Arusha Protocol for the Protection of New Varieties of Plants finally enters into force

Nearly a decade after it was concluded, the Arusha Protocol for the Protection of New Varieties of Plants entered into force today, one year after the ratification of its fourth member state. This Protocol was made under the framework of the African Regional Intellectual Property Organization (ARIPO) and was adopted in Arusha, Tanzania, on the 6th of July 2015.

The cover of the Arusha Protocol

Although ARIPO has 22 member states, the only ones to have ratified the Arusha Protocol so far are: Cape Verde, Ghana, Rwanda, and São Tomé e Príncipe. The Protocol creates a harmonised system for plant variety rights (PVRs), whereby applications can be made to ARIPO and, once granted, will have uniform effect in the designated contracting states. The PVR protection will have a duration of 25 years for trees and vines, and 20 years for all other plants. 

UPOV approach to PVRs

Whilst the TRIPS Agreement leaves considerable flexibility for members to adopt sui generis forms of PVR protection (or use patents), this Protocol closely follows the model under the 1991 Act of the International Convention for the Protection of New Varieties of Plants ("UPOV 1991").

Many will see this approach as a positive development that will facilitate seamless trade in commercial plant varieties and will give farmers access to improved varieties, and thereby promote economic development and food security. It is also hoped that this would encourage the development of more sustainable varieties that can be grown with fewer inputs, and which may be adapted to the effects of climate change.

But of course, many have questioned this claim. There has been considerable resistance to UPOV 1991 (and the laws that implement it, such as the Arusha Protocol) on the grounds that it only benefits multinational seed companies and threatens traditional farmers’ rights to freely save, replant and exchange seeds. As in UPOV 1991, the Arusha Protocol contains a limited exception for farmers to save and replant certain agricultural or vegetable varieties, subject to payment of remuneration to the PVR holder.

An opt-out system

Given the concerns about PVR in African countries, the members of ARIPO rejected a proposed article that would have allowed PVRs to be granted without their consent. Furthermore, Article 4(1) states that the variety will have uniform effect, provided a designated contracting state has not refused the grant. If it wishes to refuse the grant, a contracting state must notify ARIPO within six months of receiving notice of the application, and it must specify the grounds for its decision.

Final Thoughts

It has been a long road to its entry into force, so it will be interesting to see whether the Arusha Protocol becomes more popular with the ARIPO member states in the coming years.