As with the webinar held on the 16th of September, this webinar (held on the 17th of September) was moderated by Ms Titilayo Adebola, the theme coordinator for intellectual property law at the School of Law, University of Aberdeen.
The panel had in attendance, Mr Kent Nnadozie, Secretary, International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty); Mr Salvatore Ceccarelli, Consultant, Participatory Plant Breeding Expert; Mr Kamalesh Adhikari, Research Fellow, University of Queensland; Mr Rakesh Agrawal, Former Registrar General, Protection of Plant Varieties and Farmers’ Rights Authority, India, and Ms Mariam Mayet, Executive Director, African Centre for Biodiversity, all experts in their fields of endeavour.
The webinar kicked off with the moderator introducing the panelists and also giving a recap of what transpired during the webinar that was held on the 16th of September, titled “Farmers’ Rights and the International Treaty on Plant Genetic Resources for Food and Agriculture.”
Furthermore, she provided a background to the discussions that were to be held on the day and also set the agenda, which was “to provide first-hand perspectives on different case studies on the interpretation of farmers rights and to envision what the future of farmers rights could look like.”
The aim of the webinar, therefore was to disseminate knowledge and information around farmers’ rights and to create more awareness about the subject.
The first speaker of the day was Mr Kent Nnadozie and his topic was “Overview of Farmers’ Rights in the International Treaty on Plant Genetic Resources for Food and Agriculture.”
Kent began his presentation by issuing a caveat to the effect that his presentation contained no any interpretation of the Plant Treaty or any of the provisions contained therein, but just explanations of its provisions and what the Plant Treaty Secretariat had been doing, including some of the key decisions of the governing body that are relevant to the discussions.
Proceeding from this, he reeled out the key objectives of the Plant Treaty, which are:
- The conservation and sustainable use of plant genetic resources for food and agriculture,
- The fair and equitable sharing of benefits derived from their use, in harmony with the Convention on Biodiversity, for sustainable agriculture and food security.
On a broader scale, the aim of the Treaty is to ensure that the seeds and plants that form the basis of our food systems and agriculture are fully conserved and used sustainably, and the farmers who have contributed towards its development, preservation, and conservation get benefits for their contributions.
Essentially, the Treaty, in addition to being a legally binding framework, also provides a forum for further discussion, negotiation, and decision making among the contracting parties, in addition to providing global fora that address some of the challenges being faced by farmers, which includes loss of diversity, the challenges of climate change, and meeting the nutrition needs of the ever-increasing global population.
He informed the participants that, there are at the moment, 147 contracting parties to the Plant Treaty.
Although the Treaty has so many components that derive from the access and benefits sharing, multilateral system, information systems, and funding strategy, one of the key components of the Treaty is contained in Article 9, which recognises the contributions that farmers have made for millennia and continue to make towards the development of plant genetic resources.
The Treaty gives an indicative list of farmers’ rights, among which are the protection of traditional knowledge (TK) that are of relevance to plant genetic resources, the right to equitably share benefits arising from the use and development of plant genetic resources, and the right to participate in national decision making, which essentially shows that farmers have sufficient political space to make contributions and be part of the decision making processes in their national and local governments.
The Treaty, however, provides that the actual implementation of the provisions contained therein lies on the national governments’ ability to realise those rights, although it enjoins the governments to take measures including legislative, policy, and administrative measures to promote and protect those rights.
Article 9 of the Treaty is essentially the first internationally binding agreement to formally recognise the rights of farmers’, whilst giving responsibility to national governments to implement them.
The Treaty inherently recognises that farmers are the primary constituency of these provisions and should be the primary beneficiaries of activities on development and benefits that arise from the use of genetic resources that they(the farmers) have contributed to, and have been custodians of, for millennia.
For a clearer picture of how the Plant Treaty recognises farmers’ rights, Kent made a list of the provisions of the Plant Treaty that support farmers’ rights.
