How Seed Laws Make Farmers’ Seeds Illegal

A new report examines how farmers' basic right to replant is under renewed threat from corporations and governments.

Photo Credit: Cora Mueller/Shutterstock

Each time a farmer plants a seed, the crop that emerges bears more seed. It’s this utterly familiar, yet exquisite turn of nature that melds farmer knowledge, seed biology, and landscape ecology into what we’ve come to know as the making of food.

When I started to research plants, 15 years ago, I’d hoped to engineer crops with improved agronomic qualities for farmers and nutritional traits for eaters – from flood-resistant rice to biofortified bananas. Today I’m more interested in plant and farmer co-evolution: how rural communities learned to cultivate crops, selecting seeds from plants they preferred, thereby changing the  genetic structure of food crops. The seeds, in turn, nourished the very farmers who bred them.

For generations, this biological cycle of seed reproduction also held capital at bay, against theories predicting a linear progression from small-scale peasant agriculture to a system not so different from the oil, garment, or automotive industry. As long as farmers insisted on saving their seed, there was not much profit to be had in the business of plant reproduction. After all, who wants to buy more of a product that spontaneously creates more of itself?

But those familiar with Monsanto, Syngenta, or Dow know how this story played out.  Plant patenting and crop hybridization from the 1930s onward worked to interrupt farmers’ ability to regenerate their own seed, combining law and biology to turn a ‘commons’ into something that must be purchased anew each year. Today, the seed industry is amongst the most concentrated branches of the agrifood system, with just four companies controlling 56% of the proprietary seed supply.

They do not, however, exert such dominance over non-proprietary germplasm. Farmer-bred seed known as landraces continue to be actively sown, grown, exchanged, and multiplied by the majority of smallholders around the world – an estimated 1.5-2.5 billion people. Such landraces not only provide local communities with yield stability, economic resilience, and dietary diversity, they form the backbone of crop genetic diversity on which we all depend.

Yet a new report by La Vía Campesina and GRAIN calls attention to ways in which peasant seed systems are under renewed threat by corporations, governments, and international partnerships such as the G8 Alliance for Food Security and Nutrition. The report is fascinating as a set of case studies alone – region by region, country by country – documenting stories of elite overreach and local resistance.  In many ways, these themes are as old as agriculture itself. Newer to me, and, I suspect, to many folks, will be how a complex mélange of laws, from intellectual property to seed marketing to international trade, work in concert to restrict the very thing a farmer holds most dear: the simple right to replant.

It also sheds light on emergent possibilities for laws that reimagine the seed as part of regenerative farming systems – away from private property and individual innovation, and towards a collective and shared heritage of farmer knowledge, old and new.

Who Owns the Seed?

Most of us are familiar with the patent. In the same decade that the first hybrid corn was created by US breeders, Congress passed the 1930 Plant Patenting Act, for the first time sanctioning the use of a patent on plant life. The 1930 version, however, only applied to asexually reproducing plants – in other words, not the main food crops of agriculture, which propagate sexually. Not until 1985 was the patent extended to include all crops. These utility patents, unlike the earlier version, applied not only to the whole plant organism and to their seeds, but also to cell, genes, and DNA sequences.

The strictest form of intellectual property there is, utility patents recognize plant breeders and engineers as the creators of ‘new inventions,’ giving them exclusive rights to the genetic materials for a number of years (usually 20). It affects researchers and farmers alike, neither of whom can access seeds without the permission of the patent holder – with scientists paying the costs of licensing fees, and farmers the price of a seed packet (in effect, farmers are not purchasing ownership of their seed; they are paying royalty fees).

The patent is much maligned, but it is not the only or even most important form of intellectual property facing smallholders around the world, nor is IP the only legal maneuver of concern. Marketing regulations, trade and investment agreements, and biosafety laws all combine to form a pastiche of policies that promote the interests of agribusiness networks as they make ambitious forays into the territories of farmer-saved seed.

Plant variety protection, or PVP, developed in Europe in parallel to the US patenting system. Sometimes called “breeders’ rights”, these protections initially granted fewer powers than the patent. When several European states came together in 1961 to form the Union for the Protection of New Plant Varieties (UPOV), the convention they forged granted plant breeders the right to prevent anyone else from producing seeds for commercial purposes. But some exclusions were granted to farmers; they could still save and reuse seed. The UPOV convention has undergone many revisions, however, and since 1991, while scientific research is still allowed on PVP seed, farmers are now prohibited from saving and reusing such varieties.

