Protecting Farmers’ Rights on Their Plant Varieties
in Nepal
Shiddi Ganesh Shrestha, Ph.D.
Abstract
Protecting farmers’ rights is imperative to encourage farmers conserve their agrobiodiversity, nurture future innovations in agriculture and ensure food security. Farmers
have been conserving agro-biodiversity since generations. However, such age old noble
deeds are in threat due to patenting.In such situation, a two-pronged strategy has
beenrecommended to motivateboth conservation of agro-biodiversity and agricultural
innovations simultaneously. Establishment of farmers’ rights on their plant varieties,
traditional knowledge, benefit-sharing, participation in decision process, and compensation
for loss would be a mostsuitableinitiative towards this direction. Alegal instrument need to
be designed and enforced for legitimatizing farmers’ rightswhich is also a legal obligation
of Nepalowing to adoption of sui generis system of TRIPs.A plan of action to support such
tasks has been proposed.This article is mainly based on the review of
secondaryinformation.
Keywords:farmers’ rights, plant varieties, plant genetic resources, agro-biodiversity
conservation, agricultural innovations, TRIPs
1.
Background
Seeds are the basic inputs and the first link of the food chain1. They are also the foundation
of our civilization. All agricultural plants which we consume today have come from the
florae which farmers have carefully selected and innovatively domesticated from the wild,
andhave used, reused, exchanged, developed, maintained and conserved for generations.
The farmers have cautiously observed, studied and experimented for years before adopting
such plants and their seeds for consumption. Now, we have hundreds of thousands of
cultivated crops and varieties inherited from farmers to farmers for centuries. Although, the
natural pollination process also evolves new varieties but farmers have carefully identified,
selected, cultivated and maintained them for generations. Each time the farmers selected
crops and varieties they created rich agro-biodiversity, each different from one another.
Hence, the farmers should have all sorts of prior rights on their plant varieties. However,
their rights on their own plant varieties is in threat due to patents being granted in the
pursuit of promoting innovations and industrialization of agriculturebut without
recognizing farmers’ invaluable contributions and roles in agro-biodiversity conservation.
The resultant effect of this and other underlying causes has been foreseen in the disastrous
erosion in the number and varieties of cultivatedspecies.
Food and Agriculture Organization of the United Nations (FAO) has estimated 75 percent
loss of such diversityjust within a century between 1900 and 2000 2 . The State of the
World’s Plant Genetic Resources for Food and Agriculture, predicts that as much as 22
percent of the wild relatives of important food crops of peanut, potato and beans will
disappear by 2055 due to changing climate alone3. These all indicate that the plants which
we cultivate and eat today as well as their wild relativeswould be lost forever unless special
efforts are madeto conserve and utilize them.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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2.
Genesis of Concept and Types of Farmers’ Rights
The first use of Farmers' Rights as a political concept dates back to the early 1980s, when
Pat Roy Mooney and Cary Fowler of the then Rural Advancement Foundation
International (now ETC-Group) coined the term to highlight the valuable but unrewarded
contributions of farmers to plant genetic resources for food and agriculture4. The idea came
up as a countermove to the increased demand for plant breeders' rights, as voiced in
international negotiations, to draw attention to the unremunerated innovations of farmers
that were seen as the foundation of all modern plant breeding.According to Fowler, the
concept can be traced back to the work of, interalia, the renowned plant explorer,
geneticist and plant breeder Jack R. Harlan (1917-1988). Hespoke of farmers as the
‘amateurs’ who had, in fact, created the genetic diversity that had becomesubject to
controversies.
FAO, for the first time, introduced this concept at aworkinggroup meeting in Commission
on Plant Genetic Resources in October 1986 to attract more signatory countries to the FAO
International Undertakingon Plant Genetic Resources in order to realize theobjectives of
conservation and making these farmer’ plant genetic resources available.
Several views on concept and types of farmers’ rights on their plant varieties have
emerged. The concept of farmers’ rights got highlighted with the patenting of varieties. In
fact, the parental lines of patented varieties come from the varieties that the farmers have
developed through the endless efforts of their ancestors but their rights on such rich genetic
resources now have been threatened. Thevoices on farmers’ rights became louder with the
adoption of international treaties and conventions by several countries in the world. With
the adoption of such treaties and conventions (de-jure rights), farmers lack control over
ownership and access to their own plant genetic resources being developed by them for
centuries. Restricting the age-old traditional de-facto rights of the farmers to develop, use,
save, re-use, exchange and sell their own farm produced seeds and propagating materials
endangered the conservation of agro-biodiversity which is the basisfor thedevelopment of
new plant varieties in future, to ensure food security to combat poverty in the world.
3.
Nepal’s Richness in Plant Genetic Resources
Nepal stands 31st in the world ranking in terms of biodiversity and is a home for two
percent (or 7,000 species) of the worlds’ flowering plants and five percent (246 species) of
the world’s flora, 200 species of commercially important medicinal and aromatic plants,
400 species of agro-horticultural crops, and 60 species of wild edible fruits5.
About 550 crop species have been identified as food value with species diversity at all
levels -ecosystem, genera, species, and gene 6 .Rice, rice bean, eggplant, buckwheat,
soybean, foxtail millet, citrus and mango have high genetic diversity compared to other
food crops7.
FAO’s Country Report on the State of Nepal’s Plant Genetic Resource for Food and
Agriculture, 2013 state that about 83 different wild relatives of 46 genera under 18 families
of 36 agricultural crops exists in the country8. The report further sate that crop species in
Nepal owe their variability due to the presence of about 120 wild relatives of the
commonly cultivated food plants and their proximity to cultivated areas.The Report also
states that forest is a major source of medicine, food and nutrition for ethnic communities
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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like Chepang, Rai, Sherpa and Gurung. Rai and Sherpa communities use 47 wild species
for household consumption, 38 for fodder, 19 for medicine, five for religious and
ceremonial purposes, 11 to make household implements, and 11 for trade as raw and
processed materials.
4.
