Stringent plant variety protection may impinge on right to food

10 October 2014

Plant variety protection based on the 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV 91) will make it harder for small-scale farmers to access improved seeds, a key feature of the right to food of resource-poor farmers, says a new report.

The report, "Owning Seeds, Accessing Food", by an international group of non-governmental organisations (NGOs), publishes the results of new research in the widespread practice of small-scale farmers in freely saving, replanting, exchanging and selling seeds.

These practices, the report says, clash with UPOV 91's provisions restricting or even prohibiting such practices for seeds arising from protected varieties of plants by plant breeders.

The NGOs said that developed countries regularly put pressure on developing countries to introduce stringent plant variety protection (PVP) regimes and to adhere to the 1991 Act of the UPOV Convention, without due consideration of its consequences on the enjoyment of human rights of vulnerable groups such as small-scale farmers and in particular women.

They warned that the expansion of intellectual property rights on seeds might well restrict small-scale farmers' practices of seed saving and use, exchange and selling in the informal seed supply system, limiting access to seeds and putting their right to food at risk.

The report, a human rights impact assessment of UPOV 91 based on case studies in Kenya, Peru and the Philippines, was published by the Berne Declaration, with the participation of Bread for the World-Protestant Development Service; the Zimbabwe-based Community Technology Development Trust; the Development Fund-Norway; Misereor, a German Catholic Bishops' Organisation for Development Cooperation; Southeast Asia Regional Initiatives for Community Empowerment (SEARICE); and the Third World Network.

The NGOs, in raising concern over the lack of knowledge of potential human rights impacts of PVP laws that are based on UPOV 91, carried out a human rights impact assessment (HRIA) to analyse the ways in which a UPOV 91-based PVP law could affect the realisation and enjoyment of human rights, particularly the right to food.

Three country case studies were carried out to collect empirical evidence on the potential impacts of UPOV 91-like PVP laws on the right to food, and that all of these case studies were ex ante as the current PVP system in the countries concerned either is not in line with UPOV 91 (the Philippines), has only been amended recently (Kenya), or has not yet been fully implemented and enforced (Peru).

According to their report, the UPOV model was designed with the commercialised farming systems of the developed countries in mind. Perhaps most significantly, agriculture in developing countries is characterised by small-scale farming, which relies heavily on the informal - rather than the formal, commercial - seed system, and is the basis for farmers' livelihoods and national food security in these countries.

One of the primary features of the informal seed system is the widespread practice of freely saving, replanting, exchanging and selling seed.

The report said that unlike in more formal, industrial agricultural systems, purchasing new seed on a yearly basis is relatively rare. However, UPOV 91 partially restricts the use of farm-saved seeds/propagating materials of PVP-protected varieties and prohibits their exchange and sale by farmers.

"Concerns have therefore been raised that UPOV 91-type PVP laws overly restrict the traditions of seed management and sharing among farmers, thereby reducing the effectiveness and integrity of the informal seed system."

The report noted that many developing countries have been prevailed upon to adopt European-style PVP systems based on UPOV. Yet there is little evidence to demonstrate that a PVP system based on UPOV is beneficial for developing-country economies or agricultural systems. In fact, the benefits and drawbacks of UPOV are often the subject of heated debate.

Given the importance of the small-scale farming sector and the informal seed system for many countries, the lack of data about the impacts of UPOV 91-type PVP protection on them, and developing-country officials' need for policy guidance on how to design a PVP system suited to their needs, new assessments of the impacts of UPOV 91-type PVP systems have become necessary, said the NGOs.

According to the report, protecting plant varieties by means of IP is a relatively recent practice, only becoming widespread in industrialised countries in the second half of the last century.

In developing countries, the implementation of PVP is even more recent, triggered to a large extent by the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which came into force in 1995. Article 27.3(b) of the TRIPS Agreement requires WTO Members to "provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof."

Due to concerns that the patent system would hinder breeding of new varieties, most WTO Members tend to opt for a sui generis regime for plant variety protection.

