The International Union for the Protection of New Varieties of Plants or UPOV () is a
treaty body
In international law, a treaty body (or treaty-based body) is an International organization, internationally established body of independent experts that monitor how States party to a particular treaty, international legal instrument are implementi ...
(non-United Nations
intergovernmental organization
Globalization is social change associated with increased connectivity among societies and their elements and the explosive evolution of transportation and telecommunication technologies to facilitate international cultural and economic exchange. ...
) with headquarters in Geneva, Switzerland. Its objective is to provide an effective system for
plant variety protection. It does so by defining a blueprint regulation to be implemented by its members in national law. The expression UPOV Convention also refers to one of the three instruments that relate to the union, namely the ''1991 Act of the UPOV Convention'' (UPOV 91), ''1978 Act of the UPOV Convention'' (UPOV 78) and ''1961 Act of the UPOV Convention with Amendments of 1972'' (UPOV 61).
History
UPOV was established by the International Convention for the Protection of New Varieties of Plants (UPOV 61). The convention was adopted in Paris in 1961 and revised in 1972, 1978 and 1991.
The initiative for the foundation of UPOV came from European breeding companies, who 1956 called for a conference to define basic principles for plant variety protection. The first version of the UPOV convention was agreed on in 1961 by 12 European countries. By 1990 still only 19 countries were part of the convention, with
South Africa
South Africa, officially the Republic of South Africa (RSA), is the Southern Africa, southernmost country in Africa. Its Provinces of South Africa, nine provinces are bounded to the south by of coastline that stretches along the Atlantic O ...
being the only country from the Southern Hemisphere.
From the mid-1990s more and more countries from Latin America, Asia and Africa joined the convention. A reason for this development might be the TRIPS-Agreement that obliged WTO members to introduce plant variety protection in national law.
Later, many countries have been obliged to join UPOV through specific clauses in bilateral trade agreements, in particular with the EU, USA, Japan and EFTA.
The TRIPS-Agreement doesn't require adherence to UPOV but gives the possibility to define a ''sui generis'' system for plant variety protection.
In contrast, clauses in free trade agreement are more comprehensive and typically require adherence to UPOV.
While the earlier versions of the convention have been replaced, UPOV 78 and UPOV 91 coexist. Existing members are free to decide whether they want to ratify UPOV 91 or stay with UPOV 78, whereas new members have to adhere to the more restrictive version from 1991.
Membership
As of December 3, 2021 two intergovernmental organisations and 76 countries and were members of UPOV:
[List of UPOV Members published b]
PD
African Intellectual Property Organisation,
Albania
Albania ( ; or ), officially the Republic of Albania (), is a country in Southeast Europe. It is located in the Balkans, on the Adriatic Sea, Adriatic and Ionian Seas within the Mediterranean Sea, and shares land borders with Montenegro to ...
,
Argentina
Argentina, officially the Argentine Republic, is a country in the southern half of South America. It covers an area of , making it the List of South American countries by area, second-largest country in South America after Brazil, the fourt ...
,
Australia
Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...
,
Austria
Austria, formally the Republic of Austria, is a landlocked country in Central Europe, lying in the Eastern Alps. It is a federation of nine Federal states of Austria, states, of which the capital Vienna is the List of largest cities in Aust ...
,
Azerbaijan
Azerbaijan, officially the Republic of Azerbaijan, is a Boundaries between the continents, transcontinental and landlocked country at the boundary of West Asia and Eastern Europe. It is a part of the South Caucasus region and is bounded by ...
,
Belarus
Belarus, officially the Republic of Belarus, is a landlocked country in Eastern Europe. It is bordered by Russia to the east and northeast, Ukraine to the south, Poland to the west, and Lithuania and Latvia to the northwest. Belarus spans an a ...
,
Belgium
Belgium, officially the Kingdom of Belgium, is a country in Northwestern Europe. Situated in a coastal lowland region known as the Low Countries, it is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeas ...
,
Bolivia
Bolivia, officially the Plurinational State of Bolivia, is a landlocked country located in central South America. The country features diverse geography, including vast Amazonian plains, tropical lowlands, mountains, the Gran Chaco Province, w ...
,
Bosnia and Herzegovina
Bosnia and Herzegovina, sometimes known as Bosnia-Herzegovina and informally as Bosnia, is a country in Southeast Europe. Situated on the Balkans, Balkan Peninsula, it borders Serbia to the east, Montenegro to the southeast, and Croatia to th ...
,
Brazil
Brazil, officially the Federative Republic of Brazil, is the largest country in South America. It is the world's List of countries and dependencies by area, fifth-largest country by area and the List of countries and dependencies by population ...
,
Bulgaria
Bulgaria, officially the Republic of Bulgaria, is a country in Southeast Europe. It is situated on the eastern portion of the Balkans directly south of the Danube river and west of the Black Sea. Bulgaria is bordered by Greece and Turkey t ...
,
Canada
Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...
,
Chile
Chile, officially the Republic of Chile, is a country in western South America. It is the southernmost country in the world and the closest to Antarctica, stretching along a narrow strip of land between the Andes, Andes Mountains and the Paci ...
