In this article we will discuss about:- 1. Introduction to Farmers’ Rights 2. Origin and Evolution of Farmers’ Rights 3. Nature and Purpose 4. Protection 5. Recognition 6. Compensation 7. Revision.
Contents:
- Introduction to Farmers’ Rights
- Origin and Evolution of Farmers’ Rights
- Nature and Purpose of Farmers’ Rights
- Protection of the Farmers’ Privilege
- Recognition of Farmers’ Rights in Other International Agreements
- Compensation and the Advancement of Farmers’ Rights
- Revision of Farmers’ Rights
1
. Introduction to Farmers’ Rights:
Farmers’ Rights are not conventional rights, such as property rights or IPRs. They have not been conceived as such and the content of IPRs, that is, the protected subject matter, the protection criteria, the right holders and the rights and obligations of these holders, can only partially capture the nature and purpose of Farmers’ Rights. Farmers’ Rights are rather a political concept, though by no means a homogeneous or a consensual one.
It includes certain conventional rights but its overall nature and purpose is more comprehensive. Some parts of this concept – the issues of benefit-sharing, participation and technology transfer – can rather be promoted and advanced, another can be legally protected – the Farmers’ Privilege as the right of traditional farmers freely to replant and exchange farm-saved seeds.
For almost two decades of discussions on issues relating to plant genetic resources (PGRs) within the FAO, this concept has been the basis for recognition and remuneration of important contributions that traditional farmers have made and continue to make for the conservation and development of PGRs. Though it has been interpreted by many as nothing more than a vague moral appreciation of these efforts, various versions of Farmers’ Rights are presently at the threshold of being implemented at the national and international level – they are recognized in various international agreements and integrated in many newly drafted PVP laws of developing countries. Most importantly, they are recognized and made operable in a new major, legally binding international agreement, the revised International Undertaking on Plant Genetic Resources (IUPGR), which is expected to enter into force in 2012.
Thus the transition of Farmers’ Rights from a political basis of discussion to an operable political and legal concept is currently in progress and the various forms of Farmers’ Rights will have to prove their practicability and success in the years to come. Farmers’ Rights complement existing forms of IPRs. They are not, however, intended to compete with or replace, existing IPRs.
2.
Origin and Evolution of Farmers’ Rights:
Concerns of the developing world and their advocates have been growing that strengthened IPRs in agriculture are harmful to small-scale farmers and accelerate the erosion of agricultural biodiversity through the replacement of genetically diverse landraces by uniform modern varieties. Moreover, the perceived inequality in the distribution of benefits between farmers as suppliers of TPGRFA and the producers of commercial varieties that ultimately rely on such germplasm, have resulted in the quest for a counter-concept to IPRs.
The term ‘Farmers’ Rights’ came up in the early 1980s and was featured in the debates held within FAO on the inequality in the distribution of the benefits of PGRFA use – while a commercial variety generates returns to the breeder on the basis of PBR, no parallel appropriation mechanism to act as an incentive for the providers of germplasm to continue to maintain and make available these resources existed.
The debates at FAO finally led to a negotiated compromise: the simultaneous and parallel international recognition of PBRs and Farmers’ Rights. This recognition is embodied in the parallel FAO Conference Resolutions 4/89 (Recognition of PBR) and 5/89, which were unanimously adopted by more than 160 countries in 1989 and annexed to the current, legally non-binding IUPGR. Until the revised IUPGR will enter into force as a legally binding instrument and provide a new, enforceable definition of Farmers’ Rights, the definition in FAO resolution 5/89 remains the only, yet unenforceable, definition in an international agreement until today.
Its central features are the international community’s appreciation of farmers’ past, present and future contributions to the conservation and provision of PGRFA and the acknowledgment of the need for conservation and benefit-sharing of PGRFA. Although FAO Resolution 3/91 further elaborates on the financial and institutional aspects of Farmers’ Rights, the implementation, especially the provision of the financial means to realize Farmers’ Rights, has proven extremely difficult and has still not been accomplished.
In the 1990s, the political and economic environment has changed significantly. The breeding sector and the biotechnology industry have undergone an unprecedented process of concentration. Meanwhile the scientific evidence about the loss of agro-biodiversity has grown and the commercialization of the first genetically modified plants sparked a public debate over corporate control over genetic resources, putting genetic resource policies under greater public scrutiny.