Why Protect Farmer’s Rights
Plant genetic resources have a critical role to play in feeding the world. Their role is very
much crucial as climate change advances faster than expected becauseclimate change
directly impacts on genetic diversity. For example, rainfallseverely impairs pollination as
insects are less active during rainfall. Plant species which require insect pollinators to
reproduce are threatened in the areas where frequency of rainfall has increased due to
climate change. Similarly,insects are highly sensitive to temperature too and may not
always synchronize with new flowering timing. An in-depth study on pre-pond flowering
of rhododendron in Nepal would provide some evidences related to this.
Likewise, rising temperatures are likely to favour some insect species to have shorter
generational cycles. Atwo degree Celsius rise in temperature is estimated to allow insects
to complete up to five extra lifecycles per season and pathogens able to shorten their
breeding cycles will likely to be able to evolve more rapidly and pose greater potential
challenges to various organisms and ecosystems9.
Farmers are the key actors in the conservation and creation of variability in plant genetic
resources. They have been the largest, efficient and the most economic conservators of
agro-biodiversity in the world.Unlike in developed countries, farmers of developing
countries like Nepal are not only the cultivators but also the traditional breeders and
conservators of plant varieties.They carefully identify and select plants for good varieties
and seeds. They also use traditional but efficient storage technology. Now, such noble
deeds have been jeopardized. Hence, a sustainable solution to this should be pursued.
Establishment of their rights on their plant varieties could be one of the best options to
promote agro-biodiversity conservation in one hand and foster future innovations in
agriculture.
Thus, assurance of rights of farmers’ on their plant genetic resources in the countries like
Nepal is very much crucial owing to largest population of the country (66%) being directly
engaged in traditional agro-biodiversity rooted farming system, conservation of richly
endowed plant genetic resources, and large impact in the economy owing to agriculture
sector being the single largest contributor (34%) to Gross Domestic Product.
Farmers in several developing countries like Nepal use, save, re-use, exchange, breed, sell
and conserve rice, maize,wheat, finger millet, barley, buckwheat, pulses and oil seeds
becausetheir seeds are almost similar to the grains at harvest. Generally,Nepalese farmers
do not buy seed of these crops and those who buy they buy a better seed of a variety.
Another notable aspect of such crops is that farmersmay buy a small quantity of a new
variety seed in order to further multiply it over severalgenerations10.
The Nepalese farmers, now, opt for hybrid and improved than local varieties. Higher yield,
wide adaptability and high market values are the driving forces behind adopting such
modern hybrid and improved varieties. Several local varieties are getting wiped out from
cultivation due to introduction of such modern varieties. A gradual disappearance of
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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landrace are being observed in crops like: rice, maize, wheat, cabbage, cauliflower, cowpea
and potato; native cultivated species such as Paspalumscorbiculatum, Vignaangularis,
Lathyrussativus, Setariaitalica and Panicummiliare; related wild species of cultivated
crops; medicinal plants such as Cinnamon, Cordiceps, Dactylorhiza, Nardostachys,
Rauwolfia and valeriana; and forest trees such as Shorea, Cedrela, Elaeocarpus, Larix,
Magnolia and Rhododendron11.
Now,it is difficult to find theMuralilocal popcorn variety of maize in most parts of the
country due to increasing import of exotic pop corns. Similarly, indigenous Choto variety
of radish has almost been wiped out from Doti district of Nepal due to introduction of
modern high yielding and short duration varieties by TribhuvanGram VikashKaryakram
(TribuvanVillage Development Program) in 1960s.Several local landraces of rice have also
been wiped out with the introduction of high yielding modern rice varieties. The use of
hybrid varieties of food (especially the maize and rice) and vegetable crops are in
increasing trend in Nepal12.
Indigenous or local varieties have been criticized for lower yield not only in Nepal but also
in African and several other developing countries. However, they have innumerable
attributes which would be very much useful for the development of new varieties in future.
They have the capacity to withstand hazards and resist several pests and diseases. Let alone
the harsh condition but a slight variation in environmental conditions leads to zero yield in
hybrid varieties but farmers’ traditional or indigenous varieties still yield normally. Nepal
has experienced this in Bara, Bhaktapur and other districts in hybrid maize. Local or
indigenous varieties could be used for breeding purposes to get such robust attribute into a
new variety if and only if such local landraces exist. Hence, their conservation is very
much crucial because they can contribute genes which can address threats posed due
toclimate change.
Farmers’ plant genetic resources (PGRs) are the foundation for the development of a food
and nutritionally secure society. In addition, plants have many uses as feed, fiber, medicine
and industrial applications. PGRs were treated as the ‘heritage of mankind’ and were
shared freely among nations, till the concerns for conservation of biological diversity were
raised by Convention on Bio-diversity(CBD)andTrade Related Aspects of Intellectual
Property Rights (TRIPs).Thus, FAO International Treaty on Plant Genetic Resources for
Food and Agriculture (ITPGRFA)has sought to protect farmers’ rights through equitable
benefit-sharing from the use of farmers’ crop varieties. It recognizes the enormous
contribution that indigenous and local communities and farmers have made to the
conservation and development of crop genetic resources. Yet the ability of farmers to
continue this role is seriously threatened - not only due lack of benefit-sharing but also due
to policies that promote industrial agriculture and monocultures.The industries flourish in
scaleeconomies which forbid the conservation of agro-biodiversity.ITPGRFA covers
genetic resources of 64 listed crops only (35 food and 29 forage crops as presented in
Annex 1) which are in the public domain and under the control of the parties but it
specifically does not tell about farmers’ in situ conserved crops. In addition, crops could be
conserved both in- and ex-situ which will create further confusion. Thus, a strong and clear
mechanism should be developed.
