WTO Negotiations and Regional Policy Dynamics in Farmers Rights in South Asia
Kamalesh Adhikari, Research Director, SAWTEE, Nepal.
 Not much is happening in WTO after the Dhoha round. The developing countries have been insisting on including farmer’s rights under the TRIPS of WTO. The negotiations are trying to include Farmers rights as part of the TRIPS. We already find Article 27.3(b) with the following provisions.
- Patentability exceptions to exclude plants, animals and essentially biological processes for the production of plants and animals, except microorganisms, and non-biological and microbiological processes.
- Plant variety protection to plant varieties either through patents, or effective sui generis system, or a combination of both.
The review of Article 27.3 (b), after four years of coming into force of TRIPS, was mandated by the Article itself. The review, however, did not begin in 1999 due to continued tussle between developed and developing countries. Finally, the review began in 2000 but it was in December 2001 that Paragraph 19 of the Main Doha Declaration – agreed during the WTO’s Doha Ministerial – provided a more appropriate basis for the review. In Doha, WTO Members made a decision instructing the Council for TRIPS...to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore. However, despite a series of negotiations under this mandate, Members have not come to any consensus on these issues. The positions taken by developing and developed countries in their proposals submitted to the Council for TRIPS explicitly show that there still exists considerable divergence in their positions.
Positions in the Council for TRIPS The position varies from hardline protection norms of the developed countries like USA, Japan ‘conditional disclosure’ provisions by the moderate countries like EU and virtually no patents on life forms in African countries. Developing countries led by India and Brazil seek disclosure clause. (see figure)
Specific Positions on PVP
Most South Asia countries take the Indian legislation as a model while drafting their PVP laws. It is because it tries to balance between the rights of the breeders and the farmers. PVP allows development of new technological solutions in the field of agriculture and such protection encourages the easy introduction of new varieties and ensures that breeders continue breeding effectively.To protect farmer’s rights we need to insert some provisions in Article 27.3 (b) like: inserting a footnote after the sentence on PVP in Article 27.3(b), stating that any sui generis PVP law can provide for:
- the protection of innovations of indigenous and local farming communities in developing countries, consistent with CBD and ITPGRFA;
- the continuation of traditional farming practices including the right to save and exchange seeds, and sell farmers’ harvest; and
- the prevention of anti-competitive rights or practices which threaten the food sovereignty of developing countries.
Similarly we can include provisions permitting specific exceptions to plant breeders' rights in TRIPS covering, as a minimum and farmers’ rights, in particular to sow and share harvested seed of a protected variety and communities’ rights and compulsory licensing where plant varieties are not available on reasonable commercial terms, in times of national emergency and in cases of public non-commercial use.However there are conflicting options for plant variety protection like ‘Only patents on new plant varieties vs only breeders’ rights certificate under national law’ and ‘UPOV vs national PVP law on breeders’ rights’.
Status of South Asian countries in PVP implementation
The following farmers’ rights have been mentioned in the Bangladesh PVP draft:
- right to protect their TK relevant to PGRs from being accessed in formal sector without compensation;
- right to claim significant contribution to a registered variety;
- right to claim an equitable share of benefits if their varieties have contributed to the registered variety; and
- rights to save, use, exchange and sell farm-saved seed/ propagating material of registered variety for non-commercial purposes.
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India has the PVPFR Act 2001. Bangladesh has two draft PVP laws. While the first draft (1998) is driven by CSO demands, the second draft (2003) is said to be UPOV-styled law though it specifically mentions about farmers’ rights. Though Pakistan has a draft PVP law, it is under strong influence from MNCs.. The draft allows plant breeders’ rights for GMOs. A penalty clause, which was considered to be vital for regulating the MNCs, has been dropped while revising the draft and again re-introduced recently. The draft has not been promulgated, so far, due to strong opposition from civil society groups. They say that it only guarantees the rights of the breeders and not of the farmers. It does not address benefit sharing/royalty payments to communities. Bhutan has drafted a unique law with ABS and PVP combination, though under negotiation for WTO membership. The low-income countries like Nepal, Bhutan, Bangladesh and Maldives enjoy exemption from TRIPS till 2013. The PVP draft from Sri Lanka is still immature
Nepal experience:
Nepal has a draft PVP law. Nepal was pressured by US to enter WTO but the farmers have set certain demands to agree to UPOV norms. They believe that their rights are wide and depend on plant varieties and genetic resources. There are discussions going on in Nepal on farmers’ rights in relation to agricultural biodiversity, biotechnology and IPRs. With respect to Traditional varieties and Farmers’ new varieties, registration, capacity building and economic incentives are vital. In the case of Breeders’ new varieties (IPR protected) and Varieties/genes available in the Multilateral System or Gene Banks, Technology transfer or assistance such as PPB programmes are critical.
It has been suggested that the Rights over farmers’ varieties should include:
- Right to register their varieties and related knowledge and obtain IPRs over varieties and knowledge they develop
- Right to grant Prior Informed Consent over the use of their varieties and knowledge through an institutional mechanism
- Right to regulate access to their varieties and knowledge if Prior Informed Consent is not taken from them through an institutional mechanism
- Right to know about the primary, secondary as well as any other use of their varieties and knowledge such as through PIC process and "disclosure requirement".
Similarly the Rights over IPR-protected varieties would include:
- Right to save, exchange and reuse protected (breeders’) seeds and sell them in non-branded form
- Right to legally challenge breeders’ rights and claim compensation in cases of non-compliance with the national PVP and ABS laws
- Right to a fair and equitable share in the benefits derived from the commercial use of their varieties and knowledge
- Right to compensation in cases of crop failure or damage caused due to misinformation about the quality of seeds, or supply of bad seeds
- Right to access breeders’ seeds through regulatory measures (including compulsory licensing and technology transfer in cases of anti-competitive practices)
Significance of these debates within SAARC
There are a number of laws being developed. But, the toughest challenge is in its implementation, which is the case in India also. The farmers are yet to be sensitized and empowered to bring their varieties for registration, which is the vital first step in getting their rights. Simultaneously efforts should be made for the technological transfer. In Jordan, under the Participatory Plant Building (PPB) programme, the landlord who leased his land for trials got the registration done in his name and other farmers in the process were ignored, which should not be the case. There is also a threat from MNCs overtaking NGOs in these programmes and leave the farmers rights behind.
To address these deficiencies, we need to promote a Regional Seed Bank for South Asia as the region has similarities in many ways including food habits. It could be a first step in ensuring the farmers rights.
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