Dispute over food security

At its core, a patent is understood as a contract between an inventor and society. It gives patent owners a limited monopoly on the use of their innovations and assumes that this approach serves society too. For the system to work, inventors have to publish the results of their work and the state must then protect their intellectual property rights. This is the basic idea of the WTO’s agreement on Trade-Related Intellectual Property Rights, or TRIPS for short.

All WTO members are bound by TRIPS. The agreement is modelled after US law on intellectual property: it protects discoveries in all fields of business and technology through patents – and that even applies in fields that affect basic human needs such as medicine, agriculture and food.

TRIPS, however, also accepts other forms of protection of intellectual property for plant varieties. They are called “sui generis” laws and follow their respective own logic. Over the past decades, the European seed industry created such a sui generis system to protect plant varieties. This system serves the specific needs of the industry better than patents do. The rules are defined in the Convention of the International Union for the Protection of New Varieties of Plants (UPOV).

The first UPOV Convention was signed in 1961. The currently applicable standards were agreed upon in 1991. The reach of the UPOV convention has stretched way beyond Europe, in part because this system was promoted as a TRIPS-compatible option for protecting plant varieties.

One important difference between patents and the UPOV system is called “breeders’ exemption”. It guarantees all breeders the right to use protected varieties as breeding material. Both commercial breeders and farmers can exercise this right.

In addition, the 1991 version of the UPOV Convention recognised a “farmers’ privilege” that authorises farmers to use their own harvested material of protected varieties as seed in the next planting season. Before, this issue was not regulated. The 1991 Convention, however, does not constitute any international legal standard. It is the responsibility of the member states to define and implement the farmers’ privilege in national law, which, moreover, has to take account of the “legitimate rights” of breeders too. For practical purposes, many countries allow only small farmers to use a part of their harvest as seed.

The enforcement of intellectual property rights can trigger conflicts in developing countries, including in agriculture and food markets. Traditionally farmers always used part of their last harvest as seed for the next one. They exchanged seed with one another, and thus bred new varieties. The industrial countries have spread the notion of strictly separating the harvest into seed on the one hand and food stuff on the other. This notion, of course, is alien to farmers in poor countries.

In emergency situations, cereals received as food aid, in particular maize, are used as seed even if they are from hybrid varieties. In southern Africa, transgenic corn from aid deliveries from the USA has thus contaminated the regional gene pool.

Entrenched positions

Food prices rose dramatically worldwide in the past few years, and the number of people suffering from hunger and malnutrition swelled to about one billion according to the FAO (from about 850 million before). Therefore, debate on the link between food security and intellectual property rights has become recurrent. The issue, nonetheless, played no immediate role in the final declaration of the FAO World Summit on Food Security last October. While the declaration indicates a preference for more public investment and research which could be done without protection of intellectual property rights, it also calls for more private-sector investments.

The implication of the right to food is controversial. For years, two opposing views have dominated:
– Proponents of the first school argue that food supply problems are best solved by the use of new technologies and production methods. If farmers used modern seeds sufficiently and timed out their harvests properly, there would be more than enough food for everyone. This view is held by multinational life-science corporations, and governments of rich countries tend to share it.
– Proponents of the second school oppose that view. They demand an appropriate socio-economic environment that would allow farmers to supply enough food for themselves, their families and the markets. Civil-society organisations, religious and humanitarian aid agencies as well as grassroots movements in developing countries tend to promote this approach.

Supporters of the first school tend to be in favour of a strong protection for intellectual property, because that is what motivates breeders to develop high-yielding varieties. On the other hand, those who support the second perspective view intellectual property rights skeptically because they limit farmers’ autonomy and freedom of choice.

Those who believe in the virtues of technology do not consider the food crisis a reason to review the systems of intellectual property protection. At the FAO summit, some of them presented models on how to provide farmers in poor countries with patent-protected seed at favourable conditions with the goal of fighting hunger and poverty (FAO High-Level Expert Forum 2009).

In practice, however, three factors prevent a flexible handling of intellectual property rights:
– International bodies, such as the WTO and UPOV, prescribe strong and mandatory minimum standards,
– the commercial seed industry has been calling for even stricter rules for years and
– governments of rich nations and their business lobbies pressure developing countries into free trade agreements that mandate the protection of intellectual property beyond the TRIPS obligations.

Well-founded criticism

Among scholars, the thesis that the impetus to self-determined development and the protection of intellectual property go hand in hand is disputed – to put it mildly. Many studies have concluded that there is virtually no positive correlation between establishing self-sustained economic growth and ensuring protection of intellectual property rights.

The provisional conclusion of economist Fritz Machlup in a 1958 report to the US Congress is still relevant today. He argued that, based on the science of his time, no economist was likely to know for sure whether the patent system was beneficial or detrimental to society. He therefore opposed the introduction of his age’s patent system in developing countries.

The Commission on Intellectual Property Rights (CIPR), established by the UK government, came to a similar conclusion in 2002. According to the CIPR, to be development-friendly systems must be flexible – as they were before TRIPS. The Commission deplored that today’s developing countries – unlike Switzerland, South Korea or Taiwan in the past – are unable to establish a genuine indigenous innovative capacity through imitation and reverse engineering.

With respect to agriculture, the CIPR wrote: “The speed of concentration in the sector raises serious competition issues. There are considerable dangers to food security if the technologies are overpriced to the exclusion of small farmers, or there is no alternative source of new technologies, particularly from the public sector.”

A 2008 study by the World Bank took the same view in respect to China. It warned that the growing commercialisation of public research was leading to the confusion of previously separate fields as well as to a departure from the goals of food security, poverty reduction and environmental sustainability.

The agriculture experts who believe in public and participatory plant breeding demand that laws and procedures around intellectual property rights be weakened. To fully avoid the topic, some advocate open-source models of seed cultivation. It has, however, been proven that such approaches do not suffice to protect communitarian property rights when improving landraces through modern breeding methods in participatory programmes, for instance.

A study published by the International Food Policy Research Institute (Salazar et al, 2006) highlighted four essential goals:
– ensuring recognition of community innovation,
– making access to relevant plant genetic resources possible for farmers’ breeding,
– ensuring the continued availability of plant genetic material and
– creating an effective system of benefit sharing.
As a new alternative form of protection, the authors propose a “right on declaration of origins”.

Alternatively, specific areas of traditional knowledge and innovation systems could be completely excluded from the system of intellectual property rights. This is what representatives of many indigenous peoples in the TRIPS and WIPO (World International Property Organisation) have been striving for indirectly in the “No patent on life” campaign. They have announced they will reinforce that stance, after not having succeeded in getting such a clause included in the UN Declaration on the Rights of Indigenous Peoples in 2007.

Plant genetic resources

The discussion is further complicated by the fact that all high-tech strategies depend on the plant genetic information of the traditional landraces that farmers have been cultivating for centuries. These varieties are adapted to specific local circumstances (pests, water supply, weather and so forth) and those properties are important for breeding new varieties. Gene banks store the seeds of landraces, but since natural evolution never stops, this kind of “ex situ” conservation will not do in the long run. Landraces must be cultivated in the fields, “in situ”.

This is exactly what small farming communities have done in the rural areas of developing countries for century after century. Modern and traditional systems must therefore be carefully balanced out, warns Olivier De Schutter, the UN special rapporteur on the right to food. A linear model of progress is plainly inadequate.