On May 11th 2016, the International Convention for the Protection of New Varieties of Plants (UPOV Convention) of December 2, 1961, as revised on March 19, 1991 entered into force in Kenya. As readers know, Kenya was the first country in Africa to join Union internationale pour la protection des obtentions végétales (UPOV) when it became a member on May 13th 1999 and subsequently domesticated the 1961 Act of the UPOV Convention in the Kenya Seed and Plant Varieties Act Cap 326.
Previously this blogger highlighted the recently adopted ARIPO Arusha Protocol and the draft SADC Protocol which are both modelled around UPOV 1991 standards. In this connection, the entering into force of UPOV 1991 in Kenya is a significant development for both plant breeders’ rights as well as farmers’ rights.
Compared with UPOV 1961, the 1991 revision of the Convention is characterised by a widening of the scope of rights granted to breeders, a narrowing of the breeders’ exemption and a lengthening of the duration of plant variety protection.
Article 14.5 of UPOV 1991 narrows the breeders’ exemption by requiring right-holder authorisation when a new variety is “essentially derived” from a protected variety, i.e. if the new variety is very similar to the parent variety or if one requires the repeated use of the protected variety for producing the new variety. Meanwhile Article 14.1 expands the scope of the breeders’ right to cover any form of “production or reproduction (multiplication), conditioning for the purpose of propagation, offering for sale, selling or marketing, exporting, importing, or stocking for any of the above purposes”. In other words, the scope of the right under UPOV 1991 extends to include any use of the protected variety for propagation purposes. With regard to duration of plant variety protection, the right conferred was lengthened from a period of 15 years under Article 8 of UPOV to a minimum period of 20 years.
It is clear that the UPOV Convention in particular UPOV 1991 were created with reference to developed-world farming practices whereas studies in Africa show that saving, using, exchanging and selling farm-saved seed is the main channel through which farmers access seed and planting material. UPOV 1991’s restrictions on the freedoms farmers can exercise in relation to protected plant varieties points to an apparent conflict with Kenya’s international obligations under the International Treaty on Plant Genetic Resources for Food and Agriculture (the Plant Treaty) ratified on June 29th 2004. As a result, some may argue that Kenya’s move from UPOV 1961 to UPOV 1991 means that rights of farmers are generally marginalised and subordinated to the rights of breeders, as seen in the regional instruments by ARIPO and SADC. In this connection, it is noted that while 19 out of the 25 African states that are members of ARIPO and SADC are parties to the Plant Treaty, the Arusha Protocol and SADC Draft Protocol do not reflect any specific measures to protect and promote farmers’ rights in spite of provision of that sort existing in the Plant Treaty.
Another considered argument against modelling plant variety protection law on UPOV 1991 has been that the existing UPOV-modelled systems in Africa appear not to be acting as incentives for investment in plant-breeding. In this regard it has been noted that since the OAPI system was operationalised in 2006, only 12 grants have been made across 17 countries and mostly for trees not agricultural crops. Also notable is the fact that in the countries with national systems in place, most of the applicants for registration of plant variety protection are foreign, not local – potentially a positive indicator for proponents of foreign direct investment, but a negative indicator for civil society organisations prioritising local investment in support of local farmers.
As a result, Kenya should ensure that its plant breeders rights regime is carefully regulated so as to bridge the gap between access to new plant varieties by local smallholder farmers and protection of breeders’ rights in these new varieties. It would be unwise to allow private seed companies to become the primary providers of new seeds at the expense of much-needed public breeding programs which foster agrobiodiversity and climate-smart agriculture.