GRAIN | 18 October 2005 | Seedling - October 2005
The International Treaty on Plant Genetic Resources for Food and Agriculture – sometimes called the ‘seed treaty’ – was adopted by UN Food and Agriculture (FAO) member states in 2001 and came into force in 2004. Governments that signed on are now working out implementation details. Far from its roots in the struggle to assert farmers’ rights as a counterforce to breeders’ rights, the Treaty has ended up being mainly about granting new privileges to industry. It will give seed companies free access to most of the world’s public genebanks without any obligation to share their own materials in return.
How farmers stand to be affected by the new FAO ‘seed treaty’ is a question on the minds of numerous groups around the world today. When governments started talking about “farmers’ rights” in relation to seeds at the FAO some 25 years ago, the key issues driving the debate were the rapid extinction of farmers’ seeds, often called genetic erosion, and the increasing privatisation of the planting material for the world’s food supply through patents and plant breeders’ rights. Over the stormy debates, govern-ments came to a consensus that farmers should be recognised for their historic and ongoing role as developers of the incredible diversity of potatoes, tomatoes, barley, maize and bananas that plant breeders rely on today. In practical terms, this meant safeguarding the rights of farmers to work with, and live from, farming systems based on diversity, in the face of expanding monocultures and uniform seeds. It also meant trying to channel some of the profits of the seed industry into conservation of the resource base that it exploits.
During the eight-year negotiation of the Treaty, both of these issues remained on the table. But in the final text, only some poetic language about farmers’ rights remains, without any real obligations. The drafting went from a strong commitment to farmers’ rights as “the right to use, exchange, and in the case of landraces and varieties that are no longer registered, market farm-saved seed” to merely saying that the Treaty will not take away those rights in countries where farmers still have them. The idea of getting industry to share benefits with farming communities fared only slightly better. The final language is a weak phrase that says benefits should flow “primarily, directly and indirectly” to farmers. To dispel any remaining doubts, a provision was added to state that the responsibility for realising farmers’ rights rests with national governments. In other words, if governments feel like it and if their patent or plant variety rights laws don’t already preclude it. In many countries, seeds marketing regulations and implementation of the World Trade Organisation rules on intellectual property make it illegal, if not highly difficult, for farmers to use, exchange and market farm-saved seed.
This does not mean that all discussion on farmers’ rights is dead and buried at the FAO. The Treaty’s Governing Body, which meets for the first time in 2006, could decide to look into how national governments are dealing with it. But to be realistic, things will not go further. The Treaty in its final form is not intended to further farmers’ rights.
The biased rules of the game
As governments now start wrestling with how to implement the Treaty, in preparation for the first meeting of the Governing Body in June 2006, just how little this system will support farmers – especially farmer breeders – is becoming increasingly evident.
The main issues being looked into are the nitty-gritty of how to facilitate access to the genetic materials in the system and the drafting of a standard material transfer agreement (MTA) that has to faithfully respect all the rights and obligations outlined in the Treaty. The implications for farmers stem from key principles of the Treaty itself (see box). It is obvious that this system is turning into a dream come true for the corporate seed industry, led by such giants as Monsanto, Syngenta, Dupont and Bayer. These companies get guaranteed access to all the material in the system, most of which came from farmers. They are free to use any material from the system to develop commercial products and make as much profit as they can on them without any obligation to pay back, on the only condition that others can use their final, commercialised products for further breeding. At the same time, they never have to share any of their own materials, except the finished varieties they put on the market. They keep exclusive control over “material under development”, their private collections (regardless of origin), discarded rejects from the breeding process and everything else. Compare this with the detailed requirements imposed on the CGIAR centres which join the system. They are explicitly required to make their own materials available in order to join, and they must even allow the secretary of the Treaty to inspect their facilities at any time.
The treatment of the seed industry makes a complete mockery of the notion of benefit sharing. The main benefits to be shared in the Treaty are access to genetic resources for food and agriculture and a portion of the monetary gains. Yet the industry has no obligation to provide either, so benefits will only flow in one direction. Farming communities all over the world will continue to carry the responsibility of sustaining the genetic diversity of crop plants, without sufficient rights or recognition. And governments will continue to bear the cost of genebanks. Seed companies, according to the Treaty, will be able to order what it needs at “minimal cost” and demand it delivered “expeditiously”.
