Protecting and promoting farmers' seeds in Europe: Italy's experience with regional laws

An interview with Antonio Onorati *

GRAIN

In Italy, eight of the 18 administrative regions have adopted their own laws on local genetic resources since 1997. They generally aim to protect and promote traditional plant varieties and animal breeds in local farming systems as a heritage of the region. Since 2000, when the regional law of Latium was adopted, they also establish collective rights over the local genetic heritage. Below is an interview with Antonio Onorati, President of the Italian development NGO Crocevia, who has been very much involved in this movement.
(Click here to view extracts of the interview which focuses on the experience with collective rights in Italy and strategy ideas for protecting farmers' seeds in Europe.)

GRAIN: A number of regions in Italy have adopted what seem to be creative laws to protect and promote farmers' seeds and animal breeds.[2] Can you give us an overview?

ONORATI: In Italy, eight of the 18 Regional Governments have adopted their own laws on local genetic resources. The pioneer was Tuscany, back in 1997. This was followed by Lazio (in 2000), Abruzzo , Molise, Umbria, Trentino Alto Adige, Friuli-Venezia Giulia and Marche. Tuscany just revised its law in November 2004, so that's the latest. (See table below for full listing.)

Basically, a movement was initiated around 1995 to take control of two things at once. On the one hand, people started organising at the local level to get a legal and logistical framework in place to recuperate, conserve and promote their genetic heritage in food and farming. On the other hand, they felt the need to block the introduction of GMOs. The first laws were very inspired by the conservation approach. With Latium, we brought in, for the first time, the legal framework of collective rights over genetic resources. And starting with Trentino - Alto Adige, regions also started building in defences against GM contamination. All of these laws have been notified to Brussels. That means the EU is fully aware of them and has never contested them. The Italian seed law of 2001 has also been notified to Brussels and has never been contested either.

So there was an early and experimental period from 1995-2000. During that period, the EU member states debated and adopted the 98/95/EC Directive[3] which opened up the possibility of separate rules, under the Community's seed marketing legislation, for "conservation varieties", a separate list for traditional varieties. (In Italy, we still call the seed "catalogue" the seed "list", like in the old days.) It also opened the space to treat GM varieties differently. We knew this was coming so we were able to anticipate Italy's application of the Directive through the regional laws. In a sense, you could say that it's been the regions driving the national legislative process in Italy, not the other way around.

In 2001, Italy's Minister of Agriculture issued a new Seed Law that gave a frame to this movement at the national level.[4] It transposed the EU Directive 98/95/EC into national law with some barriers against GMO seed and opening to “conservation varieties”. And then from 2001-2002, a new wave of laws came in which were a bit more sophisticated. The discussion had avanced and people started making the link to denominations of origin -- DOP, DOC and IGP as we call them.[5] That is, geographical indicators. They made the link. They linked the abstract notion of "terroir"[6] with its possible use to get denominations of origin in place. Right now, this is a very widespread thing in Italy. There are a lot of denominations of origin which refer to local varieties.

But without a framework law at the national level which says that local varieties, ecotypes and so on are to be considered, through registration on a list, as a recognised legal reference, then every DOP and DOC in Italy referring to a traditional variety can be rejected by the European Union. And for a good reason, really. You can't use the term "Chioggia Radish" because it's registered as an industrial variety in the national catalogue. And you can't say, "But I mean the 'Chioggia Radish 'ecotype" because formally speaking, by law, that doesn 't exist. If you don't have a biodiversity conservation framework and there's no national law recognising a separate list for non-industrial farmer varieties where you can register the "Chioggia Radish" ecotype, then you have no legal reference. We learned this clearly in Veneto. Under European and Italian law, you cannot use the name of a variety registered in the national industrial seed catologue neither as a trademark nor as a geographical indicator. Besides, normally such a variety has plant breeders ' rights on it and the breeder would never let you use the name in reference to a traditional ancestor, which is exactly what happened. And you can't just invent the notion of an ecotype, because it doesn 't exist in the law. Three times we 've gone through this, where a geographical indicator on a local variety was accepted by the Italian Ministry but rejected by Brussels.

Are all the products in Italy with a denomination of origin referring to traditional varieties really derived from traditional varieties?

Most of them. You have to look at two sides: what happens formally and what happens despite the law. From a formal perspective, most of what you see is legitimate. Of course, Latium and Tuscany, which have developed their own varietal characterisation systems, they can defend themselves very well on this matter. But I 'm sure that Brussels can say at any moment, "Since your regional laws only have a regional significance, while the DOP and DOC have a European significance, where is the law at the national level that establishes the link?" It's true. I can make my "Onorati Cheese" but we 're talking about 15 goats. That means 15 litres of milk a day, maybe 10 tonnes a year, that's all. As long as you can't register the local goat breed nationally, you can't use the name.

