Protecting Farmers’ New Varieties: New Approaches to Rights on Collective Innovations in Plant Genetic Resources

World Development Vol. 35, No. 9, pp. 1515–1528, 2007� 2007 Published by Elsevier Ltd

0305-750X/$ - see front matter

doi:10.1016/j.worlddev.2006.05.019www.elsevier.com/locate/worlddev

Protecting Farmers’ New Varieties:

New Approaches to Rights on Collective Innovations

in Plant Genetic Resources

RENE SALAZARPedigrea Association, Manila, Philippines

NIELS P. LOUWAARSCentre for Genetic Resources, Wageningen, The Netherlands

and

BERT VISSER *

Pedigrea Association, Manila, PhilippinesCentre for Genetic Resources, Wageningen, The Netherlands

Summary. — Current farmers’ breeding goes beyond the gradual selection in landraces, and in-cludes development and maintenance of major new farmers’ varieties that are increasingly uniform,in particular in South-East Asia. Modern varieties developed in the formal sector have simplyreplaced landraces as the source of diversity, but have not abolished farmers’ breeding practices.Interpretations of the new international agreements on plant genetic resources should protect thedevelopment of modern farmers’ varieties. However, ensuring recognition of collective innovation,allowing access to relevant germplasm sources for farmers’ breeding activites, keeping materialsfreely available, and arranging for effective benefit sharing, all form major challenges. This paperproposes a new protective measure: namely ‘‘origin recognition rights.’’
� 2007 Published by Elsevier Ltd.
Key words — farmers’ varieties, collective rights, origin recognition, declaration of origin, South-East Asia

* Final revision accepted: May 6, 2006.

1. INTRODUCTION

FAO 1 defines a landrace as an early, culti-vated form of a crop species, evolved from awild population, and generally composed of aheterogeneous mixture of genotypes. Landracesform a major component of farmers’ plant ge-netic resources (PGR) included in genebankcollections, and this material provides the back-bone of agriculture and plant breeding today.In addition, landraces are often rooted in localcommunities’ culture and are often identifiedas part of cultural heritage. Many concernsregarding the need for protection of farmers’PGR relate in general terms to such landraceswithout providing much detail on the type of

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germplasm actually referred to. This focus ontraditional landraces may be understandableas often such concerns stem from the genebankcommunity and non-specialist developmentorganizations, which are most familiar withlandraces. However, landraces as defined abovedo not form the only and perhaps not even themost important germplasm maintained by to-day’s farmers, who continue to develop newfarmers’ varieties. These new farmers’ varietiesare based on diverse sources, and build onlandraces and local varieties from farmers’communities as well as on germplasm from

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the public and private sector. This paper dis-cusses the needs and options for protection ofmodern farmers’ varieties, and the specific fea-tures of modern farmers’ varieties complicatingsuch options.

In general, landraces continue to be culti-vated in marginal production areas and in sub-sistence systems. In high potential areas acrossthe world, to a large extent most landraces havelong been replaced by modern cultivars asproduction systems moved from subsistencecultivation to intensive and market-orientedsystems. Landraces, generally of long durationand selected for stability under low-external-in-put conditions and diverse and adverse envi-ronments, could often not compete with newhigh-yielding varieties that were bred for inten-sive production systems and allow for moregrowing cycles per year (FAO, 1998). Thus,farmers started to grow such new high-yieldingcultivars available to them on the market orfrom public or private sources.

However, even under market-oriented andintensive production systems, farmers continueto create their own varieties. Modern varietieshave simply replaced landraces as the sourceof diversity, but have not abolished farmers’breeding. The reason for this development isthat farmers often recognize the attractive fea-tures of modern varieties, including high yieldsand novel resistances, but also identify variouscharacters that are not appreciated, especiallyregarding taste, processing qualities, and resil-ience under less optimal growing conditions.This is especially evident in South-East Asiawhere rice is the major staple crop, but also inother regions and for other crops. Experiencesdescribed here deal mostly but not exclusivelywith practices found in South-East Asia.

This paper first presents description andanalysis of current farmers’ practices in regionsexposed to germplasm developed by the publicand private sector (Sections 2–4), followed by adiscussion of the legal background againstwhich such practices are undertaken (5). It con-cludes with a proposal for a more appropriateregulatory system to protect such practices gi-ven their contribution to the conservation anddevelopment of genetic resources (Section 6).

2. FARMERS’ PRACTICES

We first present some examples of farmers’practices that use modern varieties for furtherbreeding and selection.

• IR36 represents one of IRRI’s (Interna-tional Rice Research Institute) most success-ful varieties released over the last decades.This variety is grown over large acreages.Possibly more than 50 phenotypically differ-ent IR36 rice types based on farmers’ exper-imentation have been included in the IRRIgene bank (pers. comm. M. Jackson), point-ing at farmers’ breeding based on germ-plasm provided by the formal 2 breedingsector.• Eight years ago the Philippine Seed Boardcertified the farmers’ variety ‘‘Bordagol,’’a very popular variety that was spreadingthroughout the country. The farmer whoselected this variety claimed that he selectedBordagol as an ‘‘off-type’’ from an IR36 ricefield. Apparently, the Philippine Seed Boardfound the level of distinctness, uniformityand stability sufficient for such registration.• In the island province of Bohol in the cen-tral Philippines, the local population prefersrice grains with a red color, as this character-istic is associated with a better quality andgreater satisfaction after the meal. Over afew years, many Philippine Seed Board-released rice varieties available in the islandgave rise to new phenotypes with red grains.Four well-known phenotypes are Red IR36,Red IR66, Red 77, and RC18 selection.Molecular studies comparing these red typeswith the original varieties showed that thesevarieties descended from the original formalsector varieties and had incorporated thepreferred red pericarp trait. The studies con-cluded that this trait most probably resultedfrom introgression of genes from traditionalred rice varieties exhibiting this trait in thenewly released Seed Board varieties. Suchlocal red rice varieties were indeed grownin the area in which the modern red graintypes originated. Furthermore, the studiesindicated that farmers had a keen eye foridentifying this preferred trait in the fieldgrown with newly released formal sectorvarieties. Thus, farmers actively selectedwithin their stocks of IRRI varieties for apreferred additional trait (Bertuso, vanTreuren, van Eeuwijk, & Visser, 2005).• A study of the popular local rice variety‘‘Tai Nguyen’’ in southern Vietnam showedthat economic reforms created a largedemand for this aromatic rice variety inurban centers, in particular in Ho Chi MinhCity. ‘‘Tai Nguyen’’ is now cultivated inhigh-external-input systems, unlike in the

