Seeds Rights in Europe - Case Study Example

Seeds Rights in Europe TABLE OF CONTENTS Contents Page Introduction…………………………………………………………………..3 The Facts……………………………………………………………...3 2. Global Corporation’s Point of View………………………………….7 3. Other Global Actors’ Points of View…………………………………9 a) The United Nations……………………………………………….9 b) The World Trade Organization…………………………………...10 4. Recommendations……………………………………………………11 5. Conclusion…………………………………………………………...12 6. References…………………………………………………………...13 SEEDS RIGHTS IN EUROPE Introduction The supply system for commercial seeds in Europe is highly controlled and organized. Seed marketing laws in Europe have over the years evolved to ensure that it is only uniform seeds that can be sold for industrial farming. This condemns the farmers’ seeds and also the traditional varieties to illegality, or the black market at best. The farmers are locked out of the seed system by powerful rules on intellectual property and hybrid production. France is the country with the harshest implementation of seed laws in the world. Because of genetically modified seeds, Europe has adopted a patenting directive on plants. This has given protection to biotechnology companies via patenting genetic information, which encompasses all derivatives biologically from its multiplication and production. Despite widespread opposition in the industry, all GM varieties have to be seed catalogued. The gene is only covered with the patent if it is used knowingly. Thus, a farmer can replant a seed that was already contaminated by accident but can longer plead ignorance if the contamination turns into a public endemic. This paper seeks to show that the global business practice of patenting seeds creates a problem for farmers, as well as delve into the points of view of global corporations and other global actors. 1. The Facts Each European member state is required to keep a national catalogue that contains all varieties that are recognized officially and which can be freely marketed in their territory (Bewley et al, 2005 p112). The EU then collates the national catalogues together to make the EU common catalogue. Any variety that is unlisted in the common or national catalogue is not technically allowed to be sold in the EU. All the submitted varieties have to be for registration are tested for distinctiveness, uniformity and stability, DUS. Some crops are also tested for value for cultivation and use, VCU. These two standards are tested for a minimum period of two years. VCU means that when the variety, when compared to other varieties that have been registered, offers a technological or qualitative advance. There exists a strong relation between intellectual property rights and this catalogue system (Bewley et al, 2005 p113). The same testing of DUS is required in the two cases and is usually performed by the same services. The PBR also protects most national catalogued varieties that are registered for sale. Since Agriculture began, reproduction of seeds and their selection, as well as the renewal and conservation of the biodiversity of agriculture have always been in the fields (Bewley et al, 2005 p113). The work the farmers did with seeds has been influenced by modern science, religion, traditional systems of medicine, and local culture, but these did not take away varietal development from agriculture. Production and breeding of seeds began in Europe in the late 19th century, from specialised farms then moving to specialized companies. This point is widely considered the separation of farming and seed production. This separation was driven by national and international market growth. While local markets were known to produce and support local diversity, the concentration of the chain of agribusiness, after its spread, in the larger markets has seen the rise of economies of scale. This has led to the cheapest possible price for uniform products (Dutfield, 2009 p100). The farmers have become dependent slowly over time on the model of industrial agriculture given by the seed companies. This has resulted from the detachment of farming from its environment via pesticides, fertilizer, and unlimited irrigation. This in turn, resulted from the need to homogenise land for the production of homogenous food and seeds. Exchange of seeds at the local level between farmers is based on good neighbourliness and honesty. It is riskier to mislead a neighbour than a farmer living miles away in a different region. Industrial producers of seeds have used the need to protect the anonymous consumer as an excuse for controlling the seed markets. In order to “protect” the consumer and keep fraudsters away, European states and corporate producers of seeds have ensured that corporate bodies can attain and maintain a monopoly on production of seed that is absolute. Since the start of the twentieth century, industrial producers of seeds have continued to search, for new avenues, to advance their monopoly on seed production by stopping the farmers from replanting of already harvested seeds (Hammarberg, 2011 p111). Their first line of the offence was with plants that cross-pollinate. As soon as cross-pollination takes place, its characteristics are fixed, and the plants descendants will express inbreeding caused depressive effect, which results in the crop being unsellable. This led to the rise of crop hybridisation, which offered the farmer seeds with characteristics that were fixed and a good sell on value. However, this made the farmer to be dependent on agro-industrial companies and seed producers. In the present day, a majority of cross-pollinating commercial species are hybrid clones (Hammarberg, 2011 p111). These are referred to as the locked variety. It has become impossible to fulfil the stability, uniformity, and distinctiveness criteria and the use and cultivation value, which is needed for registration to the NSC without the utilization of breeding techniques. This has become more sophisticated than ever and is not available to the farmers (Harding et al, 2008 p176). From the earliest hybrids to the latest biotechnological advances, breeding has moved to the lab from the field. The breeder thus imposes