UPOV and Plant Variety Rights: Balancing Innovation and Farmers’ Rights

Plant breeding is a time-intensive, resource-heavy process – developing a single new crop variety can take 7 to 15 years. Protecting these innovations through intellectual property rights makes sense. But when those protections restrict farmers from saving and exchanging seeds – a practice that has sustained agriculture for millennia – a serious tension emerges. The UPOV Convention sits right at the centre of this debate, shaping how countries around the world regulate plant variety rights. Understanding how it works – and who it impacts – is essential for anyone interested in biodiversity, food security, or agricultural policy.

What is the UPOV Convention? 🔗

The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organisation established in 1961, headquartered in Geneva, Switzerland. Its stated mission is to promote an effective system of plant variety protection (PVP) that encourages the development of new plant varieties for the benefit of society. The UPOV Convention provides the legal blueprint that member countries must implement in their domestic laws to grant breeders an intellectual property right known as the breeder’s right.

The initiative for UPOV originated from European breeding companies in the 1950s, when plant breeding was becoming commercially viable. The first version of the convention was signed in 1961 by 12 European countries. It has since been revised three times – in 1972, 1978, and 1991 – with each revision expanding and strengthening breeders’ rights. Today, UPOV has 75 members covering 94 countries, and its membership continues to grow.

How plant variety protection works under UPOV 🔗

For a plant variety to qualify for protection under UPOV, it must meet four criteria, commonly referred to as the DUS criteria: it must be distinct from existing varieties, uniform in its relevant characteristics, stable across generations, and new in terms of commercialisation. Novelty here does not mean the variety never existed before – it means the variety has not been sold or commercially distributed within a specified time frame.

Once protection is granted, the breeder gains exclusive rights over the propagating material (such as seeds) of the protected variety. Under the 1991 Act, which is the current standard for new members, the breeder’s authorisation is required for production, reproduction, conditioning for propagation, offering for sale, selling, exporting, importing, and stocking of the protected variety’s propagating material. Protection lasts a minimum of 20 years for most crops and 25 years for trees and vines.

The breeder’s exemption: a unique feature 🔗

Unlike patents, the UPOV system includes a built-in mechanism called the breeder’s exemption. This allows anyone – including competing breeders – to freely use a protected variety as the basis for developing new varieties. Acts done for experimental purposes or for breeding other varieties are not restricted by the breeder’s right. This exemption is designed to keep genetic material accessible for further innovation, reducing barriers to entry for smaller breeders and start-ups.

Plant breeders’ rights vs. farmers’ rights 🔗

The most contentious aspect of the UPOV Convention is its impact on farmers’ traditional seed practices. For thousands of years, farmers have saved seeds from their harvest, exchanged them with neighbours, and gradually developed locally adapted varieties. These farmer-managed seed systems remain the primary source of seeds in much of the developing world – over 80% of seeds in Africa are still produced through informal exchange.

The UPOV Convention’s successive revisions have progressively limited these practices where protected varieties are concerned.

UPOV 1978 vs. UPOV 1991: a critical shift 🔗

Under the 1978 Act, farmers were implicitly free to save, use, and exchange seeds of protected varieties – the breeder’s exclusive rights only covered production for commercial marketing purposes. This left significant room for traditional seed practices to continue undisturbed.

The 1991 Act marked a major shift. It expanded breeders’ rights to cover virtually all acts of reproduction, including multiplication. Farmers can only reuse protected seeds on their own holdings if their national government chooses to include an optional exception, and even then, it must be within “reasonable limits” that safeguard the breeder’s legitimate interests – which often means paying licence fees. The exchange or gifting of protected seeds between farmers is prohibited outright.

There is also a compulsory exception for private, non-commercial use. This means subsistence farmers who grow a protected variety solely for their own household consumption are technically exempt. However, this exception is narrow – it does not cover any exchange, sale, or sharing of seeds with others.

The impact on developing countries 🔗

Since UPOV 1978 was closed to new members in 1998, any country wanting to join UPOV today must comply with the more restrictive 1991 Act. This has raised serious concerns among farmers’ organisations and civil society groups, particularly in the Global South.

Many developing countries face pressure to join UPOV through bilateral and multilateral trade agreements with the EU, US, Japan, and EFTA countries. While the WTO’s TRIPS Agreement requires member states to protect plant varieties through patents, an effective sui generis system, or a combination of both, it does not specifically mandate UPOV membership. However, the seed industry and several industrialised nations have pushed for UPOV-based plant breeders’ rights as the only acceptable standard.

Recent examples highlight the ongoing resistance. In 2024, Argentina saw massive protests against proposed legislation to join UPOV 1991, which was backed by major seed corporations. In Zambia, a new Plant Breeders’ Rights bill modelled on UPOV 1991 has been opposed by farmer organisations who argue it would undermine traditional farming practices. In Zimbabwe, peasant movements have warned that aligning with UPOV 1991 through the ARIPO Arusha Protocol would effectively criminalise traditional seed exchange.

Critics argue that UPOV was designed primarily for industrialised countries with well-developed commercial breeding sectors and does not account for the realities of smallholder agriculture in the developing world. India, notably, has chosen not to join UPOV and instead enacted its own Protection of Plant Varieties and Farmers’ Rights Act, which grants intellectual property rights to breeders while simultaneously protecting farmers’ rights to save, use, exchange, and sell farm-saved seeds.

UPOV-WIPO interactions 🔗

The relationship between UPOV and the World Intellectual Property Organization (WIPO) is both institutional and strategic. Although UPOV is an independent intergovernmental body with its own legal personality, it operates in close coordination with WIPO. The Director General of WIPO serves as the Secretary-General of UPOV, and WIPO provides administrative and financial services to the organisation.