The entry into force of the legally binding CBD in December 1993 reflects this development. It has significantly changed the global legal status of genetic resources by specifying that they be under the sovereignty of the government of the state in which they developed their distinctive properties.
This provision has considerably strengthened the bargaining position of gene-rich developing countries on the emerging markets for genetic resources. It has also posed new questions to the global exchange of in situ and ex situ PGRFA, which previously had been regarded as the common heritage of mankind and the exchange of which was regulated in an open access regime under the IUPGR. Furthermore, the CBD has introduced the concept of benefit sharing for the use of genetic resources and established rules in relation to the access to genetic resources.
As a consequence of these changes, the IUPGR went under revision in 1994, in order to bring it in line with the CBD. This revision has since then been the forum for the debate over Farmers’ Rights. It is expected to conclude in 2001, resulting in a new major, legally binding instrument with the objectives of the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity. It states that the responsibility for realizing Farmers’ Rights rests with national governments, which is seemingly a clear departure from the current vesting of the rights in the international community.
However, the draft IUPGR further defines the right to ‘equitably participate in sharing benefits arising from the utilization of PGRFA’ as a ‘measure to protect and promote Farmers’ Rights. Since some of the main provisions of the draft IUPGR elaborate on the concrete realization of benefit-sharing at the international level, a successful IUPGR can be interpreted as protecting and promoting Farmers’ Rights also at the international level. The legal status of the revised IUPGR is likely to be a protocol to the CBD or a stand-alone international agreement.
3.
Nature and Purpose of Farmers’ Rights:
The nature and purpose of Farmers’ Rights is usually derived from three lines of reasoning, which are not always clear-cut but often interdependent:
1. Equity reflected in the ‘right to equitably participate in sharing the benefits arising from the utilization of PGRFA’.
2. Protection of traditional farmers from potentially restrictive effects of IPRs by ensuring the Farmers’ Privilege to save exchange and sell seeds.
3. Conservation of traditional PGRFA.
The protection of the Farmers’ Privilege is the part of Farmers’ Rights that can be protected as a right in the conventional sense, whereas equity and conservation goals can rather be promoted or advanced.
While conservation is a functional objective of Farmers’ Rights to the benefit of all humans, equity considerations are based on moral considerations, which largely derive their legitimation from traditional farmers’ past contributions in conserving and making available PGRFA. Equity and conservation goals are highly interlinked – the implementation of benefit-sharing mechanisms to advance equity goals can be achieved in a way that conservation goals are also reached, e.g. through planned in situ conservation.
The protection of traditional farmers from potentially harmful effects of IPR has both moral and functional aspects.
Equity:
Equity can be defined as consideration of fairness, reasonableness and good faith and is as such used in international law. Equity considerations are mirrored in the IUPGR’s recognition of farmers’ past contributions in the conservation and development of PGRFA as a central legitimation of Farmers’ Rights.
The question of equity has also gained strong momentum in the debate over genetic resources and Farmers’ Rights with the coming into force of the CBD in 1993, which for the first time introduced the concept of ‘benefit- sharing’ in a legally binding international instrument as a means of promoting equity.
Equity is also referred to in other international instruments, inter alia in the Preamble of the Rio Declaration (UNCED), in the Agenda 21 and in the CBD itself. However, since none of these instruments defines the term equity and all make its implementation contingent upon ‘necessity’ and ‘appropriateness’, Girsberger concludes that states are not required to take specific legal action.
Nevertheless, equity can serve as a moral basis for the realization of Farmers’ Rights. Another dimension of equity is the question of intergenerational equity, which focuses on the relation of present and future generations in relation to the use of the world’s natural and cultural resources. In the context of PGRFA, intergenerational equity can be achieved through conservation and Farmers’ Rights can be employed as an instrument to facilitate this.
4.
Protection of the Farmers’ Privilege:
Protecting traditional farmers from potentially restrictive effects of IPR by ensuring the Farmers’ Privilege is another element of Farmers’ Rights. Its moral basis is the consideration that any form of IPR imposed restriction on resource-poor farmers would mean a further hardship and a danger to food security. Its functional aspect is that in situ conservation and informal breeding is only feasible if the Farmers’ Privilege is protected, because the swapping of PGRFA in between farming communities is essential for its in situ conservation and development. A granting of IPR for landraces possibly also conflicts with this goal.
