Official Newsletter of the WANA Seed Network
No. 28,
January 2005
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News, views, comments and suggestions on varieties and seeds are included in this section. It is also a forum for discussion among professionals in the seed sector.
Farmers' Rights and Seed Programs
In the last issue of Seed Info we presented the Intellectual Property Rights on Seeds focusing on plant breeders' rights. The next article will discuss the concept of farmers' rights, its interpretations, implications and challenges. It may be interesting to see how this concept may influence the seed sector in developing countries including the CWANA region.
The concept of Farmers' Rights
For over two decades, the concept of Farmers' Rights has been part of the international debate on genetic resources and seed policies. The discussion about Farmers' Rights was galvanized in the early 1980s by the recognition of imbalanced benefits between providers of genetic resources (farmers) and the users in commercial breeding programs (breeders). Farmers' Rights were meant to balance Breeders' Rights that were introduced in some developing countries at the time. However, it was only in 1989 that the concept of Farmers' Rights was defined in an official document (Resolution 5/89 of FAO) as 'rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly in the centers of origin/diversity.' Even though Resolution 3/91of FAO talks about a funding mechanism to support Farmers' Rights, it remained quite unclear what exactly constitutes these rights.
The concept continued to surface in the Convention on Biological Diversity and has particularly raised by NGOs. Farmers' Rights are centered on a basic right of farmers to save, exchange and sell seed and as such countering the privatization of genetic resources through intellectual property rights where these practices are restricted for protected varieties by Breeders' Rights and patents.
In 1996, FAO once again made an important step in defining the concept further under the International Treaty on Plant Genetic Resources for Food and Agriculture (PGRFA) which provides more details. Its definition is, however, prone to different interpretations and the debate is likely to continue in the Governing Body of the PGRFA.
| Currently, Farmers' Rights are implemented
through (Article 9 of PGRFA) an obligation of countries to protect: - traditional knowledge relevant to PGRFA - the right to participate in sharing benefits arising from the use of PGRFA - the right of participating in making decisions related to the conservation and sustainable use of PGRFA The following section of Article 9 states that the article "should not be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material subject to national law and as appropriate." |
Interpretation of Farmers' Rights
The above clauses require countries to make arrangements for participation of farmers in policy formulation relevant to seed systems, to be party in benefit sharing arrangements (e.g. CBD) and that their traditional knowledge be protected.
In many developing countries including the CWANA region, farmers are somehow represented in national seed boards and/or variety release committees, but this now seems to become compulsory under the convention. More importantly, however, a question may arise as to whether the farmers' organizations in these committees sufficiently represent all the diverse interests of (smallholder and commercial) farmers.
The last sentence of the article is more contentious. It confirms the traditional rights that farmers have (or 'law of the land') over the seeds that they use. It makes, however, the right to save, exchange and sell seed 'subject to national law and as appropriate.' 'Subject to national law' may imply that if countries have laws that forbid saving, exchanging and/or selling seed that these laws prevail over the Farmers' Rights. This could be similar to clauses in conventional seed laws that prohibit the marketing of non-certified seed of non-registered varieties as well as to protect breeders' rights or patent laws. It is completely unclear what the term 'as appropriate' would mean in practice.
Therefore, countries have to design their own laws to accommodate private (intellectual property) rights, Farmers' Rights and possibly also the rights of indigenous communities. Will countries with already operating intellectual property rights systems open the debates to accommodate this aspect of Farmers' Rights? The fact is that some other issues are currently under discussion including the compulsory declaration of the (country of) origin of the materials used, for all who apply for the protection of inventions based on living organisms (under the patent and breeders' rights systems). Most countries, however, would consider the Farmers' Right to sell seed as undermining the rights of plant breeders and at the same time weakening private sector investment in plant breeding.
Some developing countries are currently seeking a feasible solution for the Farmers' Rights to save, exchange and sell seeds. Under the 1991 Convention, UPOV member countries have the option to allow seed saving for crops of their choice. Providing the flexibility of exchanging and selling seed, as was possible under the older 1978 Convention is not allowed any more. Even then, however, it is more a privilege rather than a right for farmers to save seed for own use. Countries that choose to apply the TRIPs agreement have more options and broader flexibility. In India, the Protection of Plant Varieties and Farmers' Rights Act (2001), for example allow farmers to save, exchange and sell seed but not commercial seed sales under brand names. These clauses are backed by a stronger seed law which comes into force in 2005 to tighten controls in variety release and the seed market. The African Union model law also has provisions towards meeting Farmers' Rights but few countries have yet taken the model law to enact national legislation. In both cases the protection to breeders is reduced considerably through these clauses. Neither of these systems (India or AU) is operational yet. However, experience will show whether this level of protection will at all stimulate private sector plant breeding.
