TITLE: Farmers' privilege
under attack AUTHOR: Genetic Resources Action International
(GRAIN) DATE: June 2003 URL:
http://www.grain.org
GRAIN | June 2003
FARMERS' PRIVILEGE UNDER ATTACK
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.
CUTTING OUT THE COMPETITION
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.[1] 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.[2] 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:
* farmers are prohibited from saving seeds
of certain crops
* only certain farmers (e.g. those
with a specific farm size or income level) can enjoy the
privilege
* farmers have to pay an additional royalty
to the breeder for any seed that they save on the farm
* farmers can save seed, but not exchange it (they can only
grow it on their own farm)
* farmers can save seed and
exchange it, but they can not sell it
* farmer can
save, exchange and sell seeds, but only without using the
name of the variety
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.
A RAW DEAL TURNING ROTTEN
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.[3] Below is a country by country account drawn from that report and from several other government sources.[4]
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.
+ + + + + + +
THE FARMERS' PRIVILEGE AROUND THE WORLD[5]
Question: By law, can farmers save & replant PVP-protected seeds without authorisation from the breeder?
And the answer is...
AFRICA & MIDDLE EAST
BENIN
* only if the seed is from their own harvest
(they didn't get it from another farmer)
* only to
replant it on their own farm (no sharing, exchanging or
selling)
* only if it is not a fruit, tree or
ornamental species
BURKINA FASO
* only if the
seed is from their own harvest (they didn't get it from
another farmer)
* only to replant it on their own farm
(no sharing, exchanging or selling)
* only if it is not
a fruit, tree or ornamental species
CAMEROON
*
only if the seed is from their own harvest (they didn't get
it from another farmer)
* only to replant it on their
own farm (no sharing, exchanging or selling)
* only if
it is not a fruit, tree or ornamental species
CHAD
* only if the seed is from their own harvest (they
didn't get it from another farmer)
* only to replant
it on their own farm (no sharing, exchanging or selling)
* only if it is not a fruit, tree or ornamental species
CENTRAL AFRICAN REPUBLIC
* only if the seed is
from their own harvest (they didn't get it from another
farmer)
* only to replant it on their own farm (no
sharing, exchanging or selling)
* only if it is not a
fruit, tree or ornamental species
CONGO
* only
if the seed is from their own harvest (they didn't get it
from another farmer)
* only to replant it on their own
farm (no sharing, exchanging or selling)
* only if it
is not a fruit, tree or ornamental species
COTE
D'IVOIRE
* only if the seed is from their own harvest
(they didn't get it from another farmer)
* only to
replant it on their own farm (no sharing, exchanging or
selling)
* only if it is not a fruit, tree or
ornamental species
EGYPT
* only if the seed is
from their own harvest (e.g. they didn't get it from
another farmer)
* only to replant it on their own farm
(no sharing, exchanging or selling)
EQUATORIAL
GUINEA
* only if the seed is from their own harvest
(they didn't get it from another farmer)
* only to
replant it on their own farm (no sharing, exchanging or
selling)
* only if it is not a fruit, tree or
ornamental species
GABON
* only if the seed is
from their own harvest (they didn't get it from another
farmer)
* only to replant it on their own farm (no
sharing, exchanging or selling)
* only if it is not a
fruit, tree or ornamental species
GUINEA
* only
if the seed is from their own harvest (they didn't get it
from another farmer)
* only to replant it on their own
farm (no sharing, exchanging or selling)
* only if it
is not a fruit, tree or ornamental species
GUINEA-BISSAU
* only if the seed is from their own
harvest (they didn't get it from another farmer)
*
only to replant it on their own farm (no sharing, exchanging
or selling)
* only if it is not a fruit, tree or
ornamental species
JORDAN
* NO. "The farmers
shall be prohibited to use in their lands the harvest's
product they have obtained by planting a protected variety
or any [essentially derived] variety."