This is the big battle in Italy right now: to get a national law in place that recognises farmer breeds and seeds. We 've done it in the regions, and now we need a national framework to back it up. A number of groups have just submitted a concerted proposal to the Minister of Agriculture on this.

 FARMER-SEED MARKETS | OK. FARMER-SEED INDUSTRY, NO.

And how do these laws relate to the current opening, so to speak, in Brussels to allow the commercialisation of farmer seeds?

This is covered in most of the laws and we don't have a big problem with this issue. Even the Italian Seed Industry Association and the Seed Bureau within the Ministry of Agriculture are in agreement on this. The Ministry says "We have no need to intervene and stop the commercialisation of traditional seeds as long as these transactions never involve any kind of fiscal document." In other words, you can exchange all the materials you want (I give you a kilo of beans and you give me a lamb) be it at the farmer-to-farmer level or within a group of producers. For example, any association of organic farmers can swap seeds among its members as an "internal service" to the association. Most organic groups are not doing that, but this is going on among farmers.

So it really doesn 't make much sense to say "Let's liberalise the seed trade in Italy!" If it's farmer-to-farmer, we can do it now, we need no authorisation from the government. If, however, you want to open up a commercial market for industrial type of “farmer seeds”, then you clearly have to talk about creating a farmer seed industry. That's different. And there, we will lose.

But the legislation in Brussels says that all seeds marketed in the European Union have to be certified and registered on a national catalogue.

 No. What is seed marketing under European law? There's a broad definition that has to be transcribed into national law.[7] Italy's interpretation of this Directive is that seed marketing involves a fiscal document, a receipt. I cannot sell you 50 kilos of traditional durum wheat seed and give you a receipt for it. But I can go to my neighbour's house, get 50 kilos of durum wheat seed and give him two of my lambs. That's perfectly legal. I pay him with lambs, or I pay him under the table, or I give him seeds back from what I harvest. In Italy, you can do that, people are doing that and no one has been stopped from doing it. I understand that at the European level a lot of people are saying "Oh, the small farmers! they're banned from exchanging seeds!" In Italy, that makes no sense. It's a bit like terrorism against GMOs. Everyone is saying, "GMOs, don't eat them or you 'll get sick!" That's not the issue.

But in Italy's seed law of 2001, it says that marketing includes the movement of seeds "with or without compensation". That's what the EU Directive says. And that means non-commercial exchange. So the Member States can prohibit non-commercial exchange.

Can prohibit, yes. That's different. In France, it's prohibited. But that doesn 't change the general rule that can be applied in the different Member States. What we should be saying within the movement in Europe, to be more clear, is that States should not prohibit.

The question we really need to confront seriously is not who does farmer-to-farmer seed exchange. The important issue right now is whether we want to open up the possibility of a farmer seed market. What are we talking about there? What seeds? What market? You cannot go creating a market for farmer seeds within a context of liberalisation because you're going to take on a capitalist logic which we in Italy will not accept. From our experience in Italy, we say, "Let us share things properly. It's fine that there are farmer breeders and farmer seed producers and that they can make a market with that. But that market needs to be defined apart from the mainstream market. It has to keep a local dimension, it has to keep a family farm dimension and it should not hide a market of any semi-industrial nature."

And in Italy you achieve this with the notion of restricted quantities for the commercialisation of farmer seeds?

Yes. And the notion of territoriality: setting limits in terms of territories, for example at the level of the region or the province.

The idea of setting restricted quantities is established in the national seed law of 2001, following the EU Directive 98/95/EC. You 'll also find it in some of the regional laws. It's not a ceiling per crop per region, but a ceiling that limits each exchange. We want to avoid that a person sells 200 tonnes of seed, because that's an industry. We don't want traditional seeds to become the next business opportunity for the seed industry, like organic farming has become. The risk is there. Traditional varieties could become the next sexy market for big business, especially with its farmer overtones and strong cultural appeal. It seems that some biodynamic groups are interested in this path, hoping to set up seed companies to supply Europe's organic farmers with traditional seeds. But they will end up fighting over the market with the corporate giants and getting into all sorts of monopoly rights games themselves. In Italy, we don't want any monopolised farmer seed industry! We have to avoid monopolies at all cost. But we won 't succeed if we just liberalise the market. We will succeed, however, if we set rules and negotiate in order to control the supply.

