NUFFIELD COUNCIL ON BIOETHICS CONSULTATION PAPER NEW APPROACHES TO BIOFUELS : RESPONSE TO QUESTIONS 10, 19 AND 23

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1 This response was submitted to the consultation held by the Nuffield Council on Bioethics on New approaches to biofuels between December 2009 and March The views expressed are solely those of the respondent(s) and not those of the Council. NUFFIELD COUNCIL ON BIOETHICS CONSULTATION PAPER NEW APPROACHES TO BIOFUELS : RESPONSE TO QUESTIONS 10, 19 AND 23 The aim of the International Union for the Protection of New Varieties of Plants (UPOV) is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society. New varieties of plants which produce improved yields, higher quality or provide better resistance to plant pests and diseases are a key element and a most cost-effective factor in increasing productivity and product quality in agriculture, horticulture and forestry, whilst minimizing the pressure on the natural environment. Many other modern technologies of plant production need to be combined with highperforming varieties in order to deploy their full potential. The tremendous progress in agricultural productivity in various parts of the world is largely based on improved varieties i. Plant breeding requires considerable investment in time and resources. However, it can be relatively quick and easy to reproduce new varieties. Without the ability to cover their investment, breeders will be unable to invest in breeding. By making the reproduction and commercial exploitation of varieties subject to the breeder s authorization, a system of plant variety protection based on the International Convention for the Protection of New Varieties of Plants (UPOV Convention ii ) provides the breeder with the possibility to recover investment in plant breeding work. Providing an effective system with the aim of encouraging the development of new varieties of plants The UPOV system of plant variety protection came into being with the adoption of the International Convention for the Protection of New Varieties of Plants by a Diplomatic Conference in Paris on December 2, The UPOV Convention provides a sui generis form of intellectual property protection which has been specifically adapted for the process of plant breeding and has been developed with the aim of encouraging breeders to develop new varieties of plants. Many countries, including developing countries and countries in transition to a market economy, are considering the introduction of a system for the protection of new varieties of plants (PVP system). Most countries which have already introduced a PVP system have chosen to base their system on the UPOV Convention in order to provide an effective, internationally recognized system (see Annex). With respect to the purpose of a PVP system, UPOV clarifies that its mission is To provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society. Thus, the UPOV system of PVP is designed to encourage innovation in the field of plant breeding, in order to promote the development of new varieties that will benefit society. Society in this context means all society, and all members of society are consumers in some way. However, it is also recognized that farmers and growers are the deliverers of the benefits of new varieties to society and are also the first beneficiaries of new varieties which offer improved income through improved yields, improved quality and the opening-up of new market possibilities.

2 i for further information see The Second World Seed Conference Responding to the challenges of a changing world: The role of new plant varieties and high quality seed in agriculture, held at the FAO Headquarters in Rome, September 8-10, 2009, Opening address by Mr. Bernard Le Buanec (Proceedings of the Second World Seed Conference (UPOV Publication 354(E) and ii As a means of providing countries considering the introduction of a PVP system with information on the benefits they might expect, in 2005, UPOV published the UPOV Report on the Impact of Plant Variety Protection ( Impact Study ) ii. That report was based on the work of a UPOV Ad hoc Working Group to Study the Impact of Plant Variety Protection, which included members from all the countries forming the basis of the Impact Study: Argentina, China, Kenya, Poland and the Republic of Korea (see Section III of the Report Reports on Studies Conducted in Individual Countries ). The Impact Study produced a number of findings concerning the impact of plant variety protection, which might be summarized as follows: (a) Breeding activity and structure of the breeding industry The introduction of the UPOV system was associated with increased breeding activity and with the encouragement of new types of breeders, including private breeders, researchers and farmer breeders. The introduction of PVP was also associated with the development of partnerships, including public private cooperation. (b) Improved varieties Individual country reports in the Impact Study confirmed that the introduction of plant variety protection was associated with the development of new, protected varieties that provided improvements for farmers, growers, industry and consumers. (c) Increased number of new varieties The Impact Study provided information on how the number of new varieties increased after the introduction of plant variety protection. It was also demonstrated that membership of UPOV was associated with an increase in the number of varieties introduced by foreign breeders, particularly in the ornamental sector. (d) Development of international markets One of the benefits of plant variety protection is to encourage the development of new, improved plant varieties that lead to improved competitiveness in foreign markets. (e) Enhanced access to foreign germplasm

