Reflections on ITPGRFA, UPOV 1991 and South Africa

Recently the Department of Agriculture, Forestry and Fisheries (DAFF) held national consultations on whether South Africa should accede to two international agreements related to seed: The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA, or the Treaty) and the International Convention on the Protection of New Varieties of Plants (UPOV) 1991.

The Treaty includes important provisions recognising the critical historical and ongoing role of farmers in conserving, maintaining and adapting plant genetic resources for food and agriculture. It affirms farmers’ rights to save, use, exchange and sell farm-saved seed (but with limitations that may be imposed at national level), to access and benefit sharing, and to participation in decision making. It calls for policies and laws that recognise and support farmers’ rights and farmers’ roles in agricultural biodiversity conservation and use.

A key part of the Treaty is the multilateral system (MLS) for access and benefit sharing of genetic resources, based on essentially free access to all materials in the MLS. Genetic materials included are materials held publicly by the contracting parties to the Treaty (mainly nation states and international research institutions). The private sector is invited to share their materials in the system, but to date none have.

UPOV is an international plant variety protection (PVP) regime. The 1991 version strengthens breeder’s rights and imposes new restrictions on farmers’ rights to save, use, exchange and sell seed of protected varieties. UPOV 1991 has long-term effects of monopolisation, corporate capture, diversion of seed and agricultural research and development in favour of extractive multinational markets, loss of biodiversity and loss of national and farmer sovereignty over genetic resources.

ACB and friends from amongst smallholder farmers, NGOs, researchers and lawyers went en masse to 2 days of national consultations held by DAFF at the National PGR Centre at Roodeplaat outside Tshwane on 23-24 October 2018. The meeting included all the big seed multinationals - Bayer-Monsanto, Syngenta, Corteva (the newly formed agribusiness unit from the Dow-DuPont merger) as well as the biotech industry mouthpiece AfricaBio, the South African National Seed Organisation (SANSOR), and officials and researchers from DAFF, the Agricultural Research Council (ARC) and other government departments.

The first day was on the ITPGRFA. ACB had made earlier submissions in support of South Africa joining the Treaty. Our focus was on recognition of farmer’s rights, with a few comments on the threats of new technologies such as Digital Sequence Information (DSI) on access and benefit sharing arrangements and the huge opening these technologies (and their lobbyists) have created to facilitate biopiracy. On the latter we noted and agreed with the government’s position that these new technologies should be regulated using existing instruments.

The meeting opened with presentations by DAFF and the Treaty Secretariat, followed by discussion. At the base of the MLS in the Treaty is the idea that genetic resources should be a commonwealth open to all to use based on fair and equitable rules that everyone agrees on. There is recognition that nation states have sovereignty over the genetic resources in their national territory, and the Treaty is based on voluntary sharing of these materials for use.

The Treaty includes access and benefit sharing arrangements, with a standard materials transfer agreement for access to materials, where use is free, and there can be no intellectual property (IP) claims made on unaltered materials from the MLS. However, if adaptations are made, IP can be sought on the adapted materials. This raised a red flag for CSOs and farmers in the meeting, signifying as it does the creeping privatisation of genetic resources.

In the discussion it emerged that there is a global debate currently going on in the ITPGRFA about widening the list of crops to which the Treaty is applicable to all genera and species. Currently Annex 1 has a list of 35 food crops or ‘complexes’ (e.g. the whole class of brassica is one complex) and 29 fodder crops. The discussion is about including all genetic materials. It was initially surprising that the seed multinationals seemed to be supporting South Africa’s accession to the Treaty, given the Treaty’s strong farmers’ rights orientation, but if accession means free access to South Africa’s genetic resources (one of the most biodiverse bases in the world), then it is not as surprising. It is important to note that the South African government itself has held off from acceding to the Treaty so far for reasons of unequal exchange and benefits in the MLS. It would be best to have specific plants rather than capturing the entire genus, and countries must be allowed to decide what they put in and what they choose to exclude.