FARMER-TO-FARMER IS NOT ENOUGH

Do you have any idea how much farmer seed is being marketed in Italy right now? In fact, do you even say "marketed", since you're talking about exchange?

Traditional varieties? I don't know, because the only official quantities we know of are farrro,[8] which is registered on the national seed catalogue. The rest is exchanged between farmers and there are no official statistics.

The other things cropping up in Italy right now is that almost anything risks being called a "traditional" variety or a "farmer" seed or a "local" breed. (We Italians tend to exaggerate, as you know.) I see that risk coming. But all of these questions -- defining what material, defining what kind of commercialisation, setting quantitative limits -- are hot issues right now in the regions where the laws are being applied. You have to consider that, even if we started with all this back in 1995, it takes four or five years to know what's out there, to collect and start conserving materials, to set up registers and lists, to organise farmers' networks and so on. It's only now that we start developing a real supply for the market. I can give you a negative example of how this works.

Local sheep are valuable, as you know, especially for producing cheese. In my region, you 'll find mini-herds of an old breed called "Sopravvissana" here and there, totalling maybe 2,000 heads. Forty-five years ago, there were 250,000 and now there are only 2,000. This breed makes a particular milk with a fat content of 9%. With 2,000 heads, what are you going to do? You need at least 45-50,000 to do any serious cheese production within a regional economy. Otherwise, you're just running a zoo. And there we have a problem. The four men who own the 2,000 sheep, they say, "You pay us 350 Euros a head." Seven times the normal price! This is crazy. With the movement to take serious our genetic resources in the regions, we 've created an added value for traditional breeds, we 've created a market for their produce, and now we 've created a monster. So we need some kind of public intervention to multiply the reproductive material. We can't leave this entirely in the hands of the farmer-to-farmer approach. I 'm one of the people who wants to buy some of these sheep. I have 15 already, but the price is just out of this world. People are interested, even the corporates are interested, there's a geographic denomination supposedly available that could be used to market the products of this animal, and yet we 're not getting anywhere. The 2,000 are 2,000 and are not going to become 20,000 unless we spread them out to 20 herders who will multiply them as quickly as possible to purify them -- you cross the pure ram with mixed ewes -- and restabilise the breed.

So to re-establish local farmer breeds, the work is completely in the hands of herders. When we talked to Brussels about this breed, they said it was dead, extinct, gone, because they had no records any more. But then we adopted our regional law and the law brought out the 2,000 animals. Because once the law was published, the four herders popped up out of nowhere and said "Here we are! And we have them! And you will pay a fortune for them!"

And this is where we get to the property issue. One of the herders said, "These sheep are mine." Of course, you can't very well say to him, "No, they're not. I 'm going to come and expropriate them." (Of course, I would love to, but...) So we said, "Fine. But the reproductive material -- the genetic information to continue the breed -- that's not yours."

And what did he say?

Oh, he said, "Either way, if you want my sheep, it's 350 a head." But now we 're rediscussing and one of the farmers who has 500, he's a true herder and he understands. He's saying, "We need some kind of public support. I can't make a gift of these sheep." Which is true. The most productive sheep in Italy right now, the ”Sarda” can give up to one litre of milk per day. These traditional sheep, they do 200 centilitres, just one-fifth of a litre. So to conserve them, sure they make good meat but people have decided to keep them, it's a choice that they made. You can't treat them like gangsters This man has a right to some kind of non monetary compensation. So I told him, "Ok, then make a plan. You want compensation? Then we have to create a support system." Right now, the regional Minister of Agriculture has changed, so we 'll see, and the herders are planning among themselves right now, which is the important thing. This is what I mean when I say that you have to work through these things -- take things in your hands and make proposals.

Another example is the Zolfino bean. It's a bean from Tuscany, very much loved by the Slow Food movement, very sexy.[9] The Prime Minister knows it. Even Clinton, when he came to Italy, he was served Zolfino beans. Today, a kilo of Zolfino seed costs a fortune. At my place, when people ask where to get Zolfino seeds the people say, "At the jewellers!" because it's so expensive. And no one really knows where the seed comes from or who is really marketing it.

Or there's a case with a lentil. Some people have registered a denomination of geographical origin for this lentil, the "Castelluccio di Norcia Lentil", because it's not registered in the official Italian seed catalogue. They simply gave it a territorial name. They didn 't even say what variety it was. They just registered the name, which refers to a place in Umbria, without stating the origin of the seed. So now this lentil is considered a regional product in Italy but the seeds, I 'm sure, come also from Canada. Probably some of the production is imported, too. Because it's a very small lentil that you 'll also find in the Maghreb, where populations grow in infertile soils, on hillsides or in the pre-mountainous zones. In Canada, it's grown the industrial way, on these huge plains, over hundreds of hectares.

