The International Consortium on Agricultural Biotechnology Research (ICABR)
Farmers Rights and Intellectual Property Rights Reconciling conflicting concepts
By Daniel Alker and Franz Heidhues
The paper discusses the relation of Farmers Rights and Intellectual Property Rights (IPR). It describes the nature and purpose of both concepts and their institutional frameworks, depicts possible conflicts and shows options for reconciliation through the parallel implementation on the national and international level. The design and strength of Farmers Rights and Intellectual Property Rights have far-reaching effects on breeders, farmers and on the conservation of agricultural biodiversity.
During the last two decades, rapid developments in the field of agricultural biotechnology have resulted in a private sector-driven push to strengthen Intellectual Property Rights on genetic resources worldwide. The culmination of this development has been the linkage of intellectual property issues to trade issues through the integration of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) as one of the three constituting pillars in the World Trade Organization. All WTO member countries are now obliged to enact patent protection for plants or an effective sui generis system of plant variety protection.
Plant variety protection legislation seeks to reward the efforts of formal agricultural innovators and is thus expected to lead to increased research and development (R&D) investments in the seed sector and consequently to enhanced varieties. In order to allow breeders to recoup these R&D investments, IPR can require farmers to pay royalties for the planting back of their harvest and restrict the free exchange or sale of the harvest among farmers. The effects of plant variety protection laws on investments in the improvement of seeds, on agrobiodiversity and on food security are discussed in this paper with a special emphasis on the situation in developing countries.
Farmers Rights can be interpreted as a counter-concept to IPR. They mirror the concerns of the developing world about the restrictive effects of strengthened IPR on farmers traditional practices of replanting and exchanging seeds and thus include the protection of the Farmers Privilege. They further aim at remunerating farmers past efforts to conserve, improve and make available plant genetic resources as the basic resource of plant breeding. Farmers Rights shall also function as an instrument to continuously entice these conservation efforts, which will continue to be essential for global productivity increases in agriculture. Another central purpose of Farmers Rights is to enable traditional farmers to share the benefits that arise from todays use of landraces as a resource in modern breeding.
We discuss the practicability of these multiple aims. In doing this, we accent the function of Farmers Rights for the in situ conservation of landraces. Two contrary global policy options with regard to in situ conservation and benefit-sharing of landraces are examined: The assignment of property rights as an internalisation solution versus a multilateral system of open access and benefit-sharing through conservation plans and programmes as a compensation solution. It is argued that the assignment of property rights on landraces would fail to achieve the globally social optimal amount of conservation, which is largely due to the informational deficits in relation to the value of the genetic information of landraces and due to the intertemporal nature of the benefits of their use. We conclude that a compensation solution that combines global open access to plant genetic resources with politically devised conservation programmes is currently the most appropriate means to conserve landraces and to enable traditional farmers to participate in the benefits of their use, and thus to advance Farmers Rights.
Finally, options for the reconciliation of Farmers Rights and Intellectual Property Rights through parallel implementation on the international and national level are described and discussed. On the international level, it is argued that the future WTO interpretation of the sui generis provision for plant variety protection laws will eventually determine if TRIPS hinders the implementation of Farmers Rights. As the second relevant agreement on the international level, the new, legally binding International Undertaking on Plant Genetic Resources seeks to regulate the access to, conservation and benefit-sharing of plant genetic resources via a multilateral compensation system. It includes a mechanism that links the granting of IPR on plant genetic resources to royalty payments into a global fund for in situ conservation programmes. It is argued that this mechanism establishes a mutually supportive relation of Farmers Rights and IPR and represents thus one possible option for reconciliation at the international level. On the national level, we discuss policy options to design plant variety protection laws in a way that investments in the breeding sector are encouraged while Farmers Rights are advanced. Many developing countries have already incorporated provisions of Farmers Rights in their newly enacted national plant variety protection laws, thus making use of the sui generis provision of the TRIPS agreement. The granting of the Farmers Privilege for certain groups of disadvantaged farmers and national benefit-sharing and access legislation as elements of Farmers Rights are treated in detail.
 Sui generis means unique or of its own kind. It is used for a special circumstance not covered by existing laws.