Cultivating farmers' rights: reconciling food security, indigenous agriculture, and TRIPs.

• Author: Winter, Lauren
• Position: Agreement on Trade-Related Aspects of Intellectual Property Rights

ABSTRACT

This Note discusses strategies for cultivating Farmers' Rights internationally. The rise of international treaties awarding intellectual property rights in plant genetic resources to plant breeders brought with it an erosion of agricultural biodiversity as well indigenous farmer lifestyles. Farmers' Rights emerged in recognition of the role of traditional farmers play in conserving, creating, and promoting genetic diversity in the food supply and of the importance of maintaining traditional agriculture practices. This Note argues that Farmers' Rights can be realized internationally through concerted effort. The Note proposes that Farmers' Rights could be realized if national governments create laws and infrastructure that promote Farmers" Rights while the international community works to change international intellectual property law.

TABLE OF CONTENTS I. INTRODUCTION II. INTELLECTUAL PROPERTY RIGHTS IN PLANT GENETIC RESOURCES A. The Rise of Intellectual Property Rights in Plant Genetic Resources B. International Intellectual Property Rights Regimes in Plant Genetic Resources 1. The International Convention for the Protection of New Varieties of Plants 2. The Agreement on Trade-Related Aspects of Intellectual Property Rights III. FARMERS' RIGHTS A. The Effect of International Intellectual Property Rights on Agriculture 1. Agro-Biodiversity 2. Indigenous Farmers 3. Intellectual Property Rights and Agriculture B. Farmers' Rights in International Agreements 1. The International Undertaking on Plant Genetic Resources 2. The Convention on Biological Diversity 3. The International Treaty on Plant Genetic Resources for Food and Agriculture a. Structure and Goals b. Farmers' Rights in the ITPGR C. Protecting Farmers' Rights IV. CULTIVATING FARMERS' RIGHTS A. A National Approach B. An International Strategy: V. CONCLUSION I. INTRODUCTION

The United States government began supporting seed breeding programs as early as the late nineteenth century. (1) The goal of these programs was to encourage private companies to create new plant varieties and to take the responsibility of developing new plant varieties out of the hands of farmers. (2) However, because plants can be grown from seed from the previous year and farmers can resell seed in competition with the original breeder, private industry lobbied for a way to protect plant varieties. (3) This lobbying led to the international development of intellectual property protections of plant varieties that could be saved, replanted, and sold. (4)

In 1961, the International Convention for the Protection of New Varieties of Plants (UPOV) (5) was signed to create an international intellectual property scheme to protect plant breeders' rights. UPOV defines a "breeder" as a person who "bred, or discovered and developed, a variety." (6) UPOV allows breeders to develop patents over new, distinct, stable, and uniform plant varieties, and to exclude others from access to those varieties. (7) More recently the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) created even more expansive intellectual property protection for plant genetic resources. (8)

A tension exists between plant breeders' intellectual property rights, which adhere to a developed conception of property ownership, and the practices of local subsistence farmers, who often own plant varieties communally and produce food for their own subsistence. Intellectual property regimes tend to threaten traditional farmers' ability to save and replant seeds, as well as to exchange seeds with other members of the community. (9) In addition, subsistence farmers preserve and create new genetic diversity in the food supply through this process of saving, replanting, and exchanging seeds. (10) Intellectual property regimes erode the ability of the world to respond to changing food security needs using diverse plant genetic resources by discouraging these traditional farming activities. (11)

The concept of "Farmers' Rights" developed in response to the expansion of intellectual property rights in plant varieties. (12) Article 9 of the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR) explicitly recognizes these rights. (13) This treaty aims to promote genetic diversity in the food supply by creating a commons in which countries can exchange their diverse plant genetic resources. (14) Recognizing that traditional farmers are necessary to conserving, creating, and promoting genetic diversity in the food supply, the treaty calls on national governments to take measures to encourage farmers to continue to conserve and improve plant varieties. (15)