THE NEED FOR COLLECTIVE RIGHTS

Let's look at the issue of collective rights established by these laws. You say it started with Latium?

Yes. You see, social organisations, including NGOs, pushed for these laws. We negotiated them with the regional parliaments and with regional ministers and all of that. But once adopted, they get managed and administered by the institutional machinery. It's the civil servant who takes the law and applies it, not us. So there's a whole range of problems that have come up with collective rights. Because the bureaucrats don't understand them.

When it comes to rights, they think "private property". As soon you point out the ram at one man's farm or the beans that some other woman has, they say "Fine, so it belongs to them." We told them, "No. There's a distinction between the material and the immaterial in the law." And then they say, "Oh, right. The material is private property. But the immaterial, that's the genetic information and that part we have to protect differently." But the question is: who do you attribute collective rights to? Where are they vested? In the mayorship? Among all the mayorships? In other public authorities? We 're saying, "No. Since there are organised local communities, you have to attribute the collective rights to them." But then the civil servants say, "Ok, but what form of organisation? We don't have tribes in Italy!" And that's where we are right now.

So the question to whom you attribute the collective rights inscribed in the law, that's what we 're working through right now. Tuscany has not resolved it and in Latium we are not too advanced in the discussion yet. But we 're working on the basis of "organised local communities".

Basically, in Italian law, if you give the mayorship some kind of responsibility regarding collective rights, you are saved. Because collective rights that are placed in the hands of the mayorship to manage cannot be annulled by any mayor. Because mayors do not make law. Only the sovereign State can define and take away rights in Italy. The regional authorities can intervene, but only in a limited way since they can be blocked. And since mayorships can't make laws, they have no authority to sell or destroy what is protected by collective rights.

Italy has a range of collective rights on what is called usi civici, "civil use". These are laws from the Middle Ages and the mayors can't do anything about them. It's only the regional and national administration which can define and annul these rights. Even the case law in Italy says that these collective rights are permanent, because they were established in favour of "present and future generations". Once the sovereign State recognises them, it cannot withdraw them because you can't nullify the rights of people who at the moment don't exist.

So this is our line of defence. It would be great to take all this to the courts and create more jurisprudence, but that costs a fortune. For now, it's in the Italian Parliament where there is a bill on "common goods" that is under preparation.

But you say it's not settled yet, the question of whom these rights belong to?

From a bureaucratic perspective, no, it's not. But there is very strong battle front led by NGOs and some political organisations, if you like. Even the industrialists would seem to be in agreement with us in wanting to clarify, within the frame of Italian law, that farmer seeds are under collective rights and not intellectual property rights (IPR). As they put it, "Farmer varieties do not constitute a market for us and if we want the genes from those seeds, we can get them from the genebanks." So it will be up to us to lead the fight if they start applying UPOV or any other kind of monopoly on these materials.

So for the moment, who do these seeds "belong" to?

Under the law of Latium, from a formal legal viewpoint, it's clear: they belong to the collectivity. So Mr So-and-So, he has the beans and he sells his beans. But the "immaterial", as we say in Italian, the information, that belongs to the collectivity. That means, very explicitly, that he cannot sell the information. It's very clear.

And the collectivity is represented by whom?

That's the second problem. In other words, where do you register? In both Italian and European legal tradition, you have to register rights. The collectivity, or let's say the public interest for lack of a better term, is generally represented by elected administrative bodies. That means: mayorships, provinces, regions or what we call the collectivities of local administrations (several mayorships, several regions). So that's clear. If you want to fight, you know who to go to. There was one mayor in Abruzzo who tried to make an agreement with a Swiss company over some local genetic material and he got attacked by CROCEVIA. He had to renounce the agreement and the people got the material back. So it works that way too. This mayor, he understood right away.

But what is the property right in the law?

There is no property right. We 're talking collective rights.

But in the law, it's written "property right".

Yes, but it points to collective rights. It's like civil use. I 'll give you an example. There are 5,000 hectares protected as the collective rights of local communities. It's called universitas in Latin, universitas agraria. All the users of the land constitute a group and they manage the use of the land. So they, collectively, are all owners, if you like, while none of them has a personal property title in the land.

So it's a 'right-to-use '?