- Article 1 of the Treaty recognises the rights of farmers,
- Article 9.2 stipulates the elements of the rights: the protection of TK, equitable participation and sharing of benefits, and decision making,
- Article 9.3 recognises the rights of farmers to save, use, exchange, and sell farm-saved seeds and propagating materials, subject to national law as appropriate.
There are key decisions taken or reached in the course of the implementation of farmers’ rights that the Governing Body has recognised as key provisions that require robust implementation, along with the other provisions of the Treaty.
A number of the decisions came about in the process of collecting, collating, and sharing experiences, information, and knowledge about how countries, stakeholders, and other actors are implementing farmers’ rights.
Over the years, the Secretariat has collected a plethora of information and experiences that are involved in the implementation of farmers’ rights.
Having done that, the governing body, in 2017, established an Adhoc Technical Experts Group on Farmers’ Rights (AHTEG). This was the first formal sub-steering body that was established to start looking at elements of farmers’ rights.
The AHTEG was given very specific mandates, based on the information that had been gathered over the years, coupled with further submissions made by contracting parties and stakeholders. The AHTEG was mandated to produce an inventory of those measures, which should include best practices, and lessons learnt, from the implementation and realisation of farmers’ rights as set out in Article 9 of the international treaty.
From then on the AHTEG met several times to carry out this task.
The second task involved developing options that would encourage, guide, or promote the realisation of farmers as set out under Article 9, which more or less, will be based on the inventory and submissions that have been made by the countries and stakeholders.
Having accomplished the first part of that task, the AHTEG went ahead to present this (the inventory) to the governing body, which in turn welcomed and endorsed the inventory and directed the secretariat to provide an online version, which in due course will be made public, per Kent.
However, being unable to finalise its tasks before the 8th session of the governing body, due to time and resources constraint, and the volume of work that they had, the governing body had to reconvene the AHTEG to finalise its tasks, based on the need to conclude those tasks.
Finally, he touched on the role the Plant Treaty secretariat played in facilitating the assignment given to AHTEG.
According to him, due to the specific nature of the assignment given to the AHTEG, the governing body mandated the secretariat to facilitate the work of the AHTEG, by gathering information that conforms to best practices, including the facilitation of contracting parties and stakeholders who were engaged in capacity building, information dissemination, and exchanges.
The secretariat he said, was available to partner with any stakeholder or contracting party that wished to engage in capacity building or information sharing as necessary under Article 9 of the treaty.
Following this, Mr Salvatore Ceccarelli made his presentation on “Participatory Plant Breeding and Farmers’ Rights.”
Participatory plant breeding per Salvatore is recognised in the Plant Treaty. Article 6 makes provision for participatory breeding, particularly, Article 6.2(c) where it reads “promoting as appropriate, plant breeding efforts with the participation of farmers, particularly in developing countries…”
What is plant breeding? According to Salvatore, it is a simple process that starts with defining what objectives are and what the target group is, with secondary priorities, by generating a lot of diversity, usually by crossing. This is usually followed by several cycles of selection with a few selected potential varieties, which culminates in the best varieties being released as cultivars. The whole process is hinged on the expectation that farmers will accept the final product of the varieties.
The process is run by scientists traditionally within research stations, without the input of farmers.
Participatory Plant Breeding (PPB) follows the same process of plant breeding, with the exception of the fact that, instead of it being run in research stations, it is run in farm fields, with the full participation of farmers in all the key decisions, who are accorded the same level of rights as the scientists. With PPB, the opinion of the farmers and scientists in taking decisions have the same weight.
What is more, Salvatore opined that, scientifically, the PPB system has the same value as the programmes run in research stations. However, unlike the programmes run in the lab, the process is decentralised, given that decisions are taken at different levels by farmers and scientists, independently, village by village.
Salvatore further argued that, if efficiency were to be defined from adoption, increase in diversity, and cost-effectiveness, the PPB programme was more convenient and less expensive, in comparison to Conventional Breeding Programme, particularly if one was to consider the ratio between cost and benefit.
