by Claudio Chiarolla
Farmers traditionally save, exchange and sell their seeds informally. These practices are still widespread amongst poor farmers in developing countries, where farmers’ systems of seed supply and crop improvement are by far the most important source of seeds, playing a fundamental role in ensuring household food security. Informal systems of seed provision are also important mechanisms by which farmers gain access to the stock of different genes, which are necessary to select, improve and conserve traditional varieties that are well adapted to the local environment where they live.
Seed production in farming takes place outside the formal seed system because seed policies and regulatory mechanisms have focused mainly on commercial and trade-related aspects of seed production. In formal seed systems, conservation, crop improvement and seed production are carried out by different specialized institutions: respectively, gene banks, plant breeders and seed producers.
On the contrary, in informal seed systems, the conservation, development and use of agricultural biodiversity, and seed production are integrated components of complex farming systems. Indeed farmers are not just “growers”, but have multiple and complex interactions with the farming system of which they are part. Such interactions include activities as different as selection, storage, production, diffusion and exchange of seeds. In these systems, seeds also have a multi-functional role – i.e. as primary agricultural input treated as a commercial product – performed by seeds in industrial agriculture.
Such a multi-functional role may vary in accordance with the value of agricultural biodiversity in the local environment in which such diversity is created and preserved. It also depends on the agro-ecological, socio-economic, cultural and spiritual value that is attributed to it. Because of the inherent resource limitations of small-scale, low-input farmers in developing countries, many formal practices are not affordable for them and the legal requirements concerning seed certification and plant variety protection are not applicable in relation to the varieties that they use. However, legal and regulatory requirements may de facto limit the freedom of farmers to continue their traditional agricultural practices, such as the saving of seeds and tubers from consumption and subsequent use. At the national level, the restriction of the rights that farmers currently enjoy and the lack of initiatives to create appropriate incentives may affect negatively the conservation and development of plant genetic resources for food and agriculture, and increase food insecurity.
Farmers’ Rights under the FAO International Treaty on Plant Genetic Resources for Food and Agriculture
Article 9 of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which was adopted by the FAO Conference on 3 November 2001 and entered into force on 29 June 2004, “recognize the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make for the conservation and development of Plant Genetic Resources which constitute the basis of food and agriculture production throughout the world.” It also provides that the implementation of farmers’ rights at the national level may entail:
(a) the “protection of traditional knowledge relevant to plant genetic resources for food and agriculture”;
(b) “the right to equitably participate in sharing benefits arising from the utilization” of such resources; and
(c) “the right to participate in making decisions on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.”
Finally, it states that: “nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material.” All the above elements constitute a bundle of rights, which States can confer upon the farmers to preserve and promote the traditional practices that conserve and maintain biological diversity in agriculture in accordance with the International Treaty.
ITPGRFA, the Convention on Biological Diversity and Access to Genetic Resources
Innovation, and in particular agricultural innovation, crucially depends on the existing balance between the realms of private property and the public domain more than on a single component of such balance. This is because physical access to plant genetic resources for the purpose of breeding new varieties is important as much as the incentives that property rights create to encourage the private sector agricultural research. Indeed, with the adoption of the Convention of Biological Diversity (CBD), the aggressive assertion of sovereign rights over genetic resources has upset this balance. In particular, the bilateral bargaining model of access to genetic resources promoted by the Convention on Biological Diversity, which is based on mutually agreed terms and prior informed consent, may fall short of expectations when it is applied to agricultural biodiversity. This is because of the special nature of plant genetic resources for food and agriculture and their importance for food security.
In the filed of agricultural research, the inefficiencies of the CBD model are primarily due to the fact that countries are strongly interdependent on access to plant genetic resources for food and agriculture. Moreover, the comparatively high transaction costs associated with the negotiation of numerous bilateral agreements, which are necessary to access a sufficiently broad germplasm base, are difficult to be justified. This is because it is impossible to estimate, in an early stage of the breeding process, the value of each basic research inputs, such as genes from landraces and farmers’ varieties that will be incorporated in the final commercial plant variety. In this context, the willingness of National Agricultural Research Institutes to provide access to genetic resources, held in their ex situ collections, has became a matter of major concern for all those involved in plant breeding. These concerns led to revision of the International Undertaking on Plant Genetic Resources for Food and Agriculture, which was transformed in a new international legally binding instrument with the aim of making its routine the exchange of seeds on the bases of standard terms and conditions agreed at the multilateral level.
