The Scope of the Farm-Saved Seed Under the UPOV Acts of 1961 and 1978

Abstract

The absence of a provision in the UPOV Acts of 1961 and 1978 regulating the FSS led the literature to sustain that it is admissible under those Acts. However, very little guidance is provided by UPOV about its interpretation under those Acts. The present study is based on the premise that only by defining the scope of the FSS under the Act of 1961 and by studying its evolution since then it is possible to fully comprehend its scope under the latest Acts. Accordingly, it addresses the delimitation of the scope of the FSS under the Acts of 1961 and 1978. To this purpose, the main potentially applicable criteria and means of interpretation have been identified, and their role in the interpretation of the FSS, thoroughly analyzed. On the grounds of the former analysis, the scope of the FSS under the relevant Acts has been determined, paying attention to its legal nature, systematic and function under the relevant Acts; to the potentially admissible acts, among other considerations. The study concludes that the FSS has been accepted by the Union since its very beginning in the Diplomatic Conferences of 1957-1961. However, its scope, already under the earliest Acts, is not unlimited and a clear trend towards its restriction has been appreciated, not only between the Act of 1991 and the previous Acts, but also between relevant means of interpretation of the Act of 1961 and the Act of 1978. By defining the possibilities and limits of the FSS under the Acts of 1961 and 1978, this study may be useful to those countries bound by the Act of 1978, but also to those under the Act of 1991, helping them eventually to better understand and interpret the FSS under that Act. UPOV members, governments from candidate States, breeders and farmers, among other players, might benefit from it.

Keywords: farm-saved seed, farmer's priviledge, plant variety rights, plant breeders' rights, plant breeding, UPOV