In exchange for releasing their genetic resources for global commercial exploitation, the custodians of these resources (including the state, farmers and others on the land) get various benefits including access to materials available elsewhere for crossing and improvement of local materials. For example, drought tolerant crops and varieties in other parts of the world with similar ecological conditions. Other benefits are training and support for field-based farmer activities in conservation and use of genetic materials. Benefit sharing may come in the form of financial remuneration, but payments are consolidated in a global multilateral fund managed in Rome. The amounts are a small trickle compared with what corporations gain through the opportunity for plundering and privatising newly available materials. Financial-corporate capital is desperately trying to keep their economic model afloat by the rapacious stripping of African labour and natural resources, with only death and destruction as a consequence. It is time for Africa to develop its own route.

Farmers’ rights and practices on conservation and use of plant genetic resources is an important component of ITPGRFA. If a country becomes a Party to the agreement, they are meant to follow up with policies, laws and activities to support these rights and practices. However, DAFF indicated in the meeting that they are committed to farmers’ rights and will work on it even if South Africa does not accede to the Treaty. DAFF points to the National Plant Genetic Resources Plan as an indication that this work has started already. This is true. However, it has a very small budget of just R1.6 million over 10 years for implementation. This will produce a few community seed banks in some provinces, and the plan will be reliant on donor funds to do any more work. This does not challenge the logic of large-scale privatisation of genetic resources.

This raises questions for CSOs and farmers. If DAFF is serious about its commitment to farmer’s rights regardless of whether it signs the Treaty or not, and given the slow pace of meaningful implementation of farmers’ rights in Article 9 of the Treaty, and if there are such evident threats in opening national genetic resources to corporate exploitation for negative returns through an expanded MLS, then should we still argue for South Africa to sign up to become a member?

On UPOV 1991, the central question for me is why South Africa wants to join this version of the PVP Convention (not to mention the likelihood of new, more stringent versions in future)? South Africa is already a member of the 1978 version, which is less restrictive on farmer’s rights to save, use, exchange and sell seed [ACB UPOV/ITPGRFA briefing]. DAFF’s answer is that South Africa has already de facto adopted UPOV 1991, becoming an immediate signatory in 1991 and revising the Plant Breeders’ Rights Act (PBRA) in 1996 to align with UPOV 1991. According to DAFF at the meeting, South Africa is already implementing “99.9%” of UPOV 1991, so where’s the problem?

Well, the problem is huge and plain to see. Since 1996 our seed system has been completely taken over by foreign-owned multinational corporations. All the biggest South African seed companies, such as Carnia, Sensako and Pannar have been gobbled up by the multinational giants. All the exclusive IP rights over the genetic materials they had in their possession are now owned outside South Africa, with the vast majority of commercial seed varieties produced in South Africa by Corteva and Bayer (which has consumed Monsanto).

In addition, maize, our staple food, is flooded with GM maize stacked varieties. Farmers from large-scale commercial to smallholder farmers relying on government seed handouts are fed GM seed. Breeding is geared towards rapid production of new varieties of GM crops in maize and soya in particular. Corporate breeders have throttled wheat farmers into submission, going on an investment strike until farmer seed saving and exchange was squeezed out through the state-supported imposition of a compulsory breeding levy. Seed laws are being tightened to outlaw exchange and sale of protected varieties, no matter what scale. Smallholder farmers are being caught in the crossfire with limited public sector support. Public resources, infrastructure and capacity are displaced and used for private, rather than the public interests, when public breeding in the interests of the public needs to be prioritised.

