Plant breeders make every effort to meet the first two objectives of the Convention. By the very nature of their business, they do not consume, deplete or even destroy genetic resources.

Breeders of asexually reproduced ornamental and fruit varieties, in particular, only need access to a very few plants as parent material to be able to start a breeding process. This is because from just one plant, an almost indefinite number of identical ones can be produced. Even where this material is provided by other countries, the biodiversity there does not get harmed or reduced.

What breeders find in nature looks for example like the orchid pictured on the right. As one can readily understand, such a plant will not be successful in the market. It takes a lot of effort, time and money to develop a plant variety which can be sold (see picture, opposite page).

Plant breeding requires very specific botanical know-how. The methodologies can vary from crop to crop but, on average, it needs 10,000 to 100,000 crosses and takes 3 to 10 years to develop between 5 and 10 new varieties which might reach the market. These new varieties usually have many advantages over older ones and the ones found in nature. They are — depending on the breeding target — more resistant against diseases (hence less chemicals are needed in the growing process), less temperature sensitive or better transportable (which makes growing in developing countries easier). Additionally, they might have a ‘modern’ shape, colour, fragrance and/or taste and a customer friendly vase-life. Hence, breeders actually add new value to biodiversity.

Breeders also conserve existing varieties. Some genetic resources, extinct under natural conditions, have been conserved thanks to the efforts of breeders, either on their premises or in gene banks.

From our perspective , the third objective of the CBD is also already is achieved, since the horticultural business is based on international partnerships.

Clearing a prejudice
As shown above, breeders of asexually reproduced ornamental and fruit varieties are not protecting what they find in nature with IP rights, but varieties in which a lot of R&D has been invested. What can be found in nature will hardly ever meet the protection criteria as they are laid down in international conventions like in UPOV 1991.

Business partnerships
Breeding of the most important ornamental species is carried out to a huge extent by private, often small and medium-sized companies, whilst breeding of fruit species is often undertaken in public institutes (because of the high costs involved). The most important regions and countries for breeding vegetatively reproduced ornamental and fruit varieties are the European Community, the United States and Japan. Nevertheless, we are witnessing an increasing number of ornamental and fruit variety breeding activities in developing or newly industrialized countries such as Kenya, Ecuador, China, India, etc. Meanwhile, most of the plants are grown in the southern hemisphere, in various countries in Africa, South America and Asia.

Benefits are shared in a very practical manner by license agreements: Breeders (often from industrialized countries) grant growers (often in developing countries) the right to use a newly developed variety for growing and selling plants and hereby ‘utilizing’ its genetic resource. It should be noted in this regard that license fees are the smallest (financial) part of the value added chain compared to the profits of growers and traders of the plant.

In many developing countries and newly industrialized countries, horticulture is the fastest growing sector of the economy. The production of ornamentals and fruits has considerably positive effects on the economy of the production areas. It creates numerous year-round jobs in these countries — many of them for women. This results in a continuous, regular income and therefore is a stabilizing factor for whole families. Due to this fact, not only single companies but many families and society at large in these countries are benefiting.

Legal mechanisms
Additionally, legal mechanisms in international conventions are further balancing interests. One example is the breeder’s exemption in UPOV. Article 15 (1) (iii) of the UPOV 1991 Act states that the breeder’s right shall not extend to “acts done for the purpose of breeding other varieties…”. Anybody has free access to the germplasm of any protected variety for the purpose of further breeding. It would be rather strange if access to varieties available in nature becomes subject to more restrictions than access to protected varieties.

Another example of benefit-sharing is the ‘farmer’s privilege’ contained in Article 15 (2) UPOV 1991, which reads: “Notwithstanding Article 14, each Contracting Party may, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder’s right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by Article 14 (5) (a) (i) or (ii)”.

Both these principles reflect how benefits are shared within the plant variety rights-regime: by participation on knowledge (which has the potential for creating additional value) and by the possibility of excluding a huge part of the utilization — the use of own harvest as seed on the own property — from protection. But it also reflects that unrestricted access to any kind of genetic resources as breeding material is necessary to ensure future progress in breeding, which, again, is to the benefit of the society as a whole. It seems that in ABS discussions, many prejudices and unconfirmed assumptions prevail; a lot of important questions remain unanswered. The current discussions lead to legal uncertainty, difficulties in access and increasing costs. All this hinders innovation and the creation of benefits. This is a pity since, at least in the breeding and horticultural industry, the objectives set by the CBD are already met today by the rules set in international conventions, like UPOV, and the very nature of the business.

Dr. Edgar Krieger is Executive Secretary of and Dr. Birte Lorenzen is legal consultant to CIOPORA (International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties)