CURRENT CHALLENGES TO FARMERS’ RIGHTS

Suman Sahai[1] & Carly Nichols[2]

In 1986, in the Uruguay Round of trade negotiations under the General Agreement on Trade and Tariffs (GATT), the developed countries, led by the U.S., first demanded that an international standard for plant variety protection be imposed on all member countries. When GATT gave way to the WTO in 1995, member countries were obliged to comply with the agreement on Trade-Related Intellectual Property Rights (TRIPS). TRIPS covered many aspects of intellectual property rights (IPRs). Article 27.3 (b) dealt with the protection of plant varieties. This offered three options for the protection of plant varieties. Protection would have to be granted by either (a) a patent; (b) an effective sui generis system or; (c) by a combination of the two. India chose to protect its plant varieties with a sui generis legislation.

FARMERS RIGHTS IN THE INDIAN SUI GENERIS LEGISLATION

India’s sui generis law for the protection of plant varieties recognizes the farmer not just as a cultivator but also as a conserver of the agricultural gene pool and a breeder who has bred several successful varieties. The Protection of Plant Varieties and Farmers Rights (PPV-FR) Act, 2001, makes provisions for such farmers’ varieties to be registered, with the help of others, so that they are protected against being scavenged by formal sector breeders. The most significant feature of the Indian legislation is the right granted to farmers to save and sell seed of varieties covered by breeder’s rights but only as generic seed for local use by other farmers.

CHALLENGE TO FARMERS RIGHTS FROM INDIA

The first challenge to India’s unique system of Farmers’ Rights came from officials in the Agriculture Ministry of the Indian Government itself. Senior scientists of the Indian Council of Agricultural Research system and top bureaucrats of the Agriculture Ministry were the principal opponents of full fledged rights for farmers, especially the farmers' right to sell seed. Less than a year after the PPV-FR legislation was enacted, the Agriculture Ministry moved an application seeking accession to UPOV under the terms of the UPOV Convention of 1978.  

The International Union for the Protection of New Varieties of Plants (UPOV) is an inter-governmental organization which seeks to support and strengthen Breeders’ Rights. The UPOV system grants one right, the breeders’ right. There is no farmers’ right in UPOV. By applying for UPOV membership, the Agriculture Ministry struck the first blow against Farmers’ Rights. It sought to undermine the comprehensive rights granted to farmers of the country after a long struggle by civil society and the intervention of two Parliamentary Committees, a process that took place over the tenures of three national governments.

CHALLENGE FROM THE SEED INDUSTRY- THE SEEDS BILL

It is no secret that the seed industry has been deeply unhappy with the PPV-FR Act and the rights granted to farmers. Not only has it pushed for UPOV membership, a move that would seriously undermine Farmers Rights, it also countered with the Seeds Bill, a draft legislation which bears its imprint. Given below are the key features where the Seeds Bill has tried to undermine the rights of farmers.

Key Differences between the Seeds Bill and the PPV-FR Act

	PPV-FR Act	Seeds Bill
Parentage of Variety	Requires details of pedigree	Does not require declaration of parentage
Pre-Grant Opposition	Allows legitimate opposition to grant of registration of new variety by allowing people to raise objections to the grant.	No provision for pre-grant opposition
Price Control	Regulation of seed supply and seed price to be managed through compulsory licensing	No mechanism to regulate seed supply or seed price
Compensation for Poor Quality Seed	Provisions ensure farmers are compensated for poor quality seeds	Ambiguous “Compensation Committee” is proposed to deal with compensation
Period of Protection	15 years for crop varieties and 18 years for trees	30 years for crop varieties and 36 years for trees

CHALLENGES AT THE INTERNATIONAL LEVEL

The global seed industry has orchestrated its attacks on Farmers’ Rights in assorted forums, taking recourse to a strategy of “forum shifting” where it strikes at several levels of governance with objections to Farmers’ Rights at different venues. This strategy is an attempt to try and exhaust the resources of developing countries, forcing them to acquiesce and accept a UPOV style PVP regime. Bilateral Free Trade Agreements (FTA) and the UN have become platforms where the seed industry and developed countries organize their attack on Farmers Rights.         

BILATERAL TRADE AGREEMENTS

The use of FTAs has proliferated in recent years after the breakdown of the Doha Round of trade negotiations at the WTO.  The prevalent trend is developed countries asking for ‘TRIPS-plus’ protection, thus undermining Farmers’ Rights. India is currently negotiating several FTAs, most notably with the European Union (EU) and the European Free Trade Association (EFTA).

EU-India FTA

The EU-India FTA negotiations began in 2007 with the EU seeking UPOV 1991 standards for the protection of plant varieties. The 1991 UPOV treaty does not allow the grant of Farmers Rights. There is a reference to an exception for plant back rights (self saved seed) but this falls significantly short of the Farmers’ Rights in Indian law. 