Apart from requiring WTO Members to put in place an "effective sui generis system" for plant varieties, the TRIPS Agreement does not provide any more specificity and it is up to each country to implement a suitable PVP regime.

According to the report, about two dozen developing countries are members of UPOV, and that of these, only a handful have adopted a PVP system in line with UPOV 91; the rest are members of UPOV 78.

It noted that several of the developing countries joining UPOV 91 have done so under bilateral pressure or due to obligations under North-South free trade arrangements (e. g., US and EU FTAs) which require ratification of UPOV 91. This trend is continuing with not only regional and bilateral trade and investment agreements but also Memorandums of Understanding (MoUs) signed under the G8 New Alliance for Food Security and Nutrition requiring developing countries and LDCs to model their plant variety protection regime on UPOV 91 standards.

To some countries, UPOV is understandably an attractive option, providing a ready-made legislative framework for PVP protection, said the report, noting, however, that the UPOV model "was designed with the commercialised farming systems of the developed countries in mind", and that developing-country farming systems differ from these in many respects.

It is for this reason that some developing countries have designed sui generis PVP systems distinct from the UPOV model. For example, the Indian Protection of Plant Varieties and Farmers' Rights Act of 2001 grants plant breeders' rights and recognises farmers' rights and interests on an equal footing.

The report found that one of the features of the informal seed system is the widespread practice of saving, replanting, exchanging and selling seed. Unlike in more formal, industrial agricultural systems, purchasing new seed on a yearly basis is relatively rare.

UPOV 91 does not allow farmers using a PVP-protected variety to freely use, exchange and sell farm-saved seeds/propagating materials. It does however allow, "within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder", a limited farmers' exception, i. e., use of farm-saved seeds for propagating purposes on the farmer's own holding. This limited exception is interpreted as being applicable only to crops where there is a historical common practice of saving seed.

Concerns have been raised that UPOV-type PVP laws overly restrict traditions of seed management and sharing among farmers, thereby reducing the effectiveness of the informal seed systems.

"The exchange and sale of seeds through local social networks, as well as the use of farm-saved seeds, are essential components of small-scale farming systems and risk management in many developing countries," said the report.

"A human rights perspective reminds us that realising the right to food means ensuring that food be accessible in ways that are sustainable (sustainability incorporates the notion of long-term availability and accessibility) and that do not interfere with the enjoyment of other human rights. Undermining agricultural biodiversity can harm the livelihoods and human rights of farmers, as well as weaken the genetic base on which we all depend for our future supply of food," it added.

Another human rights concern related to UPOV-type PVP laws regards potential effects on research priorities. As UPOV itself points out, PVP does not encourage research in crops where there is no significant commercial market, but could incentivize breeding in crops with high commercial potential such as flowers.

"Whilst these new agricultural sectors provide employment and may thus facilitate realisation of the right to food and an adequate standard of living, it is also the case that incentivizing research in the commercial agricultural sector may shift resources away from research that could better benefit small-scale farmers," the NGOs argued.

They also noted that surveys of the literature reveal little empirical evidence which conclusively proves that UPOV 91 brings overall significant benefits particularly in terms of yields, trade, innovation, livelihoods or agro-biodiversity.

The report went on to highlight the potential effects of UPOV 91-type laws on different aspects of seed management.

With respect to the practice of saving, replanting, exchange and sale of seeds, among the report's main findings are that small-scale farmers are highly dependent on the informal seed system for having access to seed (including improved varieties which may be protected) and, thus, for their food security.

A comparative study on seed prices in all three countries offers unequivocal results: seeds procured through formal channels are significantly higher in price compared to seeds obtained through informal channels.

Its other findings are that there is interaction between the formal and informal sectors - seeds from the formal sector are integrated into the informal sector by replanting, exchange and sale of farm-saved seeds; women are more dependent than men on informal sources of seed and play a key role in local seed systems in many countries; and small-scale farmers use a mix of local varieties and "improved" varieties (which in some cases are protected by PVP).

