In the recently published discussion document by the African Centre for Biodiversity titled, The Arusha Protocol and Regulations: Institutionalising UPOV 1991 in African seed systems & laws , authors Linzi Lewis and Mariam Mayet attempt to provide an updated, and holistic critique of the Arusha Protocol for the Protection of New Varieties of Plants read together with its operationalising Regulations: Regulations for Implementing the Arusha Protocol for the Protection of New Varieties of Plants Within the Framework of the African Regional Intellectual Property Organisation (ARIPO).
This regional framework is part of on-going efforts in Africa to harmonise seed laws intended to expedite trade and seed production of commercially-bred seed varieties for the benefit of multinational seed companies. It is part of the legal and institutional architecture designed to facilitate the transformation of African agriculture from peasant-based to an inherently inequitable, and ecologically unsustainable agricultural model, based on an out-dated Green Revolution/ industrial agricultural model. It is a mechanism designed to coerce African countries into joining UPOV 1991, a restrictive and inflexible international legal regime that grants extremely strong intellectual property rights to commercial breeders and undermines farmers’ rights.
Despite the unfailing advocacy work by African civil society groups, who have made small gains in the Protocol and Regulations, the scope of breeder’s rights provided for, vastly extends the rights of the breeders and severely restricts the scope of small-scale farmer breeders to innovate using protected varieties. There is no explicit provision in the Protocol that allows smallholder farmers to freely exchange and sell farm-saved seed of protected varieties, including engaging in local rural trade, a practice that underpins agricultural systems in ARIPO countries.
The exemptions to breeders’ rights as set out in Article 22 of the Protocol, create a great deal of uncertainty. Regarding the first exemption, the Regulations fail to provide a definition for “private and non-commercial”. It is important that broad definitions are applied to “private and non-commercial” in order to ensure that small holder farmers and their seed systems that are intricately connected to smallholder production as well as the sale of surplus harvest in local markets, are excluded from the scope of the breeders’ right.
Regarding the second exemption, the protocol specifies that small- and large-scale commercial farmers will need to pay remuneration when reusing farm saved seed, yet fails to differentiate and define small- and large-scale commercial farmers. This may put these small scale commercial farmers at an economic disadvantage to farmers in Europe for example, which has broader definitions related to exemptions for small scale commercial farmers.
In light of this restrictive, inflexible and centralised PVP system, we urge ARIPO member states to refrain from ratifying the Arusha Protocol. In our research, we also outline many important concepts and definitions that have not yet to be made, rendering the Protocol un-implementable. It is thus our view that the Protocol and Regulations are not ripe for signature and ratification. As it stands, the Arusha Protocol and Regulations will only lock African countries into a UPOV 1991 system, to the detriment of their seed, agricultural and food systems, with no perceived or foreseeable benefit. Most ARIPO member states are LDCs, many of which fought for the leniency provided for by the WTO-TRIPS. They should use the time and flexibility provided to them develop a suitable sui generis PVP system, that is equitable and balances breeders’ and farmers’ rights, taking into account the African Model Legislation for the Protection of the Rights of Local Communities, Farmer and Breeders, and for the Regulation of Access to Biological Resources, endorsed by the Heads of the then Organisation of African Unity in 1998.