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4-Patents: African alternative to UPOV

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TITLE:  Alternative to UPOV for the Protection of New Plant
SOURCE: Prof Dr Johnson A Ekpere, Consultant
        Organisation of African Unity
        sent by GRAIN, BIO-IPR docserver
DATE:   May 17, 1999

----------------- archive: ------------------


Paper distributed at the UPOV-WIPO-WTO Joint Regional Workshop on
"The Protection of Plant Varieties under Article 27.3(b) of the
TRIPS Agreement", Nairobi, 6-7 May
Prof. J. A. Ekpere, Consultant
Scientific, Technical and Research Commission of the Organization
of African Unity

May 1999


The World Trade Organization (WTO) is sponsoring a series of
meetings in developing countries to encourage governments to
enact patent-like legislation over basic food, medicinal and
export crops. The meetings are organized under the auspices of
the Union for the Protection of New Varieties of Plants (UPOV),
World Intellectual Property Organization (WIPO) and World Trade
Organization (WTO). One such meeting was organized for the
fifteen Francophone Members of the Organization Africaine de la
Propriete Intellectuelle/African Intellectual Property
Organization (OAPI) in Bangui, Central African Republic on
February 22-25, 1999. A similar meeting was organized for Asia in
Bangkok, Thailand on March 18-19, 1999. The meetings were
convened to discuss how countries are planning to implement the
biodiversity related provisions of the WTO Agreement on Trade
Related Aspects of Intellectual Property Rights - (TRIPs). TRIPs
requires developing countries to grant monopoly rights over new
varieties of plants and animals before January 1, 2000, either
through patenting or sui generis legislation.

The principal objective of the UPOV-WIPO-WTO Joint Regional
Workshops on "The Protection of Plant Varieties under Article
27.3(b) of the TRIPs Agreement" is to sell itself (UPOV 78 or
UPOV 91) as the best solution for governments to fulfill their
TRIPs obligation. This may be desirable for most developed
countries, but not applicable nor beneficial to the developing
countries in general and Africa in particular.

Most developing countries are not members of UPOV because they
have no compulsion to do so and principally because it does not
address their needs. The basic philosophy of UPOV 91 as
entrenched in the concept of breeders' right is totally alien to
developing countries. It grants monopoly rights to plant breeders
and corporate firms without recognition of farmers' rights.

The UPOV system is predicated on the philosophy of industrialized
economies where it was conceived with the objective of protecting
the investment and interest of large and influential seed
companies who employed plant breeders. The situation is quite
different presently in developing countries where the players in
the seed sector and major seed producers are small farmers and
farmers' cooperatives. Consequently, the law should appropriately
focus on protecting the farmer and his interest as a producer and
consumer of new plant varieties.


The UPOV system is a patent type system formulated by countries
where agriculture is a business rather than a way of life. In
these countries the farming community comprises only 1-5 percent
of the population. Their agricultural production profile is a
sharp contrast from the agricultural systems of the developing
countries. They do not have a large number of small and marginal

In Africa, as in most developing countries, the farmer plays a
significant role in the development of new plant varieties (as
breeder) through crossing and selection. These varieties are
released for use by other farmers, family members and friends. In
most cases, it is these pre-selected planting materials that the
research scientist acquires and uses in his/her breeding
programme. Agricultural research and plant breeding (crop
improvement) is undertaken in Africa, principally by public
institutions (Research Institutes, Universities etc.) and funded
through tax payers' money. The result of such research is
therefore public property.

The laws of UPOV are based on a legal system where plant breeding
research is conducted in corporate (private) institutions and
funded through company finances.

The high capital investment of seed companies in the breeding
method is the justification for seeking stringent intellectual
property rights. This procedure though desirable for the
developed countries is not applicable in the developing countries
in general and Africa in particular, considering their level of
agricultural development.

Under the World Trade Organization (WTO) Agreement on Trade
Related Aspects of Intellectual Property Rights (TRIPs) all
signatory governments must adopt some form of intellectual
property rights over plant varieties. BUT, they are under NO
OBLIGATION to adopt the highly restrictive UPOV-91 Convention
which limits the rights of farmers to save "proprietary" seed for
reuse. Instead, they could adopt a sui generis (specially
designed) legislation for the protection of plant varieties as
well as exercise their ordre public options under TRIPs to
prevent privatization of plants and biodiversity.