PROTECTING FARMERS’ NEW VARIETIES: NEW APPROACHES 1517

past, and can be found over large distancesacross the Mekong Delta. Comparisonbetween the ‘‘Tai Nguyen’’ varieties fromgene bank stocks collected 15 years ago withthose that are presently cultivated and com-parison between samples from different geo-graphic origins within the Mekong Deltasurprisingly showed that no phenotypicand molecular differences had emerged inthe ‘‘Tai Nguyen’’ variety and that farmersreadily and accurately identified off-types(Tin, Berg, & Bjørnstad, 2001; Tin, De,van Treuren, & Visser, 2006), exemplifyingthat farmers are able to accurately maintaina preferred variety.• It is estimated that approximately 20% ofrice varieties cultivated in an area of around5,000 ha under high-external-input condi-tions in North Cotabato Province in Minda-nao, in the southern Philippines, constitutefarmers’ varieties. These varieties are dis-tinct and exhibit a fairly high degree of uni-formity and stability compared to landraces;and they show traits that are desirableunder this production system, such asmedium or short stature, short or mediumterm duration, and non-photosensitivity.In North Cotabato, the participatory plantbreeding project PEDIGREA 3 collaborateswith farmers who used to practice localcrosses before the start of the project, andwho applied their expertize to crossesbetween modern varieties distributed byPhilrice or IRRI and preferred localvarieties.• In Nepal, participatory plant breedingresulted in new rice varieties for high-alti-tude areas. One of the most adopted varie-ties, Machhapuchre-3, that was based onfarmers’ selection from a segregating F3population, performed much better thanthe products from centralized breeding(Joshi, Sthapit, & Witcombe, 2001) andspread over large areas. All selection for thisvariety was done in two villages in the samevalley, indicating that farmers’ varieties mayspread over wide areas.For other staple crops, similar observationshave been made and recorded.• Ceccarelli et al. (2001), who have a longtrack-record in barley breeding, comparedfarmer selection strategies in Syria and othercountries with formal breeding selectionstrategies and identified substantial differ-ences between the barley lines selected byformal breeders on-station and by farmer-

breeders in their fields. Their work demon-strated that it is possible to organize a plantbreeding program so that farmers becomemajor actors in the selection of newcultivars.• Toledo Machado and Fernandes (2001)reported about a maize improvement projectin the State of Rio de Janeiro, Brazil, show-casing collaborative contributions from theformal sector and farming communitiesbased on a local maize variety as startingmaterial. Six cycles of mass selection in theagricultural community of Sol da Manharesulted in an upgraded local variety charac-terized by low nitrogen use, rendering thevariety highly attractive for small-scalefarmers.• Hardon (pers. comm.) reported the occur-rence of small plots of new commercialmaize varieties in small-scale farmer fieldsin East Java that had deliberately beenplanted amidst local varieties to allow ran-dom introgression of desired traits intofarmers’ own varieties with the purpose ofenriching and improving such varieties. Suchstrategy was preferred over straight adop-tion of the new commercial varieties.• Louette (1999) described major differencesamong maize farmers in the state of Jaliscoon the Pacific Coast of Mexico. Some farm-ers select seeds almost exclusively from theirown harvests, whereas farmers who do notproduce enough seeds for the next seasonbuy all their seeds. The most interestinggroup of farmers use their own seed lots inaddition to seeds acquired in the communityor introduced from other regions, and thusexperiment with new varieties. In the caseof maize, continuous introduction of newvarieties leads to extensive geneflow withinand between varieties. At the same time,these farmers are well able to maintain allthe typical characteristics of their preferredlocal varieties, like in the case of the ‘‘TaiNguyen’’ rice variety in Vietnam. Theassumption that traditional systems areclosed with respect to geneflow is clearlycontradicted.

The farmers’ varieties of the examples aboveoften emerged as farmers’ selections from mod-ern and traditional cultivars in market-orientedproduction systems. Selection and the emer-gence of new farmers’ varieties is occurringwith as well as without external interventionor support. Farmers’ practices may or maynot include crossing and conscious creation of


new genotypes, or rely on natural introgressionevents keenly identified and followed by selec-tion. Once a preferred variety has been estab-lished farmers are well able to maintain itstypical characters, although generally farmers’varieties are deliberately maintained moreheterogeneous than private sector varieties, inorder to overcome the vagaries of environmen-tal conditions. These farmers’ varieties are wellable to spread over a large area.

3. THE IMPACT OF PARTICIPATORYPLANT BREEDING ON THE

DEVELOPMENT OF NEW FARMERS’VARIETIES

Participatory Plant Breeding (PPB) is a con-tainer term encompassing various forms of col-laboration between farmers and public sectorbreeders (Sperling, Ashby, Smith, Weltzien, &McGuire, 2001). PPB may range from pro-grams in which farmers test advanced stableor near-stable lines produced at breeding sta-tions, to programs in which farmers formulatetheir own breeding objectives and for whichproject implementation is supported by publicinstitutions and/or NGOs. Major support fromthe formal sector involves suitable germplasmand breeding expertize. PPB has the potentialof exponentially increasing the role of farmersin producing new cultivars as described aboveand of substantially enlarging the number ofnew farmers’ varieties being developed. This isparticularly evident in those versions of PPBin which farmers take the leading role and thepublic sector acts as a support base, since avail-able capacity in the public sector becomes lessof a bottle-neck.

Again, a number of experiences exemplifyingthe effects of PPB concern rice.

• The ‘‘MASIPAG’’ rice plant breedingprogram in the Philippines that released seg-regating lines to rice farmers in the countryhas produced three popular varieties in threeprovinces in the southern Philippines alone.Varieties resulting from PPB are cultivatedin more than half of the area planted to ricein one district in North Cotabato province(Conserve, 2001).• In the Mekong Delta of Vietnam theCommunity Biodiversity Development andConservation program introduced decen-tralized plant breeding resulting in 37 seedclubs organising more than 1,000 farmers,who select their own varieties.

