Farmers’ Rights as formulated in 1989 by the Food and Agriculture Organization (FAO) were defined as "rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources (...) These rights are vested in the International Community, as trustee for present and future generations of farmers, for the purpose of ensuring full benefits to farmers, and supporting the continuation of their contributions (...)" The intention was that Farmers’ Rights could be converted into concrete benefits for farmers.

During the last ten years, ideas on genetic resources have changed substantially. National sovereignty over all biological resources, including genetic resources for agriculture, was endorsed by the Convention on Biological Diversity (CBD), and Intellectual Property Rights (IPR) as private rights on plant materials became a global issue within the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The worldwide continuing decline of public sector plant breeding emphasized the expanding role of the private sector with an obvious impact on intellectual property regimes. The private sector and multinational companies in agricultural research, plant breeding, and biotechnology are trying to achieve two objectives: stronger global intellectual property regimes to protect their own inventions; and weak or no protection over their raw materials, the bioresources of others, including farmers’ varieties.

These developments are placing the original concept of Farmers’ Rights under stress. At the same time, this also opens new possibilities of promoting Farmers’ Rights as an equitable benefit-sharing mechanism. Conservation can be stimulated by ownership, a lesson learned from protected areas. Local communities with an ownership stake in biodiversity have a greater interest in conservation.
A possibility would be to encourage farmers to maintain and develop varieties through property rights. Farmers’ Rights allowing farmers to own the varieties they develop makes Farmers’ Rights equivalent to Plant Breeders’ Rights (PBR). Farmers developing a new, distinct, variety would own it, just as plant breeders own varieties they have developed. Access to the variety would be under farmers’ control.
A simple system of registration could be introduced nationally and internationally by the deposition of new varieties. Perhaps the model should be a "copyright" system, similar to the Bern Convention for the Protection of Literary and Artistic Works. Registering a book with the national library makes unauthorized copy or "bootleg" publication a breach of the author’s copyright. Similarly, depositing a new variety in a genebank could establish ownership rights for farmers.

Registration of farmers’ varieties in other countries could be through agents. For example, many of the varieties already registered in Australia were foreign varieties registered on behalf of foreign breeders by local agents, who collect and remit any royalties due to the breeder. This could be readily done at low cost for farmers’ varieties. As a property right, a farmer’s interest in a variety could be sold. Many breeders pass on such rights to seed companies and concentrate on breeding; farmers can do likewise.
Farmers’ varieties can certainly meet the requirements for varietal registration in industrialized countries, such as distinctiveness, uniformity and stability. There are probably hundreds of examples of farmers’ varieties that were registered for plant variety protection in developed countries without the farmers’ permission. This includes the recent attempt in Australia to register a farmers’ variety of chickpea from India. There are also thousands of excellent and genetically uniform traditional varieties, including the clonally propagated crops characteristic of the wetter tropics, such as banana, cassava, yams, and most fruit trees.
Arguments have been put forward that traditional plant breeding is always communal, and that rewards to individual farmers would be unjust. Communities maintain varieties over time, and perhaps should be rewarded for this collectively. However, they certainly do not create new varieties. The creative act to recognize one out of many new variants as better than the others, is always an individual (or at the widest, family) decision, and never that of communities. Naturally, if a new variety is widely useful, it will spread within the community, but its origin depends on a unique decision of a farmer. Farmer ownership of varieties is also fully in line with the TRIPS requirement for countries to introduce sui generis systems for intellectual property protection: varietal ownership by farmers is such a system. It is also endorsed by the International Union for the Protection of New Varieties of Plants (UPOV), which agrees that "if a farmer develops plant material that is clearly different from his starting material, the developed material could be protected." Farmer ownership of varieties is also fully consistent with the CBD, and, as with PBR, with national sovereignty.
David Wood

The author is an independent consultant