UPOV and breeders rights may seem like a foreign language to many folks in the diversified farming movement. But it should become a lingua franca. Because of the reach of the UPOV convention – some 72 countries, including the US, are now members – it figures deeply into the future prospects for African, Latin American, and Asian smallholders. Many developing country governments are being pressured to join UPOV through multi-lateral free trade agreements (like NAFTA), bilateral treaties, and other foreign aid contracts. In so doing, they agree to institute national level plant variety protection protocols, effectively recognizing scientists and makers of seed, while ignoring the historical and ongoing contributions of farmer knowledge and farmer work.

The Rules of the Trade

What makes UPOV and breeders’ rights especially tricky is the way they work in concert with other large scale systems of governance and policy. In particular, trade and investment agreements are now being used to strongarm developing nations to effect policies promoting the seed industry, and actively demoting farmer-bred and local varieties. Nearly all countries are now part of the World Trade Organization (WTO), whose Trade Related Aspects of Intellectual Property Rights (TRIPs) requires that all member nations adopt “minimum standards” of intellectual property protection.  Countries are fulfilling this requirement by joining UPOV, establishing PVP laws and, in some cases, even stricter national-level laws for IP protection.

Trade laws and investment agreements also work against farmer seed by restricting state procurement. A program like the US “Farm to School” initiative might be rendered illegal if seen by foreign companies as offering an unfair trade advantage to local growers. The impact on rural livelihoods and biodiversity is especially great when local food is grown from local, farmer-bred seed. In Brazil, for example, the state is one of the largest purchasers of farmer creole varieties; it purchases the seed and distributes it for free to peasant growers, bypassing the market.  WTO standards – and now potential agreements like the Trans- Pacific Partnership – threaten to undercut such programs, since ‘buying local’ (food and seed) could become grounds for suing national governments for trade violations.

You might wonder, however, why PVP, patents, UPOV, and the like matter so much when these apply to proprietary, commercially produced seed? If the intent of intellectual property is to protect the innovations of breeders and industry – i.e. industrial seed – why can’t small farmers get around these restrictions by using only their traditional landraces?

One reason is the growing ubiquity of industrial seed varieties.  Even peasants in far-flung locales seldom escape pressures (from markets and government development programs) to adopt high yielding modern crops. Many small farms are also physically surrounded by industrial agriculture, raising the risk that pollen or whole seeds will be carried by birds, insects, and wind. If proprietary germplasm sprouts on a peasant farmer’s plot, she can be fined or even jailed for property theft.

A second reason is bioprospecting, or ‘biopiracy,’ as it’s more evocatively known. Referring to the exploitative appropriation of indigenous knowledge and genetic resources by commercial interests, bioprospecting is as old as colonialism, but is gathering new force with enabling seed laws. Farmers from Mexico to Madagascar, Peru to India, Gabon to Nepal, have found seeds clearly identical to their indigenous landraces showing up on market shelves stamped with plant variety protection. In some cases, names are changed to obscure the heist. In many cases, however, the traditional name is not obscured at all: marketers count on recognition of popular traditional varieties to sell more seed. Some laws have gone a step further to directly promote bioprospecting. Such is the case in Ghana, where students and trade unions have joined smallholders in mobilizing against a particularly pernicious PVP bill, the law states that  “in absence of proof to the contrary”, breed­ers can be assumed to be the owners of a variety in question. By these rules, breeders, but not farmers, become the default ‘owners’ of seed.

Bioprospecting speaks to the larger reason that intellectual property is so insulting to many traditional farmers. An ‘industrial seed’ is actually a ‘landrace seed,’ after a few degrees of manipulation. Every innovation that industry now makes – whether through classical breeding or genetic engineering – begins with materials that have been accreted through millennia of farmer-environment co-evolution. The intellectual content of seed, then, represents not an individual’s knowledge but knowledge held collectively by rural communities; it represents a collective body of knowledge and practice over time and across the worldwide geographies over which seed has migrated, traveled, and been exchanged. By contrast, IP recognizes as significant only the individual’s contribution; it values only the most recent genetic tweak.

Can I Bring My Seed to Market?

The third reason that farmers cannot simply ignore agribusiness and quietly grow their own landraces is yet another type of seed law – a marketing law.  The oldest and most traditional type of seed rules, these legislate what kinds of seeds can enter the market. As the report describes it, in countries that have adopted “compulsory catalogs,” seeds are allowed to enter the market only if they fulfill criteria of “distinctiveness,” “uniformity,” and “stability” (DUS). These criteria discriminate heavily against farmers’ landraces, which are neither stable or uniform. Such marketing laws are also inimical to organic and agroecological production, which demand seeds genetically diverse enough to adapt to locally specific social needs and to the web of interactions at play within complex soil, insect, plant, and livestock communities.

