[Pirateninfo] Fw: [NEW from GRAIN] Farmers' privilege under attack

[Martin Sundermann]

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Von: GRAIN - Information <info at grain.org>
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Datum: Mittwoch, 11. Juni 2003 11:10
Betreff: [NEW from GRAIN] Farmers' privilege under attack


>NEW from GRAIN
>_______________________________________________________
>
>TITLE: Farmers' privilege under attack
>AUTHOR: Genetic Resources Action International (GRAIN)
>DATE: June 2003
>URL: www.grain.org/publications/bio-ipr-fp-june-2003-en.cfm
>________________________________________________________
>
>FARMERS' PRIVILEGE UNDER ATTACK
>
>GRAIN
>June 2003
>
>Intellectual property rights (IPR) applied to seeds give breeders, or
>whoever claims to have discovered or developed a new plant variety, an
>exclusive monopoly right in relation to the seed. Under patent law, that
>monopoly right is very strong. It will generally prevent anyone from using,
>selling or producing the seed without the patent holder's permission. Under
>a typical sui generis plant variety protection law -- an IPR system
designed
>specifically for plant varieties -- there are usually a few exceptions to
>this powerful right built in. One of those exceptions is that farmers may
be
>allowed to save, exchange, sell or reuse part of their harvest as a new
>batch of seed.
>
>The legal ability to reuse IPR-protected seed is called the "farmers'
>privilege". On the face of it, this a terrible misnomer. Saving seeds is as
>natural and essential as eating. That's how we are able to produce crops:
by
>gathering seeds, or other plant parts like tubers, from mature plants and
>growing them. Under plant variety protection (PVP) law, this totally
>ordinary act becomes a privilege, a legal exception. The breeders are
>granted the rights, while farmers are allowed to do something despite that
>right -- and only under certain conditions. Breach those conditions and you
>breach the breeder's rights, for which you have to pay economic or legal
>consequences. That's why it is wrong to look at this privilege as a right
in
>itself.
>
>CUTTING OUT THE COMPETITION
>
>The farmers' privilege is a hot issue because the seed industry wants to
>control who produces seeds -- they want to control the market. According to
>Rabobank International, current world seed sales of US$30 billion a year
>should jump to US$90 billion soon.[1] But a substantial part of world
>food production is based on farm-saved seed -- as much as 90% in
sub-Saharan
>Africa or 70% in India. Even in industrialised countries, farmers also save
>seed rather than buy a fresh batch, if it makes sense for them and they
>can.[2] So there's still a sizeable market out there for the industry to
get
>a grip on.
>
>It's also a hot issue because the seed industry is working hard to secure
>legal systems that restrict seed saving by farmers, be it through the World
>Trade Organisation (WTO), bilateral trade agreements or direct lobbying of
>governments. PVP or plant breeders' rights legislation is all about taking
>power away from farmers to produce and reproduce seeds. And these laws are
>gaining ground.
>
>Governments caving in to the pressure often say, "Don't worry, we will
>protect the rights of the farmers at all cost!" They swear that nothing
will
>prevent farmers from continuing their "traditional" and "historic" practice
>of conserving, exchanging and further developing seeds. And so they write
>into their law this "farmers' privilege". Yet the fact is, the farmers'
>privilege is a legal "yes, but" on seed saving -- with the "but" getting
>bigger by the day.
>
>Country after country that has established a plant variety protection law
>has progressively made the farmers' exception more and more restricted. To
>the point that it becomes meaningless. Why? Because the breeders keep
asking
>for stronger and stronger rights. Tightening the loophole that allows
>farmers to save seeds is the easiest way to give more power to the
breeders.
>
>Restrictions on the farmers' privilege in PVP law come in several forms,
>often combined in one mixture or another:
>
>* farmers are prohibited from saving seeds of certain crops
>* only certain farmers (e.g. those with a specific farm size or income
>level) can enjoy the privilege
>* farmers have to pay an additional royalty to the breeder for any seed
that
>they save on the farm
>* farmers can save seed, but not exchange it (they can only grow it on
their
>own farm)
>* farmers can save seed and exchange it, but they can not sell it
>* farmer can save, exchange and sell seeds, but only without using the name
>of the variety
>
>In addition, governments are increasingly telling farmers that, as part of
>this privilege, they have to provide accounts to the breeders about what
>seed they saved. This is to better enforce the restrictions. Governments
are
>also debating whether to let the seed industry circumvent the farmers'
>privilege through sales contracts -- in other words, allow companies to
>impose specific restrictions on saving seeds, printed on the bag, despite
>whatever the PVP law says.
>
>What is the purpose of all this cracking down on farmers? "To finance
>research!" the industry proclaims. Not quite. It's to control the market,
>the competition, full stop.
>
>A RAW DEAL TURNING ROTTEN
>
>If this seems like a total injustice, it is. But it is very real and it is
>important not to be fooled by glittery promises of protection for farmers'
>rights under sui generis plant variety laws.
