NEWS and VIEWS

News, views, comments and suggestions on varieties and seeds are included in this section. It is also a forum for discussion among professionals in the seed sector.

Intellectual Property Rights on Seeds
Introduction
Intellectual property rights (IPRs) intend to provide an incentive for investments in research through the provision of exclusive rights on the commercial exploitation of an invention. The first international agreement on patents was concluded in Paris in 1883, but this excluded, among other things, living organisms and agricultural methods. It was deliberate for of ethical (against privatising life forms), practical/legal (difficulty to describe a variety in an industrial manner) and political reasons (food security).

The USA introduced plant patents for vegetatively propagated (ornamental) crops in 1930 in order to protect breeders whose plant materials could easily be misappropriated once released. Several European countries took another approach and developed a protection system that was specially designed for plant varieties with criteria and scope of protection that significantly differ from the industrial patent system. These laws on plant breeders' rights were harmonised in 1961 leading to the establishment of the International Union for the Protection of New Varieties of Plants (UPOV).

Despite these developments, intellectual property rights were and are still based on national legislation. There is no such thing as an international patent or breeders' rights.

Patents and breeders' rights
Since the early 1980s when utility patents were first granted on living materials in the USA, and 1993 when the international agreements in Trade Related Aspects of Intellectual Property Rights (TRIPs) of the WTO were concluded, IPRs have gained importance in the seed sector worldwide.

At present, 54 countries have signed a UPOV Convention on Plant Breeders' Rights and in recent years several others have developed their own laws without joining the international organisation. Few countries recognize patents on plant varieties like the USA. Most have chosen to exclude plant varieties from this very powerful system, mainly because they consider that it does not fit into the agricultural sector.

It could be argued that new varieties don't comply with the requirements for patents such as novelty, non-obviousness (inventive step) and the description that allows others 'skilled in the art' to reproduce the invention. UPOV provide solutions to such issues by designing different criteria for protection of varieties i.e. distinctness, uniformity, stability and novelty. In addition, breeders' exemption was introduced to allow breeders to freely use protected varieties for further breeding. The 'farmers' privilege', furthermore, allow farmers to save and re-use seed of protected varieties. These two exemptions are not included in standard patent laws.

However, the rights of plant breeders have become stronger in many countries, following the subsequent UPOV Conventions as a result of the developments in the commercial seed sector in the member countries.

In addition, the developments in biotechnology increase the patenting of genes or biotechnological methods that effectively patent plant varieties in which such genes have been introduced. Such varieties may thus not be available for further breeding or seed saving. A recent high-court ruling in Canada in favour of Monsanto and against a farmer who used a mixture of roundup-ready and conventional canola varieties confirms that the patent on the gene in Canada extends to all materials containing that gene. Monsanto believes that the Canadian court ruling will affect the patent situation in other countries.

Different international agreements
When the TRIPs agreement was concluded, ministries for environment developed the Convention on Biological Diversity providing sovereign rights over genetic resources. In order to avoid a conflict between IPRs (private) and national rights, the CBD concluded that IPRs should be recognized. At the same time it was agreed that the International Treaty on Plant Genetic Resources for Food and Agriculture should conform to TRIPs.

Governments are now facing the challenge to design national laws that bring these three international agreements in line with national policies, such as those on rural development, food security, and indigenous peoples and their knowledge.

Many developing countries interpret the TRIPs requirements to have a minimal impact on their farmers, and have chosen the 1978 UPOV Convention. This model law provides a rather wider scope for “farmers' privilege” allowing seed saving and exchange. Some countries such as India refer to the term farmers' rights in this context, providing a very wide privilege and benefit sharing arrangement for farmers. Some other countries and organizations combine breeders' rights with aspects of biodiversity policy. The African Union is a good example with its African Model Law. Both these developments are meant to adapt breeders' rights to developing country conditions where most farmers use farm-produced seed instead of commercial seed from the formal sector, and where the implementation of strict intellectual property rights is considered neither feasible and nor fitting into the agricultural tradition.

Strengthening breeders' rights?
With the ongoing developments in biotechnology, the increased role of the patents may marginalize the breeders' rights system. Bilateral trade negotiations force countries to develop much stronger IPR laws than initially intended. For example Chile has to include patents for plant variety protection.

Breeders may also look for ambiguity in existing laws to obtain stronger protection, such as the case in China to protect breeding methods, hybrid varieties, etc even though varieties are specifically excluded from the patent system.

In a recent call to strengthen the breeders' rights system itself, it was suggested to put a limited time frame on the breeders' exemption. Pioneer proposed that breeders should not be allowed to use protected materials from their competitors within the first 10 years of protection. The proposal was tabled during a seminar on IPRs following the 2004 ISF Annual Congress in Berlin, Germany. This proposal was opposed by the Limagrain, a French-based multinational seed company, who claimed that history shows that the breeders' exemption is essential for advances in breeding.

Choices ahead
The seed industry and governments that intend to develop this important sector need to be aware of these developments and could use the solutions developed in other countries. IPRs intend to favour investments in research and access to materials developed elsewhere and are thus important for the seed industry. It is important to balance the rights and obligations of the breeders. Strong rights may favour companies with strong research capacities making smaller seed companies dependent. Weak rights may turn away private investors and will require continued government investments to prop up the infrastructure of the public research.

