FA Note:  GRAIN is a small inter­na­tion­al non-prof­it organ­i­sa­tion that works to sup­port small farm­ers and social move­ments in their strug­gles for com­mu­ni­ty-con­trolled and bio­di­ver­si­ty-based food systems.

What could be more rou­tine than sav­ing seeds from one sea­son to the next? After all, that is how we grow crops on our farms and in our gar­dens. Yet from Guatemala to Ghana, from Mozam­bique to Malaysia, this basic prac­tice is being turned into a crim­i­nal offence, so that half a dozen large multi­na­tion­al cor­po­ra­tions can turn seeds into pri­vate prop­er­ty and make mon­ey from them.

But peo­ple are fight­ing back and in sev­er­al coun­tries pop­u­lar mobil­i­sa­tions are already forc­ing gov­ern­ments to put seed pri­vati­sa­tion plans on hold.

GRAIN has pro­duced an updat­ed dataset Trade agree­ments pri­vatis­ing bio­di­ver­si­ty (plain text) on how so-called free trade agree­ments are pri­vatis­ing seeds across the world.

Guatemala’s trade agree­ment with the US oblig­es it to adhere to the UPOV Con­ven­tion. But pop­u­lar resis­tance forced the gov­ern­ment to repeal a nation­al law passed for this pur­pose. (Pho­to: Raúl Zamora)
Trade agree­ments have become a tool of choice for gov­ern­ments, work­ing with cor­po­rate lob­bies, to push new rules to restrict farm­ers’ rights to work with seeds. Until some years ago, the most impor­tant of these was the World Trade Organization’s (WTO) agree­ment on Trade-Relat­ed Aspects of Intel­lec­tu­al Prop­er­ty Rights (TRIPS). Adopt­ed in 1994, TRIPS was, and still is, the first inter­na­tion­al treaty to estab­lish glob­al stan­dards for “intel­lec­tu­al prop­er­ty” rights over seeds.1 The goal is to ensure that com­pa­nies like Mon­san­to or Syn­gen­ta, which spend mon­ey on plant breed­ing and genet­ic engi­neer­ing, can con­trol what hap­pens to the seeds they pro­duce by pre­vent­ing farm­ers from re-using them – in much the same way as Hol­ly­wood or Microsoft try to stop peo­ple from copy­ing and shar­ing films or soft­ware by putting legal and tech­no­log­i­cal locks on them.

But seeds are not soft­ware. The very notion of “patent­ing life” is huge­ly con­test­ed. For this rea­son, the WTO agree­ment was a kind of glob­al com­pro­mise between gov­ern­ments. It says that coun­tries may exclude plants and ani­mals (oth­er than micro-organ­isms) from their patent laws, but they must pro­vide some form of intel­lec­tu­al prop­er­ty pro­tec­tion over plant vari­eties, with­out spec­i­fy­ing how to do that.

Trade agree­ments nego­ti­at­ed out­side the WTO, espe­cial­ly those ini­ti­at­ed by pow­er­ful economies of the glob­al North, tend to go much fur­ther. They often require sig­na­to­ry coun­tries to patent plants or ani­mals, or to fol­low the rules of the Gene­va-based Union for the Pro­tec­tion of New Plant Vari­eties (UPOV) that pro­vide patent-like rights over crop vari­eties. Whether in the form of patent laws or UPOV, these rules gen­er­al­ly make it ille­gal for farm­ers to save, exchange, sell or mod­i­fy seeds they save from so-called pro­tect­ed varieties.2 In fact, in 1991 the UPOV con­ven­tion was mod­i­fied to give even stronger monop­oly pow­ers to agribusi­ness com­pa­nies at the expense of small and indige­nous farm­ing com­mu­ni­ties. This 1991 ver­sion of UPOV now gets wide­ly pro­mot­ed through trade deals.

