10 : Changes in the “public interest“ regarding exceptions to plant variety protection: As a case of the consideration process in Japan

Kunihiko Kobayashi

Research Department, Research Institute for Humanity and Nature, Kyoto city, Japan

There are various arguments over intellectual property rights in the field of plants, that is, breeder's rights. Since ratifying the UPOV Convention in 1998, Japan has recognized self-propagation as an exception to breeder's rights, with the exception of certain crops. However, due to changes in public interest perceptions and circumstances, the bill submitted to the National Assembly eliminated the exception. Through the analysis of the discussion process under the consultative committee established by the Ministry of Agriculture, Forestry and Fisheries, not only the context of hindering the economic growth of seed companies, but also the policy development by the public sector, which is the sub-national governments that actively promotes development of new plant variety, created a new aspect. The results showed that there were new aspects in the interpretation of the UPOV Convention.

UPOV Convention, Public Interest, Plant Variety, Self-Propagation

1 Introduction

The production of plant varieties is an essential input in the upstream of sustainable food systems. While the development of a variety requires specialized knowledge, technology, and experience, and often requires a long period of time, a great deal of labor, and funds, it is relatively easy for a third party to reproduce a new variety once it has been bred due to the nature of the plant (Takahashi 2008). Therefore, the current Plant Variety Protection and Seed Act (“PVP Act”) was established in 1998 to grant exclusive rights (breeder's right) to breeders of varieties that satisfy certain criteria developed. The PVP Act enacted in 1998 is a measure to implement the UPOV 1991 Convention, which Japan concluded in the same year (Kobayashi 2005). The Convention established standards for international plant variety protection, including the requirements for granting breeder's rights. It also established a Council under the Convention to make the decisions necessary for the effective implementation of the functions of the UPOV Convention. Therefore, it is considered necessary for the application of the PVP Act to take into account the decisions adopted by the Council of Convention in the context of the domestic implementation of the Convention.

By the way, when the UPOV Convention is compared with other International Conventions for the Protection of Intellectual Property Rights pertaining to the Protection of New Varieties (For example, WTO TRIPs Agreement), one feature can be found in the exception for exclusive rights. The TRIPs Agreement leaves discretion to WTO members with regard to exceptions to exclusive rights (patent right) (Article 30 of the TRIPs Agreement). Therefore, what kind of exceptions should be made is determined by each country. On the other hand, the UPOV Convention stipulates, as obligatory exceptions to the exclusive rights (breeder's right) granted by satisfying certain standards, 1) acts conducted privately and for non-commercial purposes, 2) acts conducted for research purposes, and 3) acts conducted for the purpose of breeding other varieties (Article 15 (1) of the Convention) and use for the purpose of self-propagation (Article 15 (2) of the Convention) as optional (left to the discretion of each country) exceptions. Exceptions to the exclusive rights, including breeder's rights, dealt with in this paper are made to ensure the public interest (Kojima 2009). Therefore, the fact that the UPOV Convention specifies the criteria for mandatory exceptions, voluntary exceptions, and two exceptions suggests that the concept of "public interest" (mandatory exception), which can be shared globally, and the concept of "public interest" (for example, WTO TRIPs Agreement), which should be dealt with depending on the situation of each country, are different from each country in terms of patent right. Japan incorporated voluntary exceptions to breeder's rights into Article 21 (2) of the PVP Act, which secures the UPOV Convention. However, in the PVP Act revision bill submitted to the ordinary session of the National Assembly in 2020, after discussions at the Consultative Committee on the Protection of New Plant Varieties, which was established in 2019 under the Ministry of Agriculture, Forestry and Fisheries, which has jurisdiction over the PVP Act, it was proposed to delete the provisions concerning the optional exception, that is, to make it no longer an exception to the breeder's right (The House of Representatives 2020).

2 Introduction Research Purpose and method

As described above, part of the Japanese food system is about to change in connection with the discussion on the revision of the PVP Act. However, the exceptions mentioned above are also stipulated in the United States and the EU, and this is the first case of such a change even in a country that has concluded the UPOV Convention. The purpose of this study is to examine the legal impact of the proposed amendment to the PVP Act on the recognition of the self-propagation by farmers, who are regarded as "public interest", by referring to the discussion on the proposed amendment to the PVP Act and the discussion on the treaty in Japan. First, consider the resolution on voluntary exceptions discussed and adopted by the Council of UPOV Convention. Second, we will examine how the public interest is changing by referring to discussions at the Consultative Committee established under the Ministry of Agriculture, Forestry and Fisheries.

