To be, or not to be… a part of UPOV 1991: more than an obligation, an aspiration
Mexico is one of the most open nations to the international trade: over the years, the country became a part of a number of free trade agreements in order to open investment opportunities and to explore new markets across the Americas, Europe and Asia. Today, Mexico is a party to 12 free trade agreements with 46 countries, 32 reciprocal investment promotion and protection agreements with 33 countries; and nine economic complementation and partial scope agreements within the framework of ALADI, the Latin American Integration Association.
These agreements provide a framework and motivate foreign investment as well as promote Mexican products and services to the world. Mexico ranks 12th in the world’s food production and is the 13th largest food exporter in the world and the first in Latin America. Furthermore, Mexico also majors in exports of horticultural products, mostly fruits, such as avocado, lemon, mango, papaya, and berries (figure 1).
Recently, three of Mexico’s important trade agreements were reviewed and modernized: the European Union-Mexico global agreement; the United States-Mexico-Canada agreement (USMCA), and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), signed by 11 countries.
Each one of these agreements contains provisions regarding Intellectual Property (IP) matters, including protection of new plant varieties.
Compliance of IP provisions
As a part of its obligations, Mexico has committed to acceding to the 1991 Act of UPOV no later than four years after the date of entry into force of each of these recently reviewed agreements. Under the CPTPP, the very first of the agreements to enter into force (figure 2)., the deadline for the UPOV 1991 accession is set on December 30, 2022.
Currently, Mexico provides protection for the Plant Varieties Rights in accordance with 1978 UPOV Act; in order to upgrade to the UPOV 1991, Mexico will have to review and amend its 1996 Federal Law on Plant Varieties to include the following provisions:
• Crops to be protected: Mexican law already provides protection for all genera and species, so no change is required.
• Duration of protection: the current period of protection ranges from 15 to 18 years depending on the species (15 years for annual and 18 for perennial and trees). The current draft law extends this term to 20 to 25 years (depending on the species, with the same previous criteria) – a direct benefit for breeders who would have more time to acquire the return on their investment into plant breeding.
• The scope of right and protected material: currently, Mexican law lists production, reproduction, distribution and sale of the plant variety and its propagating material as acts exclusively reserved for the title holder. Even though the current wording can be interpreted as if all parts of the plant were protected (seed, plant, fruit, its denomination), there is no clarity about it; The 1991 Act of UPOV specifically includes the harvested material obtained through unauthorized use of propagating material of the protected variety – the concept that has to be included in the new law. Additionally, in order to improve the protection in the entire value chain, all commercial acts, such as export and import of the protected plant variety, should be included. The draft law does not currently extend protection to processed material derived from the harvested material resulting from unauthorized use of the protected variety.
• Essentially Derived Varieties (EDV) is the most controversial issue for the accession to UPOV 1991. During the consultation process, it has been argued that the UPOV 1991 EDV definition lacks clarity and doesn’t give adequate certainty as to the breeders’ exemption. Furthermore, there are groups that argue that this concept will leverage the release of genetically modified (GM) crops into the environment, which is a misconception as PBR protection has nothing to do with a variety being a GMO and any other quality thereof. All provisions as to the use, permission for experimentation, pilot tests and environmental release of GMO are regulated by the 2005 Biosafety Law. The stigmatization of GMO crops and the multinational companies who are said to have exclusive control over the GM crops is not to be resolved either by the current or by a new PVP regulation.
• Exceptions: It is important to emphasize that the trade agreements guarantee the right of each country to protect Plant Varieties Rights, “including the exceptions to the breeder's right as referred to in Article 15 of the [1991 UPOV] Act”, which are in fact more extensive than the ones provided by the UPOV 1978. In addition to breeder’s exemption and the farm-saved seed for smallholders, UPOV 1991 includes exemptions for private and non-commercial acts as well as experimental purposes that will be guaranteed by the new Mexican law.
Beyond the duty
Certainly, it would be desirable for Mexico to accede to UPOV 1991 in order to improve competitiveness, attract investment and facilitate technology transfer in the global marketplace. Yet, it is essential to go even further than these basic concepts, namely by conducting a comprehensive review of the regulation and its enforcement mechanisms. As more than 20 years have passed since the promulgation of the Mexican law, it does not anymore reflect the realities of modern-day agriculture and commerce. Therefore, it is crucial to update and harmonize legal concepts and incorporate the wide experience developed in technical, administrative and legal matters, in order to provide for a better PVP. In particular, it is fundamental to streamline the procedures and to provide for effective enforcement sanctions against any unlawful behaviour as to PVR. According to several trade agreements, countries have also committed to cooperation in PVR enforcement.
The amendment of the Federal Plant Variety Law is included in the Agenda 2019 of the Commission for Development and Rural Conservation, Agriculture and Food-self-sufficiency of the Chamber of Deputies. The approval of a better legal framework would increase farmers’ access to improved plant varieties improve Mexico’s competitiveness in the international market. A joint effort between breeders, farmers and authorities will be the key to reach these worthy goals in promoting research and innovation, increase production, create value and explore new markets, throughout the legal certainty, capacity building, awareness and political will, to respect the PBRs in benefit of the agricultural sector and Mexico's competitiveness. The moment has come.
About the author:
Enriqueta Molina is an Associate at Santamarina & Steta, a Mexico-based law firm, where she specializes in Intellectual Property protection, franchising and licensing. From 2003 to 2015, Enriqueta was responsible for the development of the Mexican System on Plant Variety Protection as a SNICS General Director (Servicio Nacional de Inspección y Certificación de Semillas). From 1996 to 2015, she represented Mexico at UPOV.