ACKNOWLEDGEMENT

I am feeling highly elated to work on the project topicINTERNATIONAL

CONVENTION ON PROTECTION OF NEW VARIETIES OF PLANTS under the guidance of my
faculty ofPublic International Law, Mrs Sugandha Sinha.I am very grateful to her for hers
exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have
tried my best to pave the way for bringing more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project
was not possible. Apart from all these, I want to give special thanks to the librarian of my
university who made every relevant materials regarding to my topic available to me at the
time of my busy research work and gave me assistance. And at last I am very much obliged to
the God who provided me the potential for the rigorous research work.

At finally yet importantly I would like to thank my parents for the financial
support.

-----------Thanking you

C.N.L.U.

RESEARCH METHODOLOGY
Research Methodology
The project will be basically based on the doctrinal method of research as no field work is to be
done on this topic.

Aims & Objectives

To do an in depth analysis of International Convention on Protection of New Varieties of Plants. To
also know why protection of varieties of plants is necessary and does it work.

Hypothesis
The International Union for the Protection of New Varieties of Plants(UPOV) is beneficial for
developing countries like India and to its farmers.

Sources of Data
The whole project will be made with the use of secondary source. The following secondary sources
of data will be used in the project1. Books
2. Websites

Type of Study
For this topic, the researcher has opted for Descriptive and Explanatory type of study as in this
topic, the researcher will be providing the descriptions of the existing facts.

CONTENTS

1. Introduction to UPOV
2. Plant Innovation and Plant Variety Protection
3. The UPOV System and World
4. UPOV and Rights of Farmers- An Indian Perspective
5. Conclusions and Recommendations

1.INTRODUCTION to UPOV

Many countries, including developing countries and countries in transition to a market economy, are
considering the introduction of a system for the protection of new varieties of plants (PVP system).
Most countries which have already introduced a PVP system have chosen to base their system on
the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in
order to provide an effective, internationally recognized system. In order to provide a meaningful
study on the impact of PVP it is important to understand the purpose of such a system of intellectual
property rights and, equally important, aspects which are not appropriate to be included within the
realms of such a system. With respect to the purpose of a PVP system, UPOV clarifies that its
mission is To provide and promote an effective system of plant variety protection, with the aim of
encouraging the development of new varieties of plants, for the benefit of society. Thus, the UPOV
system of PVP is designed to encourage innovation in the field of plant breeding. In that respect, the
1991 Act of the UPOV Convention recognizes that it is important to encourage breeding in all plant
genera and species and not to pre-determine for which genera and species breeding would, or could,
be beneficial. An important corollary to this principle is that it is inappropriate to conclude that a
PVP system is not effective because it does not encourage breeding in a particular crop.1
The aim of the International Union for the Protection of New Varieties of Plants (UPOV) is to
provide and promote an effective system of plant variety protection, with the aim of encouraging
the development of new varieties of plants, for the benefit of society.New varieties of plants which
produce improved yields, higher quality or provide better resistance to plant pests and diseases are a
key element and a most cost-effective factor in increasing productivity and product quality in
agriculture, horticulture and forestry, whilst minimising the pressure on the natural environment.
Many other modern technologies of plant production need to be combined with high- performing
varieties in order to deploy their full potential.2 The tremendous progress in agricultural productivity
in various parts of the world is largely based on improved varieties.

1http://www.upov.int/overview/en/

2http://www.upov.int/export/sites/upov/en/about/pdf/pub437.pdf

Plant breeding requires considerable investment in time and resources. However, it can be relatively
quick and easy to reproduce new varieties. Without the ability to cover their investment, breeders
will be unable to invest in breeding. By making the reproduction and commercial exploitation of
varieties subject to the breeders authorisation, a system of plant variety protection based on the
International Convention for the Protection of New Varieties of Plants (UPOV Convention)
provides the breeder with the possibility to recover investment in plant breeding work.
The UPOV Convention provides a sui-generis form of intellectual property protection which has
been specifically adapted for the process of plant breeding and has been developed with the aim of
encouraging breeders to develop new varieties of plants.Many countries, including developing
countries and countries in transition to a market economy, are considering the introduction of a
system for the protection of new varieties of plants (PVP system). Most countries which have
already introduced a PVP system have chosen to base their system on the UPOV Convention in
order to provide an effective, internationally recognized system.3