Onslaught of FTAs

The North Amer­i­ca Free Trade Agree­ment – signed by Mex­i­co, Cana­da and the US, at about the same time TRIPS was being finalised – was one of the first trade deals nego­ti­at­ed out­side the mul­ti­lat­er­al are­na to car­ry with it the tighter seed pri­vati­sa­tion noose. It oblig­ed Mex­i­co to join the UPOV club of coun­tries giv­ing exclu­sive rights to seed com­pa­nies to stop farm­ers from recy­cling and reusing cor­po­rate seeds. This set a prece­dent for all US bilat­er­al trade agree­ments that fol­lowed, while the Euro­pean Union, the Euro­pean Free Trade Asso­ci­a­tion and Japan also jumped on the same idea.3

A non­stop process of diplo­mat­ic and finan­cial pres­sure to get coun­tries to pri­va­tise seeds “through the back door” (these trade deals are nego­ti­at­ed in secret) has been going on since then. The stakes are high for the seed indus­try. Glob­al­ly, just 10 com­pa­nies con­trol 55% of the com­mer­cial seed market.4

But for these cor­po­ra­tions, that mar­ket share is still not enough. Across Asia, Africa and Latin Amer­i­ca, some 70–80% of the seeds farm­ers use are farm-saved seeds, whether from their own farms or from neigh­bours or near­by com­mu­ni­ties. In these uncon­quered ter­ri­to­ries, the agribusi­ness giants want to replace seed sav­ing with seed mar­kets and take con­trol of those mar­kets. To facil­i­tate this, they demand legal pro­tec­tions from gov­ern­ments to cre­ate and enforce cor­po­rate monop­oly rights on seeds. This is where free trade agree­ments come in as a per­fect vehi­cle to force coun­tries to change their laws.

Lat­est trends

GRAIN has been track­ing how trade deals signed out­side the mul­ti­lat­er­al sys­tem are coerc­ing coun­tries to adopt the industry’s wish-list of intel­lec­tu­al prop­er­ty rights for seeds, and ratch­et up glob­al stan­dards in that process, since 15 years. A recent update of our dataset shows that this trend is not let­ting up. In fact, there are wor­ri­some signs on the horizon.

◦ The most impor­tant recent gains for Mon­san­to, Dupont, Lima­grain and Syn­gen­ta – the world’s top seed com­pa­nies – have come from new trade deals accept­ed by Latin Amer­i­can states. In 2006, the US (home to Mon­san­to and Dupont) closed major deals with Peru and Colom­bia forc­ing both coun­tries to adopt UPOV 1991. The EFTA states (home to Syn­gen­ta) did the same in 2008 and the EU (home to Lima­grain) in 2012.5 In Cen­tral Amer­i­ca, a sim­i­lar pat­tern occurred. The US secured a very pow­er­ful Cen­tral Amer­i­ca Free Trade Agree­ment in 2007, forc­ing all coun­tries to adhere to UPOV 1991. EFTA did the same last year.

◦ An impor­tant step towards stronger pro­pri­etary seed mar­kets was recent­ly tak­en in Africa. After ten years of talks, Eco­nom­ic Part­ner­ship Agree­ments (EPAs) were con­clud­ed between the EU and sub-Saha­ran African states in 2014. Most of them “only” lib­er­alise trade in goods for now, but also con­tain a com­mit­ment to nego­ti­ate com­mon intel­lec­tu­al prop­er­ty stan­dards with Brus­sels. The expec­ta­tion is that those stan­dards will be based on what the Caribbean states already agreed to in their 2008 EPA: an oblig­a­tion to at least con­sid­er join­ing UPOV. This is sig­nif­i­cant because until now African states have been under no oblig­a­tion to adopt UPOV as a stan­dard, and actu­al­ly tried to come up with their own sys­tems of plant vari­ety protection.6 And while it’s true that African enti­ties like the anglo­phone African Region­al Intel­lec­tu­al Prop­er­ty Organ­i­sa­tion (ARIPO) and the fran­coph­o­ne African Intel­lec­tu­al Prop­er­ty Organ­i­sa­tion (OAPI) are already join­ing UPOV, under the EU trade deals, coun­tries them­selves would be the ones to join. Fur­ther towards the hori­zon, Africa is har­mon­is­ing with­in itself as its sub­re­gion­al trade blocs merge and unite to form a sin­gle con­ti­nen­tal free trade zone, sup­pos­ed­ly by 2017. This is expect­ed to bring with it an inter­nal har­mon­i­sa­tion of intel­lec­tu­al prop­er­ty laws across the con­ti­nent, like­ly tight­en­ing the noose even further.