The right of farmers to save, use, exchange and sell their seeds is a part of the proposed version of Farmers’ Rights in the revised IUPGR. This comprehensive protection of farmers’ practices exceeds the Farmers’ Privilege because it also extends to the right to sell propagating material. Yet, this extended Farmers’ Privilege has also already been incorporated in various national PVP laws. Although this principally conflicts with UPOV 1991, exemptions may be granted under such laws to ensure this extended Farmers’ Privilege only for resource poor farmers and thus to make them compatible with Farmers’ Rights.
Conservation of PGRFA, its Economics and Institutions:
Conservation of PGRFA is the most consensual legitimation of Farmers’ Rights, since conservation activities benefit all humans and their implementation can be designed in a manner that the development of traditional farmers as the key actors of in situ conservation is furthered.
A rapid loss of PGRFA and the consequent need to conserve it by means of complementary in situ and ex situ conservation strategies are widely acknowledged. This loss is to a large extent caused by the replacement of traditional by modern varieties. The discussions circle around the extent of conservation in general, the emphasis on each strategy and the methods for in situ conservation.
Traditional farmers are the actors of in situ conservation. Their past, present and future efforts in in situ conservation are recognized through Farmers’ Rights but the question today is – how they can be encouraged to conserve the global socially optimal amount of PGRFA and how Farmers’ Rights can be implemented to achieve this.
Economic Valuation of PGRFA:
Traditional PGRFA have to be economically valued in order to determine the global socially optimal amount of conservation and to compensate adequately traditional farmers as the suppliers. Yet, no market mechanism exists today to accomplish this and it is unlikely that this will change in the foreseeable future because the transaction costs of a market solution in the form of institutional and informational hindrances are very high and so are the opportunity costs – the global benefits of a multilateral system of open or ‘facilitated’ access and benefit-sharing (MUSE). Thus the economic value of PGRFA can only be estimated.
Since PGRFA loss is irreversible, losing PGRFA always implies losing future options. On the other hand, the conservation of PGRFA requires resources. Consequently, a rational decision about the right amount of conservation needs to analyse the costs and benefits of conservation as far as possible. The costs of in situ and ex situ conservation can be quantified quite reliably, but the estimation of the benefits of PGRFA conservation involves considerable uncertainty:
The benefits of PGRFA conservation can be estimated using the total economic value (TEV), which is composed of direct and non-direct use values. The direct use value of PGRFA diversity is a static value. It can be determined with some certainty by quantifying its contribution to crop improvements and its current insurance function against yield fluctuations and unforeseeable events (breeding and insurance value). Evenson introduced techniques to estimate the breeding value.
The estimation of PGRFA’s non-direct use value, which comprises the existence and the heritable value, is a dynamic task, which is severely hindered by incomplete information about the future – (i) the existence value is the intrinsic value of life and as such subject to changing ethical assessments; (ii) the heritable value is the value of the known and unknown GCI for future utilization. In order to estimate this heritable value, presumptions on future technologies to use the presently known and unknown GCI as well as on future environmental and market conditions, in which GCI could be of value, have to be made. This is highly speculative. Since the heritable value of PGRFA constitutes a large share of the TEV, the estimation of the latter is thus severely handicapped.
Current Obstacles to a Market Solution for PGRFA Exchange:
The demand for traditional PGRFA is quite marginal today and it is not expected to increase significantly in the future, because conventional breeding increasingly focuses on crosses among elite materials from the breeders’ own collections and advanced lines developed in public institutions. Therefore it would be unrealistic to think that substantial value may be derived from gene flows of landraces held in in situ conditions.
None the less, with the advancement of biotechnology, traditional varieties can be screened more efficiently for agronomically interesting traits, which is likely to increase their value for agronomic improvement, especially in the regions of their predominant origin, where this improvement is most needed. Today, however, any economic measure directly linked to such gene flows, which reflect the current demand, would grossly underestimate the global values generated by the conservation of traditional varieties over time.
On the supply side, traditional PGRFA is provided as a positive externality of the low-input farming systems of traditional farmers. Until today, no mechanism has been established to enable farmers to appropriate a part of these benefits. This and the public good characteristics of PGRFA accelerate the loss and cause a potential future undersupply of PGRFA. PGRFA have been regarded as a ‘common heritage of mankind’, which legitimates their status as a global public good.
