By Mr Emmanuel Sackey, Intellectual Property Development Executive, ARIPO
The above challenges together with the effects of climate change and low-yielding seeds have contributed to Africa’s low agricultural productivity. One of the remedies that have been proposed is for Africa to invest in the breeding of new varieties. In order to promote breeding, an enabling environment will have to be created in the form of incentives and legal protection, which is provided under the Plant Variety Protection (PVP) system. Our countries are now realising this need and are discussing how best to develop an effective PVP system.
According to the Food and Agriculture Organization (FAO) publication, The future of food and agriculture – Trends and challenges (2017), the world’s population is expected to grow to almost 10 billion by 2050 and will be concentrated in Africa and South Asia. By 2100, Africa and Asia populations will reach 9 billion out of projected 11 billion people who will inhabit the earth. Coupled with climate change, conflicts and decreasing land availability for food and agriculture, it is critical for countries in the world to radically change and embrace productivity-enhancing green revolution technologies and innovations in production systems.
Looking ahead, the core question is whether today’s agriculture and food systems are capable of meeting the needs of a growing world, particularly in developing countries. The UN Sustainable Development Goals have provided a compelling vision on how multiple objectives can be combined to define new sustainable development pathways. This is well articulated in the SDG 2 which explicitly aims at ending hunger, achieving food security and improving nutrition and promoting sustainable agriculture. Consequently, critical parts of food systems are becoming more capital intensive, vertically integrated and concentrated in few hands. As this happens, it is likely that the small scale producers and landless households will lose out and seek opportunities and employment outside of agriculture. It is also likely that low and middle-income countries may see a shift from male-dominated agriculture to female-dominated agriculture.
Although agriculture at the global level has become more efficient, in recent decades, competition for natural resources has intensified owing to consumption patterns driven mainly by population growth, changing dietary patterns, industrial development, urbanization and climate change. All these changes will require fundamental changes in the agricultural systems and natural resource management as well as effective national and international governance systems, evidence-based and well-targeted policy interventions. One important policy intervention that is urgently needed to enhance agricultural productivity is through the use of improved varieties which occur through innovative breeding activities which are driven by the plant variety protection system.
Globally, countries need improved varieties in order to improve agricultural productivity and feed the fast-growing populations of the world, particularly in developing countries. It is reported that more than 50% of the average yield per hectare is due to the performance of improved varieties. Currently, the International Union for the Protection of New Varieties of Plants (UPOV) system is the only international system that offers effective protection for new varieties of plants. The membership of UPOV has grown to 76 including China, Brazil, South Africa, Egypt, African Intellectual Property Organization (OAPI) and other developing countries.
Justification of The Plant Variety Protection System
Agriculture is the backbone of many countries including the African countries’ economies. Its share of the GDP in most developing countries is 50% and in most cases employs up to 80% of the population. The World Bank reports that on annual basis, Africa imports more than 60 billion worth of food from outside the continent, a situation that cannot be justified. This prevailing situation in Africa continues to be so because of the low level of investments in and adoption of modern technologies among other factors. The use of low yielding and poor seeds is among the main factors attributed to the low agricultural productivity. Unfortunately for most African countries, other emerging challenges such as climate change, growing population and environmental factors have worsened the situation.
In the wake of these challenges, most Asian countries quickly reformed their agricultural sector through the adoption of PVP systems which allowed for investments in breeding activities and adoption of enabling policies that stimulate agricultural productivity and involvement of the private sector. This has resulted in increased availability of new varieties, development of the seed industry and access to international markets. Today, many African countries import food from Asia. This illustration points to the fact that the adoption of modern approaches to farming pays off better than the traditional approaches that many countries in Africa have relied on for so long.
Benefits of The Plant Variety Protection System
The introduction of an effective PVP system leads to the development of quality seed which is a major prerequisite to successful agriculture and achievement of food security. In most ARIPO Member States, agriculture is the prime mover of the national economy and therefore efforts must be made to ensure the use of quality seeds as a critical input for increasing agricultural productivity and attainment of food self-sufficiency. Due to the dominance of small-scale farmers, the use of quality seed is limited which if not addressed may lead to a continuous diminishing of agricultural productivity and compromise the cherished national goal of food security.
The plant variety protection system provides a favourable balance between scope and exceptions in the promotion of plant breeding. All breeders including smallholder farmers and those in the SMEs are allowed to use protected varieties for further breeding, which promotes varietal developments.
Plant variety protection has significantly contributed to the development of the formal seed sector. This seed sector provides greater opportunities for growth and serves as an important vehicle towards achieving food and nutritional security and wealth creation in agriculture.