It becomes one. The people will say, for example, "We want to make a pasture." They have rights to bring their sheep and their cows to feed. Then they say, "Wait, we can't bring 1,000 cows each, we need to set a limit." And then they say, "Wait, we still need to keep some land that we can cultivate to raise money to pay for the management of these lands." So they decide to put, say, 400-500 hectares under wheat. The income from the wheat belongs to no one and to everyone and it's used to fix up the water supply and to build fences. So the revenue raised is used to manage the collective good. And it is a collective good -- it belongs to no one, not one individual, and yet to everyone.

But the law of Latium talks at the same time about a heritage and about property. Normally, you talk about property when it's a good, something that can be transferred, bought, sold, etc. When you talk about a heritage, that's normally not a good. It's something you keep, guard, transmit, enjoy. You don't treat a heritage like a good, you don't sell it for instance, because then it's not a heritage any more. And normally, there's a difference between a property right and a use right. But in the law of Latium, it's all put together and that's why people outside Italy are confused. Look at Article 5: "Fermo restando il diritto di proprietà su ogni pianta od animale iscritti nel registro di cui all 'articulo 2, il patrimonio delle risorse genetiche di tali piante od animale appartiene alle communità indigene e locali..."

The law is making a distinction here between material goods and immaterial information. It's clear that the sheep belongs to this fellow. And the pear tree to some other fellow. But the immaterial part, “the genetic information” that is under collective rights. That means that the wood of the pear tree belongs to the owner but the genetic information which gives the pear tree its characteristics, that belongs to the group. Look at IPRs -- they are applied to genetic resources as such, genetic information. Or look at it this way, it's a distinction between hardware (material good) and software (information). The soft in there is recognised as a collective right. The other one you can't touch, because material goods in Italy fall under private property law. You can expropriate, for example land. There is an article in the Italian Constitution which says there are limits to private property rights, and the typical case is related to land. The State can come and expropriate land when there is a higher social interest. But otherwise, material goods are generally considered private property.

So what does "fermo" mean here?

It means "While confirming the existence of private property rights over material goods" -- in other words, the wood of the pear tree in your backyard.

Property over the physical good -- be it an animal, like the sheep, or a plant, like the pear tree -- is one thing. When you say, "I have a pear tree that's 150 years old," that's fine, it fully belongs to you. And you can decide to cut it down. But the heritage -- the information, the overall value of the genetic material -- that doesn 't belong to you. So before you cut it down, I can say, "Hang on, you can't cut it when you want because I need to take a cutting first to multiply it and make a security backup." That's exactly how it works. This happened in my area. That's what we mean by the genetic heritage being a collective right.

So the physical part belong to people while genetic resources heritage -- the information, as you put it, the software -- that belongs to "indigenous and local communities". Are there indigenous communities in Italy?

Sardinia, the Albanians, the Greeks, the Germans of Sud Tirolo, the people in Aosta Valley....

Ok, so the heritage, in the law, belongs to collectivities. What is the effect of that, what is the impact, what does it amount to?

First of all, you can go to court if someone tries to patent anything using this material, for example a GMO. Secondly, you can go to court if someone tries to get a plant breeders ' right, like UPOV, on a variety. That means you block biopiracy and you block patents. Third, in fact, if you apply it well, you can establish an overall system of collective heritage rights over local farmer varieties in Italy. In this way, you create a possibility of access to genetic resources that is totally different from the privatisation way.

The fact that it's a collective heritage means that access to the information is socially negotiated. That means it's not free -- that's also our difference. It doesn 't belong to humanity, it belongs to someone . And that someone is a plural, collective someone. So if other farmers, or anyone else, want to access the material, they have to negotiate with these people. If I want to bring the 2,000 sheep to 20,000 sheep, I have to negotiate with the herders. I can say to them,
"Come on, don't treat me like gangsters. You have rights, you're protected under the law. And that means you have responsibilities, too." And one of them will say, "Give me a compensation." So I 'll say, "You give me a sheep." Because under a collective rights regime, the use of whatever's protected has to coincide with the collective interest, not a personal one. That's why in the case of land, you can't come in with 1,000 cows while the person after you can't bring his cows because there's no more room. It's a very concrete case. People have to be organised enough to say "Ok, a thousand cows will work fine here. How many are we? We 're ten? That means 100 cows each. We 're a thousand? Then one cow each." The use of a collective good is collectively discussed.

And since all of this is regulated under regional laws in Italy, is it the region which provides the sole framework for action? Does this system stop at the region?

