Access to Seeds: You Reap What You Sow

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You Reap
What You Sow
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A CALL FOR A DECLARATION ON THE TRIPS AGREEMENT AND FOOD SECURITY

‘You Reap What You Sow’
A Call for a Declaration on the TRIPs Agreement and Food Security

Abstract
In 2001, the WTO Ministerial Meeting approved a Declaration on the TRIPs (trade-related aspects of intellectual
property rights) agreement and public health. The declaration was made to avoid the TRIPs agreement having
negative impacts on access to medicine for poor people in developing countries.
However, the potentially negative effects of the TRIPs agreement go beyond medicine. As this study shows,
the agreement already has negative effects on access to seeds and agricultural technology for poor farmers.
These will only increase in the future, with potentially devastating effects on food security in poor countries.
As a consequence, we call for a declaration on the TRIPs agreement and food security in the World Trade
Organisation and for subsequent revisions of the TRIPs agreement to ensure food security and sustainable
development in the world’s poorest countries.

Copenhagen, 2005
DanChurchAid

Acknowledgements

This report has been written by Christian Friis Bach and Mattias Söderberg, DanChurchAid, with support from
partner organisations around the world. We would especially like to thank Sahanivasa and the Centre for
Science and Environment in India, Livingstonia Synod in Malawi, Pelum in Zambia, Sor Sor Troung in Cambodia,
Pastoral de la tierra in Guatemala, Christian Care in Zimbabwe and Christian Aid in Great Britain for their
valuable contributions to and comments the report. We would also like to thank Morten Ronnenberg Møller,
Mette Lund Sørensen and Pernille Sørensen for their ideas and input.

‘You reap what you sow’
A call for a Declaration on the TRIPs Agreement and Food Security
DanChurchAid, 2005

DanChurchAid
Nørregade 13
1165 Denmark
www.dca.dk

No copyright. We encourage the use and spread of the report and its contents and recommendations.

‘You Reap What You Sow’ | 3

DanChurchAid, Nørregade 13, 1165 Denmark www.dca.dk

4 | ‘You Reap What You Sow’

1. Introduction
The question of ‘access’ has received increased attention during the past decade, as poor farmers fight to
increase their production and tackle poverty. DanChurchAid is a European civil society organisation with
partners all over the world. Through this network, the issues of access to seeds and its association with food
security have been raised. In southern Africa, questions concerning seeds, crop failures and the inadequacy of
institutions have thrown thousands of farmers into problems, while in India hundreds of farmers have taken
their own lives because of debts they have acquired in the quest for access to seeds and a good harvest.
The distribution and development of seeds is increasingly being commercialised, privatised and protected
through different types of Intellectual property rights (IP). For smallholders in developing countries there are
no margins for these additional costs. Ironically some of the new and improved seeds on the market have
been developed on the basis of traditional knowledge and biodiversity in developing countries among the
same poor farmers who are now trying to obtain access to seeds to earn their living.
Access to the development of new plant varieties is also being hindered from a longer-term perspective. The
globalisation and strengthening of intellectual property laws and the concentration of research and
development within a few transnational corporations limits possibilities for plant-breeding in developing
countries and may restrict public research and innovation, the results of which should be freely available.
This study highlights the problem of access to seeds and its relation to intellectual property rights (IPR), being
negotiated by governments in international organisations, especially the World Trade Organization (WTO). The
research for the study has been undertaken by DanChurchAid, in cooperation with partners from different
parts of the world. After presenting the background to the situation, international IP legislation and its
significance for plant varieties in developing countries is described. This is followed by a section on the
problem of access to seeds. The study ends with concluding remarks and recommendations.

2. Background
Historically, farmers in the rich countries have benefited from public and easily accessible agricultural research
and plant breeding. This has been instrumental in creating the wealth and development that has been a
feature of the agricultural sector in all rich countries.
Today agricultural research is increasingly being privatised and protected by intellectual property rights.
Farmers in industrialised countries buy their seeds from firms that specialise in plant breeding. Farmers can
chose between a wide range of different types. Resistance, size, yield, crop growing time and other
characteristics all differ, and it is possible to find a seed to suit the specific needs and expectations of each
farmer. The development of new and improved seeds is proceeding rapidly, and farmers normally buy new
seeds every year.

Organic farming in Denmark
Jens Krogh is an organic farmer in Denmark. Twice a year the extensions service pays him a visit so that he
can order the seed he needs for the coming season. Each year new and improved types of seed are offered
to him. As an organic farmer, he chooses seed which will produce high ear, which can be used as straw for his
cattle, but should also be fast growing in order to decrease the risk of weeds. Most of the seed he uses is
developed by a local firm, but some, for example maize, is imported.
Organic seeds are up to twice as expensive as ordinary hybrid seeds. The yield, however, is high, and Jens
estimates a return of four to six ton per hectare, which, in terms of market price in Denmark, corresponds to
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a tenfold value-added.

The situation in the industrialised countries is similar when it comes to farming technology. New and
improved techniques, tools, fertilizers, pesticides and machines are being developed and produced
continuously, and farmers can always rely on access to the most modern and efficient technology.
The situation for smallholder farmers in developing countries is drastically different. Smallholder farming in
developing countries is characterized by traditional farming methods, where seeds are taken from the
previous year’s harvest. These seeds may originate from the same seed used generations ago. Some selection,
development and breeding of new seeds takes place locally, but a lack of scientific knowledge and equipment
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makes it difficult to obtain radical improvements. Moreover, new plant varieties are often not used by poor
farmers because of a lack of extension services, capital and knowledge, or because they are not adapted for
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local growing conditions. This severely limits the possibility for small-scale farmers using traditionally
developed and selected seeds to compete with farmers in the industrialised countries using modern
technology and continuously improved and developed seeds.


