Plant refinement is long-term work, and it takes many years to develop new breeds. Up through history, farmers have engaged in plant breeding through selection and cross-breeding of plants. They still do so today, but much contemporary breeding is carried out in laboratories by professional plant breeders. An increasing amount of this labor is now performed by private companies. In order to ensure a profit on this work, increasing calls are made for immaterial rights to the seed varieties developed, which would assure that the companies that develop new varieties are awarded time-limited exclusive rights to commercial use of the varieties. Immaterial rights are most often granted in the form of plant variety protection or patent.

What is plant variety protection?

Plant variety protection, or plant breeders’ rights, as it is also called, is a special category of rights that was developed specifically in order to protect plant varieties. Plant variety protection gives plant breeders exclusive rights to commercial exploitation of varieties that fulfill a series of specified demands. Thus, for example, the new variety must be different from other registered varieties. The extent of these demands and of the exclusive rights awarded vary to some extent from country to country. Some countries, like Nepal, India and Norway, have a form of plant variety protection that gives farmers broad rights to use and maintain the protected seed material, while other countries have developed laws that strongly restrict such rights. International cooperation on plant variety protection takes place mainly at UPOV (The International Union for the Protection of New Varieties of Plants). Most developing countries lacked any kind of plant variety protection until they became members of the World Trade Organization (WTO), where countries that do not accept patents on plants must introduce plant variety protection. For this reason, an increasing number of countries are establishing a legal basis for plant variety protection and engage in dialogue with UPOV on membership in the Union and support for formulating laws.

What is a patent?

A patent is the exclusive right to commercial exploitation of a new invention for a limited period of time. In order to be granted patent rights to a plant, applicants must fulfill the demands for, among other things, invention, novelty and distinction from other varieties. When a plant is patented, more than the use of the variety is protected. The applicant may request protection of the plant’s genetic material, which in practice means that other companies or breeders who wish to do further research on the patented material must, as a rule, apply for permission from the patent holder. In this way, patents on plants limits the development of new varieties. Membership in WTO places no obligations on countries to permit plant patenting, but the USA, EU and EFTA often demand that developing countries introduce patents on plants when they enter into bilateral trade agreements.

What do immaterial rights mean for farmers?

Plant variety protection and patents both lay serious limitations on farmers’ rights to use, take care of, exchange and sell seeds. These rights are of central importance for the functioning of local seed sys­tems, which constitute an important basis for farmers’ food production. Plant variety protection and patenting make it more difficult for farmers to gain access to plant genetic materials, and yield few benefits for them from the advances in the field of plant breeding. This happens in spite of the fact that the genetic materials used by plant breeders were preserved by farmers.

The introduction of plant variety protection is particularly problematic in countries where few varieties are registered. This makes it possible to demand variety protection for plants that were developed and maintained by the farmers themselves through use and selection. Laws are often developed without the participation of farmers or civil society, and have also caused large-scale protests, as we witnessed in Guatemala in 2014 (link to case).

It is important that plant variety protection is designed to fit the local context and secure the rights of farmers to seed. It is important that developing countries are given the opportunity to acknowledge and implement the rights of farmers without being put under pressure to introduce plant patenting and forms of plant variety protection that restrict these rights.

What does the Development Fund do in this field?

The Development Fund works to increase the flexibility of UPOV, so the convention can maintain and acknowledge the rights of farmers to seed. The Development Fund participates in the network APBREBES (link), which is one of two civil society organizations with observer status in UPOV. As observers and through other advocacy work, the Development Fund seeks to ensure that the perspectives of poor farmers in developing countries are given voice in these discussions. The Development Fund also cooperates with Norwegian authorities in this field.

The Development Fund engages in advocacy to change present-day rules that allow patents on plants and animals, and encourages Norwegian authorities to not include demands for plant patenting and plant variety protection in their trade agreements with developing countries.

In addition, the Development Fund supports our partners, to increase their influence on their national authorities and to formulate laws for plant variety protection.