2.PLANT INNOVATION AND PLANT VARIETY

PROTECTION
In an effective system of PVP the development of new varieties of plants will be encouraged where
there is commercial viability, but in cases where there is no existing, or potential, commercial
market for varieties, the presence of a PVP system should not be expected to encourage the
development of new varieties. Reference to a potential commercial market is a recognition of the
fact that an effective PVP system can lead to the creation and/or increased availability of new
varieties which allow a market demand to be met, which it was not possible for farmers or growers
to satisfy without such new varieties.4
Where there is no commercial market for a particular crop, but where plant breeding is still
considered to be necessary, breeding may be supported by the public sector. Such a situation in a
particular crop should, however, be seen alongside the overall benefits of the PVP system in relation

3http://www.upov.int/overview/en/

4http://www.upov.int/overview/en/variety.html

to the availability of improved varieties for farmers and growers in commercially viable crops. Such
benefits of the PVP system can be the key to overall economic development and, in particular in
developing countries, the development of the rural economy in a way which helps farmers to break
out of the cycle of subsistence farming.
With regard to matters which do not fall within the realm of an effective PVP system, it is important
to note that it is not the role of a PVP system to regulate the marketplace. Thus, the 1991 Act of the
UPOV Convention, Article 18, states that The breeders right shall be independent of any measure
taken by a Contracting Party to regulate within its territory the production, certification and
marketing of material of varieties or the importing or exporting of such material. In any case, such
measures shall not affect the application of the provisions of this Convention, thereby clarifying
that an effective system is one which is independent of such market regulation. For that reason, it
was considered essential that any study on the impact of PVP.
systems should not be inter-twined with consideration of systems regulating production,
certification and marketing. It is further noted that the success of PVP does not depend on the
existence of systems regulating production, certification and marketing, as illustrated by the success
of PVP in sectors which are not regulated by systems such as national listing and seed certification.
This clarification should not be taken to mean that UPOV believes that there should be a particular
type or level of market regulation, but rather as a recognition that such regulation should be dealt
with by an appropriate, dedicated and independent mechanism. It is also relevant to note that, for
members of UPOV, being part of an internationally harmonised system, the introduction of a PVP
system can be established without a large infrastructure, thereby facilitating the introduction of PVP
for countries with limited resources.

The Benefits of Plant Variety Protection

In relation to the impact which might be expected from an effective PVP system, it is considered
important to recognize that the positive effects of a PVP system may be realized in the form of an
incentive to stimulate new breeders and new breeding work and/or providing a basis for more
effective breeding work at the domestic level. These positive effects could relate equally to the
private breeding sector, the public breeding sector or to partnerships between the two. However,
whilst recognizing that such an impact is of critical importance, it is also recognized that an
effective PVP system can also provide important benefits in an international context by removing
barriers to trade in varieties, thereby increasing domestic and international market scope. In short,
breeders are unlikely to release valuable varieties into a country without adequate protection. With

access to such valuable foreign-bred varieties, domestic growers and producers have more scope to
improve their production and also have more scope to export their products. It is also recalled that,
as a consequence of the breeders exemption in the UPOV Convention, domestic breeders also gain
access to valuable varieties for use in their breeding programs. This international aspect is an
important means of technology transfer and effective utilization of genetic resources.
The UPOV mission statement refers to the aim of encouraging the development of new varieties of
plants, for the benefit of society. Clearly, it is not possible to detail all the benefits, or even the
range of benefits, to society of the introduction of new varieties of plants, because the scope is
enormous. However, the range includes: economic benefits, for example through varieties with
improved yield leading to reductions in the price of end-products for consumers, or improved
quality, leading to higher value products with increased marketability; health benefits, for example
through varieties with improved nutritional content; environmental benefits, for example through
varieties with improved disease resistance or stress tolerance; and even pure pleasure, for example
with ornamental plants. Society in this context means all society, and all members of society are
consumers in some way. However, it is also recognized that farmers and growers are the deliverers
of the benefits of new varieties to society and are also the first beneficiaries of new varieties which
offer improved income through improved yields, improved quality and the opening-up of new
market possibilities.