African countries through the Scientific, Technical and Research
Commission of the Organization of African Unity are currently
discussing alternative options (within a sui generis legislation)
to meet their obligations to TRIPs as well as the 1992 Convention
on Biological Diversity. This is so because the WTO Agreement is
not consistent with the aspirations of African indigenous
communities which represent the innovators and custodians of
biodiversity so necessary for the survival of human kind on this

At its Summit in Ouagadougou, Burkina Faso, (June, 1998) African
Foreign Ministers and Heads of State and Governments agreed to
develop an African Common Position to safeguard the sovereign
right of Member States, the vital interest of their local
communities to protect, conserve and control access to and use of
their biological diversity, while forging alliances with other
countries of the South in the revision of Article 27.3(b) of the
TRIPs Agreement in 1999.

In January 1999, in Lusaka, Zambia, African Representatives at a
Regional Workshop on "Understanding Biodiversity Related
Instruments" agreed to develop a sui generis intellectual
property rights legislation to cover plants, compatible with
TRIPs but including farmers rights - the right of farmers to
exchange seeds and save seeds for replanting. Similarly, a six
day workshop of over 40 Senior Trade Policy officials from 21
Eastern and Southern African countries in Kampala, Uganda (March
4-9, 1999) criticized the TRIPs Agreement calling attention to
fundamental imbalances inimical to the development of Africa.
They cited several adverse effects which include constraint on
domestic technological development and barriers to technology
transfer and monopolistic high prices (on medicinal products,
seeds and software),

As far as Africa is concerned, they opined that the most serious
problem with TRIPs is that it fails to recognize the rights of
local communities to their traditional and indigenous knowledge.
This could lead to unjustified patenting of their knowledge,
technologies, practices and biological resources by corporate
firms. In the context of the review of Article 27.3(b) of the
TRIPs Agreement, the trade policy officials advocated the
exclusion of life forms and all biodiversity (biological
materials) from patentability. They indicated that African
countries should develop suitable sui generis systems of
protection of plant varieties, indigenous knowledge,
technologies, practices and community rights consistent with
their national priorities and ensure that the TRIPs Agreement
conforms with the objectives of the Convention an Biological
Diversity. Yet at another Regional Workshop, on Implementation of
Article 27.3(b) of the TRIPs Agreement in Harare, Zimbabwe (March
22-24, 1999), the participants agreed to convene further regional
meetings to develop an "African sui-generis model Legislation"
soon and articulate a common position on the TRIPs review.

Africa's response to UPOV and review (implementation) of Article
27.3(b) of the TRIPs Agreement is predicated on Africa's
commitment to the spirit, principle and relevant provisions of
the Convention on Biological Diversity, the Sovereign right of
states over the ownership of their biological and natural
resources, maintain knowledge, innovations, technologies and
practices of indigenous people subject to national legislation as
well as equitable sharing of benefits arising from the
utilization of such knowledge, innovations, technologies and
practices. Africa is a multi-ethnic continent with deep moral,
religious and cultural values. Its population consists of a large
array of indigenous people whose environment comprising trees
(sacred groves), crops, animals, birds, fish, microorganisms,
soils, etc. are an integral component of their total lifestyle in
fellowship with their fellowmen. Africa's long history, culture,
spiritual and political existence has survived centuries of
careful growth and development consistent with the available
benefits of western civilization. These values are currently
being threatened by privatization, multinational corporations,
unethical science and technology outcomes through intellectual
property rights on life forms. These incursions are totally at
variance with Africa's tradition and culture and are therefore

Africa is very much in favour of science, technology and
innovation derivable from its own natural resources and culture.
The development of new technologies and the dissemination of
innovation are, indeed, a desirable on-going process that must be
supported by Governments and Nations with appropriate incentives
and rewards. But the type of rights that Africa needs arc not
intellectual property rights monopolized through patenting, but
rights that support local communities, farmers, Indigenous
peoples and their efforts over the past millenia to conserve and
enhance biodiversity for the benefit of human kind in the future.

In the light of the on-going initiatives in Africa and the review
of Article 27.3(b) of the TRIPs Agreement in progress, it is
premature to sign on to UPOV-91. Not only will such an action be
out of step with other developments in Africa, it would lock
governments and people of the continent in legislation that few
developing countries are willing to adopt and which is far more
restrictive than is necessary to meet Africa's international

For further information, please contact

Scientific, Technical and Research Commission of the
Organisation of African Unity (OAU/STRC)
PMB 2359
Lagos, Nigeria
Tel: (234-1) 263 34 30 or 263 32 89
Fax: (234-1) 263 80 93
OAU/STRC's email:
Consultant's email:


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