Breeder rights

Breeder rights take centre stage among rose exporters

News that a shipment of roses from Brazil was seized upon arriving in Portugal due to non-payment of royalties to international rose breeders on Valentines Day did not hit the national headlines, but exporting rose growers and their European importers should be aware of tougher EU customs regulations. Growers associations, government and research all agree that law improvements are necessary.
By Mauricio C. Mathias but actual situation that as far as the internal market is concerned rose breeders havent been able to collect on their intellectual property rights due to this unintended inadequacy of the law. Naturally, this is irrelevant in the overseas markets; to compete on a fair basis with other nations, Brazilian rose growers who dont comply are subject to actions at the risk of tainting other peoples reputation too. In a country of continental proportions, however, all types of people can be found. There are serious, professional growers who have had direct contracts with international plant breeders for over 10 years, and those who have been unwilling to accept the differences in international law. Brazil is a world leading exporter in a number of other agricultural products, e.g. citrus, coffee and beef. Whenever local production chains start to compete with other world players for the same consumer markets, adaptation will be a must. Some will be able to adjust to new conditions and others will not choices are going to vary, but its important to realize the nations diversity. The one issue where all seem to agree, from industry to research in Brazil, is that rewarding anyone that invests in creating new varieties is the only way forward for the development of a competitive sector. Innovation is the driving force to keep ahead in any field, but especially in this one where a growing number of countries

resh cut flowers represented 21% of Brazils US$23.5 million plant exports in 2004. These figures should be a warning signal to exporters who insist on illegal action, while remembering that the shipment was sourced from only a few growers, out of an estimated 5,000 ha of roses grown in Brazil (150 ha are under plastic greenhouses). Some background information is also necessary to fully understand a subject in itself complex and at the same time, long due to take centre stage as the exports of plants and flowers from Brazil grows.

Internal market...
Brazil has been compliant with UPOV-78 (French acronym for the International Union for the Protection of New Varieties of Plants, an international intergovernmental organization in Geneva, Switzerland) since 1996. The country became a full member in 1999, but it has not joined the latest 1991 version. The 1978 version requires nations to either allow the patent of plant varieties or draw their own system of plant protection. Brazil has opted for

the latter, the so-called sui generis regulation followed by most of the 55 member countries. So a protected variety in Brazil has its intellectual rights safeguarded for 15 years, and royalties can be charged if applicable, though patenting of higher plants is not possible. An article of the Brazilian law allowed small farmers to grow protected crops for their own use only. This was a fair demand from society meant to prevent multinational seed companies from controlling native food crops traditionally used for subsistence, such as banana and manioc. For ornamental and fruit species with vegetative multiplication however, it has had an adverse effect. Since the law asserts that royalties must be paid in the case of plant multiplication, a farmer would have to pay them if he sold plants for someone else to grow. However, the sale of plants as a final product is not included, thus bypassing protection rights. This breach is particularly meaningful to plants easily multiplied from a single stem legally bought in the market, which could eventually gener-

ate a whole field. Roses being one such plant - and a widely accepted flower - it is at the centre of this discussion. This loophole is about to be closed though, as SNPC (National Service for Variety Protection, part of the Ministry of Agriculture) has already proposed an amendment to Article 10 of Law 9 456 from 1997. Chances are that it will be approved sooner than an eventual adherence to the UPOV-91, which few countries have so far joined. In retrospect, the enactment of this law took place when the flower/plant industry wasnt as evident, but things have changed since and adaptation is now necessary. Especially as the nations economy is more geared towards exporting. Besides, attention has been drawn to the potential of the internal market; some 90% of all roses grown remain here. In other words, there has been regulation of intellectual property for years now, but there is urgency to incorporate this left out segment.

and overseas
All of this has created the odd,

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Breeder rights

are competing in the same markets. The strategy used by each company will vary though.

