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Barriers to upholding and developing legal space for Farmers' Rights

Farmers' practice of saving, using, exchanging and selling seeds and propagating material from their own harvest is increasingly affected by three forms of legislation: (1) intellectual property rights (plant breeders' rights and patents), (2) seed laws, and (3) access laws. This development can be seen as the result of the interaction between the international regimes presented here, and their driving forces, as analysed in book by Regine Andersen, published in July 2008 (more >)

Plant breeders' rights restrict the use of farm-saved seeds and the exchange of seeds and propagating material from plants protected by such rights. The extent to which they restrict such practices depend on the coverage of the rights and possible exemptions for small-scale farmers. The past 40 years have seen a steady increase in restricting these rights, through the Union for the Protection of New Varieties of Plants (UPOV), the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and the World Intellectual Property Organization (WIPO). Also regional and bilateral North/South trade agreements often set the introduction of plant breeders' rights as a condition. Such regimes are evolving extremely rapidly in many developing countries, increasingly restricting farmers' legal space. Moreover, the seed sector in these countries never had the chance to adapt to a slowly developing intellectual property regime, as in the North. This makes it extremely difficult to establish 'prior art' - formal knowledge of already existing plant varieties - which is necessary to establish whether a variety for which plant breeders' rights are sought is really 'new'. Normally the burden of proof lies with the farmers, but they tend to have only marginal institutional and financial capacity to challenge rights conferred on breeders.

Patent systems enable the protection of plant properties or breeding processes and provide exclusive rights to the rights holder. Such protection is far stricter than plant breeders' rights. So far, there have been few examples of patents in developing countries that have had negative impact on Farmers' Rights. However, there are several examples of patents in the North which have affected farmers in the South, such as the US yellow bean patent.

Seed laws cover exchange and sales of seeds and propagating material - regardless of whether they are protected through intellectual property rights - for plant-health reasons. Their certification rules are normally based on criteria that are relevant for genetically homogeneous plant varieties from professional plant breeders, but not for farmers' varieties. The result is that farmers' varieties are excluded from the formal market in many countries - in Europe, it is even prohibited for farmers to exchange seeds or to give them away.

Access laws, often adopted with reference to the Convention on Biological Diversity (CBD), tend to restrict access to genetic resources for companies and entities other than farmers and indigenous peoples. However, in some cases the acts also cover gene-bank conservation activities, and these are vital for farmers' continued access to agro-biodiversity. In Peru, for example, access-related legislation on the protection of traditional knowledge has proven a barrier to conservation, and has discouraged the sharing of seed potatoes among farmers.

As we can see, the current developments go in the direction of disenabling farmers to access, use, exchange and sell seed and propagating material in their customary ways, thus removing their possibilities of conserving and sustainably using crop genetic diversity. This is among the greatest threats to genetic diversity in agriculture today, and thus to present and future food security.

Pages in this sub-section:
   Stakeholder perceptions on barriers to the realization of Farmers' Rights
   Barriers to upholding and developing legal space for Farmers' Rights
   Barriers to incentives, rewards and recognition
   Barriers to farmers' participation in decision-making
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