In this article we will discuss about the reconciliation of farmers’ right and IPRs at international and national level.
Reconciliation of Farmers’ Rights and IPRs at the International Level:
IUPGR:
The IUPGR came into force in 1983 and since then it regulates the access to ex situ and in situ germplasm, which is de facto still free today because more than 160 countries adhere to the IUPGR’s principle of multilateral and open access to PGRFA. As a legally non-binding agreement, the current IUPGR has failed in implementing Farmers’ Rights and benefit-sharing provisions, but the revised IUPGR is expected to become a legally binding agreement and thus to be more in this regard. Historically, the IUPGR has provided the ground for reconciliation by respecting the parallel legitimacy of IPRs and Farmers’ Rights in the FAO resolutions 4/89 and 5/89.
Since then, however, no agreement has been reached to transform this acknowledgement into concrete policies. Yet, with the revision of the IUPGR to bring it in line with the CBD, which has been underway since 1994 and is expected to conclude in 2001, globally enforceable commitments relating to the conservation of PGRFA, Farmers’ Rights and IPRs are being drafted.
The conceptualization of the MUSE in the draft revised IUPGR does not restrict the rights of states to grant IPR on modern PGRFA in accordance with their national PVP law, but it links the issue of IPR directly to the issue of Farmers’ Rights because it requires right holders of IPR on modern varieties to pay royalties into an international fund. These royalties are used to support the implementation of Farmers’ Rights worldwide. Thus, a successful conclusion of the revision of the IUPGR with such a provision, would clearly reconcile Farmers’ Rights and IPRs at the global level.
Since the royalty payments of the seed industry would be used for the conservation of traditional PGRFA and related benefit- sharing measures, not only would traditional farmers benefit, but ultimately also the breeding sector itself because such a mechanism ensures the long-term availability of its resources. In the negotiations of the revised IUPGR, the representatives of the breeding sector also partly acknowledged this and did not generally object to such a benefit-sharing provision, although it involves additional taxation.
The seeming paradox of financing a fund for Farmers’ Rights by taxing the seed sector is that ultimately farmers themselves finance the fund as seed producers will pass on those taxes to the demanders of seed via the pricing mechanism. However, firstly it will depend on the market structure, how much of these additional costs will be passed on to farmers and secondly, such a mechanism redistributes funds from modern to traditional farmers and does therefore not infringe Farmers’ Rights, if they are interpreted as only pertaining to traditional farmers.
On the side of developing country governments as the advocates of traditional farmers, the choice not to expand the current IPR system to accommodate landraces but to leave them in the public domain and share the benefits of the use rather through multilateral benefit- sharing arrangements than through internalization is also vital for the reconciliation of Farmers’ Rights and IPRs. However, in order to comply with the CBD’s recognition of national sovereignty over genetic resources, the revised IUPGR abolishes the current practice of open access and replaces it through ‘facilitated’ access in compliance with national access legislation.
This could impose certain access restrictions on the demanders of PGRFA in comparison to the open access case and lead to the establishment of bilateral and domestic benefit-sharing provisions – a step towards internalization. National PVP and access legislation could therefore be in accordance with the IUPGR but not promote its goal to establish an ‘efficient, effective and transparent’ multilateral system and ‘to minimize transaction costs, obviate the need to track individual accessions, and ensure expeditious access’.
The revised IUPGR does not explicitly define the right holder of Farmers’ Rights, but it recognizes ‘the enormous contribution that the local and indigenous communities and farmers of all regions of the world, particularly those in the centers of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources’. Yet, it leaves the responsibility for realizing Farmers’ Rights with national governments, ‘in accordance with their needs and priorities’ and ‘subject to its national legislation’. Governments could therefore interpret Farmers’ Rights as only belonging to resource-poor farmers.
The IUPGR is the political forum where all multilateral policies and commitments will be made and through which they will be enforced and implemented. As a consequence, a legally binding IUPGR that obliges the beneficiaries of traditional PGRFA to provide the financing for the implementation of the GPA is the principal instrument for the reconciliation of IPR and Farmers’ Rights at the international level.
