Monday, 16 June 2014

OAPI Joins UPOV

Katrina's radish The International Union for the Protection of New Varieties of Plants (UPOV) announced last week that the African Intellectual Property Organization (OAPI) has become the second Intergovernmental Organization to join UPOV.  (The first was the European Union in 2005.)  OAPI’s membership will become effective on 10 July 2014.

This Little Leo was a bit surprised by this announcement.  UPOV has several version and some members are members of previous versions, most notably the 1978 UPOV, rather than the newest version, 1991 UPOV (or as Little Leo calls it, NewPOV).  UPOV is a convention on protecting plant varieties.  There’s a few differences between the 1978 and 1991 conventions, but the main one is the addition of propagation of seeds as a plant breeder right.  This effectively removes the ability of farmers to save seeds from their harvests for planting.  There is an optional exception in 15(2) that allows countries to allow farmers to replant seeds on their own farms.  This still prohibits seed sharing or tinkering with the seeds.

Whether sui generis protection or patent protection, breeders rights tends to be an area of intense debate in developing countries and the ability of farmers to save seeds from their harvests for the next years’ planting is a key issue.  OAPI aside, there are only 4 African countries that are members of UPOV.  Two are members of 1978 UPOV, Kenya and South Africa, and two are members of 1991 NewPov, Morocco and Tunisia.  OAPI adds another 17 African members to the 1991 Convention.

What does this mean for the OAPI countries? 

A requirement of joining UPOV is that the local laws already conform to the UPOV convention.  Annex X of the Bangui Accord, added in 2006, covers plant protection and matches UPOV fairly well.  It even includes instructions for those wishing to apply for protection in OAPI through UPOV in Article 13 of Annex X.  Annex X includes the UPOV 15(2) optional exception for farmers to plant harvested seeds on their own land (but it does not apply for fruit trees, forests or ornamental plants), Article 30(d).  In short, it looks like joining UPOV will not mean any new laws or changes to existing OAPI agreements.  Whether joining UPOV translates into increased investment or new imports of foreign-created plant varieties is still to be seen.

It turns out Little Leo shouldn’t be surprised at OAPI’s joining UPOV since the Bangui Accord has been in line with UPOV for sometime.  Moreover, knowing that OAPI has included the 15(2) exception has lessened the concern part of the initial shock.

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