Impact on breeding and seed production
The right to save, exchange and sell seed is an integral part of farmers' seed systems. Farmers improve varieties through selection; and the seed move from farmer to farmer through local exchange. Moreover, such farmers' seed systems are essential in creating a reasonable level of seed security at household and community levels. In commercial farming systems, where farmers produce predominantly or exclusively for the market and high level of inputs are used to
optimize the output, viable and sustainable formal seed systems are needed. The system takes the responsibility of developing adapted varieties and of securing the seed supply by the private sector or through public-private partnerships. The main argument against the right to save, exchange and sell seed is that this would undermine the viability of such formal seed systems, especially where the private sector needs to get interested in investing in either breeding and/or seed production. Without restricting especially seed sales through conventional seed laws or breeders' rights, the demand for seed is erratic and anti-cyclic, i.e. fluctuates based on good or bad season. Similarly, the incentive to invest in breeding is low when anyone can commercialize seed of a new variety that the breeder has painstakingly developed over a period of 10 years.
The strategy
A wide interpretation of the right to save, exchange and sell seed thus leads to a continued task of the public sector to invest in developing new varieties and producing seed, unless appropriate boundaries can be defined to this right. The boundaries may differ among countries, and also within one country for different crops, depending on the shape of the seed sector and the preferred development strategy.
A country may choose to have no restrictions on farmers selling seed for less commercial crops such as legumes and barley for which a formal seed system is presently not viable. At the same time these countries may restrict seed selling of non-branded seed for crops like wheat for which a formal seed industry is emerging. Third, these countries may want to block even seed saving for export crops like flowers and some vegetables.
The implementation of such regulations may be enforced through national seed quality control agencies that are monitoring the seed market. The control on seed saving (e.g. horticulture) may be best regulated by the industry in the export chains, in order not to overload the government system.
The coming into force of the International Treaty will thus not be the end of the debate on Farmers' Rights and will continue to put pressures on Governments to take a diversity of issues and interests into account when they design their national seed policies and regulatory frameworks. N.P. Louwaars, Center for Genetic Resources, Wageningen University and Research Center, P.O. Box 16, 6700 AA Wageningen, The Netherlands; E-mail: niels.louwaars@wur.nl
New Staff Member Joins Seed Unit
 |
Dr Amegbeto was employed at the International Institute of Tropical Agriculture (IITA) in Ibadan, Nigeria from September 2000 to July 2004 as Principal Economist in charge of designing scenarios for appropriate technology development and adoption of yams, roots and tuber crops as well as contributing to food security projects.
Between 1998 and 2000 Dr Amegbeto was the Program Officer for the Foundation for Sustainable Food Security in Central West Africa in Togo. He also worked as Assistant Professor in the Department of Agricultural Economics and Rural Sociology at the University of Benin (Togo) from 1996 to 2000, and provided numerous consulting services to international organizations including the World Bank, IFAD, and UNEP from 1992 to 2000.
International Seed Testing Association (ISTA)
After the 27th ISTA Congress 2004, the International Seed Testing Association issued two press releases on authorization to issue ISTA certificates and the completion of its experiment on accreditation and authorization of company seed testing laboratories. According to the first press release (01/2004), member governments of ISTA approved a constitutional change and decided that accreditation of a seed testing laboratory including authorization to issue ISTA International Seed Lot Certificates as purely a technical task and authorization through the national Designated Authorities unnecessary. With immediate effect seed testing laboratories could issue ISTA International Seed Lot Certificates once they have met all requirements of the ISTA Quality Assurance Program. The right to issue ISTA Certificates could be given to any successful seed testing laboratory by the ISTA Executive Committee as per its Constitution [Article VII (c) (15)].
In another press release (02/2004) ISTA finalized its Experiment on the Accreditation and Authorization of Company Seed Testing Laboratories from 1999 to 2004 and presented the results to the members. The data obtained from the ISTA Proficiency Tests, the ISTA Audit Program and monitoring data from some member countries showed that there is no difference between company and non-company laboratories. The member countries accepted the recommendation of ISTA to finalize the experiment and establish it as a permanent regime. Therefore, company seed testing laboratories can become accredited ISTA members, and authorized to issue ISTA Certificates. ISTA, Zürichstrasse 50, P.O. Box 308, 8303 Bassersdorf, Switzerland; Fax: ++41-1-8386001; E-mail: ista.office@ista.ch; Website: http://www.seedtest.org
Jordan and Uzbekistan Accede to UPOV Convention
According to press releases issued in September and October 2004, Jordan and Uzbekistan have become the 56th and 57th members of the International Union for the Protection of New Varieties of Plants (UPOV), respectively. This brings the number of countries who are members of UPOV to four in CWANA region. Kyrgyzstan and Tunisia have already acceded to the UPOV Convention. The purpose of the UPOV Convention is to encourage the development of new varieties of plants by granting breeders an intellectual property right on the basis of a set of clearly defined principles. To be eligible for protection, varieties need to satisfy certain conditions, such as being distinct from existing, commonly known varieties and sufficiently uniform and stable. New varieties of plants are one of the most powerful tools to enhance food production in a sustainable way, to increase income in the agricultural sector and to contribute to overall development.