Farmers' rights/Farmers' varieties (13/12/2002)

13 December 2002


1.GE rice? Take a look at farmers' varieties
2.SYNGENTA FOILED - Victory or Temporary Lull in Hostilities?
3.Biotech, Schmeiser feel fallout of ruling


1.Genetically engineered rice? Take a look at farmers' varieties

Soni Mishra, Hindustan Times
New Delhi, December 12

Even as the government is keen on introducing genetically engineered varieties of rice which are drought, flood and salinity resistant, environmentalists want the focus to shift to the numerous farmers' varieties capable of beating the severest of environmental conditions.

Making genetic engineering seem like a laggard technology are the indigenous rice varieties that can withstand the severest of climatic conditions. Sample this: West Bengal alone grows 78 varieties of rice that are suited to dry conditions, according to a 'Register' prepared by the NGO Navdanya as part of its movement to fight for farmers' rights on seeds.

Farmers of Uttararnchal are not far behind and they grow around 54 drought-resistant varieties of rice, which have been conserved through regular growing and consumption.

In Kerala around 40 drought-resistant varieties have been developed while Orissa, notorious for starvation deaths, is also the home to a few drought-resistant varieties of rice.

"We have, along with farmers communities in nine states, collated the varieties over a 15-year period to create awareness about the varieties and to stress on the need to conserve them", says Vandana Shiva of Navdanya.

According to the Register, farmers in India have also developed rice that can survive submergence of over 12-15 days while two to three days of submergence is enough to kill ordinary rice.

As for resistance to salinity, what tougher test for rice than to be grown in the salt-rich mangrove lands of West Bengal. There are three varieties grown in the tidal waters of the mangrove area, which can bear up to 14 per cent salinity. And the soil is so fertile that the crop needs no attention from the farmer, who after transplanting the paddy can abandon it till harvest time.

Orissa, Kerala and Karnataka too grow a wide variety of salinity-resistant rice cultivars, according to the bio-diversity register.

Where these varieties score over genetically-engineered ones is that they are in sync with the ecology. After all, farmers have tried and tested them over hundreds of years, says Shiva.

Whereas the effects of genetically-engineered rice varieties on the ecology is not so well understood, she says.

Moreover, the farmers' varieties, if not used regularly, would go extinct, as did a number of such cultivars during the green revolution which made thousands of indigenous varieties, that were not only capable of withstanding harsh climatic conditions but also gave consistent yields, extinct.

While Dr S U Zaman, principal scientist, Indian Agricultural Research Institute, plays down the fear of transgenic rice varieties, saying there is a universally recognised bio-safety procedure that any new variety goes through before it is introduced, he cautions that thought needs to be given on how to conserve indigenous varieties at the same time.

Hence, he says, a comprehensive system needs to be formed wherein indigenous varieties exist alongside new varieties: "If time-tested study, traditional varieties are available in an area, it does not need transgenic varieties. Accent should be on providing new varieties to farmers who do not have access to good indigenous cultivars," says the rice expert.

Another argument against the use of genetically engineered varieties, to be provided by multinational seed-developers, is that they are not really creating them but merely taking genes from the varieties evolved by farmers over time and repackaging them.

"It is a case of intellectual piracy: genetically engineering rice with genes taken from farmers' varieties and then going on to claim a patent for it under the Intellectual Property Rights regime is a form of intellectual piracy and biopiracy," says Shiva.

Shiva cites as an example the patent claim of the US company RiceTec on a variety of basmati rice which derived its genetic material from basmati grown by Indian farmers.

The patent would have made it illegal for anyone else to grow rice with similar characteristics as well as call it `basmati'. But a global campaign launched by Navdanya and the Research Foundation for Science, Technology and Ecology led to the claims being struck down by the US Patent and Trademark Office in August 2001.

"The Register is not a simple act of documentation. It is part of our movement to create the awareness that the rice varieties developed by farmers are theirs and to protect them from being stolen by multinational seed companies," says Shiva.


2. SYNGENTA FOILED - Victory or Temporary Lull in Hostilities?

[via AgBioIndia Mailing List]

Dear AgBioIndia

Thanks for your consistently high quality information. The news of this victory over Syngenta's biopiracy is welcome, but we must all remain on-guard - the International Seed Treaty is threatened!

(Note: AgBioIndia reports on Syngenta's attempted capture of the valuable rice collection - also on www.ukabc.org/iu2.htm)

Syngenta's foiled attempt to privatise a valuable collection is perhaps but one in a long line of what can be expected as the International Seed Treaty (IT PGRFA) gets nearer to coming into force.

Not just National Collections but also CGIAR genebanks will come under increasing pressure from MNCs, in the next year or two, to exchange the genetic resources in genebanks under public and CGIAR control for traitorous pieces of silver.