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Traditional saving, exchange and developing of seeds in Uganda
‘Grandmother’s seed bank was the pride of her home’
To my grandmother seed was sacred. It was taboo in her house to be caught standing on the firestone trying
to eat stored seed. In such an event one would be summarily denied of the next meal and made to apologise
to everyone in the house for trying to prevent them from having food the following season. At the time of
planting, she was always careful not to put all her seed at a go in the soil. She was always careful in case the
rains were not timely and she lost everything. If a particular season turned out to be poor the carried over
seed would always be there to fall back on.
She was also the leader of a local women’s club. All the women in the village used to meet once a week under
the big mango tree. It was under this tree that the women normally met to talk about their families, the
condition of their crops and whether the rains would be kind during that season. At the same meeting
women also used to discuss the latest pests that were troubling their crops and they would advise one
another on the possible ways of controlling those pests and diseases. Often women came with seeds from
their homes and as young children we would be amazed at the amount of discussion and excitement that
went on whenever such seeds or new technologies were introduced. In the rare event that any of the group
members had no seed during a planting season, all the members pooled seeds from their own stock and
gave her.

New technology and high-quality seeds are accessible in many developing countries, including in rural areas.
These seeds are selected for high yields, stability and/or resistance to threats such as droughts, insects and
diseases. However, access is linked to payment, and the option to reuse seeds after harvest may be limited by
various forms of intellectual property rights or by in-built properties, as with hybrid seeds.
New seeds, hybrid seeds and genetically modified plant varieties are being increasingly promoted by both
government extension services and private firms, as they may produce a higher yield and efficiency. However,
this is only the case if farmers can afford the investment in seeds, fertilizers and know-how. The development
package may therefore not be accessible to poor smallholder farmers.
From the long-term perspective, access to quality seeds is vital for agricultural competition with industrialised
countries, which in its turn is essential for sustainable development in developing countries. For poor
smallholders access to seeds and the development of new plant varieties are questions of food security.
Readjustment to the use of hybrid seeds and genetically modified seeds increases potential yields, but it also
increases risk, as modern farming demands higher investments and additional inputs. Farmers who have
previously been engaged in staple crops have to turn to cash crops or some other cash income, in order to
make the appropriate investments.

3. Intellectual property rights
Seeds have undergone selection and been developed by farmers since domestication thousands of years ago.
Breeding has been carried out locally through the use of wild plants, exchanges with other farmers and
continuous recycling. In the mid-twentieth century, the focus changed to greater yields per hectare and seeds
with more specialised traits. This created the basis for a formal market in which seeds were developed
scientifically. Innovations need funding, and when they are undertaken within the private sector, plant-
breeder’s rights can be one source of this. A demand for intellectual property rights in relation to breeding
therefore emerged.
In most developing countries, government research institutions have been deeply involved in plant-breeding,
seed certification and extension services. State-funded seeds increase access for poor farmers, but it is also
argued that they may slow down the development of new plant varieties. The privatisation of seed-related
institutions has therefore also been addressed in, for example, the Structural Adjustment Programs of the IMF
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and World Bank.
Biological innovations are, by their nature, difficult to protect. As self-replication is common, the plant can
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easily be reproduced and developed further by other parties than the innovator. Furthermore it is usually
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enough to take a tiny part of a plant in order to reproduce it, which makes it easy to multiply. In many cases,
nature will reproduce, transfer and multiply biological innovations by wind, sun and rain. Corporations and
industrialised countries have therefore called for strong IP laws to protect their innovations.
IP legislation has generally not been strong in developing countries. The industrialised countries have
therefore taken various initiatives to strengthen international cooperation in relation to IP legislation. The
most important step in this direction was the approval of the agreement on trade-related intellectual property
upon the conclusion of the Uruguay Round in 1994 and its entering into force as part of the World Trade
Organization in 1995. This agreement will eventually mean that a significant number of poor countries will
have to introduce IP legislation to ensure the protection of plant varieties. Of the 98 developing countries
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present when the TRIPs agreement was signed in 1994, 31 had no protection for plant varieties. As will be


shown below TRIPs implies national legislation, and the situation in developing countries is therefore
changing rapidly.

