Biotechnology and Development Monitor, No. 36, p. 6-9.

Farmers' Rights and Plant Genetic Resources By M.S. Swaminathan

Keywords:	Farmers' rights; Indigenous Knowledge; Convention on Biological Diversity (CBD); India.
Correct citation:	Swaminathan, M.S. (1998), "Farmers' Rights and Plant Genetic Resources." Biotechnology and Development Monitor, No. 36, p. 6-9.

In situ on-farm conservation of plant genetic resources is a very important component of conservation. Unfortunately, it is not yet recognized as an activity of supreme public interest. Tribal and rural families are thus conserving genetic variability for public good at their personal cost. It is this inequity inherent in the current recognition and reward systems that the concept of Farmers’ Rights seeks to end. While the concept of Farmers’ Rights is widely discussed, its practical operation remains the biggest challenge.

The concept of Farmers’ Rights was developed in the forum of the United Nations’ Food and Agriculture Organization’s (FAO) International Commission on Plant Genetic Resources (now renamed Commission on Genetic Resources for Food and Agriculture). The concept of Farmers’ Rights has undergone considerable refinement during the last ten years. As proposed originally, it was a method of acknowledging the invaluable contributions of women and men farmers to the conservation and enhancement of plant genetic resources. Enhancement takes the form of selection for characters such as agro-ecological adaptation, resistance to biotic and abiotic stresses and improved culinary qualities, as well as knowledge addition through information on desirable traits.
There are many examples of valuable germplasm that are currently under severe genetic erosion. Among them are several strains of pearl millet in the West African region which are drought tolerant and which have 350 per cent more iron compared to maize. In addition, some Ethiopian varieties of Tef (Eragrotis tef) are very rich in micro-nutrients such as calcium, iron and manganese. According to FAO estimates, over two billion people suffer from micro-nutrient deficiencies, a phenomenon referred to as "hidden hunger". By conserving and cultivating such strains, it may be possible to use them in the preparation of processed foods. The only way to save these strains from genetic erosion is to find a utilization and a market for them. With an ever-growing demand for processed and semi-processed food, it should be possible to include these strains in the food basket.
Before the advent of well-structured government sponsored methods of in situ conservation and ex situ preservation, the dominant method was in situ conservation by local communities. This has resulted in numerous folk varieties and rich intra-specific variability. For example, the over 100,000 rice strains preserved cryogenically in gene banks such as at the International Rice Research Institute (IRRI) in the Philippines, are the products of the in situ on-farm conservation traditions of farm families. Ex situ and in situ conservation methods are widely supported from public funds, since they are regarded as "public good" activities. However, this is not the case for in situ on-farm conservation by local communities.

Convention on Biological Diversity and Farmers’ Rights
The Convention on Biological Diversity (CBD) is a significant landmark among international agreements, since it incorporates for the first time the principles of ethics and equity in both access to genetic wealth and in sharing benefits. Article 15(1) of the CBD recognizes the sovereign rights of nations over the genetic resources occurring in their respective countries. Article 15(5) stipulates the need for Prior Informed Consent (PIC) in the use of genetic resources, while Article 15(4) proposes that access should be on mutually agreed terms between the source country and those seeking to exploit the genetic resources. Several articles of the CBD stress the need to recognize and conserve traditional knowledge. CBD also draws attention to the critical role of women in the conservation and improvement of genetic resources.
The CBD is legally binding, while the FAO International Undertaking on Plant Genetic Resources is not. Therefore, the FAO Commission on Genetic Resources for Food and Agriculture has been discussing proposals to harmonize the International Undertaking with the CBD, and operationalize and strengthen Farmers’ Rights within the CBD. This was discussed at the Fifth Extraordinary Session of the Commission on Genetic Resources for Food and Agriculture held at Rome in June 1998. Article 12 of the draft International Undertaking discussed at this meeting deals with Farmers’ Rights. This Article starts with the following statement:
"Parties recognize the enormous contribution that farmers of all regions of the world, particularly those in the Centres of origin and crop diversity, have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world."
The commission is considering different options for converting rights into financial rewards. The major difficulty arises from the fact that the contributions are often made by entire communities and therefore cannot be attributed to individuals. Hence, procedures are needed to recognize and reward community contributions to genetic resources conservation and selection. In order to make progress, the commission has requested the FAO to carry out an analytical financial study on possible formulas for the sharing of benefits based on different benefit-indicators establishing the total amounts and relative contributions corresponding to each country and region. The recommendations on possible financial formulas have yet to be published by the FAO.