Yes, and that's where we have a problem right now. We can do this at the regional level. But we are always under the sword of Brussels or the sword of the national government. That's why we are pushing to get a national decree in place which frames all of this at the national level. If not, we 're in trouble. Well, not in trouble, but it means there's a potential for big fighting because at any moment the State can come along and say, "Hey, what you are doing there in the region goes against the general principles." Brussels can do the same. That's why we need to both move the proposed EU directive[10] in this direction and get a national law established in the same direction. If we get that, then these regional initiatives will be secure. Right now, it's still shaky. There are some regions that say, "Why are you bothering with all this? Just wait for Brussels to sort it out." There are others that say, "Why are you writing that into law?" and they go and write whatever they want.

But could you say that these collective rights on the region's genetic heritage constitute nonetheless a collective monopoly right? Because you say that to discuss access, you have to discuss with the collectivity, negotiate. You have to negotiate with someone, obviously, and the rights are vested in the collectivity, so the collectivity seems to have a monopoly.

No. Monopoly is a private right, it excludes others. Here, on the contrary, the collectivity is the reference point with whom you negotiate. I 'll give you another example: mushrooms. You want to go and collect mushrooms on collective lands. The mushrooms belong to everyone, which means that anyone can ask if they want to pick some. The collectivity cannot say, "No, you, you're not allowed because you're not from around here." The collectivity has to say what are the rules to pick mushrooms.

They cannot prohibit access?

For the mushrooms, if they want to prohibit access, they have to justify why. They can't say "Because we don't like your face" or "Because you're not one of us". But they can say, "You 've collected a kilo already like a madman. You tore up the roots and are causing damage." And sometimes they 'll say, "Since you're destructive, you stay away for two years."

So they control, but they can't prohibit access?

In the sense of managing collective lands, that's correct.

For collective lands. But what about the biodiversity found on the lands?

For genetic resources, we 're not that far yet. And the whole idea of monopoly just doesn 't fit in because collective rights, by definition, are rights which don't prevent or exclude. If a land area is under collective rights, then before building a house you have to negotiate with the collectivity that's in possession of the land and is managing the rights. The collectivity can say, as was the case somewhere, "Here, no hospital." (Someone wanted to build a hospital -- we 're not even talking about a private home. In fact, it was the public administration seeking to build a public hospital.) "Because," they argued, "we want to benefit from the woods and to build a hospital you 'll have to cut them down." That means two things. If the land is privately held, the administration has to negotiate. And if the land is collectively held, the administration still has to negotiate. Or take a football field, that's the most common example. The collectivity will say, "Sure, make the football field. But we give you the land, you pay for it, you make money with it, and with the money you make you build a public garden for the children, near the creche." These are real examples.

With collective rights, there are administrators who take care of all this. They have to enforce these rights. Normally, it's the mayor's office. But sometimes the mayor is the first one to attack these rights. Say the mayor wants to build a football field for his buddies who voted him in. The first thing he does when he takes office is, instead of trying to get land from some private individual who might have voted for him, he looks at the collective lands and declares he's going to build a football field there. And people react and organise themselves again. There's a special court for all of these proceedings.

So under this collective rights regime for genetic resources, you can't prohibit access but you negotiate it, you make it conditional on something.

You can go so far as prohibiting, but it's not automatic. With collective rights, you must negotiate. Maybe yes, maybe no, but there has to be a negotiation. So there's no free or automatic access like you have under this "heritage of mankind" thing, where people can just come and take. Nor is there an automatic right to exclude, as you 'd have with a monopoly right.

But can people exclude in the end?

It is possible. For instance, if you want access to make a GMO, the answer is no, full stop. This is foreseen in certain laws.[11]

Right. So what do you appeal to in order to do that? A collective interest against GMOs?

You appeal either to a collective interest or to an institution. So to really prevent access to collective lands, you have to prove that it's in the interest of the collectivity to prevent access. It's not gratuitous. You can't say, "No, because I say so." You have to arrive at something like, "No, because we want to keep and enjoy the woods."

And what if there is a conflict?

There is a special judge called the commissioner for collective rights to lands.

At what level, the regional or the national?

At the regional level, in those regions where these rights are important, for example covering thousands of hectares. In Latium, we have 600,000 hectares under different forms of collective rights. That's 600,000 out of a land mass of one million hectares -- not a marginal thing!

Say a decision is taken at the regional level, by the commissioner, which goes against the interest of Monsanto who wants to take something. Can Monsanto make an appeal to a higher instance, such as the State, to solve the conflict?

Monsanto can appeal at a higher level if there is a national framework law in place. But the commissioner has the same status of final judge, so it's something that can take 20 years to resolve.