,
China
China, officially the People's Republic of China (PRC), is a country in East Asia. With population of China, a population exceeding 1.4 billion, it is the list of countries by population (United Nations), second-most populous country after ...
,
Colombia
Colombia, officially the Republic of Colombia, is a country primarily located in South America with Insular region of Colombia, insular regions in North America. The Colombian mainland is bordered by the Caribbean Sea to the north, Venezuel ...
,
Costa Rica
Costa Rica, officially the Republic of Costa Rica, is a country in Central America. It borders Nicaragua to the north, the Caribbean Sea to the northeast, Panama to the southeast, and the Pacific Ocean to the southwest, as well as Maritime bo ...
,
Croatia
Croatia, officially the Republic of Croatia, is a country in Central Europe, Central and Southeast Europe, on the coast of the Adriatic Sea. It borders Slovenia to the northwest, Hungary to the northeast, Serbia to the east, Bosnia and Herze ...
,
Czech Republic
The Czech Republic, also known as Czechia, and historically known as Bohemia, is a landlocked country in Central Europe. The country is bordered by Austria to the south, Germany to the west, Poland to the northeast, and Slovakia to the south ...
,
Denmark
Denmark is a Nordic countries, Nordic country in Northern Europe. It is the metropole and most populous constituent of the Kingdom of Denmark,, . also known as the Danish Realm, a constitutionally unitary state that includes the Autonomous a ...
,
Dominican Republic
The Dominican Republic is a country located on the island of Hispaniola in the Greater Antilles of the Caribbean Sea in the Atlantic Ocean, North Atlantic Ocean. It shares a Maritime boundary, maritime border with Puerto Rico to the east and ...
,
Ecuador
Ecuador, officially the Republic of Ecuador, is a country in northwestern South America, bordered by Colombia on the north, Peru on the east and south, and the Pacific Ocean on the west. It also includes the Galápagos Province which contain ...
,
Egypt
Egypt ( , ), officially the Arab Republic of Egypt, is a country spanning the Northeast Africa, northeast corner of Africa and Western Asia, southwest corner of Asia via the Sinai Peninsula. It is bordered by the Mediterranean Sea to northe ...
,
Estonia
Estonia, officially the Republic of Estonia, is a country in Northern Europe. It is bordered to the north by the Gulf of Finland across from Finland, to the west by the Baltic Sea across from Sweden, to the south by Latvia, and to the east by Ru ...
,
European Union
The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...
,
Finland
Finland, officially the Republic of Finland, is a Nordic country in Northern Europe. It borders Sweden to the northwest, Norway to the north, and Russia to the east, with the Gulf of Bothnia to the west and the Gulf of Finland to the south, ...
,
France
France, officially the French Republic, is a country located primarily in Western Europe. Overseas France, Its overseas regions and territories include French Guiana in South America, Saint Pierre and Miquelon in the Atlantic Ocean#North Atlan ...
,
Georgia
Georgia most commonly refers to:
* Georgia (country), a country in the South Caucasus
* Georgia (U.S. state), a state in the southeastern United States
Georgia may also refer to:
People and fictional characters
* Georgia (name), a list of pe ...
,
Germany
Germany, officially the Federal Republic of Germany, is a country in Central Europe. It lies between the Baltic Sea and the North Sea to the north and the Alps to the south. Its sixteen States of Germany, constituent states have a total popu ...
,
Ghana
Ghana, officially the Republic of Ghana, is a country in West Africa. It is situated along the Gulf of Guinea and the Atlantic Ocean to the south, and shares borders with Côte d’Ivoire to the west, Burkina Faso to the north, and Togo to t ...
,
Guatemala
Guatemala, officially the Republic of Guatemala, is a country in Central America. It is bordered to the north and west by Mexico, to the northeast by Belize, to the east by Honduras, and to the southeast by El Salvador. It is hydrologically b ...
,
Hungary
Hungary is a landlocked country in Central Europe. Spanning much of the Pannonian Basin, Carpathian Basin, it is bordered by Slovakia to the north, Ukraine to the northeast, Romania to the east and southeast, Serbia to the south, Croatia and ...
,
Iceland
Iceland is a Nordic countries, Nordic island country between the Atlantic Ocean, North Atlantic and Arctic Oceans, on the Mid-Atlantic Ridge between North America and Europe. It is culturally and politically linked with Europe and is the regi ...
,
Ireland
Ireland (, ; ; Ulster Scots dialect, Ulster-Scots: ) is an island in the North Atlantic Ocean, in Northwestern Europe. Geopolitically, the island is divided between the Republic of Ireland (officially Names of the Irish state, named Irelan ...
,
Israel
Israel, officially the State of Israel, is a country in West Asia. It Borders of Israel, shares borders with Lebanon to the north, Syria to the north-east, Jordan to the east, Egypt to the south-west, and the Mediterranean Sea to the west. Isr ...
,
Italy
Italy, officially the Italian Republic, is a country in Southern Europe, Southern and Western Europe, Western Europe. It consists of Italian Peninsula, a peninsula that extends into the Mediterranean Sea, with the Alps on its northern land b ...
,
Japan
Japan is an island country in East Asia. Located in the Pacific Ocean off the northeast coast of the Asia, Asian mainland, it is bordered on the west by the Sea of Japan and extends from the Sea of Okhotsk in the north to the East China Sea ...