The International Treaty on Plant Genetic Resources for Food and Agriculture was negotiated to reconcile access and property rules governing agricultural biodiversity, and to promote its conservation, sustainable use and benefit-sharing in accordance with the Convention on Biological Diversity (CBD). It establishes a multilateral system to facilitate access to plant genetic resources for food and agriculture (PGRFA) and to share, in a fair and equitable way, the benefits arising from their use through the mechanisms of information exchange, access to and transfer of technology, and capacity building. The Contracting Parties to the FAO Treaty also agreed that “benefits arising from the use of plant genetic resources for food and agriculture that are shared under the Multilateral System should flow primarily, directly and indirectly, to farmers in all countries, especially in developing countries, and countries with economies in transition, who conserve and sustainably utilize plant genetic resources for food and agriculture” (Article 13.3 of the ITPGRFA).
However, the multilateral negotiations of both the FAO International Treaty and the CBD acknowledged the fundamental importance of local interests (i.e. those of farmers and their communities) in protecting important ecosystem services only to the extent that such recognition does not create any international legal obligations. The fact that the ITPGRFA in Article 9 recognizes Farmers’ Rights but leaves their implementation entirely up to national governments is a clear example of this. In fact, Article 9.2 of the International Treaty provides that “the responsibility for realizing Farmers’ Rights, as they relate to plant genetic resources for food and agriculture, rests with national governments.” Thus, this provision does not contain an international obligation like that imposed by the 1994 WTO Trade-related Aspects of Intellectual Property Rights (TRIPs) Agreement.
WTO Trade-related Aspects of Intellectual Property Rights (TRIPs) Agreement
The TRIPs Agreement introduced intellectual property rules into the multilateral trading system for the first time by requiring all WTO Members to provide minimum standards of protection for a wide range of intellectual property rights (IPRs). In doing so, TRIPS incorporates provisions from many existing international intellectual property agreements administered by the World Intellectual Property Organization (WIPO). The TRIPs Agreement also introduces a number of new obligations, particularly in relation to geographical indications, patents, plant variety rights, trade secrets, and measures governing how IPRs should be enforced.
The use of genetic resources in modern biotechnology applications has increased their economic, scientific and commercial value for a wide range of stakeholders. Genetic resources can be modified by human intervention and take on characteristics that do not exist in nature. When these modifications result in a new biotechnological invention that is capable of industrial application, the invention may qualify for patent protection. In the field of patent law, the first paragraph of Article 27 of the TRIPs Agreement calls on WTO Members to provide patent protection for both products and processes, and forbids discrimination among different fields of technology – including agriculture. WTO members also agreed that plants, animals and all essentially biological processes for their production may be excluded from patentability. However, if they do so, they shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof (Article 27.3(b) of TRIPs). Therefore, countries are free to choose their own effective sui generis regime for the protection of plant variety rights.
The International Union for the Protection of New Varieties of Plants (UPOV)
The UPOV Convention provides a legislative model, but unlike other relevant IPR instruments such as the Berne and Paris Conventions, it has not been mentioned in the TRIPs Agreement. The result is that Article 27.3(b) provides a certain degree of flexibility to WTO Members in deciding on the most effective sui generis legislation to be adopted. Thus, there are three possible kinds of IP protection for plant varieties: patents, sui generis protection or any combination thereof.
Historically, plant breeders’ rights laws implementing UPOV provided for broad breeders’ exemptions necessary to preserve open access to breeding materials. On the contrary, the research exemption in patent statutes is rather narrow, and when patent and plant variety right protection cover the same subject matter (i.e. the same genetic material), the breeders’ exemption cannot be normally invoked as a defence against the infringement of biotechnological patents. The same applies to the seed saving farmers’ privilege, which normally does not appear in patent legislation (The World Bank 2006). During the last two decades a remarkable shift from open access to patent driven innovation has taken place in the field of agriculture. The extent to which agricultural exemptions to patent rights are applicable to activities carried out by farmers in developing countries is an issue, which is likely to be highly controversial in the trade-related negotiating agenda (Chiarolla 2006).