Supported by the serious

In the end, negotiation will be a determining factor in future developments. Unreasonable tactics by a breeder will probably only persuade growers to a competitors varieties and increase awareness to todays choices. Royalty payment will hardly be contested as an unfair idea, but when growers have to choose they are likely to prefer bargaining maybe even collectively. Roberto Berganton was president of ABCPFlor for four years and is very familiar with the proceedings to amend the law in question. Although nobody can say for sure when congress will vote any law change, he says, I believe that it is a matter of months now until its voted. We helped draft a straight-to-the-point change to avoid conflicts with other nonornamental crops. Its a fact that it will be the grower who pays the bill, but interestingly it has been the serious growers associations that are pushing for this.

Specialists speak
Clarice Simm, representative of rose breeder Rosen Tantau in Brazil since 1997 says, Joining in royalty payment is a matter of loyal competition both in Brazil and overseas. She feels that its not that some growers want to be illegal, but non-pay-

ment in the internal market was the common practice due the flawed legislation. She further explains that Tantau is negotiating each case individually, and looking forward to future partnership. The federal government is also trying to adjust to the situation, Vera Machado, an officer with the Ministry of Agriculture informs: At this moment 20 ornamental plant species are protected, of which 12 rose varieties, submitted by foreign companies. There is more in the pipeline and in 2 to 3 months another 40 varieties of chrysanthemums, roses, bromeliacea, saintpaulias and begonias may be included as well. Royalties are a way to buy into private research, and in this way one can use it to its own benefit. The worlds most valued varieties can be purchased and sold overseas, creating more competition in the market, and eventually employing more people in the sector as exports increase. Fernando Tombolato, Ph.D., has been a researcher with the IAC (Agronomic Institute of Campinas) since 1978 and has worked with ornamentals for the last 20 years. He grants that traditional farmers have the right to have their crops safeguarded, but that this should not include the newest top of the line varieties of high commercial value, developed with years of private investment. Tombolato is himself active in different breeding programs and reminds us that this is a

Anti piracy activity

Organization on the breeders side has started. For the occasion of Valentines Day 2005, and for the minimum term of one year, Nirp has filed a Request of Intervention to the Portuguese Customs Authority in order to check all flowers imported from Brazil and to stop and destroy any rose coming from illegal production. Nirp International: On 10 February, the result has been quite satisfactory. Out of about 100,000 Brazilian flowers of Versilia, Marlyse, Shocking Versilia and many other varieties, checked one by one, 30,000 illegal roses have been found, seized and destroyed. The day after, the result has been more or less the same, and again about 15,000 illegal roses have been seized and burned. This is just the beginning of an intensive and continuous war against piracy. Nirp is extending its scope of action to all the European customs authorities according to the newly implemented EU customs regulation that includes Plants Breeders Rights for the first time. United States Customs authorities are also being alerted. Nirp is confident that all its efforts will achieve the target of defeating unfair competition and illegal exploitation of Breeders Rights, not only in Brazil but in the whole global market. Another example of the sectors active organization is Ciopora, an international community of breeders of asexually reproduced ornamental varieties. Founded in 1961, it unites breeders from around the world, according to their website, It assists them in the protection of their intellectual property rights.

matter of national interest too. The IAC has four crops registered already: anthurium, gladioli, hemerocalis and some 20 amarillis selections, three of them about to be registered. Weve had our rights infringed as well, and since 2004 we have a set commercial partnership with accredited labs that we know work in a proper way. He also reminds that the national strategic concern has more to do with pharmaceutical native species, whose use is regulated by the Biodiversity Treaty; not so much with nonnative ornamental species. Humberto Roseinte, director

of Pro-flor, points out, Roses are a crop with very few newcomers; breeders will have to negotiate with the traditional farmers. Itll be hard to convince them to pay anything for the past; on the other hand the ones who want to obtain/export the newer varieties will have to come to the negotiation table. Euro or dollar price tags are hard for those who only trade in the local market.
mauriciomathias@hotmail.com Editor note: The subject of breeders rights will be continued in our June issue with interviews from Europe.

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