AUTHOR: Genetic Resources Action International (GRAIN)
Intellectual property rights (IPR) applied to seeds give breeders, or whoever claims to have discovered or developed a new plant variety, an exclusive monopoly right in relation to the seed. Under patent law, that monopoly right is very strong. It will generally prevent anyone from using, selling or producing the seed without the patent holder's permission. Under a typical sui generis plant variety protection law -- an IPR system designed specifically for plant varieties -- there are usually a few exceptions to this powerful right built in. One of those exceptions is that farmers may be allowed to save, exchange, sell or reuse part of their harvest as a new batch of seed.
The legal ability to reuse IPR-protected seed is called the "farmers' privilege". On the face of it, this a terrible misnomer. Saving seeds is as natural and essential as eating. That's how we are able to produce crops: by gathering seeds, or other plant parts like tubers, from mature plants and growing them. Under plant variety protection (PVP) law, this totally ordinary act becomes a privilege, a legal exception. The breeders are granted the rights, while farmers are allowed to do something despite that right -- and only under certain conditions. Breach those conditions and you breach the breeder's rights, for which you have to pay economic or legal consequences. That's why it is wrong to look at this privilege as a right in itself.
The farmers' privilege is a hot issue because the seed industry wants to control who produces seeds -- they want to control the market. According to Rabobank International, current world seed sales of US$30 billion a year should jump to US$90 billion soon. But a substantial part of world food production is based on farm-saved seed -- as much as 90% in sub-Saharan Africa or 70% in India. Even in industrialised countries, farmers also save seed rather than buy a fresh batch, if it makes sense for them and they can. So there's still a sizeable market out there for the industry to get a grip on.
It's also a hot issue because the seed industry is working hard to secure legal systems that restrict seed saving by farmers, be it through the World Trade Organisation (WTO), bilateral trade agreements or direct lobbying of governments. PVP or plant breeders' rights legislation is all about taking power away from farmers to produce and reproduce seeds. And these laws are gaining ground.
Governments caving in to the pressure often say, "Don't worry, we will protect the rights of the farmers at all cost!" They swear that nothing will prevent farmers from continuing their "traditional" and "historic" practice of conserving, exchanging and further developing seeds. And so they write into their law this "farmers' privilege". Yet the fact is, the farmers' privilege is a legal "yes, but" on seed saving -- with the "but" getting bigger by the day.
Country after country that has established a plant variety protection law has progressively made the farmers' exception more and more restricted. To the point that it becomes meaningless. Why? Because the breeders keep asking for stronger and stronger rights. Tightening the loophole that allows farmers to save seeds is the easiest way to give more power to the breeders.
Restrictions on the farmers' privilege in PVP law come in several forms, often combined in one mixture or another:
In addition, governments are increasingly telling farmers that, as part of this privilege, they have to provide accounts to the breeders about what seed they saved. This is to better enforce the restrictions. Governments are also debating whether to let the seed industry circumvent the farmers' privilege through sales contracts -- in other words, allow companies to impose specific restrictions on saving seeds, printed on the bag, despite whatever the PVP law says.
What is the purpose of all this cracking down on farmers? "To finance research!" the industry proclaims. Not quite. It's to control the market, the competition, full stop.
If this seems like a total injustice, it is. But it is very real and it is important not to be fooled by glittery promises of protection for farmers' rights under sui generis plant variety laws.
The World Trade Organisation recently published an update of where countries are in implementing its agreement on Trade-Related Aspects of Intellectual Property Rights, including the question of the farmers' privilege. Below is a country by country account drawn from that report and from several other government sources.
The result is sobering, to say the least. Country after country, the historic and supposedly untouchable right of farmers to save and reuse seeds is under attack. But this is not where the story ends -- it is where it starts. Intellectual property rights for plant breeders, once adopted, are always being strengthened at the expense of the farmers. It is in that sense that PVP laws, and their imposition on virtually all countries through the WTO, really serve as a jumping board towards accepting full-fledged industrial patents on all forms of life.
Question: By law, can farmers save & replant PVP-protected seeds without authorisation from the breeder?
And the answer is...
CENTRAL AFRICAN REPUBLIC
NB: The government is working to change this situation. It wants to remove the farmers' privilege from the Plant Breeder's Rights Act and introduce a clause into the Seed Act saying that farmers may not save any seed from any plant variety that is either subject to IPR (any kind of IPR) or registered as certified seed.
HONG KONG, CHINA
NB: The government may introduce some form of farmers' privilege in the next revision of the law.
NB: The government has prepared an amendment to the plant breeders' rights law which will introduce new limitations on the farmer's privilege. It is awaiting signature of the President.
TRINIDAD & TOBAGO
NB: The government recently established that breeders may not oblige farmers, through sales contracts, to pay an additional fees when they save seed -- which is what breeders have been trying to do.
NB: The government is planning to require farmers to pay for the privilege (i.e. imposing royalty payments on farm-saved seed).
1. Lather Venkatraman, "Hike research spend in seed technology: Rabobank report", Hindu Business Line, Mumbai, 25 March 2002. http://www.blonnet.com/bline/2002/03/25/stories/2002032500240700.htm
2. See, for example, Alvaro Toledo, "Saving the seed: Europe's challenge", Seedling, GRAIN, Barcelona, April 2002. http://www.grain.org/seedling/seed-02-04-2-en.cfm
3. WTO Council for TRIPS, "Review of the Provisions of Article 27.3(b): Illustrative List of Questions", IP/C/W/273/Rev.1, Geneva, 18 February 2003, 56 pp.
4. GRAIN consulted plant variety protection laws or other government sources, as available from government websites, for this account. What is reflected is currently approved legislation, whether or not the provisions are being implemented yet. So, for example, the situation in the member states of the African Organisation for Intellectual Property (OAPI) is exposed, even though the PVP chapter of the revised Bangui Agreement has not yet been put into force.
5. This list is incomplete. GRAIN would appreciate any additions or comments people have to share. Please contact us at mailto:email@example.com.
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