• In Laos, the participatory rice breedingproject BUCAP is currently conducting pro-ductivity trials of more than 30 stable PPBlines (originating from approximately 30 dif-ferent crosses).• The PEDIGREA project, now in its thirdyear, has been organizing and enhancingfarmers’ capacity to make crosses and per-form subsequent selection. Cambodianfarmers working with the NGO Srer Khmerare currently conducting productivity trialson 11 stable lines. On the island of Java,PEDIGREA’s partner organization FieldIndonesia is facilitating farmers’ selectionfrom 84 breeding lines obtained from theIndonesian Rice Research Institute in Suka-mandi, including 56 segregating populations(F2 – F4). This project has currently trained225 farmers of 11 communities in Indra-mayu district.

For other crops, related experiences have alsobeen documented. Toledo Machado and Fer-nandes (2001) and Ceccarelli et al. (2001) showhow farmers have produced new maize andbarley varieties, making use of traditional andmodern germplasm in the framework of a part-nership between farming communities and thepublic sector. In addition to enhancing farmers’breeding capabilities in rice, the PEDIGREAproject attempts to contribute to the geneticdiversity conservation of vegetables.

In many cases, PPB links farmers with for-mal plant breeders and includes the use ofgermplasm obtained from the public sector.This set-up intends to make full use of thecomparative advantages of the two systemsof plant breeding. Access to PGR, and oftenpre-breeding efforts 4 and crossings, is pro-vided by plant breeding institutions and gene-banks. This increases farmers’ access to thePGR collections and breeding populations thatsuch institutes maintain, and fosters the abilityto learn and adapt breeding techniques andstrategies adopted in institutional plant breed-ing. In addition, PPB helps to ensure thatbreeding objectives meet farmers’ real prefer-ences and growing conditions, and that varie-ties are selected and developed accordingly infarmers’ fields. Since PPB is now increasinglybased on the Farmers Field School approachdeveloped in the framework of Integrated PestManagement, it also renders it a much morecost-effective strategy. The organizations pro-moting PPB through this approach havestarted to move from community to commu-nity.


For these reasons PPB is bound to spreadfurther and as a consequence many more newfarmers’ varieties will emerge. Also, it is proba-ble that, as for formal sector varieties, the life-time of such farmers’ varieties may be limited,and they might be constantly replaced. Someof farmers’ rice varieties in the Philippines haveindeed already undergone this process.

4. GENETIC BACKGROUND OFMODERN FARMERS’ VARIETIES

Most of the new farmers’ varieties in the rice-based farming systems of South-East Asia areproduced in high-input and market-orientedproduction systems. At first sight, this mightseem contrary to expectations, since both pub-lic and private sector breeding efforts targetsuch production systems, and not marginalizedfarming systems. However, the ability to meetimmediate livelihood needs and the exposureto both formal sector and local varieties, as iscurrently the case in many high-input produc-tion systems, might provide sufficient flexibilityand interest to experiment with availablegenetic resources and to develop agronomi-cally, culturally and/or economically betteradapted varieties.

Broadly speaking, modern farmer varietiescan be developed along two lines. First, theymay be simple selections from existing moderncultivars. While some dramatic examples ofsuch varieties are known, we estimate that theyrepresent less than 10% or 15% of rice fieldsunder intensive cultivation. Equal limits shouldapply to other crops, given the resemblance offarmers’ practices and PPB programs acrosscrops.

Second, these varieties may have been pro-duced through participatory plant breedingor independent farmers’ selection from segre-gating materials resulting from conscious orspontaneous crosses. Such varieties, in turn,fall into two categories. The first category con-tains varieties that are produced from farmers’crosses. Through PPB rice farmers in South-East Asia learn how to perform emasculation,and how to manage F1 and further segregatingpopulations and lines. The community systemcontinues to play an important role in develop-ing these varieties. Once segregating lines areproduced by a farmer-breeder, various otherfarmers may request or take some seeds orpanicles to test these in their own farms. Thesepractices continue throughout the seasons so

that by the time a new cultivar appears, it issometimes difficult to identify the originalfarmer or even the original community. In-deed, such crop development practices fall intotraditional farmers’ systems of exchange ofgermplasm. In the past, this did not createproblems within such farming communities,given the absence of direct marketing benefits.Major challenges today include how to recog-nize, ‘‘protect,’’ or ensure benefit sharing withall relevant stakeholders, when these newfarmer varieties are commercialized by farmingcommunities or third parties. The second cate-gory of varieties stemming from PPB containsvarieties resulting from selection of segregatingmaterials received from plant breeders. Institu-tional plant breeders have a comparativeadvantage in access to germplasm and to facil-ities for pre-breeding and large-scale produc-tion of crosses. This entails that in the nearfuture this category of varieties may becomethe most important one produced throughPPB. Problems regarding access and benefit-sharing, as well as protection are more com-plex for this category, as will be highlightedbelow.

In short, PPB is a powerful tool that has thepotential to greatly improve farmers’ plantbreeding.

The collective and informal nature of farm-ers’ breeding systems makes it difficult to assignrecognition to a single farmer, and even to iden-tify origin of these varieties. Recognition andprotection of these varieties, which are theproduct of collective community efforts, areserious challenges. In addition, accommodationof stringent demands set by some providers ofgermplasm to farming communities in theframework of PPB projects also presents a dif-ficult problem to solve.

These considerations lead us to a number ofquestions. In which category of varieties dovarieties that farmers select and derive fromstable cultivars fall, like the famous ‘‘Borda-gol’’ rice variety or the ‘‘red IR rice varieties’’in Bohol province? Are these varieties ‘‘essen-tially derived?’’ Since farmers treat all germ-plasm as raw material, could new PlantVariety Protection laws in fact criminalize tra-ditional practices? Is the only legal option forfarmers to make their own crosses in order tomake use of the breeder’s exemption? If so, thiswould limit the benefits that small-scale farmerscan derive from collaboration with formalsector breeders in the framework of PPB pro-jects.