"From a human rights perspective, therefore, it will be essential to preserve access to seeds (including improved seeds) through the informal seed system (which is based on the free use, exchange and sale of seeds)."

Citing some examples, the report found that in all of the three case-study countries there is a movement of varieties from the formal to the informal seed sector, and that if the varieties from the formal sector become protected under UPOV 91-type laws which restrict use, exchange and sale by farmers, the adoption and diffusion of such varieties by the informal seed sector will be limited.

The report further found that UPOV 91 restrictions on the use, exchange and sale of farm-saved PVP seeds will make it harder for resource-poor farmers to access seeds of protected varieties.

It said that with restrictions on the sale of protected varieties, farmers will lose an important source of income. UPOV 91 restrictions on the use, exchange and sale of farm-saved PVP seeds could negatively impact the functioning of the informal seed system, as beneficial inter-linkages with the formal system will be cut off, it added.

From a human rights perspective, restrictions on the use, exchange and sale of protected seeds could adversely affect the right to food, as seeds might become more costly, harder to access, or of less good quality. They also could affect the right to food, as well as other human rights, by reducing the amount of household income which is available for food, healthcare or schooling.

"Therefore, from a human rights perspective, it is essential to safeguard the practice of freely using, exchanging and selling seed/planting materials particularly among smallholder farmers," said the NGOs.

The report cautioned that by curtailing options for accessing seed (like farm-saved seed or seed distributed through informal channels at affordable rates), the introduction of UPOV 91 could increase farmers' dependence on the formal seed sector, or reduce their access to improved seeds. This would raise additional concerns such as risk of indebtedness.

On the issue of traditional knowledge related to seed conservation and management, the report found that farmers apply traditional knowledge in the selection, preservation and storing of seed; that traditional knowledge is the basis on which local innovation and in situ seed conservation take place; that women's knowledge is of particular relevance to local seed and food systems, especially in the Andean region; and that the possible adverse effects of PVP laws on traditional knowledge systems are usually ignored when adopting these laws.

From a human rights perspective, the report warned that UPOV 91-type restrictions could contribute to the erosion of traditional practices and seed management systems (which could incorporate protected varieties) and consequently adversely impact on cultural rights, minority rights, indigenous peoples' rights, women's rights, as well as on biodiversity and the right to food.

Evidence from all three countries, particularly the Philippines, clearly suggests that if PVP laws modelled on UPOV 91 were introduced and restrictions on saving, exchanging and selling PVP seed were imposed, farmers would gradually lose their know-how related to seed selection and seed preservation, to the extent that protected varieties play a role in their seed system.

They would also gradually lose their ability to make informed decisions about what to grow and on which type of land, how to respond to pest infestation, or how to adapt their seed system to changing climatic conditions.

The process of "de-skilling" of farmers - which is already underway with the decline of local agro-biodiversity - could become more acute if restrictions on use of seeds were introduced through UPOV 91-style laws, the report said.

It noted that UPOV 91 does not acknowledge farmer know-how regarding varietal selection nor the knowledge systems of women in the management of plant genetic resources. In addition, UPOV does not allow disclosure of origin and legal provenance in PVP applications - an important tool to deal with misappropriation of traditional knowledge.

The report highlighted some further findings, namely, that improved varieties often require more inputs compared to local varieties, pushing up production costs. In the case of protected varieties, seed costs drive production expenses further up.

In addition, higher production cost poses a risk for cash-strapped farmers as it affects the stability of their household budget and the increased production cost competes with other essential household expenditures.

From a human rights perspective, the report underscored that the higher (input) costs of PVP-protected varieties pose risks for vulnerable farmers by affecting the stability of their household budget and decreasing the financial resources available for basic needs such as food, healthcare and education.

The report observed that the experience in Europe and other regions with UPOV 91-type laws and seed laws on varietal registration and seed certification (which has been in place for several years) has shown that such laws translate into reduced options for farmers to access seed through informal channels, and that as a result, formal seed supply becomes the primary source of seed and farmers are left with few options other than buying seed from public or private seed suppliers.