◦ The Trans-Pacif­ic Part­ner­ship (TPP) agree­ment is pos­si­bly the scari­est FTA under nego­ti­a­tion right now in terms of what it may do to farm­ers’ rights to con­trol seeds in Asia and the Pacif­ic. This is because the US, which is lead­ing the talks with 11 oth­er Pacif­ic Rim coun­tries, is play­ing hard­ball. Leaked nego­ti­at­ing text from May 2014 shows the US call­ing not only for UPOV 1991 to be applied in all TPP states but also for the out­right patent­ing of plants and ani­mals. We don’t yet know whether these demands will also appear in the Transat­lantic Trade and Invest­ment Part­ner­ship (TTIP) cur­rent­ly being nego­ti­at­ed between the US and the EU, as the text remains inac­ces­si­ble to the public.

◦ While the extent of what has to be pri­va­tised expands, so do the penal­ties for dis­re­spect­ing these norms. Under numer­ous FTAs, coun­tries like the US require that farm­ers who infringe on these new intel­lec­tu­al prop­er­ty rights on seeds face pun­ish­ment under crim­i­nal law instead of civ­il law. In some cas­es, like the recent­ly con­clud­ed EU-Cana­da Com­pre­hen­sive Eco­nom­ic and Trade Agree­ment (CETA), the mere sus­pi­cion of infringe­ment could see a farmer’s assets seized or have their bank accounts frozen.7

Big bat­tles heat­ing up

The good news is that social move­ments are not tak­ing this sit­ting down. They are becom­ing very active, vocal, bold and organ­ised about this. In 2013, Colom­bians from all walks of life were shak­en up when they saw first­hand how US and Euro­pean FTAs could result in their own gov­ern­ment vio­lent­ly destroy­ing tonnes of seeds saved by farm­ers who did not know what the new rules were. The out­rage, break­ing out in the midst of a mas­sive nation­al agrar­i­an strike, was so strong that the gov­ern­ment actu­al­ly agreed to sus­pend the law tem­porar­i­ly and re-exam­ine the issue direct­ly with farm­ers’ representatives.8

In 2014, it was Guatemala’s turn to be rocked when the gen­er­al pub­lic realised that the gov­ern­ment was push­ing through the adop­tion of UPOV 1991 with­out prop­er debate because of trade deals like CAFTA.9People were furi­ous that indige­nous com­mu­ni­ties were not con­sult­ed as is required, espe­cial­ly when the pur­pose of the law – ulti­mate­ly – is to replace indige­nous seeds with com­mer­cial seeds from for­eign com­pa­nies like Mon­san­to or Syn­gen­ta. After months of pres­sure, the gov­ern­ment backed down and repealed the law.10 But – as in Colom­bia – this retreat is only tem­po­rary while oth­er mea­sures will be looked at. In yet oth­er parts of Latin Amer­i­ca, like in Chile and Argenti­na, new laws to imple­ment UPOV 91, often dubbed “Mon­san­to Laws”, are also being intense­ly and suc­cess­ful­ly resist­ed by social movements.

