UPOV 1991 Enters into Force in Kenya: Farmers’ vs Plant Breeders’ Rights

Stephen Ndungu Karau Ambassador and Permanent Representative accession 1991 UPOV Convention Kenya Francis Gurry Director-General World Intellectual Property United Nations Geneva Switzerland 2016

H.E. Amb. Dr. Stephen Ndungu Karau, Ambassador and Permanent Representative deposits the instruments of accession to the 1991 Act of the UPOV Convention on behalf of the Republic of Kenya received by Dr. Francis Gurry Director-General World Intellectual Property Organization – April 11 2016 Geneva, Switzerland.

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.

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Proposed Amendments to Seeds and Plants Varieties Act

KEPHIS Seeds and Plant Varieties Amendment Act Bill 2015

Article 11 of the Constitution of Kenya recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation and includes science and indigenous technologies and intellectual property (IP) rights of the people of Kenya within the scope of elements of culture that are recognised. The Constitution goes further and states in Article 11(3) (b) as follows:

“Parliament shall enact legislation to recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya”

It is this constitutional imperative that has resulted in the recently proposed amendments to the Seeds and Plant Varieties Act (Chapter 326 Laws of Kenya). A copy of the Seeds and Plant Varieties Amendment Bill, 2015 is available here.

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Jurisdiction is Everything: Time to Merge Tribunals for Copyright, Industrial Property, Seed and Plant Varieties

tribunal judiciary kenya cms-image-000005230

As readers may know, a government taskforce had earlier recommended the merger of the three intellectual property (IP) offices dealing with copyright, industrial property and anti-counterfeit matters. The implementation of these recommendations appears to have stalled with no progress made to-date. In addition to the IP offices, there is also the matter of the various IP dispute resolution bodies created under the various IP laws: the Industrial  Property  Act establishes the Industrial  Property  Tribunal, the Copyright Act establishes the Competent Authority (akin to a Copyright Tribunal), the Anti-Counterfeit Act  establishes the Anti-Counterfeit Agency and the Seeds and Plant Varieties Act establishes the Seeds and Plant Tribunal.

Recently, the Judiciary Working Committee on Transition and Restructuring of Tribunals developed a Draft Tribunal Bill 2015 to help domicile all tribunals under the Judiciary. This is an important step that could benefit IP owners and users in the quick and expert settlement of various IP-related disputes.

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ARIPO Adopts Arusha Protocol for the Protection of New Varieties of Plants

Ghana signs Arusha Protocol for the Protection of New Varieties of Plants 2015 ARIPO

The ARIPO Protocol for the Protection of New Varieties of Plants has been adopted by the Diplomatic Conference that was held in Arusha, the United Republic of Tanzania on July 6-7, 2015. Hence the name of the adopted Protocol is: Arusha Protocol for the Protection of New Varieties of Plants. A copy of the Arusha Protocol is available here.

According to ARIPO, the Arusha Protocol seeks to provide Member States with a regional plant variety protection system that recognizes the need to provide growers and farmers with improved varieties of plants in order to ensure sustainable Agricultural production. Eighteen Member States of the Organization were represented at the Diplomatic Conference namely; Botswana, The Gambia, Ghana, Kenya, Liberia, Lesotho, Malawi, Mozambique, Namibia, Rwanda, São Tomé and Príncipe, Sierra Leone, Sudan, Swaziland, United Republic of Tanzania, Uganda Zambia and Zimbabwe.

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International Women’s Day: Celebrating African Women Leaders in Intellectual Property

Angélique Kidjo won her 2nd Grammy Award in 2015. The world renowned Beninoise singer-songwriter is Vice President of the International Confederation of Societies of Authors and Composers (CISAC). CISAC is the umbrella body for copyright societies worldwide.

Angélique Kidjo won her 2nd Grammy Award in 2015. The world renowned Beninoise singer-songwriter is Vice President of the International Confederation of Societies of Authors and Composers (CISAC). CISAC is the umbrella body for copyright societies worldwide.

Celebrated globally on 8th March, this year’s International Women’s Day highlights the Beijing Declaration and Platform for Action, a historic roadmap signed by 189 governments 20 years ago that sets the agenda for realizing women’s rights. The official United Nations theme for International Women’s Day 2015 is “Empowering Women – Empowering Humanity: Picture It!”

“When we unleash the power of women, we can secure the future for all” – United Nations Secretary-General Ban Ki-moon in his message for International Women’s Day 2015.

