WORLD TRADE
ORGANIZATIONIP/C/W/347/Add.3
11 June 2002
(02-3213)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English/
                 French/
                 Spanish
REVIEW OF THE PROVISIONS OF ART ICLE 27.3(b), RELATIONSHIP BETWEEN
THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY
AND PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE
Information from Intergovernmental Organizations
Addendum
International Union for the Protection of New Varieties of Plants (UPOV)
As agreed by the TRIPS Council, at its meeting of 5 to 7 March 2002, the Secretariat
contacted the secretariats of the CBD, CGIA R, FAO, UNCTAD, UNEP, UPOV, WIPO and the
World Bank, to request them to provide updated information on their activities in relation to the
agenda items on review of the provisions of Article 27.3(b), relationship between the TRIPSAgreement and the Convention on Biological Diversity and protection of traditional knowledge and
folklore.
The present document reproduces the information that the Secretariat has received from
UPOV.
_______________
UPOV: Effective sui generis  System for Plant Variety Protection
1. The International Union for the Protection of New Varieties of Plants (UPOV) is an
intergovernmental organization, based on the International Convention for the Protection of New
Varieties of Plants of 2 December 1961, revised in 1972, 1978 and 1991 ("the UPOV Convention").
The Mission of UPOV is:  "To provide and promote an effective system of plant variety protection,
with the aim of encouraging the development of new varieties of plants, for the benefit of society".
2. As of 20 May 2002, UPOV has 50 members, including developed and developing countries.
The status of the members is indicated in Annex I to this report.  The UPOV Convention provides an
effective sui generis  system for the protection of new varieties of plants, as required by
Article 27.3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement).  The overall number of titles issued according to the UPOV system is estimated
to be more than 100,000 and about 50,000 titles of protection are presently in force, thus indicatingthat the UPOV system is recognized as the de facto standard system for plant variety protection.
3. The effectiveness of the protection under the UPOV system is supported also through various
devices developed and operated by the Union and its member States, enabling robust internationally
harmonized technical examination and exchange of technical information among member States.  One
of such devices is a collection of UPOV Test Guidelines for the Conduct of Tests for Distinctness,IP/C/W/347/Add.3
Page 2
Uniformity and Stability which has been drafted by the Technical Committee of UPOV and its four
Crop Technical Working Parties and covers now almost 200 crop species.  The drafting of UPOV
Test Guidelines involves experts of non-member States of UPOV and other international
organizations, such as the International Plant Gene tic Resource Institute (IPGRI), International Rice
Research Institute (IRRI), etc, thus increasing the technical robustness of the UPOV Test Guidelines.
4. One of the advantages for new member States of UPOV is that they immediately enjoy the
benefits of 40 years' experiences and international cooperation in all matters related to plant variety
protection, including technical approaches to pl ant variety examination and technical cooperation
programs provided by UPOV and its member States.
Recent Development of UPOV
5. Currently, there are further 19 States or organizations which have initiated with the Council of
UPOV the procedure for becoming members of the Union and other 39 States who have been in
contact with the Office of the Union with a view to developing legislation in line with the UPOV
Convention.  It is therefore expected that more than 100 countries and intergovernmental
organizations will be members of UPOV in the near future.
6. The European Community has adopted a Regulation which provides for the grant of a
breeder's right pursuant to a single application which will have effect in each of the 15 States of the
European Community.  This Regulation also conforms with the 1991 Act.  Decision 345, which
creates a system of plant variety protection for the countries of the Andean Pact (Bolivia, Colombia,
Ecuador, Peru, Venezuela), enables these countries to have laws which conform with the 1991 Act.
Bolivia, Colombia and Ecuador have laws which conform with the 1991 Act, but have so far chosento accede only to the 1978 Act.
7. A regional system of protection has been set up by the African Intellectual Property
Organization (OAPI).  The revised Bangui Agreement (of 24 February 1999) entered into force on
28 February 2002.  It will provide unitary protection (a single application leading to a single title of
protection) in respect of the following 16 States once the system is fully operational:
Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte
d'Ivoire, Equatorial Guinea, Gabon Guinea, Guinea Bissau, Mali, Mauritania, Niger,
Senegal, Togo.
The administrative tasks will be carried out by OAPI, whose headquarters are in Yaounde.  The
examination of the varieties for distinctness, uniformity and stability will be carried out by institutions
designated and authorized by OAPI;  it is likely that agricultural institutions which already have facilities
and experience in variety testing (for instance seed certification stations) will be called upon to contributeto the working of the protection system.