3  UPOV Convention and its Council Resolution

Article 15 of the UPOV Convention provides for the restriction of breeder's rights against self-reproduction by farmers within reasonable limits and subject to the protection of the legitimate interests of breeders. In 2009, the Council under the Convention adopted the Explanatory Notes on Exceptions to the Breeder's Right under the 1991 Act of the UPOV Convention (UPOV Council 2009). For the purpose of determining the inclusion of the optional exception, it is indicated that it may be considered to introduce the optional exception for agricultural or horticultural sectors, such as fruit, originals and vegetables, where it has not been a common practice for the harvested material to be used as propagating material. However, the term "To the extent reasonable and to protect the legitimate interests of the breeder" as a condition means that even if a voluntary exception is introduced, it should not undermine the incentives provided by the UPOV Convention to encourage breeders to develop new varieties. Therefore, in order to ensure the balance between the act of self-propagation by farmers and the incentive for breeders to develop new varieties, the types of crops, the area of crops, and the amount of harvested crops are confirmed as standards. However, these standards also confirm that over time, the evolution of agricultural practices, methods of growth or multiplication, and economic development will require modifications to the mechanisms of introduced voluntary exceptions. In other words, it does not be denied that breeder's rights may extend to farmers' self-reproduction if the incentives for technological development and the development of new varieties by breeders are severely reduced.

4  The discussion under the consultative committee of the plant variety protection and seed act

In 2019, the Ministry of Agriculture, Forestry and Fisheries established a committee called "consultative committee of the plant variety protection and seed act" and requested the committee to hold discussions on the implementation of the PVP Act that would eventually lead to a bill to revise the PVP Act. Table 1 summarizes the views made by each member of the Committee regarding self-propagation (MAFF 2019). Not only seed companies but also members of sub-national governments have expressed a negative view on self-propagating food production which considered as public interest.

Table 1: Table Caption and Table follow the caption

In Japan, as shown in Table 2, not only seed companies such as Takii Seeds Company but also sub-national governments are also promoting breeding activities including the development of new plant variety. As Figure 1 shows that the number of applications for variety registration in each prefecture, each sub-national government has a different attitude toward the development of new plant variety. Although the positions of not all sub-national governments can be confirmed, it has been reported at the committee that some municipalities, such as Nagano Prefecture and Yamagata Prefecture, which have a relatively large number of new varieties, and others, which do not, have an intention to restrict self-propagation. And at the first meeting of the committee, a member of the Nagano Prefectural Government raised the issue that self-propagation benefits only farmers and pointed out the necessity of allowing residents including the farmers in the district to receive benefits through licensing fees. However, some sub-national governments may support the view due to the promoting the plant breeding, but the others may not be supported. In the future, if PVP Act will be amended and permission from the holder of the breeder's right will be required for self-propagation, and it is not possible to support the view of providing benefits not only to farmers but also to residents living in the area, it will be considered necessary for the sub-national government to make a decision through discussion with farmers and related corporations. However, the cost and period of license for the permission can be decided by the holder of the breeder's right.

Table 2 The number of applications by each sector (1977-2020)

Source: Ministry of Agriculture, Forestry and Fisheries

(2020)

Figure 1: The number of plant variety applications by each sub-national government from 1977（As of April 20th, 2020）

5  Discussion

Through discussions in the committee for the revision of the PVP Act, it has become difficult to regard self-reproduction, which has been an exception to the rights of breeders, as a public interest because it has reduced incentives for breeders. In this section, we examine the legal implications of this discussion in Japan, including the relationship with the UPOV Convention and possible changes.

Discussions in Japan may provide new insights into the explanatory note adopted by the Council. The UPOV Convention indicates that one of the reasons for introducing self-propagation as an exception to breeder's rights is that the practice of self- propagation continues. Although the practice of self-propagation varies from crop to crop, there are a certain number of farmers who continue to self- propagation. Therefore, in this context, the UPOV Convention does not affect the discussion in Japan. However, the Council noted the possibility that the act of self-propagation would become no longer an exception with agricultural practices, methods of multiplication, and economic growth. Behind the latest revision of the law is the obstruction of economic development caused by illegal purchases and exports. However, through the discussion process, we can see that not only aspects of economic growth but also changes in public sector thinking are related. Although economic growth cannot be considered in the public sector, the view of contributing to local well-being through licensing fees can be considered as a new aspect.

• Takahashi, Nobuyoshi (2008) Plant variety protection and seed act, Patent 61(9), 10-18. (Written in Japanese)
• Kojima, Tsunekazu (2009) Monopoly vs. free competition in intellectual property, The Journal of applied sociology (51), 105-115. (Written in Japanese)
• Kobayashi, Tadashi (2005) “History of Plant Variety Protection and Seed Act and Protection of Intellectual Property (initial translation)”(種苗法の沿革と知的財産保護), Reference No.655，p17-45. (Written in Japanese)
• The House of Representatives (2020) “Bill to Amend Part of the Plant Variety Protection and Seed Act (initial translation)”(種苗法の一部を改正する法律案) < http://www.shugiin.go.jp/internet/itdb_gian.nsf/html/gian/honbun/houan/g20109037.htm>. (Written in Japanese)
• UPOV Council (2009) "Explanatory Notes on Exceptions to the Breeder's Right under the 1991 Act of the UPOV Convention (UPOV/EXN/EXC)" https://www.upov.int/edocs/expndocs/en/upov_exn_exc.pdf
• MAFF (2019) “The documents of Consultative Committee” < https://www.maff.go.jp/j/kanbo/tizai/brand/kentoukai/kentoukai-top.html> (All documents including conference minutes are written in Japanese)