3.1 Plant-breeder’s rights and patents
There are various ways of developing IP legislation to ensure the protection of plant varieties. One general
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method of differentiation is to distinguish between sui-generis systems (plant-breeder’s rights) and patents.
Both are methods of creating plant protection, but patents are much more powerful. While plant patents are
used primarily in the USA, most industrialised and developing countries use some kind of sui-generis system
of plant protection.
The predominant system for ensuring plant-breeder’s rights through a sui-generis system is the UPOV
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Convention (The International Union for the Protection of New Varieties of Plants), which was negotiated for
the first time in 1968 to protect plant-breeders’ rights to the plant varieties they had developed.
Plant varieties may receive plant variety protection through a sui-generis system if they are ‘novel, stable,
homogenous and visible’. Sale and distribution are protected, but further development and breeding by other
parties are allowed (the so-called ‘breeders’ right’), although a licence is needed if a new variety originates
directly from an older variety.
The introduction of plant variety protection can increase access to varieties developed in other countries,
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although at a higher cost. It can also encourage increased research, thereby benefiting agricultural
development. However, the impact on local research and development in developing countries is
questionable. Some studies of the effect of plant variety protection on the breeding and development of new
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types of plants locally have not revealed any clear impacts.
Another problem is that demands for homogeneity and stability in the plant variety protection system, as
defined in the UPOV Convention, are relatively strict. This can cause problems for local varieties of plants in
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developing countries which have been adapted to local conditions.
Finally, the UPOV Convention raises problems, as the latest revision from 1991 both limits other producers’
rights to breed new varieties based on the existing variety and limits the farmer’s rights. To begin with the
UPOV Convention did not present an obstacle to farmer’s rights to produce, use and sell (although with certain
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exceptions) their own seed grain from the previous year’s harvest – the so-called ‘farmer’s rights’. But the
UPOV revision of 1991 limits the ‘farmer’s rights’ to only include seed grain for the farmer’s own use.
Consequently, a number of developing countries have decided to develop their own systems. For example,
India has developed its own legislation for the protection of plant varieties, which maintain a farmer’s rights to
sell seed grain to other farmers.
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Innovations may be patented if they are novel, non-obvious and useful. With a patent, plant varieties are
protected with respect to further breeding and development as well as sale and distribution. In some cases,
even the process of developing an organism can be patented. Patents provide market power, but they are also
expensive to obtain. The process of obtaining a patent may cost tens of thousands of Euros, which, quite apart
from the complex application procedures, makes it difficult for poor farmers to obtain them.
As patents on plant varieties are very unusual in developing countries, discussion of them in this study is
limited to Genetic Modified (GM) crops. Genetic modification is the incorporation of foreign DNA into a living
plant cell, thus creating a unique crop-and-trait combination. Currently, most GM crops under cultivation are
found in the US, Argentina, Canada, Brazil and China. There is, however, GM production in other developing
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countries too. The use of genetic engineering for plant breeding introduces a number of additional means of
protection, such as the patenting of DNA sequences and of the biotechnological methods used for breeding.
This can significantly lower access to seeds for poor countries and poor farmers.
The idea of taking out patents on plants and biological organisms is to protect innovation, so that creativity
and development can be rewarded. It is argued that development will be slowed down unless firms can obtain
patents for their ideas. On the other hand patents may slow growth and development, as they obstruct
competition, lead to higher prices, decrease access and may become an obstacle to further research and
innovation. A number of studies have cast doubt on whether stronger and stronger patents do indeed create
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welfare and economic development – especially in developing countries. This conclusion may also apply to
plant patents and the numerous patents now being taken out that relate to genetically modified organisms. It
is important to remember that a number of rich countries maintained a high degree of flexibility in their own
regulation of intellectual property rights until very recently. An option that many poor countries no longer
have.

3.2 Trade-related aspects of intellectual property rights (TRIPs)
The TRIPs agreement forms part of the World Trade Agreement (WTO). As such, all 148 WTO member
countries – developed and developing – must adhere to the agreement, because of the single-undertaking
principle of the WTO. This has had drastic effects on the protection of IPR globally.
The TRIPs agreement is a binding international agreement, whereas previous IP law was a domestic matter
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regulated by national legislation, with the World Intellectual Property Rights Organization (WIPO) as the


international body engaged in international cooperation and coordination with respect to intellectual property
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rights. Contrary to WIPO, the WTO has a dispute settlement mechanism, which means that the TRIPs
agreement may overrule national legislation and decisions taken by national governments. If countries do not
adhere to the TRIPs agreement, they will face sanctions or be forced to pay compensation to countries
claiming that their intellectual property rights have been negatively affected.
The TRIPs agreement came into force on 1 January 1995, and one year later all industrialized countries
adjusted national legislation and procedures so that the treaty could come into effect. Developing countries
had until 2000 to do this, and the Least Developed Countries were originally to have entered in 2006. This
transition period has now been extended until 2013, but those LDCs who already have introduced some kinds
of intellectual property protection have promised not to reduce or withdraw the current protection that they
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give. Moreover, there are numerous poor countries with food security problems that are not part of the LDC
group.
The TRIPs agreement covers all kinds of intellectual property. Plants and animals are only mentioned once, in
paragraph 27.3 (b), which states that the signatories to the agreement must provide protection for plant
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varieties. This paragraph acknowledges that plant varieties are of special importance and that special rules
may therefore be needed. It is therefore stated that member states may exclude plants and animals from
patentability. However, this does not include ‘micro-organisms, and essentially biological processes for the
production of plants or animals other than non-biological and microbiological processes’. Furthermore, plant
varieties, which are not protected by patents, should be covered by a sui-generis system.
The initiative to include intellectual property rights within the WTO framework came from the rich countries.
The concept of patents is based on an individualistic perspective, where an idea or innovation is developed by
a specific individual or, in the case of plant varieties, a corporation. In many developing countries the
perspective is very different. Given their collectivistic perspective, the very idea of a patent may be
questioned. Innovations and discoveries that are added to traditional knowledge are thus public goods.