,
Jordan
Jordan, officially the Hashemite Kingdom of Jordan, is a country in the Southern Levant region of West Asia. Jordan is bordered by Syria to the north, Iraq to the east, Saudi Arabia to the south, and Israel and the occupied Palestinian ter ...
,
Kenya
Kenya, officially the Republic of Kenya, is a country located in East Africa. With an estimated population of more than 52.4 million as of mid-2024, Kenya is the 27th-most-populous country in the world and the 7th most populous in Africa. ...
,
Kyrgyzstan
Kyrgyzstan, officially the Kyrgyz Republic, is a landlocked country in Central Asia lying in the Tian Shan and Pamir Mountains, Pamir mountain ranges. Bishkek is the Capital city, capital and List of cities in Kyrgyzstan, largest city. Kyrgyz ...
,
Latvia
Latvia, officially the Republic of Latvia, is a country in the Baltic region of Northern Europe. It is one of the three Baltic states, along with Estonia to the north and Lithuania to the south. It borders Russia to the east and Belarus to t ...
,
Lithuania
Lithuania, officially the Republic of Lithuania, is a country in the Baltic region of Europe. It is one of three Baltic states and lies on the eastern shore of the Baltic Sea, bordered by Latvia to the north, Belarus to the east and south, P ...
,
Mexico
Mexico, officially the United Mexican States, is a country in North America. It is the northernmost country in Latin America, and borders the United States to the north, and Guatemala and Belize to the southeast; while having maritime boundar ...
,
Moldova
Moldova, officially the Republic of Moldova, is a Landlocked country, landlocked country in Eastern Europe, with an area of and population of 2.42 million. Moldova is bordered by Romania to the west and Ukraine to the north, east, and south. ...
,
Montenegro
, image_flag = Flag of Montenegro.svg
, image_coat = Coat of arms of Montenegro.svg
, coa_size = 80
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, national_anthem = ()
, image_map = Europe-Mont ...
,
Morocco
Morocco, officially the Kingdom of Morocco, is a country in the Maghreb region of North Africa. It has coastlines on the Mediterranean Sea to the north and the Atlantic Ocean to the west, and has land borders with Algeria to Algeria–Morocc ...
, the
Netherlands
, Terminology of the Low Countries, informally Holland, is a country in Northwestern Europe, with Caribbean Netherlands, overseas territories in the Caribbean. It is the largest of the four constituent countries of the Kingdom of the Nether ...
,
New Zealand
New Zealand () is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and List of islands of New Zealand, over 600 smaller islands. It is the List of isla ...
,
Nicaragua
Nicaragua, officially the Republic of Nicaragua, is the geographically largest Sovereign state, country in Central America, comprising . With a population of 7,142,529 as of 2024, it is the third-most populous country in Central America aft ...
,
North Macedonia
North Macedonia, officially the Republic of North Macedonia, is a landlocked country in Southeast Europe. It shares land borders with Greece to the south, Albania to the west, Bulgaria to the east, Kosovo to the northwest and Serbia to the n ...
,
Norway
Norway, officially the Kingdom of Norway, is a Nordic countries, Nordic country located on the Scandinavian Peninsula in Northern Europe. The remote Arctic island of Jan Mayen and the archipelago of Svalbard also form part of the Kingdom of ...
,
Oman
Oman, officially the Sultanate of Oman, is a country located on the southeastern coast of the Arabian Peninsula in West Asia and the Middle East. It shares land borders with Saudi Arabia, the United Arab Emirates, and Yemen. Oman’s coastline ...
,
Panama
Panama, officially the Republic of Panama, is a country in Latin America at the southern end of Central America, bordering South America. It is bordered by Costa Rica to the west, Colombia to the southeast, the Caribbean Sea to the north, and ...
,
Paraguay
Paraguay, officially the Republic of Paraguay, is a landlocked country in South America. It is bordered by Argentina to the Argentina–Paraguay border, south and southwest, Brazil to the Brazil–Paraguay border, east and northeast, and Boli ...
,
Peru
Peru, officially the Republic of Peru, is a country in western South America. It is bordered in the north by Ecuador and Colombia, in the east by Brazil, in the southeast by Bolivia, in the south by Chile, and in the south and west by the Pac ...
,
Poland
Poland, officially the Republic of Poland, is a country in Central Europe. It extends from the Baltic Sea in the north to the Sudetes and Carpathian Mountains in the south, bordered by Lithuania and Russia to the northeast, Belarus and Ukrai ...
,
Portugal
Portugal, officially the Portuguese Republic, is a country on the Iberian Peninsula in Southwestern Europe. Featuring Cabo da Roca, the westernmost point in continental Europe, Portugal borders Spain to its north and east, with which it share ...
,
Republic of Korea
South Korea, officially the Republic of Korea (ROK), is a country in East Asia. It constitutes the southern half of the Korea, Korean Peninsula and borders North Korea along the Korean Demilitarized Zone, with the Yellow Sea to the west and t ...
,
Romania
Romania is a country located at the crossroads of Central Europe, Central, Eastern Europe, Eastern and Southeast Europe. It borders Ukraine to the north and east, Hungary to the west, Serbia to the southwest, Bulgaria to the south, Moldova to ...
