The UPOV Convention: 1978 and 1991 Acts

1. The UPOV system

The International Convention for the Protection of New Varieties of Plants was signed in Paris in 1961 and created the International Union for the Protection of New Varieties of Plants (UPOV), based in Geneva and sharing administration with WIPO. It was revised in 1972, 1978 and 1991. New members can join only the 1991 Act; the 1978 Act closed to new accessions when the 1991 Act entered into force in 1998, though countries that joined earlier remain bound by 1978 unless they ratify 1991.

UPOV provides a model PBR system that member states enact in national law. Its conditions of protection, common to both Acts, are:

• Novelty (commercial): the variety has not been sold or otherwise disposed of with the breeder’s consent beyond set periods before filing.
• Distinctness: clearly distinguishable from any other variety whose existence is a matter of common knowledge.
• Uniformity: sufficiently uniform in its relevant characteristics, subject to the variation expected from its propagation.
• Stability: characteristics remain unchanged after repeated propagation.
• A suitable denomination, which becomes the generic name of the variety.

Protection may not be made subject to any further condition, such as proof of agronomic value. This is the principle India copied in section 15 of the PPV&FR Act.

2. The 1978 Act

• Species covered: at least five genera or species on accession, rising to at least twenty-four within eight years.
• Scope: the breeder’s prior authorisation is required for the production for purposes of commercial marketing, the offering for sale and the marketing of the reproductive or vegetative propagating material of the variety. Harvested produce is not covered.
• Breeders’ exemption: authorisation is not required for using the variety as an initial source of variation to create other varieties, or for marketing those other varieties, except where repeated use of the protected variety is needed for commercial production of the other (as with hybrid parent lines).
• Farmers’ privilege: implicit. Since the right covers only production for commercial marketing, a farmer saving and resowing his own seed is outside it. Exchange between farmers was a grey area.
• Double protection: a member may protect a genus by patent or by PBR, but not both (Article 2(1)), with an exception for countries such as the US that already used both.
• Term: not less than fifteen years, and eighteen for vines, forest, fruit and ornamental trees.

3. The 1991 Act

• Species covered: all plant genera and species, within five years for existing members and ten for new members.
• Scope (Article 14): authorisation is needed for production or reproduction, conditioning for propagation, offering for sale, selling or other marketing, exporting, importing, and stocking for any of these purposes. The right extends to harvested material (including whole plants and parts) obtained through unauthorised use of propagating material, if the breeder had no reasonable opportunity to exercise his right over the propagating material, and optionally to products made directly from such harvested material.
• Essentially derived varieties (Article 14(5)): the right extends to varieties essentially derived from the protected variety, to varieties not clearly distinguishable from it, and to varieties whose production requires its repeated use. An EDV is predominantly derived from an initial variety, retains its essential characteristics, and is clearly distinguishable from it (for example by selection of a mutant, back-crossing or genetic engineering). The concept stops “cosmetic breeding”, where a competitor adds one gene to a protected variety and claims a new one.
• Compulsory exceptions (Article 15(1)): acts done privately and for non-commercial purposes; acts done for experimental purposes; and acts done to breed other varieties (the breeders’ exemption, now subject to the EDV rule).
• Optional farmers’ exception (Article 15(2)): a member may, within reasonable limits and subject to safeguarding the breeder’s legitimate interests, permit farmers to use, for propagating on their own holdings, the product of the harvest obtained by planting the protected variety on their own holdings. Sale or exchange of farm-saved seed is not covered. The EU implements this by requiring farmers (other than small farmers) to pay an equitable remuneration.
• Double protection is allowed: a variety can be protected by PBR and its genes by patent.
• Term (Article 19): not less than twenty years, and twenty-five for trees and vines.

4. Comparison

5. India and UPOV

India has not joined UPOV. The PPV&FR Act borrows the DUS criteria, the EDV concept and the 1978 term, but adds what UPOV 1991 would not allow: farmers’ right to sell unbranded farm-saved seed, registration of farmers’ and extant varieties, benefit sharing, community compensation and compensation for crop failure. Joining UPOV 1991 would require narrowing section 39(1)(iv), which is politically contentious given how many livelihoods depend on farm-saved seed.

How this is examined

An essay comparing the two Acts, or a short note on EDVs or on the farmers’ privilege. Use the comparison table, cite Article 14 and Article 15 of the 1991 Act, and end with India’s choice to stay out of UPOV and the TRIPS-plus pressure.