A public good is characterized as follows:
a. No legal or technical possibility to exclude others from the utilization of the good. Hence the provision of the good cannot be made contingent on payments of the users
b. No use-rivalry, which means that the use of the good by one individual does not affect the use of the good by any other individual. Due to the characteristics of hereditary information, PGRFA can be reproduced infinitely without depleting the genetic substance.
PGRFA also show the characteristics of an environmental good such as intergenerational existence and irreversibility of extinction.
All these characteristics prevent an efficient allocation of PGRFA by the market mechanism because they enable today’s users to ‘free ride’ on PGRFA at the expense of today’s suppliers and of future generations – users benefit from PGRFA without having to pay the costs of its supply. Thus, as with all public goods, a collective decision about the right amount of supply is required.
The benefits of PGRFA are of concern to all humans and this might explain why it is particularly difficult to come to a collective decision over the desired amount of conservation. Until today, conservation is conducted almost exclusively ex situ by more or less coordinated efforts in national and international gene-banks. Since virtually no planned activities for in situ conservation exist, it is presently only carried out as a positive external effect of low-input farming.
Internalization or Compensation-Finding the Right Mechanism for the Optimal Long Term Supply of TPGRFA AND the Promotion of Farmers’ Rights:
Basically two options exist to prevent the further erosion of traditional in situ PGRFA and to facilitate its conservation and development – a collective political decision over the right level of conservation by compensating traditional farmers as the suppliers of TPGRFA (‘compensation solution’) or the creation of a market mechanism that enables traditional farmers to directly appropriate the benefits derived from its use (‘internalization solution’).
Some argue that the lack of market institutions is the cause for the decline of PGRFA and argue for an internalization solution. The rationale behind this argument is that if farmers can appropriate the external benefits they create through TPGRFA conservation, they will have an incentive to keep traditional varieties instead of replacing them by modern ones.
Others regard the open access to PGRFA and its status as a global public good combined with a politically defined level of compensation for farmers as essential for the conservation and ongoing development of traditional PGRFA. The opportunities of and hindrances to both approaches will be shortly outlined below.
Internalization-Transforming the Public Good Traditional PGRFA into a Private Good:
A public good can be transformed into a private good if one or both of the above-mentioned characteristics of public goods are changed. While the characteristic of ‘no use-rivalry’, which is intrinsic of the hereditary information of TPGRFA, cannot be altered, a legal option to exclude others from the use of PGRFA has been opened through FAO Resolution 3/91 and the CBD. Both acknowledge the sovereignty of states over their genetic resources. TPGRFA could now theoretically be turned into a private good, with states, communities or individuals as the holders of the property rights on these resources.
In theory, a complete internalization of the external benefits of conservation and production of TPGRFA would lead to a global socially optimal amount of PGRFA supply and would eliminate the current equity distortions which affect the suppliers of TPGRFA. The obstacles that a market solution with such internalization encounters are to a great extent owed to the environmental good characteristics of PGRFA and the difficulties to assign a total economic value to an environmental good have been described.
A large share of the value of PGRFA lies in the potential use of its largely unknown genetic information (heritable value), which is obviously of no direct use to today’s individual demander. The private market demand will thus not reflect the inter-temporal global socially optimal demand. Conventional market mechanisms are not able to incorporate intergenerational aspects of PGRFA conservation and the irreversibility of extinction.
Therefore, the state or the global community has to appear as a demander and the amount of its demand should be guided by the estimation of the TEV. The level of public demand is necessarily a political decision and the estimation of TEV of different environmental goods or of different ways to conserve PGRFA can help to direct public financial resources to the most efficient allocation.
Besides these difficulties to internalize the external benefits of PGRFA conservation, a further fundamental problem in a market solution is to determine the property right holder on PGRFA. While the CBD confers states the right over their genetic resources, indigenous communities and individual farmers has been brought up in the discussion about Farmers’ Rights as potential right holders as well. Since an intrinsic feature of landraces is their development in a communal and inter-temporal effort, it seems inappropriate to confer certain individuals the property right on a specific landrace. Moreover, the market value of GCI can only be observed a posteriori as a result of their performance on the market.
Due to the intergenerative structure o GCI benefits, the accruement of the total benefits may often exceed the life span of the individual farmers, which speaks in favour of communities or states as the potential property right holders.
