Article 9 – Farmers' Rights
The concept of Farmers' Rights was first introduced into the FAO International Undertaking on Plant Genetic Resources as an Agreed Interpretation by FAO Conference Resolution 4/89,75 and was further defined by FAO Conference Resolution 5/89. The concept resulted from debates in FAO that started in 1979 concerning what some countries saw as asymmetric benefits accruing to farmers whose efforts over the centuries in breeding and selecting farmers' varieties have made an immense contribution to modern agriculture, and the producers of commercial varieties that take these farmers' varieties as a starting point and reap the benefits from what were characterized as relatively small improvements. Farmers' Rights were seen as a means to reward farmers and their communities for their contributions in the past, to encourage them to continue in their efforts to conserve and improve PGRFA, and to allow them to participate in the benefits derived, at present and in the future, from the improved use of plant genetic resources, through plant breeding and other scientific methods.
Conference Resolution 5/89 defined the concept of Farmers' Rights in terms of the substantive grounds for the concept, the entities in which the rights were vested and the objectives for which they should be recognized. Thus the definition in the operative paragraph of Resolution 5/89 read as follows: “Farmers' Rights mean rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the centres of origin/diversity. These rights are vested in the International Community, as trustee for present and future generations of farmers, for the purpose of ensuring full benefits to all farmers, and supporting the continuation of their contributions, as well as the attainment of the overall purposes of the International Undertaking.” By declaring that Farmers' Rights were vested in the International Community, the Resolution sought to differentiate them from the rights of individual farmers to compensation for individual innovations. This aspect was reinforced by FAO Conference Resolution 3/91, which indicated that “Farmers' Rights will be implemented through an international fund on plant genetic resources which will support plant genetic conservation and utilization programmes, particularly, but not exclusively, in the developing countries”.
The need to provide for the realization of Farmers' Rights was one of the principal objectives of the renegotiation of the International Undertaking, as indicated in FAO Conference Resolution 7/93, which initiated the negotiations for the Treaty. The need to realize Farmers' Rights was reaffirmed in various other contexts, including:
Chapter 14.60(a) of Agenda 21 (approved at the UNCED, held in Rio de Janeiro in 1992), stated that the appropriate United Nations agencies and regional organizations should “strengthen the Global System on the Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture (PGRFA) by [...] taking further steps to realize Farmers' Rights”.
Resolution 3 of the Nairobi Conference for the Adoption of an Agreed Text of the CBD identified the realization of Farmers' Rights as one of the “outstanding issues” for further negotiation. The CBD itself did not explicitly mention Farmers' Rights.
The GPA included the realization of Farmers' Rights at the national, regional and international level, as one of the long-term objectives of the Plan, in the context of in situ conservation (para. 32).
A June 1999 study on the Right to Food, submitted to the Commission on Human Rights, urged that Farmers' Rights be promoted as part of the “Right to Food”, especially since “our future food supply and its sustainability may depend on such rights being established on a firm footing” (Commission on Human Rights, 1999).76
During the course of the negotiations of the Treaty, the issue of the realization of Farmers' Rights caused considerable difficulties. One of the problems was that while the rationale for the concept was widely accepted, the actual definition of the content of those rights and the respective obligations remained somewhat vague and inchoate. Historically, Farmers' Rights had come to mean different things to different people. To some it was associated with a desire for a form of intellectual property rights for farmer-developed materials; to others as an approach to limit the encroachment of intellectual property rights on PGRFA; to others it was more of a political motivation for the promotion of PGRFA-related activities of benefit to small, traditional farmers. Yet others were concerned that the “vesting of the rights in the international community” in the wording of Conference Resolution 5/89 implied that the rights were too far removed from the farmers themselves.