MALI
*
only if the seed is from their own harvest (they didn't get
it from another farmer)
* only to replant it on their
own farm (no sharing, exchanging or selling)
* only if
it is not a fruit, tree or ornamental species
MAURITANIA
MOROCCO
NIGER
SENEGAL
SOUTH
AFRICA
TOGO
ASIA
CHINA
HONG KONG, CHINA
INDIA
KOREA,
SOUTH
PHILIPPINES
TAIWAN
THAILAND
VIET NAM
LATIN AMERICA & CARIBBEAN
ARGENTINA
BOLIVIA
BRAZIL
CHILE
COLOMBIA
ECUADOR
NICARAGUA
PANAMA
PERU
TRINIDAD &
TOBAGO
URUGUAY
VENEZUELA
INDUSTRIALISED COUNTRIES
AUSTRALIA
CANADA
CZECH
REPUBLIC
ESTONIA
EUROPEAN UNION
JAPAN
KYRGYZSTAN
LITHUANIA
POLAND
SLOVAKIA
SLOVENIA
UNITED STATES
NOTES:
1. Lather Venkatraman, "Hike
research spend in seed technology: Rabobank report", Hindu
Business Line, Mumbai, 25 March 2002.
2. See, for example, Alvaro
Toledo, "Saving the seed: Europe's challenge", Seedling,
GRAIN, Barcelona, April 2002.
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
grain(at)grain.org.
* only if the seed is from their own harvest
(they didn't get it from another farmer)
* only to
replant it on their own farm (no sharing, exchanging or
selling)
* only if the seed
is from their own harvest (they didn't get it from another
farmer)
* only to replant it on their own farm (no
sharing, exchanging or selling)
* only if it is not a
fruit or ornamental species
* only if the
seed is from their own harvest (they didn't get it from
another farmer)
* only to replant it on their own farm
(no sharing, exchanging or selling)
* only if it is not
a fruit, tree or ornamental species
*
only if the seed is from their own harvest (they didn't get
it from another farmer)
* only to replant it on their
own farm (no sharing, exchanging or selling)
* only if
it is not a fruit, tree or ornamental species
* only if the only if the original seed was
legally acquired (i.e. from a source authorised by the
breeder)
* only if the farm-saved seed is resown on the
farmer's own land (no sharing, exchange or selling)
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.
*
only if the seed is from their own harvest (they didn't get
it from another farmer)
* only to replant it on their
own farm (no sharing, exchanging or selling)
* only if
it is not a fruit, tree or ornamental species
* only if the seed is from
their own harvest (they didn't get it from another
farmer)
* only to replant it on their own farm (no
sharing, exchanging or selling)
* only with those crops expressly subject to such an
exemption
* only if the original seed was legitimately
acquired
* only for use on the farmers' own holding
* only without packaging and selling the
farm-saved seed as a protected variety
* only if the seed is from their own harvest
(they didn't get it from another farmer)
* only to
replant it on their own farm (no sharing, exchanging or
selling)
* only up the amount of seed needed to replant
own farm
* only for and among small
farmers
* depending on the nature of the plant
*
any exchange or sale must be for reproduction or replanting
on own land
* selling the variety under the trade mark
or name associated with it is expressly prohibited
*
subject to further conditions and guidelines still to be
issued
* NO.
NB: The government may
introduce some form of farmers' privilege in the next
revision of the law.
* only if the
seed is from their own harvest (they didn't get it from
another farmer)
* only to replant it on their own farm
(no sharing, exchanging or selling)
* if the variety is
published as a "promoted" plant variety, then its
"cultivation or propagation by a farmer may be made in the
quantity not exceeding three times the quantity obtained"
* only without selling the farm-saved
seed
* only if the seed is from their own harvest
(they didn't get it from another farmer)
* only for
replanting on their own farm (no sharing, exchanging,
selling)
* only if the crop is neither a fruit species
nor an ornamental plant
* only if it is
for their own use (no sharing, exchanging, selling)
*
only if it is not a fruit, ornamental or forest species
* only for farmers with a landholding of 200 ha or less
under cultivation, of which a maximum allowance per crop
within that area is as follows: 100 ha for soybean, wheat,
maize, sorghum, sunflower or cotton; 50 ha for rice; 20 ha
for all other crops
* only small
farmers
* no exchange of seeds except if it's on a
non-commercial basis with other small farmers
* not if
it's sugar cane
* only if the variety was
legally acquired (i.e. a royalty was paid)
* only to
replant it on their own farm (publicising, exchanging or
selling farm-saved seed as seed is expressly
prohibited)
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.
