![Sample our Global Development journals, sign in here to start your access, latest two full volumes FREE to you for 14 days]({"type":"image" , "src" : "/sda/5929/TOC-Subject-Sample-2021-Global-Development.jpg"})
Abstract
Drawing on interviews with Indian and Brazilian farmers’ rights activists, lawyers, agronomists and plant breeders, this article aims at better understanding how farmers’ rights are protected on paper and implemented on the ground in these two countries. Brazil and India offer important case studies because they are biologically megadiverse countries, and because small farmers represent an important segment of the rural economy. In this article, I show that India has adopted an ownership approach to farmers’ rights, while Brazil leans towards a stewardship approach. Based on an examination of the progress made in enforcing these rights, I further argue that the stewardship model adopted by Brazil is more conducive to the realization of farmers’ rights, and I explore why this is the case. Finally, I show how farmers’ rights provisions in the Brazilian and Indian legislations represent fragile gains that could be curtailed by several bills currently under discussion in the field of seed and plant variety protection.
Acknowledgements
I am grateful to Shalini Randeria, at The Graduate Institute of International and Development Studies, Geneva, for her support during this research project, as well as to the Centre for Social Sciences and Humanities, Delhi, for hosting me during the writing-up stage. My sincere thanks go to Priscilla Claeys, Bruno Dorin and José Cordeiro de Araújo for their help and feedback in the process of researching and writing, as well as to the three anonymous reviewers for their detailed and thoughtful comments and suggestions. Any remaining errors are my own.
I would like to pay tribute to Juliana Santilli and Dwijen Rangnekar, two researchers who made important contributions to the debate on farmers’ rights and who passed away last year.
Disclosure statement
No potential conflict of interest was reported by the author.
ORCiD
Karine Peschard http://orcid.org/0000-0002-6941-6501
Notes
1 The expression ‘seed wars' was first used in an article in the Wall Street Journal in 1984 (Paul Citation1984), and was popularized by Kloppenburg and Kleinman (Citation1987), Ewens (Citation2000) and Aoki (Citation2008).
2 As Andersen (Citation2006) notes, this is a ‘lowest denominator’ definition that avoids controversial issues such as the right to sell seeds. On the controversies surrounding the definition of farmers' rights, see Borowiak (Citation2004, 529–30), Andersen (Citation2005a, 2–24) and Peschard (Citation2014b, 1088–90).
3 Article 8(j) of the CBD establishes the obligation to preserve and promote the knowledge, innovations and practices of indigenous and local communities relevant for the conservation and sustainable use of biological diversity, as well as the right to benefit-sharing. Article 9 of the Seed Treaty reaffirms these obligations with respect to plant genetic resources for food and agriculture specifically, and establishes the right to participate in national decisions. In both cases, these provisions are subject to national legislation. The Treaty also makes provision for in situ and on-farm conservation and sustainable use of plant genetic resources (Art. 5 and 6). On the international governance of plant genetic resources, see Halewood, López Noriega, and Louafi (Citation2013).
4 Article 22 (Right to Seeds) and Article 23 (Right to Biological Diversity) of the draft declaration recognize, among others, (1) the right of peasants to save, store, transport, exchange, donate, sell, use and re-use farm-saved seeds, crops and propagating material; (2) the collective use and rights to agricultural biodiversity and the right to associated knowledge; (3) the right to protect peasants' seeds and livestock systems from genetic contamination, biopiracy and theft; (4) the right to exclude from IPR genetic resources, agricultural biological diversity and associated knowledge and technologies that are owned, discovered or developed by their own communities (UNHRC Citation2015).
5 Access and benefit-sharing (ABS) refers to the fair and equitable sharing of the benefits arising from the use of genetic resources.
6 A notable exception is the Farmers' Rights Project, a 10-year international project (2005–2014) on the realization of farmers' rights carried out by the Fridtjof Nansen Institute (Andersen and Winge Citation2013).
7 The Indian farmers' rights legislation is often referred to in the literature, by both researchers and activists, as the most progressive, liberal, far-reaching or advanced worldwide. See, for example, Santilli (Citation2012, 225), Prajeesh (Citation2015, 16), Farmers’ Rights Project (Citationn.d.), MS Swaminathan Research Foundation (Citationn.d.).