5. NEW FARMERS’ VARIETIES IN THEIPR ENVIRONMENT

For many centuries farmers have relied onthe free movement of germplasm, in the ab-sence of which traditional agriculture wouldhave collapsed. Free exchange and sharing oflandraces among neighbors and relatives, butalso within wider circles is embedded in farm-ers’ culture. As a consequence the practice totreat all genetic diversity as raw material for di-rect use and further improvement is still thenorm in many parts of the world. This is true,even where farmers have moved from sub-sistence farming to more intensive and mar-ket-oriented production systems, and frommaintaining landraces to developing new farm-ers’ varieties. Keeping all germplasm freelyavailable for further use has allowed farmersto create new types from local as well as fromintroduced varieties. These varieties, such as‘‘Bordagol,’’ are often exchanged freely andwithout any financial compensation betweenusers and the communities or the farmers whodeveloped these varieties.

The introduction of systems of intellectualproperty rights and other rights to plant varie-ties and genetic resources in developing coun-tries may affect this tradition.

A number of concerns regard future avail-ability and the implementation and conse-quences of recognition mechanisms. Somemajor questions in this regard are

1. whether all genetic material will remainfreely available for further (participatory)breeding or whether a selection of suchmaterial, in particular varieties developedin public or private breeding programs ormaterials that contain specific patentedgenes, will become unavailable;2. how such private intellectual propertyrights relate to the collective nature of farm-ers’ plant breeding; whether and how therole of farmers in developing new varietiescan be recognized; and whether the develop-ment of farmers’ varieties can be stimulatedby assigning certain rights to these farmers.All this regardless of whether or not suchlegal protection would resemble the protec-tion offered to professional breeders in thepublic and private sector.

Today, the issue of continued availability ofparent materials is highly topical. The first rea-son is that the principles and practices of intel-lectual protection in general, and of plantmaterial in particular, are spreading rapidly

among developing countries. This is due tothe implementation of the Agreement on TradeRelated Aspects of Intellectual Property Rights(TRIPS), and to a new round of USA-led bilat-eral trade agreements aimed at strengtheninginitially introduced protection systems. Second,it is timely because of current efforts at theinternational level to tighten legislation onplant breeders’ rights, as already apparent fromthe latest version of UPOV (UPOV Act, 1991).As a consequence, restrictions may increasinglyapply to the availability of parent materials forfarmers’ breeding and selection.

(a) The impact of UPOV

The designers of UPOV, a sui generis systemfor the protection of plant varieties, developeda rights system that offers the breeder protectionin the market. 5 However, in this context it for-mulates two important principles: the right ofanybody to use germplasm, including protectedmaterials, for further breeding without anyrights accruing to the ‘‘owner’’ of the varietiesused. In UPOV terms, this right is called thebreeder’s exemption, and is absent from mostindustrial patent systems world-wide.

The second principle is the right of farmers toreproduce any materials, including those ofprotected varieties for their own and non-com-mercial use without requiring permission fromthe right holder (and without paying royalties).This right is called the farmer’s privilege. Bothprinciples reflect global practices in farmers’culture of sharing and exchanging germplasm.During the 1980s, pressure mounted to tightenthe conditions under which the breeder’sexemption and the farmer’s privilege are valid.Reasons put forward to restrict application ofthese rules have guided the revision of UPOV,in the UPOV Convention of 1991. The latestversion states that in order to avoid ‘‘cosmeticbreeding,’’ the breeder’s exemption no longerapplies in the case of the so-called essentiallyderived varieties. These are very similar to ori-ginal varieties, and show minor differences thatare the result of particular ‘‘acts of derivation’’requiring modest efforts, such as mutation,repeated backcrossing and insertion of genesthrough biotechnological means. Such essen-tially derived varieties fall within the scope ofprotection of the original variety that providedthe basis for the new one, and can only be pro-tected in consultation with the rightholder ofthe original variety. The implementation ofthe concept of essential derivation 6 is still


under debate, especially among the seed indus-try partners.

In addition, it is asserted that the ‘‘farmers’privilege’’ has to be restricted to provide a bree-der sufficient possibilities to claim his rewards.In some industrialized countries for particularcrops, the right to re-use seeds or plantingmaterials on a farm has been restricted. Thiswas introduced in order to avoid situations inwhich for example commercial flower growerscan buy a few branches of a new rose or carna-tion variety and quickly multiply the stock tocover a large commercial flower productionarea on their farms. In addition, in many coun-tries free exchange of field crop seeds has beenrestricted, because commercial farmers startedselling large quantities of seed to their neigh-bors (without branding, thus officially outsidecommercial seed marketing channels) andbreeders lost significant sources of income.

These exceptions to the important principlesof breeder’s exemption and farmers’ privilegeare becoming the general rule. Exchange ofseed of protected varieties is now formally out-lawed in modern UPOV-compatible Plant Vari-ety Protection (PVP) laws, regardless of crop,and in UPOV-circles a debate is underway torestrict the breeder’s exemption further. Thewide application of such restrictions on theprinciples of breeder’s exemption and farmer’sprivilege renders these PVP systems less com-patible with farmers’ traditions and currentfarmers’ practices.

For example, mutant varieties selected byfarmers like ‘‘Bordagol’’ are technically ‘‘essen-tially derived.’’ Whether they are also essen-tially derived in a legal sense depends on theprotection status of the original variety. SinceIR36 was never protected by plant breeder’srights, ‘‘Bordagol’’ is not ‘‘essentially derived’’from a legal perspective. However, as publicand international research institutions are start-ing to protect their varieties, this situationmight change and farmers may produce essen-tially derived varieties that are based on parentlines that are legally protected. This wouldmean that the spread from farmer to farmerof varieties like ‘‘Bordagol’’ would require theapproval of the original breeder. Obviously,such approval might be hard to obtain forsmall-scale farmers, and in reality others mightattempt to obtain the legal protection as anessentially derived variety. Moreover, it wouldbe very difficult for the original rightholder topolice the spread of such essentially derivedvarieties.

Regarding the farmers’ privilege, it wouldoutlaw the exchange or selling of seeds withincommunities. A Material Transfer Agreementsuch as the one used by PhilRice discussed be-low would even outlaw the selling of seeds offarmers’ selections from segregating lines, andin fact function as a disincentive for farmers’breeding activities. Again, such practices willbe very difficult to monitor.