The subject occupied considerable negotiating time during the negotiation of the Treaty, with the discussions focussing on “a bundle of rights” that were more directly related to the farmers themselves. Article 9 of the Treaty reiterates the broad rationale for Farmers' Rights in Article 9.1 and then identifies those rights in Paragraphs (a) to (c) of Article 9.2. In the final text of Article 9.2, the concept of Farmers' Rights has undergone a sea change from that originally envisaged in the Agreed Interpretations of the International Undertaking and has become more focussed on rights that may be enjoyed by farmers under national law. The identification of the various components of the “bundle of rights” also brings the concept of Farmers' Rights more in line with the provisions of Article 8(j) of the CBD.
9.1 The Contracting Parties recognize the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centres of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world.
In Article 9.1, Contracting Parties acknowledge the enormous past, present and future contributions of farmers in conserving and developing plant genetic resources, particularly in centres of origin and crop diversity, and their fundamental importance to modern food and agriculture production. These contributions are not explicitly linked to Farmers' Rights in Article 9.1, although they are of course implicitly linked by their inclusion in an Article entitled Farmers' Rights. Similar wording in the Preamble is more explicitly linked to Farmers' Rights.
The text in Article 9.1 follows point 3 of the Agreed Interpretation in FAO Resolution 4/89. Note that while only “farmers” were mentioned in the Annexes to the International Undertaking, this Article refers to “the local and indigenous communities and farmers”. This is a clear indicator of the growing recognition of the role played by indigenous communities in the creation and preservation of knowledge of value for the society as a whole. This distinction also has the effect of giving states the option of treating local and indigenous communities as a distinct class from that of farmers though in many cases indigenous people and farmers may be one and the same.
It should also be noted that this paragraph is just a statement of recognition, and does not create any type of legal obligation. Nevertheless, it does provide an important rationale for the substantive provisions that follow.
9.2 The Contracting Parties agree that the responsibility for realizing Farmers' Rights, as they relate to plant genetic resources for food and agriculture, rests with national governments. In accordance with their needs and priorities, each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers' Rights, including:
Article 9.2 makes it clear that under the Treaty the realization of Farmers' Rights is a matter for national governments. As noted above, this reflects a major change from the text of the Agreed Interpretation, which had emphasized the global nature of Farmers' Rights and the primary role of the international community in realizing Farmers' Rights. FAO Resolutions 4/89 and 3/91 had established, in this regard, that Farmers' Rights would be implemented through an International Fund. In the Treaty, this global element of Farmers' Rights finds its reflection more in the provisions of Article 13 on Benefitsharing in the Multilateral System and Article 18 on Financial Resources than in the provisions of Article 9.
Under Article 9.2, each Contracting Party is encouraged, “in accordance with their needs and priorities…as appropriate, and subject to its national legislation”, to take measures to protect and promote Farmers' Rights. The various limiting epithets are central to the meaning of the provision. Decisions regarding the measures, if any, to be taken to protect and promote Farmers' Rights are decisions that each government is to take as appropriate in the context of its own needs and priorities and in accordance with its own national legislation. Governments are not required to take such measures, but through the word “should”, are encouraged to do so, as and where appropriate. Implementation of the measures indicated in Paragraphs (a) to (c) will thus be largely dependent upon each government's judgement on what is appropriate in the light of its own priorities and its own national law. The nature and scope of the measures to protect and promote Farmers' Rights is, therefore, likely to differ significantly among countries.
The “core” content of Farmers' Rights at the national level is identified in Paragraphs (a) to (c) as the protection of traditional knowledge, the right to participate in benefit sharing, and the right to participate in making decisions at the national level regarding PGRFA. It is important to note, however, that Paragraphs (a) to (c) are only illustrative of the various components of Farmers' Rights, and do not exhaust the modalities by which Farmers' Rights may be realized.