3 In addition to providing improved competitiveness for farmers, growers and industry, access to foreign plant varieties is an important form of technology transfer that can also lead to enhanced domestic breeding programs as a result of the breeders exemption. Access to Genetic Resources 6. UPOV considers that plant breeding is a fundamental aspect of the sustainable use and development of genetic resources. It is of the opinion that access to genetic resources is a key requirement for sustainable and substantial progress in plant breeding. The concept of the breeder s exemption in the UPOV Convention ii, whereby acts done for the purpose of breeding other varieties are not subject to any restriction, reflects the view of UPOV that the worldwide community of breeders needs access to all forms of breeding material to sustain greatest progress in plant breeding and, thereby, to maximize the use of genetic resources for the benefit of society. ii Farmers Farmers and growers are the deliverers of the benefits of new varieties to society and are also the first beneficiaries of new varieties which offer improved income through improved yields, improved quality and the opening-up of new market possibilities. However, with regard to subsistence farmers, the UPOV Convention contains a compulsory exception to the breeder s right whereby the breeder s right does not extend to acts done privately and for non-commercial purposes. Therefore, activities of subsistence farmers, where these constitute acts done privately and for non-commercial purposes, are excluded from the scope of the breeder s right and such farmers freely benefit from the availability of protected new varieties. In addition, the provision on farm-saved seed is an optional mechanism provided by the UPOV Convention ii, under which UPOV members may permit farmers, on their own farms, to use part of their harvest of a protected variety for the planting of a further crop. Under this provision, members of UPOV are able to adopt solutions, which are specifically adapted to their agricultural circumstances. However, this provision is subject to reasonable limits and requires that the legitimate interests of the breeder are safeguarded, to ensure there is a continued incentive for the development of new varieties of plants, for the benefit of society. For example, certain members of UPOV apply the provision on farm-saved seed only to certain species or limit its application using criteria such as the size of the farmer s holding or the level of production. Conclusions of the Second World Seed Conference Responding to the challenges of a changing world: The role of new plant varieties and high quality seed in agriculture The declaration from the Second World Seed Conference Responding to the challenges of a changing world: The role of new plant varieties and high quality seed in agriculture (Second World Seed Conference), held at the FAO Headquarters in Rome, September 8-10, 2009 ii, stated that Governments are strongly encouraged to implement a predictable, reliable, user friendly and affordable regulatory environment to ensure that farmers have access to high quality seed at a fair price. In particular, FAO member countries are urged to participate in the internationally

4 harmonized systems of the Organization for Economic Cooperation and Development (OECD), the International Union for the Protection of New Varieties of Plants (UPOV), the International Treaty on Plant and Genetic Resources for Food and Agriculture (ITPGRFA) and the International Seed Testing Association (ISTA). Participation in those systems will facilitate the availability of germplasm, new plant varieties and high quality seed for the benefit of their farmers, without which their ability to respond to the challenges ahead will be substantially impaired. The conference emphasized the important role of both the public and the private sectors to meet the challenges ahead and the benefits when the two work together. The declaration from the Second World Seed Conference further stated that Intellectual property protection is crucial for a sustainable contribution of plant breeding and seed supply. An effective system of plant variety protection is a key enabler for investment in breeding and the development of new varieties of plants. A country s membership of UPOV is an important global signal for breeders to have the confidence to introduce their new varieties in that country. Annex INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS (UPOV) I. Members of UPOV as of November 22, 2009 (68) Albania 3 Chile 2 France 2 Latvia 3 Portugal 2 Trinidad and Tobago 2 Argentina 2 China 2 Georgia 3 Lithuania 3 Republic of Korea 3 Tunisia 3 Australia 3 Colombia 2 Germany 3 Mexico 2 Republic of Moldova 3 Turkey 3 Austria 3 Costa Rica 3 Hungary 3 Morocco 3 Romania 3 Ukraine 3 Azerbaijan 3 Croatia 3 Iceland 3 Netherlands 3 Russian Federation 3 United Kingdom 3 Belarus 3 Czech Republic 3 Ireland 2 New Zealand 2 Singapore 3 United States of America 3 Belgium 1 Denmark 3 Israel 3 Nicaragua 2 Slovakia 3 Uruguay 2 Bolivia Dominican Republic 3 Italy 2 Norway 2 Slovenia 3 Uzbekistan 3 (Plurinational State) 2 Ecuador 2 Japan 3 Oman 3 South Africa 2 Viet Nam 3 Brazil 2 Estonia 3 Jordan 3 Panama 2 Spain 3 Bulgaria 3 European Community 3,4 Kenya 2 Paraguay 2 Sweden 3 (Total 68) Canada 2 Finland 3 Kyrgyzstan 3 Poland 3 Switzerland Convention as amended by the Additional Act of 1972 is the latest Act by which one State is bound Act is the latest Act by which 22 States are bound Act is the latest Act by which 44 States and one organization are bound. Operates a (supranational) Community plant variety rights system which covers the territory of its 27 members. II. States (17) or Organizations (1) Which Have Initiated With the Council of UPOV the Procedure for Becoming Members of the Union Armenia, Bosnia and Herzegovina, Egypt, Guatemala, Honduras, India, Kazakhstan, Malaysia, Mauritius, Montenegro, Peru, Philippines, Serbia, Tajikistan, The former Yugoslav Republic of Macedonia, Venezuela,

5 Zimbabwe, as well as the African Intellectual Property Organization (Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte d Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal, Togo (16)). III. Other States Which Have Been in Contact with the Office of the Union for Assistance in the Development of Legislation on Plant Variety Protection (44) Afghanistan, Algeria, Bahrain, Bangladesh, Barbados, Burundi, Cambodia, Congo (Democratic Republic of), Cuba, Cyprus, Djibouti, Dominica, El Salvador, Fiji, Ghana, Greece, Guyana, Indonesia, Iraq, Islamic Republic of Iran, Jamaica, Lao People s Democratic Republic, Lebanon, Libyan Arab Jamahiriya, Madagascar, Malawi, Mongolia, Myanmar, Nepal, Pakistan, Saudi Arabia, Seychelles, Sri Lanka, Sudan, Suriname, Syrian Arab Republic, Thailand, Tonga, Turkmenistan, Uganda, United Arab Emirates, United Republic of Tanzania, Yemen, Zambia.