Different systems of IPR globally on Plant variety protection and Breeder Rights

The agricultural sector is the backbone of the economy and employment in most developing countries. Its share of the gross domestic product (GDP) is often more than 50 percent and, in some countries, up to 80 percent of the active population earn their living in agriculture. But in most of these countries, agricultural productivity is extremely low, with yields often low and unstable from year to year. A large proportion of this agricultural activity is subsistence farming that generates no financial income and is, in many cases, insufficient to feed farmers’ families. Under those circumstances, the agricultural sector is unable to contribute to a country’s overall economic development and, even less, to respond to the challenges of feeding a growing population, relieving rural poverty and mitigating climate change.

One of the reasons for poor agricultural performance in many developing countries is a lack of progress in improving the performance of traditional plant varieties over the centuries. In contrast, the graphs (at right) illustrate progress achieved in wheat yield in France and maize yield in the U.S. over a period of two centuries. Clearly, the advent of modern plant breeding has enabled yields – which previously were stagnating or declining – to increase substantially. It is estimated that improved varieties have accounted for more than 50 percent of overall yield increases for important crops in Europe. The remaining growth is due to improved agricultural techniques, including fertilizers and better pest and disease control. But the improvement in yield is not the only major objective in modern plant breeding. Others include resistance to environmental and biological stress and quality. 

Government measures and increased public and private investment in the seed sector are long-term requirements if agriculture is to meet the challenge of food security in the face of population growth and climate change – so concluded the September 2009 Second World Seed Conference. Specifically, intellectual property (IP) protection was deemed to be crucial to any sustainable contribution of plant breeding and seed supply. An effective plant variety protection (PVP) system was identified as a key enabler for investment in breeding and the development of new varieties of plants.

The conference considered that UPOV membership played an important role by instilling in breeders the confidence to introduce new varieties. UPOV seeks to provide and promote an effective system of PVP, in order to encourage the development of new varieties of plants for the benefit of society.

Encouraging sustainable breeding programs

Plant breeding requires know-how and investment in terms of time and human and financial resources. It may take 15 years to create a new variety with improved features and an additional number of years for it to be introduced into the market and taken up by farmers.

In many cases, it is easy to reproduce a variety and, perhaps, thereby to compete with the breeder on the commercial seed market. That, however, would be detrimental to any breeding program, and farmers in developing countries suffer most from the lack of sustained breeding programs. Experience shows that public sector breeding alone is not enough, for various reasons, to substantially enhance agricultural productivity in developing countries. It is thus vital to encourage creativity and investment in private and public breeding through an effective PVP system, which provides breeders with a legal framework and administrative structure for controlling reproduction of their varieties and thereby recovering their investment.

Protection under the UPOV Convention means, for a period of at least 20 years (25 years for trees and vines), certain acts with propagating material of a protected variety require the breeder’s authorization, including the following:

  • production or reproduction;
  • conditioning for the purpose of propagation;
  • offering for sale;
  • selling or marketing;
  • exporting;
  • importing; and
  • stocking for any of the above purposes.

The UPOV Convention further stipulates a number of exceptions of particular relevance to developing countries. Compulsory exceptions that do not require the breeder’s authorization include reproducing material for experimental purposes, for breeding other varieties and for private and non-commercial purposes. Optional exceptions concern farm-saved seed from the protected variety farmers use for propagating on their own holdings, within reasonable limits and subject to safeguarding the legitimate interests of the breeder.

It is important to stress that, according to the UPOV Convention, acts done privately and for non-commercial purposes are not subject to breeders’ rights. That means subsistence farmers – the majority in many developing countries – who propagate a protected variety to produce a food crop for consumption solely by the farmer and the dependants living in his household, may be considered excluded from the scope of the breeder’s right. That compulsory exception may thus be a turning point for subsistence farmers to escape the cycle of poverty, through improved varieties becoming available as a consequence of that country’s accession to UPOV.

Development and impact of the UPOV system

The UPOV Convention, adopted in 1961, entered into force in 1968. The Convention was amended in 1972, 1978 and 1991. UPOV has 68 members, 44 of which are bound by the 1991 Act of the Convention. The only internationally harmonized, effective sui generis system for plant variety protection, UPOV continues to expand. A further 17 states and one international organization have initiated procedures for becoming a member, and another 45 states have contacted UPOV regarding assistance in developing PVP legislation.

Key to an effective PVP system are incentives for breeders to develop new varieties and ensuring that a lack of suitable protection is not a barrier to those varieties’ availability. To assess the overall global impact of an effective PVP system, one must consider the number of new varieties. 

Plant genera and species

The UPOV Convention recognizes the importance of encouraging breeding in all plant genera and species and not attempting to pre-determine for which genera and species breeding would, or might, be beneficial. In 1975, protection was granted to varieties of approximately 500 plant genera or species – growing to around 900 by 1985 and over 1,300 by 1995. It is estimated that, by 2008, protection had been sought for varieties of more than 2,500 genera or species, also an indicator of increased contribution of plant breeding to biodiversity.

Benefits of use

The development of PVP in the Asia-Pacific region illustrates a particular pattern of PVP use by breeders over time. Observations of PVP in China, the Republic of Korea and Viet Nam – new UPOV members – show the system is first used by residents for domestic applications, followed by applications from non-residents that increase over time. The next step – which can be seen in long-time UPOV members such as Australia, Japan and New Zealand – is for breeders from those countries to apply for protection in other UPOV member countries (foreign applications).

Findings show that introducing the UPOV system contributes to more diverse types of breeders and encourages breeding activity. The public sector is often an important PVP user, and PVP also encourages investment in plant breeding. The graph above reflects, for example, the growth in government investment in plant breeding in the Republic of Korea (UPOV member since 2002) under the Research and Development Fund for Plant Breeding. Under this scheme, the government matches private investment with public funds, the graph thus reflecting an equivalent, significant increase in private investment.

Findings also show that introducing the UPOV system contributes to improved plant varieties. The impact of protection on the improvement of varieties can be seen in the extent to which new protected varieties gain in market share, indicating their value to farmers. In some, mainly agricultural, crops involving a seed certification scheme, the importance of “new” protected varieties can be estimated by the proportion of certified seed comprising new varieties to the total certified seed for the crop (measured in the area of certified seed production). In this regard, the UPOV Report on the Impact of Plant Variety Protection (Impact Study) illustrates, for Argentina, the strong growth in new protected varieties which is a good indicator of market demand and, therefore, they’re worth to farmers.

Finally, introducing the UPOV system and joining the Convention have been found to contribute to access to foreign varieties, thereby enhancing domestic breeding programs. An almost universal observation following from the Impact Study was that introducing the UPOV system yielded a large number of applications for protection from foreign breeders, particularly in the ornamental sector.

Concluding Thoughts

During its 50 years of development and application, UPOV’s PVP system has proven effective in encouraging the creation of new varieties of plants and in introducing those varieties into agricultural and horticultural practice for the benefit of society. Plant variety protection provides legal protection of a plant variety to a breeder in the form of Plant Breeder’s Rights (PBRs). PBRs are intellectual property rights that provide exclusive rights to a breeder of the registered variety. In India, the Plant Variety Protection and Farmers Rights (PPVFR) Act, 2001 is a sui generis system that aims to provide for the establishment of an effective system for the protection of plant varieties and the rights of plant breeders and farmers.

Spread the word

Share on facebook
Share on twitter
Share on linkedin
Share on whatsapp
Share on email