Paragraph (a) encourages measures for the protection of “traditional knowledge”. Given the scope and objectives of the Treaty, the type of traditional knowledge to be protected is limited to that which is “relevant to plant genetic resources for food and agriculture”. In this sense, the provision is narrower in scope than Article 8(j) of the CBD which addresses a broader range of biological resources. In another sense, however, the scope of the provision may be broader than that of the CBD in that it is not limited to traditional knowledge “of indigenous and local communities embodying traditional lifestyles” as in Article 8(j) of the CBD. In the Treaty, traditional knowledge would appear to refer more to the traditional knowledge of farmers, a group that may well overlap with indigenous and local communities, but is not necessarily coterminous with them. Under the Treaty, the issue of protection of traditional knowledge refers mainly to the knowledge used to develop, and is thus incorporated in, farmers' varieties (“landraces”) and certain associated knowledge (e.g. specific cultivation practices).
The choice of the means by which any individual Contracting Party may protect traditional knowledge relevant to PGRFA is left to the Contracting Party concerned. The development of a sui generis regime for the protection of farmers' varieties is one of the possible ways of implementing this component of Farmers' Rights.86 The issue has received considerable attention in the literature, but little progress has been made in terms of actually implementing this kind of protection. The establishment of a sui generis regime poses, in fact, complex conceptual and practical issues.87 On the conceptual level, it is not clear whether the protection of farmers' varieties under an intellectual property rights (IPRs) system would have any positive impact on their conservation or stimulate breeding activity. Indeed it may be that any system of protection might endanger the very traditional practices that promote genetic diversity in landraces. It is also unclear whether protection would serve the purpose of strengthening the rights of communities and traditional farmers over their resources. There may be more appropriate non-IPRs methods of protecting such varieties. One example could be through some form of “misappropriation regime” that would not grant farmers IPRs in the sense of a right to exclude use by third parties, but rather focus on any misuse or misappropriation of the knowledge. What would constitute misuse or misappropriation would of course need to be defined by the terms of the regime.88 In this context, the World Intellectual Property Organization (WIPO) and its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, have been reviewing state practice with respect to the protection of traditional knowledge through traditional intellectual property mechanism and the elements that would need to be included in any sui generis system for the protection of traditional knowledge.89
FAO Resolution 5/89 introduced the concept of the participation of farmers in “benefit-sharing” as one of the objectives of Farmers' Rights.90 Under Part IV of the Treaty, the Contracting Parties agree that benefits arising from the use of PGRFA shared under the Multilateral System should flow primarily to farmers who conserve and sustainably utilize PGRFA, with priority accorded to those in developing countries, or countries with economies in transition. 91 How those benefits will be shared will be a matter to be determined by the Governing Body of the Treaty, although Article 13.2 specifies a number of mechanisms92 and indicates that the sharing of benefits must take into account the priority activity areas in the GPA.
Paragraph (b), however, must be seen in its context of actions that national governments may take at the national level in exercise of their responsibility for realizing Farmers' Rights. Certainly national governments will have a role in the distribution of benefits arising under the Multilateral System in their own countries, whether through projects to develop the capabilities of farmers to conserve and use PGRFA, or other means referred to in Article 13. But what other measures should national governments be taking to ensure that farmers get their fair share of benefits arising from the use of PGRFA?
In so far as material already in the Multilateral System is concerned (i.e. plant genetic resources listed in Annex I, under the management and control of the Contracting Parties and in the public domain), it would appear that the benefit-sharing mechanisms set up in Article 13 may be intended to be exclusive. In other words, countries receiving a request for PGRFA under the Multilateral System would not be entitled to impose a bilateral requirement for compensation for farmers under Article 9 in addition to the Multilateral System conditions provided for in articles 12 to 13. However, for the most part, where PGRFA are found in in situ conditions, apart from that found in national parks or other publicly owned land, they may be found, under some countries' laws, to be the property of, or at least subject to additional property rights of, the owners of that land. In such cases, the material will not be completely within the management and control of the Contracting Parties.93 It will therefore be in the Multilateral System only if so included by the owner concerned. If this is to be desired, then the question is what incentives can the national governments offer farmers to include their plant genetic resources in the Multilateral System. Again, various options may be open to national governments, including participation in capacity building projects, participatory plant breeding, or other means discussed below.
(c) the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.
