The policy makers’ challenge.
Breeders’ rights provide for the necessary investments for plant breeding. It protects the breeding company primarily from other seed companies pirating on their work, and secondly from farmers competing in the market of protected variety farm-saved seeds. It also provides public breeding with a mechanism to interest seed producers to take their varieties to farmers. Exceptions are created for the use of protected varieties for further breeding, for farmers’ reuse of seed of crops determined at the national level, and for the ‘private and non-commercial’ use of seed.
Farmers’ rights have been defined in the International Treaty on PGRFA as rights arising from the farmers’ contribution towards the conservation and development of our crops. These include the right of farmers to save, use, exchange and sell farm saved seed (subject to national law and as appropriate). These rights have been reconfirmed in Article 19 of the (non-legally binding) UN Declaration on Peasants and Other People working in rural areas (UNDROP) presented by the Human Rights Council of the UN in 2018.
Both breeders’ rights and farmers’ rights are to be defined and implemented at the national level, so national policy makers need to formulate these rights as to their needs. Experiences of some 25 years show that this can be quite a challenge.
Balancing Purposes?
Breeder’s rights have a clear purpose — the provision of possibilities for breeders to share in the benefits arising from the value in the seed value chain. More breeding can be considered to provide more choice for farmers in coping with their agro-ecology, markets, and culinary preferences. Farmers’ rights are either considered to provide a stimulus for continued conservation and development of genetic resources (ITPGRFA) or are to be considered a basic right (UNDROP).
The debate about these rights has all characteristics of a trench war: attacking each other indiscriminately with the same arguments over-and-over again; a deafening exercise eventually leading to a lobby with all tricks available, from forum shopping to legal nitpicking.
Lawyers may claim that most human rights are not enforceable as they are formulated, as is illustrated in so many countries by the right to Freedom of Expression (Art 19); to Social Security (22); to Food, Housing, Medical Care (25). However, others may claim that these rights provide moral obligations and are above and beyond ‘legal rights’.
Towards Solutions — Definitions
Intellectual property rights create a market-based incentive. The breeders’ rights are thus limited to the commercialization of seeds of new (and protected) crop varieties. They are based on the commercial value chain from breeding to the marketing of food and other plant-based products. Actions by non-market operators, for farmers’ family food security, do not fall within this concept. Also, farmers’ variety and old variety seeds are not affected.
The Farmers’ Rights are limited to actions performed by the (individual) farmers, or in the case of UNDROP: peasants. Actions by transporters, traders and agro-input dealers are out of principle excluded and so is – in my view – exchange and sales of seed by commercial farmers. Those who produce for a commercial market need to abide by the rules of the commercial sector, including Plant Breeders’ Rights (PBR).; they cannot claim to have the same farmers’ rights that peasants have.
When looking at these principal views, then it looks as if these two concepts have different backgrounds and focus, which should allow them to operate side by side pretty well. Creating a vision on how both rights could be framed without negatively affecting each other should not be too difficult. The major limitation may be in the complexities of the need for definitions that can allow for proper enforcement.
Commercial Value Chain Versus Household Food Security
Exchange and sale of seed may sound clearly commercial actions. However, when two non-commercial actors, exchange seed for producing the crop primarily for home consumption, then the sound is different. It is further clear that the transaction is among farmers, and that traders at the local market (or distributing brown-bagged seed from the back of the truck) cannot be involved. The same farmers who may sell some farm-produced seed to their neighbour producing primarily for home consumption, may be commercial for the crops that s/he produces primarily for the market. The seeds of those crops thus need to abide by commercial — PBR — rules.
At the same time, commercial farmers cannot claim to have Farmers’ Rights pertaining to the sales of seeds – even if it is over the fence to their neighbour. They are part of a commercial farming enterprise and have a commercial interest in getting better varieties on a regular basis.
India has attempted to organize both rights in one law, which became operational in 2004. At this moment, after over 20 years of operation, the country is ready to adapt certain components on the basis of experiences. This was one of the outcomes of a webinar, organized by SeedNL and the Asias Pacific Seed Association (APSA). The distinction between commercial and non-commercial sales of seed does not present principal objections, according to the discussion in the webinar. But for a breeder, it is rather the handling of real infringements, issues like temporary protection, EDVs and other limitations that also other countries are faced with.
The Indian system clearly does not give enough incentive to private investment in breeding major self-fertilizing food crops for the many smallholder farmers. This may be an unintended effect of the law or a deliberate choice providing public research a clear task for breeding for those target groups. On the farmers’ rights side, it appears that public support to the multitude of farmers’ initiatives to strengthen their seed systems through the gene fund or otherwise, falls short.
It would be good to support countries like India to improving their system and to bring it in line with the internationally agreed rules, which may on minor components need to be interpreted wisely. That would not only bring these countries into the UPOV family, but it may create an example for other countries to formulate their farmers’ rights without focusing too much on extreme calls for extensive rights of commercial farmers. It is high time to leave the trenches and develop constructive dialogue.
Niels Louwaars is a Seed World Europe columnist and Seed Systems Specialist
