Short biography of the author:
Lauren May is a recent MSc graduate from Maastricht University in the Netherlands. She conducted this research as her Master’s thesis with the ambition to contribute to policy supporting sustainable approaches to agriculture and more just relationships between farmers’ rights, agrobiodiversity management, and intellectual property. Lauren is inspired by agroecological principles, deeply concerned with interconnected social and environmental agricultural sustainability issues, and passionate about how well communicated research can be a powerful medium for change.
Introducing the Context – Agrobiodiversity Management, Intellectual Property Rights, and Seed Sovereignty.
Agrobiodiversity is declining steeply. The number of crop varieties cultivated in Europe has plummeted; between 1903 and 1983, 578 varieties of bean declined to only 32 (Thrupp, 2000). Waning agrobiodiversity represents a permanent loss of culture, history, knowledge, nutrition, and habitat. This erosion is especially concerning in today’s age of climate crisis as agrobiodiversity is essential to create resilient agroecosystems. It promotes pest and disease resistance, encourages healthy soil, provides nutritional variety, and increases agricultural systems’ capacity to cope with extreme weather (Da Vià, 2012; Garnett et al., 2013; Thrupp, 2000).
Since the genesis of agriculture approximately 12,000 years ago, communal seed saving practises have conserved and cultivated agrobiodiversity (Golay & Bessa, 2019; Thompson, 2014). Seed communities, wherein saved seeds are shared, provide farmers with access to trustworthy, genetically diverse, locally adapted seeds allowing them to cultivate resilient, low-input crops which nurture food sovereignty. Seed saving practises are embedded in the culture and knowledge of many rural communities (Golay & Bessa, 2019; Montenegro De Wit, 2017; Frison & Coolsaet, 2018; Singh Decosas, 2010; Thrupp, 2000). Agrobiodiversity and smallholder agriculture are mutually reinforcing; small-scale, low-input agriculture depends on the resilience that agrobiodiversity fosters and seed saving maintains and creates such biodiversity (Frison & Coolsaet, 2018).
The relationships between rural communities and their seeds have experienced mounting disturbance since the 1970’s when the US and Europe began promoting an intellectual property rights (IPR) regime enabling breeders to possess and commercialise living organisms. Applying IPRs to plants creates a market incentive for innovation in plant breeding. To fuel this, they prevent rural communities from freely saving, re-sowing, and sharing seeds (Aistara, 2014; Golay & Bessa, 2019; Sievers-Glotzbach et al., 2020). IPRs on plant varieties have globalised through treaties such as the International Union for the Protection of New Varieties of Plants (UPOV) and the World Trade Organisation’s (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. This despite the resistance of communities and nations in the global South concerned that when seeds are possessed, the foundation of food systems, livelihoods, and cultures is controlled (Ajl, 2021; Golay & Bessa, 2019).
This research investigates two policy cases implementing IPRs on plant varieties: the EU’s Community Plant Variety Right (CPVR) and India’s Protection of Plant Varieties and Farmers’ Rights act (PPVFR) (Fleck & Baldock, 2013; Smith & Jarvis, 2011). The CPVR centralises IPRs on plants in the EU. It recognises its role in protecting the needs of breeders and farmers alongside economic, social, and environmental aspects of sustainability, but its effectiveness in meeting these objectives is debated (Smith & Jarvis, 2011; Golay & Bessa, 2019). Some scholars assert that the CPVR largely meets its goals and satisfies stakeholders, but others claim that it fails to protect human rights, disproportionately protects industry interests, and actively marginalising rural communities (Golay & Bessa, 2019; Smith & Jarvis, 2011). Contrastingly, India’s national policy has been described as a unique first step in rebalancing the distribution of power between breeders and farmers (Brahmi et al., 2004).
Seed sovereignty is a component of food sovereignty which asserts farmers’ right to continue traditional seed saving and hold determination over their community’s genetic resources. It has been used by projects and activist networks sprouting globally in response to globalising and strengthening IPRs (Aistara, 2014; Assadi, 2000; Pearson, 2013). This research emphasises that seed sovereignty is essential to just, resilient agriculture systems able to adapt to climate change (Adhikari, 2014; Golay and Bessa, 2019).
Literature Review – History and Philosophy Behind Intellectual Property Rights Applied to Plant Varieties.