4. Access to seeds
Traditionally smallholder farmer’s access seeds for production by reusing seeds from the previous harvest or
by sharing and exchanging them with other farmers. This tradition has been similar all over the world, and is
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still the dominant mean of access for most people in the world. In India it is estimated that 80% of all seeds
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originate from previous yields on the farms.
Modern breeding and seed development has created seed varieties which can only be sown once. The breeder
can prevent others from recycling and making improvements in the original material by placing sterile types
of hybrid on the market instead of the parent generation. Thus the breeder can keep the original material
secret. Hybrid seeds are seeds which have been developed by crossing plant varieties again and again in order
to obtain superior varieties with the desired attributes. Hybrid seeds often provide a high and stable yield, but
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at the same time they are often not appropriate for reuse. Even where some of them may be reused, the
yields become smaller and smaller. Hybrid seeds are commonly used by most commercial plant breeders.
Similar possibilities are available through GM production. Terminator technology – in official terms, Gene Use
Restricting Technology (GURT; not yet introduced on the market) – introduces a genetic barrier against
reproduction that can be employed in more varieties of plants than hybrid technology. This new type of
technological protection is often cheaper and more efficient than patents and plant variety protection. Apart
from increasing the market power of seed companies, GURT technology may have positive aspects, as it will
prevent GMO plants crossing with natural plants and spreading into the environment. However, GURT can be
dangerous for the world’s poorer farmers because crops can easily be mixed. Farmers then risk sowing
infertile seed and losing production and income. Currently, the development of GURT has been stopped.
As noted above, under TRIPs, new plant varieties should be protected by either patents or a plant variety
protection system (sui generis). Property rights are linked to costs, and a farmer who wants to access
commercially bred seeds will have to purchase them. In theory this should not cause any problems for food
security for poor smallholder farms: if the seed is superior to previously used seeds, the investment could pay
off and be a good deal for poor farmers too. If loans and credit systems are available for the farmers who want
to make the investment, it can increase income for their families.

Insect Resistant Bt Cotton in South Africa
In South Africa GM technology has been introduced and applied. Bt-cotton has in many ways been a success,
as it ‘requires substantially less pesticides than conventional cotton varieties, produces higher yields and
incomes for poor farmers and is better for the health of smallholders by reducing the number of insecticide
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sprays’. Bt-cotton was introduced in 1999 in Makhatini Flats in the Kwa-Zulu Natal region, and two years
later 90% of smallholder farmers had adopted the new crop. Higher incomes because of better yield and less
use of fertilisers and pesticides were reported. The smallholder farmers relied on credits to make the


necessary investments for each season. In 2002/2003, however, the situation changed.
Access to credits declined, as did the world price of cotton, and a combination of drought and heavy rain
destroyed the harvest. Suddenly farmers were caught in debt trap without access to expensive seeds and no
cash. In the following two years, cotton production drastically declined.

Methods of accessing seed differ between different countries and regions. For many farmers in the world
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most seeds are still recycled, while other areas depend on the new and hybrid seeds that are available on the
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market. A study from central Africa showed that poor farmers sometimes depend more on commercial seed
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than better-off farmers, because they often cannot save seeds from their harvests. They need everything for
consumption, and their fields are often on bad soils. This forces them to obtain seeds from the market, which
they can only do by taking out loans or credits.
However, for the poor smallholder farm, access to seeds is being challenged in four different ways: 1) new
seeds often come as a package; 2) a lack of capital; 3) continuous costs; and 4) high risk.

A package
Modern seeds are often sold as a package, together with fertilizers and specific instruction about the correct
use and treatment of the seed. They often need higher inputs in terms of water and nutrients. If any of the
parts are missing or are neglected, output will be less than expected. Breeders are generally keen to provide
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knowledge about the correct use and treatment of the seed. However, there is always the risk of
misunderstandings and a lack of information. The risk is even higher for farmers who cannot read or write.
30
Without correct treatment and knowledge of the package, the yield will not be as expected.

Lack of capital
Even a small investment may be unimaginable for a very poor farmer. Favourable loans and credits are not
available everywhere, and even if they are, they may not be accessible if one is not deemed credit-worthy. If
capital is available, whether through loans, credits or savings, commercial seeds may still be a big investment
for a poor farmer, and the purchase of a whole package, including fertilisers and pesticides, may not be
31 32
feasible. Poverty is thus an obstacle for many farmers in accessing the seeds.

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Farming, debts and suicides in India
On the morning of 2 February 2005, 32-year-old Lachi Reddy seemed no more depressed than usual. Ever
since he had begun farming a decade ago, extras, such as fertilisers, had been costing more and more. So
Lachi had borrowed, first from the banks, and when they said no, from private lenders. There were plenty of
those around, and they rarely said no. But their ‘yes’ came at a cost – in Lachi’s case, 36 per cent interest on
the repayments. But even with all the latest pesticides and chemicals to throw at the land, making a living
had been a huge struggle for Lachi. Over the years, sales hadn’t come close to covering costs.
Then, two years ago, the situation deteriorated rapidly. The last of the surface water evaporated in the
storage tanks around his village in the Medak area, as it fell victim to the severe drought covering much of
the Deccan Plain in the Indian state of Andhra Pradesh. Without water there was no hope, so Lachi did what
all his neighbours had done, and borrowed even more money – 80,000 rupees (€1400) – to dig a bore well.
There was water where he dug. Only now his troubles lay elsewhere. The price of potatoes at market had
fallen too low even to repay the interest on the loan for the well, let alone all his other debts, which now
amounted to some 170,000 rupees (€2980).
So, two years ago, Lachi decided he would have to change to another crop. Sugar cane was the answer, he
thought. It seemed a more reliable cash crop than potatoes. And he couldn’t go back to traditional farming.
Given his debts, just growing the crops he needed for his own family was no longer an option. The trouble
was that now he didn’t have enough money to buy the cane or the labour to plant it. The banks continued to
refuse any more loans, and now even the private lenders were saying no.
The only option left to this proud man was to go round to his friends and neighbours, pleading with them to
lend him some money. It is hard to imagine what it took for Lachi to ask this. For the sake of his wife and two
young sons, he had to try. He must have known that everyone in his home village of Raipally was in the same
position. He must have realised, therefore, that he would be rebuffed. Perhaps he knew, even then, that the
alternative was far worse. So, on that February morning, as Lachi looked out at his potatoes waiting to be
harvested, he must have realised that his troubles were far more than simply being in the wrong crop.
But we can only surmise what he really thought, because at 10.30 am Lachi told his wife that he wanted to
get something from the bullock cart. Without anyone seeing him, he went back to his empty hut and out of
desperation swallowed a bottle of Endo Sulfan pesticide.


