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BEST PRACTICES:

What are successes regarding the right to save, use, exchange and sell farm-saved seed?

The International Treaty is vague on Farmers' Rights to save, use, exchange and sell farm-saved seed. Section 9.3 of the Treaty states that nothing in this article (Article 9 on Farmers' Rights) 'shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed, subject to national law and as appropriate', which does not give much direction. The preamble sets out that 'the rights recognized in this Treaty to save, use, exchange and sell farm-saved seed and other propagating material (…) are fundamental to the realization of Farmers' Rights'. Since no specific rights are mentioned in the Treaty, the Preamble is not quite clear on this point. Despite the lack of precision, the general line of thought is clear. It is important that farmers be granted rights in this direction, although the individual countries are free to define the legal space they deem sufficient for farmers in this regard.

The freedom to define such legal space for farmers is also restricted by other international commitments. Most countries in the world are members of the World Trade Organization (WTO), and are thus obliged to implement the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS Agreement states that all WTO member countries must protect plant varieties either by patents, or by an effective sui generis system (a system of its own kind), or a combination. The limits to a sui generis system and the meaning of an 'effective' sui generis system are not explicitly defined in the text. In other words the countries have to introduce some sort of plant breeders' rights.

The Union for the Protection of New Varieties of Plants (UPOV) has held that the most effective way to comply with the provision of an effective sui generis system is to follow the model of the UPOV Convention, and there are several proponents of this stand. There are several versions of the UPOV model. The most recent one (the 1991 Act of the UPOV Convention) provides that plant breeders are to be granted comprehensive rights - to the detriment of farmers' customary rights to save, re-use, exchange and sell seeds. It is still possible to make exceptions for small-scale farmers to enable them to save and re-use seeds, but only within strict limits. Exchange and sale of seeds among farmers is totally prohibited. All this applies to seeds protected with plant breeders' rights, and not to traditional varieties.

The UPOV model has met with resistance from some countries and many organizations fearing that joining UPOV would be detrimental to the rights of farmers to save and share propagating material. The TRIPS Agreement provides only minimum standards, leaving enough scope for the development of other solutions more compatible with the demand for Farmers' Rights. WTO member countries must therefore meet their TRIPS obligations regarding plant breeders' rights, while at the same time creating the necessary legal space for the realization of Farmers' Rights under the International Treaty. So the question becomes what room to manoeuvre is left to countries within the framework of their international obligations, to grant farmers the right to save, use, exchange and sell seeds.

An additional constraint to Farmers' Rights in many countries is the introduction of seed laws, which require seed certification as a condition for bringing seeds out on the market, and in some cases even as a condition for exchange among farmers. As traditional varieties are normally not genetically homogenous enough to meet the requirements for certification, these varieties are then excluded from the market. Often these seed laws also stipulate that only authorized seed shops are allowed to sell seeds and that all other exchange is prohibited (sometimes with exceptions for horticultural plants or certain other species). This is the case throughout most of Europe. Such legislation together with strict plant breeders' rights represent a serious obstacle to Farmers' Rights to save, use, exchange and sell seeds. What possibilities are there to make such laws more compatible with these customary rights of farmers - which are so crucial to the maintenance of agro-biodiversity for food security, today and in the future?

An ultimate objective from the perspective of Farmers' Rights would be to grant all such rights to farmers. This would mean that farmers would be entitled to save, use, exchange and sell farm-saved seed, whether from varieties protected with intellectual property rights or not. Other solutions would be needed in terms of compensation to plant breeders for their efforts and to solve the issue of plant health concerns. The ultimate success story would tell about a country where all these rights have been granted.

India stands out as the country with the most extensive legislation on this topic in the world. In most other countries with legislation on plant variety protection, Farmers' Rights are more limited, often circumscribed by acts of legislation, such as plant variety protection acts and regulations concerning seeds and seed certification. In such cases, a positive achievement can involve making a regulation less stringent or avoiding the adoption of a stricter regulation.

In countries where regulations are very strict and there seems little scope for achieving legal changes, the question is how to proceed. It might be possibilities to enable farmers to save, use, exchange and sell farm-saved seeds despite existing laws.



Pages in this sub-section:
   WHAT IS A 'SUCCESS STORY' OF FARMERS' RIGHTS?
   What are successes regarding the right to save,use, exchange and sell farm-saved seed?
   What are successes regarding traditional knowledge related to agro-biodiversity?
   What are successes regarding benefit sharing?
   What are successes regarding participation in decision making?
Top top
 In this section:
  BEST PRACTICES
  What is a 'success story' of FR?
  Success stories from the realization of the right to save, use, exchange and sell farm-saved seed
  Success stories on traditional knowledge related to agro-biodiversity
  Success stories on benefit-sharing measures
  Success stories on participation in decision making
  Common features

Photo: Pratap Shrestha, Nepal