Shared infrastructure and policy alignment 🔗

This institutional linkage goes beyond administrative convenience. WIPO hosts plant variety information through its WIPO Lex database, which includes the UPOV Convention texts and related national legislation. WIPO also supports member countries in developing and harmonising intellectual property laws related to plant varieties, often channelling this through technical assistance programmes that promote UPOV-consistent legislation.

The two organisations have co-organised important policy events. A joint WIPO-UPOV symposium in 2003 examined intellectual property rights in plant biotechnology, concluding that both patents and plant breeders’ rights play complementary roles in supporting innovation. An earlier symposium in 2002 specifically addressed the co-existence of patents and plant breeders’ rights in biotechnological development.

Tensions with broader IP frameworks 🔗

Despite this cooperation, there are points of friction. WIPO’s General Assembly decided in 2022 to convene a Diplomatic Conference to conclude an international legal instrument related to genetic resources and traditional knowledge. This intersects directly with UPOV’s domain, because access to genetic resources and the knowledge associated with them – including farmers’ traditional knowledge – is central to plant breeding.

Neither WIPO nor UPOV has explicitly addressed Farmers’ Rights in their frameworks. The concept of Farmers’ Rights – formally recognised under the International Treaty on Plant Genetic Resources for Food and Agriculture (the Plant Treaty) – emerged as a counterweight to intellectual property rights. The interrelationship between Farmers’ Rights and IP rights has received limited attention from IP forums, and finding coherent legal approaches that bridge both remains an unresolved challenge at the international level.

Future directions for plant variety protection 🔗

The UPOV system is at a crossroads. On one side, breeders and the commercial seed industry argue that strong IP protection is essential to incentivise the investment needed to develop climate-resilient, disease-resistant crop varieties. On the other, farmers’ organisations, indigenous communities, and civil society groups argue that the current framework disproportionately favours corporate interests at the expense of food sovereignty and agricultural biodiversity.

Reforming UPOV from within 🔗

One avenue for reform involves UPOV’s own Working Group on Smallholder Farmers (WG-SHF), established to develop guidance on how smallholder farmers in developing countries can continue their customary practices of saving, using, exchanging, and selling small amounts of farm-saved seeds that may occasionally include protected varieties. This working group is interpreting the scope of the “private and non-commercial use” exception under Article 15.1 of the 1991 Act. However, progress has been slow, with strong opposition from countries like Japan and those in North and South America, even as European member countries, the seed industry in Europe, and civil society have shown broader support.

Alternative models: sui generis systems 🔗

The flexibility provided by the TRIPS Agreement’s Article 27.3(b) – which allows WTO members to create their own “effective sui generis” systems for plant variety protection rather than adopting UPOV – remains a critical pathway for countries seeking to balance breeder incentives with farmers’ rights. India’s model, which integrates both breeders’ and farmers’ rights into a single legislative framework, has been cited as a potential template for other developing countries.

At the continental level, African Union initiatives to harmonise seed laws under the African Continental Free Trade Area (AfCFTA) are being closely watched. A proposed intellectual property protocol could push more African countries toward UPOV alignment, but existing frameworks like the AU Seed Harmonisation Guidelines already recognise farmer-managed seed systems, providing an opportunity to develop clearer protections for farmers’ varieties at regional and national levels.

The role of technology and open-source approaches 🔗

Emerging approaches like open-source seed licensing offer an alternative paradigm entirely. These models, inspired by open-source software licensing, allow breeders to share their varieties freely on the condition that any derivative varieties also remain freely available. While still niche, such approaches could provide a middle ground that rewards collaborative innovation without restricting farmers’ seed practices.

Advances in genomics and digital sequence information also raise new questions about how genetic resources are accessed and who benefits from them. As these technologies make it easier to develop new varieties rapidly, the pressure to revisit both UPOV’s framework and its relationship with the Nagoya Protocol on Access and Benefit Sharing will only grow.

Building coherence across international frameworks 🔗

Perhaps the most important future direction is achieving greater coherence between the multiple international agreements that govern plant genetic resources, intellectual property, and farmers’ rights. The Plant Treaty, UPOV, TRIPS, the Convention on Biological Diversity, and WIPO processes all touch on overlapping issues, yet they often operate in silos with contradictory goals. Developing integrated national policies that draw on the flexibilities available within each framework – while prioritising both innovation and food security – is a challenge that will define agricultural governance in the coming decades.

What do you think? Should international plant variety protection frameworks like UPOV prioritise breeder innovation, or should they be reformed to explicitly protect farmers’ traditional seed practices? How can countries in the Global South design sui generis systems that serve both goals?

References

1. https://www.upov.int/en/about-upov/overview
2. https://www.wipo.int/en/web/wipo-magazine/articles/upov-supporting-food-security-with-plant-variety-protection-40674
3. https://www.wipo.int/en/web/wipo-magazine/articles/benefits-of-plant-variety-protection-37329
4. https://peoplesdispatch.org/2026/02/13/zimbabwes-seed-sovereignty-is-under-threat-and-with-it-the-legacy-of-land-reform/
5. https://www.farmersrights.org/international-negotiations/other-international-processes/the-union-for-the-protection-of-new-varieties-of-plants-upov/
6. https://theecologist.org/2024/may/07/stop-seed-saving-restrictions-uk-trade-deals
7. https://grain.org/en/article/7214-seeds-sovereignty-struggle-the-ongoing-battle-against-upov-seed-privatisation
8. https://www.wipo.int/wipolex/en/treaties/details/27
9. https://www.upov.int/meetings/en/Symposium2003/intro_index.html
10. https://www.tandfonline.com/doi/full/10.1080/21665095.2024.2357095
11. https://capacity4dev.europa.eu/library/promoting-rights-farmers-and-their-varieties-under-seed-policies-african-continent_en