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Legislative novelties for the protection of vegetable varieties in Colombia and Mexico

With the recent signature of the Free-Trade Agreement with the United States, Colombia has had to implement and renew covenants, updating treaties and regularizing internal standards in order to provide guarantees to the commitments acquired with the United States and with the other countries, therefore, Colombia includes in its legislation the international covenant for the protection of the UPOV vegetable obtaining which was reviewed on October 23, 1978.
Colombia regulates these subjects through an independent organism in the Columbian Office of Patents, the ICA (Agricultural Columbian Institute), which is responsible for the granting the obtaining certificates and is based on the guidelines provided by the UPOV Act of 1978.

The duration of the vegetable varieties obtaining party protection right, in accordance with the UPOV of 1978 is if 18 years for trees and grapevines and of 15 years for other plants. However, Colombia although it is included in the UPOV of 1978, through Decree 2687 of 2002, indicates that this duration is 25 years for trees and grapevines and 20 years for the other plants.

Another interesting aspect is that related to the scope of the vegetable varieties obtaining party protection right in terms of the farmer, since the 1978 Act do not provides the farmer privilege, and, however, Colombia, through the 2046 Resolution of the year 2003 of the ICA indicates that such privilege applies “When a farmer desires to preserve seeds of a variety protected by its own exploitation in order to sow it for its own use, this situation must be informed to the ICA, indicating the place on which the conditioning of such seed will be carried out. This exception is only for farmers with an agricultural exploitation equal or lower than five cultivable hectares and when the right of the obtaining party has been reasonably performed with regard to the first sow…” (Article 21 of the ICA 2046 Resolution of 2003).

In this sense, although the signature of the Free Trade Agreement with the United States, which shall be in force as from May 15, 2012, includes the updating of treaties, such as the International Covenant for the protection of vegetable obtaining party (UPOV), the legislative novelty in Colombia in this subject shall be mainly based in the review of its legislation, in order to assure that the protection of the obtaining party of vegetable varieties continues, always seeking the equilibrium between the obtaining party individual protection due to its contribution to improve the existent varieties and the progress and growth of the agricultural sector with such contributions.

On its part, Mexico protects the Vegetable Varieties obtained by natural resources since 1996, through the Ministry of Agriculture, Livestock, Rural Development, Fishing and Feeding, SAGARPA and through the Federal Law on Vegetable Varieties as a legal instrument. However, on April 11, 2012, the Senate of the Republic has unleashed several favorable opinions and mainly against by the several Ecologist and Environmental groups, as per the recent publications in different newspapers and communication media.

This Law amendment which protects the vegetable varieties in Mexico was proposed on 2007, which main changes are the following:

-Increase in the protection from 18 to 25 years for perennial species: forestry, fruits, grapevines and ornamental, and the extension of the protection validity from 15 to 20 years for the remaining varieties.
-The introduction of the “essentially derived variety” concept in Article 5 BIS, which indicates that the obtaining party must have an authorization for the commercialization of the protected vegetable variety and spreading material, or of an essentially derived variety.
-The inclusion of the non-wood forest resources, such as moulds, as part of the protection, provided they fulfill the requisites of novelty, distinction, homogeneity and stability.
-The consolidation of the faculties of the SNICS, National Service for the Inspection and Certification of Seeds, in order to carry out administrative penalties against the offenders, by means of a fine from two hundred to twenty thousand days of minimum daily wage of the zone on which the infraction is carried out; the temporary or definitive closure, partial or total closure of the places or facilities in which the infractions have been performed; and the seizure of the vegetable varieties, their spreading materials and the variety product.

This modification proposal is causing a great dispute by arguing in the main newspapers of the Capital that research groups, farmers, academics, environmentalists and ecologists are stating their disagreement to this reform since they consider it as in favor of the transnational companies due to the extension of the validity of the obtaining individual right, by imposing fines which can not be paid by the majority of the farmers and the introduction of the essentially derived variety which widens the obtaining person right.

On its part, the reform proposal states the penalties against the offenders which commercialize vegetable varieties protected by the obtaining party right, but the Law is clear that for the effects of the own consumption, research and any other without any commercialization or export purposes, these penalties do not apply.

In the current political situation in Mexico due to the change in the Presidency and Legislative Power of the Republic, this proposal is still in the hands of the Chamber of Representatives, which, until now, has not been approved, but it is clear that the final decision will impact the food sector in our country.

Carmen Sánchez-Puelles