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

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

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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,

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

FlowerTECH 2005, vol. 8/no. 2

15

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-

16

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

FlowerTECH 2005, vol. 8/no. 2

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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