Literature on the effects of intellectual property rights and seed legislation on Farmers' Rights
There is a sizeable literature on intellectual property rights to plant genetic resources. The following titles have been selected because they address Farmers' Rights explicitly in this context, or because their findings appear particularly relevant in the context of Farmers' Rights.
Ramanna, A. and Andersen, R. (2022). Stewardship or ownership in India: Options for community seed banks in managing crop genetic resources in relation to intellectual property rights
Community seed banks (CSBs) play an important role in ensuring access to crop genetic diversity. The extension of intellectual property rights (IPR) to include farmers' varieties and traditional knowledge in India could impinge on the role of these seed banks in conserving and sharing crop genetic resources. This study enquires into how CSBs are responding to these developments, and the strategic options available with regard to IPR. Should community seed banks claim IPRs over their material or should they focus on promoting greater access to achieve their aims of conservation, sustainable use and innovation of crop genetic resources? By employing two distinct strategies—the ownership and stewardship approaches—we analyse how CSBs in India respond to demands for greater legal control over crop genetic resources and the need for access to genetic resources to ensure food security, and derive possible strategy options. We examine the strategies adopted by five organizations that facilitate the work of such community seed banks, noting the prospects and challenges as regards adopting a stewardship or an ownership approach.
Peschard, K., & Randeria, S. (2020). ‘Keeping seeds in our hands’: the rise of seed activism.
Semantic innovations like seed commons, peasant seeds and seed sovereignty are a powerful expression of what may be termed as seed activism. In this opening paper of the JPS Special Forum on Seed Activism, we explore the surge of mobilizations the world over in response to processes of seed enclosures and loss of agrobiodiversity. A historical overview of the evolution of seed activism over the past three decades traces a paradigm shift from farmers’ rights to seed sovereignty. Some of the main threats to peasant seed systems – from seed and intellectual property laws to biopiracy, corporate concentration and new genome editing technologies – are analyzed along with strategies by peasants and other activists to counter these developments. We take stock of what has been achieved so far and of the challenges ahead, and suggest some avenues for future research.
De Jonge, B. (2020). To register or not to register? That is the question
De Jonge, B. (2020). To register or not to register? That is the question (PDF, 807KB)
This presentation contains a brief explanation of the challenges related to the registration of farmers’ varieties.
Baliño, S., Laan, T., and Murphy, S. (2020). Multilateral Regulatory Regimes and Plant Breeding.
International Intelectual Property law allows governments to create national sui generis systems for plant variety protection. A sui generis system can be designed to accommodate both large commercial firms and the less formal exchange of germplasm that is typically used by small-scale producers. But devising an effective sui generis system is not easy. Governments must determine their national interests and then make a judgement among competing international norms (Narasimhan et al., 2008). This policy brief is intended to help goverments make that determination and judgement.
Golay, C. (2020). Research Brief. The right to seeds and Intelectual Property Rights.
Golay, C. (2020). Research Brief. The right to seeds and Intelectual Property Rights. (PDF, 138KB)
International law offers a number of opportunities for and challenges to the protection of the right to seeds. This Research Brief contains a presentation of the right to seeds and intellectual property in international law, as well as of their inherent tensions. It also outlines the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) definition of the right to seeds and states’ obligations under international human rights law, and it explains why these shall prevail over other international instruments, as well as national and regional laws and policies.
Adebola, T. (2019). Access and benefit sharing, farmers’ rights and plant breeders’ rights: reflections on the African Model Law
This article discusses the protection of new plant varieties in Africa and the African Model Law through the lens of its key protagonist, Professor Johnson Ekpere. It urges African countries to consult the African Model Law as a guide when designing plant variety protection systems. It is hoped that by offering Professor Ekpere’s biography, personal experiences, and first-hand account of the African Model Law, African countries may better understand the Model Law as a significant response to the small-scale-farmer- and farming-community-centred agricultural systems on the continent and embrace its continued relevance.
Andersen, R. (2017). ‘Stewardship’ or ‘Ownership’. How to realize farmers’ rights?
Over the last ten millennia, farmers from all cultivated regions of the world have contributed to developing the enormous diversity of crop genetic diversity that is available today. The enormous diversity of food crops available today has developed through careful selection of seeds and propagating material and exchange over short and long distances, in close interaction with nature. The stewardship approach describes the idea that agro-biodiversity as a principle belongs to the common heritage of mankind and that it should be shared for the common good as part of the public domain. As such, the stewardship approach can be said to have been the dominant rationale throughout the history of agriculture until the advent of intellectual property rights. The ownership approach evolved when interests in the commercial use of genetic resources increased along with the growing economic stakes of biotechnologies in the second half of the last century, followed by demands for intellectual property rights to protect and promote inventions.
Winge, T. (2012). A Guide to EU Legislation on the Marketing of Seed and Plant Propagating Material in the Context of Agricultural Biodiversity
Download the pdf here (PDF, 888KB).