The Legal Recognition of Farmers’ Varieties and its Potential Role in Sustainable Agricultural Development and Conservation Strategies
Improved returns to investments from conservation, which can be locally captured, are a necessary condition for environmental protection and the efficient coordination of national and international biodiversity conservation efforts. The extent to which existing legislations on plant variety protection can contribute to the conservation of agricultural biodiversity is an issue, which is being discussed in many countries facing the challenges of implementing Article 27.3(b) of the TRIPs Agreement.
The stringent requirements for uniformity and stability in the 1991 UPOV Convention have been identified by the literature as a contributing factor to crop uniformity, potentially leading to loss of on-field biodiversity and eventually greater susceptibility to diseases, especially in agricultural environments which are not easy to control (The Crucible II Group 2001). Generally, plant varieties developed by farmers do not have the level of uniformity and stability that is required to register the variety either as a protected variety under UPOV or as an approved variety in accordance with seed certification and quality control schemes. Especially in countries that have adopted compulsory seed lists, the failure to register farmers’ traditional varieties in such lists results in that the sale of uncertified seeds is, in fact, illegal.
However, farmers who live in harsh environmental conditions may prefer to sow and breed varieties, which are less uniform than the one they could technically obtain according to their breeding capacity. This is precisely because the genetic variability within a population ensures farmers a minimum yield in the absence – or low levels – of external inputs (i.e. water, pesticides, and fertilizers) and variable climate conditions. In the formal seed system, the identification and the legal recognition of farmers’ varieties important for food security can make a significant contribution to the implementation of Farmers’ Rights at the national level.
Moreover, such recognition may exert a considerable positive influence on the development of policies and strategies to promote sustainable agriculture and the conservation of plant genetic resources for food and agriculture at the international level.
UNU-IAS activities related to ITPGRFA and Farmers’ Rights
Over the past year UNU-IAS embarked on a series of activities relating to the ITPGRFA and its implementation. These activities recognize the importance of reflecting local and regional conservation and plant genetic resources issues in achieving global food security and the Millennium Development Goal 1 (MDG 1) on poverty and hunger reduction. UNU-IAS has worked in close cooperation with FAO and the Commission on PGRFA to develop background material on issues of a financial mechanism for implementation of the ITPGRFA (Johnston 2005).
Furthermore with increasing focus on implementation of the ITPGRFA, UNU-IAS has decided to focus on one of the key areas of the Treaty, i.e. the Farmers’ Rights provisions under the Treaty.
UNU-IAS emerging activities for 2006-2007 on the issue involve:
- defining Farmers’ Rights,
- assessing the legal and policy implications of Farmers’ Rights in national regulations, and
- identifying the Intellectual Property Rights (IPRs) links with issues of Breeders’ Rights, biotechnological patents and Access and Benefit-sharing (ABS) provisions under the CBD.
- Support to national actions on implementation of Farmers’ Rights.
- articulate the issue of definitions and legal provisions of Farmers’ Rights,
- build capacities at different levels to realise the Rights,
- assess further implementation options of the Standard Material Transfer Agreement (SMTA) of the Treaty, and
- suggest some lessons learnt for further development of CBD’s International Regime on ABS.
Continuing its focus on lesson learning and sharing from ongoing country level activities on defining and implementing Farmers’ Rights, UNU-IAS participated and provided inputs into a recent international workshop on Farmers’ Rights held in Hanoi, Vietnam. The workshop focused on strengthening the capacity of developing and least developed countries’ policymakers to analyze national options to promote the legal recognition of the rights of farmers to the traditional plant varieties they have developed.
This workshop brought together participants from Egypt, Nepal, Zambia, Malaysia, Norway, India and Vietnam and representatives of the International Plant Genetic Resources Institute (IPGRI), the Food and Agricultural Organization of the United Nations (FAO), the CGIAR Central Advisory Service on Intellectual Property (CAS) as well as the European Seed Federation (ESF). After a general introduction to strategies to promote farmers’ rights, three sessions followed, focusing on how the legal requirements for the identification of farmers’ varieties may help implementing farmers’ rights in the following areas of law: sui generis plant variety protection, access to genetic resources and benefit sharing, seed policies and seed quality control legislations.
The workshop discussions emphasized that the narrow focus on sui generis plant variety protection systems as the only means to implement farmers’ rights may not be appropriate strategy. Furthermore it was suggested that greater attention be paid to national and international developments concerning the harmonization of seed laws, including variety approval systems and seed certification and quality control systems. UNU-IAS will contribute to further development of discussions and will provide inputs as needed to effectively implement such projects in the future.