(b) The impact of patent systems

In addition to the impact of tightening ofplant variety protection systems, soon the pat-ent system will also considerably affect farm-ers’ seed practices, in particular farmers’access to seed. The patent system is notrooted in agriculture, and does not includethe breeder’s exemption and the farmer’s priv-ilege principles. Patents can apply to germ-plasm in several forms. In a few countries,most notably in the USA, a plant and its seed,or even a characteristic of the plant, can bepatented as long as it is new, innovative andin some way useful. This results in the possi-bility that the entire groups of varieties mayfall under a single patent. However, it is morecommon that part of a plant is patentable(e.g., a gene whose function in the plant isknown) or that the process by which a plantis generated falls within the scope of protec-tion (e.g., a method to introduce a gene bybiotechnological means). In this way, patentlaw is introducing new private ownershiprights over germplasm and forbidding its usein farmers’ breeding activities in more andmore countries.

This may be illustrated by the introduction ofcotton varieties containing genes of Bacillusthuringiensis (Bt), which protects the cropagainst its major pests, the Heliothis complex.Farmer-breeders and local commercial breedersin India quickly introduced the pest resistancein a number of locally adapted varieties oncethese transgenic varieties were introduced inthe country. In reaction, the patent holderquickly took action to protect its market poten-tial. Since the patent had not been approved inIndia, the company used other laws (especiallybiosafety laws) existing in the country to suc-cessfully control farmers’ use. This exampleillustrates that some breeding companies willattempt to protect their varieties, through intel-lectual property rights or through any otherexisting legislation, from unwanted use bysmall-scale farmers.


(c) The impact of access and benefit-sharingrequirements

Countries that have ratified the Conventionon Biological Diversity (CBD) are bound tofacilitate the access to genetic resources. How-ever, this may require Prior Informed Consentfrom the source country, as well as benefitsharing arrangements. Whereas these condi-tions apply primarily to cross-border exchangesof genetic resources, some countries (e.g.,Uganda) also use it to regulate the acquisitionand subsequent use of germplasm within thecountry. As a consequence, access and benefitsharing regulations required by CBD may alsolimit the availability and free use of germplasmin farmers’ breeding activities.

The current initial agreement between thePEDIGREA project and the National Institutefor Rice Research of Indonesia is that NGOsand farmers’ associations involved will ensurerecognition of the origin of the lines used intheir PPB projects. However, the tradition offree movement of germplasm to some extenthampers implementation of this agreement.Only in some cases it is possible to persuadefarmers to assign origin and to monitor thedevelopment of these lines. In other cases,farmers simply consider this irrelevant or donot recognize the principles underlying suchownership and origin. When these lines diffuseinto wider areas and reach a greater numberof farmers, back-tracking may require majorefforts. This problem is evident in the case ofthe agreement between PEDIGREA and thePhilippine National Rice Research Institute,which was formalized through a MaterialTransfer Agreement (MTA). First, this MTAstates that the material shall not be usedfor any profit or commercial purposes andacknowledges that PHILRICE holds owner-ship of the material. With respect to advancedbreeding lines (F6 and higher), this limits theuse of further selections from this material tosubsistence at the community level. Second,the MTA considers a new variety as not essen-tially derived only if 25% or more of its lineageis different from the provided lines. This allowsfor the use of the material in farmer cross-breeding, provided it is not followed by back-crossing to the provided material. Obviously,the means for farmers to monitor the geneticbackground of their selected lines are extremelylimited, if not absent. Finally, the recipient (thePEDIGREA partner PPRDI) is not allowed totransfer the material to third parties. However,

when the material is used in the project, unreg-ulated diffusion is difficult to prevent. ThisMTA, although not originally developed tocover transfer of materials to farmers’ commu-nities, was nevertheless applied to transfer inthe PEDIGREA project. This example clearlyshows some of the problems still to be solvedif farmers’ breeding efforts are to be recognizedand facilitated.

(d) The collective nature of farmers’ breeding

At the community level, we often find thatfew farmers perform crosses; more farmers areable to manage early segregating populations(whether obtained from farmer crosses or frominstitutional breeders); and many more farmersare interested in selecting from more advancedlines or between stable varieties. Thus, thefarmer-breeders of the first two categories pro-vide material to their communities, and oftenneed the involvement of their fellow farmerssince they do not possess sufficient land andtime to manage the trials on their own farm.Once distributed, materials are monitored andinspected by the farmer-breeders and interest-ing lines might be returned to them for fol-low-up experimentation. This, again, showsthat farmers’ breeding activities are often acollective effort, and participatory breedingprograms by definition involve different actorssharing tasks. How deeply this collective natureis engrained in farmers’ culture is illustrated inthe following citation of Brush (1998, p. 761):

‘‘The lack of possessive individualism among peasantfarmers regarding seeds and genetic resources mightbe seen as an adaptive cultural trait in the face ofthe risks in agriculture and the importance of diver-sity in meeting those risks. The efficacy of peasantseed systems is the fact that particularly good culti-vars spread rapidly and over a wide area.’’

Although individual recognition is not en-tirely taboo in farmers’ systems, as somevarieties are directly attributed to specificindividuals, the general rule is that farmers re-gard their breeding and selection efforts as acollective rather than an individual exercise.However, the highly collective and informalnature of the farmers’ breeding efforts is notrecognized in intellectual property rightssystems. Assigning individual recognition, asunder plant breeder’s rights and patent rightsystems, to an essentially collective systemof plant breeding is inconsistent with farm-ers’ breeding systems, and in practice such


systems cannot be easily applied to farmers’varieties.

Current IPR systems have limited possibili-ties for joint application of protection. Jointapplication by a number of inventors may pro-vide equal rights to all inventors who are listedin the application. But listing all participants ofa participatory breeding scheme would stifle theactual implementation of the resulting rights,since all actions would require the full approvalof all rightholders. In other words, such jointlyheld rights will be difficult to implement, themore so if rights are to be shared among farm-ers in the community, scientists and collabora-tors in the PPB program.