Agreement on TRIPs:
The TRIPs agreement aims at the global promotion and harmonization of IPR. Consequently, it has no provisions for the advancement of Farmers’ Rights. Girsberger has suggested using the to include Farmers’ Rights in TRIPs and thereby to bring it in explicit harmony with the IUPGR and the CBD. This would oblige all WTO members to implement Farmers’ Rights and non-compliance could be sanctioned by retaliation measures. This position is also adopted by the African Group in the WTO. India argues that the TRIPs agreement conflicts with the CBD, and that the two must be reconciled before they can be properly implemented at the national level.
This position is widely supported by governments across the South. The CBD promotes the objectives of equity, benefit sharing and conservation in relation to biodiversity in general and has mandated the IUPGR to solve these problems for the subgroup of PGRFA, including the question of Farmers’ Rights. The USA argues that TRIPs and the CBD are sufficiently flexible to carry out their parallel implementation on the national level in a non-conflicting manner and that an explicit harmonization is therefore unnecessary.
Developing countries had to implement the provisions of Article 27.3(b) by 1 January 2000 least-developed countries have to implement them by 1 January 2006. Only 21 of the 68 developing country members of the WTO had complied with this obligation, not counting the 29 least-developed country members. This is not surprising, since the ‘built-in review’ of the article, which was scheduled prior to implementation, had not taken place yet. This review could bring a substantial change to the provisions and a definition of an ‘effective sui generis’ system.
It seems, however, that some developing countries find Article 27.3(b) not particularly limiting and already make use of the sui generis provision to draft PVP laws that include Farmers’ Rights and special provisions for access to their PGRFA. For these countries, PVP is apparently rather a national objective than an international obligation. However, since an ‘effective sui generis’ system is not defined by TRIPs, the compliance of many of these laws with TRIPs is not yet decided upon. If the review does not bring a clarification to this question, it will, according to WTO rules, ultimately be defined by the rulings of the WTO dispute settlement body.
Only then it can finally be judged, if TRIPs obstructs a reconciliation of Farmers’ Rights and IPR, for example by abolishing the sui generis option (as proposed by the USA) or by restricting the scope of action for sui generis laws in a way that only UPOV-style laws are judged to be effective protection systems. Yet, the growing awareness of developing countries about the issues of conservation and valuation of their genetic resources and the legal and institutional support for these tasks through the CBD and the IUPGR make it improbable that the WTO would pose a hindrance to the reconciliation of Farmers’ Rights and IPRs through parallel implementation in a sui generis PVP system.
Reconciliation of Farmers’ Rights and IPR at the National Level:
The national sui generis PVP and access legislation is the key instrument for the reconciliation of Farmers’ Rights and IPR at the national level. The time pressure exercised upon developing countries by the TRIPs agreement has brought these issues to an elevated position in the national policy agenda so that many developing countries have recently drafted and enacted new PVP laws.
PVP laws primarily aim at creating conditions of intellectual property protection with the objective to attract investments in the breeding sector and to facilitate national and international seed trade. However, developing countries also seek to include elements of Farmers’ Rights in these laws such as the conservation of PGRFA, the equitable sharing of benefits from PGRFA use and the protection of traditional farmers’ practices. If these goals can be reached in a non-conflicting manner through parallel implementation, Farmers’ Rights and IPRs are reconciled.
The integration of PGRFA conservation provisions and Farmers’ Rights in PVP systems is an unprecedented undertaking because the PVP laws prior to TRIPs were in force almost exclusively in technology-rich but biodiversity-poor industrialized countries in which the issues of PGRFA conservation and Farmers’ Rights are of minor importance. While countries gain experiences with different approaches, it is desirable that the international framework allows some flexibility to adjust the national laws to a changing socio-economic and natural environment.