Because of the involvement of farmers in the PPB process, adoption is greatly increased.
PPB generates diversity and is gender-sensitive. Diversity is part of plant breeding, however, in conventional plant breeding, the initial diversity is transformed into uniformity, while in PPB, diversity is maintained, because the selection of varieties is decentralised.
Furthermore, it is easier to be gender-sensitive in a PPB programme, because, in each programme, gender specialists work with them.
A fitting example of this is what Salvatore has been doing in Syria, where he works with the Minister of Agriculture.
In the Syria case, because the women could not leave the house, therefore they took the crops into the house, and the women could make the selection.
Because of this participation in all the aspect of the breeding, PPB has a powerful empowerment factor.
With the increase in diversity, PPB creates at the national and international level, resilience towards climate change.
One aspect of climate change that is not always mentioned sufficiently is that there is more to climate change than temperature and rainfall. Asides temperature and rainfall, climate change, leads to changes in diseases, insects, including pollinators, and these changes are largely unpredictable and location-specific. This further lends credence to a decentralised breeding programme such as PPB.
Unfortunately, after running the PPB programme in the Middle East, Africa, the Horn of Africa and Asia, generally speaking, institutions have been very reluctant in accepting PPB as the principal method of embarking on plant breeding.
Recently with his wife, they produced an inventory wherein they discovered that in just 40 years or so, PPB programmes have been done in 69 countries, 10 of which were developed on 47 crops. So there are no limitations to the application of PPB. Interestingly, these crops were either self or cross-pollinated, and the majority were propagated crops.
Most of the work done on PPB , which is a scientifically basic process, has been done by universities. In particular, American Universities are very active in PPB.
He concluded his presentation on the note that PPB, which in some circles is criticised for bringing science backward, is fully compatible with molecular breeding.
Besides, one of the great benefits of PPB is that it brings back into farmers’ hands, the control of feed. A decentralised breeding programme which generates so many diverse varieties, with tremendous diversity in space and time is very difficult to be served by a centralised seed system.
The next speaker was Mr Surya Adhikari, a farmer from Nepal, whose prerecorded video was played. The title of his presentation was “A farmer’s perspective to farmers’ rights”
Surya’s presentation was in Nepali, however, an English translation was provided.
Surya introduced himself as a smallholder farmer. As an organic coffee producer, he produces about 600kg of coffee beans per year, is also involved in rice breeding using landraces, and has been a promoter of agrobiodiversity conservation for 23 years.
He trains farmers, groups, and communities in agribiodiversity conservation and usage, including coffee production.
As a breeder of rice landraces, he has so far developed 4 breeds of rice landraces. This he did by:
- Crossbreeding the Ghaiya and Kathegurdi, to develop drought-tolerant rice varieties for mid-hills,
- Cross-breeding the Pokhareli Jethobudho with the Ekle, to transfer the aroma of the Pokhareli Jrthobudho to the Ekle, and finally
- Crossbreeding the Ekle with the Masuli, to develop high yielding varieties with good eating quality.
According to Surya, every year, a technical school and community establish rice diversity blocks of 47 landraces and 5 PPB breed varieties for the regeneration of seed, and for educational purposes.
Out of the 47 rice landraces available in his village, the five best landraces have been selected, and proposed for registration with the National Seed Board.
The aim is to establish ownership of these varieties, to protect the varieties from unauthorised use, as these are the assets of his community.
To achieve this, the villagers worked with LI-BIRD and the National Genebank, for the collection of required data, proposal development, and submission.
The 5 rice landraces proposed for registration with the National Seed Board are Ekle, Bayarni, Pahenle, Rato Anadi, and finally Kalojhinuwa.
