SPG June 2023 | WG-HRV

A short review as an introduction

By Mia Buma

In the second meeting of WG-HRV (September 2022), the discussion focused on the principle of authorisation of the breeder in article 14 UPOV, sub 2*. This article addresses the question: does authorisation in article 14, sub 2 mean that the breeder needs a valid breeder’s right title in relation to harvested material, or that consent of the breeder is sufficient to allow others to produce or reproduce, offering for sale etc., harvested material of the protected variety? If there was no consent, would this mean that the breeder can still enforce his right in relation to harvested material if he had no reasonable opportunity to do so in relation to the propagating material?

In the second meeting in September 2022, UPOV staff promised to review two documents:

Deleted:

1. What are the consequences if the principle of authorisation of the breeder in article 14 UPOV, sub 2 is explained in its current interpretation, namely: it is required that the breeder owns a valid breeder’s right title?
2. What are the consequences if the principle of authorisation of the breeder in article 14 UPOV, sub 2 is explained as no consent of the breeder?

These documents would then be discussed in the third meeting of the WG-HRV on March 22, 2023. Unfortunately, UPOV staff did not succeed in finishing the promised documents and instead requested that WG members put forward examples of the consequences of the different explanations of authorisation, which could be discussed in the third working group.

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For your information: AIPH responded to this request, presenting the AIPH opinion that, unfortunately, some stakeholders involved in the conception of EXPLANATORY NOTES ON ACTS IN RESPECT OF HARVESTED MATERIAL UNDER THE 1991 ACT OF THE UPOV CONVENTION (adopted by the Council at its forty-seventh ordinary session on October 24, 2013), have given too strong an interpretation to the meaning of the wording “unauthorised use” in article 14 sub 2 of the UPOV Convention 1991. To find the right interpretation of UPOV article 14, sub 2, it is important to go back to the history of the conception of the principle of protection of harvested material in the UPOV Convention 1991.

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AIPH has already explained this opinion in the second WG-HRV. In response to the request for examples, therefore, AIPH repeated its arguments for its position, including reference to the concerned documents from the Diplomatic Conferences taking place during the years 1987-1991 and resulting in the UPOV Convention 1991.
Despite the efforts of AIPH and other UPOV-observers to contribute to the third WG-HRV on 21st March 2023, little progress was made. To break through the deadlock, the WG-HRV agreed to organise a study to assist its deliberations on the “Scope of the Breeder’s Right” in Article 14(1) and (2) of the 1991 Act, including the notions of “unauthorised use” and “reasonable opportunity” and the relationship with the “Exhaustion of the Breeder’s Right” in Article 16 of the 1991 Act.
Meanwhile, UPOV staff invited the WG-HRV members to propose issues and/or to suggest authors for the proposed study based on an analysis of the Records of the 1991 Act Diplomatic Conference and its preparatory work during the years 1987-1991. (Deadline 4th May 2023).
The WG-HRV also agreed that, based on the replies received by 4th May 2023, UPOV staff would propose the basis of this study, including terms of reference, timeline, and author(s), for consideration by the WG-HRV at its next meeting on October 25, 2023.

The current situation of AIPH in this dossier is: that AIPH has cooperated with other stakeholders (for example, CIOPORA) by contributing to the right and useful results of the intended study. The SPG members will be kept updated on a UPOV response.

*Text sub 2: [Acts in respect of the harvested material] Subject to Articles 15 and 16, the acts referred to in items (i) to (vii) of paragraph (1)(a) (of article 14) in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorised use of propagating material of the protected variety, shall require the authorisation of the breeder, unless the breeder has had a reasonable opportunity to exercise his right in relation to the said propagating material.