Farmers’ plants varieties have to be conserved for further breeding purposes as well as for
the development of vibrant seed industries in the country. Farmers’ rightshaveto be
recognized, rewarded and supported for their contribution to the global pool of genetic
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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resources as well as for the development of commercial varieties of plants, and to
participate in decision making process on issues related to crop genetic resources. Thus,
this paper mainly focuses on finding the ways to protect farmers’ rights to use, save, re-use,
exchange, breed, sell and conserve their own plant varieties, seeds and propagating
materials. This will help to develop a competitive, fast growing and sustainable seed
subsector in the countries like Nepal because the country has vast potential for seed sector
development due to the existence of mountains and hills which offer most suitable
physiographic settings for maintaining recommended isolation distance through natural
physical barriers for seed multiplication, low rainfall (especially in western mountains and
hills which favour seed multiplication) but plenty of water resources available for
irrigation(for getting healthy and good quality seed), longer sun shine period, and
prevalence of various climatic regimes within the same altitude level but in different
aspects of the hills and mountains.
The global imposition of intellectual property rights (IPRs) are now widely recognized as
serious constraints on the free exchange of seeds and the development of new cultivars by
farmers, public breeders and small seed companies. The rights of breeders and the
industries or companies have been protected by patents in international conventions and
treaties without recognizing the farmers’ contribution on the conservation of source of
genes. Hence, concerns have also been raised on benefit sharing with the original source of
gene while patenting.
Nepal signed the TRIPs Agreement on 23 April 2004 and is a member by accession.The
Government of Nepal (GoN) has also nominated national focal point to look after TRIPs.
Article 27.3(b) of this Agreementrequires the member countries to provide protection for
plant varieties either by a patent orby an effective sui generis system or by any
combination thereof.The provisions of thissub-paragraph shall be reviewed four years after
the dateof entry into forceof the WTO Agreement13.This is an excellent provision being
made in TRIPs for the developing countries like Nepal to protect farmers’ plant varieties
although it excludes protection of farmers’ traditional knowledge (TK) on plant and
biological processes for their creation. Such rich TK could also be robbed through patents
if farmers’ rights on their TK are not legally protected. With the adoption of sui generis
system the member countries have choice to frame legislations that suit to their own
system.
To meet the requirements of TRIPs Nepal hasdrafted Plant Variety Protection, 2005 bill. It
is not approved yet. This draft bill needs harmonization with the broader biodiversity
policies and legislations such as draft Bill on Access to Genetic Resources and Benefit
Sharing, 2002 1 which is still in the process of approval by the GoN. There are some
overarching issues between these bills. For example, both the bills have mentioned the role
of farmers. Harmonization is needed between these two bills because absence of role
clarity will jeopardize the implementation of the laws being drafted.
As WTO member Nepal has adopted sui generis system which is very much balanced in
protecting the rights of breeders, farmers and farming communities. More than a decade
has passed since Nepal’s accession to WTO in April 2004,Nepal has yet to makeadequate
preparations for the development of appropriate legislations and institutional frameworks
to protect Nepal’s rich plant genetic resources and ensure immutable rights of farmers and
farming communities.This paper will be supportive in the formulation of such legislation.
1
Technically drafted by the Ministry of Forest and Soil Conservation of Nepal.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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5.
Objectives
The main objective of this paper is to analyse key issue on how to develop and put in place
a mechanism that recognizes and rewards farmers for their contributions in preserving and
conserving PGRs and traditional varietal wealth and, at the same time, provide breeders
with adequate protection of IPRs of plant varieties to stimulate plant variety innovations.
6.
Questions to be Addressed
Some specific questions to be addressed by the assessment will include the following:
 How to develop and implement an effective system for protection of plant varieties and
rights of farmers, plant breeders and researchers?;
 What provisions will ensure farmer's rights to use, save, re-use, exchange, breed, sell,
conserve and to have access to diverse open source seeds, which can be saved?;
 What will recognize and reward farmers for their contributions to conserve, improve and
make available PGRs for development of new plant varieties?;
 How to protect plant breeders’ rights to stimulate investment for research and
development and evolution of new varieties?; and
 What reforms are needed in policies and legislations to facilitate the growth of seed
industryand to ensure availability of high quality seeds and planting materials to
farmers?
The ultimate purpose of the assessment is the identification and recommendation of
specific policy reforms and elaboration of expected results from each of the reforms for
ensuring seed security.
7.
Some Definitions
The definitions presented here have been adopted from several sources. Efforts have been
made to present the definitions from national vision, policies, legislations and reports
related to seeds of Nepal. Other sources have been used for definitions if they were not
available in the national documents.
Biological Diversity
It is the variability among living organisms from all sources including, inter alia,
terrestrial, marine and other aquatic ecosystems and the ecological complexes of which
they are part: this includes diversity within species, between species and of ecosystems14.
Ecosystem
It meant a dynamic complex of plant, animal and micro-organism communities and their
non-living environment interacting as a functional unit15.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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Country of Origin of Genetic Resources
It meant the country which possesses those genetic resources in in-situ conditions16.
In-situ Conditions
It meant conditions where genetic resources exist within ecosystems and natural habitats,
and in the case of domesticated or cultivated species, in the surroundings where they have
developed their distinctive properties17.
Habitat
It meant the place or type of site where an organism or population naturally occurs18.
In-situ Conservation
It meant the conservation of ecosystems and natural habitats and the maintenance and
recovery of viable populations of species in their natural surroundings and, in the case of
domesticated or cultivated species, in the surroundings where they have developed their
distinctive properties19.
Ex-situ Conservation
It meant the conservation of components of biological diversity outside their natural
habitats20.
Country Providing Genetic Resources
It meant the country supplying genetic resources collected from in-situ sources, including
populations of both wild and domesticated species, or taken from ex-situ sources, which
may or may not have originated in that country21.
Domesticated or Cultivated Species
It meant species in which the evolutionary process has been influenced by humans to meet
their needs22.
Genetic Resources
It meant genetic material of actual or potential value23.
Genetic material
It meant any material of plant, animal, microbial or other origin containing functional units
of heredity24.
Seed
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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It is a matured ovule having embryonic plant, food substance and protective cover on seeds
or germ which can be used in sowing or planting to produce crops by reproducing sexually
or asexually25.
Crops
These are crops such as fruits, cereals, vegetables, cash and grass crops26.
Kind
Plants of one or several close species or sub-specieswhichare identifiable individually or
collectively and usable in the agricultural activity27.
Agricultural Activity
Agricultural activity means the activity of producing fruits, cereals,vegetables, legumes,
oils, cash and grasscrops28.