>
>The World Trade Organisation recently published an update of where
countries
>are in implementing its agreement on Trade-Related Aspects of Intellectual
>Property Rights, including the question of the farmers' privilege.[3] Below
>is a country by country account drawn from that report and from several
>other government sources.[4]
>
>The result is sobering, to say the least. Country after country, the
>historic and supposedly untouchable right of farmers to save and reuse
seeds
>is under attack. But this is not where the story ends -- it is where it
>starts. Intellectual property rights for plant breeders, once adopted, are
>always being strengthened at the expense of the farmers. It is in that
sense
>that PVP laws, and their imposition on virtually all countries through the
>WTO, really serve as a jumping board towards accepting full-fledged
>industrial patents on all forms of life.
>
>
>+ + + + + + +
>
>
>THE FARMERS' PRIVILEGE AROUND THE WORLD[5]
>
>Question: By law, can farmers save & replant PVP-protected seeds without
>authorisation from the breeder?
>
>And the answer is...
>
>
>AFRICA & MIDDLE EAST
>
>BENIN
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>BURKINA FASO
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>CAMEROON
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>CHAD
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>CENTRAL AFRICAN REPUBLIC
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>CONGO
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>COTE D'IVOIRE
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>EGYPT
>* only if the seed is from their own harvest (e.g. they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>
>EQUATORIAL GUINEA
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>GABON
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>GUINEA
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>GUINEA-BISSAU
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>JORDAN
>* NO. "The farmers shall be prohibited to use in their lands the harvest's
>product they have obtained by planting a protected variety or any
>[essentially derived] variety."
>
>MALI
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>MAURITANIA
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>MOROCCO
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit or ornamental species
>
>NIGER
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>SENEGAL
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>SOUTH AFRICA
>* only if the only if the original seed was legally acquired (i.e. from a
>source authorised by the breeder)
>* only if the farm-saved seed is resown on the farmer's own land (no
>sharing, exchange or selling)
>NB: The government is working to change this situation. It wants to remove
>the farmers' privilege from the Plant Breeder's Rights Act and introduce a
>clause into the Seed Act saying that farmers may not save any seed from any
>plant variety that is either subject to IPR (any kind of IPR) or registered
>as certified seed.
>
>TOGO
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only if it is not a fruit, tree or ornamental species
>
>
>ASIA
>
>CHINA
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>
>HONG KONG, CHINA
>* only with those crops expressly subject to such an exemption
>* only if the original seed was legitimately acquired
>* only for use on the farmers' own holding
>
>INDIA
>* only without packaging and selling the farm-saved seed as a protected
>variety
>
>KOREA, SOUTH
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only up the amount of seed needed to replant own farm
>
>PHILIPPINES
>* only for and among small farmers
>* depending on the nature of the plant
>* any exchange or sale must be for reproduction or replanting on own land
>* selling the variety under the trade mark or name associated with it is
>expressly prohibited
>* subject to further conditions and guidelines still to be issued
>
>TAIWAN
>* NO.
>NB: The government may introduce some form of farmers' privilege in the
next
>revision of the law.
>
>THAILAND
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* if the variety is published as a "promoted" plant variety, then its
>"cultivation or propagation by a farmer may be made in the quantity not
>exceeding three times the quantity obtained"
>
>VIET NAM
>* only without selling the farm-saved seed
>
>
>LATIN AMERICA  & CARIBBEAN
>
>ARGENTINA
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only for replanting on their own farm (no sharing, exchanging, selling)
>* only if the crop is neither a fruit species nor an ornamental plant
>
>BOLIVIA
>* only if it is for their own use (no sharing, exchanging, selling)
>* only if it is not a fruit, ornamental or forest species
>* only for farmers with a landholding of 200 ha or less under cultivation,
>of which a maximum allowance per crop within that area is as follows: 100
ha
>for soybean, wheat, maize, sorghum, sunflower or cotton; 50 ha for rice; 20
>ha for all other crops
>
>BRAZIL
>* only small farmers
>* no exchange of seeds except if it's on a non-commercial basis with other
>small farmers
>* not if it's sugar cane
>
>CHILE
>* only if the variety was legally acquired (i.e. a royalty was paid)
>* only to replant it on their own farm (publicising, exchanging or selling
>farm-saved seed as seed is expressly prohibited)
>NB: The government has prepared an amendment to the plant breeders' rights
>law which will introduce new limitations on the farmer's privilege. It is
>awaiting signature of the President.
>
>COLOMBIA
>* only if it is for their own use (no sharing, exchanging, selling)
>* only if it is not a fruit, ornamental or forest species
>
>ECUADOR
>* only if it is for their own use (no sharing, exchanging, selling)
>* only if it is not a fruit, ornamental or forest species
>
>NICARAGUA
>* only if it is for their own use (no sharing, exchanging, selling)
>
>PANAMA
>* only if the variety was legally acquired
>* only to replant it on their own farm (marketing, selling or any transfer
>of  the material as seed or as propagating material is expressly
prohibited)
>
>PERU
>* only if it is for their own use (no sharing, exchanging, selling)
>* only if it is not a fruit, ornamental or forest species
>
>TRINIDAD & TOBAGO
>* not for commercial marketing or sale
>
>URUGUAY
>* only if the seed was legally acquired (i.e. royalties were paid to the
>breeder)
>* only if the seed is resown on land under the property title of the farmer
>* only if the seed is kept segregated from other seed at all stages
>(harvest, cleaning, conditioning, etc.)
