The possibility for breeders to misappropriate genetic material is exemplified when UPOV is read with the Convention on Biological Diversity (CBD). Article 1 of the CBD, when read with art. 15, mandates access to genetic resources (1993). Thus, the CBD ensures that all genetic resources remain accessible (CBD, 1993). Under UPOV, such genetic resources may be construed as new despite previous cultivation until an application is made to obtain breeders' rights.
For example, plum C, a shrub found in abundance in remote parts of Africa, is used to cure the common cold. Unlike in developed nations, plants available in abundance are rarely subjects of sale in developing nations. The neem tree, which is commonly available in India, is used for its benefits. But its sapling, seeds and leaves are never sold. Each of these possesses commonly known and used medicinal traits. Thus, plum C may be known and used in Africa for several years. It is unlikely that Africans would protect plum C due to the following reasons:
(i) socio-economic factors; (ii) lack of availability of such protection; and (iii) lack of awareness of its benefits. The medicinal traits of plum C would make it very attractive to breeders and researchers in developed nations. Corporations like Shaman and Merck, for example, are regularly engaged in plants with medicinal traits. A system based on UPOV would enable a breeder accessing genetic material like plum C to treat it as a new and distinct variety, assuming that its closely related varieties have not been a subject for protection. Assuming that the plum itself is not treated as new, UPOV will enable a breeder to protect an indistinguishable derivation of plum C by making a technically distinct but non-obvious change. In essence, CBD enables unlimited access to genetic resources like plum C, while UPOV enables protection of either plum C itself or an indistinguishable variation of the plum, under specific circumstances. When working alongside the CBD, the extensive protection envisaged in UPOV can undermine a nation's genetic diversity.
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