8. An indication of the progressive development of plant variety protection in terms of the
number of member States and the number of protection titles is given in Annex II.
UPOV and TRIPS Agreement/Capacity Building
9. The inclusion of Article 27.3(b) in the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement) has strongly en couraged a large number of developing countries
to enact plant variety legislation.  Consequently, the membership of UPOV has expanded worldwide,IP/C/W/347/Add.3
Page 3
with many new members being drawn from developing countries.  In 2000 and 2001, six new member
States1acceded to the UPOV Convention.
10. Accordingly, there has been an increase in the number of requests received from developing
countries for legal and technical assistance in the preparation and implementation of plant variety
protection legislation.  In light of their emerging needs, UPOV places great importance on legal and
technical assistance activities.
11. In the UPOV Program and Budget for 2000-2001, the Council of UPOV established sub-
program UV.3, with the following objectives:
- To assist governments in implementing effective plant variety rights systems,
- to assist governments, particularly governments of developing countries and countries
in transition to a market economy, in the preparation and enactment of legislation
conforming with the 1991 Act of the UPOV Convention.
12. The sub-program includes, inter alia , the following activities:
- Advice to governments, organization of 16 seminars/technical meetings (two per year
for Latin America, Africa, Countries in transition, Asia and Pacific Region);
- systematic approach to matching offer and demand, including finance, for extended
training of DUS examiners and administrators.
13. Pursuant to the above-mentioned objectives, UPOV organizes various technical assistance
activities, which are carried out at the request of and for the benefit of developing countries.  UPOV'scapacity building activities includes the following:
- To provide developing countries with assistance in preparing drafts of national laws
and regulations on plant variety protection;
- to provide advice on the implementation of plant variety legislation, for example, on
the establishment of national offices and technical examination systems;
- To provide legal and technical training to officials of developing countries.
UPOV's Position to Access to Genetic Resources and Benefit-Sharing
14. UPOV supports the view that the Convention of Biological Diversity and relevant
international instruments dealing with intellectu al property rights, including the UPOV Convention,
should be mutually supportive regarding access to genetic resources and benefit-sharing.  Indeed,
access to genetic resources is a prerequisite for plant breeding.  The concept of benefit-sharing is a
fundamental aspect of the UPOV Convention, in th e form of the "breeder's exemption".  Under the
UPOV Convention, protected varieties remain freely available for further development of newvarieties.  This reflects the concept that the world-wide community of breeders needs access to all
forms of breeding material to achieve greatest progress in plant breeding and thereby to maximize the
benefit to society.
15. An additional benefit-sharing mechanism in the UPOV Convention is contained in the
concept of the "farmer's privilege", under which UPOV members may permit farmers, on their own
                                                     
1 Croatia, Estonia, Korea (Republic of), Kyrgyzstan, Nicaragua and Romania.IP/C/W/347/Add.3
Page 4
farms, to use part of their harvest of a protected variety for the planting of a further crop.  This
provision is subject to the condition that the legitimate interests of the breeder are safeguarded, to
ensure there is a continued incentive for the development of new varieties of plants, for the benefit of
society.
16. These basic concepts of the UPOV Convention have been recognized within the International
Treaty on Genetic Resources for Food and Agriculture, adopted by the thirty-first Conference of the
Food and Agriculture Organization of th e United Nations (FAO), in November 2001.
Disclosure of Origin of Genetic Resources
17. Concerning the disclosure of the country of origin of genetic resources in applications for
plant variety protection, which is under discussi on under the aegis of the Convention on Biological
Diversity, UPOV is of the opinion that access to genetic resources is a fundamental requirement forsustainable and substantial progress in plant breedi ng and is concerned about any potential restrictions
on access to genetic resources for the purposes of plant breeding.
18. The UPOV Convention provides that the protection should be granted to plant varieties
fulfilling the conditions of novelty, distinctness, uniformity and stability and does not allow any
further or different conditions for protection.
19. The requirement for "distinctness" in the UPOV Convention means that protection shall only
be granted after an examination to determine if th e variety is clearly distinguishable from all other
varieties whose existence is a matter of common know ledge at the date of filing of the application.
The breeder is usually required, in a technical questionnaire that accompanies his application for
protection, to provide information concerning the breeding history and genetic origin of the variety.
20. Therefore, UPOV is not opposed to the disclosure, per se, of countries of origin or
geographical origin of genetic resources in any way that will facilitate the examination mentioned
above, but could not accept this as an additional condition of protection.