8 For this contribution, I conducted 20 interviews in India in February–March 2013, December 2014 and December 2015. In Brazil, where I have been researching IPRs, seeds and farmers' rights since 2006, six follow-up interviews were carried out in Brasilia and Rio de Janeiro in March 2014. Interviews were conducted with key individuals from different sectors – farmers' rights activists, researchers, lawyers, agronomists and plant breeders – on how they view the legislation and the progress made in its implementation.
9 Public agricultural research in Brazil and India is conducted under the authority of the Brazilian Agricultural Research Corporation (Embrapa) and the Indian Council of Agricultural Research (ICAR), respectively.
10 In the last decade, Brazil and India increased their cooperation through forums such as IBSA (India–Brazil–South Africa), created in 2003, and BRIC (Brazil–Russia–India–China), launched in 2009.
11 Brazil was one of the main proponents of the Nagoya Protocol and among the first countries to sign it. However, ratification of the Protocol is pending in the Brazilian Congress since 2012, where it faces opposition from the agribusiness lobby (Terra de Direitos Citation2014, 7).
12 The International Union for the Protection of New Varieties of Plants (UPOV) is an inter-governmental organization that enforces IPR on plant varieties, known as plant breeders' rights.
13 For a discussion of changes in the seed industry in Brazil, see Wilkinson and Castelli (Citation2000); in India, see Rangnekar (Citation2003) and Kochupillai (Citation2011).
14 On the adoption of Bt crops by farmers in India, see Stone (Citation2007), Shah (Citation2008), McKinney (Citation2013) and Roy (Citation2014).
15 The latest is Bill 1117/2015, introduced in Congress in April 2015 and under review as of December 2015.
16 There are few reliable statistics on farmers' seed sourcing – whether in the public sector, the private sector, civil society organizations, informal exchange or seed saving. Determining if a farmer buys or saves seeds is not as straightforward as it may appear. For example, a farmer may buy a composite, high-yielding variety, which he then saves for two to three years before purchasing it again when its performance decreases (Ghose Citation2004, 4).
17 Based on her research among farmers in Jharkhand, India, Ghose (Citation2004) argues that seed acquisition mechanisms among farmers have been changing rapidly since the late 1990s and that this figure is overstated.
18 These figures are estimates based on the Brazilian Seed Producers Association (ABRASEM) statistics on the use of commercial seeds for different crops in the 2006–2007 harvest.
19 These organizations included Consultancy and Services for Projects in Alternative Agriculture (AS–PTA), an NGO that works with family farmers to promote agroecology; the Brazilian Institute for Consumer Protection (IDEC), Brazil's oldest and largest consumer protection organization; and Greenpeace Brazil.
20 For a discussion of an earlier failed attempt at introducing plant breeders' rights in Brazil in the 1970s, see Peschard (Citation2010, 103–5).
21 This divide is reflected, at the institutional level, by the fact that Brazil has two agricultural ministries: the Ministry of Agriculture (MAPA), geared to the interests of agribusiness and large landowners; and the Ministry of Agrarian Development (MDA), which promotes public policies for agrarian reform, family agriculture and food security. The two ministries do not have the same political influence, nor do they enjoy the same financial and human resources.
22 Large landowners and agribusiness interests are represented by the bancada ruralista (its official name is the Parliamentary Front in Support of Agriculture and Livestock), the largest lobby group in Congress.
23 In recent years, rural social movements have used the expression ‘Creole seeds' (Semente Crioula, in Portuguese) to reassert the value and legitimacy of farmers' varieties in the face of their growing marginalization. See Delgado and Rodrigues-Giralt (Citation2014).
24 The Brazilian Seed Act establishes that the production, processing and marketing of a cultivar is conditional on registration in the RNC. Criteria for registration include distinctiveness, homogeneity and stability (thus excluding, by definition, farmers' varieties); its value for cultivation and use (VCU); and the existence of a ‘maintainer’ responsible for making the cultivar available. Both protected cultivars and cultivars in the public domain can be registered in the RNC. The Brazilian Seed Act also establishes that any private or corporate person involved in the production, processing, packaging, storage, testing, marketing, import or export of seeds and seedlings must be registered with RENASEM (Santilli Citation2009, 148–55).
