THE 1991 ACT OF THE UNION POUR LA PROTECTION DES VARIÉTÉS VÉGÉTALES (UPOV)

The 1991 Act of the UPOV provides a sui generis intellectual property protection for plant varieties. Exclusive rights are provided to commercial plant breeders. Plant breeder's rights are granted for a period of 15 to 30 years for plant varieties that are new, distinct, stable and homogeneous. Plant breeder's rights have been highly criticized by non-governmental organizations dedicated to the conservation of genetic diversity and the protection of small farmers' communities. The UPOV system has been accused of 'playing the game' of giant seed companies that promote intensive monoculture, and the replacement of traditional seeds by highly productive and resistant seeds. Also, the 1991 UPOV Act limits the exercise of the breeder's privilege. Indeed, Article 15 (2) provides that 'each Contracting Party may, within reasonable limits, and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety'.

Conversely, pro-UPOV opinions argue that it is the most efficient current legal tool for triggering research and development on biotechnology for food and agriculture. In the review process of Article 27 of the TRIPS agreement, some industrialized countries are in favor of designating the UPOV Act of 1991 as the sui generis regime for the protection of plant varieties.

At the regional level, the members of the Office Africain de la Propriété Intellectuelle have joined the revised Bangui Agreement^[2] of the 28th of February 2002. This generally adheres to the principles and obligations of the UPOV Act of 1991.

INTERNATIONAL TREATY ON PLANT GENETIC RESOURCES FOR FOOD AND AGRICULTURE (ITPGRFA OR INTERNATIONAL SEED TREATY)

This international treaty was adopted by the Food and Agriculture Organization of the United Nations (FAO) General Assembly in November 2001 and came into force in June 2004. The Treaty was developed and adopted, after a long negotiating process of seven years at the international level, and responds to outstanding issues not covered by the CBD^[3]. The ITPGR deals specifically with the nature and needs of the agricultural sector. It sought to find a balance between the interests of developing and developed countries and between the rights of farmers (farmers' varieties) and breeders (commercial varieties, breeders' lines). However, it is in harmony with the CBD and reflects some of its major principles, including:

• the sovereign rights of states over their plant genetic resources;

• the sustainable conservation and use of plant genetic resources;

• access to an exchange of information on 'scientific, technical and environmental matters related to plant genetic resources for food and agriculture', with a view to contributing to the sharing of benefits there from;

• participation in decision-making on plant genetic resources.

What makes the ITPGRFA a major achievement, is the formal endorsement of Farmers' Rights through a legally binding instrument at the global level. This is a significant landmark as it is an important step towards acknowledging and implementing the rights of informal innovators (farmers). It places them on an equal footing with the rights already granted to formal innovators (modern breeders). Article 9 of the International Treaty states that: 'In accordance with their needs and priorities, each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers' Rights, including:

• protection of traditional knowledge relevant to plant genetic resources for food and agriculture; and

• the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture...'

Farmers' Rights are based on the recognition of the enormous contribution made by local and indigenous communities and farmers in all regions of the world. This particularly includes those who are at the centres of origin and crop diversity. Furthermore, Farmers' Rights cover the conservation and development of plant genetic resources that constitute the basis of food and agriculture production throughout the world.

In this case, the entire principle of Farmers' Rights is explicitly made subject to national legislation. As a consequence, legally speaking, national genetic resources programme managers can simply look to the legislation of the country, in which the relevant programme activities are taking place, to determine what his or her responsibilities are. Despite the limiting legal effect of making Farmers' Rights subject to national laws, there is little doubt that the inclusion of these provisions in the international treaty will underscore the political pressure that already exists by virtue of the CBD (and less so, the United Nations Convention to Combat Desertification - UNCCD). This is particularly in reference to obtaining PIC when acquiring, exchanging and using genetic resources and related knowledge associated with indigenous peoples and local communities. Art 4 and 6 stipulate that domestic policies, and laws relating to agrobiodiversity, need to be designed or adjusted to meet the Treaty's requirements. As Farmers' Rights are so innovative, new legislation is often required. Some countries, such as India, have already passed new laws such as the Protection of Plant Varieties and Farmers' Rights Act No. 53 of 31 August 2001.

Another important breakthrough connected to the Treaty is the sharing of benefits that accrue from the use of plant genetic resources in a fair and equitable way. In particular, the sharing of monetary benefits arising from commercial use^[4].

It is believed that 'Farmers' Rights are crucial to food security in providing an incentive for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world. Making those rights a reality, under the Treaty and other relevant legal instruments, at the national level as well as between nations, will represent a challenge for years to come...' (Mekoaur, 2002).