GRAIN
June 2003
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
• 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
MOROCCO
• 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
NIGER
• 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
SENEGAL
• 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
SOUTH AFRICA
• 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.
TOGO
• 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
ASIA
CHINA
• 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)
HONG KONG, CHINA
• 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
INDIA
• only without packaging and selling the farm-saved seed as a protected
variety
KOREA, SOUTH
• 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
PHILIPPINES
• 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
TAIWAN
• NO.
NB: The government may introduce some form of farmers' privilege in the
next revision of the law.
THAILAND
• 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”
VIET NAM
• only without selling the farm-saved seed
LATIN AMERICA & CARIBBEAN
ARGENTINA
• 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
BOLIVIA
• 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
BRAZIL
• 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
CHILE
• 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.
COLOMBIA
• only if it is for their own use (no sharing, exchanging, selling)
• only if it is not a fruit, ornamental or forest species
ECUADOR
• only if it is for their own use (no sharing, exchanging, selling)
• only if it is not a fruit, ornamental or forest species
NICARAGUA
• only if it is for their own use (no sharing, exchanging, selling)
PANAMA
• 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)
PERU
• only if it is for their own use (no sharing, exchanging, selling)
• only if it is not a fruit, ornamental or forest species
TRINIDAD & TOBAGO
• not for commercial marketing or sale
URUGUAY
• 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.
VENEZUELA
• only if it is for their own use (no sharing, exchanging, selling)
• only if it is not a fruit, ornamental or forest species
INDUSTRIALISED COUNTRIES
AUSTRALIA
• 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
CANADA
• 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).
CZECH REPUBLIC
• 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)
ESTONIA
• 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
EUROPEAN UNION
• 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.
• not in the case of hybrid or synthetic varieties
• small farmers are not required to pay any fee to the breeder when re-using
the seed; all other farmers have to pay
JAPAN
• 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
KYRGYZSTAN
• 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)
LITHUANIA
• 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
POLAND
• 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
SLOVAKIA
• 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”
SLOVENIA
• 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
UNITED STATES
• 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)
[1] Lather Venkatraman, “Hike research spend in seed technology: Rabobank report”, Hindu Business Line, Mumbai, 25 March 2002. http://www.blonnet.com/bline/ 2002/03/25/stories/ 2002032500240700.htm
[2] See, for example, Alvaro Toledo, “Saving the seed: Europe's challenge”, Seedling, GRAIN, Barcelona, April 2002. http://www.grain.org/seedling/?id=191
[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..