TRIPS and Farmers’ Rights
An important element of the World Trade Organization’s (WTO) treaties which came into force in 1994 is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). According to article 27.2(b) of the TRIPS Agreement, "plants and animals other than micro-organisms" may be excluded from patentability. However, member countries are required to provide "for the protection of plant varieties by patents or by an effective sui generis system or by any combination thereof". Though not mentioned in the Agreement, it is generally assumed that an effective sui generis system will be one which is in conformity with the 1978 Act of the Convention of the International Union Protection of New Varieties of Plants (UPOV). From 24 April 1998, the 1991 Act of UPOV has come into force. The 1991 Act provides countries with the option of restricting Farmers’ "Plant back" rights. It strengthens breeders’ privileges and has the potential to reduce farmers’ options.
The UPOV Convention currently has 37 member states. Several other countries, such as India, are currently preparing legislation in response to the obligations under the WTO Agreement. The 1991 UPOV Act will impose restrictions on "seed savers". Following this Act, it will be necessary to draw a clear distinction between two categories of farmers:

Farmer-Cultivators. These are farmers cultivating crops, but are not engaged in conservation. In their case, rights refer to freedom to save seeds for raising crops and for entering into a limited exchange or sale in their neighbourhood.
Farmer-Conservers. This is the group to which FAO’s concept of Farmers’ Rights applies. They practice in situ on-farm conservation and are value-adders in term of information and selection.

A March 1998 US patent No 5723765, taken by US Monsanto owned Delta and Pine Land Co. and the USA represented by the Secretary of Agriculture entitled "control of plant gene expression" has aroused considerable concern. This genetic technique enables seed companies to ensure that farmers are not able to raise the F2 population from F1 seeds, through mechanisms of embryo abortion in F1 seeds. The technique is now christened by critiques as "terminator technology" (see Monitor No. 35).
The "terminator technology" will further reduce the rights of Farmer-Cultivators. The spread of F1 population in both cross-pollinated (e.g. maize) and self-pollinated (e.g. rice) crops will result in farmers, who are traditionally seed savers, becoming seed buyers. They will have no option except to buy seeds from the seed companies for every planting. In addition, as crops incorporating the "terminator technology" are most likely to be genetically homogenous, genetic homogeneity in crops could become more widespread, enhancing genetic vulnerability to pests and diseases. Hence, this aspect of Farmers’ Rights needs careful consideration not only from the point of view of ethics and equity, but even more importantly for the maintenance of genetic diversity at the field level. Moreover, on-going efforts directed towards the revitalization of the on-farm conservation traditions of farm families and the breeding of location specific varieties through participatory breeding methods will suffer, since varieties that incorporate the "terminator technology" cannot be used for on-farm selection and breeding.

Converting Farmers’ Rights from rhetoric to reality
Legislation which will simultaneously deal with breeders’ and Farmers’ Rights needs to be introduced in all countries. This can be titled the "Plant Variety Protection and Farmers’ Rights Act". This act should clearly distinguish between the rights of Farmer-Cultivators and Farmer-Conservers. As far as Farmer-Cultivators are concerned, each country will have to take decisions on issues such as plant-back rights and the use of "terminator technology" in accordance with national needs and socio-economic conditions. For example, in India where there are nearly 100 million operational holdings, denial of plant-back rights or the use of the terminator mechanism will be disastrous from the socio-economic and biodiversity points of view, since over 80 per cent of farmers plant their own farm-saved seeds.
The operationalization of the rights of Farmer-Conservers is causing problems in the international fora. The difficulties to be overcome are in the following areas:

Means of identification and recognition of community contributions to genetic resources conservation and value-addition through the community’s selection and information;
Determination of priority in recognition and reward for a particular gene which has come from different geographic areas and has been critical to the success of a new variety;
Development and application of a system of recognition and reward at the international level for the contributions of women and men farmers to genetic resources conservation and improvement.