IPRs originated in the US but were also promoted by Europe (Brandl & Glenna, 2017; McCune, 2018). In 1994, the WTO’s TRIPS agreement set minimum requirements for national IPR law requiring inventions to be patentable with a possible exemption for living organisms and essentially biological processes (Brandl & Glenna, 2017; Kim, 2006; Louwaars et al., 2006; Pearson, 2013; Randeria, 2003). To exclude plant varieties from patenting, states must implement a sui generis system (WTO, n.d.). In 1961, UPOV was created in Europe and now provides a framework to implement sui generis plant variety rights (PVR). A key pillar of UPOV is breeders’ right to access any plant variety for further research (Brandl & Glenna, 2017; Girard, 2015; Visser & De Jong, 2016; Zapiain, 2008). UPOV has evolved towards an increasingly narrow conception of farmers’ rights. In 1991 the farmers’ privilege became optional; member states can choose to permit farmers to save propagating material from their own harvest for use on their own land, or not (Brandl & Glenna, 2017; UPOV, 1991; Montenegro De Wit, 2017; Visser & De Jong, 2016).
IPRs and PVRs use exclusion to commercialise plant varieties. They disrupt the regenerative cycle of seeds through policy prohibiting communal seed management (Brandl & Glenna, 2017; Montenegro De Wit, 2017; Kim, 2006). Commercialisation has altered the relationship between farmers and seeds; seeds once belonged to and represented the rural communities that nurtured them but are now increasingly a product farmers consume at cost (Pearson, 2013; Thompson, 2014). To benefit from IPRs, breeders must produce varieties fulfilling distinctness, uniformity, and stability (DUS) criteria (Sievers-Glotzbach et al., 2020). Most varieties bred in rural communities cannot fulfil DUS criteria as seed saving practises maintain genetic diversity to promote agricultural resilience (Aistara, 2014; Sievers-Glotzbach et al., 2020). The crop improvement industry seeks to amass profit fuelled by excludability and coupled with expensive chemical inputs, but ironically relies upon common global genetic resources derived from agrobiodiversity maintained by communities through seed saving practises (Montenegro De Wit, 2017).
Accumulation by dispossession describes the process of commodifying genetic resources (Montenegro De Wit, 2017). Accumulation refers to collecting genetic material to develop new plant varieties. Dispossession refers to using such material without consulting the community who fostered it and encouraging farmers to replace traditional seeds with modern varieties. Dispossession erodes agrobiodiversity through lack of use (Montenegro De Wit, 2017). Accumulation by dispossession has two major consequences. The first is socio-environmental; agrobiodiversity loss decreases agricultural resilience. This results in food and livelihood insecurity. The second consequence is socio-cultural; replacing traditional seeds and farming practices with modern seeds and high-input agricultural techniques causes knowledge, culture, and identities associated with traditional varieties to be lost (Montenegro De Wit, 2017). Montenegro De Wit (2017) identifies these as the consequences of formal seed systems and argues in favour of informal seed systems. They describe farmers resisting accumulation by dispossession by continuing to use traditional varieties for personal consumption and relegating modern varieties to cash crops.
IPRs allow inventors to lease their inventions to society to gain compensation for their work. When this model is applied to plant varieties it fails to account for the role generations of rural communities have played in maintaining and generating genetic resources (Visser & De Jonge, 2016). In India communities engage in ritualised seed sharing practises called Akti festivals ceremoniously bringing their seeds together, mixing them, and then distributing a share of the diverse seeds to each party (Montenegro De Wit, 2017; Frison & Coolsaet, 2018; Singh Decosas, 2010; Visser & De Jonge, 2016). Rural communities can successfully govern informal seed systems using traditional knowledge, customs, and values like gift giving, reciprocity, and trust based on their shared needs and community bonds (Montenegro De Wit, 2017; Zapiain, 2008). This illustrates the importance of accounting for how PVRs limit rural communities implicating food sovereignty, livelihoods, community cohesion, and adaptive capacity of agricultural systems (Frison & Coolsaet, 2018; Visser & De Jonge, 2016).
In 2000, a Seed Tribunal was held in Karnataka, India giving farmers the opportunity to testify on the crisis of suicides in rural communities (Assadi, 2000). Farmers spoke about the negative consequences of IPRs and resulting domination of agribusinesses. Seed supply had become an issue; corporations made bold claims regarding their varieties’ high yields and resilience. Promises were often not fulfilled despite big investments farmers were encouraged to make in seeds and other inputs (Assadi, 2000). Some farmers saw yield increases, but the environmental degradation and shift away from traditional, locally adapted varieties meant could not be sustained. Farmer struggled in debt cycles characterised by untrustworthy loans taken out to pay for new seeds and inputs followed by desperate measures, including organ sale and suicide, taken to pay off debts. The tribunal led to calls for India to implement policies protecting rural citizens (Assadi, 2000).
The challenges associated with IPRs are not confined to the global South. Negative consequences are also present in the EU, especially where inequality is found, like across the East-West or rural-urban divide. In Latvia outrage emerged from legal action against a couple selling heritage tomato seeds to their gardening club (Aistara (2014). This incident stimulated debate regarding the EU PVR system, the inability of those stewarding heritage varieties and biodiversity to qualify for compensation, and prejudice towards rural life (Aistara, 2014). The EU is not immune to challenges facing small-scale farmers. Industrialisation and the prevalence of large-scale agriculture do not negate the existence of European smallholders, their contribution to food production, or their need for support especially as increasingly recognised sustainable food producers (Ajl, 2021).
