetarian and “dal” provides protein. Recently, the prices for pulses have been rising as they are becoming increasingly scarce.
That is no surprise; in India there is not much private breeding of open pollinated varieties. There is a plant breeding industry in India, but it focuses almost exclusively on hybrid varieties where, for biological and technical reasons, saving of seed is not possible or only possible to a very limited extent. Other sectors of plant breeding, however, are almost not taken care of, at least not by the private sector. This is exactly my point: unless there is an economic incentive to breed and to introduce new, more productive varieties, rural development and food production will stagnate. Without denying the significance of landraces as plant genetic resources, UPOV emphasises that we need new varieties in order to respond to the challenges of the present and the future.

Questions by Hans Dembowski.