3.THE UPOV SYSTEM AND THE WORLD

4.UPOV AND RIGHTS OF FARMERS- AN INDIAN

PERSPECTIVE
The Agreement on TRIPs requires WTO Members to provide either patent or introduce an
effective sui generis system for the protection of plant varieties. This led to the formation of the
International Union for the Protection of New Varieties of Plants (UPOV) in 1961, which then
represented the consensus among five European countries on how to introduce Plant Breeders
Rights (PBRs).
The second amendment of UPOV Convention in 1991 introduced far reaching changes to the
structure of protection, significantly strengthening PBRs. Lately, a lot of pressure is being put on
developing countries to adopt UPOV for example through bilateral treaties. Furthermore, the WTO
is lending support to the concerted campaign of this Convention, the US government and the $23billion commercial seed industry to force plant breeders' rights legislation as the only option for
developing countries. They are being told that patents and other forms of IPR are the key to
attracting investment in biotechnology, which will uplift their economies and improve food security.
These claims are utterly false and the only motivation behind the global IPR campaign is to increase
profits for transnational corporations housed in the developed nations. The Convention has the
capability of sharply accelerating genetic erosion in developing nations in particular, India and
undermining the enormous wealth of traditional knowledge in the bio-diverse country.

THE PLANT VARIETY PROTECTION AND FARMERS' RIGHTS ACT 2002

The response of some of the developing countries to the developments in the UPOV Convention
has been the adoption of alternative sui generis options for the protection of plant varieties. Gene
Campaign, a research and advocacy organization working on the issues of bio-resources,
intellectual property rights, indigenous knowledge, farmers rights and community rights led by Dr.
Suman Sahai advocated a sui generis legislation for India. The campaign succeeded when in August
2001, the Government formulated The Plant Variety Protection and Farmers' Rights Act 2002

under the sui generis option which was compliant with the WTO in respect of plant breeders rights
and gave protection to the rights of farmers beyond their right to save seeds and replant.
The Act was the first in the legislative history of India and perhaps the world to recognize the rights
of the farmers as conservators, breeders and cultivators. The proposed Plant Varieties Protection
Authority (PVPA), under the Act, is obliged to register new strains of plant varieties developed by
the farmers alongside the professional breeders. The PVPA is also required to ensure equitable
benefit sharing with the farmers. This is in conformity with the Convention on Biological Diversity
(CBD) which India has adopted and ratified. The preamble and Article 8(j) of the CBD requires the
member nations to encourage the equitable sharing of benefits arising from the use of traditional
knowledge, innovations and practices relevant to the conservation of biological diversity and the
sustainable use of its components.
The Article 8(j) further seems to affirm that the holders (subject to national legislation) have
rights over their knowledge, innovations and practices, whether or not they are capable of being
protected by IPRs. If they are not capable of being protected by the existing IPR system, there is
still an obligation for governments to safeguard these entitlements either through a new IPR law or
by other legal or policy measures. This includes the contribution of the farming community to the
critical foundational knowledge of agricultural biodiversity that led to development of new plant
varieties.

Furthermore, under this Act the farmer retains his traditional rights to sell seed locally of any
variety he grows, even of a variety on which a breeders' right has been granted. The Act also
affords protection to farmers against bad seeds provided by breeders and the right to compensation.
It also protected the same from the Terminator Technology, which is banned by the Indian law.
Terminator is a sterile seed technology, which the MNC Syngenta owns, which would make the
farmer dependent on the corporate breeder for seeds every season.

The President of India gave his assent to the Protection of Plant Varieties and Farmers Rights Bill,
2001. The Bill, passed during the monsoon session of the parliament ending August 31, 2001, was
notified in the Gazette of India as Act number 53 of 2001. 5 However, before its enforcement, the

5 A copy of the Act can be found at http://agricoop.nic.in/PPV&FR%20Act,%202001.pdf

Government of India decided to join UPOV in the year 2002, rejecting the national legislation. This
decision of the Indian Government has generated a lot of debate as regards its grave effects on the
rights of the farming community. Several leading international civil society groups have urged the
Indian government to take the lead for developing countries by resisting pressure to join UPOV.
UPOV NOT SUITED FOR INDIA
The UPOV model does not address the needs of India and other developing countries as it embodies
the philosophy of the industrialized nations where the primary goal is to protect the interests of
powerful seed companies who are the breeders. It does not recognise the notion of prior knowledge
of the farming community and consequently takes no notice of the farmers' right to the benefits
flowing out of such knowledge.
The move to join UPOV is not suited for an agrarian economy like India where seeds are essentially
produced by farmers and farmers- cooperative and not by private corporations.