Genebank managers have no right nor permission to sell these genetic resources. They are not their "property" - they have been given by farmers to scientists and other collectors in good faith that they will be held in trust for the benefit of humankind - not a private entity.

The Treaty still has ambiguities in its agreed text that will only be resolved once the Governing Body is formed after it comes into force. These ambiguities include whether or not Intellectual Property Rights (IPRs) can be taken out on the genetic resources in the 'Multi-Lateral System' (MLS) i.e. those 35 genera of food crops, including rice, wheat, maize and potatoes, and 29 forages covered by the MLS in its Annex 1.

Article 12.3(d) states: "Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System;".

As "Plant genetic resources for food and agriculture" (PGRFA) are defined in the Treaty's Article 2 as "any genetic material of plant origin of actual or potential value for food and agriculture", it should be quite clear that IPRs are NOT allowed on these genetic resources.

However, the eminent Commission on Intellectual Property Rights, set up by the UK government, has already jumped the gun and has interpreted Article 12.3(d) as meaning that patents can be taken out on genes derived from the seeds kept under the rules of the MLS.

"The crucial words "in the form received" mean that material received cannot be patented as such, but they do allow patents to be taken out on modifications (however defined) to that material." (CIPR report Ch 3)

This cannot pre-empt the Governing Body's ruling but is a naked attempt to influence it. Maybe this is why the US has now signed the Treaty and may even ratify it so that they can ensure the Governing Body rules in favour of this privatisation interpretation. And if, for Syngenta, their support to the Treaty is a way of getting free access to genes that they can then privatise, this undermines the very basis of the Treaty - to ensure the free-flow of plant genetic resources for food and agriculture. The Governing Body needs to be alert that the UK interpretation of Article 12.3(d) is not acceptable.

But there is worse. The Treaty's MLS only covers those collections "that are under the management and control of the Contracting Parties and in the public domain." (Article 11.2).

It goes on to commit Parties "to take appropriate measures to encourage natural and legal persons within their jurisdiction who hold plant genetic resources for food and agriculture listed in Annex I [the 35 crop genera and 29 forages] to include such plant genetic resources for food and agriculture in the Multilateral System." (Article 11.3).

It continues to commit Parties to a review after 2 years to see if these 'natural and legal persons' have complied and if not, to consider preventing them from having further access to the MLS in future.

So, if you were an inveterate biopirate, what would you do? In the year or two before the likely coming into force of the Treaty, you would attempt to gain control of as many genebanks as possible, taking them out of the public domain. You would then be able to continue privatising genes to your heart's content. And if you did not then put these collections back into the MLS and the Governing Body shut you out from further access, who cares; you would already have most of the resources under your control. Bingo!

Therefore, we must all be very vigilant that there is no further privatisation of any genebanks or other genetic resources currently in the public domain and in the CGIAR collections, as ratifications of the Treaty proceed. Once it comes into force, the Governing Body can then rule that the material in the MLS is safe from privatisation and all can have access to it, in perpetuity.

But remember, the Treaty is not just about protecting genes from privatisation, which it needs to be much clearer about, it is also about the conservation and sustainable use, especially in situ and on-farm, of all PGRFA, not just those in the MLS. It is about facilitating access to and sharing of information about PGRFA. It is about increasing funding to support farmers' efforts at developing and conserving these vital resources. And it is about recognising and implementing Farmers' Rights, for, without such Rights, why should farmers bother to provide these services to humankind?

Congratulations, therefore, to the activists in India who have kept Syngenta at bay. But do not drop your guard - there will be many more attempts at forced privatisation, patently sweetened by financial bribes and promised royalties, in the days before the Treaty comes into force.

In solidarity with the SEED SATYAGRAH

I remain

Yours faithfully

Patrick Mulvany
Food Security Policy Adviser
ITDG, (Intermediate Technology Development Group)
Schumacher Centre, Bourton, RUGBY, CV23 9QZ, UK
URL: www.ukabc.org


3.Biotech, Schmeiser feel fallout of ruling

this document web posted: Thursday December 12, 2002 20021212p1
By Ed White
Western Producer

When Percy Schmeiser heard that the Supreme Court of Canada had said no to a patent for the Harvard Mouse, he got his hopes up.

"Apparently it has been really beneficial for me," said Schmeiser, the day after the Dec. 5 decision. He has been fighting with Monsanto over the company's patented glyphosate-tolerant canola for years.

Schmeiser has asked the Supreme Court to hear his case in hopes it will overturn lower court rulings that found him guilty of growing Roundup Ready canola without a licence, in breach of Monsanto's patent rights.

A different feeling was growing in Canada's biotechnology industry. It had expected Canada's highest court to follow the reasoning of courts in many other Western nations and allow Harvard College to patent a genetically engineered mouse.

