20100706 ECFA will harm plant variety protection

ECFA will harm plant variety protection

By Warren Kuo Shieh Ming-yan 郭華仁，謝銘洋
Tuesday, Jul 06, 2010, Page 8

The agreement on the protection of intellectual property rights reached at the fifth round of negotiations on the Economic Cooperation Framework Agreement (ECFA) between Straits Exchange Foundation (SEF) Chairman Chiang Pin-kung (江丙坤) and Association for Relations Across the Taiwan Strait (ARATS) Chairman Chen Yunlin (陳雲林) seriously affects plant variety protection (PVP) rights in two major ways.

First, it implies that each side recognizes the priorities of the other and that both agree to process applications for intellectual property rights protection for plant varieties.

At the same time, negotiations are also being held on expanding the scope of plant varieties to which intellectual property rights can be applied. Unfortunately, Taiwan stands to lose a lot from this agreement because the basis for “farmer’s exemptions” vary widely between the two countries.

According to China’s plant variety protection law, Chinese farmers can breed seedlings of protected plant varieties without infringing intellectual property rights, as long as they do not sell the seedlings. For example, a Chinese farmer can buy a seedling of a Taiwanese peach subject to PVP in China, breed another 1,000 seedlings and then plant it in his own orchard. In other words, although farmers do not sell the seedlings, they are permitted to sell the produce of the peach trees year after year without being guilty of infringement.

This situation arises because China’s concept of farmer’s exemptions applies to all plant varieties and plant variety rights do not extend to the yield from a growing season. In contrast, Taiwanese farmers doing the same thing with peaches grown by Chinese farmers subject to PVP in Taiwan would be guilty of infringement because Taiwan’s protection act covers the yield from a growing season, while the farmer’s exemption is restricted to plant varieties announced by the government. At the moment, paddy rice is the only variety subject to such an exemption.

Taiwan and China’s PVP acts differ because they are based on different versions of the same international convention. Taiwan’s regulations are based on the 1991 version of the UPOV Convention (Union International Pour la Protection des Obtentions Vegetables, or International Union for the Protection of New Varieties of Plants), while China’s is based on the 1978 version.

The earlier version preferred by Beijing stated that the farmer’s exemption was applicable to all varieties. It remained in place for 10 years until it was found to be riddled with loopholes. These effectively rendered PVP acts meaningless because of the farmer’s exemption and the fact that growers of new varieties gained almost no royalties for their innovations. Recognition of these problems led to call for the act to be revised, resulting in a new updated version in 1991.

However, due to the national importance of some crops, a certain degree of flexibility was maintained. This ensured that farmers in some countries, depending on national needs, would continue to enjoy exemptions, with the express purpose of growing crops for domestic consumption.

This analysis indicates that, in terms of agriculture, at least, Taiwan has made significant losses as a result of signing the ECFA.

Warren Kuo is a professor in the Department of Agronomy at National Taiwan University.Shieh Ming-yan is a professor in the College of Law at National Taiwan University.