Continuous costs
The use of commercial hybrid seeds implies continuous investments, and thus costs, for the farmer. Because
of low savings and assets, investments have to provide a surplus every time. Drought and bad conditions will
therefore create debts and may prevent access to further investments.
In order to acquire the money to pay off the credit, poor farmers must sell part of their harvest. This is only
realistic if the yield provides a return sufficient to cover the family’s needs. In an example from Malawi, the
World Bank has been promoting a triple package, in which farmers invest in a combination of cash crops and
staple crops (tobacco, fertilisers and maize). The idea was that the cash crops would generate the money to
buy the necessary fertilisers and seeds. Unfortunately the package did not have the expected success. Poor
farmers could not afford to make the necessary investments, and they often lacked sufficient land to cultivate
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two parallel crops.

High risk
Compared to traditional seeds used for the production of staple crops, using hybrid and GM seeds demand a
cash income. As poor farmers often lack cash, they have to depend on loans and credits. Hybrid seed may give
a high yield, but unless treated properly, like all crops they may fail. The investments linked to commercial
seeds therefore create a high risk for smallholder farms. Even though the outcome may be rewarding, a failure
may be disastrous. For poor farmers, even small failures can lead to vicious circles, including debt,
prostitution, trafficking etc. If poor farmers are forced to buy new seeds every year, it may therefore leave
them considerably more vulnerable than before. Therefore poor farmers often give higher priority to stability
than to high yield.

Food insecurity in Malawi: the risk of hybrid seeds
Like its neighbouring countries in southern Africa, Malawi is facing famine in the coming year. The situation
may be due to a number of different factors, but one important factor being mentioned by several NGOs and
researchers is the use of hybrid seeds.
Maize is the main staple crop and the basic ingredient in the Malawian kitchen. Maize production is mainly
based on hybrid seeds, which are bred and sold commercially. Local farmers have abandoned local plant
varieties in favour for the hybrid maize, which was promoted as a crop with great advantages with short
35
growing periods and big yields. As part of the package, farmers had to invest in fertilisers. As many farmers
in Malawi are poor, fertilisers and seed have to be bought on credit.
The link between hybrid seeds and the current food crisis lies with the price of fertilisers, which has risen
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drastically in recent years. This has a direct effect on farmers, who are forced to either take out further
loans, skip the use of fertilisers or reduce the amount of seeds. If fertilisers are not used, the yield will not
give the desired output, and a reduced input of seeds will consequently give a smaller yield.
Drought gives farmers an extra constraint. Even if fertilisers are added and the weed treated appropriately,
drought may lead to smaller yields. Poor farmers have no margins, and poor harvests will inevitably lead to
famine.

4.1 The quality of seeds
For the breeder, quality is a question of long-term credibility and stable sales, but for the farmer it is a
question of getting returns from his investments. Several authors note that access to appropriate seeds for
poor smallholder farmers is limited. Commercial seed-breeders focus their production on the target group
which they expect will give them the greatest profit. Seeds are primarily developed for big farms and
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production, not smallholder farms with poor soils and limited technical resources.

Sharing between neighbours in India
In his 66 years, Sarju Dev has seen how the quality of seed can make or break a farmer. In Babarpur village in
Panipat District, Haryana, he is known as a shrewd man who has never lost a paisa because of a bad decision
on farm inputs like seed. ‘For wheat, paddy and vegetable seeds, I trust Rajinder Singh, seed grower and local
input dealer’, Deev explains. Singh is one of the largest farmers in the village, and he and Dev have an
understanding. ‘I pay him Rs 50 per kg of wheat seed, and use the same seed for three years. The cost is
negligible in the overall cost of cultivation. In case he provides a new, costly variety, I sow it only on a small
part of my farm. Besides, Rajinder asks for money only when the crop is successful.’ For his part, Singh
sources foundation seeds from a seed businessman in Delhi, who in turn buys them from the National Seeds
Corporation.
Birdas Rai, Dev’s neighbour, is known for bad seed selection and making losses. ‘The quest for the best seed
has taken me to Delhi, Chandigarh, Jaipur and even Ahmedabad. But I’ve been cheated on several occasions’.
He deals with new seed sellers every season. Birdas cultivated the Seng-1 tomato seeds for the fist time in
Barbarpur. But they were no good and the losses great. Sarju Dev waited a year and then used the same
38
variety. But he got his seed from Sing. The rewards were high.


