Report on the Thirty-Seventh Ordinary Session of the UPOV Council. Geneva, 23 October 2003

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1 Report on the Thirty-Seventh Ordinary Session of the UPOV Council Geneva, 23 October 2003 by Claire Baldock Member of AIPPI Special Committee Q114 (Biotechnology including Plant Varieties) Summary UPOV membership is increasingly popular with numbers expected to be 60 or so countries/intergovernmental organisations by the end of 2005; UPOV is resisting suggestions to add to the requirements for obtaining a Plant Variety Right, for example providing indications of geographical origin, requiring prior informed consent, or specifying benefit sharing arrangements; The biennium has a restricted budget requiring UPOV to make cut backs. This is a matter for concern since funds must be available to maintain UPOV's defence of intellectual property rights. AIPPI should monitor the position and consider how contributions might be increased. 1.0 Introduction The Council of the International Union for the Protection of New Varieties of Plants (UPOV) held its Thirty-Seventh Ordinary Session at WIPO Headquarters at Geneva on 23 October The meeting was chaired by the outgoing Council President Mr Karl Olov Öster of Sweden and was well-attended, most of the UPOV contracting states being represented. There were also a significant number of observers. The agenda comprised nineteen items and for most of these the issues were comprehensively set out in pre-prepared papers representing the official position adopted by the Council on the previous day and requiring the formal ratification of the UPOV members. These papers are all available on the UPOV website at This report comments on items of note and in particular, issues arising which require careful monitoring by the AIPPI. 1

2 2.0 UPOV Membership The President confirmed that there are now 53 UPOV members, 26 having ratified the 1978 and 25 the 1991 text. A further 18 states and two intergovernmental organisations have initiated, with the UPOV Council, the procedure for becoming members of the Union and 53 others have been in contact with the Office of the Union for assistance in the development of legislation on plant variety protection. The newest member, Tunisia, was warmly welcomed. Council had examined the conformity of legislation or proposed legislation of the Hashemite Kingdom of Jordan, Republic of Iceland, Republic of Uzbekistan and Republic of Singapore, all of whom have submitted requests to become members under Article 34(3) of the 1991 Act. Decisions were carried out to invite Jordan, Uzbekistan and Singapore to deposit their instruments of Accession. However, Iceland could only deposit following further work on its legislation which was out of line in a number or respects. This position was also formally adopted and Iceland agreed to deal with the relevant deficiencies without delay. 3.0 Election of Officers Dr. Kamil Idris was unanimously reappointed as Secretary-General of UPOV for the period from 1 December 2003 to 30 November The term of Mr. Rolf Jördens as Vice Secretary-General was extended to 30 November The President, Mr. Karl Olov Öster had reached the end of his term. The representative from Iceland expressed appreciation for the outgoing president on behalf of the Council. He was presented with the gold medal of the Union for outstanding services. Mrs. Enriqueta Molina Macias of Mexico and Mr. Doug Waterhouse of Australia were elected new President and Vice President respectively, each for a term of three years. 4.0 Finance The Council unanimously decided to renew the designation of Switzerland as auditor of accounts of UPOV up to and including the year For the biennium UPOV expenditure exceeded income by SFR 1,127,000. In the Draft Budget and Program for the biennium a SFR deficit is expected. These deficits will be funded by a reserve which will be estimated to stand at SFR 450,000 the end of