standardised crops on the farmer, perfected in research stations and labs. The breeder is not able to meet the VCU, and DUS criteria sans use of irrigation, mechanisation, pesticides, and fertilizers in order to ensure for stable conditions and yield increase. Thus, commercial varieties of today are selected by and for these techniques for agriculture, sans which crops cannot be produced from these seeds by farmers (Harding et al, 2008 p176). Farm saved seed is not tolerable by commercial producers of seed. In this case, farmers will select their own varieties that are local, gaining autonomy from the seed producers. The seed industry, however, has come up with a new raft of laws to keep seed that is farm saved out of the picture. Most seeds are now protected by PBR, and the breeders are broadening their influence globally by enticing other countries to join the UPOV (Institute, International Plant Genetic Resources, 2004 p278). The new UPOV convention gave PBR holders increased protection that covers varieties derived essentially from a variety that was protected initially. It also allows the breeder legal rights over seed that is farm saved, which was derived essentially from a variety that was protected. EU regulation 2100/94/EC was in 1994 adopted for the implementation of UPOV 1991 (Institute, International Plant Genetic Resources, 2004 p278). It allowed sowing of PBR protected farm saved seeds by farmers if they remitted to the breeder a royalty every year. Since farm saved varieties are hard to monitor, some EU countries have taken to developing a voluntary and mandatory contribution scheme. The scheme involves the collection of payments from all bread wheat-growing farmers, which is then used to reimburse small farmers exempt from farm saved variety royalties as well as farmers who purchased the seed. These payments, if left unchallenged, will end legally and effectively the farmer saved variety’s existence. This is bad news for the farmer. 2. Global Corporation’s Point of View Syngenta is a global corporation that deals in seeds and possesses several patents. Its mission is to create value for small farmers with poor resources in countries that are developing via sustainable agriculture innovations and value chains activation (Stothers, 2007 p113). Syngenta was established under Swiss laws and focuses on markets, productivity and smallholders. Their stated aim is to aid small farmers become better commercial growers via linking markets for smallholders, improving quality input access, and extension of science expertise to the farmers, they aim to help small scale farmers add value to their crop and improve food security sustainably. Intellectual property rights are a legal instrument that is vital in businesses based on modern technology (Stothers, 2007 p113). This includes agribusiness and acts to drive innovative product development and research. The IP mechanisms are meant to protect innovations in agriculture and include patents, trademarks, trade secrets, PVP, and geographic marks. This section deals with their justification of plant variety protection and patents. Both of these last approximately twenty years. Many people are of the belief that IP stops poor farmers from accessing innovations (Stothers, 2007 p113). According to Syngenta, IP rights actually help in innovation sharing and stimulation. SFSA supports and encourages progressive, balanced, and creative approaches to the management of IPs in order to ensure innovation is continued and to encourage use and dissemination of technologies that are beneficial. The real facts, according to Syngenta are as follows: IP and patents stimulate innovation investments. They provide a protection period for an innovator, which is essential for investment recouping in research and development. This takes 20 years for filing of patents and 20 years at least for PVP rights (Stothers, 2007 p114). At a time when research funding for public agriculture has gone down, the top companies in plant science have invested $5 billion annually in development and research of seeds and protection of crops. Sans IP protection that is enforceable; such investment would dry up influencing negatively on food security and agricultural development globally. IP can act as the catalyst for partnerships, between public and private stakeholders for humanitarian uses (Stothers, 2007 p114). IP rights and the legal ownership they give to companies for innovations improve the agreement and liaison between parties with stakes. This dialogue, in partnerships between public and private sectors, can bring synergistic benefits that are unexpected. On top of involving technological access, other benefits are availing of technology to farmers poor in resources, development of innovation, and scientific expertise collaborating. In many poor countries, IP is not a hindrance or a limiting factor (Stothers, 2007 p114). Inventors need to apply for and gain rights in each sovereign nation in order to gain from the IP. Some countries have no systems for IP, and thus rights are not enforceable in these countries. There are, however, significant benefits from to be gotten from working with developers and creators. SFSA encourages the researchers to seek expertise, support, and cooperation for humanitarian uses instead of trying out tactics, which unilaterally avoid the technology owner’s IP rights. Knowledge sharing is supported by IP (Stothers, 2007 p114). Since the granting of patents needs an invention to be disclosed, IP rights thus provide a vital publication tool of communication about new discoveries in the seed industry. These IP rights reward inventors and plant breeders for creativity, as well as giving an incentive for innovative technology and product development for markets. 