This report presents the EU legislation on the marketing of seed and plant propagating material, with a particular view to how it affects agricultural biodiversity. The main principles of the EU’s 12 basic directives in this area and the three directives providing derogations for the purpose of conservation and sustainable use of plant genetic resources for food and agriculture are discussed. As this part of EU legislation is currently undergoing review, the various elements of the review process are also presented. In addition, the report contains a guide to the literature on the development of such legislation in Europe, its effects on agricultural biodiversity, and the content and consequences of the EU directive that provides derogations for conservation varieties.
Santilli, J. (2012). Agrobiodiversity and the Law. Regulating Genetic Resources, Food Security and Cultural Diversity
Santilli, J. (2012). Agrobiodiversity and the Law. Regulating Genetic Resources, Food Security and Cultural Diversity. London: Routledge. (PDF, 701KB) (PDF, 701KB)
A wide range of crop genetic resources is vital for future food security. Loss of agricultural biodiversity increases the risk of relying on a limited number of staple food crops. However, many laws, such as seed laws, plant varieties protection and access and benefit-sharing laws, have direct impacts on agrobiodiversity, and their effects have been severely underestimated by policy-makers. This is of concern not only to lawyers, but also to agronomists, biologists, and social scientists, all of whom need clear guidance as to the relevance of the law to their work.
This book analyzes the impact of the legal system on agrobiodiversity (or agricultural biodiversity) – the diversity of agricultural species, varieties, and ecosystems. Using an interdisciplinary approach, it takes up the emerging concept of agrobiodiversity and its relationship with food security, nutrition, health, environmental sustainability, and climate change. It assesses the impacts on agrobiodiversity of key legal instruments, including seeds laws, the International Convention for the Protection of New Varieties of Plants, plant breeders’ rights, the Convention on Biological Diversity (regarding specifically its impact on agrobiodiversity), and the International Treaty on Plant Genetic Resources for Food and Agriculture. It also reviews the options for the implementation of these instruments at the national level in several countries. It discusses the interfaces between the free software movement, the ‘commons’ movement, and seeds, as well as the legal instruments to protect cultural heritage and their application to safeguard agrobiodiversity-rich systems. Finally, it analyzes the role of protected areas and the possibility of using geographical indications to enhance the value of agrobiodiversity products and processes.
deBeer, J. (2005). Reconciling Property Rights in Plants. Journal of World Intellectual Property
Download the pdf here (PDF, 719KB).
This essay shows how to reconcile competing intellectual, common and "classic" property rights, using plants and agricultural biotechnology as an exemplar. As intellectual property (IP) has become philosophically fashionable, other important property rights have been neglected. This is evidenced in copyright law by debates over private copying and decryption technologies. It is apparent in the realm of biotechnology and human body samples. And it is epitomized in the Supreme Court of Canada's decision in Monsanto Canada Inc v Schmeiser concerning patented plant genes and farmers' seed saving rights.
Instrumental rather than natural rights arguments are usually invoked as support for IP. On this basis, most jurisdictions offer patents and plant breeders' rights cumulatively. Such IP laws help to commodify plants' germplasm, thus expropriating farmers' means of production. IP is usually balanced against the public interest, which in the context of agricultural biotechnology is especially challenged to address biodiversity, biopiracy and global hunger. In response, theorists have sought to propertize the public interest, emphasizing germplasm as common property.
Property rights in the real objects that embody ideational resources - longstanding and well-settled "classic" property rights - can also mark the boundaries of IP. Farmers' seed saving rights, for example, are not simply a socially justified exception to IP, but are an inherent element of owning "things" like seeds. Viewing the issue in this light is essential to buttress the rights of sustenance farmers in the developing world. It also adds intellectual integrity to the discipline of IP. Although the justifications for IP are essentially recycled arguments for classic private property rights, IP often subordinates classic property without hesitation. This essay argues, in the context of plants, that IP theory should not forget its roots.
Louwaars, N. P., Tripp, R., Eaton, D., Henson-Apollonio, V., Hu, R., Mendoza, M., Muhhuku, F., Pal, S. & Wekundah, J. (2005). Impacts of Strengthened Intellectual Property Rights Regimes on the Plant Breeding Industry in Developing Countries. A Synthesis of Five Case Studies
In the past few decades the subject of intellectual property rights (IPRs) has occupied center stage in debates about globalization, economic development and poverty elimination. This study concerns the strengthening of IPRs in the plant breeding industry and its effect on agriculture in developing countries. This strengthening is reflected in the growth in the number of countries that grant such rights, an expansion of the types of inventions that can be protected, and a broadening of the scope of protection offered by extant IPR systems. Central to the spread of IPR systems is the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS 1993) of the World Trade Organization (WTO) requiring all WTO members to introduce a minimum level of protection for intellectual property in their national laws; and subsequent bilateral or multilateral trade agreements that call for further strengthening of IPR regimes in developing countries.
The principal objective of this study is to describe and evaluate initial experiences with strengthened IPRs in developing country agriculture, focusing on five case studies. Such an assessment is a prerequisite for the formulation of policy guidelines and ‘good practice’ lessons for implementing IPRs in ways that enhance their impacts on productivity and equity.
