4.3 Protection of IPR as Enforcement of the Exchange of PGRFA
85
On an international level, the "International Union for the Protection of New
Varieties of Plants" (UPOV37) was established in 1961 with the purpose of
regulating international trade of protected varieties and ensuring that the member
states acknowledge the achievements of breeders of new plant varieties by
granting an exclusive property right (Hardon et al., 1994). Regulations under
patent law have successively been extended to living organism and consequently
entering areas of agricultural interest for approximately 20 years. In the
beginning, patents for processing were granted, but in 1985, a genetically
modified maize plant was patented (ODI, 1993). The Trade-Related Aspects of
Intellectual Property Rights (TRIPS) was enforced at the international level to
harmonize protection laws for all technological inventions, including the
patenting of plants. Hence, two systems protecting new knowledge presently
exist, which advocate the demand side of genetic resources.
As an intergovernmental organization, UPOV was established by the
International Convention for the Protection of New Varieties of Plants in 1961.
The UPOV Convention was signed in 1961, and revised in 1972, 1978, and 1991.
In addition to the positive incentives in the form of exclusive rights for breeders, a
further cornerstone of the UPOV's system was the "Breeder's Exemption" - the
free availability of protected varieties for the research and development of new
varieties. In addition to the exemption for breeders, UPOV convention enables
countries to make a further exception from the plant protection rights as regards
the seed production and its use on the same farm (farmer's privilege). This
privilege was implicit under UPOV '78, it must be specifically defined in national
legislation under UPOV '91. The plant protection right does not, however, apply
to subsistence farmers or amateur gardeners in UPOV '91. (UPOV, 1995; UPOV,
1992); 26 of the current 32 member states countries are in the process of
implementing UPOV '91 at nationallevd 8 (FAO, 1997a).
Beside UPOV being a plant variety protection system, which is legally binding
for its mainly industrialized member states, the TRIPS Agreemene 9 is based on the
principle of providing patents for product as well as process inventions in all fields
(OECD, 1996a). Under Section 5, Article 27.3b of the TRIPS Agreement,
however, states are allowed to make exemptions from the patenting of plants, if an
effective sui-generis protection system for plant varieties also exists. The suigeneris protection system has to be a legally enforceable right either to exclude
others or to obtain a compensation for the utilization, i.e., it must be an Intellectual
Property Right (Leskien and Flitner, 1997). The TRIPS Agreement, paving the
way for the World Trade Organization (WTO), came into effect in 1995. The date
n
Union Internationale Pour La Protection Des Obtentions Vegetales.
38
Members of UPOV are: Argentina, Australia, Austria, Belgium, Canada, Chile, Czech
Republic, Colombia, Denmark, Finland, France, Germany, Hungary, Ireland, Israel, Italy,
Japan, Netherlands, New Zealand, Norway, Paraguay, Poland, Portugal, Slovakia, South
Africa, Spain, Sweden, Switzerland, Ukraine, United Kingdom, USA, Uruguay. Countries
like: Belarus, Bolivia, Brazil, Bulgaria, China, Ecuador, Kenya, Morocco, Panama, the
Republic of Moldavia, the Russian Federation, Trinidad, and Tobago have initiated a
procedure for accessions to UPOV, i.e., submitted their laws to the Council. (FAO, 1997a).
" Agreement on Trade-Related Aspects of Intellectual Property Rights.
85
On an international level, the "International Union for the Protection of New
Varieties of Plants" (UPOV37) was established in 1961 with the purpose of
regulating international trade of protected varieties and ensuring that the member
states acknowledge the achievements of breeders of new plant varieties by
granting an exclusive property right (Hardon et al., 1994). Regulations under
patent law have successively been extended to living organism and consequently
entering areas of agricultural interest for approximately 20 years. In the
beginning, patents for processing were granted, but in 1985, a genetically
modified maize plant was patented (ODI, 1993). The Trade-Related Aspects of
Intellectual Property Rights (TRIPS) was enforced at the international level to
harmonize protection laws for all technological inventions, including the
patenting of plants. Hence, two systems protecting new knowledge presently
exist, which advocate the demand side of genetic resources.
As an intergovernmental organization, UPOV was established by the
International Convention for the Protection of New Varieties of Plants in 1961.
The UPOV Convention was signed in 1961, and revised in 1972, 1978, and 1991.
In addition to the positive incentives in the form of exclusive rights for breeders, a
further cornerstone of the UPOV's system was the "Breeder's Exemption" - the
free availability of protected varieties for the research and development of new
varieties. In addition to the exemption for breeders, UPOV convention enables
countries to make a further exception from the plant protection rights as regards
the seed production and its use on the same farm (farmer's privilege). This
privilege was implicit under UPOV '78, it must be specifically defined in national
legislation under UPOV '91. The plant protection right does not, however, apply
to subsistence farmers or amateur gardeners in UPOV '91. (UPOV, 1995; UPOV,
1992); 26 of the current 32 member states countries are in the process of
implementing UPOV '91 at nationallevd 8 (FAO, 1997a).
Beside UPOV being a plant variety protection system, which is legally binding
for its mainly industrialized member states, the TRIPS Agreemene 9 is based on the
principle of providing patents for product as well as process inventions in all fields
(OECD, 1996a). Under Section 5, Article 27.3b of the TRIPS Agreement,
however, states are allowed to make exemptions from the patenting of plants, if an
effective sui-generis protection system for plant varieties also exists. The suigeneris protection system has to be a legally enforceable right either to exclude
others or to obtain a compensation for the utilization, i.e., it must be an Intellectual
Property Right (Leskien and Flitner, 1997). The TRIPS Agreement, paving the
way for the World Trade Organization (WTO), came into effect in 1995. The date
n
Union Internationale Pour La Protection Des Obtentions Vegetales.
38
Members of UPOV are: Argentina, Australia, Austria, Belgium, Canada, Chile, Czech
Republic, Colombia, Denmark, Finland, France, Germany, Hungary, Ireland, Israel, Italy,
Japan, Netherlands, New Zealand, Norway, Paraguay, Poland, Portugal, Slovakia, South
Africa, Spain, Sweden, Switzerland, Ukraine, United Kingdom, USA, Uruguay. Countries
like: Belarus, Bolivia, Brazil, Bulgaria, China, Ecuador, Kenya, Morocco, Panama, the
Republic of Moldavia, the Russian Federation, Trinidad, and Tobago have initiated a
procedure for accessions to UPOV, i.e., submitted their laws to the Council. (FAO, 1997a).
" Agreement on Trade-Related Aspects of Intellectual Property Rights.