3. Other Global Actors’ Points of View a) The United Nations Biotechnological global corporations like Syngenta and Monsanto are pushing up the prices of food as well as depriving resource poor farmers of essential inputs, according to the UN special rapporteur on the right to food Olivier De Schutter (Thornberry & Maria, 2008 p76). Rather than being an innovation incentive, overbearing protection of IP rights is an obstacle. The rapid deterioration of the traditional seed system has been blamed on the neglect of policies for agriculture, while the commercial system flourishes fuelled by IP rights strengthening and globalization. The UN says that this trend must be bucked since both systems need to be successful to approach climate change and food security. While seed varieties that have been certified produce top yields, local systems of seeds need to be encouraged (Thornberry & Maria, 2008 p76). It is their belief that the combination of small farmer’s experience and science advancements offers a tremendous chance for progress. The UN also warns of the loss of biodiversity caused by commercial seed overuse (Thornberry & Maria, 2008 p77). The world has lost approximately 75% of genetic diversity in plants, due to the weakened traditional system of seeds. The genetically modified seeds are also very expensive, holding the majority of small farmer’s hostage to debt. If this is not addressed, there looms a serious food security threat. There needs to be a trade balance, with vertical concentration in the seed IP rights industry. The IP rights regime is also not in line with the UN biodiversity treaty of 1992 that enshrined biodiversity conservation and equitable and fair sharing of all benefits that are realized from genetic resource utilization (Thornberry & Maria, 2008 p77). b) World Trade Organization Compulsory licensing may be defined as the express permission by a government for the production of patented products without seeking the patent owners consent (Pimbert, 2011 p101). It is but one of the patent protection flexibilities that are included in the TRIPS agreement. These flexibilities have existed since 1995. The 2001 DOHA declaration clarified the flexibilities allowed by the TRIPS agreement. Compulsory licensing entails the generic copy being produced, not for export, but for the domestic market. Countries were able to determine their own grounds for compulsory licences granting after being freed by the treaty. The company that is applying for the licence must have failed, in their initial attempt, to get a voluntary licence from the patent holder in order for the government to issue a compulsory licence. Even after this licence is issued, the owner of the patent has to receive payment. 4. Recommendations Public Service Europe (International NGO) campaign group argues that plant breeding protection and patents on food products is a big threat to food producers, breeders, and especially farmers (Veteläinen & Negri, 2009 p23). While the patent concept is the granting of market rights to a technical inventors development thus acting as a booster for innovation, they create a monopoly and hinder access to free resources. This is especially prevalent in agriculture where food products, breeding methods, and seeds are patent subjected. While the innovation is minor, the patent scope is very wide and covers the entire food production chain. There are over 1000 pending applications for plant breeding patents, and some are mere conventional breeds. This is a major threat to farmers and food producers across Europe (Veteläinen & Negri, 2009 p23). The holder of the patent could block access to the material for breeding tat is needed to develop better and new varieties. It is possible for one company to decide what developments are to take place and determine the price. This is privatisation and monopoly, not innovation and competition. The global seed corporations are utilizing the patents as a means to seize control of food production processes and genetic resources. The limited field in the global seed company arena, mostly Syngenta, Monsanto, and Bayer allow a monopoly of patent rights. This in turn, leads to farmers becoming dependent on these companies’ commercial policies. This patent practice is a violation of the European patent law, the European patent convention, and the patent office’s enlarged board of appeal (Veteläinen & Negri, 2009 p23). PSE, through the initiative on no patents on seeds, is asking European patent law, to be clarified for the exclusion of plant patents, breeding material, breeding processes, plant selection for breeding, and products derived from seeds (Veteläinen & Negri, 2009 p24). 5. Conclusion Seed laws in Europe have evolved over the years, to encompass almost all commercial breeds of seeds by major companies. These companies include Syngenta and Monsanto and they have continued to justify this practice by claiming that it saves farmers from unsafe seeds, as well as allowing for the sharing of new advances. However, several global bodies like the UN have spoken out against it, blaming it for the degradation of biodiversity and being unfriendly to small-scale farmers. Major International NGO’s have also spoken out against the practice. References Bewley J, Michael B, and P H. The encyclopedia of seeds : science, technology and uses. Wallingford: CABI , 2005. Dutfield G. Intellectual property rights, trade and biodiversity : seeds and plant varieties. London: Earthscan, 2009. Hammarberg T. Human rights in Europe : no grounds for complacency : viewpoints. Strasbourg : Council of Europe Publishing, 2011. Harding C, Uta K, and Naomi S. Human rights in the market place : the exploitation of rights protection by economic actors. Aldershot : Ashgate, 2008. Institute, International Plant Genetic Resources. Newsletter for Europe, Issue 28. Amsterdam: Bioversity International, 2004. Petaux J. Democracy and human rights for Europe : the Council of Europes contribution. Strasbourg: Council of Europe Pub, 2009. Pimbert P. Participatory research and on-farm management of agricultural biodiversity in Europe. London: : IIED, 2011. Stothers C. Parallel trade in Europe : intellectual property, competition and regulatory law. Oxford: Hart, 2007. Thornberry P, and María Amor Martín Estébanez. Minority rights in Europe : a review of the work and standards of the Council of Europe. Strasbourg : : Council of Europe Publishers, 2008. Veteläinen M, and V Negri. European landraces: on-farm conservation, management and use. Rome : Bioversity International, 2009. Read More