Women farmers need special recognition for their contribution to the conservation and improvement of genetic resources. For instance, the FAO sponsored studies conducted by the M.S. Swaminathan Research Foundation in India, Sri Lanka and Maldives showed that women often play a significant role in the selection and saving of seeds. They also conserve biodiversity through their home gardens, containing a wide range of fruits, food and medicinal crops. Moreover, women’s involvement in seed conservation practices are highly significant in communities in which women are primarily responsible for food production, as among the Apatanis of Arunachal Pradesh, India and the Garhwalis of the Western Himalyas, or share joint responsibility as among the Mizos, Nagas and some hill tribes in the Western Ghats of India.
In order to help overcome the aforementioned difficulties, I would like to offer the following suggestions:
• First, National Plant Variety Protection and Farmers’ Rights Acts should provide for raising a Community Gene Fund through procedures such as a one per cent levy on the sale of all agricultural commodities. In the Act, there should be a mandatory provision for plant breeders to provide with as much precision as possible information on the source/area from which the genes have been obtained, which are critical to the success of the variety for which protection is sought. Based on such information, the concerned national authority can broadly identify the communities which have conserved/selected the donor parents. Based on the extent of spread of the new variety, funds can be provided to the community for use in strengthening facilities for on-farm conservation or for such other purposes the community may decide. There are several examples in India and elsewhere where benefit-sharing practices have been adopted by research institutions/companies on the basis of a voluntary code of conduct.
• Second, CBD proposes bilateral agreements as the pathway for sharing biodiversity among countries. This procedure provides an opportunity for including respect and recognition for the contributions of Farmer-Conservers in the agreement for sharing benefits. This will have to be done on a case-by-case basis, except where generic bilateral agreements are entered into. In the case of agreements dealing with exchange in a generic manner, suitable provisions can be made for the recognition of both farmers and breeders.
• Third, the pedigrees of modern plant varieties contain parents drawn from several countries. A National Act or a bilateral agreement can deal with the material occurring within a nation or between two nations. In addition, a multilateral system of recognition of Farmers’ Rights needs to be built into the Multilateral System of Exchange of Genetic Resources (MUSE) currently being considered by the FAO Commission.
There have been several decades of experience in implementing breeders’ rights. This has led to four revisions of the UPOV Act. Likewise, in the case of Farmers’ Rights, we should have the will to wait and learn. There is no quick-fix to such complex problems. Breeders and farmers are allies in the fight against hunger and food insecurity. Their rights should therefore be mutually reinforcing and not projected to be antagonistic.
The TRIPS Agreement will be reviewed in 1999. We should enter the new millennium with a "TRIPS Plus", where the Plus involves integrating the dimensions of equity and ethics in the patenting and sui generis systems of rewarding innovations (see page 8). Otherwise, conflicts rather than co-operation will characterize efforts in the implementation of CBD.
For example, the Governing Council of the Organization of African Unity (OAU) has recently approved the adoption of a model act by member states, which would lead African countries to not recognize any patent on a drug made from natural products from Africa, unless the patent acknowledges the ownership and contribution of the relevant community to the new product. Bioprospecting can lead to symbiotic partnerships rather than biopiracy only if the rights of Farmer-Conservers are recognized through an integrated package of legislative measures and a voluntary code of conduct.
M. S. Swaminathan

M.S. Swaminathan Research Foundation, 3rd Cross street, Institutional Area, Taramani, Madras 600 113, India. Phone (+91) 44 2351229, 2351698; Fax (+91) 44 2351319;
E-mail MDSAAA51@giasmd01.vsnl.net.in and mssrf.madras@sm8.sprintrpg.ems.vsnl.net.in

Sources
National Research Council, USA (1996), "Lost Crops of Africa". Vol.1 Grains, p383. Washington DC: National Academy Press.

M.S. Swaminathan (ed.) (1995), Farmers’ Rights and Plant Genetic Resources: A dialogue. Madras: Macmillan India Ltd.

M.S. Swaminathan (ed.) (1996), Agro-biodiversity and Farmers’ Rights. New Delhi: Konark Publishers Pvt Ltd.

M.S. Swaminathan (1997), "Implementing the Benefit Sharing Provisions of the Convention on Biological Diversity: Challenges and opportunities". Plant Genetic Resources Newsletter, No.112, pp 19-27.

M.S. Swaminathan (ed.) (1998), Gender Dimensions in Biodiversity Management. New Delhi: Konark Publishers Pvt Ltd.

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