Expert meeting on the Impact of Seed Laws on Smallholder Farming Systems in Africa: Challenges and Opportunities. PVP Experience in Kenya Peter Munyi

Transcription

1 Expert meeting on the Impact of Seed Laws on Smallholder Farming Systems in Africa: Challenges and Opportunities PVP Experience in Kenya Peter Munyi 17 March 2016 A. What PVP is Outline A. PVP experience in Kenya A. Issues in the horizon 1

2 What is PVP? What is PVP Concerns granting plant breeders intellectual property rights over New varieties of plants that are Distinct, Uniform and Stable (DUS) Rights are territorial; vary from country to country Country s PVP system either based on UPOV (1978 or 1991) or of own kind 2

3 UPOV 1978 vsupov 1991 UPOV 1978 UPOV 1991 Subject matter for protection Number of general or species for protection to be increased gradually from 5 at the time of entry into force to 24, 8 years later No graduated approach. PVP may be extended to all varieties of plants Scope of protection of the protected variety Minimum excusive rights in harvested material Production for purposes of commercial marketing; offering for sale; and marketing No such obligation, except for ornamental plants used for commercial propagation purposes Production or reproduction; conditioning for the purposes of propagation; offering for sale; selling or other marketing; exporting; importing or stocking for any of these purposes Protection may also cover the harvested material...if obtained through unauthorized use...and may also extend to products made directly from harvested material of the protected variety UPOV 1978 vsupov 1991 UPOV 1978 UPOV 1991 Prohibition on dual protection with patents Allowed for same botanical genus or species Not prohibited Breeder s exemption Farmers privilege Recognized. Breeder s free to use protected variety to develop new variety. But where repeated use of the variety is necessary for commercial production, breeder s authorization required. Implicitly allowed under the provision requiring breeder authorization for production of commercial marketing purposes Recognized.But breeding and exploitation of EDVsrequires breeder s authorization At the option of a member country, farmer allowed to save and re-use seed on own holding, within reasonable limits and subject to safeguarding the legitimate interests of the right holder. 3

4 PVP experience in Kenya Ayieko & Tschirley,

5 Seed systems operating in Kenya Informal seed systems Farmer based Community based Relief seed Formal seed systems Public formal Mixed public private Closed value chains PVP Policy and legislative framework The Constitution of Kenya, 2010 Seeds and Plant Varieties Act, 1972 Seeds and Plant Varieties (Amendment) Act, 2012 Seeds and Plant Varieties Regulations (under the 1972 Act) System somewhat UPOV 1991 compliant with variations PVP may extend to all varieties (no 1991 graduated approach) Besides the NDUS criteria, the agro-ecological value of the variety must surpass that of existing varieties; private & non-commercial use exemption not included 5

6 Food security crops maize; rice; wheat; potatoes are a (very) minor component of the varieties for which PVP is applied Percentage of crops for which PVP is applied Year Food security crops Other 2005/06 (58) 2007/08 (85) 2008/09 (56) 2010/11 (69) 2014 (169) 2015 (113) 0% 100% (ornamental crops; barley; French beans; 28% (maize; wheat) 72%( ornamental crops; peas; soybeans) 0% 100% (ornamental crops; tea; fruits) 30% (maize) 70% (ornamental crops; french beans; coffee; sorghum; cassava; oat) 0% 99.5% (ornamental crops; pastures; oil crops; fruits; peas) 10% (rice; potatoes) 90% (ornamental crops; fruits and nuts; trees; shrubs and grasses Crops that predominantly feature in informal seed systems bananas; common bean; cassava; cow pea; ground nut; millet; pigeon pea; potato hardly utilize the PVP system Crops whose seedsarepredominantly obtained from informal sources Year No. of PVP applications Crop 2005/06(58) /08(85) /09(56) /11(69) 6 Cassava 2014(169) (113) 11 Irish potatoes 6

7 For maize, hybrid seeds appear to dominate the market Year No.of PVP applications Noof varieties released 2005/06 (58) 2007/08 (85) 2008/09 (56) 2010/11 (69) 2014 (169) 2015 (113) For scheduled food crops required to have breeding programmes under compulsory certification under the Crops Act, 2013 (Part 1 Crops) Crop No.of PVP applications (since 1999) Predominant seed systems for the crop Irishpotato 30 Farmer based seed systems (FSS) beans 24 FSS Sorghum 9 FSS Finger millet 6 FSS Pearl millet 4 FSS Maize 156 Public formal/mixed public private Wheat 33 Public formal Barley 13 Public formal Rice 1 Public formal 7

8 For scheduled food crops required to have breeding programmes under voluntary certification under the Crops Act, 2013 (Part 2 Crops) Crop No.of PVP applications (since 1999) Predominant seed systems for the crop Cassava 8 Farmer based seed systems (FSS) Pigeon peas 4 FSS Cow peas 4 FSS Sweet potato 1 FSS Bananas 0 FSS Ground nuts 0 FSS Chick peas 0 FSS Dolichos beans 0 FSS Frenchbeans 33 Closed value chains Food crops with no breeding programmes under the Crops Act, 2013 (Part 3 Crops) Crop No.of PVP applications (since 1999) Peas 9 Closed value chains Cabbage 1 Closed value chains Pumpkin 1 Closed value chains Tomato 1 Closed value chains Spinach,broccoli, carrot 0 Cucumber, water melon 0 Predominant seed systems for the crop Closed value chains Closed value chains Amaranth, asparagus 0 Closed value chains Egg plant 0 Closed value chains 8

9 Foreign (& private) entities utilize the system most % applications local % applications local Issues in the horizon 9

10 Amendment of the PVP legislation Accommodate private and non-commercial use exemption (under UPOV 1991) provide for protection of indigenous crops and plant varieties Development of regulations to implement farmers privilege delineate crops, categories of farmers for which seeds may be saved and exchanged Amount of remuneration to be compensated to the breeder Avoid conflict with farmers rights-kenya party to the Plant Treaty 10

11 Regional PVP harmonization processes Arusha Protocol on Protection of New Varieties of Plants under ARIPO Conflicting provisions on Private and non-commercial use Approach to implementing farmers privilege Direct legal effect *Kenya yet to ratify the Arusha Protocol* Thank you 11