Do the legal tools meet the needs of the breeders?

1. Do the legal tools meet the needs of the breeders? Judith Blokland Lawyer – Plantum NL Member Task Force Farm Saved Seed – ESA Regional seminar on enforcement of PVR – Warsaw 11-12.05.06

2. Topics • UPOV Convention • Council Regulation 2100/94 on Community PVR • Commission Regulation 2605/98 amending Regulation 1768/95 on implementing rules regarding the agricultural exemption • Seed Marketing Directives • Additional tools on enforcement of PVR ESA European Seed Association

3. UPOV • For ESA the UPOV 1991 Convention is the most suitable existing sui generis intellectual property system for the protection of plant varieties per se. • Balanced system providing for the : • Effective protection of plant varieties of all species, including provisions on essential derivation concept, • Access to genetic variability by the free use of protected commercialized plant varieties for further breeding work, • Compulsory exception of the right for acts done privately and for non-commercial purposes • ESA urges all UPOV members to ensure harmonisation by implementing the UPOV 1991 act. ESA European Seed Association

4. UPOV ESA European Seed Association

5. UPOV 1991 • Art 14.2 - Acts in respect of the harvested material • Problem • There is no clear understanding of the reasonable opportunity the breeder must have had to exercise his rights. • Art 14.3 - Acts in respect to products made directly from harvested material • Optional provision • ESA is in favour of implementation in National Law ESA European Seed Association

6. UPOV 1991 • Art 15.2 - Exceptions to the Breeder’s Right • Provides for the use of FSS • Within reasonable limits • Subject to the safeguarding of the legitimate interest of the breeder • Optional exception • ESA is not in favour of implementation in National Law ESA European Seed Association

7. UPOV 1991 • Art 30 – Implementation of the Convention • “each Contracting Party shall adopt all means necessary for the implementation of this Convention, in particular it shall provide for appropriate legal remedies for the effective enforcement of breeders rights”. • As most of the Member States, the European Community is now member of UPOV and accordingly has to fulfill this particular requirement. • Specific provisions on enforcement have been included in the Council Regulation 2100/94 setting up the CPVR. ESA European Seed Association

8. Basic Regulation • The Community Plant Variety Right (CPVR) based on UPOV 1991, offers a very suitable and effective protection of plant varieties in the EU. • In order to offer breeders appropiate legal remedies, the following points should be addressed: • Duration of Community PVR • DUS testing • Competent Courts • Farmers’ Privilege ESA European Seed Association

9. Basic Regulation • Art 13.4 – Option to implement rules for extending protection to products made from harvested material • ESA is in favour of implementation • Art 19 - The duration of protection under Community PVR • Duration should be extended to take into account the life span of plant varieties of certain species. • potato, flower bulbs EU. ESA European Seed Association

10. Basic Regulation • Proper DUS testing basis for the quality of a PVR and for effective enforcement. • Problem for breeders • Not all authorities and/ or Courts accept DUS reports provided by the CPVO. • ESA welcomes the CPVO initiative of a Strategic Discussion on DUS testing. ESA European Seed Association

11. Basic Regulation • ESA is in favour of • Customer driven approach • DUS to be based on a harmonized and controlled quality system on the basis of accreditation • Use of CPVO protocols • Proper reference collection • Accreditation by an independent quality control organisation • Exchange of DUS reports against administrative fees • DUS reports • If accredited • To be accepted by all authorities within the EU • Plant Variety Rights • National Listing • Competent Courts ESA European Seed Association

12. Basic Regulation • Competent Courts are essential for effective enforcement • Problem for breeders • Lack of knowledge of authorities, prosecutors, judges as regards Plant Variety Rights • ESA welcomes the initiative of the Office of the CPVO to propose the obligation for designating Competent Courts in the Basic Regulation. • ESA is of the opinion that Competent Courts on Plant Variety Rights, comparable to the situation for trade marks, could be identified in the different Member States. • In addition, to contribute to the harmonization of the rights within the Community, a board of appeal on European level could be set up. ESA European Seed Association

13. Basic Regulation • Art 14 – Farmers’ Privilege • The EU has chosen to implement the provisional exception to the Breeder’s Right as provided for in art 15.2 of UPOV 1991. • Problem for breeders is that the current provision is practically not enforceable and that it is very difficult to gain evidence. • Art 14.3 - Information obligation • To be strengthened • Art 14.3 - Small farmer • Definition small farmer to be simplified and to be made unambiguous • Is this exemption still relevant? ESA European Seed Association

14. Com. Regulation 2605/98 • Amending Regulation No 1768/95 implementing rules on the agricultural exemption provided for in art 14(3) of the Basic Regulation • Art 4.2 - Definition of own holding • Definition to be revised • Art 5 - Agreements between farmers and holders to be notified • If no agreements apply the remuneration for the use of FSS of protected varieties should be 50% of the royalty on certified seed. • Remuneration level to be revised ESA European Seed Association

15. Seed Marketing Directives • Within the EU for agricultural crops in principle only certified seeds can be marketed. • ESA urges European Member States to monitor the marketing of certified seeds and take appropiate actions. • This system also functions as a control mechanisme against the “illegal” marketing of (farm saved) seed for agricultural crops. ESA European Seed Association

16. Additional tools • In addition to the particular PVR regulation, broader legal tools have been developed and are still in progress: • Regulation 1383/2003 and 1891/2004 concerning customs action against goods suspected of infringing certain intellectual property rights (including PVR) • Problem for breeders is the detection of infringing goods at the border and the short period to prove infringement • Normal goods: 10 working days and possibility to extend for 10 more • Perishable goods (f.e. vegetables): 3 working days • It takes much longer to identity a PVR-variety (especially in the case of seeds) ESA European Seed Association

17. Additional tools • Directive 2004/48/EC on enforcement of intellectualproperty rights • ESA wants to emphasize that a reasonable sample should in case of PVR not be restricted to a certain amount of objects (amount of seeds). • As the deadline for implementation (29 april 2006) has already passed, ESA urges those Member States who are still in the process to complete implementation. • Although the Directive is a very helpful legal tool, it will remain difficult for breeders to gain reasonably available evidence sufficient to support claims. ESA European Seed Association

18. Additional tools • Proposal for a European parliament and Council Directive on criminal measures aimed at ensuring the enforcement of IP rights and a Council Decision to strengthen the criminal law framework to combat Intellectual Property offences. • Breeders are pleased to note the efforts of the Commission to develop and harmonize legal tools related to the enforcement of IP rights, including PVR. ESA European Seed Association

19. Do the legal tools meet the needs of the breeder? • Conclusions: • Need for implementation of UPOV 1991 by all EU Member States • Need for clarification of the rights of the breeder in respect to harvested material • Basic Regulation • Need for implementation of rights in respect to products made directly from harvested material • Need for extension of the duration of protection • Need for accreditation of DUS testing • Need for one competent Court per Member State • Need for changes in the legal framework of FSS • Breeders will have to get accustomed to the new legal tools that are becoming possible • The biggest problem for breeders remains to gain real evidence ESA European Seed Association

20. Thank you for your attention Contact details: ESA Rue Luxembourg 23 - B-1000 Brussels Tel: +32-2-7432860 www.euroseeds.org