25 The Brazilian Plant Variety Protection Act defines a small rural producer as someone who exploits a parcel of land using mainly family labour as opposed to hired labour, and resides on his property or nearby. To avoid the inclusion of unproductive large estates (latifúndios), properties in this category may not exceed size limits set forth in the Act (República Federativa do Brasil Citation1997, Art. 10.3).
26 According to Santilli (Citation2009, 165), these restrictions on the use of saved seeds have less to do with the stated purpose of the act – to guarantee seed quality – than with restricting the informal seed market.
27 For a description of the regulatory bodies responsible for implementation, see Gautam et al. (Citation2012, 16–25).
28 Wild relatives are wild plant species closely related to crops; landraces are genetically diverse varieties, adapted locally by farmers in traditional farming systems in the absence of formal plant breeding.
29 A farmer is defined in the PPV&FR Act as any person who cultivates crops himself or herself, or through direct supervision; or who conserves and adds value to wild species or traditional varieties through the selection and identification of their useful properties (GoI Citation2001, Art. 2k).
30 Given the collective nature of farmer breeding, it is problematic to attribute private ownership of a variety to an individual farmer. Alternatively, some varieties are also registered in the name of a farming community. However, this is also problematic, since other farming communities may have rights to the same variety (Suman Sahai, Gene Campaign, interview with the author, New Delhi, 8 December 2014).
31 Data on the registration of plant varieties is constantly updated on the PPV&FR Authority website. The discussion in this section is based on the data published in May 2015.
32 As of May 2015, 92 crop species are available for registration, with new crops regularly added to the list (PPV&FR Authority Citation2015d).
33 One hundred and forty applications are pending due to legal issues. They mainly concern new varieties, with some cases involving extant varieties. So far, no application for the registration of a farmer's variety has been challenged (PPV&FR Authority Citation2015b).
34 It must also be noted that the PPV&FR Authority has increased the number of centers that carry DUS testing – from 94 in 2011–12 to 133 in 2013–14 – and therefore its ability to process applications (PPV&FR Authority Citation2012, Citation2014).
35 It is important to keep in mind that there are several reasons why applications do not get registered. For example, an application may be rejected before it gets to DUS testing because it is incomplete.
36 Compiled by the author from PPV&FR Authority (Citation2015a, Citation2015c).
37 Suman Sahai, Gene Campaign, interview with the author, New Delhi, 8 December 2014.
38 See note 28 for a definition of landraces and wild relatives.
39 The three awards are the Community Award, Farmer Reward and Farmer Recognition.
40 Under section 39(1)(iii), ‘the farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation’ is entitled to ‘recognition and reward from the National Gene Fund [ … ] provided that the material so selected and preserved has been used as donors of genes in varieties registrable under the Act’ (GoI Citation2001).
41 Mrinalini Kochupillai, Senior Research Fellow, Max Planck Institute for Innovation & Competition, personal communication, 23 December 2015. See also Kochupillai (Citation2014).
42 ANA is a horizontal and decentralized network of civil society organizations involved in concrete experiences promoting agroecology, family farming and sustainable rural development. See ANA (Citationn.d.).
43 There is no exhaustive compilation of grassroots initiatives. A sample of community initiatives for the local production, use and conservation of biodiversity, compiled by ANA for its second National Agroecology Meeting, in June 2006, identified 212 experiences nationally (Fernandes Citation2007, 3). On the issue of seeds specifically, it listed 47 initiatives in 14 states, involving 10,000 families and 51 species (Santilli Citation2009, 327–9).
44 Carolina Starr, Ministry of Agrarian Development, personal communication, 25 November 2014.
45 Flavia Londres, ANA, interview with the author, Rio de Janeiro, 21 March 2014.
46 Gabriel Fernandes, AS–PTA, interview with the author, Rio de Janeiro, 10 March 2014.
47 The Brazilian legislation requires a regulatory decree signed by the President in order for a law to become effective. Although a decree cannot change the principles of the law adopted by the National Congress, it can create bureaucratic stumbling blocks that may impact its effectiveness.
48 Vladimir Moreira, Bionatur, interview with the author, Bagé, Rio Grande do Sul, 8 November 2007. For a recent discussion of Bionatur's experience, see AS-PTA (Citation2014, 33–8).