The court ruled that a living mouse cannot be patented, even if the genes in its cells have been genetically modified.

"A lot of those companies rely on getting a patent for getting capital," said University of Saskatchewan law professor Martin Phillipson, who specializes in patent law.

He said the ruling has shocked biotechnology companies and scientists, and pleasantly surprised him. The court has thrown the issue before Parliament rather than simply extending patent laws to higher lifeforms, as has been done by other nations' courts.

Although Phillipson expects this ruling to derail patent applications that have not yet been approved, he doesn't think it will roll back any patents that have already been given for products such as Monsanto's Roundup Ready canola.

"I don't think you're going to see all sorts of problems with existing patents. I don't think they're likely to be revoked," said Phillipson.

That's because patents on lifeforms until now have covered events that occur within cells, at a very basic level of creation. The lifeform that arises from those early events has not itself been patented. Monsanto's and other crop patents apply to the process of splicing genes and inserting them into cells, but have not been extended to the living plants.

Harvard College attempted to patent both the process of creating a genetically modified mouse and the living creature and its offspring.  The majority of Canada's Supreme Court rejected it by a narrow margin. Four of nine justices disagreed.

The majority ruling said there is a fundamental difference between "lower" and "higher" forms of life and it would not extend patent protection to higher forms.

"Where do you draw the line, that's the crucial question," said Phillipson. "The court said it didn't really want to be the one to draw the line."

Theresa McClenaghan, counsel for the Canadian Environmental Law Association, an organization that argued against the Harvard Mouse patent, said the court was right to make Parliament decide whether to extend patent rights.

"There are a whole bunch of opportunities from the new technology, and a whole bunch of risks, and you need to say which are appropriate for patenting," said McClenaghan. "We don't think you should be able to patent higher life forms."

Phillipson, who thinks the Supreme Court was right to determine that this was more than a legal issue, said the government could amend the patent act to allow higher life forms to be patented, and the issue would be resolved.

But McClenaghan said her organization hopes there is widespread debate on biotechnology issues. She said farmers need to know what their liabilities are if they accidentally end up with patented genes in their livestock or crops.



DAVID DECHANT, CROP CHOICE: Monsanto's prosecution of Percy Schmeiser for saving seed has been well publicized, as it should be. However, Monsanto's other numerous legal actions against farmers need more publicity. The Monsanto v. Homan McFarling case is one such example.

Last week, the Northeast Mississippi Daily Journal reported that Mississippi soybean farmer Homan McFarland will have to pay Monsanto $780,000, unless the US Supreme Court agrees to hear his case and reverses the U.S. Court of Appeals decision, which had found that the Court for the Eastern District of Missouri had not erred in finding Homan guilty of infringing Monsanto's patent.

However, one of the three Appeals Court judges, Clevenger, dissented. He referred to Monsanto's technology agreement as a "contract of adhesion" and, therefore, argued that Monsanto's clause requiring that any disputes be settled in a Missouri court is unenforceable. He wrote, "My  colleagues have the honor of making this court the first to enforce a forum selection clause in a contract of adhesion against a defendant in  derogation of his constitutional rights." In other words, by requiring that farmers go to trial outside of their home district, the tech agreement violates their Fifth Amendment right to due process under the law.

So just what is a contract of adhesion? It is generally described as a standard form contract. That means it's the same for everyone, written by the party with the strongest bargaining power and offered under the condition of "take-it-or-leave-it," giving the signer no chance of modifying any of the terms.

To any farmer who has signed a Monsanto tech agreement, this sounds familiar. All farmers sign the same contract, and the terms are, in  fact, lopsided and very much in Monsanto's favor. There has been no bargaining on farmers' behalf for better terms. If farmers want to plant Roundup Ready (RR) soybeans, they have to sign the contract whether they like it or not. And, as Clevenger notes, over 200 seed companies offer RR soybean seed, but all require that farmers sign Monsanto's technology agreement.

Upon noting that the majority of soybeans planted in the U.S. are Roundup Ready and that Mississippi farmers have weeds that are especially  difficult to control without Roundup, Clevenger says, "Taken together, these facts indicate that farmers like McFarling have little choice but to sign the Technology Agreement if they wish to remain competitive in the soybean market."

This is most refreshing to hear! At least there is one Judge who has enough sense not to fall for the simplistic argument that farmers don't have to plant patented seed if they don't want to. Clevenger hits the nail right on the head: the need to be competitive forces many farmers to plant RR soybeans, even if they don't like the tech agreement. And, it's not just in Mississippi. Several Midwestern farmers say that a lot  of landlords now expect weed free soybean fields, so if they want to rent land, they have to grow RR soybeans to keep the landlord satisfied.