It seems appropriate to try to identify certain communities as the ‘inventors’ of landraces, or at least as the place where landraces have developed their distinctive characteristics. However, it could be shown that the high interdependence of PGRFA makes the pedigree of landraces almost impossible to track. A single landrace has typically been developed over centuries in various communities and often in various countries so that granting a specific community the ownership right on a landrace would be highly arbitrary.
Defining nation states as the owners of PGRFA decreases this problem to a certain extent, but states have also been highly interdependent on PGRFA and it is by no means easy to identify the territories in which PGRFA have developed their distinctive properties, as demanded by the CBD. The global interdependence of PGRFA is much higher than for other genetic resources because plants of agricultural value have been traded, exchanged and bred globally for centuries.
Although states seem to be the most apt property right holders in a market solution, they may not ensure that the benefits of PGRFA are passed on to the supplying farming communities. In many countries, the farmers who are involved in the conservation of particularly diverse PGRFA are economically and technologically isolated and members of marginalized ethnic minorities. The national government is unlikely to be a strong advocate of these groups. Examples include the Kurds of Southwest Asia (wheat), the Quechua speaking indigenous groups in Peru (potatoes), Mayans in Mexico (maize), the Naga of India, the Ifugao of the Phillipines and the Karen of Thailand in the case of rice.
If states use their newly awarded market power on the emerging markets for genetic resources – the market for PGRFA potentially being one of them – for rent-seeking activities, neither conservation nor equity goals will be promoted.
5.
Recognition of Farmers’ Rights in Other International Agreements:
Besides the original recognition in the IUPGR, Farmers’ Rights have been recognized in the following international instruments:
The United Nations Conference on Environment and Development (UNCED) Agenda 21 states that the appropriate UN agencies and regional organizations should ‘strengthen the Global System on the Conservation and Sustainable Use of PGRFA by … taking further steps to realize Farmers’ Rights’.
The Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture (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. Resolution 3 of the Nairobi Conference for the Adoption of an Agreed Text of the UN Convention on Biological Diversity identified the realization of Farmers’ Rights as one of the ‘outstanding issues’ for further negotiation.
A June 1999 study by the UN Economic and Social Council (ECOSOC) 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’.
Internalization and the Advancement of Farmers’ Rights:
Leaving the allocation of PGRFA solely up to the market will neither lead to a global socially optimal amount of conservation, and thus supply of PGRFA nor will it allow traditional farmers equitably to share the benefits of its use because these benefits are to a great extent inter-temporal. In an internalization solution, states are best qualified as potential property right holders and to advance Farmers’ Rights, but only if they act in the interest of traditional farmers and only if they complement the market demand with an additional demand that takes into account the inter-temporal benefits of PGRFA.
Benefit sharing as an element of equity in Farmers’ Rights includes the participation of traditional farmers in the benefits derived from the R&D activities in relation to PGRFA, such as the engineering of genetically modified plants to their needs as well as other forms of technology transfer, information transfer and capacity building. This is a development task, which is largely political, and the market alone will not be capable of achieving this. Additionally, Farmers’ Rights have a historical dimension since they partly arise from farmers’ past efforts to conserve and make available PGRFA. A market solution cannot accomplish a compensation of these past efforts.
In summary, a market solution, which assigns property rights on traditional PGRFA to states, communities or farmers, is presently not able to contribute significantly to the objectives of Farmers’ Rights. In the future, this situation could change, however, because the advancement of biotechnology will allow identifying, utilizing and assessing the potential value of the GCI of landraces more efficiently, thereby lowering the transaction costs in a potential market of PGRFA. Enhanced information combined with enforceable property rights is prerequisites for a functioning of the market mechanism, which would enable the suppliers to internalize a larger share of the currently external benefits of traditional PGRF.
Likewise, the incentives to conserve traditional PGRFA would be improved. Conservation and equity as two main purposes of Farmers’ Rights could therefore in the future possibly be achieved by a market solution with enforceable property rights on traditional PGRFA. Today, however, extremely high transaction costs make it necessary to find a political solution to the tasks of conservation and equity. Farmers’ Rights as envisioned under the IUPGR are such a political solution and can therefore be regarded as a temporary political instrument against market failure for PGRFA exchange and conservation.