Farmers’ Privilege:
A suitable instrument to reconcile Farmers’ Rights and IPRs on the national level is the granting of the Farmers’ Privilege only for certain disadvantaged groups of farmers in a sui generis system. Arrangements with plant breeders are conceivable that exempt farmers below certain prosperity levels – determined, e.g., on the basis of income, volume of output, size of landholdings, species planted, etc. – from the requirement to pay a licence fee for a UPOV 1991 or a patent-protected variety.
Plant breeders who make available their varieties for free to these resource-poor farmers could be compensated in turn by reduced tax payments to the global and national compensation funds. This kind of market segmentation could either be achieved through legislation to protect disadvantaged farmers or through voluntary cooperation arrangements between the state, the public and the private breeding sector. It is, however, difficult to control and enforce market segmentation for a homogeneous good such as seeds. Severe leakage problems may arise, depending on the legal and physical infrastructure of a country.
In addition to the royalty exemption, further thinkable measures to protect the Farmers’ Privilege for resource-poor farmers are to exempt exchanges of seed that take place within the same community or with neighbours, and between farming communities and to allow certain sales of seeds as propagating materials, for instance, those that take place within the farmers’ customary market area. Such legislation conflicts, however, with UPOV 1991 if it extends to acts other than those done ‘privately and for non-commercial purposes’.
A concrete example of a voluntary public-private cooperation arrangement is currently under discussion in the case of the so- called ‘Golden Rice’, a GMO with high beta-carotene content. ‘Golden Rice’ was developed by public breeders, who used privately owned and patent protected technologies. The private-sector right holder now propose that Asian rice farmers who earn less than US$10,000 per year will be exempted from paying a licence fee.
Legislative provisions to explicitly protect the Farmers’ Privilege were also chosen already by various developing countries, e.g. India and Nicaragua.
National Benefit Sharing and Access Legislation:
In addition to the benefit-sharing mechanism of the IUPGR, national governments may implement benefit sharing through a variety of modalities to promote Farmers’ Rights. A concrete approach is the creation of a national conservation fund, which directs a share of the benefits of PGRFA use to traditional farmers via in situ conservation plans and programmes. The financing of this fund may arise from sources similar to those discussed under the revised IUPGR, or from remuneration payments in accordance to the use of TPGRFA by breeders.
For this purpose, national PVP laws may establish the obligation to reveal the source of genetic material used for the creation of a new variety and, if appropriate in the particular case, to prove that the applicant has complied with rules relating to access and sharing of benefits, e.g. through a ‘certificate of origin’. They could further be obliged to reach ‘prior informed consent’ with farming communities when collecting in situ PGRFA.
This type of ‘facilitated access’ as envisioned under the IUPGR, would not be inconsistent with the TRIPs Agreement, which does not limit the states’ rights to make the granting of intellectual property protection conditional on complying with certain obligations.
In contrast to the multilateral benefit sharing of the IUPGR, these elements intend to share the benefits bilaterally, which is also in the spirit of the CBD, but which necessarily imposes access restrictions on the demanders in order to identify the origin of the genetic material.
Additionally, breeders could be doubly taxed by the IUPGR and by national PVP legislation. Though this would signify a comprehensive benefit-sharing, it would also deter investments and slow down the rate of innovation in the breeding sector. Consequently, if these financial or administrative obligations burden the breeders inappropriately, they have to be interpreted as obstructing the reconciliation of Farmers’ Rights and IPRs.
Examples of benefit sharing through a national conservation fund in PVP laws of developing countries include Thailand, India, Bangladesh and Pakistan. PVP laws which require the breeders to disclose the origin of the PGRFA used in breeding and to share the benefits with the providers are being drafted or in place, for example in Nicaragua, Bangladesh, Thailand and India (where the proof rests with the claimant). Various developing countries, e.g. Thailand and Costa Rica, also seek to enable their traditional farmers a sharing in the benefits of PGRFA by granting various forms of community IPR on traditional PGRFA and the related traditional knowledge.