BERLIN, Germany: On Wednesday April 20th, the German Bundestag transposed the Nagoya Protocol to the Convention on Biological Diversity into German law. While applauding the Government’s efforts to fight against the illegal use of genetic resources, Germany’s Federal Association for Horticulture (ZVG) is concerned that the Protocol will increase costs and complexity for German plant breeders and undermine the importance of the breeder’s exemption.
Upon joining the Nagoya Protocol against bio-piracy Germany’s Environment Minister Barbara Hendricks said, “The Nagoya Protocol will help us fight against the illegal utilization of genetic resources from animals and plants. This is important for nature conservation, particularly in developing countries.”
The Protocol contains rules regarding access to genetic resources and their utilization and the sharing of benefits arising from their utilization.
According to the ZVG the current interpretation and the corresponding EU regulation risk to erode the breeder’s exemption, which is written in Article 15 of the UPOV Convention 1991. This is one of the main principles of the system of Intellectual Property (IP) rights, to which the Plant Variety Rights (PVR) system belongs to: Breeders should not be restricted in the use of one another’s varieties in their normal crossing and selection.
According the breeder’s exemption it does not require the approval of the holder to use the variety for breeding new varieties. This applies to commercial varieties. Meanwhile the ZVG is quick to add that it welcomes the Nagoya Protocol’s ultimate goal: to define international regulations for the access to genetic resources and the sharing of the benefits from the use of these resources.
“Contrary to the EU Regulation, the rather costly obligation to provide documentation should end with the commercialization of a new variety. Otherwise breeders are forced every time to prove evidence and provide detailed documentation. This bureaucracy must be absolutely avoided, “said Frank Silze, President of the Section for ornamental seedlings and ornamental growers in ZVG. Silze added that competition between Nagoya-states and non-Nagoya-states, such as the USA should be avoided.
The breeder’s exemption is one of the basic principles of any IP system to stimulate new inventions and, in the case of PVR, to stimulate breeding and create new varieties.
The Nagoya Protocol is a result of the German CBD Presidency from 2008 to 2010. It was at the Conference of the Parties to the Convention on Biological Diversity in Bonn, under the chairmanship of the Federal Environment Minister Sigmar Gabriel, that the course was set for an international ban on bio-piracy. The international community subsequently adopted the Nagoya Protocol at the next Conference of the Parties to CBD in 2010. The Protocol lays down rules for research and development on animals, plants and other living organisms from other parts of the world. There is to be a fair and equitable sharing of benefits arising from the utilization of genetic resources by users and the country of origin. It is particularly important that developing countries also profit economically from nature conservation.
The Nagoya Protocol entered into force on 12 October 2014. So far, it has been ratified by 68 countries and the EU. With the two acts adopted in April, the German Bundestag has paved the way for Germany’s accession to the Protocol: In future the Federal Agency for Nature Conservation will monitor the compliance of users of genetic resources in Germany with the relevant rules and regulations concerning access and benefit sharing. In addition, German patent law will be amended to make it possible for patent applications to be checked in future for the use of biological material from other countries and, if applicable, whether the biological material has been purchased legally.