Poorer farmers, and most notably, women farmers, are often excluded from decision-making processes at different levels, including in particular at the national level. Their substantial efforts and innovations in plant genetic resources conservation and management may not be recognized and their specific needs and priorities may not therefore be adequately provided for in national policy. In recent years, Participatory Rural Appraisal and other similar participatory tools and techniques have been developed and adapted for use in different regions and sectors. Additional efforts are still required to ensure a gender sensitivity of such approaches in plant genetic resource conservation and utilization.
One of the components of Farmers' Rights, according to Paragraph (c), is “the right to participate in making decisions” at the national level “on matters related to the conservation and sustainable use” of PGRFA. This right, which implies a right to have a say in national policy making as well as administrative decisions relating to PGRFA, should be recognized, according to the chapeau of Article 9.2, “as appropriate” and subject to “national legislation”. As stated above, this means that national governments have considerable scope to determine the extent of such right. The importance of ensuring the participation of local, indigenous and farming communities in decision-making concerning PGRFA has been stressed in various forums. 94
Some national laws have begun to incorporate these principles. In the Philippines, the Indigenous Peoples Rights Act contains a broad recognition of community rights. Access legislation adopted in some countries also provides for some form of participation in relation to the collecting of genetic materials. Under Philippines Executive Order No. 247,95 for instance, the rights of indigenous and local communities must be taken into account with regard to informed consent procedures.
Other mechanisms, not necessarily set out in national legislation, may be found for ensuring the practical participation of farmers in decision making at the national level. Examples would be the inclusion of farmers or producers organizations on critical policy bodies such as national plant genetic resources committees, or on other bodies that take decisions relevant to plant genetic resources, including committees dealing with the registration of new varieties.96
The realization of Farmers' Rights in relation to farmers' participation in decision-making will be dependent upon the nature of the relations between local, indigenous and farming communities, on the one hand, and national governments, on the other hand. A wide range of scenarios can be considered in this regard. In any case, the formal recognition of Farmers' Rights in the Treaty certainly constitutes an important step towards the reaffirmation of farmers' and communities' rights to participate in the taking of decisions that essentially concern the kind of farming system that they wish to keep as an integral part of their culture and lifestyles.
9.3 Nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate.
Farmers' rights with regard to saving, selling and exchanging seed are a controversial issue. One view is that farmers should be free from any restriction with regard to the use and disposition of seeds, including those protected under IPRs. This view is not shared, however, by those who believe that the unrestricted use of IPR protected materials by farmers would erode incentives to commercial breeding and create a threat to future world food security. The two viewpoints are reflected in the 1978 UPOV Convention, which implicitly recognized the rights of farmers to reuse farm-saved seed and the 1991 UPOV Convention, which extended the scope of breeders' rights, but provided that individual Contracting Parties may, in their national legislation, allow the reuse by farmers of farm-saved seed that is protected by Plant Breeders' Rights on their own holdings.97
Article 9.3 was therefore offered as a compromise solution between those who sought a positive recognition under the revised International Undertaking of certain rights of farmers in relation to saving, using and exchanging seeds, and those who feared that the Treaty could limit breeders' rights in a way that would be inconsistent with UPOV 1991.
The agreed text is neutral in that respect. While Article 9.3 would not be a sufficient legal basis for claiming rights in relation to saving, using and exchanging seeds, at the same time, it does not restrict the options that may be adopted by national governments in that regard. Clearly, the agreed text does not exclude the possibility that national laws (including Plant Breeders' Rights and seed legislation) may recognize farmers' rights in relation to saving, using and exchanging seeds/propagating materials. Nor indeed does it prevent national laws from limiting or excluding such rights where the seed/propagating material is protected by Plant Breeders' Rights or where otherwise required by seed trade management considerations.
In light of the existing debate, a clear distinction must be made according to the types of materials involved.
