Farmers’ Rights: Intellectual Property Regimes and the Struggle over Seeds

• Date: 01 December 2004
• Author: Craig Borowiak
• Published date: 01 December 2004
• DOI: 10.1177/0032329204269979
• Subject Matter: Articles

10.1177/0032329204269979ARTICLEPOLITICS & SOCIETYCRAIG BOROWIAK

Farmers’ Rights: Intellectual Property

Regimes and the Struggle over Seeds

CRAIG BOROWIAK

This article analyzes “farmers’ rights” as a strategy of resistance against the per-

ceived inequities of intellectual property rights regimesfor plant varieties. As com-

mercial models of intellectual propertyhave made their way into agriculture, farm-

ers’ traditional seed-saving practices have been increasingly delegitimized. In

response, farmers have adopted the languageof farmers’ rights to demand greater

material recognition of their contributions and better measures to protect their

autonomy.This campaign has mixed implications. On one hand, farmers’rights are

a unique form of right that may help transform conventions of intellectual property

in ways that arebetter suited for registering and materially encouraging alternative

forms of innovation, such as those offered by farming communities. On the other

hand, farmers’ rights have proved enormously difficult to enact. And by situating

farmers’rights alongside easily enacted commercial breeders’rights, the campaign

risks further legitimizing the inequities it is responding to.

Keywords: farmers’rights; indigenous knowledge; intellectual property; develop-

ment discourse; TRIPS

In the debates over the global political economy and over the creation of insti-

tutions of global governance, intellectual property rights (IPRs) have emerged as

one of the most hotly contested sites of political struggle. Nowhere is this truer

than in the struggle over biological resources. While the campaign for Third

Worldaccess to patented medicines captured headlines leading up to, during, and

after the Cancun meeting of the World Trade Organization (WTO) in the fall of

This article originated as part of a collaborative project undertaken with Tania Roy on agrarian

nationalism in India. I am grateful for her support and inspiration.I also wish to thank Nilgün Uygun

and Vega Tom for their helpful comments on earlier drafts of this article.

POLITICS & SOCIETY, Vol. 32 No. 4, December 2004 511-543

DOI: 10.1177/0032329204269979

© 2004 Sage Publications

511

2003, another related and just as vital struggle has been taking place in agriculture

regarding the control of seeds.

Intellectual property has taken on tremendous significance for agricultural

producers around the globe since the successful efforts by commercial agriculture

and pharmaceutical interests to link intellectual property of biological resources

with international trade in the 1980s, and the subsequent institutionalization of

IPRs protection in the WTO. In a crucial and controversial provision in the

WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights

(TRIPS), signatory countries became obligated to extend property rights protec-

tion to plant varieties. In effect, this means they are obligated to grant state-sup-

ported monopolies over the commercial distribution of scientifically engineered

seeds. In the shadow of this IPR regime, a virtual seed war has emerged. Forthe

biotech industry, the institution of such protection—through so-called breeders’

rights—offers a long overdue recognition and just reward to commercial

seedsmen, who had taken over the mantle of seed innovation from farmers

decades earlier. For many farmers in developingcountries,1however, the expan-

sion of IPRs to include plant varieties marks a departure from traditional practices

and beliefs and poses a threat to their autonomy and established ways of life.

Many are concerned about the implications if multinational agribusinesses are

able to use IPRs over bioengineered seeds to legally prevent farmerswho use the

new seeds from reusing and trading seeds collected from their own fields,2prac-

tices especially crucial for communities of small farmers who depend on small

batches of traded seed to adapt to changing land conditions. The prospect that the

promise of high yields could then push out traditional varieties and thereby force

farmers to purchase new seeds for every crop hasinduced anxiety about farming

communities becoming ever more dependent on foreign seed merchants. Further-

more, as multinational seed companies reap great rewards from their innovations,

many farmers believe that their and their communities’historical contributions to

biodiversity and seed development are going largely unrecognized.

In response, networks of Third World farmers in coalition with activist

nongovernmental organizations (NGOs) have been organizing extensive protest

and lobbying campaigns for more than a decade. As with most coalitional social

movements, the particular concerns and strategies varyamong the different actors

involved. And yet there is striking uniformity among these groups in the percep-

tion that the international IPR regime is heavily weighted against farmers. As

striking is the similarity of language used by the parties involved. Across the

board, the idiom of “rights”—the same idiom used by the now dominant IPR

regime—has come to permeate the debate. If “breeders’ rights” was the pivot

upon which agribusinesses lobbied for changes in commercial law, “farmers’

rights,” “indigenous rights,” and, more recently, “human rights” provide the

ground upon which resistance to plant variety IPRs is being waged.

512 POLITICS & SOCIETY

In this article I examine these rights discourses, paying particular attention to

the concept of farmers’ rights. I divide the essay in two parts. In the first part, I

chronicle the development of breeders’ rights as an institutionalized discourse

that has transformed farmer-centered agricultural practices. Tracing a strain of the

discourse back to the early parts of the twentieth century,I document how the con-

fluence of modern science, technocratic models of agriculture, and commercial

seed interests have propelled the discourse forward through the introduction and

expansion of legislation regarding the IPRsof breeders, first in domestic Western

institutions, then in regional ones, and then culminating in the broadly interna-

tional WTO. In the second section, I analyze the strengths and shortcomingsof

farmers’ rights as a strategy of resistance. I point to how farmers’ rights offer a

unique type of resistance to breeders’ rights in that they are not a rejection of

breeders’ rights but rather a newtype of right constituted in reference to intellec-

tual property. I argue that this counterrights discourse places pressure on the

newly dominant discourse and legal regime. But given significant compatibility

problems between existing interpretations of rights and the sorts of collectiveand

historical demands being made by farmers’ rights advocates, it is far from clear

that the farmers’ rights discourse can be translated into practice. And given that

the farmers’ rights campaign tends to concede recognition to breeders’ rights,

there seems to be particular danger that an impracticable farmers’ rights regime

would actually help legitimize the very practicable and inequitable IPR regime

that is at issue.

TRANSFORMATIONS

Reflecting on the history of agriculture, one can observe how over the past one

hundred years a seismic shift has taken place in the representation of farmers with

regard to the control of seeds. For virtually the entire history of agricultural pro-

duction, up until the twentieth century, seed collection and distribution resided in

the hands of farmers. Farmers collected the seeds from their fields after harvest

and then used them for the next crop, for feed, for exchange, and for the breeding

of new varietiesof crops. During the past century, however,these farmer-centered

practices became highly controversial and, in many cases, came to be regarded as

criminal acts of piracy.As critics have deftly observed, the expansion of IPRs into

plant varieties runs contrary to the deep historical roots of traditional farming

practices.3

What is interesting and troubling about these debates is that while the

crescendoing pressures of commercial globalization are inducing a momentous

transformation in Third World agricultural practices by imposing a legal frame-

work ostensibly designed to take account of the contributions of “scientific” inno-

vations in plant breeding by commercial seedsmen, this same framework proves

ill equipped to take account of the collective contributions of farmers that have

CRAIG BOROWIAK 513