According to Vandana Shiva, a prominent activist for seed and food sovereignty, there are two natural laws of the seed. The first says that “seed should give rise to seed” (p.3) which means that seeds should be saved and re-sown (Singh Decosas, 2010). The second law states that “seed is commons” (p.3) meaning that seeds should be shared and governed communally (Singh Decosas, 2010). Shiva asserts that when a handful of companies control seeds, the means to food production and culture, people are not free. Shiva argues that the law should ensure full freedom to save, exchange and sell seeds, and the protection of farmer’s varieties including monetary reward for communities nurturing valuable plant varieties (Singh Decosas, 2010). According to Shiva, IPRs commit three varieties of piracy: by claiming inventions are novel and not dependent on farmers’ resources, by excluding citizens from using resources, and by deriving economic good from these activities. Shiva does not condemn science but recognises biotechnology as a powerful tool that should be guided by the needs and expertise of farmers (Singh Decosas, 2010). Biotechnology might create societal benefit, like climate resilience and sustainability in agriculture. However, this requires plant breeding to collaborate with rural communities (Louwaars et al, 2006).
Montenegro De Wit (2017) emphasises the connection between local knowledge and sustainable agricultural systems such as agroecology. They suggest that until rural communities’ knowledge is valued, the benefits of systems guided by this knowledge, namely food sovereignty, healthy soil, symbiotic agricultural ecosystems, minimised obesity, and climate action, will not come to fruition. According to Singh Decosas (2010), when technology and new plant varieties substitute this knowledge, we lose biodiversity and opportunities for resilience and adaption to climate change. Frison and Coolsaert (2018) assert that ignoring how IPRs have narrowed the conception of effective genetic resource management to commercialisation is ignorant to how social interactions characterise complex agroecosystems. Communal approaches to managing genetic resources realise the social, environmental, and economic potential of agrobiodiversity by maintaining connections between communities, cultures, and varieties (Frison & Coolsaert, 2018). IPRs enable genetic resources to be accessed freely for commercialisation but blockade co-evolutionary relationships between communities and agrobiodiversity (Louwaars et al., 2006; Frison & Coolsaet, 2018).
The Research Approach – Methods, UNDROP, and Evaluative Criteria.
This research used a systematic literature review, comparative policy content analysis, and semi-structured interviews to gather data exploring rural citizens’ rights in the EU and Indian policy cases. Criteria were then created to evaluate the policies’ success in governing conflict between intellectual property rights and farmers’ right to seed sovereignty. The UN published the United Nations Declaration on the Rights of Peasants and People Working in Rural Areas (UNDROP) to apply human rights specifically to rural citizens and demand their application globally (United Nations, 2018). This research used the rights asserted in UNDROP, relevant to seed sovereignty, to create criteria with which to evaluate the policies. UNDROP is an appropriate medium because its reputation and contents provide legal weight (Bessa & Golay, 2019).
Six criteria were derived from UNDROP. Firstly, self-determination; provisions are made to support rural citizens in developing an adequate livelihood of their own choosing and enable the use and protection of traditional methods and knowledge. Secondly, commons and seed community; provisions are made to protect natural commons and enabled communities to manage them through their right to save, re-sow, exchange, and sell seeds saved on their farms and engage in traditional seed systems. Fulfilling this criterion allows farmers access to high quality seeds and chose which seeds they use. Thirdly, specific needs; the policy pays special attention to the needs of rural citizens and makes provisions specific to those needs. Fourthly, expression and participation; extensive opportunities are created for rural citizens to express their opinions to governments at all levels and participate in policy making that affects them. Fifthly, benefit sharing; when genetic resources evolved and maintained by a community are utilised for breeding or research, rural citizens have the right to share justly in any benefits derived. Sixthly, sustainable food; rural citizens are supported in the shaping of sustainable food systems and consulted to gather local knowledge supporting this process.
Applying Evaluative Criteria and Reflecting on the Policy Cases.
