Small-Scale Farmers’ Innovation Overlooked In WIPO Negotiations, Panellists Say

A side event hosted by the Quaker United Nations Office (QUNO) this week called on negotiators at the World Intellectual Property Organization to include innovation by small-scale farmers and asked for complementarity of several international instruments dealing with this issue.

The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 3-7 February.

The 4 February side event was entitled, “Small-scale farmers, innovation and the competition of international regimes?”

Panellists from several international bodies dealing with small-scale farmers looked at the question of how to support all types of innovation, including those of small-scale farmers.

The panel was composed of: Tobias Kiene, technical advisor at the secretariat of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA); Beatriz Gomez, associate programme officer  at the Nagoya Protocol unit of the Secretariat of the Convention of Biological Diversity (CBD); Antony Taubman, director of the World Trade Organization Intellectual Property Division; Isabel Lopez Noriega, field and policy specialist at Biodiversity International; and Susan Bragdon, representative on food and sustainability for QUNO.

Bragdon said that the history of small-scale farmers and intellectual property is quite short. She also emphasised the importance of small-scale farmers for international food security and in developing biological diversity.

Kiene recalled that the ITPGRFA process was based on the fact that “every culture was always based on access and exchanges and not exclusivity,” and that all states are interdependent regarding genetic resources (GRs). This treaty put in place a multilateral transfer agreement on GRs with access and benefit-sharing fully operative since 2006.

Currently, Kiene said, it represents 800 exchanges per day using this multilateral system and crops covered by the ITPGRFA provide 80 percent [corrected] of food from plants. In terms of benefit-sharing, the ITPGRFA system provides a wide range of non-monetary as well as monetary solutions through a benefit-sharing fund, he said. [updated]

Kiene outlined the importance of Article 9 of the ITPGRFA for farmers’ rights which states several rights such as the right to participate in policy-making, protection of traditional knowledge (TK), equitable participation in benefit-sharing, and the right to save, use and exchange seeds. [corrected]

And Kiene announced that in September the governing body decided to launch an ad hoc open-ended working group with the mandate to enhance the functioning of the multilateral system of access and benefit-sharing.

Gomez outlined that the third pillar of the CBD is benefit-sharing, as provided in its Article 15. Concerning TK of small-scale farmers, she highlighted that Article 8(j) of the CBD, while not giving a definition, includes innovation in the TK sense.

The Nagoya Protocol [pdf] on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization was negotiated in order to wilful the gaps of the CBD and take the views of Indigenous Peoples and local communities more into account. She emphasised the importance of prior informed consent for access to TK and also of benefit-sharing.

The Nagoya Protocol outlines the importance of genetic resources for food and agriculture and its provisions require that states take into account this specificity, she said. She added that all depends on how states that are parties implement those dispositions into domestic legislation.

Taubman stated that the core issues of the IGC process are the very nature of innovation. The IP systems’ conception of innovation does not encompass the broader conception of innovation, which includes for example TK and farmer innovations which are intergenerational and collective.

He noted that the reference to a balanced approach in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – in Article 7 – often leads to a division between the North (producers of IP) and the South (users of IP). But he interpreted it as a balance between different forms of innovation and innovators, some of them not being treated equitably.

Another issue he pointed out is deciding which provisions should come at the international level and which should stay in domestic legislation with international rules remaining silent.

TRIPS provisions relevant to small-scale farmers include patenting on biotechnological innovation, protection of new plant varieties and disclosure information, which is significant for agriculture, Taubman said. But theses notions are expressed in broad terms and treaty laws do not add to them, he said.

Taubman recalled the main ideas launched during TRIPS discussions for protection of small-scale farmers but also for TK, which are: a sui generis system for plants and varieties, a footnote suggesting farmers can be subject of rights in this area, and protection of farmers’ rights under a system separate from more commercial mainstream ones.

Lopez, from the Biodiversity International, a centre affiliated with the Consultative Group on International Agricultural Research (CGIAR), stated that Article 9 of the ITPGRFA is a good meeting point for dealing with farmers’ rights with other international instrument such as CBD, TRIPS, as well as the International Union for the Protection of New Varieties of Plants (UPOV).

She outlined the genetic resources policy committee of CGIAR drafted in the CGIAR Principles of Intellectual Assets (here), and implementation guidelines approved in June 2013 (here) which are related to farmers rights.

Lopez considered that international instruments such as the CBD and the ITPGRFA create a positive environment to adopt and implement measures for small-scale farmers’ innovations. However, she formulated doubts about the contribution of IP to this end. The IGC negotiations fail to address alternative innovation models and informal innovative systems like those in TK and among farmers, she said.

Maëli ASTRUC is an intern at Intellectual Property Watch. She has a Master’s Degree in International Law from Aix-en-Provence University and a LL.M from Ottawa University. During her studies, she developed a high interest in intellectual property issues in particular related to agriculture and traditional knowledge.