Variety
Variety is the lowest group of plants having similar genetic characteristics in the
classification of botanical science, distinguished from any other plant groups by the
expression of at least one of the characteristics whose attributes do not change after
propagation29.
Notified Seed
Anotifiedseed is a species or a variety of a crop notified in Nepal Gazette for the purpose
of regularizing or controlling their use in agriculture andGoN may define the domain for
such species or varieties (Seed Act, 2045,Section 11)30.
Farmers’ Variety
This definition has been developed based on the “Protection of Plant Varieties and
Farmers’ Rights Act 2001” of India (PPVFRA)31. According to this Act, a variety which
has been traditionally cultivated and evolved by the farmers in their fields, or it is a wild
relative or landrace of a variety about whichthe farmers possess common knowledge.
Farmer
A farmer is any:




Personwhocultivates crops by cultivating the land himself32; or
Personwhocultivates crops by directly supervising the cultivationof land through any
other person33; or
Personwhoconserves and preserves, separately or jointly, with anyperson any wild
species or traditional varieties, or addsvalue to such wild species or traditional varieties
throughselection and identification of their useful properties34;or
farming communitycomposed of individual farmers who cultivate crops individually
but represent a locality such as village or Village Development Committee/s (VDC/s)
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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ordistrict/s or development region/s or ecological belt/s such as mountain or hill or
Terai(plain area of Nepal) or entire country.
Sui Generis System
Sui generis is a Latin phrase, meaning "of its own kind or genus" and hence "unique in its
characteristics"35.
As per Article 27.3(b) of TRIPs,sui generis system is one of the systems for protecting
plant varieties. This system is for integrating the rights of breeders and farmers and taking
care of the concerns for equitablesharing of benefits. The member country has the choice to
frame legislations that suit country’s own system36.
Breeder
Breeder is a person, organization or an entity/body who/which brings into uses of any
variety of the crops after breeding or selecting varieties for the first time37.
Benefit Sharing
It is sharing of benefits equitably among breeders and farmers who have either developed
or conserved variety or have done both.Both of breeders as well as farmers should get
equitable share of benefit. In other words, there should be mechanism to share benefits
equitably between the breeders and the farmers. Breeders should get their equitable share
of benefits for developing variety. Likewise, farmersshould get equitable share of benefits
for their plant varieties being used for developing new varieties by the breeders. Here the
reward to farmers and farming communities for conserving plant varietyis implied.
Farmer’s Rights
ITPGRFA 38 has not defined Farmers’ Rights because famers’ situation and perceptions
differ by countries. ITPGRFA Paragraphs 9.2 and 9.3 together authorize the Contracting
Parties to define Farmers’ Rights in their own local and national contexts as well as to
devise mechanisms to implement themaccording to their needs and priorities. This paper
has considered bundles of farmers’ rights (discussed and defined in later part of this paper)
such that it motivates them to conserve biodiversity as well as promote scientific
innovations in future in line with Pareto Optimality39. The bundles of such rights have been
derived mainly from FAO ITPGRFA and CBD.
Plant Breeder’s Rights
Plant Breeder's Rights are IPRsgiven to a person who has developed a variety which must
be: new; clearly distinguishable from any other variety whose existence is a matter of
common knowledge; sufficiently uniform in its relevant characteristics; and stable40.
Researchers’ Right
Right to use of any variety registered under the Actby any person using such variety for
conducting experimentsor researches and the use of a variety by anyperson as an initial
source of a variety for the purpose ofcreating other varieties provided that the authorization
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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ofthe breeder of a registered variety is required where therepeated use of such variety as a
parental line is necessaryfor commercial production of such other newly
developedvariety41.
Protection of Plant Varieties
A plant variety is defined as a plant group within a single botanical taxon of the lowest
rank. The person who breeds plants and has discovered and developed a new plant variety
he is called a "breeder" and he can seek protection for his new plant varieties by applying
for a grant of protection for a plant variety.The grant of protection can last for the defined
period of time (as long as the breeder pays an annual fee) and the plant variety becomes his
personal property42.
The PPVFRAhas defined the duration of such protection from the date of notification of
particular variety as given below:
For trees and vines
For other crops
For extant varieties*
18 years
15 years
15 years
* An extant variety is a variety available in India which is: (a) notified under section 5 of Seeds Act, 1966; or (b) farmers’
variety; or (c) a variety about which there is common knowledge; or (d) any other variety which is in public domain.
Intellectual Property Rights
Generally, protection for intellectual property extends to intellectual creations in order to
incentivize innovation, and depends upon the nature of the work and its "characteristics".
The main types of intellectual property law are: copyright, which protects creative works;
patent, which protects invention; trade secret, which protects information not generally
known or readily ascertainable that is valuable to the secret holder; and trademark, which
protects branding and other exclusive properties of products and services. Any matter that
meets such criteria is protected.However,sui generisstatutes exist in many countries that
extend intellectual property protection to matter that does not meet characteristic
definitions. For example, plant varieties require sui generis statutes because of their unique
characteristics.
Seed Security
According to FAO definition, “seed security is defined as ready access by rural
households, particularly farmers and farming communities, to adequate quantities of
quality seed and planting materials of crop varieties, adapted to their agro-ecological
conditions and socioeconomic needs, at planting time, under normal and abnormal weather
conditions”.
8.
Treaties, Policies and Legislations Related to Protection of Farmers’ Rights
Nepal has been the parties for several international treaties and conventions. As per the
requirement Nepal has already formulated and is in the process of harmonizing as well as
formulating policies and legislations. Brief about these are presented below.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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8.1
Convention of Biological Diversity 1992
Convention of Biological Diversity 1992(CBD) was adopted on 5 June 1992 at the United
Nations Conference on Environment andDevelopment at Rio de Janerio, Brazil. The
Convention came into force on 29 December 1993.Currently, 194 countries are contracting
parties to CBD. Nepal signed the Convention on 12 June 1992, ratified on 23November
1993 and became party on 21 February 199443.
CBD has three major objectives: (a) conservation of biological diversity;(b) sustainable use
of its components; and (c) fair and equitable sharing of the benefits arising out of the
utilization of genetic resources.
As a contracting party to CBD, Nepal has obligation to enact and implement anational
Access and Benefit Sharing Law. It is, therefore, the Ministry of Forest and Soil
Conservation (MoFSC), as a focal point, which has prepared the draft bill of Access to
Genetic Resources and BenefitSharingAct, 2002 which is still under consideration for
finalization.
8.2
International Treaty on Plant Genetic Resources for Food and Agriculture
ITPGRFA was approved during the FAO conference in 2001 after more than 15 sessions of
the FAO Committee on Genetic Resources and its subsidiary bodies. The Treaty was
introduced toharmonize the international undertaking on PGRs signed in 1983 with CBD.
TheTreaty came into force on 29 June 2004 and, until now, 193 countries have become
members of this Treaty.Thecategories of memberships are: by contracting parties -135
countries; by only signatories -11 countries; and by non-contracting parties -47 countries.
Nepal is not a contracting party but has ratifiediton 2 January 2007 and the confirmation
received in 2009 and GoN has already nominated National Focal Point44.
This legallybinding treaty covers 64 species of PGRs of only food and agriculture (it does
not cover other PGRs such as medicinal and aromatic plants)for ensuringcontinuous
availability of plant genetic resource for food and agriculture (PGRFA) to feed people and
assure food security at national and globallevels (Annex 1). This provision requires
members to survey, prepare an inventory, conserve PGRFA, andto take legal policy and
legal mechanism to promote their sustainable use. Members, especially the developing
countries,should also agree toprovide technical assistance to one another.
The treaty hasrecognized that farmers have great contribution in conserving, improving and
making availablePGRs for sustainable agriculture and food security. It has also recognized
the rights offarmers to have benefit for such contribution through multilateral system. In
Article 9 of this treaty (Annex 2),it has accepted that farmers have been playing role of
custodians of PGRs from ancient time andprovides exclusive rights to farmers for saving,
using, exchanging and selling farm saved seed or propagating materials. In the same
Article, the treaty also mentions other important farmers’rights such as right to TK, right to
participate in sharing benefits (Annex 3), and right to participate in makingdecisions at the
national level. Regarding the implementation of these farmers’ rights, the treatystates, “...in
accordance with needs and priorities, each contracting party should, as appropriate,
andsubject to its national legislation, take measures to protect and promote Farmers’
Rights”45.
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8.3
TradeRelated Aspect of Intellectual Property Rights
Nepal became the member of WTO on 23 April 200446. It contains several multilateral
legally bindingagreements to the member countries. Among them, Trade Related Aspect of
Intellectual Property Rights (TRIPs) is the most comprehensive agreement onintellectual
property and is a minimum standards agreement anditallows members to providemore
extensive protection of intellectual property if they so wish to. TRIPs have given option to
memberstodetermine the appropriate method of implementing the provisions of the
agreement with their ownlegal system and practices. The main purpose of granting IPRs is
to legally recognize and rewardthe creator for his/her intellectual creation. A total of 193
parties have signed this Treaty and Nepal is the contracting party of TRIPs by
accessionandGoN, MoAD has nominated national focal point for dealing with TRIPs
related aspects47.
However, TRIPs has also been criticised on forcing patents on seed 48 . Patents on seed
which allow corporations to own seed are illegal at many levelsas mentioned below.





First, seed is not an invention. Seed is constantly creating and recreating itself. To treat
seed as a corporate invention and grant corporations patents on seed violates ethics or
patent law itself,
Second, all seed has been evolved by nature and farmers over millennia. The
corporation takes farmers’ varieties, use the trait they found commercially useful, and
take a patent or IPRs. Patents on seed are always based on biopiracy,
Third, patents on seed allow corporations to prevent farmers from saving and
exchanging seed. Thus, patent violates farmers’ right to save, use, reuse, breed and
exchange seed as their commons,
Fourth, patents on seed allow corporations to sue farmers’ after the GMO is owned by
corporations. They genetically contaminate farmers’ non-GMO crops. This happened
to Percy Schmeiser, the Canadian farmer, and
Fifth, the international law that forced patents on seed, the TRIPS agreement, is itself
currently illegal because it exists in violation of the mandatory review built into the
agreement.
The IPRs includecopyright and related rights and industrial property rights (trade mark,
geographical indication,patent, industrial design, trade secret, layout design of integrated
circuit and plant breeders' right). With legal binding, each member country has to provide
plant variety protectioneither by patent or bysui-generis system or combination of both. As
a member country, Nepalis committed to implement the national IPR laws in compliance
with the TRIPsAgreement. During its accession to the WTO, Nepal chose to develop a sui
generis system for theprotection of plant varieties, that is, granting of plant breeders’ rights
certificates and not patents tothe inventors of new plant varieties. In addition, it has made a
commitment to introduce a separatefree-standing act to deal with plant variety protection
which intended to protect the rights of relatedstakeholders in accordance with the needs of
the country.
As per TRIPs, MoADdrafted the Plant Variety Protection and Farmers Right Actin 2004.
However, it is still in the process of approval. The draft mainly focuses on the
protectionofthe rights of the farmers as well as the rights of the breeders. In the drafted bill,
rights ofthe farmers refer rights over their plant resources and traditional knowledge,
assurance of ABS and PICmechanism and free to save, use, re-use, exchange and sell the
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
12
seed without any obstacle. However, the draft bill needs wider stakeholder consultations
and rigorous exercises starting from rephrasing the title of the bill. For example, the title of
the bill better reflects its object if it is “Protection of Farmers’ Rights on Their Plant
Varieties Act” (PFRPVA).
8.4
Cartagena Protocol, 2000
Nepal has made commitment on Cartagena Protocol on Bio-safety by signing it on2 March
2001but it has not yet been ratified. A total of 168 parties have either signed or ratified the
Protocol 49 . The main objective of the protocol is to pay specialattention to the transboundary movement of Genetically Modified Organisms (GMOs) on the basis of advanced
informed agreement.GoN has the responsibility to formulate the laws and policies related
to the release, use and marketingof GMOs according to the national bio-safety frameworks
in Nepal. In thiscontext, National Seed Policy 2000, National Agriculture Policy 2004 and
Agro-biodiversity Policy2007of Nepal are some documents that state for some legal
framework on bio-safety foragriculture. The bio-safety policy is in the process of
formulation with the support from FAO.
8.5
Convention of the International Union for the Protection of New Varieties of
Plants
The Convention of the International Union for the Protection of New Varieties of Plants
(UPOV) was adopted in Paris in 1961. It established the International Union for the
Protection of New Varieties of Plants to exclusively establish plant breeders’ rights over
plant varieties that are novel, distinct, genetically uniform and stable for a given period of
time. The Convention was enforced in 1968 and was revised in 1972, 1978 and 1991. The
UPOV 1978 entered into force on 8 November 1981 and UPOV 1991 on 24 April 1998.
Each revision strengthened the rights of plant breeders over the new varieties of plants that
they have developed. UPOV 1991 is particularly problematic in relation to the ITPGRFA
for the following reasons:



It restricts farmers to exchange and sell seeds of protected varieties from their harvest
thereby reducing the number of farmers to farmers exchange of necessary genetic
materials;
With the introduction of plant variety in a country, local varieties are replaced fast
thereby reducing the access to seed diversity because multilateral corporations tend to
increase their market shares firmly; and
The seed sector in developing countries never had chance to adapt to a slowly emerging
IPR regime as in the North. This makes it extremely difficult to establish rights on the
formal knowledge of already existing plant varieties which is necessary to judge
whether a variety over which plant breeders’ rights are sought is really ‘new’.
However, the burden of proof lies with the farmers. It requires strengthening farmers’
institutional and financial capacity to challenge the rights conferred to breeders.
Establishment of legal instrument for ABS could be a response to IPRs in the North.
8.6
National Seed Vision 2013-202550
The National Seed Vision identifies new crop varieties and quality seeds the most viable
means to improve agricultural production and food security sustainably. The Vision aims
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
13
to increase crop productivity, raise income, and generate employment opportunities
through self-sufficiency, import substitution and export promotion of quality seeds. The
conceptual framework of the Seed Vision is based on the components of seed value chain
such as: variety development and maintenance; multiplication;processing and conditioning;
marketing; and use of seed.
The Vision envisages doubling the number of location specific high yielding competitive
varieties to be released by 2025. It also envisages increasing the improved seed production
by threefold through formal system, increasing seed replacement rate at least by 25 percent
for cereals and by 90 percent for vegetable crops, and making edible food availability by
2025 at 8 million metric ton worth around NPR (Nepalese Rupees) 200 billion at 2013
price in order to contribute significantly towards ensuring food security to poor, women
and disadvantaged groups.
In order to achieve the stipulated targets, the Vision proposes four strategic directions: (a)
strengthen varietal development, release and maintenance using diverse gene pool both
from local and exotic sources;(b) support public, community and private enterprises in seed
multiplication, processing and conditioning through efficient seed quality services;(c)
enhance marketing skills of seed entrepreneurs and invest in seed related infrastructure;and
(d) promote use of quality assured seeds by expanding farmers’ choice including useof
local genetic resources. The aim of adapting these strategies is to create enabling policy
environment for developing efficient and effective public, community and private seed
related organizations with business culture. Implementation of Seed Vision is expected to
lead to food security, employment generation, biodiversity conservation, climate change
adaptation besides gender equity and social inclusion.
8.7
National Seed Policy, 2000
This Policy has been formulated with the objectives of: (a) systematically availing seeds of
different crops in required quantity and quality; (b) promoting export with the production
of quality seeds; (c) making seed business effective in view of existing world trade; and (d)
coordinating with other organizations to establish rights on Nepal’s own genetic seed
resources and to sustain and protect Nepal’s own specialty genetic resources of seeds.
Accordingly, provision has been made to grant rights on local variety for bio-diversity
conservation.
Themajor areas related to seed business covered by this Policy include: variety
development and maintenance; seed multiplication; quality control; increasingthe
involvement of private sector in seed business; seed supply arrangement; institutional
strengthening; and bio and modern technology.
8.8
Seed Legislations
There are two legislations related to seed in Nepal. These include Seed Act,1988 and Seed
Regulation 2013.The Act was ordained on26 October 1988and the Regulation was enacted
on 25 February 2013. Brief about these laws in relation to farmers’ rights are presented
below.
When the Act was promulgated on 26 October 1988, nothing specific on Farmers’
Rightswas specified in the Act. The Act recognized the rights of the farmers only when the
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
14
first amendment of the Act wasdone on 24 January 2008. The Act recognized the
ownership on the traditionally used local crop varieties by adding Clause 18(Ka) after
amendment.
Based on the Act some rules have been specified in the Seed Regulation, 2013.Clause
12(2&3) of the Regulation has made provision for the registration of traditionally used
indigenous local crop varieties produced within the country51. Part-Ghaof Annex-1 of the
Regulation related to this Clause presents the sample application to be submitted by the
farmer or organization or entity. The applicant could be an individual or organization or
other entity for the registration of traditionally used local crop varieties.
The Regulation has also made provision for approval, release and registration of variety
and ownership rights to breeders,power to notify the kind and varieties and prescribe the
seed quality attributes and its minimum standards, provision for the registration of seed
traders, and ban to sell un-notified kind varieties.Clause 12(5) of the Seed Regulation bans
the registration of varieties with terminator technology (seeds with sterile pollens).
Other important features of the Seed Regulation, 2013 are: quality control system and
validity period of seed testing; establishment/functions, duties and responsibilities of
Central Seed Testing Laboratory and other seed testing laboratories established in public
and private sectors; procedures for licensing, renewal and withdraw of license of private
seed testing laboratories; compulsory provision of truthful labeling of container of notified
kind varieties (i.e. voluntary seed certification) and necessary information on it; permission
from NSB for import and export of notified kind varieties from Nepal; provision of crop
inspector, seed sampler, and seed analyst and their minimum qualification and examination
procedures; procedures for renew and revoke the license of seed traders, crop inspector,
seed analyst and seed sampler; functions, duties and responsibilities of crop inspector, seed
sampler, and seed analyst; compensation system to farmers in case of low quality and
wrong information about seed; provision of seed service charge; recognition provision to
national and international organization involved in seed testing, certification and
Distinctiveness, Uniformity and Stability (DUS) test; provision to institute the cases and
punishment; power to hear and appeal the cases and frame out seed rules for seed law
enforcement; and regulate the use of GMOs.
8.9
Agro-biodiversity Policy, 2007
The genetic resources specified in this policy include - plant genetic resources (grass and
pasture crops including tree species which are inseparable part of cropping system of these
crops), animal genetic resources, fish genetic resources, insect genetic resources, microorganism genetic resources, and wild species of cultivated and domesticated species
[Annex-1 (Ka) of the Policy]52. This Policy does not deal with the genetic resources of
cultivated crops.
This Policy has defined farmer as - “local individual or community involved in protection,
conservation and development of local food and agricultural genetic resources based on
TK, skill, exploration, technology-know-how, practicesetc.”
Similarly, the Policy defines TK as - “the knowledge, skill, exploration, technology-knowhow, and practices inherent within local individual and community”. The Policy has also
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
15
defined the benefit sharing as - “sharing of economic and other benefits accrued from
access to, use and export of genetic materials and genetic products.”
Clause 5(Ka)(2) is just about encouraging and strengthening traditional and other
distribution systems of farmer-to-farmer seed exchange. Clause 5(Kha) has elaborately
defined five policies to protect and conserve farmers’ rights and welfare on TK, skill,
exploration, technology-know-how, use and practices. These five policies include:
(a)protection of TK, skill, exploration, technology-know-how, use and practicesrelated to
management of traditional and local food and agricultural genetic resources; (b)ownership
and responsibilities for the protection, conservation and development of traditional and
local agricultural genetic resources to be remained with the farmers and the GoN; (c)
preparation of scientific description after collection, classification and evaluation of
agricultural genetic resources; (d) farmers’ rights on traditional and local knowledge, skill,
exploration, technology-know-how, use, practicesetc remain with the famers; and (e) make
separate agreement with the organization which provides prior permission to have access to
food and agricultural genetic resources for the development of new technology and for
doing business. These should be done such that it does not negatively impact on
environment and biodiversity.
Similarly, Clause 5(Ga) of the Policy has elaborately defined four policies related to legal
and equitable sharing of benefits and opportunities created due to access to and use of
agricultural genetic resources. These four policies include: (a) the foreign organization can
have access to traditional local food and agricultural genetic resources after obtaining prior
permission of GoNwith defined conditionsbut permission will not be granted to
individuals; (b) permission of GoN is not needed to conduct study and research on food
and agricultural genetic resources within the country but PIC of concerned entity or famer
is needed; (c) benefits should be shared equitably due to the use of traditional and local
food and agricultural genetic resources or business being done by utilizing knowledge of
local community or IPRs; and (d) make provision of one window system for record
keeping of food and agriculture genetic resources and management of ownership, access,
benefit sharing and other aspects.
The Agro-biodiversity Policy provides some insights to the formulation of similar policy
provisions for Farmers’ Rights on their plant varieties. Nepal’s Agro-biodiversity
Policyand India’s PPVFRA are the very good references for the development of a separate
Act for Farmers’ Rights on their plant varieties.
9.
A Two-pronged Strategy as an Effective System for Protection of Farmers’
Rights
There are several studies and reports on Farmers’ Rights on their plant varieties. Most of
such farmers’ rights have been derived and defined with reference to TRIPs 53 ,
ITPGRFA54and CBD55. However, these treaties and conventions in isolation do not address
all the challenges related to conservation and utilization of biological diversity. Hence,
Farmers’ Rights has to be defined such that it addresses such challenges.
Adoption of sui generis system of protection is best suited for the developing countries like
Nepal. GoN has formally adopted this system for protection of rights. Accordingly, rights
of all three major stakeholders i.e. plant breeders, researchers, famers should be protected
in order to promote breeding, research/experimentation and conservation of plant varieties
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
16
and seeds. A separate legislation similar to that of India could be formulated. For example,
the new Act could be named as “Protection of Farmers’ Rights on Their Plant Varieties
Act” (PFRPVA) could be formulated in order to benefit all three major stakeholders.
Plant breeders’ rights also known as plant variety rights (PVR) are the rights granted to the
breeder of a new variety of plant that give the breeder exclusive control over the
propagating materials (such as seed, cuttings, divisions and tissue culture) and harvested
materials (such as cut flowers, fruit and foliage) of a new variety for a number of years.
With the provision of such rights in the legislation, the breeder can choose to become the
exclusive marketer of the variety, or to license the variety to others. A clear provision and
enforcement of PVR can expedite the development of new varieties of plants that produce
higher yields, prove better quality or provide better resistance to plant pests and diseases.
Since development of such variety originate from the local or indigenous varieties, the
rights of farmers should also be built in equitable sharing of benefits of PVR.
If all varieties are booked with patents and registration, it will create obstacle for
innovations through experimentation or research. Hence, researchers should be provided
with the rights of conducting bona fide experiments or researches on any varieties whether
it is protected or registered under the new Act. As in India, the researchers should be
provided access to protectedvarieties for bona fide experiments and researches. The
Section 30 of India’s Act states:“Nothing contained in this Act shallprevent: (a) the use of
any variety registered under this Actby any person using such variety for conducting
experimentsor research; and (b) the use of a variety by anyperson as an initial source of a
variety for the purpose ofcreating other varieties provided that the authorization ofthe
breeder of a registered variety is required where therepeated use of such variety as a
parental line is necessaryfor commercial production of such other newly developed
variety.”
