Seed regulations have been introduced in most countries based on the development of formal seed production. Concerns about seed quality and about the varietal identity of the seeds have commonly led to seed laws. However, formal regulations are often inappropriate for informal seed systems, which have been developed locally by generations of farmers. Not only could seed regulations restrict informal seed systems, in some cases farmers’ initiatives could be declared illegal.

Seed laws that regulate variety release and seed quality differ between countries in terms of requirements and institutional responsibilities. At one end of the spectrum is an attempt at total control. For example, if the government takes responsibility for seed quality, all seed of all crops has to be certified by a public institution and all new varieties have to be tested in a public variety testing system before seed of that variety may be distributed (see also the article by Louwaars in Monitor No. 33). Examples can be found in many countries, including Indonesia, Morocco and Uganda. At the other end of the spectrum would be legislation for a totally unregulated market, which exists in countries where seed or business laws are not operational. Many countries have intermediate systems. For instance, Bangladesh exerts control over seed of a few ‘notified’ crops only, and in the USA only labelling is required rather than official seed certification. Strong control systems depend on effective official institutions, while relaxed control mechanisms depend on a competitive market that prevents substandard seed from being sold.

Local seed systems that are based on farmers’ seed production and local exchange are almost by definition unaffected by formal seed regulations. These farmers simply continue to do what they have been doing since the dawn of agriculture some 10,000 years ago: producing seed on-farm, and exchanging it within and among communities. The current trends of promoting seed quality through participatory plant breeding (PPB) or improvement of local seed technology build on these local knowledge systems. This development requires a closer look at how current regulations for seed quality control, registration and release as well as intellectual property mechanisms may affect such initiatives.

Seed quality control

However, compulsory seed quality control, regulated by the seed law, however, may become ineffective when the implementing organization is inefficient or the staff in charge of testing are not fully independent. In some countries, where salaries of public servants are low and where financial stakes could be high in the testing for approval and release of seed lots, the independence of implementing organizations may be challenged. One example of inefficiency is the production of certified soybean seed in Indonesia. Soybean seed deteriorates quickly in humid conditions. A loss in viability of 20 per cent in one week is not uncommon under tropical conditions. The local seed system minimizes quality deterioration by reducing the storage period through continuous planting of soybeans. This is achieved through a well-known rotation system in places such as Eastern Java, with upland cultivation during the rainy season and subsequent production in rotation with paddy rice in the dry season. However, formal seed testing procedures in Indonesia take at least two weeks, excluding transport of samples and inefficiencies in administrative procedures. Such a delay represents unacceptable viability reductions. The result is that the local seed actually has a much better germination capacity compared to certified seed.

Seed laws prescribe that all seed (as in Turkmenistan) or all seed in the market (as in many other countries) has to be approved by an official seed laboratory, or that all seed has to be truthfully labelled following seed testing, which means that the producer is responsible for the quality indications on the label.

Such regulations formally outlaw farmer-to-farmer seed exchange and seed sales on local markets. According to the law, selling non-certified seed is illegal. In practice, however, farmers who traditionally depend on local seed systems are normally unaffected by such laws. In most cases, the production and exchange of seed are considered customary rights.

Initiatives to support local seed systems by non-governmental organizations (NGOs) and even the recent interest of some formal institutions to support such systems may face problems when confronted with the seed regulations. When such schemes attain relative success and reach a size that merits up-scaling, officials or the locally established commercial seed companies may use the law to challenge such initiatives. For example, the production of open-pollinated maize seed by the NGO Environment and Development Activities-Zimbabwe (ENDA) was forbidden in the mid 1990s seriously disrupting the project.

Other initiatives facing similar problems are those aimed at developing local seed enterprises. Active in this field are both NGOs, as in Uganda, Tanzania and West Africa, and formal institutions such as the International Center for Agricultural Research in the Dry Areas (ICARDA), with a project in Ethiopia. However, strict adherence to official seed certification rules is difficult for these emerging seed enterprises. They do not have the logistical and financial capabilities to have their seed crops and seed inspected. Adherence to isolation distances may be difficult when seed is produced by smallholders and seed laboratories (and seed inspectors’ offices) are far away and thus costly to use, and seed purity may be difficult to achieve when seed processing equipment does not meet the highest standards. Seed quality control regulations may therefore frustrate innovative development initiatives that intend to increase the quality and availability of local seed.

Variety registration

The same variety description may be used to fix one variety name to one variety, thus creating an important aspect of market transparency. It may also be used to identify the variety in order to obtain intellectual property such as plant breeders’ rights (PBR) or plant variety protection (PVP). PBR is a system that grants rights to breeders comparable to copyright: multiplication of the seed is only allowed after approval by the breeder as holder of the right. Some of these sui generis legal systems have been harmonized by the The International Union for the Protection of new Varieties of Plants (UPOV). UPOV also harmonizes the technical aspects, such as the preparations of variety descriptions according to the Distinctness, Uniformity and Stability (DUS) procedures.

In many countries, variety registration also requires proof of adaptation to certain growing conditions and a test of the variety’s processing and use characteristics. These Value for Cultivation and Use (VCU) tests involve multi-locational testing, determination of yield and yield-components, such as disease resistance, in comparison to the already existing varieties. Depending on the crop, VCU tests include certain use characteristics, such as cooking time of legumes, baking quality of wheat and digestibility of fodder.