“DUS criteria,” which apply to both marketing laws and intellectual property, are another good example of jargon threatening to make one’s eyes glaze over. Opaqueness and legalese work in favor of disempowering smallholders. For this reason, many of the current mobilizations on the ground are attempts by peasant organizations to teach farming communities the language and logic of the law –  to make such terms as IP, DUS, UPOV, and PVP familiar to the people who will be most affected.

For example, the report notes, in Costa Rica farmer groups and their allies “managed to turn UPOV ’91 into a household name by organising hundreds of small meetings in communities, churches, schools and universities in order to explain the consequences of UPOV ’91.”  These efforts managed to force a referendum on the Central American Free Trade Agreement (CAFTA), long after most Latin American countries had signed onto the trade pact.

Making Peace with Policy

Intellectual property rules, trade and investment policies, and marketing rules, are today creating a Rube-Goldberg-like contraption over which farmers have little political power. Its sprawling legal parts often leaves farmers stultified over how, where, and by whom seed is accessed, and for what purposes.

Resisting the current trajectory of seed law will invariably take on many forms. As in Chile, such activities might include demonstrations; media campaigns via internet, radio and television; workshops in the cities and in rural com­munities; and meetings with church leaders and with government officials. It will  involve farmers, students, researchers, and NGOs working on multiple fronts to overturn existing laws and campaign against those in the legislative pipeline.

Will resistance also involve creating new and different seed laws? On this front, the booklet’s authors remain skeptical. Fighting policy with policy holds the ambition of ‘using the tools of the master to overcome the master.’ But farmers’ rights can’t be distilled to contractual “exclusion,” “exemption,” or “privilege,” they emphasize. All too often,  a promising policy change becomes collapsed into a form that reinforces the status quo: where the law protects farmers rights, for example, but only with a special legal permit; or when community rights are acknowledged, but only after a community accepts the IP rights of corporations.

I’m an ounce more sanguine about policy prospects; ‘the law’ is not intrinsically bad for farmers, but it matters fundamentally how the law is shaped, with whose participation, and on what terms. As the law is an instrument of state power, it reflects on whose behalf the state tends to intervene. Today, governments are oftentimes siding with corporations, prioritizing the needs of ‘corporate persons’ over those of public citizens, including local farmers and local agriculture. What matters, then, is how to tip the balance that determines on whose behalf the state intervenes.

A glimmer of these workings can be seen in Venezuela today. Here, a national seed law will soon be voted on in parliament.  Known as the Peoples Seed Law, the bill is more than a decade in the making but its current skin was developed through a series of popular consultations held between 2013 and 2014 involving more than 250 grassroots organizations The proposed bill states upfront that “seeds are living organisms whose rights should be recognized.” It rejects any claims of intellectual property over seed (patents and PVP alike), and places marketing rules on industrialized crop varieties, but excludes farmer-bred seed from having to fulfill ‘DUS’ criteria.

The bill also makes a progressive appeal to acknowledge local people as guardians (garantes) of “local, peasant, indigenous and afrodescendant seeds”.  In their hands and with their power (poder popular), it proposes, peasants seeds will be part of a larger strategy in Venezuela slowly breaking away from the petro-economy and beginning to investigate sustainable farming and food sovereignty. To this end, the bill recognizes “conucos” – a polycropping method – as the best means of conserving biodiversity and puts firm restrictions around the importation, planting, and marketing of GMOs. Recognizing social and collective property (as opposed to private property) it sets out a system of free sharing licenses to govern seed access (the licenses treat seed as a protected commons, allowing everyone to freely use seed. The only restriction is that no one can restrict others from similarly partaking; in other words, it prevents privatization and the problem of ‘free appropriation’). Finally, it sets out a People’s Seed Plan (plan popular de semillas) to continue developing peasant varieties based on agroecology, highly biodiverse landscapes, and farmer-breeder participatory research.

Such bills, even if they make it into law, face an Everest of obstacles when it comes to implementation. But these legal bubblings – and the wider array of resistances documented in this booklet by LVC and GRAIN – point to a salient takeaway.  That the best way to defend seeds is to grow seeds. That the most subversive action is to give seed, exchange seed, pull seed up from the earth, and return it to the ground. Which means, in turn, that agriculture is essential for the cycle of seed reproduction to continue. As these authors put it pithily: “Keeping farming systems alive is the best way to keep seeds alive.”

Maywa Montenegro is a PhD candidate in Environmental Science, Policy and Management at UC Berkeley, with a masters degree in science writing from MIT. Her research focuses on seeds, agroecology, and food system diversity, with writings on these topics and more appearing in Gastronomica, Earth Island Journal, Seed Magazine, Grist and the Boston Globe. Follow her on Twitter @MaywaMontenegro

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