UPOV is anti-farmer as, among other disadvantages, it restricts his right to save seeds to
replant, a practice followed by 75 percent of the Indian farming community. Although the first
amendment in 1978 put limited restrictions on protected seed, the 1991 amendment brought in
very strong protection as regards the same. In the latter amendment, the exemption for farmers to
save seed has become provisional.

It does not recognise or support communities' inherent rights to biodiversity and their space
toinnovate.

UPOV aims at plant patents and now also permits dual protection of varieties. This effectively
means that in the UPOV system, the same variety can be protected by Plant Breeders Right and
patents.

Contrary to the CBD, the UPOV model does not provide for benefit sharing with the farmers.
So they end up paying royalties for their own germplasm that has been tampered with and
repackaged by the Trans National Corporations.

The costs of testing, approval and acquiring an UPOV authorized Breeders Right certificate
could be extremely expensive which shall effectively preclude the participation of small
companies, farmers co-operatives or farmer/breeders, but for the largest seed companies.

UPOV model has the potential to aggravate the erosion of biodiversity which can prove
extremely dangerous, especially in poor countries. Chemicals or genetic engineering will be

used to try to compensate for crop vulnerability which farmers cannot afford. Uniformity leads
to harvest loss and further food insecurity.

Contrary to the developed nations, research is conducted in India by public institutions like
various agricultural organizations. The control of plant varieties in the hands of big seed
companies and privatization of genetic resources can affect research negatively. Additionally,
UPOV rules on `essential derivation' will act as a disincentive to researchers since TNCs can
bully researchers to submit to accusations of plagiarism.

5.CONCLUSION AND RECOMMENDATIONS

In order to provide a meaningful study on the impact of PVP it is important to understand the
purpose of such a system of intellectual property rights. UPOV clarifies that its mission is To
provide and promote an effective system of plant variety protection, with the aim of encouraging
the development of new varieties of plants, for the benefit of society. Thus, the UPOV system of
PVP is designed to encourage innovation in the field of plant breeding. In that respect, the UPOV
Convention recognizes that it is important to encourage breeding in all plant genera and species and
not to pre-determine for which genera and species breeding would, or could, be beneficial. As
explained in Section I "Introduction", the key to an effective PVP system is to provide incentives to
breeders to develop new varieties and to avoid the absence of suitable protection being a barrier to
the availability of those varieties. It is apparent that the impact of PVP will vary country-by-country
and crop-by-crop. Accordingly, although substantial benefits have been seen across the range of
UPOV members and, in particular, in each of the countries in this study, the results and conclusions
of the study need to be seen in the context of the individual situations.
Also,

the researcher would like to reiterate that in the UPOV system, rights are merely granted to the

breeders and not to the farmers. Hence, it is not suited for a developing nation like India where a
sizeable number of population bank directly on the agricultural sector for their livelihood. Unlike
the west, India does not have big seed companies in essential seed sectors and our major seed
producers are farmers. The government must essentially concentrate on protecting the interests of
the farmers in his role as producer as well as consumer of seed.

India needs to take a firm stand and reject UPOV acting as a role model for other developing
nations. Indias joining UPOV could have a domino effect on nine other Asian developing
countries that are currently consulting UPOV on their national legislations. The developing
countries must evolve a sui generis legislation which takes a balanced approach between giving
rights to farmers, formal plant breeders and traditional communities on their genetic resources. In
this respect the gene campaign had proposed the Convention of Farmers and Breeders (CoFaB),
which has been discussed in various national and international forums. The UNDP Human
Development Report (HDR) 1999 has commended Gene Campaigns CoFaB as an alternative to
UPOV. It described CoFaB as a strong and coordinated international proposal which offers
developing countries an alternative to following European legislation by focusing legislation on
needs to protect farmers rights to save and reuse seed and to fulfill the food and nutritional security
goals of their people.