In many countries, only seed of varieties that have passed the DUS and VCU tests are accepted for market distribution, regardless of any PBR protection. The variety registration system is often so rigid that very few varieties are accepted each year. This means that farmers have very limited range of choice.

Additionally, the variety registration systems in general are designed to meet the needs of the formal system: varieties are tested in a monocropping system under high-input agriculture. This only represents a limited proportion of the buyers of certified seed. Hence, registration systems do not cater for the real diversity in farming systems and are not suited to low-input agriculture.

Local seed systems commonly use a much wider genetic diversity, both among varieties for specific adaptation and within landraces. PPB and participatory variety selection (PVS) aim to respond to these needs. PVS focuses on farmers’ selection from a wide range of varieties, whereas PPB involves farmers in the creation of new genetic variation and selection in segregating populations as well (see also article by Manicad and McGuire). However, the material resulting from these initiatives may not meet DUS or VCU requirements. In some cases public plant breeders have not been allowed to use such participatory methods because of this incongruity. For example, in 1990, the bean breeders of Kawanda Research Station in Uganda were not allowed to conduct on-farm testing by the variety release committee because it would have given farmers access to unreleased varieties. This is a clear example of seed regulations hindering farmer-oriented research and development. Development agencies that aim to produce and distribute local landrace varieties may similarly face conflict with the seed registration regulations.

Patents and Plant Variety Protection

Recent developments within PVP, however, restrict the rights of farmers to save and exchange seed. The latest version of the UPOV Convention gives breeders a greater influence over the use of their varieties. The adaptation is deemed necessary for private breeders to continue their work under increasing research costs, but it conflicts with the customary right of farmers to save and exchange seed. Countries may relax the rules, for example by allowing certain categories of farmer to produce seed for certain crops, but this requires explicit national legislation. Small-scale farmers (i.e. in this case farmers who produce less than 90 tons of cereal grain) in the European Union (EU) are allowed to use their own cereal seed without asking the breeder for permission and without paying royalties.

Proponents of strengthened breeders rights claim that PBR will not restrict local seed systems unnecessarily, since the administration cost of charging local farmers may be higher than the amount payable to the commercial breeders. However, introducing rights that may or may not be exercised renders the whole system very vague, especially in the grey area between local and formal seed systems, as with local seed development projects.

Rights over genetic resources

Both concepts grant rights over the access to PGR and the sharing of benefits arising from their use. Discussions are in progress on the legal wording of these rights and on possible implementation systems, including benefit-sharing mechanisms. Many countries support implementation through a multilateral system of exchange and benefit sharing, in which they would grant wide access to their resources in return for a global initiative and financial mechanisms to conserve genetic resources and secure transfer of relevant technologies from industrialized to developing countries. Some countries prefer bilateral arrangements for a considerable number of crops in which they may negotiate terms with individual users of germplasm. The latter option bears many similarities to patent rights.

• Commercialization: Germplasm is likely to be preferentially available to the highest bidder.
• Monopolization: Germplasm will not be shared among competitors.
• Licensees of germplasm will have to control the use of it on behalf of the country of origin. Farmer-to-farmer exchange will be formally prohibited not only because of the company’s interests but also because of contractual obligations with the country of origin.

Supporting local seed production

• Restriction of seed laws to a few commercial crops (e.g. Bangladesh, where all but five notified crops fall outside compulsory seed certification requirements);
• Seed production exemptions for small-scale producers (e.g. community PVP in the EU);
• Certain classes of seed to be covered by trueness-to-labelling requirements (producers’ responsibility) alongside seed certification, for example the use of a commercial seed class, in which seed is tested but the field is not inspected for trueness-to-variety;
• Variety release to be changed into a variety recommendation system, whereby the value of the variety is established and widely publicized, but other varieties are still allowed onto the market, increasing the farmers’ choice;
• Further exemptions to be allowed in IPR systems (both over varieties and germplasm) for the use of protected materials by resource-poor farmers.

Implications for PPB programmes

Regarding recognition and reward, benefits from IPRs for participatory plant breeders are likely to be limited. Often, the resulting varieties are insufficiently uniform, which may make them unprotectable. It is also doubtful whether protection is useful at all. In most cases PPB is directed at specific adaptation and thus has a limited geographical use for each variety. Moreover, its main targets are resource-poor farmers, and formal and informal breeders alike could expect little economic benefit.

IPR is only useful when the costs of application and maintenance of the right can be earned back through royalties derived from commercial seed production. When varieties appear commercially interesting, shares in the variety have to be determined for different parties such as the researchers and the participating farmers. It may be advisable to establish such shares in possible future revenue before the project starts, or to declare that IPR will not be sought on materials derived from the project.
Niels Louwaars

Plant Research International, PO Box 16, 6700 AA Wageningen, the Netherlands.
Phone (+31) 317 477003; Fax (+31) 317 418094; E-mail n.p.louwaars@plant.wag-ur.nl

Sources
Almekinders, C.J.M. and Louwaars, N.P. (1999), Farmers’ seed production: New approaches and practices. London, United Kingdom: Intermediate Technology Publications.

Louwaars, N.P. and van Marrewijk G.A.M (1996), Seed Supply Systems in Developing Countries. Wageningen, the Netherlands: CTA.

Tripp, R. (ed.) (1997), New Seed and Old Laws: Regulatory reform and the diversification of national seed systems. London, United Kingdom: Intermediate Technology Publications.