IPRs can be considered a contract between the inventor and society in which the former obtains a monopoly right on the commercialization of the invention in return for benefits for society, such as disclosure, exemptions etc. Since societies differ in their stages of development, countries should be able to develop their own decisions regarding the extent of the rights that are optimal in their conditions and should not be pressed by other countries to adopt laws that are stronger than the internationally agreed minimum rights (e.g. TRIPs). In this process of balancing the rights, they should, however, take into account the benefits of harmonisation at the regional and international levels and its legal and technical implementation.

N.P. Louwaars, Center for Genetic Resources, Wageningen University and Research Center, Wageningen, The Netherlands; E-mail: niels.louwaars@wur.nl

African Seed Trade Association Fourth Annual Congress, Hammamet, Tunisia
The African Seed Trade Association (AFSTA) represents the seed industries in Africa and adjoining island states. It is a non-profit, non-political association with a mission to promote the development of seed industries and national seed associations, which will facilitate farmers' access to improved seeds in member countries. To date, the association has 58 members in 29 countries. In 2004, the following new members joined the association: Seed Association of Mali (ASSEMA), Mali; Seed Association of Guinea (APIDIA), Guinea; Seed Association of Morocco (AMSP), Morocco; Seed Co. International, Botswana; Espace Vert, Tunisia; and Wolf & Wolf Seeds Inc., USA.

The 4^th AFSTA Annual Congress was held 24-26 March 2004 in Hammamet, Tunisia and attracted 170 delegates from 38 countries. Apart from discussion on important topics during the technical sessions, the congress was an excellent opportunity for meeting, exchanging ideas and trading for the delegates.

Delegates included representatives from regional and international organizations: the International Seed Federation (ISF), the Organization for Economic Cooperation and Development (OECD), the International Seed Testing Association (ISTA), the Asia Pacific Seed Association (APSA), the African Organization for Intellectual Property (OAPI), the Food and Agriculture Organization (FAO), the Association for Strengthening Agricultural Research in Eastern and Central Africa (ASARECA), the German Agency for International Cooperation (GTZ), the International Union for the Protection of New Plant Varieties (UPOV) and the International Center for Agricultural Research in the Dry Areas (ICARDA).

Prior to the congress, a UPOV facilitated regional seminar on protection of new plant varieties was held on 23 March 2004. African speakers also presented the status of plant variety protection in their sub-region. OAPI presented the case of 16 countries in Western Africa. To date only Kenya, South Africa and Tunisia are members of UPOV from Africa.

The first topic of the congress was a comparative analysis of the African seed sector and the global seed industry. The African seed industry is in various stages of development in terms of regulations and the commercial seed market. It is suggested that each sub-region should develop a harmonized regulatory system for certification, plant-variety protection and phytosanitary measures; and establish a regional catalogue of plant varieties.

The second topic of the congress addressed the appropriate intellectual property rights for Africa. A strategy to establish a synergy between the traditional and commercial agricultural systems was proposed and discussed with an action plan for its implementation. The action plan discussed the introduction of farmers' privilege, as applied in traditional agriculture, as a form of plant improvement in seed legislation, the recognition of farmers' rights as a component of intellectual property in terms of plant breeding, and the introduction of the access control to all improved plant genetic resources for food and agriculture.

The third topic dealt with Material Transfer Agreement (MTA) provided under the International Treaty on Plant Genetic Resources for Food and Agriculture (PGRFA) and its impacts on the African seed industry. The discussion enabled participants to better understand the MTA and its application to the seed industry.

The fourth topic focused on trade in biotechnology products from genetically modified crops and seeds in Africa. Countries that have acceded to the Cartagena Protocol on Biosafety must have biosafety systems in place to regulate transboundary movement of living modified organisms in order to comply with the protocol. African countries that had acceded to or signed the protocol by the end of February 2004 include Botswana, Burkina Faso, Cameroon, Egypt, Ethiopia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mauritius, Mozambique, Nigeria, Senegal, South Africa, Tanzania, Tonga, Tunisia and Uganda. Egypt, Malawi, South Africa and Zimbabwe have biosafety legislations in place whereas others are in the process of setting up such systems.

The fifth topic covered the seed market from African small-scale farmers' perspectives and factors influencing access to seeds. It was pointed out that apart from the socio-economic factors, harmonization of seed legislation significantly contributed to the improvement of the African farmers' access to quality seed, the basis of the development of African Agriculture.

The sixth topic presented the situation of the seed market in the North Africa sub-region. The seed trade between the countries in the sub-region are limited and it greatly depends on the external seed market. Harmonizing of seed legislations and creating/strengthening national seed associations are important to facilitate the seed trade in the sub-region.

In 2004, establishing and strengthening national seed associations is among the priorities of AFSTA. Funding is already available from the American Seed Trade Association, and FAO pledged to support the establishment and reinforcement of the national seed associations in Eastern Africa. AFSTA continues to organize technical training on seeds and biotechnology. It will strive to increase its membership for financial stability, and actively participate in the harmonization process of seed legislation in the sub-regions. AFSTA Secretariat, P. O. Box 2428 KNH, Nairobi, Kenya; Fax: ++254-2-727-861;E-mail:afsta@kenyaweb.com; Website:http://www.afsta.org