,
Russian Federation
Russia, or the Russian Federation, is a country spanning Eastern Europe and North Asia. It is the list of countries and dependencies by area, largest country in the world, and extends across Time in Russia, eleven time zones, sharing Borders ...
,
Serbia
, image_flag = Flag of Serbia.svg
, national_motto =
, image_coat = Coat of arms of Serbia.svg
, national_anthem = ()
, image_map =
, map_caption = Location of Serbia (gree ...
,
Singapore
Singapore, officially the Republic of Singapore, is an island country and city-state in Southeast Asia. The country's territory comprises one main island, 63 satellite islands and islets, and one outlying islet. It is about one degree ...
,
Slovakia
Slovakia, officially the Slovak Republic, is a landlocked country in Central Europe. It is bordered by Poland to the north, Ukraine to the east, Hungary to the south, Austria to the west, and the Czech Republic to the northwest. Slovakia's m ...
,
Slovenia
Slovenia, officially the Republic of Slovenia, is a country in Central Europe. It borders Italy to the west, Austria to the north, Hungary to the northeast, Croatia to the south and southeast, and a short (46.6 km) coastline within the Adriati ...
,
South Africa
South Africa, officially the Republic of South Africa (RSA), is the Southern Africa, southernmost country in Africa. Its Provinces of South Africa, nine provinces are bounded to the south by of coastline that stretches along the Atlantic O ...
,
Spain
Spain, or the Kingdom of Spain, is a country in Southern Europe, Southern and Western Europe with territories in North Africa. Featuring the Punta de Tarifa, southernmost point of continental Europe, it is the largest country in Southern Eur ...
,
Sweden
Sweden, formally the Kingdom of Sweden, is a Nordic countries, Nordic country located on the Scandinavian Peninsula in Northern Europe. It borders Norway to the west and north, and Finland to the east. At , Sweden is the largest Nordic count ...
,
Switzerland
Switzerland, officially the Swiss Confederation, is a landlocked country located in west-central Europe. It is bordered by Italy to the south, France to the west, Germany to the north, and Austria and Liechtenstein to the east. Switzerland ...
,
Tanzania
Tanzania, officially the United Republic of Tanzania, is a country in East Africa within the African Great Lakes region. It is bordered by Uganda to the northwest; Kenya to the northeast; the Indian Ocean to the east; Mozambique and Malawi to t ...
,
Trinidad and Tobago
Trinidad and Tobago, officially the Republic of Trinidad and Tobago, is the southernmost island country in the Caribbean, comprising the main islands of Trinidad and Tobago, along with several List of islands of Trinidad and Tobago, smaller i ...
,
Tunisia
Tunisia, officially the Republic of Tunisia, is a country in the Maghreb region of North Africa. It is bordered by Algeria to the west and southwest, Libya to the southeast, and the Mediterranean Sea to the north and east. Tunisia also shares m ...
,
Turkey
Turkey, officially the Republic of Türkiye, is a country mainly located in Anatolia in West Asia, with a relatively small part called East Thrace in Southeast Europe. It borders the Black Sea to the north; Georgia (country), Georgia, Armen ...
,
Ukraine
Ukraine is a country in Eastern Europe. It is the List of European countries by area, second-largest country in Europe after Russia, which Russia–Ukraine border, borders it to the east and northeast. Ukraine also borders Belarus to the nor ...
,
the United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
,
the United States of America
The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 states and a federal capital district, Washington, D.C. The 48 contiguou ...
(with a reservation),
Uruguay
Uruguay, officially the Oriental Republic of Uruguay, is a country in South America. It shares borders with Argentina to its west and southwest and Brazil to its north and northeast, while bordering the Río de la Plata to the south and the A ...
,
Uzbekistan
, image_flag = Flag of Uzbekistan.svg
, image_coat = Emblem of Uzbekistan.svg
, symbol_type = Emblem of Uzbekistan, Emblem
, national_anthem = "State Anthem of Uzbekistan, State Anthem of the Republ ...
, and
Viet Nam.
For a country or intergovernmental organisation to become member, it needs to implement the requirements of the actual convention in national law. UPOV's secretariat analyises the regulation of plant variety protection in national law and writes a recommendation to the council whether or not the applicant shall be granted membership. In the past several countries have been refused memberships because their national plant variety protection laws granted exceptions for subsistence farmers to reuse and exchange seeds.
In addition, a large number of countries (eg
Pakistan
Pakistan, officially the Islamic Republic of Pakistan, is a country in South Asia. It is the List of countries and dependencies by population, fifth-most populous country, with a population of over 241.5 million, having the Islam by country# ...
), intergovernmental organisations (eg
European Free Trade Association
The European Free Trade Association (EFTA) is a regional trade organization and free trade area consisting of four List of sovereign states and dependent territories in Europe, European states: Iceland, Liechtenstein, Norway and Switzerland. ...
) and international non-governmental organisations (eg
International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties) have observer status.
System of protection
The convention defines both how the organization must be governed and run, and the basic concepts of plant variety protection that must be included in the domestic laws of the members of the union. These concepts include:
[UPOV System of Protection]
http://www.upov.int/en/about/upov_system.htm
. 2002.