To mark this year’s International Women’s Day (#IWD2015), this blogger has compiled a list of some of the (influential) women (leaders) in intellectual property (IP) from Kenya and throughout English-speaking Africa. The women listed below (in no particular order) are primarily drawn from IP offices, academia, non-governmental organisations and the IP legal fraternity.

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Constitutionalisation of Intellectual Property in Africa: Some Experiences from Kenya

KENYA-CONSTITUTION-KIBAKI

This month’s edition of the World Intellectual Property Organization (WIPO) publication “WIPO Magazine” contains an article on Egypt and Tunisia’s new constitutions which ‘recognize the importance of the knowledge economy and intellectual property (IP) rights’. This article by one Ahmed Abdel-Latif titled: “Egypt and Tunisia Underscore the Importance of IP” reads in part:

“For the first time, the constitutions of these two countries provide for the protection of IPRs although in different ways. In both constitutions, the wording is succinct: the Egyptian Constitution stipulates that the “State shall protect all types of intellectual property in all fields” (Article 69) and the Tunisian Constitution indicates that “intellectual property is guaranteed” (Article 41).”

In addition, the article notes that ‘both constitutions contain a number of clauses on the protection of culture, health, and heritage which can influence both the interpretation and implementation of the IP rights clauses’.

With regard to the “challenge of implementation” of the IP rights clauses in the two constitutions, the article astutely points out that:-

“(…) ultimately the manner in which these clauses are implemented through national laws and judicial decisions will be critical in ensuring that a balanced approach to IP protection is adopted; one which takes into account the level of development of each country and one which is supportive of their respective public policy objectives.”

At this juncture, it may be instructive for this blogger to share some views on Kenya’s experiences thus far with constitutionalised IP protection since it begun in 2010. The pre-2010 Constitution of Kenya did not capture concerns on innovation and IP. In that Constitution, sections 70 and 75 capturing the Bill of Rights provided substantive property guarantees limited to real property as opposed to technological innovations, cultural innovations and IP. However in 2010, there was a paradigm shift which resulted in the promulgation of a new Constitution. This new social contract expressly protects IP, innovation and technology transfer. For the first time in Kenya’s history, IP norms were constitutionalised. First, Article 260 (c) includes IP in the definition of “property”. Secondly, Article 40 (5) obliges the State to support, promote and protect the intellectual property rights of the people of Kenya. In the same breath, Article 69(1) (c) and (e) mandates the State to protect and enhance intellectual property, traditional or indigenous knowledge of biodiversity and the genetic resources of the communities and protect genetic resources and biological diversity.

Under Article 11(1), the Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. And mandates the state to promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; recognise the role of science and indigenous technologies in the development of the nation; and promote the intellectual property rights of the people of Kenya.

Parliament is also mandated to enact a law to ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage. This legislation should also be passed which recognise and protects the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

So far, it appears that the judicial branch of government has risen to the challenge of implementation of the constitutional IP provisions, with due deference to the executive branch aptly represented by the Kenya Industrial Property Institute (KIPI), Kenya Copyright Board (KECOBO) and the Anti-Counterfeit Authority (ACA). Notable court decisions directly related to constitutional IP protection include the Patricia Asero case (previously discussed here, here and here), the Digital Migration case (previously discussed here and here – this matter is currently before the apex court, Supreme Court of Kenya), the Sanitam case of 2012 (previously discussed here).

Away from the courts, KECOBO and KIPI are leading an inter-ministerial taskforce on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources. This taskforce has already finalised work on a draft Bill on the protection of TK and TCE (previously discussed here and here). In the meantime, several state agencies dealing with IP have held consultative forums to develop a National IP Policy (previously discussed here). Still within the Executive, the Ministry of Sports, Culture and the Arts has established a multi-stakeholder committee to finalise work on a draft National Music Policy (previously discussed here and here). It is hoped that the forthcoming merger of KIPI, KECOBO and ACA (previously discussed here, here and here) will increase the Executive’s capacity to spearhead the implementation of the various constitutional provisions relating to IP.

All in all, the road from adaptation to full realisation of constitutionally guaranteed IP protection is long, arduous and involves several levels of engagement.

Plant Breeders vs Farmers: SADC Draft Protocol for the Protection of New Plant Varieties

SADC Conference

Plant Breeders rights became an accepted branch of intellectual property with the adoption of the International Convention for the Protection of New Varieties of Plants (UPOV) in 1961.