3 In 2004 to 2005 UPOV will be under financial constraints, the funds available being reduced by some SFR 450,000. As such, a revision of its activities was agreed so as to ensure effective operation within the new budget. Charges will also include:- A reduction in the staff of the Office of the Union by two posts in the Professional and one post in the General Service Category, Prioritization and concentration of information, advice and training activities on new members of the Union and according to the commitment of States or Organizations to accede to the UPOV Convention, Combining of activities i.e. Technical Working Parties with regional or national activities, Prioritization of external relational activities. Specific changes identified are: (1) a switch to electronic distribution of all documents. (2) an elimination of the provision of consultancy services and substantial reduction in the provision for conferences and contractual services. (3) a reduction in the cost of translation of documents to be achieved through prioritization of activities. The Draft Program and Budget for was adopted without objection. However, the delegate for Spain urged a solution for the financial problems of UPOV and advised that Spain was increasing contributions by 33%. He suggested that others should be doing likewise. In this regard, it is to be noted that the following countries are in arrears for their payments to UPOV for 2003: Argentina, Belgium, Brazil, Nicaragua, Panama, Republic of Korea, Russian Federation, Slovenia and the Ukraine. At the meeting, Belgium apologised and confirmed the money had now been transferred. 5.0 Access to Genetic Resources and Benefit Sharing A notification was issued to the UPOV on 26 June 2003 from the Executive Secretary of the Convention on Biological Diversity to provide its views on the access to genetic resources and benefit sharing in a document to be made available for the second meeting of the Ad Hoc Open-ended working group on access and benefit sharing. The reply of the UPOV President was adopted and addressed separately the issues of Access to Genetic Resources, Disclosure of Origin, Prior Informed Consent, the Breeders Exemption, Subsistence Farmers and Farm-saved Seed. Briefly, the UPOVs view is that access to such resources is a requirement for sustainable and substantial progress in plant breeding. The UPOV Convention allows breeders free access to protected varieties for the purposes of breeding new 3

4 varieties with no objection to the holder of the original variety right. Thus any requirement for benefit sharing would be incompatible with the principle of the breeders exemption. Further, if adopted as part of the UPOV system it would amount to "a tax" only on protected varieties and may provoke an effect whereby breeders would not develop new varieties or would not seek protection. With regard to potential requirement for a disclosure of origin, UPOV feels this should not be a requirement of plant variety protection since plant variety protection has always historically been granted regardless of geographical origin and indeed the breeder may not know such origin. It is suggested that should such a requirement be introduced it be separated from plant variety protection, for example to be met as a condition of commercialisation of the variety. Finally, on the issue of prior-informed consent UPOV encourages the principles of transparency and ethical behaviour in the course of conducting breeding activities. However, the UPOV Convention requires that the breeder's right should not be subject to any further or different conditions than the ones required to obtain protection. This is consistent with Article 15 of the Convention of Biological Diversity which provides that the determination of access to genetic resources rests with national governments and is subject to national legislation. 6.0 Miscellaneous other matters A report from the UPOV Technical Committee, the Technical Working Parties and the Working Group on Biochemical and Molecular Techniques and DNA Profiling were noted and approved. A report from the Administrative and Legal Committee (CAJ) of its thirty-sixth session held on 10 April 2003 was presented, noted and approved. The issues considered were the specific intellectual property implications of the genetic use restriction technologies (GURT's), particularly in respect of indigenous and local communities, the notion of "Essentially Derived Variety" in the breeding of ornamental varieties and specific issues concerning the interface between patents and breeders rights. The CAJ met again on 20 and 21 October 2003 to consider further the patent/breeders right interface as well as other matters. It was agreed to establish an official text of the 1991 Act of the UPOV Convention in the Russian language. This followed a request by the Government of the Russian Federation and was supported by the Governments of Belarus, the Kyrgyz Republic, Republic of Ukraine as members and by Armenia and Azerbaijan as observers. 4

5 7.0 Conclusions Membership of the UPOV Convention is becoming popular and on the basis of the number of enquiries it is expected that there will be at least 60 UPOV members by the end of It is clear from the comprehensive reports approved at this meeting that UPOV is supporting through its various committees, on enormous number of activities, including advising and assisting new potential UPOV members on development and implementation of plant variety protection and promoting the benefits of plant variety protection, in particular to encourage plant breeding and thus develop sustainable agriculture. UPOV, via the President's statement on Access to Genetic Resources and Benefit Sharing is clearly and quite rightly resisting attempts to burden breeders further with additional requirements to be met in order for the right to be granted such as requirements for indication of geographical origin, providing consent from the original source and benefit sharing arrangements. However, it is likely that this position is going to continue to be under attack from certain quarters. Public awareness of UPOV has substantially increased in recent years. Concerns about agriculture in developing countries and preservation of indigenous knowledge means UPOV needs to be in a position to explain and clarify it's role and provide answers to the questions in these public policy related areas. It is against this background that the UPOV's current financial position should be of concern. UPOV must have adequate finances to defend intellectual property rights in the manner in which it has done to date and it is likely this will require more expenditure in the coming years. In this respect, there may be a role for the AIPPI in so far as it may make recommendations to governments, in encouraging an increase in the contributions of member states to ease UPOV's financial problems. December 23,