EFTA-India FTA

Starting in January 2008, the EFTA countries are also demanding TRIPS plus conditions in their Free Trade Agreement with India. In March 2009, Norway, a country with a liberal position in TRIPs, stated its opposition to TRIPS plus provisions and “withdrew” from negotiations on IPRs. However, the EFTA negotiations continue despite this and Norway has kept the option of signing the text negotiated between the three other EFTA countries (Switzerland, Iceland, and Liechtenstein) and India. 

The FTAs under negotiation present a direct challenge to the PPV-FR Act and its Farmers’ Rights provisions but these are not the only forums from where such challenges are being mounted. There has been increasing pressure coming from the International Seed Federation (ISF) to force a move towards accession to UPOV 1991.  This pressure is intended for the developing world as a whole, but India is a special target since with its unique PPV-FR legislation it is the only to nation to have enacted a PVP platform which deviates from UPOV.

CHALLENGES AT THE UN -- ISF ATTACKS

In recent years the seed industry, represented by the International Seed Federation (ISF), has begun a concerted attack on Farmers’ Rights.  The ISF was founded in 2002 by merging the International Seed Trade Federation (FIS) and the International Association of Plant Breeders for the Protection of Plant Varieties (ASSINSEL). The ISF has a reputation for its aggressive tactics and wide influence on policy. In 2009 Neils Louwaars of the Centre for Genetic Research, Wageningen University noted this, stating, “ISF has significant impact on policymakers both at the international level and on national agricultural and trade policies, including IPR and seed regulations”.  Recently, the ISF has taken the unusual step of approaching the UN Secretary-General, attacking Farmers’ Rights and advocating for internationally strengthened IPR regimes for seed.

The ISF has spent the past ten years lobbying to obtain strong IPRs on seed and defending the need to have Genetic Use Restriction Technologies (GURTs), a technology which renders the seed sterile after the first sowing. ISF lobbies strongly to promote a 1991 UPOV-style Plant Breeders’ Right as the only acceptable sui generis system under TRIPs 27.3(b).  In a 2009 position paper the ISF states,

“If a country envisages the adoption of a sui generis system to protect plant varieties, the ISF recommends that this has at least to conform to the requirements of the 1991 Act of the UPOV Convention” and “ISF members consider that any national legislation authorizing farm saved seed …without safeguarding the legitimate interest of the breeders…would not be an effective sui generis system in the meaning of the article 27.3.b of the TRIP’s agreement.

These statements counter the provisions of the WTO-TRIPS on sui generis protection. In fact, in the Uruguay GATT Round negotiations, despite strenuous efforts by UPOV, member countries declined to accept UPOV as the sui generis model in 27.3(b) of TRIPs,

The Indian sui generis legislation is an obvious target of the ISF attack. The Indian law goes further than any other in the world in granting rights to farmers in diverse ways. India’s sui generis legislation was submitted to the TRIPs Council following the enactment of the PPV-FR Act in 2001, where it has been accepted as the country’s TRIPs compliant law.

The ISF has also been active in promoting the use of GURTS, popularly known as ‘terminator technology’. In a 2003 position paper they stated, “where effective intellectual property protection systems don't exist  or  are  not  enforced,  GURTs  could  be  an  interesting  technical  alternative  to  stimulate plant-breeding  activities.”

Since 2009 the ISF has stepped up its attack on Farmers’ Rights, putting out two communiqués.  The first was a standard press release, the second was a letter addressed to the UN Secretary General Mr. Ban Ki-moon. This move is noteworthy since ISF has essentially asked the UN to step in to undo the decisions taken at the WTO.

In its October 2009 press release titled, “Farmers’ Rights”, ISF reiterated the global seed industry’s position that the minimum standard for an “effective sui generis system” as required by TRIPS 27.3(b) should be the 1991 UPOV Convention. In other words, the flexibility provided by WTO/TRIPs to member countries to craft their own kind of sui generis protection system should be rescinded.  According to ISF, national governments can decide to provide some exceptions to farmers to use farm-saved seed provided that it is, “within reasonable limits and safeguarding the legitimate interests of the rights holder”.

Under no circumstance would farmers be allowed to exchange or sell such propagating material under this system, or reuse it themselves without paying a fee to the breeder.  ISF makes its position clear in its statement:

“Farmers are the primary market for new varieties developed and protected by commercial plant breeders. Free and unlimited use of farm saved seed that is harvested from protected varieties developed by plant breeders destroys the economic incentive to those breeders….If farm saved seed of protected varieties is permitted and used, breeders should receive a fair remuneration for that use”.