An alternative option may be to bring therights under the responsibility of a farmers’cooperative or other legal entity that representsthe different stakeholders. Such an entity maytake the necessary decisions on behalf of itsmembers and may enter into contractual rela-tions with breeders, research institutes andusers. Such an option, however, requires regis-tered membership and does not easily fit inconcepts of community membership that areoften implicit (e.g., by birth).

Thus, although IPR grant private rights,these can also be exercised by groups as longas they are formally registered. However, thisdoes not resolve the fact that current plantvariety protection laws require levels of dis-tinctness, uniformity and stability, which areoften not met by farmers’ varieties. Neitherdoes it take into account that many farmer-bred varieties are unlikely to capture a signifi-cant share in the commercial seed market.When a variety occasionally does, it may bevery difficult for the community to monitorand act against infringements on their plantbreeder’s rights. Most importantly, all suchoptions probably underestimate the likelihoodthat communities might not recognize individ-ual rights over germplasm and might not wishto exercise community rights against neigh-boring communities. Assigning ownership foreconomic or financial returns runs againstfarmers’ spirit of free exchange. More thanthe legal problems that would result from at-tempts to bring farmers’ varieties under cur-rent intellectual property rights systems, thesecultural motives will probably prevent theapplication of such IPR systems on farmers’varieties. Adapting current PVP and patentsystems to incorporate the protection of farm-ers’ collective breeding efforts is therefore notan advisable approach, and protection of the

efforts of farmers’ breeding will have to bereached by other means.

(e) Farmers’ varieties and plant breeder’s rightsrequirements

Distinctness, uniformity and stability arecharacteristics required to obtain property rightprotection according to the UPOV convention.Like landraces and modern cultivars, modernfarmers’ varieties are usually distinct (Bertusoet al., 2005; Tin et al., 2001). High-inputsystems and the urban market require a higherdegree of uniformity and the involved agro-ecosystems provide more reliable growingconditions than marginal ecosystems. As a con-sequence these modern farmers’ varieties arealso more uniform than landraces. Neverthe-less, many of these varieties are still composedof a number of genotypes and generally wouldneed further selection to conform to the defini-tions of uniformity under plant breeder’s rights,in particular according to the UPOV Conven-tion. For small and resource poor farmers,greater uniformity could constitute higher riskand run counter to their interests. Therefore,experience has shown that these varieties arenot normally subjected to selection for unifor-mity to the same extent as modern formal sec-tor cultivars. The lower degree of uniformityalso means that new farmers’ varieties are lessstable over generations than required underthe UPOV interpretation. Different types with-in a farmers’ variety may be favored over timeunder given growing conditions, and over thecourse of seasons biological or abiotic stressesmight shift the balance between the genotypesconstituting the variety.

Summarizing, new farmer varieties are moredistinct, uniform and stable than the remaininglandraces dominant in low-input marginalizedfarming systems, but often less than modernvarieties distributed by the formal system.

The high level of uniformity and stability offormal sector varieties is not an agronomicadvantage per se. It results from the economicdemand for uniformity by increasingly large re-tailer chains, and from the need of breedingcompanies to legally protect the varieties stem-ming from their breeding programs. It is tech-nically possible to relax the uniformityrequirements and to use norms applied forcross-fertilizing crops to describe new farmers’varieties. However, breeders may regard thisas a disadvantage for at least two reasons.First, the genetically wider claims will be more


difficult to enforce since the possibility to dis-tinguish varieties from each other will decrease.Second, this opens ways for strategic protectionleading to the monopolization of entire gene-pools. On the other hand, these needs and con-cerns are of no relevance to small-scale farmers.

(f) Protecting farmers’ varieties

The products of breeding from the public orprivate sector have become easily available,but their development is often long and labor-intensive. As a consequence, especially privatebut increasingly also public sector productsare protected against misappropriation andfree-riding. Such protection does not apply tomodern farmer varieties, nor to landraces. Butdo modern farmers’ varieties need protectionagainst misappropriation? And how can newfarmers’ varieties be protected?

Misappropriation may not only mean thatthird parties might market farmers’ breedingproducts, thus potentially damaging farmers’market prospects, but also that they mightclaim and obtain plant breeders’ rights or pat-ent rights, resulting in the denial of marketaccess of the communities from which suchvarieties have originated. This kind of misap-propriation – a few cases have been reported– is undesirable and calls for forms of protec-tion of landraces and farmer varieties alike.

The question then becomes whether plantbreeder’s rights according to the UPOV Con-vention provide appropriate protection forfarmer varieties, given: (1) the usually lowerlevel of distinctness, uniformity and stability,(2) the notion that farmers’ varieties are oftenthe product of community efforts, (3) and thatfarmer varieties (not landraces) include geneticinformation from the introgression of publicand private sector germplasm.

Based on these concerns, we suggest thatfarmers’ varieties need protection againstappropriation. For both farmers’ varieties andlandraces, a call for protection recognizes farm-ers’ contributions to current crop diversity andthe need to support those farmers’ systemswhich maintain diversity and develop localvarieties for future use. Farmers’ contributionsto develop and manage diversity are recognizedin the Convention on Biological Diversity (Art.8j; referred to below as CBD) and the Interna-tional Treaty on Plant Genetic Resources forFood and Agriculture (Art. 9; referred to belowas IT PGRFA). Still, it is arguable whether theCBD, IT PGRFA, or UPOV currently provide

the mechanisms to support farmers’ breedingsystems. The next section suggests options foralternative protection mechanisms.

6. ALTERNATIVE OPTIONS FOR THEPROTECTION OF THE PRODUCTS OF

FARMERS’ BREEDING

A host of publications has addressed the im-pact of strengthened intellectual property rightssystems and strengthened CBD-based nationalsovereignty legislation on farmers’ practices(Correa, 1999; Crucible II Group, 2000;GRAIN, 2004; RAFI, 1998; Safrin, 2005). Ingeneral, these publications provide a clear ana-lysis, but alternative options have only beenpoorly elaborated. This chapter is an attemptto contribute to some of the concepts developedearlier, starting from the conviction that cur-rently used intellectual property rights systemsare not appropriate to recognize and protectnew farmers’ varieties.