The PVP system also increases the number of breeding entities as well as increased commercialization and collaboration among breeders. In Kenya for instance, prior to acceding to UPOV, breeding was restricted to public breeders from public institutions. However, with the implementation of a PVP system and membership to UPOV, there have been significant breeding activities among breeders from the private sector. Private breeding has resulted in remarkable growth in the floriculture sector due to the introduction of elite varieties of ornamental species. Another interesting example of how the introduction of an effective PVP system can bring about tremendous impact is in Vietnam. The country has over 60% of its 95 million population involved in agriculture and therefore the Government recognised the need to introduce an effective PVP system and initiated studies to assess how this will be achieved. In 2006, the Government of Vietnam embraced the PVP system and joined UPOV on December 24, 2006, to become UPOV’s 63rd member. It must be pointed out that it was during this period that Ghana also initiated studies towards the establishment of an effective PVP system. Today Vietnam is registering over 250 new varieties annually and currently the national seed corporation has been able to increase its R&D investment from US$10,500.00 prior to the adoption of the UPOV- based PVP system to US$10.5 million, which translates to 778 fold increase. Plant breeding activities are contributing US$1.5 billion to the GDP of Vietnam and farmers, especially small-scale farmers, are benefitting from the introduction of the new varieties. Due to the success achieved by the introduction of the Plant Variety Protection system, the Government is planning to put in place strategies to develop the intellectual property for the period 2020 to 2030 to provide and promote the system of plant variety protection with the aim of encouraging the development of new varieties of plants for the benefit of the farmers and growers in the country.
Accelerating Agricultural Development Within The Framework Of The Newly Established African Continental Free Trade Area (AfCFTA)
The African continent is endowed with rich biodiversity and natural resources. However, the continent has not been able to harness these to better the lives of its people. Not many African countries have established plant variety protection systems. Currently, Morocco, Tunisia, Egypt, South Africa, Kenya, Tanzania and OAPI with its 17 Member States from West and Central Africa have joined UPOV. There are other countries such as Zambia, Zimbabwe, Mozambique, Rwanda and ARIPO that have also developed PVP systems and are in the process of joining UPOV. In April 2020, the Government of Zimbabwe submitted its draft Plant Breeders’ Rights Act to UPOV Council and requested for the examination of the Act’s conformity with the 1991 Act of the UPOV Convention. A positive decision has been made by the UPOV Council of the Draft Act of the Republic of Zimbabwe. This indeed shows the growing interest of African countries willing to embrace the international PVP system of UPOV. Currently over 40 African countries have either put in place UPOV- based PVP system through regional arrangements or as individual countries. This is indeed the future of Africa given its rich agricultural resources.
The African Continental Free Trade Area (AfCFTA) Agreement presents Africa with a unique opportunity to unleash its economic potential for inclusive growth and sustainable development. The agreement will create a single African market of more than a billion consumers with a combined GDP of U$2.5 trillion. It aims to promote agricultural transformation and growth in Africa and contribute to food security, as well as improve competitiveness through the development of regional agricultural value chains and incentivize critical investments in production and marketing infrastructure. This new development is expected to strengthen the agricultural sector to increase production for export by the African countries.
Establishment of a Regional Plant Variety Protection System
During the 12th Session of the Council of Ministers of ARIPO that took place in Gaborone, Botswana in 2009, the Council adopted a proposal for ARIPO to take initiatives on Plant Variety Protection and link its initiative with the efforts of UPOV and other organisations involved in agriculture. As a result of several consultations, engagements and discussions with member states on this issue, a policy and legal framework for the establishment of a regional PVP system was developed and approved by the Council of Ministers of ARIPO.
Following this development, the legal framework was formulated into a draft protocol which received broad acceptance by the member states of the Organisation and adopted at a Diplomatic Conference held in Arusha in July 2015. The member states named it the ‘Arusha Protocol for the Protection of New Varieties of Plants’. During the Diplomatic Conference, four member states namely, The Gambia, Ghana, Mozambique and São Tomé and Príncipe signed the Protocol and was later also signed by the United Republic of Tanzania. Currently, the Protocol has been ratified by the Republic of Rwanda and São Tomé and Príncipe to become the protocols’ two contracting states so far. The Protocol will enter into force when four states deposit their instrument of ratification or accession.
When it enters into force, the Arusha Protocol will enable breeders and farmers to benefit immensely through cost-effective registration system, wide territorial coverage and access to a wide range of improved varieties to contribute to the attainment of the regional goal of economic development and food security.