* The criteria for new varieties to be protected: novelty, distinctness, uniformity, and stability.
* The process for application for a grant.
* Intellectual property rights conferred to an approved breeder.
* Exceptions to the rights conferred to the breeder.
* Required duration of breeder's right.
* Events in which a breeder's rights must be declared null and void.
In order to be granted breeder's rights, the variety in question must be shown to be new. This means that the plant variety cannot have previously been available for more than one year in the applicant's country, or for more than four years in any other country or territory. The variety must also be distinct (D), that is, easily distinguishable through certain characteristics from any other known variety (protected or otherwise). The other two criteria, uniformity (U) and stability (S), mean that individual plants of the new variety must show no more variation in the relevant characteristics than one would naturally expect to see, and that future generations of the variety through various propagation means must continue to show the relevant distinguishing characteristics. The UPOV offers general guidelines for DUS testing.
A breeder can apply for rights for a new variety in any union member country, and can file in as many countries as desired without waiting for a result from previous applications. Protection only applies in the country in which it was granted, so there are no reciprocal protections unless otherwise agreed by the countries in question. There is a right of priority, and the application date of the first application filed in any country is the date used in determining priority.
The rights conferred to the breeder are similar to other
intellectual property rights
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...
, such as
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an sufficiency of disclosure, enabling discl ...
s, even though there are important differences. Their purpose is to create a temporary monopoly on a plant variety, to allow its breeder to redeem the costs he invested to create this innovation - typically the creation of a new variety takes 10 to 15 years and implies a substantial investment.
The breeder must authorize any actions taken in propagating the new variety, including selling and marketing, importing and exporting, keeping stock of, and reproducing. This means that the breeder can, for example, require a licensing fee for any company interested in reproducing his variety for sale. The breeder also has the right to name the new variety, based on certain guidelines that prevent the name from being deliberately misleading or too similar to another variety's name.
In the 1991 convention there are four exceptions to the rights of the breeder owning a plant variety:
* Breeders exception: Even if a variety is protected it can be freely used by an other breeder as a source for new varieties, without the authorization of the owner of the original variety. With the introduction of the 1991 convention this exception has been narrowed down to exclude "essentially derived varieties".
* Farmers exception: In the 1978 Convention the reproduction of seeds, as well as their exchange with other farmers is implicitly allowed, because the exclusive right of the breeder only extend to the production for the purpose of marketing. With the 1991 Convention the scope of breeders rights were expanded to include the multiplication of a variety.
However, there still is an optional exception that can be included in national legislation to allow reproduction of seeds of certain crops by farmers, but only "within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder" which practically means that the farmers is obliged to pay license fees to the breeder. The only members of UPOV 91 allowing the free reproduction of seeds for some species by farmers are Switzerland and United States of America. UPOV secretariat never assessed if this implementation is in line with the convention as these countries already member of UPOV 1978 and national laws are only analysed for new members and not for existing members who update from UPOV 78 to UPOV 91.
* Exception for private non-commercial use: While free private use is implicitly allowed in UPOV 78, in UPOV 91 a mandatory explicit exception has been introduced.
It allows the reproduction of protected varieties for private use, by amateur gardeners as well as by subsistence farmers. However, the exception only applies exclusively for the production of a food crop to be consumed by that farmer or gardener.
In any case the exchange or gift of seeds or propagating material of protected varieties are prohibited.
* Exception for research: Acts done for experimental purpose are excluded from the scope of breeders rights UPOV 91,
something that was implicit in UPOV 78.
The 1991 Convention specifies that the breeder's right must be granted for at least 20 years from grant date for perennial crops and at least 25 years in the case of varieties of trees or vines. In the 1978 convention minimum duration of breeders rights are 15 years for perennials and 18 years for trees and vines.
Finally, there are provisions for how to negate granted breeders' rights if the rights are determined to be unfounded. That is, if it is discovered after the application has been granted that the variety is not actually novel or distinct, or if it is discovered to not be uniform or stable, the breeder's rights are nullified. In addition, if it is discovered that the person who applied for protection of the variety is not the actual breeder, the rights are nullified unless they can be transferred to the proper person. If it is discovered after a period of protection that the variety is no longer uniform and stable, the breeder's rights are canceled.
WIPO Lex provides support for related IP legal collections, including UPOV Lex.
Conflicts between breeders' rights and peasants' rights
Several international standards enacted by the United Nations oblige their member states to protect the rights of farmers to seeds: Article 19 of the
UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) grants peasants "The right to save, use, exchange and sell their farm-saved seed or propagating material." The same right is also codified in Article 9 of the
International Treaty for Plant Genetic Resources for Agriculture (ITPGRFA). Furthermore, peasants rights to seeds are also mentioned in the
Convention for Biological Diversity and the
UN Declaration on the Rights of Indigenous Peoples. UPOV standards violate this rights in the case of protected varieties, as farmers only are allowed to save seeds within very narrow limits and are not allowed to exchange or sell any seeds at all, according to UPOV 91. Furthermore, as implementation of UPOV is based on predefined standards, there is little room for member states to fulfill their obligation to take into account possible effects on the human right situation in their countries and to allow for participation of farmers.