Alternative and collective rights systems mayexist in other domains, or they may need to benewly developed. Two basic justifications canguide the identification or development of pro-tective measures. The first one stems from therecognition of farmers’ contribution to thedevelopment and management of genetic re-sources over the ages. The use of farmers’ vari-eties must be promoted, but only with theapproval and involvement of the original devel-opers of such varieties and the communitiesconcerned. This implies recognition and rewardfor the development of new farmers’ varietiescontributing to the further development of ge-netic resources. Recognition and reward mayalso contribute to self-esteem. The second justi-fication recognizes the concern that misappro-priation of newly developed farmers’ varieties(as well as landraces for that matter) shouldbe prevented. This justification refers to protec-tion in a narrow sense and is defensive innature. A discussion on alternative protectionmeasures should also take into account the po-tential decrease in access by farmers to part ofthe available germplasm due to the new inter-national regulatory environment.

In this context it should be noted that noth-ing in the relevant international agreements,including the WTO TRIPs Agreement, preventscountries from establishing other forms ofintellectual property rights protection or fromexpanding the concept of plant varieties thatmay be protected under breeder’s rights, or


from establishing new forms of protection(Correa, 1999).

In taking worldwide farmers’ culture as a ref-erence, we wish to elaborate on the earlier sug-gestions by Correa (1999). He proposed thatprotection should not be based on an exclusiveright and only grant the right to prevent mate-rial of actual or potential commercial valuefrom being acquired, used or disclosed by oth-ers in a manner that is harmful to the livelihoodof the communities in which the varieties weredeveloped. The author also stressed that ade-quate protection requires a clear definition ofthe subject matter, broad enough to cover alter-ation and improvement, and recognition of theinformal, collective, and cumulative systems ofinnovation of communities. Though many ele-ments of such a regime would be determinedat the national level, its recognition at the inter-national level would be necessary to ensure itseffectiveness.

The Crucible II Group (2000) not only reiter-ated this position by stating that the purpose ofalternative rights systems includes providinglegal recognition for varieties that cannot beprotected under the existing patent and/orplant breeder’s rights laws, thereby recognizingthe value of farmers’ plant variety innovations,but also providing a means of sharing the ben-efits derived from the use of farmers’ or tradi-tional varieties as breeding material and/orfor commercial purposes, and encouraginginnovative plant breeding.

We have argued that in searching for alterna-tive protective measures the concept of intellec-tual property rights is no longer suitable. Whatis needed is an alternative rights system thatdoes not focus on property, but on recognitionand protection. Therefore, we have built onalternative systems, which are already avail-able, and propose the term ‘‘origin recognitionrights’’ for such a system, that may be com-posed of multiple measures. Both the principleof declaration of origin and farmers’ registersmay be part of this system, whereas currentseed legislation may need adaptations to makethe system operational.

(a) Declaration of origin

The recognition of farmers’ contributionsmight borrow from laws that offer protectionto the producer. Legislation for the protectionof producers exists in national laws in a numberof countries, in particular in the form of protec-tion of brand names which have a geographical

basis. In the recent international debate, arequirement for declaration of origin has oftenbeen proposed, but rather to strengthen na-tional sovereignty than as a recognition offarmers’ rights. Nevertheless, the principle ofdeclaration of origin may well be applied forthe latter purpose.

A geographical indication is a label used ongoods that have a specific geographical originand possess qualities or a reputation linkedto the place of origin. Most commonly, a geo-graphical indication consists of the name ofthe locality of origin of the good. Geographi-cal indications are protected in accordancewith national laws under a wide range of con-cepts, such as laws against unfair competition,consumer protection laws, laws for the protec-tion of certification marks or special laws forthe protection of geographical indications orappellations of origin. In essence, unautho-rized parties may not use geographical indica-tions if such use is likely to mislead the publicas to the true origin of the product (WIPO,2005).

The concept of geographical indication isclearly different from that of trademarks, andmore appropriate to protect farmers’ varieties.Trademarks are used to distinguish goods andservices, and give an enterprise the right to ex-clude others from using the trademark. A geo-graphical indication refers to a certain localityand to certain characteristics of the locality ofproduction. It may be used by all producerswho make their products in the designatedplace, and whose products share typical quali-ties. A number of treaties provide for theprotection of geographical indications, mostnotably the Paris Convention for the Protec-tion of Industrial Property of 1883, and theLisbon Agreement for the Protection of Appel-lations of Origin and Their InternationalRegistration, as well as WTO TRIPs (Articles22–24).

The European Union has adopted legisla-tion based on earlier national laws that recog-nize the origin of specific agriculturalproducts, such as wine and cheese. A similarlegislation has been adopted in other coun-tries. This legislation offers protection to theproducers of the community or other entityof origin, since the products concerned mayonly be produced and marketed under thename of and with reference to the region oforigin. But it also offers a guarantee for theconsumer, who can be assured that the prod-uct originates from that region. Although this


type of legislation concerns agriculturalproducts, it could guide the development oflegislation on farmers’ varieties. In fact,implementation of EU Directive 98/95/ECforesees the introduction in the European Un-ion of the concept of ‘‘conservation varieties,’’which includes a declaration of the geographicorigin or of the region of adaptation. Farmers’varieties, products and seeds, could be pro-tected under such legislation, recognizingfarmers of a specific region as the developersof a variety stemming from that region, andreserving the right to market the variety underthat name to farmers from that region. Thered rice varieties of Bohol might be marketedas Bohol Red Paddy, in line with the practiceof farmers to often name a variety after itsarea of origin. Such approach would not resultin ownership over genetic resources, but wouldonly grant collective ownership over the decla-ration of origin. It would give farmers of theregion of origin an edge over farmers fromother regions without preventing other farmersto use and market these genetic resources. Theapproach would neither monetize genetic re-sources nor discourage farmers to share theseresources, but recognize their contributionsas developers. The major difference with exist-ing legislation on geographical indication isthat by applying the concept to farmers’ vari-eties, it would further strengthen the culturalcomponent (the ability to create new and typ-ical diversity) in addition to a physical compo-nent (the place of origin). Such culturalcomponent is already included in existinglegislation, since for agricultural products itis often the place of origin as well as the skillsto produce a certain good in that environmentthat is recognized and protected.