Livingstonia Synod, a NGO in Malawi, comments that hybrid seeds are often more prone to pests and diseases,
in both the fields and storage facilities, thus making it difficult for smallholder farmers to keep and recycle
them. As noted above, modern seeds often require specific farming techniques, which may not be applicable
in the local context. As an example, in Malawi the introduction of a Kenyan variety of potatoes, which is high in
vitamin A content, quick maturing and high yielding, created many challenges regarding storage. This crop is
difficult to store under local conditions compared to the indigenous varieties, which have now become scarce.
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Consequently, farmers are forced to harvest it quickly and dispose of it as soon as possible.
Even if farmers choose to use traditional seeds and farming methods, they may still face problems under
present conditions. Population growth put a strain on access to land. Mono-cropping in combination with a
40
lack of fallow periods reduces soil quality, which leads to declining yields Good yields and increased
productivity are therefore needed, not only to create further economic development, but merely to maintain
the present situation. For these farmers, options are few. Improved seeds are needed to obtain higher and
more stable yields, but they also create higher risks because of a lack of capital.
The experiences of industrialised countries point to another problem. The difficulties involved in protecting
plant varieties may also create problems for farmers who do not intend to use them. When patented seeds are
reproduced outside controlled corporate farms, they may multiply and develop like any other biological
organism in nature. This can cause critical problems for farmers. Patented seed, which is spread by the wind to
other farmers, will naturally multiply. However, these farmers are not allowed to cultivate the patented seed
without paying for it. This may lead to the absurd situation in which farmers are not permitted to harvest their
own fields because of contamination by patented seeds spread by the wind. There have so far been no similar
cases from developing countries, as plant patents are not commonly used, but with few acres and strong
traditions of using and exchanging seeds, the risk is predictable if plant patents and stronger IP legislation are
introduced.

Seed contamination in Canada
Percy Schmieser is a Canadian farmer growing rape. His field was close to one of the rape fields of the
transnational agro-corporation Monsanto. Seed from Monsanto’s fields were spread by the wind on to his
fields, so that his yield came to contain grain originating from Monsanto. Based on Canadian IP legislation
41
Monsanto sued Percy Schmieser for $200,000 for theft of genes.

4.2 Access to knowledge and technology
Today six large industrial concerns control a considerable part of the technology regarding genetically
42
modified plants and 70% of the global pesticides market. Patenting may even accelerate this process,
because a number of important technologies, for instance Bt-technology (pest resistant crops), are now
regulated by hundreds of overlapping patents owned by a very few companies. This makes it difficult to
obtain licenses and difficult for new companies to enter the field.

Biodiversity in Guatemala
Farmers in Guatemala are increasingly using hybrid seeds. This development has decreased biodiversity. As
more and more farmers shift to seeds from commercial plant-breeders, old varieties are being lost. At the
same time, the varieties developed by the plant-breeders are protected by law and are not publicly available.
This may create a problem in the long run, as a high degree of biodiversity secures more combinations and
43
development potential for further breeding.

The increased concentration of research and development within plant breeding may lead to decreasing
44
competition, higher prices, and a lack of locally adjusted plant varieties.
In most developing countries, government research institutions have played an important role in the
development of new, locally adapted plant varieties. Strong protection of intellectual property rights with
regard to agricultural technology and new plant varieties will create a barrier to the development of the public
research that is crucial for agriculture in the developing countries. For instance, it has been reported that
45
research in vitamin A-enriched rice required licenses for no less than 70 different patents. Such demands
may significantly hamper public and freely available agricultural research in developing countries.

4.3 Bio-piracy
Bio-piracy is a term used to describe the patenting of genetic material from another country by a corporation,
without acknowledging its origin. Unfortunately there are many examples of products originating in a
developing country where the indigenous people who use the plant have not been rewarded for developing
46
it.
The big debate about bio-piracy focuses on the moral and economic question of the ‘theft’ of genetic material
and traditional knowledge. However, it may also have implications for smallholder farmers’, in developing


countries with respect to their access to seeds. Suddenly farmers may have to pay for seeds which are based
on their own knowledge and have been used and developed locally for centuries. Access to improved seeds
47
may therefore be denied to those who have themselves contributed to their development.

Theft of the neem tree from India
Azadirachta indica, the neem tree, is a huge tree of the mahogany family. It has been used for medicinal
purposes for thousands of years, in India and other parts of Asia. It has particularly been used to fight insects
and fungus in agriculture. In 1994 the translational agro-corporation W.R. Grace applied for, and received, a
patent on oil from the neem tree in the EU. The decision attracted a lot of criticism. The effects of the neem
tree were well known through traditional knowledge and therefore could not be seen as constituting an
innovation. Finally the patent was withdrawn. However, since 1994 several new patent applications have
48
been tabled relating to the neem tree.

Biodiversity and traditional knowledge
When it comes to biodiversity, developing countries are rich and developed countries poor. Over time, the
western world has received many genetic materials from the developing world, for example potatoes in the
sixteenth century and maize in the fifteenth. These ‘inventions’ have never been rewarded, as they have been
49
freely exchanged as part of the reproduced biological system.
Colombia has not called for compensation because of potato production in Ireland. When the potato was
brought to Europe from the Andean mountains of Latin America, there were no international patent laws.
When genetic materials are collected from developing countries today, the situation is different. Now the
collectors are transnational corporations based mainly in developed countries, and there are international IP
laws in place.
Most research and development in plant breeding and biotechnology is based on previous research and
knowledge obtained either from universities and government research institutions, or from traditional
50
knowledge. Since traditional knowledge has developed over thousands of years, it can therefore be
questioned how much invention and development there really is in scientifically bred plants. An already
existing gene is neither new nor innovative, it has just been discovered.
There is enormous potential for business in traditional knowledge and the living gene banks of the developing
51
countries. One study showed that, by using indigenous knowledge, corporations could increase efficiency in
52
screening plants for medical purposes by 400%. Since efficiency leads to higher profits, the value of
traditional knowledge is obvious. Transnational corporations therefore depend on the genetic resources of
53
the developing countries, where 90% of the world’s biodiversity is assumed to be located.