>* the free exchange and the commercialisation of farm-saved seed is
>expressly prohibited
>* any volume of seed retained on the farm that appears unreasonably large
>given the size of the farm serves as basis for presumed infraction of the
>law
>NB: The government recently established that breeders may not oblige
>farmers, through sales contracts, to pay an additional fees when they save
>seed -- which is what breeders have been trying to do.
>
>VENEZUELA
>* only if it is for their own use (no sharing, exchanging, selling)
>* only if it is not a fruit, ornamental or forest species
>
>
>INDUSTRIALISED COUNTRIES
>
>AUSTRALIA
>* only for replanting on their farm (no sharing, exchange or selling)
>* only if the crop is not on the list of crops for which there is no
>farmers' privilege
>* in some cases, the breeder can require payment of fee
>
>CANADA
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>NB: The government is planning to require farmers to pay for the privilege
>(i.e. imposing royalty payments on farm-saved seed).
>
>CZECH REPUBLIC
>* only if the seed is from their own harvest (they didn't get it from
>another farmer) wherein they own, lease or sublease the land on which it
was
>produced
>* not in the case of hybrid or synthetic varieties
>* strictly maintaining the identity of the variety
>* small growers do not have to pay the breeder an additional fee to use
>their farm-saved seed, but other farmers do (around 50% of the normal
>royalty)
>
>ESTONIA
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* a license fee has to be paid if the farmer grows a new crop from the
>farm-saved seed on a land area greater than 10 ha
>
>EUROPEAN UNION
>* only with the following crops: chickpea milkvetch, yellow lupin, lucerne,
>field pea, Berseem/Egyptian clover, Persian clover, field bean, common
>vetch, oats, barley, rice, Canarygrass, rye, triticale, wheat, durum wheat,
>spelt wheat, potatoes, Swede rape, turnip rape, linseed with the exclusion
>of flax, and, in the case of Portugal, Italian rye-grass.
>* not in the case of hybrid or synthetic varieties
>* small farmers are not required to pay any fee to the breeder when
re-using
>the seed; all other farmers have to pay
>
>JAPAN
>* only if the original seed was legitimately obtained
>* only to be resown on the farmer's own holding (no sharing, exchanging or
>selling)
>* not for crops that are vegetatively propagated and on a list of species
>for which this privilege is expressly prohibited (as of 1999, this list
>included 23 species)
>* not when a contract prescribes otherwise
>
>KYRGYZSTAN
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only within two years time
>* depending on the crop (a list is determined by the government)
>
>LITHUANIA
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* small farmers may be exempt from payment of fee to the breeder
>
>POLAND
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* limited to two hectares of agricultural varieties
>* only for 14 species
>
>SLOVAKIA
>* NO. The breeder's explicit and written consent is required under all
>circumstances, including with regard to "derived varieties" of the
protected
>one and "certain other varieties"
>
>SLOVENIA
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to replant it on their own farm (no sharing, exchanging or selling)
>* only for certain crops
>* small farmers do not have to pay for this privilege, but all others must
>
>UNITED STATES
>* only if the original seed was legitimately obtained
>* only if the seed is from their own harvest (they didn't get it from
>another farmer)
>* only to be resown on the farmer's own holding (no sharing, exchanging or
>selling)
>
>
>NOTES:
>
>1. Lather Venkatraman, "Hike research spend in seed technology: Rabobank
>report", Hindu Business Line, Mumbai, 25 March 2002.
>http://www.blonnet.com/bline/2002/03/25/stories/2002032500240700.htm
>
>2. See, for example, Alvaro Toledo, "Saving the seed: Europe's challenge",
>Seedling, GRAIN, Barcelona, April 2002.
>http://www.grain.org/seedling/seed-02-04-2-en.cfm
>
>3. WTO Council for TRIPS, "Review of the Provisions of Article 27.3(b):
>Illustrative List of Questions", IP/C/W/273/Rev.1, Geneva, 18 February
2003,
>56 pp.
>
>4. GRAIN consulted plant variety protection laws or other government
>sources, as available from government websites, for this account. What is
>reflected is currently approved legislation, whether or not the provisions
>are being implemented yet. So, for example, the situation in the member
>states of the African Organisation for Intellectual Property (OAPI) is
>exposed, even though the PVP chapter of the revised Bangui Agreement has
not
>yet been put into force.
>
>5. This list is incomplete. GRAIN would appreciate any additions or
comments
>people have to share. Please contact us at mailto:grain at grain.org.
>
>
>_________________________________________________________
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>
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