IP Watch: Non-Corporate Entities Join Forces Against Adoption Of Plant Breeders' Rights Regulations In Africa

The United Nations Special Rapporteur on the Right to Food, civil society, and farmers’ representatives have raised serious concerns on the upcoming adoption of draft regulations of a protocol protecting breeders’ rights in Africa. Civil society groups and farmers’ representatives have been blocked from participating in the meeting expected to adopt the regulations, according to them. The Special Rapporteur is calling for a halt to the process, and for starting again with a more transparent, inclusive, and evidence-based process.

Hilal Elver, Special Rapporteur on the right to food, wrote to the members of  the African Regional Protocol for the Protection of New Varieties of Plants (known as the “Arusha Protocol”), to warn against potential harmful consequences of these draft regulations on the traditional practices of African farmers. in a 24 November open letter [pdf].

The Administrative Council of the African Regional Intellectual Property Office (ARIPO) is expected to meet on 5 December to adopt the draft regulations to the Arusha Protocol. ARIPO has been contacted by Intellectual Property Watch for comment but had not responded by press time.

The Protocol, adopted in July 2015, aims to harmonise the regional legal framework for the protection of plant breeders’ rights, Elver said in the letter. “However, it has come to my attention that there is much concern amongst farmers’ organisations and networks that the Protocol will negatively impact on the traditional practices of African farmers, in particular freely using, saving, exchanging and selling farm-saved seed and propagating material,” she wrote.

“These practises, which are the backbone of agricultural systems in Sub-Saharan Africa, have ensured access to and the maintenance of a diverse pool of genetic resources by farmers themselves,” she said, and such diversity “is key to ensuring food security, long-term sustainability and providing farmers with resilience to natural disasters and the negative effects of climate change.”

“A specific concern is that the Arusha Protocol provides very strong intellectual property rights to breeders of uniform varieties, at the expense of farmers’ rights,” she added.

For example, Elver wrote, “Article 22 (1) (a) of the Protocol on ‘Exception to Breeder’s rights’ allows farmers to use protected material only for “private and non-commercial use”. As there is no further definition, it is unclear which acts are covered by this exception.”

She compares this exception to the one found in the International Union for the Protection of New Varieties of Plant (UPOV) Convention 1991, on which the protocol is modelled. This exception has been long criticised by farmers’ organisations and civil society.

This inability to save, exchange and sell farm-saved seeds could also result in smallholder farmers losing their know-how related to seed selection and seed preservation, which is critical for maintaining sustainable local food system, she explained. It could also disrupt the functioning of the informal seed system, “as the beneficial inter-linkages between the formal and informal seed systems will be severed.”

Elver also voiced concerns regarding the “non-transparent and non-inclusive process by which the Arusha Protocol was adopted,” as, according to the letter, civil society and farmer representatives were excluded from participating in key meeting that let to its adoption. It remains unclear whether they will be able to attend the Administrative Council of 5 December to adopt the draft regulations, she added.

Intellectual property regimes and seed policies must be compatible with and conducive to the realisation of the right to adequate food, she said, following the Committee on Economic, Social and Cultural Rights in General Comment No.12.

Considering that most of the ARIPO member states have ratified the International Covenant on Economic, Social and Cultural Rights, and the International Treaty on Plant Genetic Resources for Food and Agriculture, whose Article 9 provides for farmers’ rights, Elver urged ARIPO member states to refrain from endorsing and/or ratifying the Arusha Protocol and adopting the Draft regulations. She also called on those states to begin a new process, which is transparent, evidence-based and inclusive of civil society and smallholder farmer representatives to develop a new legal framework, appropriate for the agricultural system prevailing in the ARIPO region.

The African Centre for Biodiversity (ACB) and the Participatory Ecological Land Use Management (PELUM) Association in collaboration with the Alliance for Food Sovereignty in Africa (AFSA) also published a press release on 29 November calling the ARIPO secretariat processes “undemocratic”, “scandalous,” and “unacceptable.”

“Locking African farmer representatives and civil society out in order to allow unfettered draconian regional law making is deeply disturbing,” they said, adding “What is at play here is entrenching an agricultural future for smallholder farmers in the 19 ARIPO countries that will ensure that profits accrue mainly to the corporate sector and a tiny group of elite players that can engage in the commercial agriculture value chain, while pushing the already marginalised majority of smallholder farmers further into hunger, poverty and dispossession.”

According to the release, ARIPO has refused “point blank” to allow any African farmer representative or civil society to attend the December meeting “on the spurious and frivolous grounds that ARIPO has no cooperation agreement with such civil society.”

They called upon all ARIPO member states to “ensure open, transparent and democratic regional law making,” and “ensure that smallholder farmers have the rights to continue to access and use all seed freely without any impediments, including protected varieties, through saving, exchanging, and selling on the local markets in Africa.”

“Such practices are the backbone of farming systems in the ARIPO region and support livelihoods, provide food, sustenance and nutrition for many millions of people on the continent,” they said.

Comments [pdf] had been provided on 16 November on the revised draft regulations for implementing the Arusha Protocol by ACB, the Third World Network, and AFSA. The comments included some of the most problematic aspects that those civil society groups would like to be “rectified” by ARIPO member states.

In particular, according to the groups, the Draft Regulations “fail to provide a mechanism for Contracting Parties to object to the grant of plant breeders’ rights (PBRs) from being applicable in their respective territories as envisaged by Article 4(1) of the Protocol.”

Regulations also “fail to provide a clear definition for the exception “private and non-commercial purposes” as contemplated in Article 22(1)(a) of the Protocol in order to safeguard the rights of small-scale farmers to freely use, save, exchange and sell seeds and propagating materials of protected varieties even in local markets,” they said.

Finally, the groups said, the draft regulations are ignoring “serious concerns that provisions be made to prevent someone from tweaking local varieties and thereafter claiming PBRs over such varieties, all without having obtained the prior informed consent from the farmers and subject to fair and equitable benefit sharing.

The draft regulations do not mention disclosure of origin ” which ironically has been championed by African countries in various international forums over the years, they said. In fact, the draft regulations enable biopiracy by failing to introduce appropriate safeguards and allowing breeders to hide behind confidentiality rules, they said.