Bulatlat.com

Signed into law only recently by President Gloria Macapagal-Arroyo, the Plant Variety Protection Act of 2002 gives breeders and foreign TNCs the right to exclusive use of plant varieties that for centuries have in fact been bred by Filipino farmers. Organized farmers and scientists say foul and are calling for its repeal.

Time and again, people are subjected to laws, which the “lawgivers” claim, were designed to protect those who obey them. Yet these same laws cripple those who are under them and protect only the lawmakers and other vested interests.

This is precisely the query of many Filipino peasants as the Philippines adopt a so-called plant variety protection (PVP) system through the passage of Republic Act 9168 or the Plant Variety Protection Act of 2002.

Even before it was signed into a law last June 7 by President Gloria Macapagal Arroyo, ecologists and farmer organizations had expressed apprehension on the negative effects of the PVP system and the government’s effort to integrate it into the local agriculture.

A PVP is an administrative procedure which an applicant complies with to secure a form of intellectual property right called the “plant breeder’s right.” This right is a recognition of the efforts of the mind, or work of intellectual creation, as applied on plant varieties transformed through breeding, whether done the classical way or through the use of modern technology such as genetic engineering.

The plant breeder’s right is a form of exclusive right that enables the owner of the right to stop anybody from exploiting or using the protected plant variety without any permission or license from him or her.

PVP seems to be a novel trend, but the fact is that there were bills filed in Congress before on the adoption of this kind of system in the country. Most of them were based on the 1991 version by the Union for the Protection of New Plant Varieties (UPOV), a non-binding international convention on plant variety protection composed of 50 member countries.

The PVP system is, however, in compliance with the Trade Related Intellectual Property Rights Agreement (TRIPs) under the General Agreements on Tariff and Trade/World Trade Organization (GATT/WTO).

Under the law, a breeder is defined as: 1) “the person who bred, or discovered and developed a new plant variety;” or 2) “the person who is the employer of the aforementioned person or who has commissioned the work;” or 3) “the successors-in-interest of the foregoing persons as the case may be;” and 4) “the holder of the Certificate of Plant Variety Protection.”

With this clear-cut definition, RA 9168 does not regard farmers as breeders. Under the law, “breeders” include institutions and corporations, as well as foreign entities, but not the small farmers who have continuously bred crop varieties for millennia.

In a statement, the militant Kilusang Magbubukid ng Pilipinas (KMP) said that the PVP system, if implemented, would undermine the right of small farmers to save, conserve, plant, exchange and sell farm-bred seeds.

Section 4 of the PVP Law states that a PVP certificate shall be granted for varieties that are new, distinct, uniform and stable. New, in the sense that they must not have been commercialized prior to certain dates established by reference to the date of the application for protection of the variety sought to be protected. Distinct, meaning the variety must be different in at least one important characteristic from any other known varieties at the time of filing of the application for PVP. A variety is uniform if it shows little variation from one plant to another. A variety is table when it has the ability to maintain the characteristics sought to be protected over time from one generation to the next.

In a recent forum held at the College of Social Work and Community Development in the University of the Philippines in Diliman, Quezon City, Neth Dano, executive director of South East Asia Regional Initiatives for Community (SEARICE), said that this criteria does not assure better quality seeds or higher production for farmers since most farm-bred seeds cannot meet these criteria.

"Hindi nauunawaan ng mga gumawa ng batas na ang mga magsasaka'y lumilikha ng iba't ibang uri ng pananim. Ganito na ang pananaw nila maski noong panahon na nila-lobby namin ito sa Kongreso" (Lawmakers are unaware that farmers create varieties of plants. They showed this attitude even at the time we were lobbying against the bill), Dano said.

According to KMP, this standard is designed to cater to the requirements of intensive industrial crop production where uniformity assures industrial efficiency but to ensure food security. "The (DUSN) criteria do not mean better crop varieties for farmers not guarantee higher productivity," it said.

“As experienced by other developing countries, plant variety protection only leads to monopoly control over seed development by transnational corporations (TNCs),” KMP also warned.

Meanwhile, Sibol ng Agham at Teknolohiya (SIBAT), a science and technology NGO, says that the purpose of the PVP system is for agrochemical TNCs to secure ownership, use and distribution of developed genetically modified (GM) seeds.