It must be highlighted that other regional bodies such as OAPI and some regional economic communities such as ECOWAS, EAC and SADC have also developed sub-regional plant variety protection frameworks as well as seed harmonisation systems and policies aimed at strengthening and promoting the agricultural systems in their respective constituencies. All these efforts must be coordinated in a mutually supportive manner to avoid making their implementation burdensome and duplicative to the African countries, particularly those who are members of ARIPO and OAPI.
Responding to the Concerns of Civil Society Organizations and Misunderstandings
Civil Society Organizations in Africa have since the past 20 years been engaged in campaigns aimed at discouraging African countries from establishing effective Plant Variety Protection systems on the grounds that it will marginalise smallholder farmers who according to them contribute significantly to food crop production on the continent. Whiles this may be true, it is also a fact that, on annual basis, Africa imports between US$47 to 60 billion worth of foodstuff from outside the continent mainly from countries that have put in place effective PVP systems. Furthermore, it is only in Africa that the population is growing at an alarming rate that is projected to reach 2.5 billion by 2050. Are we therefore able to feed ourselves now and also the future population with the current system of agriculture? Probably, this is why in spite of the negative campaigns, more and more African countries are realising the need to put in place the UPOV-based PVP system. The most recent country to initiate the process of joining UPOV is the Republic of Zimbabwe. The Republic of Rwanda has also already adopted a national PVP system based on the 1991 UPOV Convention but is yet to join UPOV.
The notion of marginalization with the introduction of UPOV-based PVP is unfounded. Kenya joined UPOV in 1999 and the smallholders are still growing crops and increasing their acreage taking advantage of new varieties that have been introduced into the country. Again we do not seem to be witnessing any mono-cropping systems in Kenya. As a matter of fact, there has rather been a foreign direct investment as Kenya has become one of the major exporters of cut-flowers. All the member states of OAPI who are members of UPOV have their small scale farmers still benefiting from the introduction of new varieties as a result of having an efficient PVP system, which is considered absolutely necessary.
It can be seen that the PVP system has not created any harm to the environment and agricultural systems of those countries but rather has increased food security, improved environmental safety, brought about less import and created a sustainable seed industry, which enables farmers to access viable seeds for greater economic returns. It should also be pointed out that, protected varieties do not take away access to traditional varieties but rather provides better choices for farmers. Smallholder farmers can continue to practice farm-saved seeds on their own holdings even for protected varieties without payment of remuneration to the right holders. This privilege of farmers is practised even in the European system and does not pose any problem to the PVP system.
It is also to be acknowledged that with respect to plant life and biodiversity, countries have sovereignty over their national biodiversity as provided by the Convention on Biodiversity (CBD) which allows governments to put in place effective regulatory measures on access to their national genetic resources. In order to implement fully the CBD particularly the principle on access and benefit sharing arising from the use of genetic resources, the Nagoya Protocol has also been adopted to ensure that bio-prospectors and users of providing countries’ genetic resources obtain prior informed consent to access genetic resources and mutually agreed to terms for the exploitation of innovation resulting from the use of genetic resources which in this case may be the development of new varieties of plants. The International Treaty for Plant Genetic Resources for Food and Agriculture (ITPGRFA) also addresses the conservation of biodiversity. These international treaties pursue different objectives, have a different scope of application, and require different administrative structures to monitor their implementation. Therefore, it is advisable that countries should establish separate laws to address the specific issues of the treaties although such laws should be compatible and mutually supportive. It must also be borne in mind that international collaboration is very critical in agricultural management and production due to the fact that pests and plant growth cut across national frontiers. It is, therefore, reasonable to admit that no individual country can establish an independent sui generis system and make it effective as provided for under article 27 of the TRIPS Agreement. So far, it is the UPOV system that has provided the most effective sui generis system that builds on the collaborative exchange of protected varieties across the regions of the world. This is evidenced by the increasing accession to the UPOV 1991 Convention and the growing interest of African countries in the UPOV system.
It is within this context that the PVP system must be viewed. Its main purpose is to acknowledge the achievements of breeders of new varieties by making available to them an exclusive right on the basis of a set of uniform and clearly defined principles. This has become more so necessary in view of limited arable lands for agricultural production, population growth and climate change.
Plant variety protection based on the UPOV system has indeed proven to be effective in encouraging the development of new varieties of plants, which enable farmers to access improved varieties for the benefit of society. It has enabled countries to invest in agricultural research and innovation that has led to the significant release of new varieties that contributes to incomes for farmers and growers, rural employment, and development of the international market. The evidence-based information resulting from the implementation of the UPOV system and its impact on agricultural development should stimulate African countries to take urgent steps towards the ratification of the Arusha Protocol and the development of national PVP systems.