*
only if it is for their own use (no sharing, exchanging,
selling)
* only if it is not a fruit, ornamental or
forest species
* only if it is for
their own use (no sharing, exchanging, selling)
* only
if it is not a fruit, ornamental or forest species
* only if it is for their own use (no
sharing, exchanging, selling)
* only if
the variety was legally acquired
* only to replant it
on their own farm (marketing, selling or any transfer of
the material as seed or as propagating material is expressly
prohibited)
* only if it is for their own
use (no sharing, exchanging, selling)
* only if it is
not a fruit, ornamental or forest species
* not for commercial marketing or sale
* only if the seed was legally acquired (i.e.
royalties were paid to the breeder)
* only if the seed
is resown on land under the property title of the farmer
* only if the seed is kept segregated from other seed at
all stages (harvest, cleaning, conditioning, etc.)
*
the free exchange and the commercialisation of farm-saved
seed is expressly prohibited
* any volume of seed
retained on the farm that appears unreasonably large given
the size of the farm serves as basis for presumed infraction
of the law
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.
* only if it is for their own use (no sharing, exchanging,
selling)
* only if it is not a fruit, ornamental or
forest species
* only for replanting on their farm (no
sharing, exchange or selling)
* only if the crop is not
on the list of crops for which there is no farmers'
privilege
* in some cases, the breeder can require
payment of fee
* only if the seed is
from their own harvest (they didn't get it from another
farmer)
* only to replant it on their own farm (no
sharing, exchanging or selling)
NB: The government is
planning to require farmers to pay for the privilege (i.e.
imposing royalty payments on farm-saved seed).
* only if the seed is from their own harvest
(they didn't get it from another farmer) wherein they own,
lease or sublease the land on which it was produced
*
not in the case of hybrid or synthetic varieties
*
strictly maintaining the identity of the variety
*
small growers do not have to pay the breeder an additional
fee to use their farm-saved seed, but other farmers do
(around 50% of the normal royalty)
*
only if the seed is from their own harvest (they didn't get
it from another farmer)
* only to replant it on their
own farm (no sharing, exchanging or selling)
* a
license fee has to be paid if the farmer grows a new crop
from the farm-saved seed on a land area greater than 10 ha
* only with the following crops:
chickpea milkvetch, yellow lupin, lucerne, field pea,
Berseem/Egyptian clover, Persian clover, field bean, common
vetch, oats, barley, rice, Canarygrass, rye, triticale,
wheat, durum wheat, spelt wheat, potatoes, Swede rape,
turnip rape, linseed with the exclusion of flax, and, in
the case of Portugal, Italian rye-grass
* small farmers
are not required to pay any fee to the breeder when re-using
the seed; all other farmers have to pay
* only if the original seed was legitimately obtained
*
only to be resown on the farmer's own holding (no sharing,
exchanging or selling)
* not for crops that are
vegetatively propagated and on a list of species for which
this privilege is expressly prohibited (as of 1999, this
list included 23 species)
* not when a contract
prescribes otherwise
* only if the
seed is from their own harvest (they didn't get it from
another farmer)
* only to replant it on their own farm
(no sharing, exchanging or selling)
* only within two
years time
* depending on the crop (a list is
determined by the government)
* only
if the seed is from their own harvest (they didn't get it
from another farmer)
* only to replant it on their own
farm (no sharing, exchanging or selling)
* small
farmers may be exempt from payment of fee to the breeder
* only if the seed is from their own
harvest (they didn't get it from another farmer)
*
only to replant it on their own farm (no sharing, exchanging
or selling)
* limited to two hectares of agricultural
varieties
* only for 14 species
*
NO. The breeder's explicit and written consent is required
under all circumstances, including with regard to "derived
varieties" of the protected one and "certain other
varieties"
* only if the seed is from
their own harvest (they didn't get it from another
farmer)
* only to replant it on their own farm (no
sharing, exchanging or selling)
* only for certain
crops
* small farmers do not have to pay for this
privilege, but all others must
*
only if the original seed was legitimately obtained
*
only if the seed is from their own harvest (they didn't get
it from another farmer)
* only to be resown on the
farmer's own holding (no sharing, exchanging or selling)
http://www.blonnet.com/bline/2002/03/25/stories/20020325002
40700.htm
http://www.grain.org/seedling/seed-02-04-2-en.cfm