In Africa too, waves of pub­lic protest are ris­ing against the plant vari­ety pro­tec­tion regimes which coun­tries are now going into. In Ghana, a vibrant cam­paign is under way to stop the coun­try from adopt­ing UPOV 1991 legislation.11

Else­where, civ­il soci­ety net­works like the broad based Alliance for Food Sov­er­eign­ty in Africa are fil­ing appeals to stop ARIPO from adopt­ing UPOV-based leg­is­la­tion and join­ing the union.12

Cor­po­rate inter­est groups have pushed too far try­ing to pri­va­tise what peo­ple con­sid­er a com­mons. This is not lim­it­ed to seeds. The same process has been going on with land, min­er­als, hydro­car­bons, water, knowl­edge, the inter­net, even impor­tant microor­gan­isms, like avian flu a few years ago or the Ebo­la virus today. Peo­ple are fight­ing back to stop these things falling under the exclu­sive con­trol of a few cor­po­ra­tions or defence min­istries. A good way to take part in this bat­tle is to join the cam­paigns to stop impor­tant new trade deals like TTIP, CETA, TPP and the EPAs – and to get old ones like the US and Euro­pean deals with Mex­i­co, Cen­tral Amer­i­ca, Colom­bia or Chile rescind­ed. Trade deals are where a lot of these rules do get writ­ten and that is where they should be erased.

For a clos­er look at the sta­tus of trade agree­ments that impose seed pri­vati­sa­tion, down­load GRAIN’s Novem­ber 2014 dataset, “Trade agree­ments pri­vatis­ing bio­di­ver­si­ty” Trade agree­ments pri­vatis­ing bio­di­ver­si­ty (plain text).

Going fur­ther

– GRAIN, “Seed laws in Latin Amer­i­ca: the offen­sive con­tin­ues, so does pop­u­lar resis­tance”, Decem­ber 2013. (EN, ES, FR)

– Bio­di­ver­si­dad, “Leyes de semi­l­las y otros pesares”, Sep­tem­ber 2014. (ES only)

– Dai­ly updates on trade deals at http://bilaterals.org or @bilaterals_org or https://facebook.com/bilaterals.org (EN, ES, FR)

Notes

1 “Intel­lec­tu­al prop­er­ty” is a gov­ern­ment enforced monop­oly right. It serves to ensure that peo­ple pay for the right to use some­thing for a cer­tain peri­od of time, so that who­ev­er invent­ed it can recoup his or her invest­ment. “Plant vari­ety” means seeds which will grow into a spe­cif­ic kind of plant with spe­cif­ic characteristics.
2 Under the UPOV sys­tem, farm­ers can some­times save seeds from pro­tect­ed vari­eties to use them again. It depends on which ver­sion of the UPOV Con­ven­tion a coun­try signs and whether the gov­ern­ment exer­cis­es this option. Some­times it is restrict­ed to farm­ers’ replant­i­ng the seeds on their own farm or to only cer­tain crops or to pay­ment of a licence. Under the patent sys­tem, it is sim­ply ille­gal to use patent­ed seeds with­out pay­ing for them – even if a bird drops them onto your field!
3 EFTA is com­posed of Ice­land, Licht­en­stein, Nor­way and Switzerland.
4 ETC Group, “Who owns nature?”, 2008.
5 Ecuador is also now nego­ti­at­ing with the EU, based on the text signed with Colom­bia and Peru.
6 For exam­ple, the Organ­i­sa­tion of African Uni­ty draft­ed its own mod­el law on plant vari­ety pro­tec­tion based on com­mu­ni­ty rights.
7 See Nation­al Farm­ers’ Union, “CETA + Bill C‑18 = too much pow­er for seed com­pa­nies”, June 2014.
8 GRAIN, “Colom­bia farm­ers’ upris­ing puts the spot­light on seeds”, Sep­tem­ber 2013.
9 Per­haps not very vis­i­ble to the pub­lic eye was the 2013 EFTA-Cen­tral Amer­i­ca FTA, which makes the same demands as CAFTA.
10 See EFE, “Guatemala repeals plant breed­er rights law”, 5 Sep­tem­ber 2014.
11 See the web­sites of Food Sov­er­eign­ty Ghana and Panafrican­ist Inter­na­tion­al.
12 Alliance for Food Sov­er­eign­ty in Africa, “AFSA appeals to ARIPO, AU and UNECA for pro­tec­tion of farm­ers’ rights & right to food”, 2 July 2014.