So it doesn 't stop at the region? It can go all the way to the State?

You can appeal to the State Council under the law on civil use, but this matter is also handled by the commissioner. Right now, however, Berlusconi is changing the national law on civil use because he wants to privatise, so he's presently removing powers from the commissioners. This is an example of the State intervening, as I was talking about earlier.

All of this sounds highly particular to Italy -- your legal customs, traditions, administrative organisation, etc.

 No. The collective rights that we have in Italy also exist in Spain. There are some remnants in France, in Switzerland, in Belgium and even on the waters in the Netherlands. So that's not true. It's just that people have never worked seriously enough on this for ideological reasons. As it reeks of communism, people don't want to go near it. That's why I have been pushing so hard to do more on collective rights. It's really a form of self-censorship to say that it's difficult or won 't pass and then take all sorts of shortcuts like "common heritage" or "free access", just letting it go and not organising anything. That's how you fall in line with the government position of Germany and UK. In the Seeds Committee of the European Union, they say, "This farmer-to-farmer stuff, old seeds, it's just tinkering and we don't need rules." This is very dangerous.

We have to be extremely careful about all proposals at the European level that end up taking us into the mainstream, like "genetic resources, heritage of humanity". Calling for the free circulation of seeds among small farmers in the EU, that's also dangerous if there is no negotiated framework. That hides the potential to build a farmer seed industry. Establish rules? Yes. But we must develop rules that do not take us into conformist solutions, including the slightest form of IPR. If we create registers, it's not any kind of register. We have to be precise. Look, we have experiences with regional registers and collective rights in Italy. So let's share this. And in building the European movement, I think everyone has to work, look in their own countries, see how it functions there, try to develop an appropriate legal base for local genetic resources. If we do this across Europe, it would be a huge step forward. Because we'd get rid of this stupid notion of "heritage of humanity". We 'll get a lot further with the logic of collective rights, and the underlying distinction between the material and the immaterial. And then we would find a lot of allies among indigenous peoples and among other countries where collective rights still exist, like in Africa. Look at Africa: there are customary laws everywhere, but everywhere, from the pastures to the routes of the nomads down to collectively worked fields. There are only a few countries that might get left out of the picture: the USA, apart from the indigenous peoples there, and Canada, apart from the indigenous peoples there.

But in practice, what happens when someone -- be it a civil servant or a member of the collectivity -- wants to sell, wants to destabilise the system?

That is the reason why it's written into the laws that in all cases there can be no patenting. You have to put up barriers. And you have to do it in the legislation, in a legal framework. That is why I am saying that the farmer-to-farmer approach has its limits. Because you have to intervene with a piece of legislation. You have to lay down that in all cases farmers' seeds cannot be privatised, that in all cases they must remain outside of any IPR system, that in all cases population dynamics must be maintained. This is much clearer for us now in Italy compared to when we first started with these laws -- that this is a battle front. Even a system of collective rights has to confront these issues. A local community cannot do with collectively-held lands something that is against some other law at the national level.

But in so far as the public administration manages all of this, someone can come along and delete the law.

Of course. That's why we have to engage in institutional guerrilla work. The legal front of the battle should never be the exclusive front. Never. We have to be in the streets. We have to move forward with real peoples ' movements. We have to implement and develop our alternatives on the ground. But it's really fundamental that the institutional guerilla work is part of the battles we lead, too. Otherwise, we 're lost. We have to build fortresses with which we can defend ourselves when we get hit too hard. That's why I call this a guerrilla approach, this legal work. You occupy a legal territory, one on which you have some advantage and no one is expecting you. You construct a legal basis and take them by surprise. We have a capacity to do this that the administration doesn 't have. That is precisely why in France the reaction from the government and the industry is so ferocious. They're in a state of hysteria about farmers' seeds in France.[12] They send out controllers in charge of repressing fraud, they send out fiscal agents, they hide papers, they withhold information, it's just amazing. You don't see that in Italy. In Italy, we can sit and talk with the government. The Minister invites us to comment texts, he even asks our opinion on the European Directive. And we 're in the Italy of Berlusconi -- which is not necessarily more democratic than others. In France, however, it's pure hysterics because of pressure from the seed industry.

But still that means that someone can come and take away the law.