Establish a multilateral system of access and benefit sharing. The alternative to the market solution for the exchange and conservation of PGRFA is the compensation solution. A possible institutional framework for this is a multilateral system of access, exchange and benefit sharing of PGRFA (MUSE), which is currently practiced under the current IUPGR, although due to the voluntary nature of this agreement, enforceable benefit sharing provisions could not be implemented yet. A compensation approach tries to accomplish a politically defined level of conservation of PGRFA and a politically defined level of equity through benefit-sharing.
Unlike a market solution, a compensation solution does not assign property rights on PGRFA but leaves them in the public domain by not restricting the access. The rationale for this before the background of the high interdependence of PGRFA is that each member of such an open access regime gains access to more genetic resources then he himself contributes and is therefore a net beneficiary. Transaction costs are greatly reduced in comparison to a market system because the informational deficits, which prevent the finding of an adequate price, do not matter.
However, if no price is paid for the use of PGRFA, no incentives exist for their conservation. Thus conservation activities have to be politically devised. Although principally all members gain from such an open access regime, technology-rich countries usually have a stronger breeding sector than others and will therefore demand considerably more PGRFA and benefit more from the open access.
Yet, PGRFA and technology-rich countries are especially suspicious towards a free-access regime since they give away their resources for free without being able to derive much benefit from the access to the resources and to the technology of other countries. They are highly independent, because they dispose over the technological capacities to conserve and improve PGRFA for their needs within their borders and they could reap additional benefits by selling these resources on a potential market. Thus, if the benefits are not satisfactorily shared within the MUSE, technology- and gene-rich countries are most likely to be the first to exit the system and opt for a market solution, in the hope of being able to appropriate a larger share of the value of their PGRFA.
However, the often-cited divide between the technology-rich and gene-poor North and the gene-rich and technology-poor South seems to oversimplify the situation since ‘developing countries are by no means a homogeneous group when it comes to the fundamental controversy over internalization versus compensation’. PGRFA- and technology-rich countries like Brazil, China or India are examples of such potentially weak advocates of a MUSE. PGRFA- and technology- poor countries like the Central African Republic are likely to be the strongest advocates of a MUSE because they can expect to ‘free ride’ on access to technology and PGRFA in a MUSE. Technology-rich and gene-poor countries and gene-rich but technology-poor countries have a reasonably strong interest in a MUSE.
In the long run, further technological development will improve the assessment of the value of PGRFA, lower the transaction costs and facilitate the assignment of property rights on PGRFA, which will increase the attractiveness of a market solution. Countries will then reconsider the decision for internalization or a compensation solution. In the medium run, however, in order to encourage the sustainable participation of as many countries as possible, mechanisms have to be established that oblige the countries that benefit most from a MUSE to share these benefits.
A concrete measure of benefit sharing is the financing of in situ conservation activities in PGRFA-rich countries. Others include the exchange of information on and the transfer of technology relevant to the use and development of PGRFA, as well as capacity building. Until today, benefit-sharing mechanisms has been envisioned but not been implemented due to a lack of political will. The current revision of the IUPGR includes all of the above-mentioned forms of benefit sharing and a successful conclusion of the negotiations would result in a legally binding and enforceable multilateral system of access, exchange and benefit sharing.
In a MUSE, the global socially optimal amount of traditional PGRFA supply has to be determined, using the valuation techniques for PGRFA mentioned above. The demand side then has to provide the necessary financial resources to facilitate the conservation of this level of TPGRFA.
Various options to provide these financial resources have been discussed during the revision of the IUPGR:
(i) State contributions (in accordance to the UN scale of assessment or depending on the area planted with IPR protected crops in its territory);
(ii) The private seed industry should pay ‘an equitable royalty in line with commercial practice’ for each crop that is developed by the use of PGRFA accessed under the MUSE and for which IPR are granted that restrict the further free use in research and breeding; or
(iii) A tax on consumers as the ultimate beneficiaries of PGRFA conservation.
Since the benefits of such a system are a public good and of a very long-term nature, strong tendencies to ‘free ride’ for all sectors will always be inherent to the system and a continuous political effort to reach consensus over its goals and benefits will be necessary in order to overcome these instabilities.
6.
Compensation and the Advancement of Farmers’ Rights:
It is argued that a compensation solution should provide financial means for the in situ conservation of traditional PGRFA. Only in situ conservation can maintain the dynamic adoption of landraces to changing agro-ecological conditions. Yet, the effect of planned in situ conservation on traditional farmers is disputed, because if they are encouraged to keep their landraces, they will not be able to participate in agricultural development through the use of modern varieties.