His involvement in rice breeding and conservation activities is borne out of the following reasons:
- To develop climate-adapted, high-yielding rice varieties, using locally adapted landraces,
- To avoid the use of seeds which emanate the corporate sector, such as the F1 seeds, in the area,
- To protect farmers and communities from negative consequences of using seed from unknown sources, and
- To train and educate young people in the conservation and utilisation of agricultural biodiversity.
On farmers’ rights and intellectual property rights, he holds the view that the contribution of several generations of farmers and communities to the development, conservation, and promotion of plant genetic resources for food and agriculture and TK have not been well documented, recognised, nor supported. Besides, the protection and promotion of Farmers’ Rights, he opines, is not on the priority list of governments.
According to him, the process for the registration of landraces and farmers’ varieties is the same as the variety developed by the plant breeders, and he thinks it is not fair.
On a final note, he stated that the food system in Nepal is highly reliant on an informal system of saving, exchanging, using, and selling farm-saved seeds and planting materials, therefore, no one living on this planet should think of limiting this function and rights, because millions of small farmers like him, and others in his village cannot afford to buy corporate seeds and food.
This presentation was followed by that of Mr Kamalesh Adhikari, whose presentation was titled “Questions and concerns about the protection of farmers’ varieties”
Kamalesh acknowledged and identified with the presentations of both Salvatore and Surya, nonetheless, he stated that his presentation majorly focuses on the protection of farmers’ varieties that have been addressed in many of the domestic laws that so far have been developed in several developing and developed countries, and in many advanced countries.
To put into context what his presentation was and why he was presenting, Kamalesh noted that, if one was to look at how development was taking place within the Plant Treaty, one will see the significant focus on identifying options, mechanisms, and approaches to protecting farmers’ rights to plant varieties.
On what farmers’ varieties are, he opined that there are clear cut answers to that question, and there are certain legal and taxonomic problems in terms of having to define these varieties, which have already been identified by some of the previous discussants.
He emphasised that countries such as India and Thailand have developed laws and technical criteria to categorise and protect farmers’ varieties as IP, however, there are questions about the duration of the protection.
For instance, India protects farmers’ varieties for 15 years. What then becomes the legal status of those varieties after the end of those 15 years? That is a key issue that should be taken into consideration when discussing farmers’ rights and farmers’ varieties.
In his presentation, Kamalesh used the case study of a traditionally grown rice variety and a PPB that converted this variety to a commercialised variety, to explore what it means to protect farmers’ varieties as IP. In so doing, he focused on some of the questions and concerns that relate to this question of what it means to protect farmers’ varieties as intellectual property.
Before he spoke about his case study, he dwelled on one important aspect, which is that, most of the time when he sees literatures on farmers’ rights and farmers’ varieties, he often gets a confused understanding about farmers’ varieties.
The concept of farmers’ varieties is often confused with other concepts such as indigenes’ varieties, local varieties, wild varieties, autochthonous varieties, etc. But then, for him, farmers’ rights are of two major categories:
- Category one includes indigenous, traditional, and local varieties, including landraces. These varieties could be used as germplasm for the development of another variety, and
- category two includes farmers’ varieties. These categories originate from category one varieties.
For example, if Salvatore breeds category one variety for some kind of improvement for breeding, through the use of PPB, he would come up with category two variety, which is a new farmers’ variety.
The standout feature of category one plant varieties is that they are indigenous, local, and native varieties, that is, they are often characterised by genetic exclusivity and may be protected under the domestic access and benefit-sharing, or seed laws.
What is special about category two varieties is that, because these varieties are newly bred, they may meet the criteria for distinctiveness, uniformity, and stability under the domestic plant variety protection (PVP) laws.
Before presenting his case study, he highlighted the fact that he had done a case study of the participatory rice breeding programme that was implemented in Nepal from 1997 to 2005. The breeding programme was employed to develop the traditionally grown rice variety called Jethobudho. He conducted a follow up in 2008, therefore, all the findings he referenced were based on these studies.
