ICTSD Outputs and Activities on Biotechnology, Trade and Sustainble Development

Biotechnology: Addressing Key Trade and Sustainability Issues

B.4 Intellectual property rights

Q25 Are farmers allowed to save, re-use and re-sell GM seeds?

Another consequence of the particular way that plant genetic resources for agriculture have developed is the need to recognise and preserve the traditional activities conducted by farmers, including saving, exchanging, and selling seeds. The issue of farmers' rights is closely linked with the potential impact of biotechnology patents on food security, which will be analysed below.

In the context of PVP, the 1978 UPOV Convention, by limiting the scope of breeders' rights, allowed farmers to continue these practices. In the 1991 revision, the acts that require the authorisation of the breeder were amplified to include any production, reproduction, sale or stocking of propagating material, though an optional exception was introduced to allow farmers to, "within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder", save seeds from their own harvests for use in their own holdings.

In international patent rules, there are no specific exceptions for farmers. Under the TRIPS rules, patented seeds cannot in principle be saved, re-used and re-sold. However, as has been noted, the TRIPS Agreement allows countries to introduce exceptions to patent rights subject to the "three-step" test. For instance, the European Directive on the Protection of Biotechnological Inventions establishes that "the sale or other form of commercialisation of plant propagating material to a farmer by the holder of patent… implies authorisation for the farmer to use the product of his harvest for propagation or multiplication by him on his own farm" under certain conditions.

There is increasing recognition, however, that the contribution of farmers to the conservation and development of plant genetic resources cannot be fully acknowledged and preserved through exceptions to patents or plant variety protection. Indeed, many believe that referring to the traditional activities of farmers as a "privilege", "exception" or "exemption" is a misnomer because, in the same way that plant breeders and biotechnology companies have their rights recognised because of their innovations, farmers' rights should be equally recognised based upon their ongoing and past conservation and enhancement of genetic material (GRAIN, n.d.).

The concept of "farmers' rights" was thus developed as a way to achieve an improved balance and to allow farmers to benefit from the value they have contributed (Correa, 2000). The African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, for instance, is based on the notion that the rights of local communities over their biological resources, knowledge and technologies are a priori rights which take precedence over rights based on private interests.
Farmers' rights in this context include the right to the protection of their traditional knowledge relevant to plant and animal genetic resources; to obtain an equitable share of benefits arising from the use of these resources; to participate in making relevant decisions; to use a new breeders' variety protected under this law to develop farmers' varieties, including material obtained from genebanks or plant genetic resource centres; and to collectively save, use, multiply and process farm-saved seed of protected varieties.

The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which was negotiated under the auspices of the UN Food and Agriculture Organisation (FAO) and entered into force on 29 June 2004, was created to explicitly incorporate the concept of farmers' rights. In Article 9 of the ITPGRFA, countries recognise "the enormous contribution that the local and indigenous communities and farmers of all regions of the world… have made and will continue to make for the conservation and development of plant genetic resources which constitute the basis of food and agriculture production throughout the world." Countries should take measures to protect and promote farmers' rights, including the protection of traditional knowledge, the right to an equitable share of the benefits arising from the use of plant genetic resources and the right to participate in national decision-making related to these resources. Article 9 also states "nothing in this Article shall be interpreted to limit any right that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate." Because these measures are subject to each country's legislation, however, their adequate implementation will also require changes to patent rules to accommodate farmers' rights.

One of the challenges to a full realisation of farmers' rights, however, comes not from patent law itself but from related contracts. Most seed companies require farmers to sign a "technology agreement" when purchasing patented seeds. These agreements often limit the ability of farmers to save seed and control their production practices (NALC, n.d.). Some biotechnology companies have aggressively monitored and prosecuted potential breaches of these agreements (Grain, 2004). In one case, for example, Monsanto sued a farmer, Homan McFarling, for saving Monsanto's Roundup Ready® soybean seeds although the technology agreement required him to use the seed for planting a commercial crop in a single season. While McFarling argued that the agreement violated farmers' rights as recognised in the US plant variety protection laws and that Monsanto had impermissibly broadened the scope of the patent by "tying" an unpatented product to a patented product, the courts found in favour of Monsanto. The courts affirmed that the protection of plant varieties and patents was complementary and that the right to save seeds under the first does not impart the right to do so when the seeds are patented. Moreover, the courts stated that since the licensed and patented product (the first generation seeds) and the good made by the licensed product (the second generation seeds) are nearly identical copies, Monsanto's patent equally extends to both.