On the process for adopting, revising and implementing PVP laws, the report found, amongst others, that the processes lack transparency - none of the three governments in the case-study countries provided sufficient information on the process.

There has also been insufficient participation of affected stakeholders in the process of revising or adapting the PVP laws, especially in Kenya and Peru. None of the country research teams could find evidence that the impacts or likely impacts of new or revised PVP standards on livelihoods, human rights or nutrition, or on the poorest and most vulnerable sectors of the population, had been assessed.

"The lack of participation in the formulation of national PVP policies and the absence of human rights impact assessments of such new policies are inconsistent with the three countries' human rights obligations. Moreover, it increases the likelihood of enacting laws and policies that are themselves not human rights-compliant," said the report.

It noted that UPOV 91-type laws are often introduced to foster the introduction and importation of foreign planting materials. This requires a reliable and effective import control system to be in place. If the phytosanitary system of a State is not robust enough, increased imports of seeds or planting material will increase the risk of the introduction of pests and diseases, which may disproportionately affect smallholder farmers.

The impossibility of integrating a disclosure requirement into a UPOV 91-type PVP law limits the ability of a State to fulfil its obligations under the Convention on Biological Diversity (CBD), the Nagoya Protocol and UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the report further said.

The report offered a number of specific recommendations to a range of stakeholders, including governments, the UPOV Members and Secretariat, providers of technical assistance, and civil society organisations.

Among its key recommendations to governments are for an HRIA to be undertaken before drafting a national PVP law or before agreeing to or introducing intellectual property provisions in trade and investment agreements in the area of agriculture.

Governments should also ensure that they abide by a transparent and participatory process that includes all potentially affected stakeholders, when drafting, amending or implementing PVP laws and related measures.

They should further ensure that PVP laws and related measures do not restrict the implementation of other legal obligations and policies with regard to realising farmers' rights, the protection of indigenous peoples' rights and traditional knowledge, sanitary or phytosanitary standards, or the protection and sustainable use of biodiversity (including the ability to take all measures necessary to prevent misappropriation of genetic resources and associated traditional knowledge).

Developed countries should refrain from requiring developing countries to ratify UPOV's 1991 Act or to implement any other specified PVP law, whether through trade or investment agreements or through technical assistance or development cooperation programmes.

The report recommended that governments of developing countries should, amongst others, use all the flexibilities available to them when drafting PVP laws and related measures, taking into account in particular the needs of the most vulnerable groups particularly small-scale farmers, and refrain from participating in any agreements or donor programmes that would restrict these flexibilities.

They should also take effective steps towards meeting their right-to-food obligations when drafting, amending or implementing PVP laws and related measures, and allow small-scale farmers to save, exchange and sell farm-saved seeds/propagating material.

Among the report's recommendations to the other actors are:

(i) UPOV Members and Secretariat to review those aspects of the UPOV rules and their workings that affect the informal seed sector, with a view to ensuring that in practice as well as on paper, these rules facilitate PVP systems that reflect the interests and needs of developing countries;

(ii) technical assistance providers to ensure that beneficiary countries undertake a thorough objective assessment of their agricultural situation covering the formal and informal sectors and their international obligations (e. g., human rights obligations and obligations under the Convention on Biological Diversity, the International Treaty on Plant Genetic Resources for Food and Agriculture, etc.) and draft a sui generis PVP law that is evidence- based and suitable for their respective conditions, needs and interests;

(iii) all concerned actors to raise awareness of the important role of the informal seed sector in many countries and the possible human rights implications of UPOV 91-type PVP laws; and

(iv) a call for civil society to get involved when governmental or regional bodies draft PVP-related laws.

Plant variety protection, UPOV, food security Biodiversity, Access, Indigenous Knowledge and IPRs

TWN Info Service on Biodiversity and Traditional Knowledge Oct14/08

10 October 2014