Jethbudho is one of the oldest traditional rice varieties that farmers of the Pokhara valley of Nepal were growing at an altitude of 600 to 900 metres above sea level.
In 1997, after local farmers reported that the Jethobudho had begun to underperform due to certain problems with its agronomic traits, a group of national and international actors designed a participatory plant breeding programme, to reverse this trend.
Between 1998 and 2005, the programme spent a good amount of time and resources to evaluate and improve the agronomic (as well as postharvest) traits of the Jethobudho. In so doing, the programme first collected two sets of 338 lines of Jethobudho from the local farmers from 11 different sites.
From 2000, the programme started to experiment with these lines in two local sites of the Pokhara valley. In 2003, the programme narrowed down the selection of Jethobudho accessions to six locally preferred lines.
From then to 2005, the composite variety of six lines was planted by a wider group of farmers. It was then noticed that the grain yields increased from 2.4 tonnes per hectare in 1999 to 3.4 tonnes per hectare in 2005. Likewise, the composite variety provided greater resilience to local growing conditions, including tolerance to blast disease and lodging, while maintaining favourable postharvest traits such as aroma, and taste.
After a favourable evaluation in 2006, the composite variety which emerged from the traditionally grown Jethobudho, was registered under the National Seed Act as a multiline enhanced variety called Pokhareli Jethobudho, because it was grown by Pokhara farmers.
The variety was registered in the name of both farmers (represented by the Fewa Seed-Producing Group of the Pema site) and non-farmer entities, represented by local and international agencies. So, both farmers and non-farmers were registrants of the breed under the law.
Despite how the variety was registered, it was promoted as Nepal’s first legally registered variety of farmers.
From 2006 to 2016, the Fewa Seed-Producing Group made significant profits from the sale of the Pokhareli Jethobudho seeds.
The annual production of seeds increased from 3,425 kilograms to 10, 000 kilograms, and the per kilogram price of the seeds also increased from 35 to 170 Nepali Rupees.
Despite this, over time, the quality of the seeds supplied by the Fewa Seed-Producing Group deteriorated, with claims from consumer farmers that they had suffered losses.
Consumer farmers and local seed traders reported that there was the presence of a significant amount of off-types/ mixtures and that the quality was compromised.
Finally, a local NGO which was a co-owner of the variety decided to stop collaborating with the Fewa Seed-Producing Group and began working with farmers from other sites to produce and sell Pokhareli Jethobudho
According to Kamalesh, certain questions have not been taken into account when the conversations about the protection of farmers’ varieties are had, and as a matter of fact, those questions are of many types.
Do farmers have the necessary resources in countries like Nepal or Africa, to develop distinct, uniform, and stable varieties for intellectual property protection?
It was the support local farmers got from local and international NGOs (in the case of the Jethobudho) that enabled invest time, and resources from 1997 to 2005 to develop a composite variety of six lines of the Jethobudho.
- Who is eligible to obtain IP for farmers’ varieties? Can farmers be defined to include non-farmer entities?
- What are the obligations of the owners of newly bred farmers’ varieties concerning the use of traditionally grown varieties as germplasm?
- What kind of exclusive rights do farmers need to commercialise their varieties?
- Should there be any specific protection period for farmers’ varieties?, and
- Should the rights of consumer-farmers to receive compensations and access to protected varieties through compulsory licensing, apply to farmers’ varieties?
Finally, he opined that before a discussion can be had about farmers’ rights and farmers’ varieties, there was the need to look into the law and ask, who is a farmer? How do we define a farmer? What rights are framed for farmers? How will varieties be identified for farmers?
Knowing the definition of a farmer or conceptualising a farmer into the framework of law and practice will be quite critical to the discussion.
Up next, Mr Rakesh Agrawal, presented “Farmers Rights and India’s protection of Plant Varieties and Farmers’ Rights Act, Law, and Practise”
He began by referencing Kamalesh’s presentation, acknowledged, and agreed with the issues raised by Kamalesh in his presentation.