That is why we have to consolidate all these fronts and broaden our practices. In my view, the fundamental approach has to be population dynamics and widening our practices. That means bringing traditional varieties more and more into farming systems. That's why I get fed up with organic farmers who use organic seeds that are not traditional varieties. When they use organic industrial seeds to get their organic certification, I find that ridiculous. To be certified organic, I would say that you have to first use appropriate genetic material, preferably produced on the farm and preferably a traditional variety or a population. If you can't do that, but only if you can't do that, then I would think that organic industrial seeds are okay. But they are in the process of the doing quite the opposite, because they want to build an organic seed industry. As if Novartis is not going to come along and buy them out. As soon as they establish a niche market for biodynamic or organic seeds of any size, the industrialists will come and eat them up, the real industrialists.

Would you say then that these regional systems of collective rights over genetic heritage in Italy constitute IPR-free zones? Just like you have all these GMO-free zones?

Yes. That's the institutional guerrilla front tactics. You occupy a space, you create this IPR-free zone, you try to maintain it, to manage it, and you give yourself tools to defend yourself. It's quite like the GM-free zones. Of course, they can come and contaminate you. But if you do nothing, they will come and contaminate you even worse. And the regions, they evolve. Look, right now there are 11 regions out of the 18 in Italy that have some type of GM-free laws. Now that we have coexistence coming in, we 'll see how they defend themselves. It's going to be a hell of a fight. ☼

Table: Italy's regional genetic resources legislation

References

[*] Antonio Onorati is the President of Crocevia, an Italian development NGO that has long been supporting initiatives related to community control over plant and animal genetic resources in developing countries. Apart from his day job, he lives and works on his family's farm outside of Rome. He is also a founding member of the Board of GRAIN.

[2] Throughout the interview, the term "paysan" was used, which is understood to include mainly small-scale farmers

[3] Council Directive 98/95/EC of 14 December 1998 amending, in respect of the consolidation of the internal market, genetically modified plant varieties and plant genetic resources, Directives 66/400/EEC, 66/401/EEC, 66/402/EEC, 66/403/EEC, 69/208/EEC, 70/457/EEC and 70/458/EEC on the marketing of beet seed, fodder plant seed, cereal seed, seed potatoes, seed of oil and fibre plants and vegetable seed and on the common catalogue of varieties of agricultural plant species. Available at http://europa.eu.int/eur-lex/ pri/en/ oj/dat/1999/l_025/ l_02519990201en00010026.pdf

[4] Legislative Decree of 24 April 2001, No. 212, on the implementation of Directives 98/95/EC and 98/96/EC on the commercialisation of seed products, the Common Catalogue of agricultural plant varieties and related measures. Available in Italian at http://www.parlamento.it/ parlam/leggi/deleghe/ 01212DL.htm.

[5] Protected Denomination of Origin, Controlled Denomination of Origin and Protected Geographical Indicator, respectively.

[6] Terroir is a French word that has no real equivalent in English. It refers to soil or land, but it encompasses elements of geography, pedology and culture all at once. Terroir is a source of identity. It is often used to explain the characteristics of a given wine.

[7] "For the purposes of this Directive 'marketing ' shall mean the sale, holding with a view to sale, offer for sale and any disposal, supply or transfer aimed at commercial exploitation of seed to third parties, whether or not for consideration."

[8] Farro in Italy usually refers to Triticum dicoccum , a relative of wheat, which is slightly different from the more common spelt (T. spelta) which is grown in small amounts around Europe.

[9] See http://www.slowfood.com/img_sito/ riviste/slowark/EN/38/zolfino.html

[10]The EU member states are currently discussing a proposed directive from Commission on implementation of 98/95/EC. A working document entitled Draft Commission Directive ../…/EC of […] setting out implementing measures for the purposes of Council Directives 66/401/EEC, 66/402/EEC, 2002/53/EC, 2002/54/EC, 2002/55/EC, 2002/56/EC, and 2002/57/EC as regards the certification and marketing of seed and seed mixtures in the interest of conserving plant genetic resources was circulated to the governments on 17 March 2005. It will be replaced by a formal proposal from the Commission in June 2005.

[11] See, for example, Ministerial Decree of 5 March 2001, Regolamentazione e finalita ' delle Banche e dei Conservatori di germoplasma perla conservazione e salvaguardia delle risorse biogenetiche, Art. 2.3, Ministerio delle Politiche Agricole e Forestali, Rome. Unavailable at: http://www.politicheagricole.it/NORME/ AGRISOST/20010305__DM.htm

[12] See, for example, Groupement National Interprofessionnel des Semences et Plants, "Les semences paysannes: Une fausse solution à un faux problème", GNIS, Paris, mai 2005. Available at http://www.gnis.fr/ pages/actu11.asp?art=377&cib=pr