Protecting plant variety rights
A French law passed on December 8, 2011, and a ministerial decree dated August 3, 2014, modified national legislation governing the application of intellectual property rights to new plant varieties. France was the 18th country to adopt such legislation. What are the implications of these changes and the practical consequences for farmers?
What are the changes?
The 2011 law allows farmers to save seeds or plants from 21 listed species for which novel varieties are protected under French law (i.e., Plant Variety Rights). The species concerned are oat, barley, rice, Canary grass, rye, triticale, wheat, durum wheat, spelt, potato, rapeseed, turnip, linseed (but not flax), chickpeas, yellow lupine, lucerne, field pea, Egyptian clover, Persian clover, field bean, and common vetch. These plants are the same ones that are covered by EU plant variety rights legislation.
The 2014 ministerial decree expanded plant variety rights to 13 new species: forage plants (red clover, crimson clover, annual ryegrass, hybrid ryegrass, and grass pea), an oilseed (soybean), catch crops (white mustard, black oat), legumes (field pea, white lupine, blue lupine), and garden legumes (lentil and bean).
However, if farmers use farm-saved seeds or plants of such varieties, they must provide financial compensation to the plant breeders for the use of their creations.
It is worth pointing out here that there are no constraints on the use of farm-saved seeds obtained from varieties that are not protected by plant variety rights, regardless of the species.
The amount of compensation is contract based. Legislation stipulates that farmers wishing to use farm-saved seeds from protected varieties can directly sign a contract with plant breeders, or their representatives (most often the SICASOV). Collective or interprofessional agreements may also be used.
Why should we financially support research into new plant varieties in France?
The French seed sector has a reputation for excellence. Based on seed industry turnover, France is number one in Europe and number three in the world, behind the USA and China.
The country’s 70 plant breeders create more than 550 varieties per year, which are registered on the Official French Catalogue. Overall, the catalogue contains around 9,000 varieties, of all different species, which offers farmers a wide range of choices.
Genetic advances are moving at a constant pace. In France, new agricultural varieties must pass tests to demonstrate that they display measurable agronomical, technical and environmental advantages over current varieties; otherwise, plant breeders are not allowed to sell them.
Each year, plant breeding companies spend more than 400 million euros to develop new varieties. It is important to underscore that, for the most part, these companies are either SMEs, family companies or cooperatives. Around half of them have less than 1 million euros in turnover. This investment in R&D represents 13% of seed industry turnover, a much larger percentage than what we see in the pharmaceutical or other technology industries.
French legislation has created conditions that promote research aimed at developing varieties of all types of plants, including minor species. Indeed, the 2011 law and the 2014 decree specifically address seed saving for 21 and 13 species, respectively. Some of the latter are minor species (e.g., grass pea and field bean), for which investment does not necessarily translate into profitability. However, they are species for which there is significant seed saving—farm-saved seeds represent 60% or more of the seeds used—hence their inclusion in the legislation.
What are the implications of the 2011 law for farmers?
The 2011 law didn’t change nothing to the freedom of farmers and plant breeders to use any varieties they want to create new varieties. Free access to genetic variation for research purposes is one of the historical pillars of French legislation on plant variety rights. It also constitutes a fundamental difference in the scope of the plant variety certificate (French: COV) versus that of the patent.
Ultimately, the compensation that farmers are asked to provide to fund future research is between 3.5 and 5 euros per hectare. Farmers are of course exempt from paying this contribution if they use farm-saved seeds from varieties in the public domain or from varieties for which no COV has been issued.
Varieties in the public domain are varieties that are more than 25 years old (or 30 years old, in the case of the potato). For example, all farmers are aware that the Bintje potato, Florence-Aurore wheat, and Europe lucerne are in the public domain.
Furthermore, farmers are also exempt if they produce fewer than 92 tons of grain/oilseed crops per year (equivalent to approximately 15 hectares), even if they produce farm-saved seeds from a protected variety.
Finally, farmers can collect farm-saved seeds from as many as 34 species, as long as they compensate the relevant plant breeders.
What are the main differences between patents and Plant Variety Rights?
Patents are generally associated with industrial processes. Countries that allow patents on plant varieties, like the USA, are rare. Patented varieties can not be used for research and breeding. Farm-saved seeds are not allowed. Moreover, it even represents a threat because it subscribes to the notion that there is “ownership” of the genetic diversity found in varieties. The plant breeders’ rights (COV) system was designed specifically for biological settings, to deal with the unique issues associated with breeding. It is certainly more flexible. For example, it allows farmers to save seeds, and protects the right of all individuals to freely access genetic resources. The unique features of the COV system ensure that stakeholders in the agricultural and food industries alike can continue to improve on the genetics of plant species while simultaneously preventing biological resources from being appropriated or monopolised.
In the USA, Australia, and Japan, plant varieties can be patented. Unlike COV-protected plants, patented plants cannot be freely used in breeding efforts nor can their seeds be saved by farmers. In the EU, farmers can use seeds from COV-protected plants for reseeding under certain conditions.
This unique approach to property rights must be defended as it protects crucial access to genetic resources. Ninety-four countries already employ the COV system, and others are currently extending intellectual property protections to cover plant variety rights. If use of the COV system is bolstered, it will help limit the spread of the patent system and thus promote biodiversity.
Indeed, by facilitating instead of impeding access to genetic resources—because even protected varieties can be used freely for breeding purposes—the COV system encourages the creation of new varieties and thus fosters plant diversity.
An illustration of this principle comes to us from the FAO’s Second Global Assessment of Genetic Resources (2009): In the 1960s, crop biodiversity started to decline. However, it began climbing again in the 1990s, but only in the European countries that had adopted the COV system.
|Use of the protected variety …||COV||Patent|
|… to breed a new variety||Free for all||Not allowed|
|… on an experimental basis (without production)||Free for all||Not allowed|
|… after harvest, to reseed its field (farm-saved seeds)||Possible under certain conditions and for certain species, according to UPOV and the law on plant varieties||Not allowed|
|… and seed growing for non-commercial purposes, or in a private setting (home gardeners)||Free||Free|
|Concerned countries||87 countries with UPOV legislation, including France||USA, Australia, Japan, New Zealand|
Main references :
UPOV Convention (adopted in 1961, revised in 1978 and 1991)
Council Regulation (EC) No. 2100/94 of 27 July 1994 on Community plant variety rights
Commission Regulation (EC) No. 1239/95 of 31 May 1995
Act No. 2011-1843 of 8 December 2011 on the system of plant variety rights (text in French)
Decree No. 2014-869 of 1 August 2014 regarding the application of article L. 623-24-1 of French Intellectual Property Code (text in French)
Header photo : © SEMAE / Sébastien Champion