This Note explores the evolution of Farmers' Rights and the possibility of enforcing the concept on an international level. Part II explores the origin of international intellectual property regimes in plant varieties and two international agreements that extend intellectual property protection to plant breeders: UPOV and TRIPS. Part III assesses the concept of Farmers' Rights. It explores the effects of international intellectual property rights on agriculture, in terms of both the possible diminishing of genetic diversity within agriculture and the food supply and the marginalization of traditional agriculture practices. The Part also addresses Farmers' Rights in three international agreements--UPOV, the Convention on Biological Diversity (CBD), and the ITPGR--and explains the successes and failures of these treaties to breathe life into the Farmers' Rights concept. Part IV addresses a theoretical framework for protecting Farmers' Rights and gives two examples of how countries have incorporated Farmers' Rights into national legislation. The final Part proposes a strategy for the meaningful cultivation of Farmers' Rights in the face of the constraints imposed by international intellectual property rights regimes. The Note proposes both a national approach and an international strategy for promoting Farmers' Rights. First, individual states must take action to promote Farmers' Rights through national legislation. In addition to national action, states must embrace an international strategy to adapt TRIPS to the demands of Farmers' Rights.

2. INTELLECTUAL PROPERTY RIGHTS IN PLANT GENETIC RESOURCES

   Intellectual property rights (IPRs) did not apply to plants until the twentieth century,me Plant genetic resources (PGR) (17) for food and agriculture were considered part of the "common heritage of mankind," (18) and, as such, were not subject to individual ownership. (19) Indeed, some argue that subjecting organic material to IPRs leads to the "devaluation of life." (20) In any case, assigning IPRs to this new domain constituted an intrinsic shift in the way the world approached what could be owned. (21) Extending IPRs to PGR effectively takes PGR out of nature, turning it into a commodity that can be owned. (22) For most of history, farmers not only planted and harvested, but also bred and improved, their own crops. (23) Farmers saved seeds from plants with desirable characteristics, (24) leading over time to the production of plant varieties adapted to local conditions. (25) As a "common heritage" good, PGR was freely exchanged within and between farming communities as individual growers sought to improve the PGR they depended on for their own subsistence. (26)

   1. The Rise of Intellectual Property Rights in Plant Genetic Resources

      The commercialization of the crop breeding and improvement processes set the stage for the development of IPRs in PGR. (27) Farmers themselves gladly ceded plant breeding responsibility to independent seed producers for the convenience of buying seed from dealers (28) because creating new plant varieties required a lot of work. It can take up to ten years and a good deal of labor to create a new plant variety. (29) Plants must be bred and cross-bred over several seasons in order to produce a new plant variety with a desirable characteristic, such as drought tolerance, (30) and as many as fifty parental lines may be used to create one new variety of plant. (31)

      Despite farmers' enthusiasm with purchasing, rather than producing, new PGR, plants did not lend themselves to commercialization due to the fact that they are a self-reproducing resource. (32) With only a small number of seeds of an improved plant variety, the farmer has no more use for the breeder--the farmer can generate more seed simply by planting the improved variety and harvesting the crop. The biological fact that farmers only have to buy improved seeds once prevented the growth of a major plant breeding industry. (33)

      The development of hybridized corn, however, set the stage for a plant breeding industry. (34) After World War I, the United States government, through the Department of Agriculture, took the responsibility for developing new plant varieties out of the hands of farmers and began funding research for crop improvement. (35) Hybrid corn produces higher yields, but it only does so in the first generation. (36) Jack Kloppenburg observed that "hybridization is ... a mechanism for circumventing the biological barrier that the seed had presented to the penetration of plant breeding and seed production by private enterprise." (37) The genetic makeup of hybrid corn created de facto intellectual property protection for private plant breeders. (38) In response, the U.S. Congress passed the Plant Patent Act in 1930. (39) While the Act did not necessarily provide wide protection for plant breeders, it "established the principle that private plant breeders should have legal monopoly rights to the fruits of their investment." (40)

      Plant breeders also succeeded in increasing the yields of wheat and rice, starting in the 1940s. (41) During this so-called "Green Revolution," philanthropic organizations in industrialized countries funded plant breeding programs to improve living conditions through greater crop...