Focusing on his presentation afterward, he noted that India enacted the Protection of Plant Varieties and Farmers’ Rights Act because India was a partner to the TRIPS Agreement, also, India had adopted the sui generis system for the protection of farmers’ rights.
According to him, one of the key factors under the farmers’ rights under the law is that farmers are entitled to save, use, sow, re-sow, exchange, sell and share their produce, including seeds of a variety protected under the Act, however, farmers’ cannot sell the branded seed of a protected variety.
Just like Kamalesh, he also raised the all-important question of who a farmer is.
To answer this, he referenced Section 2(k) of the Act, which describes a farmer as:
- any person who cultivates crops by cultivating the land himself; or
- cultivates crops directly by supervising the cultivation of land through another person; or
- conserves and preserves, individually, jointly, with any person, any wild species or traditional varieties, or adds value to such wild species of traditional varieties through selection and identification of their useful purposes.
Having then defined who a farmer is, what then is a farmer’s variety?
“It is the variety that has been traditionally cultivated and evolved by the farmers in their fields. This includes wild relatives or landraces and cultivars, which the farmers possess common knowledge of.”
The categories of varieties registerable under the law are, new varieties, extant varieties(under which the farmer’s variety falls), and essentially derived variety.
According to Rakesh, the farmer is not pigeonholed into just the farmer’s variety category. Since farmers are also breeders, farmers, therefore, have the latitude to file for variety protection under the new, extant, variety of common knowledge and even the essentially derived variety.
Because farmers are breeders, a farmer who has bred or developed a new variety is entitled to registration in the like manner as a breeder of under the Act (Section 39 (1)(iii).
The law also provides for a farmer’s right to compensation, in the case of failure of expected performance by registered varieties gotten from a breeder. For that to be activated, however, there was an expectation on a breeder to disclose the expected performance, under given conditions, of a registered variety, and if such variety failed to perform after being applied under the given conditions, the farmer or group of farmers may claim compensation from the breeder (Section 39 (2)).
Additionally, the Act provides for farmers’ rights to benefit sharing, under Section 26.
If a breeder of any registered variety ignores the contribution of any farmers, village, or local community, which contributed significantly to the evolution of a variety, such farmer, village, or local community may claim for benefit sharing.
Even if the farmer, does not claim the benefit, the communities or NGOs may file for the benefit of the farmers or communities, any such claims.
The unique thing developed in the interest of the farmers’ in the Act is that farmers are not liable to be prosecuted, because they are considered innocent at the time of infringement of any rights of the breeders. Therefore, they cannot be sued before any Court of Law in India.
Under the compulsory licensing provisions, if a registered variety was not available to the farmers, or if the price was not reasonable, farmers may claim the reasonable seed price and sufficient quantity of the seed.
To further protect the farmer, the law provides that the prior authorisation of farmers be sought for the commercialisation of essentially derived varieties, when farmers’ varieties, whether extant or new, are used by a third party as source material, for the development of an essentially derived variety. This allows farmers to negotiate the terms of authorisation with the breeder, which may include royalties, benefit-sharing, etc (Section 28(6))
In addition to this, farmers’ varieties must be documented, and the contribution of farmers may be documented through various mechanisms.
Likewise, there are well-established systems of biodiversity management, which are controlled by the Biodiversity Authority.
The biodiversity authority has biodiversity registrars who collect the statistics and document the role of anyone in the development, or evolution, of any plant variety in India.
Just like Kamalesh, Rakesh, in his closing remarks, recognised some issues he felt needed to be addressed.
One such issue was the protection given to crops. In India, the protection is defined according to the different crops.
For trees, the protection is for 18 years, from the date of registration, while for crops, it is 15 years. So whether for farmers’ varieties and non-farmers’ varieties, the period of protection is defined.
One very good provision under the act is the reward of farmers.
