Farmer's privilege under attack

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:

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

What is Seedling? Seedling is the quarterly magazine of GRAIN. It provides thought-provoking articles on all aspects of GRAIN’s work and more. To receive Seedling in paper or electronic format (on a CD Rom), or to inform us of a change of address, please