A central point of contention is the exemptions to these use restrictions in UPOV 1991. The exemptions are limited to some crops (defined at national level), and to ‘subsistence’ farmers, but with no definition of what this is. There is a lot of debate about this, and how to measure it. The aim is to balance the interests of breeders with the interests of smallholder farming households and their food security and livelihood needs. However, as CSOs spoke out in the meeting, how is it ethically justifiable to say that seed breeders have any balance of interest whatsoever in relation to the needs of people to eat food every day? Of course there are complexities about the long term role of breeding in securing long-term food security, with exclusive IP rights as the incentive. But we are talking about smallholder, marginalised farmers using, exchanging and perhaps at times selling seeds and agricultural products in their possession in order to make ends meet. Exemptions should very clearly create a space for these farmers not only to survive but to expand their economic activities before encountering restrictions on use of seed in their possession. Smallholder farmers maintain the diversity of crops and their adaptability. The private sector claims that increasing IP on plants in itself ensures that the widening of biodiversity is a shocking and disingenuous claim. 

We would support the use of DAFF’s own definition of ‘smallholder’, used in the draft Comprehensive Producer Support Policy, which is anyone below a R5 million annual turnover per year. The objective of the exemption is to give small producers, even if small-scale commercial, the opportunity to expand. Other alternatives that have been proposed are thresholds based on farm size or volume of production. The problem with these is that different ecological zones and different crops will need different measures, and it will be practically impossible to monitor, especially amongst many thousands of scattered smallholder producers.

The exemption is specifically in relation to the production and resale of protected varieties. It is still not very well defined whether this refers only to the sale of protected varieties as seed, or whether it includes the product of farm-saved protected varieties as a food crop (the harvest), if its’ value of production is above the exemption level.

Exemptions include some breeders’ exemptions to use protected varieties for further research. There is also something called an optional exemption or farmer’s privilege in UPOV 1991 and a compulsory exemption for all “private and non-commercial use” of protected varieties on farmers’ own holdings, to appear in all national legislation of those who sign up to UPOV 1991. National governments can also include further optional exemptions, but they must be consistent with UPOV 1991 provisions.

There is a big debate raging about the meaning of “private and non-commercial use”. The wording was changed from UPOV 1978 which had said “private OR non-commercial use”. This change is interpreted as reducing the scope of the exemption, because you must meet both criteria instead of one or the other. By definition “private and non-commercial use” seems to exclude exchange and sale from the exemptions, because what is private and non-commercial exchange or sale on your own holdings?

South Africa’s PBR Bill, which goes even beyond UPOV 1991 in strengthening breeders’ rights in some instances, has come to the end of consultation and revision, and is waiting to be passed in Parliament. It includes an optional exemption for farmers using a protected variety, to be defined by the Minister of Agriculture (with DAFF providing recommendations) in regulations to be published on:

i) categories of farmers,

ii) crops

iii) uses

iv) payment of royalties and labelling requirements “where applicable”.

Here our proposals to the Minister could simply be:

i) All farmers with an annual turnover of R5 million or less

ii) All crops

iii) Saving, use, exchange and sale of farm-saved seed

iv) no royalties to apply.

Proposals need to be presented to DAFF.

Once the PBR Bill is passed and signed into law, DAFF will submit it to UPOV 1991 for approval to join. There are questions about whether exemptions that allow for exchange and sale of protected varieties are compatible with UPOV’s narrow definition of “private and non-commercial use”. DAFF has said if UPOV 1991 does not like the exemptions, DAFF will not unilaterally change the exemptions to comply with UPOV 1991, but will first come back for further consultation.

Accession to the Treaty will place pressure on government to act on securing farmer’s rights, but a well-organised smallholder farmer and CSO network could also achieve this, especially if there are sympathetic people in decision-making positions in DAFF. UPOV 1991 and the PBRA certainly restricts farmers’ rights to use, exchange and sell farm-saved seed, but only of protected varieties. This does not impinge heavily on farmers’ work on their own varieties and other unprotected varieties, although it may limit farmers’ use of protected varieties in their possession for adaptation and reuse. If there are broad exemptions for smallholder farmers and small seed enterprises, this can at least create a breathing space for alternatives to develop.

Please feel free to contact ACB if you have any contribution to make to proposals or to the discussion in general. We’d love to hear from you!