In many developing countries, small scale farmers have not been informed prior to adopting and implementation of new plant variety protection laws and had no possibility participate in these decisions.
As UNDROP and UNDRIP are part of
Human Rights
Human rights are universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...
standards, they are higher order norms and therefore they prevail over property rights on seeds, according to human rights experts. As a consequence, states are obliged to revise regulations in national law that violate peasant's rights and adapt trade agreement or other intergovernmental obligations such as UPOV.
In a report on seeds and farmers' rights to the
Human Rights Council
The United Nations Human Rights Council (UNHRC) is a United Nations body whose mission is to promote and protect human rights around the world. The Council has 47 members elected for staggered three-year terms on a regional group basis. The ...
,
Special Rapporteur for the right to food Michael Fakhri states that UPOV 91 violates farmers' rights.
The report denounces pressures applied by industrialised countries on countries of the global South to join UPOV. It calls on UN member states to design and interpret seed policies and plant variety protection laws in a way that protects farmers rights and promotes farmers' seed systems rather than restricting them. Ethiopia, India, Malaysia and Thailand (all non-UPOV members) are mentioned as positive examples.
In 2021 the Supreme Court of Justice of Honduras deemed unconstitutional the Legislative Decree No. 21-2012 containing the Law for the Protection of New Varieties of Plants. The supreme court sacked the UPOV 91-based law because it judged it to be in contradiction with a range of human rights as well as with the obligation of the State of Honduras to protect the environment.
Impacts of UPOV
Impacts on development of seed sector and accessibility of seeds
A study published by UPOV in 2005 evaluated the impact of UPOV compliant regulations in
Argentina
Argentina, officially the Argentine Republic, is a country in the southern half of South America. It covers an area of , making it the List of South American countries by area, second-largest country in South America after Brazil, the fourt ...
,
China
China, officially the People's Republic of China (PRC), is a country in East Asia. With population of China, a population exceeding 1.4 billion, it is the list of countries by population (United Nations), second-most populous country after ...
,
Kenya
Kenya, officially the Republic of Kenya, is a country located in East Africa. With an estimated population of more than 52.4 million as of mid-2024, Kenya is the 27th-most-populous country in the world and the 7th most populous in Africa. ...
,
Poland
Poland, officially the Republic of Poland, is a country in Central Europe. It extends from the Baltic Sea in the north to the Sudetes and Carpathian Mountains in the south, bordered by Lithuania and Russia to the northeast, Belarus and Ukrai ...
and
South Korea
South Korea, officially the Republic of Korea (ROK), is a country in East Asia. It constitutes the southern half of the Korea, Korean Peninsula and borders North Korea along the Korean Demilitarized Zone, with the Yellow Sea to the west and t ...
. The study found that in these countries the number of protected varieties of some crops has increased after these countries have joined UPOV. The report takes this as an indicator that farmers and the agricultural sector as whole has profited. However, the by far does not live up to the scientific standards for impact assessments and has been criticized being heavily biased.
A report from 2005 commissioned by the World Bank looked at the impact of intellectual property rights regimes on the plant breeding industry in 5 developing countries. It concludes that intellectual property regimes have relatively little effect on the emergence of the private seed sector. India, the country with the most dynamic seed sector analysed in the report, is not a member of UPOV and has no strict plant variety protection regime. Contrarily, the report states that farmer's seed systems are the main source of seeds and new varieties in the countries studied and that strict intellectual property rights on seeds may reduce the effectiveness of these systems.
An analysis of the data from the Access to Seed Index from 2019, came to a similar finding: Many of the developing having the most vibrant private seed sector are not member of UPOV but have their own system of plant variety protection or no plant variety protection at all.
A study published by NGOs looked at the effects of the implementation of UPOV 1991 in francophone Africa in the 11 years after the accession of OAPI to UPOV.
It found that in the 17 member countries only 117 plant varieties have been newly protected during this period, half of them had already lapsed because of nonpayment of fees. At least half of them were varieties that had been available before. The study finds no increase in plant breeding activities in the region; while breeding by the public sector continued independent of plant variety protection, breeding by private companies remained largely non-existent.
In the case of Iceland, no new variety has been protected since its accession to UPOV 91 in 2006, while 49 varieties had been newly protected in the 10 years before.
An increased number of protected varieties does not automatically increase the accessibility of seeds to farmers. In many developing countries the majority of seeds used by small scale farmers come from the farmers’ managed seed sector. Frequently, also seeds of protected varieties are saved, exchanged and sold. As these practices are prohibited in UPOV 91, farmers lose access to an inexpensive source of seeds while commercial seeds remain unaffordable for many.
Impacts on agricultural development and productivity
A study commissioned by UPOV examined the socioeconomic benefits of plant variety protection, 10 years after the accession of Viet Nam to UPOV 91. The study found that the productivity of 3 major staple crops increased during this period: Yield gains were 18% for rice, 30% for corn and 43% for sweet potato. The study argues that improved varieties which had been introduced due to stricter plant variety protection contributed to this development, and that 74 million people could be fed with the additional sweet potatoes. However, in the case of sweet potato that had the highest gain, no new variety had been protected and also for the other crops, productivity gains can be explained with other factors. A Study published by an Asian NGO finds that implementation of UPOV 91 in Vietnam did not lead to an increase of investment in breeding or in gains of productivity. Instead, it strengthened international commercial breeders at the cost of weakening the public breeders and threatening the farmers' seed sector.