TRIPs and biodiversity
TRIPs sets out rules for intellectual property rights, but the source of origin is not covered. This matter has
54
been raised by many developing countries, in both in the TRIPs negotiations and the TRIPs council. Already
55
during the WIPO negotiations in 1999, a number of developing countries proposed an article requiring
applicants for patents derived from genetic resources to demonstrate that they had received permission to
56
access those resources from the country of origin. The debate regarding traditional knowledge and the
protection of biodiversity has continued and is still one of the most important topics brought before the TRIPs
council.
A number of developing countries, led by Brazil and India, have argued that there is a need to revise the TRIPs
agreement to protect their genetic resources and traditional knowledge, prevent ‘biopiracy’ and achieve a
better benefit-sharing mechanism. Patent applicants should be obliged to disclose the source and country of
origin of the biological resource and of the traditional knowledge used in the invention, as well as providing
57, 58
evidence of prior informed consent and of a fair and equitable policy of sharing benefits.
The proposal to include information regarding the origin of genetic resources has been opposed by developed
countries, not least the USA and Switzerland. This can be seen as supporting the mostly Western-based
corporations working in the field, but there are also arguments against based on technical issues. The origin of
a plant and knowledge about its characteristics can be difficult to define. Local farmers have typically not
59
claimed rights over seeds and plant varieties that they have used for generations. It is therefore difficult to
identify who should own the patent. In line with this it is argued that traditional knowledge cannot be labelled
‘prior art’ and thus be regarded as a novelty, which is one of the defining features of innovations and the
60
patents they are granted.
It has also been questioned whether mentioning the source of origin is desirable from a development
perspective. The development of new plant varieties commonly includes some component of prior public
knowledge and genetic material. A requirement to obtain acceptance for all the parts in a process may be both
61
costly and time-consuming, leading to a slowdown in further plant variety development. This, in turn, would
hit developing countries and food security.


Denying the IP rights of biodiversity in developing countries deepens the gap between rich and poor
countries. Many developing countries are therefore arguing for a clear reference to existing agreements about
biodiversity in TRIPs. The Convention on Biological Diversity (CBD) and the FAO’s International Treaty on Plant
62
Genetic Resources for Food and Agriculture are international agreements in which the focus is on the farmer,
63
biodiversity and traditional knowledge, not on breeders’ and producers’ rights, as in TRIPs and UPOV. There
is no link between the different types of agreement, but because of the strengths of the WTO system, in
practice TRIPs has acquired greater importance.

5. Conclusions and recommendations
5.1 Conclusion
In 2001 the WTO Ministerial Meeting approved a Declaration on the TRIPs agreement and public health. The
declaration was made to avoid negative impacts of the TRIPs agreement on access to medicine for poor
people in developing countries.
However, the potentially negative impacts of the TRIPs agreement go beyond medicine. As this study has
shown, the agreement has had negative impacts on access to seeds and agricultural technology for poor
Three barriers to access have been highlighted: first, direct access to new and improved seed varieties;
secondly access to knowledge and genetic material, which may offer opportunities for further breeding and
development; and thirdly, access to and ownership of seeds and methods developed by people in developing
countries over generations:

• Access to seeds. The study points out several problems for poor smallholder farmers in relation to
access to seeds. The main obstacle is poverty. Because of poverty farmers are either unable to access
commercially improved plant varieties, or forced into highly risky investments which, in the worst
case, can even deepen poverty. As shown above, the price of plant varieties may be linked to IP
legislation. In the US plant patents have been introduced and there is an exponential growth in the
use of patents on plant gene sequences and on biotechnological methods used in the development
of GM crops. When it comes to plant breeders rights (sui-generis systems), the effects depend on
how the system is developed and implemented nationally. In both cases, international legislation
through the TRIPs is of importance, as it can be used to force member countries to fulfil certain
obligations. Greater flexibility would give developing countries the freedom to develop national
legislation appropriate to the conditions that prevail in individual countries.

• Access to knowledge and genetic material. As plant varieties are being increasingly protected
through plant-breeder’s rights or patents, access to knowledge and genetic material is being limited.
As the study has shown, the breeding and development of plants depend on the biodiversity and
genetic material that already exist. When these materials are protected by patents or plant-breeder’s
rights, the possibilities for public, freely available or local breeding diminish. From a longer-term
perspective, this may be a threat to both biodiversity and access to seeds and food for farmers and

• Source of origin. A third problem is the issue of bio-piracy. The variety of bio-piracy cases is large
and difficult to grasp. Situations where varieties of plants used locally suddenly become protected by
some kind of IP legislation, and are thus rendered more costly for farmers. This limits access to seeds
for those farmers who cannot afford the necessary investments. Poor farmers may suddenly have to
buy back seeds that they themselves have participated in developing.

