Implications of UPOV 1991

This agreement enhances the problem inherent in simultaneously respecting TRIPS, as well as rights recognized under the UNDHR and CBD. For example, farmers have traditionally saved harvested seed to use in subsequent crops, as well as to engage in experimental breeding - both of which foster the right to food. However, under UPOV 1991, the farmer's rights to save seed and experimentally breed plants are both restricted. Although there is a possibility for farmers to save seed, it is limited by a restriction that the plant breeder's 'legitimate interests' be protected (UPOV, 1991, art. 15(2)). This qualification may require a monetary payment to the plant breeder, in contrast to a historic tradition of freely saving, using and sharing seed (Dhar, 2002, at 15; Helfer, 2002, art. 17). In addition, although UPOV technically allows all protected varieties to be used for subsequent breeding, it specifies that subsequent varieties that are 'essentially derived' from a protected variety cannot be exploited without explicit permission (UPOV, 1991, art. 14(5)(a)(i)).

Although UPOV 1991 is more restrictive than traditional farming practices, it provides some provisions that may be useful in promoting biodiversity, as well as the right to food. In particular, it explicitly permits compulsory licensing for public interest (UPOV, 1991, art. 17(1)). Although the definition of public interest is not defined, a public interest in food and possibly even genetic biological diversity could conceivably be preserved under this regime. In addition, UPOV 1991 also allows a complete exception for acts that are experimental or done privately (UPOV, 1991, art. 15(1)(i)-(ii)). This could foster breeding of new varieties by either farmers or public research institutions - subject to the restriction for essentially derived varieties. Also, to the extent that farmers are growing crops only for themselves and not for sale, that could be private use, exempt from the breeder's privilege (UPOV, 1991, art. 15(1)).

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