Following up on this, in December 2009 the ISF sent a letter to the UN Secretary-General arguing that Farmers’ Rights were unnecessary and an impediment to the objectives of commercial plant breeders.  The letter was a response to a report by Olivier De Schutter, the UN’s Special Rapporteur on the Right to Food, titled “Seed Policies and the Right to Food: Enhancing Agrobiodiversity and Encouraging Innovation”. The report, released in July 2009, is clearly supportive of Farmers Rights, stating “One means to restore an adequate balance between the rights of plant breeders and the needs of farmers is by strengthening the protection of farmers’ rights under domestic and international law”.

The UN Special Reporter’s report reiterates the fact that Farmers’ Rights play an indispensable role in ensuring food security and states that national policy must promote Farmer’s Rights, including the right to replant, exchange, and sell seeds amongst informal networks of farmers.

The ISF letter to the UN Secretary General states that commercial breeding is the way of the future in agricultural R&D, dismissing the immeasurable gains which have been achieved by farmers’ conservation and selection efforts.  It also goes on to rebut, point for point, De Schutters’ report and argues against the underlying tenets of Farmers’ Rights:

• It is not correct that professional plant breeders and biotechnology developers, through the tools of intellectual property, are causing the poorest farmers to become increasingly dependent on expensive inputs. On the contrary, farmers can not only freely continue to multiply and use their own traditional seeds they can also breed new varieties using purchased varieties as an additional source of genetic diversity. And since any purchase of seeds is a choice made by the farmer then they will only do so if those purchases are beneficial to them.

• It is not correct that seed industry research seeks to satisfy the needs of farmers in industrialized countries while neglecting those of poor farmers in developing countries. There are many examples where private led research from the private sectors in developing countries is being deployed to provide better varieties for the poorest farmers of the world.

• It is not correct that farmers’ seed systems, which are a source of economic independence and resilience in the face of threats such as pests, diseases, or climate change, may be put in jeopardy.  On the contrary, professional plant breeders and biotechnology developers, both public and private, are the source of the most dramatic advances to challenge pests and diseases. It is a well known fact that modern varieties perform significantly better, also in input poor environments.

• It is not correct that plant breeders’ rights are blocking or delaying access to much needed research tools and plant material. Much the opposite in fact since commercially available varieties protected by Plant Breeders Rights are the only genetic resources freely available for further breeding during their life of protection.

• It is not correct that compulsory licensing is an adequate or indeed an effective mechanism to overcome barriers to research on patented material…ISF is not generally in favor of compulsory licensing.

• ISF does not share the view that progress in agriculture and breeding is slowed by the current IP systems.  ISF holds that the current combination of PVP, patents, and voluntary licenses is contributing to increasing the rate of progress in agricultural productivity through plant breeding.

• It is not correct to state that contractual clauses should be prohibited. In those countries where enforcement possibilities on IP are limited, contractual clauses may be the only remedy against infringement.

Continuing its tirade against Farmers’ Rights and its demand for imposing UPOV 1991 provisions; ISF once again repeated its position at the Second International Seed Trade Conference held in Istanbul, Turkey in October 2010. A former ISF president Jean-Louis Duval called for 1991 UPOV protection and a strict interpretation of the “farmers’ privilege” in the 1991 Convention: According to Duval's presentation, “ISF is committed to take actions to strengthen the 1991 Act of the UPOV 1991 Convention by striving for: a strict interpretation of the exceptions to the breeders’ rights in the 1991 Convention…and ratification of the UPOV 1991 Act by all UPOV members”.

THE WAY AHEAD

A new and concerted attack on Farmers’ Rights has been launched by the seed industry. This must be challenged with determination by a united front of all developing countries, invoking the TRIPS agreement and insisting on at least retaining the flexibilities granted in it for the protection of plant varieties if not pushing for more comprehensive rights for farmers. TRIPS Plus provisions must be rejected.

Having produced the most progressive legislation on Farmers Rights so far, India has a special responsibility to counter the aggressive attacks of the seed industry on Farmers’ Rights. As the only country that has granted legal rights to farmers in its sui generis legislation, India must take the lead to ensure that Farmers Rights are strengthened, not weakened, over time and that strong farmer rights are adopted by countries across the globe. India should be proactive in working with other developing countries to secure the rights of farmers over their resources and their innovations and make this an internationally enforced obligation.

The significance of enforcing Farmers’ Rights in order to ensure food security has been recognized by a range of important international players. The International Assessment of Agricultural Knowledge, Science, and Technology for Development (IAASTD) Report has stated that local seed systems are very important to goals ranging from reduced hunger and better nutrition to economic development. The International Treaty on Plant Genetic Resources for Food and Agriculture (IT-PGRFA) recognizes Farmers’ Rights and urges countries to implement national laws to advance Farmers’ Rights.

Above all, for developing countries it is important to bear in mind that strong Farmers’ Rights keep the farming community viable and self reliant in the matter of seed which translates into not just food security but also food sovereignty.

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[1] Chairperson, Gene Campaign

[2] Intern, Gene Campaign