Creating space for ‘informal’ seed systems in a plant variety protection system that is based on UPOV 1991

Summary Plant variety protection (PVP) gives a right holder (breeder) the possibility to exclude others from using his or her invention (plant variety) for a particular period. African regional organizations are currently establishing PVP systems that are in line with the international standards set by the International Union for the Protection of New Varieties of Plants (UPOV). Proponents hope that a UPOV-compliant PVP system will incentivize breeding and the introduction of new varieties, while opponents fear that such a PVP system would favour foreign seed companies and criminalize farmers. The dichotomies between proponents and opponents have taken centre stage in national and international debates on this topic, and there is much distrust and misunderstanding between the various parties involved. The challenge for African countries is to strike a balance between protecting the interests of breeders in order to maintain the incentive function of plant breeders’ rights in the commercial market, while providing leeway to smallholder farmers that depend on informal sources for their seed security and survival. The project has created space for key stakeholders to meet and discuss their viewpoints, thereby starting a process of mutual learning and understanding, both at the international and national level. From these efforts, it can be concluded that in most African countries PVP is relevant for only a small segment of the formal seed sector. PVP, like any intellectual property right, is intended to stimulate innovation and development by regulating rights and obligations amongst parties involved in commercial trade. A PVP system will not incentivize breeding in crops for which there is no commercial market. For that reason, public research organizations should carefully manage PVP applications and not overestimate prospective revenues. It was also concluded that a PVP system compliant with UPOV 1991 can restrict the accessibility of protected varieties for smallholder farmers as it does not allow farmers to trade seed of a protected variety. Recent research confirms that smallholder farmers access their seed mainly from informal channels, with the majority being bought from local markets. Therefore, it is recommended that UPOV member countries apply a broad interpretation of the UPOV exemption for acts conducted privately and for non-commercial purposes. This can be achieved by developing regulations that allow a certain category of farmers (i.e. smallholder or resource-poor farmers) to freely save, exchange and sell farm-saved seed of protected varieties of food crops. Other concerns raised during the stakeholder meetings relate to the need to improve transparency and democratic accountability in decision-making processes on PVP, and the compatibility of the UPOV system with national and international legislation on access and benefit-sharing.