49 Introduced during the first mandate of President Lula da Silva (2003–2007) as part of its Zero Hunger Program, the Food Acquisition Program (PAA, in Portuguese) aims to provide consumption subsidies to people suffering from food insecurity by sourcing food from family farmers.
50 The plan lists four categories of seeds: creole (local or farmer-selected), varietal (non-hybrid), organic and agroecological.
51 Brazil is globally the second largest producer of transgenic crops and the largest consumer of pesticides (James Citation2014; INCA Citation2015).
52 In this section, I discuss in more detail the bills that are the most directly relevant to farmers' rights, specifically the Seeds Bill, 2004, in India, and in Brazil, bills aimed at amending the Plant Variety Protection Act and a bill aimed at implementing the Seed Treaty. However, a number of other bills under discussion also have implications for farmers' rights, including the Biotechnology Regulatory Authority of India (BRAI) Bill, and a bill aimed at amending the Brazilian Biosafety Act to lift the ban on GURTs.
53 The Standing Committee on Agriculture recommended (1) deleting the requirement for farmers to conform to the prescribed minimum limits of germination, physical purity and genetic purity; (2) expanding the definition of a farmer (who is exempted from compulsory registration of seeds) to include any person who conserves or adds value to traditional varieties; and (3) setting up a Compensation Committee where farmers can claim compensation if seeds fail to perform to expected standards.
54 Under the 1978 Act, the breeders' exemption is mandatory and allows breeders to freely use a protected variety to develop a new variety. Under the 1991 Act, in contrast, the breeding and exploitation of a new variety ‘essentially derived’ from an earlier variety requires the rights holder's permission. Since there is no agreement as to what represents an essentially derived variety, this caveat opens the door to potential abuse of breeders' rights. Carolina Starr, Ministry of Agrarian Development, interview with the author, Brasília, 20 March 2014. Despite the fact that neither Brazil nor India is a member of UPOV 1991, they have incorporated the concept of essentially derived varieties into their plant variety legislation.
55 Gabriel Fernandes, AS–PTA, interview with the author, Rio de Janeiro, 10 March 2014.
56 On the rift between agribusiness and large farmers in Brazil, see Peschard (Citation2014a).
57 For an example of that line of argument among large farmers, see Silveira (Citation2013).
58 The following discussion is based on a draft version of the bill. The final version has not yet been introduced in Congress.
59 Civil society organizations will staunchly oppose this provision, especially given the nomination, in January 2015, of Katia Abreu, leader of the agribusiness lobby in Congress, as Minister of Agriculture. A staunch supporter of agribusiness and of ‘growth at all costs', Katia Abreu is known, among other things, for supporting a weakening of the forest code and attempting to lift the ban on GURTs (popularly know as Terminator).
60 On farmers' right to participation in decision-making, see FAO Resolutions 6/2011 and 8/2013 (FAO Citation2011, FAO Citation2013).
61 The bill establishes a voluntary contribution to a Federal Agricultural Fund, set at a maximum of 0.7 percent of revenues made by the exploitation of the genetic resource. The user can also fulfill its benefit-sharing obligations through a choice of non-monetary options. Finally, the granting of IPR on genetic resources is only conditional on inscription in the registry of the Ministry of Agriculture, without any due authorization process.
62 As of April 2015, 52 countries out of 72 are members of UPOV 1991 (UPOV Citationn.d.). In addition to Brazil, the other major exceptions are China and South Africa.
63 A formal process is underway at UPOV, the World International Property Organization (WIPO) and the CBD to identify and address existing incompatibilities between the implementation of UPOV 1991 and the Seed Treaty, in particular with regard to farmers' rights. While it is not the case of Brazil and India, many countries, including the European Union, have ratified both UPOV 1991 and the Seed Treaty.
64 This finding supports the emerging consensus that the stewardship approach is more conducive to the realization of farmers' rights, one of the main findings of the Farmers' Rights Project. See Andersen (Citation2006, 4–5).
Additional information
Funding
Notes on contributors
Karine Peschard
Karine Peschard is a postdoctoral researcher at The Graduate Institute of International and Development Studies (IHEID), Geneva, and an associate researcher at the Centre for Social Sciences and Humanities (CSH), Delhi. She conducts research on farmers’ rights, legal activism around plant genetic resources and Open Source seeds, with a comparative focus on Brazil and India.