The Act recognises the contribution of farmers in the past, present, or the future, by recognising such farmers as Plant Genome Saviours and giving them financial support for the award. In addition to this, there is a big ceremony held every year to recognise such genome saviours.
Furthermore, there is a gene farm to support the recipients of these awards and also for benefit sharing.
Other issues as outlined by Rakesh that need to be addressed include the purification of farmers’ varieties, claims of individuals on farmers’ varieties, benefit-sharing, mainstreaming of farmers’ varieties, and finally, the benefit accruing to farmers on protected varieties.
Ms Mariam Mayet’s paper was titled “Farmers’ rights and the farmers’ seed systems”
Having been observing the expert’s working group’s deliberations on developing options for the implementations of farmers’ rights over the last two years, she thinks it has become apparent that the interpretation of the nature of the binding obligations of the state, as set out in Article 9 is disputed. In the same stead, it has taken on a very risky and dangerous narrative that she believes is not in line with the intentions, provisions, and objectives of Article 9 of the Plant Treaty.
To answer the question posed previously about who a farmer is, farmers are those set of people referred to in Article 9 of the Plant Treaty, the local and indigenous peasant farmers, under whose stewardship the treasure trove of agricultural biodiversity is maintained, housed, and developed for the benefit of all of us in the wolrd
Secondly, farmers’ rights lie at the very heart of the treaty, and as long as these rights remain unprotected and unimplemented, the treaty runs the risk of its legitimacy being impaired.
Article 9(2) creates legally binding obligations on states to take legal measures to protect and promote farmers’ rights, including but not limited to the provisions in Article 9 (2) a,b,c. This is because of the wordings on the provisions, and it is clear that the drafters and contracting parties intend that Article 9(2) creates legally binding obligations on the states to measures, subject to national laws.
Article 9 (3) which speaks to the right to save, reuse, exchange, and sell farm-saved seeds and propagating material.
What has therefore happened over a couple of years, aside from the critique of the global nature of the economic systems, the trade regimes, and the very limited space that states have to manouvre to implement farmers rights, is that a particular interpretation of Article 9 has risen. This interpretation is that Article 9(2) speaks principally to the taking of administrative, technical, and, or in some cases, financial measures. This must not be encouraged in law. This interpretation attempts to sell the idea that, it is not a general principle of law that Article 9(2) creates legally binding obligations on the states.
The narrative goes further, that what constitutes the implementation of farmers’ rights, entails exceptions in plant variety protection laws. These range from the exception that UPOV ’91 provides in Article 15, with regards to the planting of commercial use and exemption and the optional exemption in Article 15(2), but it also includes sui generis law, such as those that India, Malaysia, Philippines, and Ethiopia have enacted.
These exceptions do not implement farmers’ rights, what they do is safeguard and recognise these rights and allow, in the political and legal space for a discrete regime of farmers’ rights to exist.
Further, she disputed the narrative that, the exceptions in commercial seed laws that allow farmers themselves to use their seeds, without having to go through the variety release and certification processes, amounts to the implementation of farmers’ rights.
The final part of the narrative is that registration of farmers’ varieties entails the implementation of farmers’ rights.
Flowing from this, she referenced Michael Fakhri’s presentation on PVP laws.
She agreed with Micheal that PVP Laws are commercial laws that create economic rights that are enforceable through several procedures and civil courts. These rights cannot be said to trump farmers rights, because these rights are human rights. They are linked to a bundle of rights that farmers have and access, including but not limited to the right to food.
With regards to Article 27 (3)(b) TRIPS Agreement which creates obligations on contracting parties to the WTO to take measures or put in place an effective sui generis system around PVP, she noted that TRIPS does not affirm the supremacy of PVP regimes over human rights instruments, and the point of departure is that the treaty must affirm the centrality and primacy of farmers’ rights as human rights.
For Mariam, PVP laws, whether they are based on UPOV ’91, which she believes is a very draconian system, imported from Europe, put together by developed countries, mostly breeder, imposed on countries in the global south in a very colonial way, or protected by sui generis laws, do not implement farmers’ rights.