Farmers' varieties: There is no doubt that farmers can use, exchange, sell or otherwise dispose of the varieties that they have developed and which are not subject to third parties' IPRs. In fact, most farmers' varieties (“landraces”) are today outside the IPRs system, except in rare cases. Hence, the farmer that has developed such varieties cannot be prevented from any action relating to them. At the same time, he/she has no legal power to prevent others from using or reproducing such varieties; this is precisely one of the problems that some proposals for sui generis protection aim to address.
Farmers' own produce: Farmers are free to sell, exchange or share their own produce, whether it has been obtained from their own varieties or with varieties protected by IPRs (unless this right is curtailed by contractual obligations agreed with seed distributors). In this sense, the recognition of the right to dispose of the “farm produce” as proposed, for instance, in the Indian draft law on Plant Breeders' Rights, does not mean any significant concession to farmers, since they legally already enjoy the right to sell it.
Protected varieties: The situation may be substantially different, however, in relation to the sale or other forms of distribution of seeds for propagating purposes, when such seeds are protected by IPRs held by third parties. Historically, national legislation for the protection of Plant Breeders' Rights has tended to allow farmers to reuse protected seeds they have saved on their own farms (“farmers' privilege”98), though it has normally prevented acts that may lead to further propagation without the consent of the Plant Breeders' Rights titleholder.
The scope of the “farmers' privilege” has varied in different national laws. UPOV 1978 was silent on the matter. Nevertheless Article 5(1) of the 1978 Act has been interpreted as implicitly allowing farmers to replant and exchange protected seeds in that it provided the breeder with exclusivity only in production for purposes of commercial marketing, offering for sale and marketing of seeds.
The 1991 revision of UPOV broadened the scope of Plant Breeders' Rights to preclude unauthorized production or reproduction of all protected seed. At the same time, it explicitly allowed for an optional exception to the Breeder's right to be established under national legislation. Under Article 15(2) of UPOV 1991, each Contracting Party may, within reasonable limits and subject to safeguarding the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, seed from protected varieties they themselves have harvested.
Since UPOV 1991, national laws have tended to restrict the scope of the farmers privilege to different degrees, both in developed and in developing countries. Thus, the European Community Plant Variety Rights (Council Regulation EC No. 2100/94) limits the “farmers' exception” to certain species and requires the payment of an “equitable remuneration” to the breeder for planting- back protected seeds, except in the case of “small farmers”. In Brazil, law No. 9456 (1997) has established that such exception does not apply in relation to sugar cane. It only benefits small farmers, who can provide or exchange seeds on a non-commercial basis with other small farmers.
In sum, Plant Breeders' Rights provide some room for the farmers' practice of saving seed, but the recent legislative trend has been to restrict the room available for following such practice.
Some options that would reconcile IPRs with the farmers' right to save, sell and exchange IPR protected materials may be considered, such as the following, all of which present significant difficulties with regard to practical application:
Distinguishing different groupings of farmers with regard to the plantingback of protected material, on the basis of volume of output, size of landholdings, species concerned, etc. although such determination is difficult on a practical basis. Thus, a broad farmers' exception may be granted to “primarily-subsistence farmers”, or to “small” farmers who customarily reuse seed because they lack access to or financial resources for new seed every growing season. Large farmers in the commercial sector may be subject instead to other, more stringent, rules.
Exempting exchanges of seed that take place within the same community or with neighbours, and between farming communities.
Allowing certain sales of seeds as propagating materials, for instance, those that take place within the farmers' customary market area.
75While the Resolution was approved unanimously by more than 160 countries, it is to be noted that this fact did not necessarily mean that all countries were in total agreement with the concept of Farmers' Rights or the rationale for Farmers' Rights set out in the Agreed Interpretation, given that a number of countries had refrained from adhering to the International Undertaking in the first place.
76The right to adequate food and to be free from hunger: Updated study on the right to food, submitted by Mr. Asbjorn Eide in accordance with Sub-Commission decision 1998/106. UN doc. E/CN.4/Sub.2/1999/12 para. 121.