If marketing under such systems were re-served to small-scale farmers, 7 the economicconsequences on farmer’s privilege and thebreeder’s exemption would be small. In orderto promote further development of plant genet-ic resources, any restrictive principles underUPOV may be avoided for this category ofusers, that is, for farmers who make use ofUPOV-protected varieties to develop theirown farmers’ varieties. Most likely, the bree-der’s exemption of UPOV-based legislationshould offer such option already. If in future,such farmers’ varieties would encompass genesintroduced through genetic modification, anexemption from patent rights-based restrictionsfor the use by small-scale farmers might be pro-moted as well.

(b) Farmers’ registers

A national register of farmers’ varieties con-taining name and origin as well as essentialdescriptors of the variety could be a central ele-ment of a system of origin recognition. TheCrucible II Group (2000) suggests that a varietymay be identifiable if, with respect to the char-acteristics of its plants or with respect to a givendistribution of characteristics among plants,it can be identified by a person skilled in theart, and suggests that this interpretation ofdistinctness and identification may allow forprotection of farmers’ varieties, replacing theUPOV requirements for distinctness, unifor-mity and stability, by the principle of identifi-ability.

The current international legal environmentmay not yet be able to exclude misappropria-tion: the protection of a plant variety by a partythat has not developed that variety withoutconsent of the original developer. Implementa-tion of the IT PGRFA and of the Bonn Guide-lines under the CBD, and adaptation oflegislation to document the origin of germ-plasm used in breeding programs and protectedby IPR, should protect new farmers’ varietiesfrom misappropriation, and guarantee theircontinued availability in the public domain. Anational register enlisting the characteristics offarmers’ varieties as well as associated knowl-edge can provide a formal way to prevent mis-appropriation through plant breeder’s rights orpatents by third parties. It provides evidence ofprior existence as well as origin.

However, it can be questioned if such legisla-tion could also be regarded as a sufficient guar-antee to the consumer. This will depend on thecapacity to monitor and control the identity ofseeds marketed by farmers.

(c) A revision of seed laws

There is a general agreement that a nationalseed regulatory regime should respond to eco-nomic, political, and technological factors spe-cific to the particular country, but there isconsiderable controversy regarding the direc-tion of regulatory reform (Tripp, 2002). Inpractice, seed laws often form a barrier to themarketing of farmers’ varieties. In this context,we have argued that seed laws might have to beadapted to allow for the marketing of farmers’varieties that do not fulfil the criteria of dis-tinctness, uniformity and stability as generallydefined under UPOV-type legislation, but that


do fulfil the criteria of identifiability. Extensionof the clause on essentially derived varieties be-yond protected varieties, including all varietiesregistered through plant breeder’s rights orthrough listing in farmers’ registers, may thenprevent unfair competition by seed companiesor public institutions against farmers, in casethe public or private sector attempt to marketnew farmers’ varieties.

At the very least, seed policies should notbe detrimental to efforts to maintain and cre-ate crop genetic diversity on-farm. But evenmore important is that seed policies shouldencompass measures safeguarding and promot-ing the maintenance and development of geneticdiversity on-farm, thus contributing to foodsovereignty, to farmers’ livelihood, and to amore sustainable agriculture (Visser, 2002).

7. CONCLUSION

The global community, through the Conven-tion on Biological Diversity and the Interna-tional Treaty on Plant Genetic Resources forFood and Agriculture, has recognized the con-tribution of farmers to the maintenance of ge-netic resources. Under current conditions, thiscontribution will increasingly include the devel-opment of new farmers’ varieties. Such varietiesneed recognition and protection. Current intel-lectual property rights do not protect farmersdeveloping their own varieties, on the contrarythey are a threat to this practice. Therefore,current intellectual property right legislation

needs re-interpretation, and new forms of pro-tection should be introduced to facilitate thecontinuing contribution of farmers to the main-tenance of genetic diversity. Modern farmers’varieties may have been developed from publicor private plant varieties, and legislation shouldbe adapted to allow this practice to continue,taking into account that it is unlikely to dam-age the market position of the products ofprofessional breeding. In this paper, we havesuggested some options for such protection,taking into account the growing share of mod-ern farmers’ varieties in locally maintainedgermplasm. These suggestions build on the no-tion that farmers’ practices of free exchange ofgenetic resources are culturally based, and thatthese cultures do not regard genetic resourcesas sources of economic reward.

It is important to mention that the abovesuggestions can have various unforeseen con-sequences and therefore these need carefulconsideration (Boisvert, 2003). For example,some have argued that farmers’ registers mayeven increase rather than control the misappro-priation of indigenous knowledge, since theinformation becomes widely accessible whereasmeasures to control misuse are still limited.Also, measures that would relax the require-ments to market farmer-produced seed shouldnot negatively influence the protection thatcan be offered to farmers against poor qualityseed stocks. In all such cases, discussion shouldfocus on the relevant subject material, whichwill increasingly be new farmers’ varietiesrather than landraces.

NOTES

1. http://www.fao.org/biotech/.

2. In this contribution the term formal sector refers toboth public sector and private sector.

3. www.pedigrea.org.

4. The term pre-breeding is used here to indicate theintroduction of desired traits from various sources in thegenetic background of one or more cultivars.

5. The UPOV (International Union for the Protectionof New Varieties of Plants) convention is an interna-tional agreement on the principles and conditions forplant breeder’s rights. As such it is the major sui generis

intellectual property right system in the field of plantbreeding. According to the WTO TRIPS agreement,countries are obliged to adopt a patent system or a sui

generis system to allow for the protection of the productsof plant breeding.

6. A variety is considered ‘‘essentially derived’’ fromanother variety when it is predominantly derived fromthe initial variety by selection in a population (beinga protected variety), by selection of a mutant or asomaclonal variant, by repeated backcrossing or bytransformation through genetic engineering. The newvariety must be distinguishable from the initial variety,and except for the differences which result from the actof derivation, conform to the essential characteristics ofthe initial variety.

http://www.fao.org/biotech/

http://www.pedigrea.org


7. Although here the term small-scale farmer is used ina general sense, in a law such term would have to be

defined. A legal definition of small-scale farmer might bebased on acreage, income or marketed seed volume.

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Protecting Farmers’ New Varieties: New Approaches to Rights on Collective Innovations in Plant Genetic Resources