Feb. 27, 2019
The Regional Comprehensive Economic Partnership (RCEP) trade agreement under negotiation among Asia and Pacific nations must not include measures that would undercut countries’ ability to protect diverse local farming systems and sustainable plant genetic resources for food and agriculture, a range of Asian nongovernmental organisations argue. Groups in India, Malaysia and the Philippines this week specifically called for the RCEP not to include the high-level protections under the International Union for the Protection of New Varieties of Plants (UPOV).
The 25th round of negotiations for Regional Comprehensive Economic Partnership (RCEP) held in Bali, Indonesia from 19-28 February. Indonesian activists reportedly stormedreportedly stormed the negotiating site this week.
“The undersigned signatories representing agricultural and farmer groups from all over India are deeply concerned and writing to you to emphasise that the Regional Comprehensive Economic Partnership (RCEP) negotiations must not place any obligation on India or any other developing country with respect to intellectual property(IP) on seed and planting materials,” states the 25 February Indian sign-on letter to Shri Modiji (Prime Minister Modi). The letter shows dozens of signatories.
According to them, the demand by some governments in the RCEP negotiations to include the 1991 UPOV Convention would force countries to raise intellectual property protection beyond the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
“It is important to recall that Article 27.3(b) of the WTO TRIPS Agreement only requires WTO member countries to make available an effective sui generis system for the protection of plant varieties,” the letter states. “Countries have complete freedom to adopt a system suitable to their agricultural condition and needs. Nothing in the RCEP negotiations should affect and limit this freedom.”
The Indian groups also referenced the Nagoya Protocol and access and benefit-sharing. “The ABS regime requires that the prior informed consent of local seed keepers be taken, that the source be acknowledged if seed material is taken from them and that they are legally entitled to a share of the benefits that accrue to the user/accessor upon commercialisation of farmers’ accessed material/knowledge,” they said. “These will be rendered meaningless if UPOV 1991-type breeder rights are granted to the seed industry, whether public sector or private companies. Adopting UPOV means giving preference to IP-protected seeds in the market.”
“A major concern with the UPOV system is that [it] facilitates bio-piracy of genetic resources,” argued a Malaysian civil society and farmers memorandum of 21 February. “It does not recognize the principles of the CBD that access to local genetic resources should be subject to prior informed consent (PIC) and fair and equitable benefit sharing (BS). Instead it allows PVP protection for varieties developed by misappropriating local genetic resources. Hence UPOV conflicts with CBD and efforts in the international fora such as the WTO and WIPO, whereby Malaysia and other developing countries have advocated for the right to require applicants to disclose origin, proof of PIC and benefit sharing as a condition for receiving intellectual property (IP) protection.”
“In short,” the groups said, “UPOV system offers an extremely rigid and inappropriate legal framework for developing countries. It was developed in the 60s’ for seed production modalities prevailing in developed countries especially in Europe. Malaysia and other developing countries never participated in UPOV negotiations. Hence, unsurprisingly multiple independent experts recommend that developing countries should not join or implement the UPOV system.”
The Malaysian plant variety protection law of 2004 enshrines the protection of farmers’ seed systems, and the right of the government to refuse the plant breeder’s right in the public interest, while also requiring the source of genetic material to be disclosed in registration.
“The UPOV system is simply unsuitable for our country and its people,” argued the groups from the Philippines. “The process of crafting a national law, the Plant Variety Protection Act of 2002 has not been insulated from pressures to comply with the UPOV system. Such is the power and influence of UPOV.”
“The UPOV system lacks policy space for our government to implement measures to reflect national realities, protect public interests and farmer seeds systems,” they said. “In fact, the UPOV system conflicts with requirements of Article 6 and 9 of the ITPGRFA [International Treaty on Plant Genetic Resources for Food and Agriculture]. Article 6 requires Contracting Parties to develop and maintain appropriate policy and legal measures that promote the sustainable use of plant genetic resources for food and agriculture including supporting the development and maintenance of diverse farming systems, promote participatory plant breeding, strengthen the capacity to develop varieties adapted to social, economic and ecological conditions, broaden the genetic base of crops etc.”
“Article 9 of the ITPGRFA states it is government’s responsibility to take measures to “protect and promote” Farmers’ Rights including farmers’ right to save, use, exchange and sell farm saved seeds, their right to the protection of traditional knowledge and to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture,” the groups continued, adding:
“The Philippines must have full policy space to implement a PVP system that is appropriate for its agricultural system, protects its local plant genetic resources, its farmers and safeguard public interest as well as enable it to take measures to implement the Declaration on the Right of Peasants and other people working in rural areas.”