The best that can be said about the Indian type of sui generis law is that it provides some safeguards for the potential exercise and fuller articulation of farmers’ rights in a discrete regime that recognise farmers’ seeds systems and farmers’ rights.
India’s laws like Malaysia’s, have tried to provide some space for something else to happen. Mariam thinks the movement in Asia tries to provide some political and legal space for the future implementation of farmers’ rights.
Seed laws and PVP laws are essentially private commercial rights. They are profit-driven imperatives, centred around commercial models that rely on economies of scale for profitability, and are focused on specific breeds which support industrialised agriculture, a particular model of production involving the use of agrochemicals and irrigation machinery.
On the issue of registration of farmers varieties which Kamalesh spoke about extensively. When varieties are talked about, it is in the sense of considerably commercial varieties that meet commercial seed laws requirements.
In terms of PVP laws, it is about allowing some space for farmers to enter the commercial seed market. However, what has been seen is the provisions in seed laws that allow farmers’ varieties to be registered, not measures that implement farmers’ rights, but are rather designed to draw farmers into the commercial seed market.
According to Mariam, farmers’ seeds include landraces, germplasm, seed exchange with neighbours, etc. Therefore, if farmers want to protect varieties and want to enter into the commercial seed market, then they have to comply with those requirements and maybe quality-declared seed system for certification, which is not a representation of what farmers’ seed systems entail.
What local and indigenous farmers are asking for is that they have their seed systems, they need their seeds to be recognised including TK, where there is agency and autonomy, and their needs are respected, protected, and the state takes legal measures to anchor their needs in law, so that theirs is not an unfounded mandate.
There is an obligation on the states to mobilise resources and human capacity, like public research institutions supporting farmers, including the recognition of forms of collective ownership of genetic resources, and the centrality of women roles and powers over the resources.
The support by the states should be a mandatory duty around PPB. It cannot be a programme or project based on Adhoc or cherrypicking, with some farmers in it and some farmers out.
It is sad to note that, whilst African governments took massive loans from the IMF and World Bank, during the pandemic, to provide bailouts to big corporate companies, there were no global funds that small scale food producers could access, yet, the pandemic is one of many shocks smallholder farmers have had to face over a long period. Interestingly, many of these shocks are climate-related shocks that are related to industrial agriculture and greenhouse gas emissions by the sector. The world is, therefore witnessing a situation of close inequality and inequity.
Finally, there is the recognition of the fact that 90 per cent of seed used by smallholder farmers in developing countries come from farmers’ owned seed systems, also that indigenous and local farmers conserve and maintain biodiversity, however, and sadly, there is no existence of the full implementation of farmers’ rights.
Key takeaways from the webinar are:
- The Plant Treaty recognises the need to protect farmers’ rights, especially the right to save, use, exchange, and sell farm-saved seeds and propagating materials. However, the attainment of these rights is subject to the decision of a state to protect these rights; else the rights remain unprotected,
- Participatory plant breeding gives farmers a say, in the development of plant varieties,
- The protection and promotion of farmers’ rights is not on the priority list of the Nepali government,
- The Pokhareli Jethobudho would not have been developed without the input and direction of local and international Non Governmental Organisations, which further points to the lackadaisical nature of government towards the development of farmers’ seed system, and farmers’ right,
- India has enacted a robust law that protects plant varieties and farmers’ rights, however, the duration of time provided for the protection of plant varieties needs to be addressed.
- There is an obligation on the states to mobilise resources and human capacity, like public research institutions supporting farmers, including the recognition of forms of collective ownership of genetic resources, and the centrality of women roles and powers over the resources,
- The effects of climate change are mostly felt by smallholder farmers, who are unable to have access to improved seeds that can withstand the harsh effects of climate change,
- Participatory Plant Breeding encourages diversity and gender equality.