In situ conservation is therefore potentially conflicting with development and productivity goals. Farmers who are encouraged to continue to grow traditional varieties must benefit from this decision at least as much as they would if they had chosen to grow modern varieties. This can be achieved through complementary measures to improve the livelihood of traditional farmers.
Today, large areas are still grown under traditional varieties and agricultural conservation and development policies must simultaneously strive to replace a large share of this area with modern varieties while conserving all currently existing traditional varieties on a much smaller area. If in situ conservation strategies can be found – and are sufficiently financed – that reconcile conservation with development goals, Farmers’ Rights are advanced.
Theoretically, a mere 1% of the 1.4 billion ha of the world’s arable land would suffice to conserve today’s 3 million varieties in situ conditions, while the rest of the land could be used for agronomic goals other than conservation. Only a globally planned and coordinated conservation effort could reach such a minimization of the conservation area without sacrificing diversity and thereby largely resolve the tension between conservation and development goals.
The Leipzig Global Plan of Action (GPA) introduces such a global strategy to implement in situ conservation and is generally regarded as the most appropriate instrument to allocate the financial resources of the MUSE and also as a concrete means of realizing Farmers’ Rights. Likewise, the draft Article 8 of the revised IUPGR states, ‘(t)he implementation of the GPA contributes to the realization of Farmers’ Rights’. Accordingly, the protection and promotion of Farmers’ Rights and the in situ conservation of PGRFA could be designed in a mutually supportive way.
If the different forms of benefit sharing are implemented in a way that they are conducive to the development of traditional farmers, they can also be interpreted as an ex-post compensation of traditional farmers’ past efforts to conserve and make available PGRFA. This can also be interpreted as a promotion of Farmers’ Rights.
In conclusion, a multilateral system of access and benefit sharing for PGRFA with a sustainable funding strategy is currently more apt to achieve the global socially optimal amount of conservation than an internalization solution, which entails the assignment of property rights on traditional PGRFA. Additionally, if a MUSE is designed in a way that the livelihoods of traditional farmers are improved, Farmers’ Rights are also better advanced by the MUSE than by the alternative assignment of property rights on traditional PGRFA.
7.
Farmers’ Rights (Revised):
The revised IUPGR intends a multilateral approach to benefit sharing, in which the distribution of the resources of the common fund is not linked to the amount of genetic resources provided by a country, but implemented through plans and programmes in areas of high conservation priority in accordance with the GPA. A country, which provides profitable germplasm, does thus not necessarily participate in its benefits. Nevertheless, as laid out above, the benefits of a MUSE for any country are higher than under a market arrangement.
In the future, however, this situation could change substantially – some countries will reach a high degree of national independence in the supply and development of PGRFA and will encounter an elevated international demand for PGRFA. They will tend towards a market solution. As a preparation for this development, Virchow proposes the establishment of national ‘Conservation and Service Centers’ to coordinate the conservation and prospecting of GCI and to act as a supplier of GCI on the national and international market for PGRFA. Once such a development has started and with the further advancement of biotechnology, more and more countries can be expected to leave the multilateral system of access and exchange and to opt for a market solution instead, depending on their national cost-benefit analysis.
These dynamics will put a constant pressure on the IUPGR, which is therefore not an inherently stable institutional arrangement. A transitory step from compensation to a market solution would be to guide the benefit-sharing mechanism in a more bilateral direction and to include more market-based elements of PGRFA exchange in the MUSE.
As discussed above, a market solution cannot compensate for the past efforts of farmers to conserve PGRFA and therefore not promote Farmers’ Rights in a way that a compensation solution can. This justification of Farmers’ Rights will, however, lose its legitimation after a compensation for these past efforts will have been provided for a lapse of time because it is not reasonable that these past efforts justify an eternal compensation but rather one for a limited time.
It could thus be argued that Farmers’ Rights as discussed today are a transitory solution to conservation and equity questions until the informational and institutional hindrances, which lead to market failure, are eliminated. It should be stressed again that only states qualify as actors on these international markets since other possible actors have no facilities to internalize the inter-temporal benefits of PGRFA diversity. A market that is capable of internalizing most of these external benefits promotes conservation and equity and renders the concept of Farmers’ Rights needless.