21. Thus, if a country decides, in the frame of its overall policy, to introduce a mechanism for the
disclosure of countries of origin or geographical origin of genetic resources, such a mechanism shouldnot be introduced in a narrow sense, as a condition for plant variety protection.  A horizontal
mechanism, such as that used for phytosanitary requirements, could be applied uniformly to all
activities concerning the commercialization of varieties, including, for example, seed quality or other
marketing-related regulations.
22. The provisions on access and benefit sharing and on the disclosure of the origin of genetic
resources of the CBD and the International Treaty on Plant Genetic Resources for Food and
Agriculture are compatible to the UPOV Convention.  As the UPOV Convention provides for aneffective system for the protection of new plant varieties, it also satisfies the requirements of the
TRIPS Agreement.IP/C/W/347/Add.3
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ANNEX I
Table 1:  Membership of the Union ( as of  20 May 2002 )
UPOV Convention (1961), as revised at Geneva (1972, 1978 and 1991)
StateDate on which State
became member ofUPOVNumber of
contributionunitsLatest Act
1 of the Convention to which State is
party and date on which State became party to thatAct
Argentina................................. D ecember 25, 19940 .51 978 Act...................... D ecember 25, 1994
Australia .................................. March 1 , 1989 1.0 1991 Act...................... Januar y 20, 2000
Austria ..................................... Jul y 14, 1994 1.5 1978 Act...................... Jul y 14, 1994
Belgium2.................................. December 5 , 1976 1.5 1961/1972 Act............. December 5 , 1976
Bolivia..................................... Ma y 21, 1999 0.2 197 8 Act...................... Ma y 21, 1999
Brazil....................................... Ma y 23, 1999 0.25 197 8 Act...................... Ma y 23, 1999
Bulgaria ................................... A pril 24 , 1998 0.2 199 1 Act...................... A pril 24 , 1998
Canada..................................... March 4 , 1991 1.0 1978 Act...................... March 4 , 1991
Chile ........................................ Januar y 5, 1996 0.2 1978 Act...................... Januar y 5, 1996
China ....................................... A pril 23 , 1999 0.5 1978 Act3..................... A pril 23 , 1999
Colombia ................................. Se ptember 13 , 1996 0.2 1978 Act...................... Se ptember 13 , 1996
Croatia..................................... Se ptember 1 , 2001 0.2 199 1 Act...................... Se ptember 1 , 2001
Czech Re public ....................... Januar y 1, 1993 0.5 1978 Act...................... Januar y 1, 1993
Denmark4................................. October 6 , 1968 1.5 1991 Act...................... A pril 24 , 1998
Ecuado r................................... Au gust 8 , 1997 0.2 1978 Act...................... Au gust 8 , 1997
Estonia..................................... Se ptember 24 , 2000 0.2 1991 Act...................... Se ptember 24 , 2000
Finland..................................... A pril 16 , 1993 1.0 199 1 Act...................... Jul y 20, 2001
France5..................................... October 3 , 1971 5.0 1978 Act...................... March 17 , 1983
German y.................................. Au gust 10 , 1968 5.0 199 1 Act...................... Jul y 25, 1998
Hungary................................... A pril 16 , 1983 0.5 197 8 Act...................... A pril 16 , 1983
Ireland ..................................... November 8 , 1981 1.0 1978 Act...................... November 8 , 1981
Israel........................................ December 12 , 1979 0.5 1991 Act...................... A pril 24 , 1998
Italy......................................... Jul y 1, 1977 2.0 197 8 Act...................... Ma y 28, 1986
Japan........................................ Se ptember 3 , 1982 5.0 1991 Ac t...................... December 24 , 1998
Kenya ...................................... Ma y 13, 1999 0.2 197 8 Act...................... Ma y 13, 1999
Kyrgyzstan .............................. June 26 , 2000 0.2 1991 Act...................... June 26 , 2000
Mexico..................................... Au gust 9 , 1997 0.75 1978 Act...................... Au gust 9 , 1997
Netherlands.............................. Au gust 10 , 1968 3.0 1991 Act6..................... A pril 24 , 1998
New Zealand ........................... November 8 , 1981 1.0 1978 Act...................... November 8 , 1981
Nicara gua ................................ Se ptember 6 , 2001 0.2 197 8 Act...................... Se ptember 6 , 2001
Norwa y.................................... Se ptember 13 , 1993 1.0 1978 Act...................... Se ptember 13 , 1993