And as materials from their working collections and breeding processes become obsolete, they can donate them to government genebanks for safekeeping and save themselves that cost (common practice already) while tactically hanging on to anything that could potentially be of future interest to themselves or useful for their competitors. Altogether, this constitutes not benefit sharing but a massive subsidy to the global seed industry both from farmers and from taxpayers.
The implementation discussions
The implementation discussions now underway will not change any of this. There is a provision in the Treaty which says that any changes to the Treaty text must be decided by consensus, which means that for all practical purposes, the text is written in stone and will not change.
Nonetheless, some of the implementation issues are important. Most attention has been focused on the drafting of the standard MTA. This is the contract between the provider and the recipient of a seed sample, in which the recipient promises to respect the conditions of use laid down in the Treaty. A first draft of this MTA was discussed between member governments in a small closed “contact group” in Tunisia in July 2005. No observers were allowed, although the seed industry sent several representatives as participants in European government delegations. The group is scheduled to meet again in April 2006 in order for the final draft MTA text to be adopted by the first meeting of the Governing Body in June.
The hottest issue in the MTA discussion concerns the exact level and calculation of the mandatory payment to be applied on patented products. The Treaty only says that the level should be “in line with commercial practice”. This is not very helpful, since commercial practice is to always charge whatever you can get away with and this varies widely from country to country. The FAO has commissioned a background study which establishes that much. Industrialised countries predictably want to calculate a low percentage on the basis of net sales, while developing countries want it to be a high percentage on the basis of gross sales. The result will probably end up somewhere in the middle.
Another issue is what to do in the case of disputes. Formally, the MTA is a business contract between two legal persons. What happens if there is disagreement between them? Say Syngenta takes out a patent on some Laotian rice germplasm it got from the International Rice Research Institute despite the interdiction in the MTA. The default option is that the parties go to court to resolve it. An alternative is to offer a dispute resolution mechanism inside the Treaty itself. This was discussed in depth at the July meeting.
What about farmers?
While the implementation discussions have gone into great detail in matters like this, mesmerised by the legal and economic consequences for governments and private companies, there is virtually no discussion of the effects on farmers. What will the Treaty mean in practice if a farmer breeder, a seed saver group or a community seed security initiative want to access genebank materials? What does it hold in store for their own collections? Is there a risk that zero action on farmers’ rights, which the Treaty leaves to the whim of governments, will also translate into further restricted access for farmers?
Judging from experience, the importance of the Treaty should probably not be overestimated in these respects. The history of FAO’s seeds work shows that national governments rarely have allowed themselves to be much influenced by international instruments. Practical experience also indicates that the relations between the formal genebank system and the informal breeding and seed-saving sector vary enormously both between countries and over time. There are examples of very friendly cooperation as well as of direct conflict. Sometimes these experiences stem from political issues or a lack of any legal recognition of farmers’ rights, but simple things like personal relations have also been known to come into play. So it is very difficult to say anything general either about the present situation or how it might change due to the Treaty.
But taking the text as it stands, the following observations can be made:
• Communities, associations and individual farmers, have the right to request seed samples from the system, just like corporations, as long as they are in the jurisdiction of a government that is a party to the Treaty.
• There is no obligation for the seed collections held by seed savers networks, community-based initiatives or individual farmer-breeders to provide materials to this new system. Again, these people have the same status as the seed companies.
• Individuals or private organisations involved in selection and breeding work are not obligated to put material “under development” into the system. This is one of the few places in the Treaty where farmers are explicitly mentioned. However, the provision regarding in situ material partly contradicts this, as it recognises a right of governments to regulate access to in situ materials under national legislation. Farmer breeding usually take place in the field, so the materials are both in situ and under development. This is a possible point of conflict where national governments could try to use the Treaty to restrict farmers’ rights.
• Because there is no right of access for direct use – only for conservation, research and breeding – both farmers and scientists have questioned whether this will become a new restriction on access. A reasonable interpretation is that this should not be a problem. When someone accesses material from a collection, it is almost never for direct use without passing through some form of conservation, research or breeding. Access always means getting a small sample of seeds. These seeds have to be multiplied and the plants are almost invariably evaluated and/or selected in the process. This could be considered research or breeding already. But if a genebank is looking for a reason to restrict access, this clause could provide it.
Overall, the conclusion is that implementation of the Treaty will probably change very little at all for farm-based breeding. It will more significantly give guaranteed access to corporations, who will probably not share much in return but get private property rights over the results.