South Asia Watch on Trade, Economics & Environment (SAWTEE)

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Protection of Farmers' Rights within TRIPS
Published: The Rising Nepal, 3 October 2004
By: Kamalesh Adhikari

Amartya Sen, a distinguished economist, in his book Development as Freedom, states, "Poor people live without fundamental freedoms of action and choice that the better-off take for granted". Within the intellectual property right (IPR) regime of the World Trade Organisation (WTO), if we relate this statement with the case of developing countries' farmers (poor people), and the developed countries' commercial breeders and seed companies (better off), this holds true.

Within the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the WTO, patents and plant variety protection (PVP) are two different forms of IPRs. Both provide exclusive monopoly rights over the creation (such as new plant variety) for commercial purposes over a period of time. The provision for patenting on life form is the most contentious issue within TRIPS. A patent is a right granted to an inventor to prevent all others from making, using, and/or selling the patented invention for 20 years. The criteria for a patent are novelty, inventiveness (non-obviousness), and utility.

PVP provides patent like rights to plant breeders. What gets protected in this case is the genetic makeup of a specific plant variety. The criteria for protection are: novelty, distinctness, uniformity, and stability (DUSN). PVP laws can provide exemptions for breeders, allowing them to use protected varieties for further breeding, and for farmers, allowing them to save seeds from their harvest. For the seed industry, PVP is regarded as the weaker sister of patenting mainly because of these exemptions.

There are four different but interrelated rights of farmers, which are mostly affected by these IPRs.

The first is right to seed. Most farmers in developing countries depend on informal seed supply system, i.e., they save, exchange, reuse and sell seeds informally. Under the IPR regime, farmers will be denied the right to save patented or protected seeds for subsequent planting and will have to buy seeds for each season. They will loose control over plant varieties to corporations that control the seed market. Already, six big companies (Monsanto, DuPont, Syngenta, Dow, Aventis and Grupo Pulsor) own 74 percent of the patents on major food crops, including rice, wheat, maize, soya and sorgum.

The second is right to traditional knowledge. While developing countries are home to about 90 percent of the world's genetic resources and traditional knowledge, more than 90 percent of world's research and development activity takes place in industrial countries. Whereas a gene-rich, technology-poor South and a technology rich, gene-deficient North show the potential for mutually beneficial bargains between them, a number of prominent companies of the North are using the traditional knowledge of Southern farmers as well as their plants or resources without providing any benefit to them.

The third is right to equity in benefit sharing. There are studies revealing that 'a large number of patents have been granted on genetic resources and knowledge from developing countries without the consent of the possessors of the resources and knowledge. There has been extensive documentation of IPR protection being sought over resources 'as they are' without further improvement. These include a US patent on quinoa, which was granted to researchers of the Colorado State University, a US plant patent on ayahuasca, a sacred and medicinal plant of the Amazon region, and other patents on products based on plant materials and knowledge developed and used by local farmers and people, such as those relating to the neem, kava, barbasco, endod and turmeric'.

The fourth is right to participate in the decision making process. Farmers are unorganised group in developing countries. They are not consulted in the decision making process on matters related to their resources. It is often the organised group, i.e., breeders and commercial seed companies, which decide their position whether that is in the market or during negotiations at the multilateral level. Such an exclusion from the decision making process, which determines their fate, obviously is a violation of their right.

Against the backdrop that Nepal is now a WTO member, these issues deserve serious attention, especially from lawmakers. As a WTO member, Nepal is required to protect its plant varieties either through patent, an effective sui generis (of its own kind) system or a combination of both. This should be seen as a flexibility because the country can devise its own kind of legislation to protect its plant varieties.

It is important to note that during accession negotiations for WTO membership, Nepal did not only manage to fend off the US pressure to adopt International Union for the Protection of New Varieties of Plants (UPOV), which is a so-called sui generis system for PVP designed by the developed countries to promote their commercial breeders and seed companies, but also committed to devise a PVP law at the national level by December 2005. In paragraph 130 of the "Report of the Working Party on the Accession of the Kingdom of Nepal to the World Trade Organisation", it has been stipulated that in accordance with the action plan on the implementation of the TRIPS Agreement, the protection of plant varieties would be included in the new Plant Variety Protection Act to be promulgated by December 2005.

Therefore, it is imperative that the lawmakers pull out all the stops to devise that kind of legislation, which respects farmers' rights. At the same time, it is also important that lawmakers maintain a balance between the rights of farmers, and the rights of local breeders. This is crucial because local breeders, who can also be a farmer or a researcher, must be encouraged to engage in breeding programmes for further development of plant varieties. However, this is not the only challenge to be addressed. The real challenge is in preventing the developed countries' commercial breeders and seed companies from unreasonably exploiting farmers' rights and genetic resources.

Notably, capitalising on the TRIPS flexibility to adopt the sui generis system for PVP and maintaining a balance between the rights of farmers and breeders, India and Namibia have formulated farmer-friendly PVP laws. In response to UPOV, these laws have been regarded as models for other developing countries. However, one should take note of the fact that countries have different nature of farming systems and plant varieties. Therefore, Nepal can use these models as a reference to prepare a law that suits its socio-economic, cultural and geographic needs. There is always a chance to win, if there is a room to play.

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