Panama .................................... Ma y 23, 1999 0.2 197 8 Act...................... Ma y 23, 1999
Paraguay.................................. Februar y 8, 1997 0.2 1978 Act...................... Februar y 8, 1997
Poland...................................... November 11 , 1989 0.5 1978 Ac t...................... November 11 , 1989
Portu gal ................................... October 14 , 1995 0.5 1978 Ac t...................... October 14 , 1995
Republic of Korea ................... Januar y 7, 2002 0.75 1991 Act...................... Januar y 7, 2002
Republic of Moldova............... October 28 , 1998 0.2 1991 Ac t...................... October 28 , 1998
Romania .................................. March 16 , 2001 0.2 1991 Act...................... March 16 , 2001
Russian Federation .................. A pril 24 , 1998 0.5 199 1 Act...................... A pril 24 , 1998
Slovakia................................... Januar y 1, 1993 0.5 1978 Act...................... Januar y 1, 1993
Slovenia................................... Jul y 29, 1999 0.2 1991 Act...................... Jul y 29, 1999
South Africa ............................ November 6 , 1977 1.0 1978 Act...................... November 8 , 1981
Spain7...................................... Ma y 18, 1980 1.5 1961/ 1972 Act............. Ma y 18, 1980
Sweden .................................... December 17 , 1971 1.5 1991 Act...................... A pril 24 , 1998
Switzerland.............................. Jul y 10, 1977 1.5 1978 Act...................... November 8 , 1981
Trinidad and Toba go ............... Januar y 30, 1998 0.2 1978 Act...................... Januar y 30, 1998
Ukraine.................................... November 3 , 1995 0.5 1978 Act...................... November 3 , 1995
United Kin gdom...................... Au gust 10 , 1968 5.0 1991 Act...................... Januar y 3, 1999
United States of America......... November 8 , 1981 5.0 1991 Act8..................... Februar y 22, 1999
Uruguay................................... November 13 , 1994 0.2 1978 Ac t...................... November 13 , 1994
(Total: 50 States)
                                                     
1 "1961/1972 Act" means the International Convention for the Protection of New Varieties of Plants of 2 December 1961, as
amended by the Additional Act of 10 November 1972;  "1978 Act" means the Act of 23 October 1978, of the Convention;  "1991 Act"
means the Act of 19 March 1991, of the Convention.
2 With a notification under Article 34(2) of the 1978 Act.
3. With a declaration that the 1978 Act is not applicable to the Hong Kong Special Administrative Region.
4 With a declaration that the Convention of 1961, the Additional Act of 1972, the 1978 Act and the 1991 Act are not applicable t o
Greenland and the Faroe Islands.
5 With a declaration that the 1978 Act applies to the territory of the French Republic, including the Overseas Departments and
Territories.
6 Ratification for the Kingdom in Europe.
7. With a declaration that the Convention of 1961 and the Additional Act of 1972 apply to the entire territory of Spain.
8 With a reservation pursuant to Article 35(2) of the 1991 Act.IP/C/W/347/Add.3
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Table 2
States or Organizations which have initiated with the Council of UPOV the procedure for
becoming members of the Union (19)
Azerbaijan, Belarus, Costa Rica, Egypt, Georgia,  Honduras, India, Kazakhstan, Latvia, Lithuania,
Morocco, Tajikistan, The former Yugoslav Republic of Macedonia, Tunisia, Venezuela, Yugoslavia
and Zimbabwe, as well as the European Community and the African Intellectual Property
Organization (Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte
d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal, Togo
(16)).
Other States who have been in contact with the Office of the Union with a view to developing
legislation in line with the UPOV Convention (39)
Albania, Algeria, Armenia, Barbados, Burund i, Cuba, Cyprus, Djibouti, Dominica, Dominican
Republic, El Salvador, Fiji, Ghana, Greece, Guatemala, Iceland, Indonesia, Jamaica, Kingdom of
Bahrain, Madagascar, Malawi, Malaysia, Mauritius, Oman, Pakistan, Peru, Philippines, Saudi Arabia,
Seychelles, Sri Lanka, Suriname, Thailand, Tonga, Turkey, Turkmenistan, United Republic of
Tanzania, Uzbekistan, Viet Nam, Zambia.IP/C/W/347/Add.3
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ANNEX II
__________Development of Plant Variety Protection
0100002000030000400005000060000
1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2000 2001Number of Titles
0102030405060Number of members of the Union
Titles issued Titles in force Number of members of the Union1978 Act enters into force1991 Act enters into force