In a statement, SIBAT said: “The potential impact of PVP Law is the creation of a preferential market for patented seeds, and thereby the creation of conditions for highly concentrated control of the seed market by the TNCs. The law restricts the rights of farmers to exchange and reuse these seeds, or effectively removes seed stewardship from farmer’s hands. The law will increase the dependence by farmers on breeders for seeds. Patented seeds are more expensive and this threatens the farmers economically.”

At present, there are five companies who lord over the world’s market for commercial seed. Seed companies such as US-based DuPont and Monsanto, for instance, together command 41% of all significant agricultural biotechnology patents and carve up about 93% of the GM seed market worldwide. These companies also dominate the pesticide and agrochemical industries.

SEARICE data also revealed that in Third World nations bearing PVP certificates, more than 90% are in the name of corporations and foreign institutions. Most of these were issued to varieties like ornamental flowers. In Japan, only 20 out of the 600 PVP certified rice seeds are planted by their rice farmers.

In order to resist the negative effects of the PVP system to the livelihood of farmers, Dano suggests that traditional seeds used in the communities be registered or enlisted under the Intellectual Property Rights Act. Community registry would help legitimize certain knowledge, processes or products as public property and thus, cannot be owned by private sectors.

To ensure that the country's food security will not be threatened, the government must draw up a list of food and staple crops to be excluded from PVP's coverage.

But above all of these, as KMP always asserts, the government must adopt a genuine agrarian reform program in order to break the monopoly of seeds by a handful of TNCs.

Following is a comparative study by SEARICE, which illustrates the adverse impact to farmers of the PVP system.

BEFORE THE PVP SYSTEM	WITH PVP SYSTEM
1. freedom to choose what to plant—at present, farmers can freely decide what to plant, depending on availability of resources	freedom of choice is limited as it now depends on farmer’s capacity to pay for the PVP-certified varieties—the enactment of the PVP law will further limit farmer’s choices of planting materials since only PVP-protected seeds might qualify for crop insurance loans and other government services, which can pressure farmers to shift production to only PVP seeds
2. freedom to exchange seeds with other farmers—this practice, which has been going on since agriculture started, is prevalent in 80% of most farmers in developing countries	farmer exchange is limited—exchange of seeds between and among small farmers is allowed but under conditions set by a national government body. It is possible that small farmer exchanges that do not come under the rules prescribed by this body will be declared illegal.
3. free access to seeds—farmers traditionally exchange planting materials with other farmers. These exchanges are generally free or follow different forms of barter rules	seeds need to be bought every cropping—farmers need to buy PVP seeds if they decide to use these. Since, as a rule, they are not allowed to use harvested materials from the protected seeds that they buy, they need to buy new seeds every planting season.
4. recovery from bad harvests easily done—farmers can easily borrow planting materials from his fellow farmers in case of bad harvests	Recovery from bad harvest difficult—a farmer who loses out in one cropping of PVP-certified seeds finds himself saddled with debts
5. seeds are freely shared and exchanged—there are no legal impediments governing the traditional sharing and exchange of seeds among farmers	farmer may be jailed if he uses PVP-certified seed without any license from PVP certificate holder—the law provide that violators may be imprisoned for 3-6 years and fined with not less than P100,000
6. seed saving possible—brings three potential benefits: lower seed costs, access to informal credit, and a braking effect on the prices of fresh seed	right to save seed not clear—seed saving is strictly for non-commercial purposes and subjected to conditions determined by a national body
7. small farmers can use any planting material that they want or need, without any restriction	small farmers allowed to use harvesting materials as propagating materials in their own landholdings—small farmers are allowed to use harvested materials from protected varieties as propagating materials in their OWN landholdings. This excludes farmers who do not own the land that they till. Even for those who own the land that they till, the use of harvested materials from protected varieties is limited to a specific area to be determined by a government body
8. no need to pay any royalties or license fees	as a general principle, farmer will pay royalties on every purchase of PVP-protected seeds—the law allow the PVP certificate holder to lay down other conditions and limitations in addition to the payment of royalties
9. farmers can sell seeds without restrictions	farmers are prohibited from selling protected seeds including planting materials that they harvest from protected varieties
10. farmers can grow seeds obtained from anywhere	only licensed growers can multiply the variety for sale
*Source: Mang Gimo and the Plant Variety Protection System by SEARICE (March 2002)*