Impacts on food security and poverty reduction
Smallholder farmers in the global South are amongst the groups most prone to poverty and hunger. They predominantly rely on seeds that are produced by farmers themselves,
often also including varieties originally bred by
public
In public relations and communication science, publics are groups of individual people, and the public (a.k.a. the general public) is the totality of such groupings. This is a different concept to the sociology, sociological concept of the ''Öf ...
and
private breeders. These farmers’ seed systems are often highly resilient and more accessible to famers than seeds offered by
breeding companies. Through the implementation of strict plant variety protection in line with UPOV 91, and the restrictions on the use, exchange and sale of farm-saved seeds, farmers become more dependent on the seeds offered directely by breeding companies which often are unaffordable for the most vulnerable groups.
As a consequence, adherence to UPOV would most likely have negative effects for poverty reduction and food security
in developing countries.
The risk for food security that come with the implementation of strict regulations for plant variety protection might be an important reason why many countries of the global South hesitate to join UPOV or to update from UPOV 78 to UPOV 91 as the latter puts narrow limits to the farmer's privilege to reuse farm saved seeds.
In a report from 2009 the
UN Special Rapporteur on the Right to Food,
Olivier De Schutter, analysed the impact of UPOV on the right to food. He found that
IP-related monopoly rights could cause poor farmers to become "increasingly dependent on expensive inputs" and at risk of indebtedness. Further, the system risks neglecting poor farmers’ needs in favour of agribusiness needs, jeopardising traditional systems of
seed saving
In agriculture and gardening, seed saving (sometimes known as brown bagging) is the practice of saving seeds or other reproductive material (e.g. tubers, Grafting, scions, Cutting (plant), cuttings) from vegetables, grain, herbs, and flowers for u ...
and exchange, and losing biodiversity to "the uniformization encouraged by the spread of commercial varieties".These findings were by his successor Michael Fakhri in a report from 2022
and by the UN Secretary-General in a report from 2015.
Impacts on biodiversity and genetic resources
Diverse
genetic resources
Genetic resources are genetic material of actual or potential value, where genetic material means any material of plant, animal, microbial genetics, microbial or other origin containing functional units of heredity.
Genetic resources is one of the ...
are the basis of all plant breeding and crop production. Breeders rely on farmers’ varieties and wild relatives as a source for interesting traits, such as resistance against pathogens and pests.
The number of varieties has decreased by 75% in the past century and there is far less area planted to landraces worldwide as these have been replaced by scientifically bread varieties.
Furthermore, crop genetic diversity may decline with concentration of area planted in a few favoured varieties and reductions in “genetic distance” between these varieties.
The increasing dominance of few global seed producers and the implementation of increasingly strict plant variety regulation might have played a key role in this development. As the UN's Secretary General stated in a report from 2015, restrictions on seed management systems linked to UPOV 91 can lead to a
loss of biodiversity and in turn harm the livelihoods of small-scale farmers as well as weaken the genetic base on which we all depend for our future supply of food.
The design of plant variety protection facilitates appropriation of genetic resources and
biopiracy
Biopiracy (also known as scientific colonialism ) is the unauthorized appropriation of knowledge and genetic resources of farming and indigenous communities by individuals or institutions seeking exclusive monopoly control through patents or in ...
. Due to the criteria defined by UPOV, most landraces and farmer varieties cannot be protected and are therefore open for appropriation. UPOV 91-based PVP law also does not include a requirement for applicants to disclose the origin of their material and prove that the plant genetic resources used in the breeding process were legally acquired.
In its guidelines, UPOV even explicitly forbids its members to request a declaration of lawful acquirement or prior informed consent (as required by the
Convention on Biological Diversity
The Convention on Biological Diversity (CBD), known informally as the Biodiversity Convention, is a multilateral treaty. The Convention has three main goals: the conservation of biological diversity (or biodiversity); the sustainable use of its ...
) as precondition for granting PVP.
The documentation of a case in West Africa shows that the risk of
biopiracy
Biopiracy (also known as scientific colonialism ) is the unauthorized appropriation of knowledge and genetic resources of farming and indigenous communities by individuals or institutions seeking exclusive monopoly control through patents or in ...
is real: A French seed company tempted to claim plant variety protection for the traditional onion variety “''Violette de Galmi''”. The claim was challenged by the Nigerien government, the seed company withdrew the application and submitted a new application for the same variety but under another name.
The fact that challenging the application was only possible because the seed company used the original name of the traditional variety shows how easily varieties can be appropriated.
Critics and resistance
Several
social movement
A social movement is either a loosely or carefully organized effort by a large group of people to achieve a particular goal, typically a Social issue, social or Political movement, political one. This may be to carry out a social change, or to re ...
s and
civil society organisations such as
South Center,
GRAIN
A grain is a small, hard, dry fruit (caryopsis) – with or without an attached husk, hull layer – harvested for human or animal consumption. A grain crop is a grain-producing plant. The two main types of commercial grain crops are cereals and ...
