| BEST PRACTICES:
What are successes regarding the right to save, use,
exchange and sell farm-saved seed?
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
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.
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.
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
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
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
successes regarding the right to save,use, exchange and sell farm-saved
successes regarding traditional knowledge related to
successes regarding benefit sharing?
What are successes regarding
participation in decision making?