To further expand on Clevenger's argument, what would happen if Monsanto succeeds in its quest at the World Intellectual Property Organization and the U.S. Patent and Trademark Office to patent soybean genes and genetic markers that confer high yields? One result could be, for example, that Monsanto monopolizes traits that help soybean varieties that produce ten percent more. Then, it would be able to collect tech fees on nearly 100% of the acres planted to soybeans, as no farmer could stay in business growing lower yielding soybeans, and no seed company would be able to sell soybean seed without incorporating Monsanto's patented traits.

Furthermore, the macroeconomic effect of wide scale adoption of RR soybeans makes the tech agreement and Monsanto's iron handed enforcement of it particularly onerous. That is, because soybeans have become easier to grow, more of them are grown, and because a big crop in the aggregate is always worth less than a small crop, soybeans are cheaper than they otherwise would be. In fact, any individual benefit a farmer receives growing RR soybeans is negated or even reversed by having to sell his crop cheaper.

As Iowa State University agricultural economist Neil Harl aptly notes in describing a phenomenon he calls the Great Paradox, "The aggregate effect of these crops is to increase output, but because of inelastic demand, producers receive less money." So while farmers have to adopt new technologies to remain competitive, that same technology puts financial pressure on them. While this has been occurring for years, the one thing that's different with biotechnology is that farmers are expected to give up their traditional rights, such as seed saving. So, it should be no surprise Monsanto expects them to give up their Fifth Amendment rights, too.

So how hard is it to stay clear of Monsanto and its tech agreement? With  RR soybeans now making up three fourths of soybean seed sales, it is hard not to buy RR soybean seed. For example, I told my seed salesman months in advance that I wanted six bags of short season soybean seed to plant as a trial, as I had never grown soybeans before, not being a traditional crop here in Colorado. I emphasized that I wanted  conventional, non-GMO seed. But when the salesman delivered the six bags, they were all RR. When I asked the salesman why he didn't bring conventional seed, he said, "that's all I could find in a short season variety. Take the seed, get it off my hands." I told him, "thanks but no  thanks," and he loaded the six bags back onto his pickup.

Moreover, seed companies are combining other traits in RR soybeans. Last year's Garst seed catalog, for instance, advertised 12 new cyst nematodes resistant varieties as the "dirty dozen." However, all twelve were RR, so if a farmer wanted to plant one of these new nematode resistant varieties, he would be planting a RR variety. And, as a recent  Soybean Digest article reports, "With the exception of a handful of   food-grade/conventional soybeans, Roundup Ready varieties are the list of new selections for the 2003 planting season."

In the end, if the Supreme Court allows the Appeals Court verdict to stand, Homan McFarling is likely to lose everything. He has a reported net worth of $75,000 and all he'll have to show for a lifetime of hard work is a huge debt to Monsanto. And, it will be a miracle if his health isn't affected, too. Again, making this particularly onerous is the fact  that Monsanto eagerly introduces its patented seed into countries where it knows fully  well beforehand that it cannot prohibit seed saving, like it did in Argentina, China, and wants to do in Brazil. In fact, it is  still releasing new varieties in Argentina, even though it cannot stop seed saving.

Perhaps if North American farmers had someone to negotiate the tech agreement on their behalf, they would have gotten far more amenable terms. Daniel Charles reports in his book, Lords of the Harvest, that Pioneer seed company paid a mere $500,000 to Monsanto for the right to use the RR gene forever. In fact, given the volume of seed that it sells, Pioneer could have charged no or very little tech fee, rather than following all other seed companies in charging a uniform fee.

Monsanto doesn't have to rule with an iron hand. A chart in the USDA's Economic Research Service report, "Agricultural Research and Development: Public and Private Investments Under Alternative Markets and Institutions," shows that at least 73% of the soybean and cottonseed planted in 1992 was purchased new, and this is before the Plant Variety Protection Act was tightened up in 1994. And, the share of new seed sold every year can be even greater, if seed companies would give a little friendly encouragement and keep the price reasonable.

Finally, it is important to remember that making crops easier to grow or making them produce more doesn't always benefit farmers. It doesn't take  a PhD to figure out that when something is easier to grow, fewer farmers are needed to grow it. Or alternatively, more of it gets grown, again hurting farmers because a big crop in the aggregate is usually worth less than a small one.

In no way does this mean that production-increasing technology should be rejected. The point is that when farmers don't benefit upon wide scale adoption and when consumers don't want to eat food grown with such technology, why be in a big hurry to adopt it and spread it around the world? Something first should be done about the terms under which  competitive pressures force farmers to eventually adopt it. Otherwise, there are going to be thousands more farmers who find themselves in a legal battle with an infinitely more powerful opponent.

David Dechant grows alfalfa, corn and wheat in Colorado.

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