The diagram below reveals to what extent and how each policy case fulfils the criteria this research derived from UNDROP.
|Commons and Seed Community||Not Fulfilled||Fulfilled|
|Specific Needs||Partially Fulfilled||Fulfilled|
|Expression and Participation||Not Fulfilled||Partially Fulfilled|
|Benefit Sharing||Not Fulfilled||Fulfilled|
|Sustainable Food||Not Fulfilled||Partially Fulfilled|
India’s PPVFR fulfils four criteria through four mechanisms. Firstly, it asserts farmers’ right to save, share, sell, and re-sow seeds. This is foundational to seed sovereignty and allows rural communities to engage in practises promoting agrobiodiversity and providing an independent source of diverse, trustworthy seeds. Secondly, farmers’ varieties are valued and qualify for protection according to specific criteria suited to their breeding methods and purposes. Thirdly, for farmers who choose to use modern plant varieties, the implementing authority monitors seeds’ performance to ensure quality is as advertised. Fourthly, the PPVFR recognises rural communities’ knowledge and their contribution to genetic resources; benefit sharing infrastructure provides communities whose genetic resources are used in plant breeding with a share of profit made. These rights promote autonomy over agricultural livelihoods, enable seed communities to function, recognise the needs of citizens, and compensate varied breeding work and knowledge. The PPVFR balances the potential benefit of incentivising scientific innovation through PVRs with protecting small-holder agriculture, citizens, and agrobiodiversity. It is easy to imagine that the tragic history of farmer suicides in India catalysed this focus on farmers’ rights. The PPVFR could provide rural citizens’ with more extensive opportunities to participate in policy and research.
The CPVR does not fulfil any of the criteria although it shows some recognition of different stakeholders’ needs. It does not implement the rights of rural citizens asserted in UNDROP and instead curtails seed saving practises. This failure is facilitated by the EU’s commitment to the current international IPR regime and the supremacy of biotechnology science. The CPVR is guided by UPOV to prioritise industry interests and fails to recognise how seed saving practises contribute to agrobiodiversity. The CPVR provides farmers with weak exemptive ‘privileges’ instead of active rights. The major discrepancies between these two policies concern how knowledge is valued, to what extent rural citizens are thought to contribute to agrobiodiversity conservation, and the relevance human rights are considered to have to PVRs. Divergence in the values that underpin each policy led to different balance of rights and power between stakeholders.
Recommendations for EU Policy Reform.
This research proposes six policy recommendations to reform the EU’s CPVR in the interest of implementing UNDROP and promoting seed sovereignty. The first recommendation is for the EU to leave UPOV and design a sui generis system specific to the EU context.Within the framework of UPOV the EU has maximised farmers’ ‘privilege’; UPOV must no longer be a limiting factor in implementing UNDROP. Secondly, the EU must use this freedom to provide farmers with active rights including to save, re-sow, and share seeds. Thirdly, implement benefit sharing. Breeders are already required to provide the CPVO with a volume of data. Requiring additional information revealing the origin of genetic resources used in plant breeding would enable communities’ contributions to be traced and rewarded. Fourthly, fund seed banks. Interviews demonstrated that seed banks are an essential tool to facilitate seed networks providing access to diverse, resilient seeds and dynamically manage agrobiodiversity. Seed banks exist in the EU but should be supported more extensively. Fifthly, the CPVO should proceed with caution when considering weakening DUS criteria. An interview with a representative of the CPVO revealed that the organisation is seeking to weaken DUS criteria to incentivise the development of organic varieties which are necessarily more diverse. Although this would likely support low-input agriculture, other stakeholders expressed fear that this might lead to dispossession and commercialisation of diverse landraces by agribusiness. Sixthly, improve participation and communication by incentivising collaboration between plant breeders and farmers as supported by Vandana Shiva.
This research revealed that respect for smallholders’ knowledge and their contribution to food production and agrobiodiversity management is embedded in the PPVFR. India seeks to make incentivising innovation compatible with rural citizens’ rights and sovereignty. The CPVR is formulated with a narrower purpose focused on innovation and reflects an occupation with the international trade and IPR landscape above meeting the needs of stakeholders. The notion of rights rarely comes into play. This research is convinced of a communication problem between actors in the EU seed system. Interviews explored a wide range of views from three different stakeholders ranging from satisfied and proud, to tolerant, to angry and disillusioned with the EU as a human rights project. This discrepancy in experiences within the EU seed system suggests a lack of effective communication between actors. It is essential that all stakeholders are heard at EU level and that their experiences and needs influence the CPVR. It will be difficult to successfully reform the CPVR without developing some consensus regarding not only what the problems are but also what is valued in the EU agriculture system.
This research has not only evaluated the status of PVR policy today and provided practical advice to support the EU in improving the social and environmental sustainability of the CPVR, but it has painted a dark picture of the threat disempowered farmers and declining agrobiodiversity pose. One reason why India has developed a uniquely promising policy is likely its tragic history of suicides in rural communities. It is difficult to argue against the essentialness of agrobiodiversity to build resilient agricultural systems. It is easier to claim that conventional science promises all the answers, but to adapt agriculture to climate change, policy must reflect and nurture the potential of traditional agroecological farming practises and the wisdom found in practical knowledge. There is no need for the EU to experience tragedy like India has endured to motivate and guide policy reform but, reform must be engaged in with quickly and radically here too.