5.2 The North–South divide
It should be noted that these problems are not specific to farmers in developing countries. The increasingly
strong IP legislation may also lead to problems for rich farmers in industrialised countries. This has been
acknowledged by a number of farmers’ organizations in rich countries. However, IP legislation is not as
controversial in industrialised countries because of the financial and structural strength of rich farmers. The
situation in developing countries is different because of the financially weak situation of poor smallholder
farmers and of government research institutions, as well as differences in cultures and traditions. For
developing countries, TRIPs implies drastic changes in legislation and practice, changes which require
adjustment in how farming and plant-breeding are practised, and changes which may have negative effects
on food security in already poor countries.


5.3 Recommendations
It is apparent that the TRIPs agreement may pose severe problems for poor farmers in accessing seeds and
agricultural technology, and that this may lead to increased poverty and hunger.
If nothing is done, these negative effects will only increase in the future.
As a consequence, we call for a declaration on the TRIPs agreement and food security and for subsequent
revisions in the TRIPs agreement
Based on the findings of our research, we make the following recommendations to politicians involved in
decision-making in relevant national and international bodies:

• Declaration on TRIPs and food security. Acknowledging that amending the TRIPs agreement will
be a lengthy process, we call for an immediate declaration on TRIPs and food security signed by the
WTO member states. The declaration should give poor countries the right to access seeds and
agricultural technology regardless of intellectual property rights if the purpose is to combat rural
poverty and ensure basic food security. Our proposal for a draft declaration is added to this study as
Annex A.

• Revision of paragraph 27.3 (b). This TRIPs paragraph provides an exception for patents on plants
and animals in general, but it still envisages drastic changes in IP legislation in relation to biodiversity
in many developing countries. Moreover, the use of biotechnology in plant-breeding is increasing the
use of patents on gene sequences and biotechnological methods, with potentially harmful effects on
access to seeds for poor farmers, food security and biodiversity. The paragraph should therefore be
rephrased, making clear references to the Convention on Biological Diversity, and allowing greater
flexibility with regard to national adaptation in poor countries.

• Amendment to TRIPs regarding source of origin. We support the proposal made by several
developing countries, such as Peru, India and Brazil, for an amendment to TRIPs in relation to source
of origin. Traditional knowledge must be acknowledged as prior art and thus a viable information for
patent applications, and there must be clear regulations on ownership and revenue sharing.

• Further research. There is a need for further research of the effects of TRIPs and similar IP legislation
on food security. A TRIPs revision of various paragraphs, including 27.3 (b) regarding plants and
animals, is foreseen. This review has still not been conducted, and further research will provide
important information for this process.

We acknowledge that intellectual property rights can be important in stimulating research and innovation
in rich countries. However, we also fear that enforcing the same rights in poor countries may have
devastating effects on poverty and food security. To avoid these developments, there is a need for action
now.


Annex A

Proposed
DECLARATION ON THE TRIPS AGREEMENT AND FOOD SECURITY

1. We recognize the gravity of access to seeds and agricultural technology afflicting many
developing and least-developed countries.

2. We stress the need for the WTO Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS Agreement) to be part of the wider national and international action to address these problems.

3. We recognize that intellectual property protection is important for the development of new
plant varieties and agricultural technology. We also recognize the concerns about its effects on prices and
availability of plant varieties, organisms and agricultural technology for further research and development.

4. We agree that the TRIPS Agreement does not and should not prevent Members from taking
measures to protect farmers’ rights to save, exchange and develop seeds and agricultural technology locally to
combat hunger and poverty. Accordingly, while reiterating our commitment to the TRIPS Agreement, we
affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO
Members’ rights to combat poverty, protect food security and meet the Millennium Development Goals.

In this connection, we reaffirm and extend the right of WTO Members to use, to the full, the
provisions in the TRIPS Agreement that provide flexibility for this purpose.

5. Accordingly, and in the light of paragraph 4 above, while maintaining our commitments
under the TRIPS Agreement, we recognize that these flexibilities include the following:

In applying the customary rules of interpretation of public international law, each provision of the
TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as
expressed, in particular, in its objectives and principles.

Each Member has the right to grant compulsory licences and the freedom to determine the grounds
upon which such licences are granted

Each member has the right to determine what constitutes a national emergency or other
circumstances of extreme urgency, it being understood that widespread poverty and food
insecurity can represent a national emergency or other circumstances of extreme urgency.

The effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual
property rights is to leave each Member free to establish its own regime for such exhaustion
without challenge, subject to the MFN and national treatment provisions of Articles 3 and 4.

6. We recognize the problems faced by WTO Members with insufficient or no manufacturing
capacities in plant-breeding, biotechnology and the development of agricultural technology. In this regard,
the obligations of an exporting Member under Article 31(f) of the TRIPS Agreement shall be waived with
respect to the grant by it of a compulsory licence to the extent necessary for the purposes of production of
seeds and agricultural technology and its export to an importing Member if needed to combat poverty and
ensure food security.

7. We reaffirm the commitment of developed-country Members to provide incentives to their
enterprises and institutions to promote and encourage technology transfer to least-developed country
Members pursuant to Article 66.2 to enable them to combat poverty, ensure food security and meet the
Millennium Development Goals.


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Shiva, Vandana (2005), The Indian Sed Act And Patent Act: Sowing Seeds Of Dictatorship, p 1
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There are some open polynated hybrid seeds, which farmers can recycle, but they are not common.
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Technology, 1/3-4, p. 297.
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54
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62
See http://www.fao.org/ag/cgrfa/itpgr.htm
63


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