AFSASEARICEThird World Network and
La Via Campesina have criticised UPOV Secretariatpointed. Some of them have pointed out the resistance of the UPOV Secretariat and Member States to dialogue with all interested parties, in particular:
* by keeping meetings secret,
* by not making its documents publicly available,
* by refusing
farmers' organisations NGO observer status with UPOV.
A study by Professor
Graham Dutfield concluded that UPOV's governance falls short in many different ways, UPOV officials know very little about actual farming, and how
small-scale farmers actually develop new varieties and produce them, and that they knew much more about breeding, which favours commercial breeders. The UPOV system thus favours commercial breeders over farmers and producers, and private interests over public interests.

The
intergovernmental organisation
An international organization, also known as an intergovernmental organization or an international institution, is an organization that is established by a treaty or other type of instrument governed by international law and possesses its own leg ...
South Center criticizes that, while conventions of UPOV 78 and UPOV 91 have been negotiated almost exclusively by industrialised countries, they are imposed to all countries including in the southern hemisphere.
GRAIN
A grain is a small, hard, dry fruit (caryopsis) – with or without an attached husk, hull layer – harvested for human or animal consumption. A grain crop is a grain-producing plant. The two main types of commercial grain crops are cereals and ...
even blames UPOV of neo-colonialistic behaviour.
At the occasion of UPOV's 60st anniversary on 2 December 2021, a coalition led by GRAIN organised the “Week of Action: Stop UPOV”, with a call for action with over 230 signatories across 47 countries. In front of UPOV's headquarter group of activists from th
Swiss Coalition for the Right to Seedsconducted a protest action, symbolically freeing plants from the chains of UPOV.
The week of action was repeated in 2022 with further protests in a range of countries.
UPOV and free trade agreements
Many developing countries did not decide to join the UPOV agreement voluntarily, but were obliged to do so by free trade agreements.
Examples of this are Peru, Morocco and Costa Rica, whose accession to UPOV was one of the conditions imposed by the European Free Trade Association for the free trade agreements subsequently concluded. There is increasing resistance to UPOV requirements in free trade agreements. In Switzerland, the responsible persons have received over 1,300 letters of complaint from various countries in the year 2020.
In his 2021 report on seeds and farmers‘ rights to the Human Rights Council, the current UN Special Rapporteur on the right to food emphasises that UPOV 91 violates farmers’ rights and criticises the pressure exerted by industrialised countries on countries of the Global South to join UPOV through free trade agreements.
The report calls on UN member states to design and interpret seed policies and plant variety protection laws in a way that protects farmers' rights and promotes their seed systems rather than restricting them. Ethiopia, India, Malaysia and Thailand (all non-UPOV members) are cited as positive examples, as they "have adopted innovative national plant variety protection laws distinct from the 1991 International Convention for the Protection of New Varieties of Plants."
Currently, however, the EFTA states, including Switzerland, Liechtenstein, Norway and Iceland are negotiating free trade agreements with Thailand and Malaysia. In this context, both countries are demanding compliance with UPOV 91 as a prerequisite for these agreements. In a letter to the four countries in 2024, the UN Special Rapporteur pointed out that this approach jeopardises the right to food. Despite these concerns, the joint response of the EFTA states indicates that they will likely maintain their current practice.
See also
Internal links
*
Community Plant Variety Office (CPVO)
*
Plant Variety Protection Act of 1970
*
Protection of Plant Varieties and Farmers' Rights Act, 2001
* "
Plant variety" (the legal term) vs. "
variety" (the botanical taxonomy term)
*
International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty, or ITPGRFA)
*
Convention on Biological Diversity
The Convention on Biological Diversity (CBD), known informally as the Biodiversity Convention, is a multilateral treaty. The Convention has three main goals: the conservation of biological diversity (or biodiversity); the sustainable use of its ...
(CBD)
*
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Use (Nagoya Protocol)
*
United Nations Declaration on the Rights of Peasants
The Declaration on the Rights of Peasants (UNDROP; full title: United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas) is a United Nations General Assembly resolution on human rights with "universal und ...
(UNDROP)
*
Bioprospecting
Bioprospecting (also known as biodiversity prospecting) is the exploration of natural sources for small molecules, macromolecules and biochemical and genetic information that could be developed into commercialization, commercially valuable prod ...
and biopiracy
*
Plant genetic resources (PGR)
*
World Intellectual Property Organization
The World Intellectual Property Organization (WIPO; (OMPI)) is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishing the World Intellectual Property Organization, WIPO was created to pr ...
(WIPO)
*
Association for Plant Breeding for the Benefit of Society (APBREBES), civil society organisation with observer status to UPOV
*
SWISSAID Foundation (in German)
External links
*
List of UPOV members, with date of accession and respective act of the convention to which it is partyAssociation for Plant Breeding for the Benefit of Societys analysis of UPOV's impact
SWISSAID Foundations seed information portal
Notes and references
{{DEFAULTSORT:International Union For The Protection Of New Varieties Of Plants
Bioethics
Botany
Plant breeding organizations
Plant genetics
Commercialization of traditional medicines
Biological patent law
Intellectual property organizations
Intergovernmental organizations established by treaty
Organizations established in 1968
Organisations based in Geneva