Helfer, L. R. (2004). Intellectual Property Rights in Plant Varieties. International Legal Regimes and Policy Options for National Governments
Download the pdf here (PDF, 522KB).
This monograph, commissioned by the UN Food and Agriculture Organization, provides an overview of the international legal regime regulating intellectual property rights in plant varieties. It identifies the essential features of this regime, including the policies supporting the grant of intellectual property rights and the societal objectives in tension with those rights, the institutions that have shaped the international intellectual property system, and the provisions contained in the relevant international treaties. The study identifies different sets of policy options for national governments based upon the specific constellation of treaty commitments they have undertaken. It then sets forth regulatory options for those governments to protect plant varieties while achieving other public policy objectives relating to plant genetic resources.
Commission on Intellectual Property Rights. (2002). Integrating Intellectual Property Rights and Development Policy
Evenson, R. E. (1999). Intellectual Property Rights, Access to Plant Germplasm, and Crop Production Scenarios in 2020
The scope of intellectual property rights (IPRs) has been expanded in recent years to cover plant varieties. Plant breeders' rights (PBRs) provide weak protection to private plant breeders in many countries. The United States and a few other developed countries provide patent protection to plant varieties as well as to some genetic resources. In principle, the strengthening of IPRs for plants should encourage more plant breeding and more variety options for farmers. However, developing countries often lack the institutional setting to enable them to realize these options. A second type of IPR providing for “farmers' rights” has been prepared in the Convention on Biodiversity. Negotiating a payment framework for farmers' rights may result in a period of limited international exchange of genetic resources. Policy simulations based on an international economic model confirm that developing countries will be harmed by weak IPRs while developed countries will not be affected. They also confirm that both developing and developed countries will be harmed by reduced exchange of genetic resources associated with protracted negotiations over farmers' rights.
Leskien, D., and Flitner, M. (1997). Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System
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This study aims at the development and evaluation of elements for inclusion in an intellectual property rights system sui generis for the protection of plant varieties. Pursuant to the TRIPS Agreement, members shall provide patent protection for any inventions, whether products or processes, in all fields of technology. Members are allowed to exclude from patentability inter alia plants and animals other than microorganisms. However, the TRIPS Agreement explicitly requires members to provide for the protection of plant varieties either "by patents or by an effective sui generis system or by any combination thereof." The report studies the legal obligations posed by the TRIPS agreement in relation to plant genetic resources. It further analyzes the status of plant genetic resources under the existing international regulatory framework, in particular the Convention on Biological Diversity. The study gives an overview of and discusses possible elements, for example recognition of Farmers' Rights, which, if included in a protection system for plant varieties, may contribute to reconciliation of the interests of formal breeders with the rights and interests of informal breeders. The study also examines the options for regulating the interface between a sui generis legislation and other intellectual property rights, such as patents. There is a broad range of possible TRIPS-compatible sui generis systems. Those systems should be explored and discussed before ready-made protection systems currently being used in many industrialized countries are adopted.
Rosendal, G. K. (1995). The Politics of Patent Legislation in Biotechnology: An International View
The realization of the economic value of the genetic resources has prompted an international debate about property rights to genetic resources. The international debate pertaining to patenting of genetic material is the main theme of this chapter. As a backdrop for the international debate, the chapter starts out with a summary of the main events and arguments in the expanding scope of patent legislation in biotechnological inventions. Summing up, the new biotechnologies represent a tool which meets the legal requirements for patenting biological material. From the industry's point of view, biotechnology also necessitates patenting. On the negative side, defending a patent is often a long and costly business, and the trend is that patenting will mainly benefit the bigger and stronger companies and thus weaken public control over the rapid developments in biotechnology. A central argument in the chapter is that without sophisticated biotechnological tools, trained scientists, and adequate infrastructure, patenting is, as yet, hardly a viable solution for the majority of developing countries. Generich developing countries fear that developments in patent legislation will pave the way for increased Northern control over Third World natural resources. The International Convention on Biological Diversity goes some way in making amends to this situation, but the gene-poor, least developed countries may still have reason to fear that they will lose access to breeding material. In a long-term perspective, the implications may be detrimental for resource conservation in developing countries. In conclusion, the patent question seems to remain unresolved and may still be one of the most likely stumbling blocks for future ratifications and implementation of the Biodiversity Convention.
Crucible Group. (1994). People, Plants and Patents. The Impact of Intellectual Property on Biodiversity, Conservation, Trade and Rural Society
Download the pdf in english here (PDF, 7MB) and in spanish here (PDF, 8MB).
The recent GATT agreement and the Biodiversity Convention have moved intellectual property rights to the centre of South-North relations. Decisions about intellectual property, particularly for plant life,have major implications for food security, agriculture, rural development,and the environment for every country in the South and the North. For the South, in particular, the impact of intellectual property on farmers, rural societies, and biological diversity will be profoundly important.
- Patents granted for genetically engineered cotton could profoundly influence the future of a $20 billion crop critical to many national economies in the South.
- Farmers' organizations in Andean countries believe that patents granted for two varieties of coloured cotton do not recognize the major contribution to the new product by indigenous communities in South and Central America.