Farmer's privilege under attack
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”. This a terrible misnomer. Saving seeds is as natural and essential
as eating – that's how we are able to produce crops. 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.
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. 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 and 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 PVP 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:
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farmers are prohibited from saving seeds of certain crops |
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only certain farmers (e.g. those with a specific farm size or income level) can enjoy the privilege |
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farmers have to pay an additional royalty to the breeder for any seed that they save on the farm |
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farmers can save seed, but not exchange it (they can only grow it on their own farm) |
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farmers can save seed and exchange it, but they can not sell it |
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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 WTO 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. To see a country by country account drawn from
that report and from several other government sources, go to
www.grain.org/publications/ bio-ipr-fp-june-2003-en.cfm
The result is sobering, to say the least. In 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 farmers. So PVP laws, and their imposition on
virtually all countries through the WTO, really serve as a springboard towards
accepting full-fledged industrial patents on all forms of life.
Reference for this article: GRAIN, 2003, Farmer's privilege under attack, Seedling, July 2003, GRAIN
Website link: www.grain.org/seedling/seed-03-07-6-en.cfm
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