77International Convention for the Protection of New Varieties of Plants, 2 December 1961, 33 U.S.T. 2703, 815 U.N.T.S. 89, as Revised at Geneva on 10 November 1972, on 23 October 1978, and on 19 March 1991.
78Azerbaijan, Costa Rica, Egypt, Georgia, Honduras, Iceland, India, Jordan, Kazakhstan, Morocco, Serbia and Montenegro, Tajikistan, the Former Yugoslav Republic of Macedonia, Uzbekistan, Venezuela, Viet Nam and Zimbabwe, as well as the European Community and the African Intellectual Property Organization, have initiated with the Council of UPOV the procedure for becoming members of the Union. Many other non-member States currently have laws to protect plant varieties, or proposals for laws before their legislatures.
79With a notification under Article 34(2) of the 1978 Act.
80With a declaration that the 1978 Act is not applicable to the Hong Kong Special Administrative Region.
81With a declaration that the Convention of 1961, the Additional Act of 1972, the 1978 Act and the 1991 Act are not applicable to Greenland and the Faroe Islands.
82With a declaration that the 1978 Act applies to the territory of the French Republic, including the Overseas Departments and Territories.
83Ratification for the Kingdom in Europe.
84With a declaration that the Convention of 1961 and the Additional Act of 1972 apply to the entire territory of Spain.
85With a reservation pursuant to Article 35(2) of the 1991 Act.
86On this issue, see also Carlos M. Correa, Options for the Implementation of Farmers' Rights at the National Level, South Centre, 2000, Working Paper #8.
87See Seeding Solutions, Volume 2, Options for National Laws Governing Access to and Control Over Genetic Resources, The Crucible Group, IDRC, 2002.
88On this suggestion, see Carlos Correa: Traditional Knowledge and Intellectual Property: Issues and options surrounding the protection of traditional knowledge, A Discussion Paper commissioned by the Quaker United Nations Office Geneva, with financial assistance from the Rockefeller Foundation, Geneva, November 2001.
89See, e.g. Report on the Review of Existing Intellectual Property Protection of Traditional Knowledge, WIPO/GRTKF/4/7, November 2002, and Elements of a Sui Generis System for the Protection of Traditional Knowledge, WIPO/GRTKF/IC/4/8, September 2002.
90“(c) allow farmers, their communities, and countries in all regions, to participate fully in the benefits derived, at present and in the future, from the improved use of plant genetic resources, through plant breeding and other scientific methods.”
92The exchange of information; access to and transfer of technology; capacity-building, and the sharing of benefits arising from commercialization.
93Whether or not the material owned is considered “genetic resources” as opposed to “biological resources” for these purposes will depend on the applicable national legislation, as well as the outcome of currently ongoing negotiations under the CBD. In this context, it is interesting to note the possible effects of recent legislation in Latin America that declares genetic resources as being part of the “patrimony” of the State. Depending on the interpretation of the concept of “patrimony” (i.e. whether it is closer to the concept of state property or to the concept of sovereignty) the effect of this may well be to place all PGRFA into the Multilateral System, even where they are to be found on farmers' land.
94See e.g. the Draft UN Declaration on the Rights of Indigenous Peoples developed by the Working Group on Indigenous Populations.
95Executive Order No. 247, “Prescribing a Regulatory Framework for the Prospecting of Biological and Genetic Resources, their By-Products and Derivatives, for Scientific and Commercial Purposes, and for Other Purposes”, signed in May 1995. Recently, the government adopted Republic Act 9147 or the Wildlife Act, which contains provisions superseding those of EO 247 with regard to regulating access to the country's biological and genetic resources.
96In Canada, for example, producers' organizations are represented on the national Canadian Agricultural Research Council (CARC), the national Expert Committee on Plant and Microbial Genetic Resources and various variety registration committees.
97See below in this section under Protected Varieties.
98The term ‘farmers' privilege’ is a conventional usage. The term itself does not exist in the 1991 Convention, which refers only to an optional exemption to the breeder's rights (article 15.2).
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