Daren Tang, Director General of the
World Intellectual Propert Organization

Human genius is the source of all works of art and invention. These works are the guarantee of a life worthy of men. It is the duty of the state to ensure with diligence the protection of the arts and inventions.’

These words are inscribed in the entrance hall of the headquarters of the World Intellectual Property Organization (WIPO) Geneva, Switzerland.

Despite this impressive statement, the world’s breeders of ornamental plant and fruit tree varieties face the frequent infringement of their rights. These breeders are not enjoying sufficient protection of their “inventions,” as the state is not fulfilling its duty to prevent the violation of plant breeders’ rights.

Why should breeders invest this kind of money for the protection of their varieties?
Simply put, breeders need this protection to receive a return on their investment. But this is only possible if breeders have a real and effective protection of their varieties-not only protection on paper.

What is ‘effective protection’?
When breeders receive a protection title, this is the starting point for effective protection. Based on the breeders’ rights laws in individual countries, a plant breeder is theoretically given the right to exclude others from propagating, selling, importing and exporting plant material of his variety. In practice, however, this is not always the case. A number of people do not respect these rights. The authorities must provide effective tools that enable breeders to legally enforce their rights.

A plant breeders’ rights law is the material law that grants the breeder his rights. Civil laws, criminal laws, customs laws (and in some countries, public laws)-all of these either allow breeders to enforce these rights or, in the worst case scenario, leave breeders powerless. The legal possibilities to enforce [breeders’] rights determines the effectiveness and the real value of this and other intellectual property rights in practice. The UPOV explanation of why protect new varieties of plants reads as follows:

Breeding new varieties of plants requires a substantial investment in terms of skill, labour, material resources, money and time. The opportunity to obtain certain exclusive rights in respect of new varieties provides successful plant breeders with a better chance of recovering their costs and accumulating the funds necessary for further investment. In the absence of plant breeders’ rights, those aims are more difficult to achieve since there is nothing to prevent others from multiplying the breeder’s variety and selling it on a commercial scale, without recognizing in any way the work of the breeder.

The UPOV explanation, however, seems to be incomplete. It should read as follows: “In the absence of plant breeders’ rights, or without the effective enforcement of these rights, it is impossible to reach those aims.” This is also the reason why the three Acts of the UPOV Convention for the obligations of members includes the following statement: “to provide for appropriate legal remedies for the effective enforcement of breeders’ rights” (see Article 30 (1) (i) of the UPOV 1991 Convention). This obligation is also included in a more general way in Chapter III of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement. Unfortunately, UPOV has not yet established a control mechanism to determine when and if the obligation stated in Article 30 of the UPOV Convention is being fulfilled by UPOV member states.

For breeders, the enforcement of their rights will be one of the crucial issues in years to come. Let us examine which laws deal with the enforcement of breeders’ rights.

Plant breeders’ rights laws can have a considerable impact on the enforcement of these rights, either by providing straightforward, understandable provisions or by creating confusion with vague language.

The latter is particularly the case in regards to essentially derived varieties. The laws also need more significant recognition of the special requirements needed to enforce these rights; for instance, that breeders and growers deal with living material and one plant of a particular variety never looks exactly like its neighbor (although the respective variety is homogenous). Perhaps this necessitates a special provision in the breeders’ rights law in regard to “evidence.”

In most countries, civil and procedural laws are the core tools for enforcing plant breeders’ rights. These legal procedures need to be fair and equitable as required by the TRIPS agreement. Additional points that have to be considered in regard to breeders’ rights are how to adduce evidence, the right to information and access to the premises, the possibility to receive injunctions, the level of damages and provisional measures. A crucial factor in the enforcement process is whether or not a particular court is fluent in the issues and language of breeders’ rights. If the judge is not familiar with the basics of intellectual property and/or the general problems of breeders’ rights, it is difficult to achieve a reasonable judgment. Another reality of this litigation is the sheer cost; this is particularly an issue when the fees outweigh the amount awarded by the judge.

The violation of breeders’ rights is also a criminal issue. While not consistently recognized as “theft” in the various legal systems of the world, the act of infringing upon a breeders’ right is certainly comparable to misappropriation and fraud, both of which are criminal offences. Countries that understand the true value of breeders’ rights prosecute infringements with the full support of the criminal justice system.

As a regulating force for the international trade of illegal material, customs law is considered to be one of the most important areas of future development for breeders’ rights. Both the fruit and ornamental industries are rocked with illegally propagated roses and apples are seized just before entering the European market; the same effect is achieved when illegal roses are confiscated at the port of Miami, Florida, United States. Clearly, it is important to have well-trained customs officials who are able to detect illegal plant material. Additionally, an effective cooperation between customs authorities in different countries should be established where possible.

Last but not least, precedent-setting case law is one of the cornerstones of breeders’ rights enforcement. As the courts are responsible for interpreting the laws, at the end of the day it is for them to decide whether or not a title holder can enforce his right. Because this field is rather small there are not many court cases, but when a judgment is made it should be visible to the international community. This would be possible if an international body such as UPOV would compile the results of all plant breeders’ rights court cases.

The enforcement of breeders’ rights is a complex matter that requires a strong blend of civil, procedural, criminal, customs and case law. While breeders should not stand for any infringement of their rights, it is also the case that the vast majority of the “players” in the business abide by the rules. By using the above-mentioned laws to act against infringements, breeders not only defend their rights, but also those of loyal and faithful customers who would otherwise be forced into an unfair competition with those who operate illegally. Without effective enforcement, the plant breeders’ right title is of limited value.