The Convention protects the variety of the plant not the plant itself therefore the subject matter of protection is the variety and not the whole plant. A variety is a new plant that is distinct from any other variety that is known to agriculture or published in any botanical literature. A variety is ‘known to agriculture’ if man has cultivated it. A variety is ‘known to botanical literature’ if it has been recorded. Therefore any person who discovers a new plant variety that is wild, that man can use or domesticate, can apply to the competent authority for a Grant of a Plant Breeder’s Right.

The UPOV Convention 1961 was subsequently amended in 1978 and 1991. Kenya was the first country in Africa to domesticate the UPOV Convention. Kenya’s Seed and Plant Varieties Act Chapter 326 is modeled on UPOV 1961. South Africa’s Plant Breeders’ Rights Act 1976 is modeled on UPOV 1978. For a practical look at the protection of plant breeders rights in South Africa, this blogger has previously discussed the recent High Court decision in Voor-Groenberg Nursery CC and Another v Colors Fruit South Africa (Pty) Ltd [2012].

Recently, it has been widely reported (see: here, here and here) that over 80 civil society organisations from the Southern African Development Cooperation (SADC) region and beyond have prepared a detailed submission to the SADC Secretariat calling for the rejection of the SADC Draft Protocol for the Protection of New Varieties of Plants. One of the key contentions raised by these civil society groups was that the Draft Protocol is modeled on the “one-size-fits-all” UPOV 1991. UPOV 1991 abolishes the farmers’ privilege in UPOV 1978 which allowed farmers to use the harvested material from plant varieties as propagating material but this privilege can be withdrawn at any time. Looking at Article 27 of the Draft Protocol, the farmer’s exception is limited in scope as it “only allows an exception for subsistence farmers.”

Furthermore, all countries acceding to UPOV 1991 were required to protect at least 15 plant genera and species for the first 10 years, whereas the draft protocol requires protection of all plant genera and species and does not provide for any transition period.

UPOV 1991 also introduces the concept of an essentially derived variety (EDV), which is expressly excluded from plant variety protection. This concept was intended to address the problem of new breeders that would modify an existing variety and seek to have such a variety protected under plant breeders rights. With the concept of EDV, any plant variety claimed to be new but whose essential characteristics or features are similar to existing plant varieties shall not be deemed to be new. The same concept of EDV can be found at Article 26(3) of the Draft Protocol.

Thus, the Draft Protocol, like UPOV 1991, is perceived as a move to strengthen the hands of the breeder to the detriment of the farmer by allowing greater privatisation of seeds and plant material.

The fundamental question which arises in this context is the role of IP in food security. The exceptions made for farmers are intended to be the last safety valve for the developing countries as well as a key balancing factor on the issue of food security. However, poor farmers under UPOV 1991 are required to buy seeds even for subsistence farming. The consequence is that farmers are now using low quality seeds for planting because they can no longer access the original seed. This has led to cases of low yield, famine and malnutrition all partially blamed on IP system.

In the early 1990s, plant breeding was a thriving industry involving not only by individuals but also multinationals like Monsanto, pharmaceutical companies like GlaxoSmithKline and even national parastatals like the Kenya Agricultural Research Institute (KARI). This period also saw the emergence of genetic use restriction technologies (GURTS) popularised by Monsanto. For instance, the one generational seed also know as ‘terminator seeds’ were seeds that were inserted with a gene that meant farmers could only plant the seeds once, thereafter it would only produce weeds.

This campaign to strengthen plant breeders rights and curb infringement by farmers, in the early 1990s culminated in the 1994 TRIPS Agreement of the WTO. Article 27 paragraph 3(b) expressly stipulates that all member states shall provide for the protection of plant varieties either by patent or by an effective sui generis system or a combination thereof. Sui generis in this context has been interpreted to mean either UPOV 78 or UPOV 91 or any other effective system.

Civil society organisations opposed to the draft SADC protocol argue that this flexibility in Article 27(3) of TRIPS has been removed without taking into account the different types and needs of farming systems within the SADC region. This blogger is persuaded by the argument by civil society and refers to TRIPS which makes it optional for WTO members to either opt for UPOV or a sui generis system for protection. This blogger argues that given the socio-economic differences among SADC member countries, a sui- generis mechanism would be better suited for plant variety protection within the 15 member states of SADC. The process of developing a sui generis system would allow for wider consultations between plant breeders and farmers with the aim of arriving at a mutually satisfactory balance between the various rights and interests involved.

Given the legally binding nature of protocols generally, this blogger argues that SADC member countries must seriously consider the submissions of the civil society before deciding on whether to adopt or reject the Protocol. Once the Draft Protocol is ratified by two thirds of the member states, it becomes a legally binding document committing all SADC Member States to the objectives and specific procedures stated within it.