In Nepal’s farming system prominence of individual farmer has always remained in
shadow. However, with the rise in the number agriculture graduates prominence of
individual farmer entrepreneurs is getting starkly visible. The probability of such farmer
entrepreneurs getting involved in scientific breeding is also getting high. In addition, the
farmers as well as farming communities are also traditionally involved in development of
new varieties through selection. In addition, they have also been involved in conservation
of such plant varieties for generations. These local or indigenous landraces have been the
rich source of gens for scientific breeding.Such invaluable contribution of farmers and
farming communities have never been recognized and rewarded in the past. Now, with the
enforcement of patents and rights given to plant breeders and researchers in developed and
developing countries, it is the right time that the contribution of farmers are recognized and
provided them with the legal rights to get the benefits of their own contribution. Provision
of such rights should be included in the new legislation to be formulated in future.
Nepal has formulated and enforced 20 policies, nine Acts, 18 Regulations and six orders
related to agriculture. Most policies have not been so effective. Among several reasons,
failure to devise legal provisions for policy implementation has been one of the important
reasons. Therefore, a two-pronged strategy should be adopted to promote conservation of
Nepal’s rich agro-biodiversity and at the same time encourage innovations in agriculture
through research, experimentation and breeding. Protection of rights of the farmers is a
pre-requisite for the success of such strategy
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
17
An effective system of protection of Farmers’ Rights is very much urgent considering: (a)
the accelerating erosion and disappearance of plant genetic resources from the globe as
pointed out by FAO56; (b) Nepal’s endowments of rich plant genetic resources (having
explicit capabilities of withstanding harsh conditions, resistance to several pests and
diseases etc); (c) to recognize the rights of farmers arising from their contribution in
conserving, improving and making available plant genetic resources to develop new plant
varieties; and (d) to fulfil obligations of international treaties and conventions.
10.
Bundle of Farmers’ Rights
The GoN should rigorously get involved on further development of draft Plant Variety
Protection and Farmers’ Rights Act, 2005. It should be carefully revised to make it holistic,
reflect the real life situations, to effectively establish farmers’ rights, and make it
implementable with clear and strong legal provisions and institutional arrangements.
India’s PPVFRA, Nepal’s Agro-biodiversity Policy and Seed Regulation are the good
references for this purpose.It is suggested that the title of the Act should also be revised.
The title - “Protecting Farmers’ Rights on their Plant Varieties Act” (PFRPVA) would be a
best fit which reflect the theme and objective of the Act. Based on the review, it is
recommended that that Nepal focus on five bundles of farmers’ rights while designing new
Act. These mainly include: (a) rights on plant varieties (i.e. right to develop new varieties,
and save, use, re-use, exchange and sell of their own farm produced seeds); (ii) rights on
traditional knowledge of their plant genetic resources; (iii) rights on equitable share of
benefits; (iv) rights to participate in policy decision making process related to plant genetic
resources; and (v) rights to claim compensation for losses due to bad quality seeds or
wrong information.Brief about these rights are presented below.
a. Rights onPlant Varieties
Farmers’ varieties and landraces are vital for livelihoods as they enhance food security,
strengthen social cohesion, maintain cultural integrity, and build climate resilience57.The
plant varieties that we use have been carefully selected,domesticated from wild, improved,
conserved, re-used, and exchanged by hundredsof generations of farmers. Those noble
deeds are under attackdue to introduction of different laws as per some international
treaties and conventions as well asarrival of commercial seed industries.These are
restricting use, saving, re-use and exchange of seeds. Continued access to plant genetic
resources for food and agriculture is vital. Proliferation of genepatents is taking away
Farmers’ Rights to use, save, re-use, andexchange seeds. These changes criminalize the
age-oldcustomary practices of farmers58.
International instrument like ITPGRFA has not clearly recognized the right to register
farmers’ plant varieties for granting of IPR as farmers’ right. Hence, a separate Act
exclusively dedicated for this vast area should be formulated. The Act should include
primary rights of the farmers such as: (a) right of the farmer to save, use, and sell farm
saved seeds; b) right of the farmer to further develop the varieties created by the breeders;
and (c) give farmers IPRs over their assets (plant varieties and TKs).
Section 39 of India’s PPVFRA provides farmers the right to register a variety bred,
evolved or conserved (whether new or extant) by them, as its breeder. Although, the
Malaysian, Thai and Philippine Acts have not defined the term farmers’ variety but these
legislations recognize the right of farmer to register a new variety at par with the
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
18
breeder59.However, the farmers’ variety should comply with the criteria for a variety such
as distinctiveness, uniformity, stability and novelty (DUSN) to be registered as avariety.
b. Rights on Traditional Knowledge
Article 8(j) of CBDhas defined rights of local communities on TK whereas Article 9.2(a)
of ITPGRFA has defined rights of farmers on TK. Being the party of both CBD and
ITPGRFA, Nepal has obligations to formulate and enforce such rights through legal
provisions. Hence, new Act should also include the rights of farmers on TK.
The access and benefit sharing (ABS)of genetic resources and prior informed consent
(PIC) are the two major equity concerns in the commercialization process of biological
diversity and TK that have been recognized and legitimized in CBD which ensuresthe
sovereign rights of the states over their biological resources, so national government,
subject totheir national laws, is conferred the authority to determine access to genetic
resources. Accordingly, access to genetic resources should be on mutually agreed terms
and also on PIC of the partiesproviding the access. The providing and accessing parties are
required to establish legal,administrative and policy measures on mutually agreed terms to
achieve fair and equitable sharingof technological benefits arising from research and
developments, and economic benefits arisingfrom the commercial utilization of genetic
resources.
Nepal’s traditional farming system has been observed not only conserve seeds of diverse
traditional varieties but also inherit rich accumulated traditional knowledge and skills onthe
continuous cultivation, selection, maintenance and conservation techniques for seeds and
varieties. TK is rich accumulation of such knowledge and skills carried over farmers and
farming communities over generations. Therefore, farmers’ rights on their TK should be
legally established.
c. Rights on Equitable Benefit Sharing
The farmers should be rewarded because their generations have conserved, improved and
availed plant genetic resources.Such contribution has not been sufficiently recognized and
rewarded. ITPGRFA has recognized such contribution but not identified it as a component
of farmers’right under its Article 9. However, CBD1992 emphasizes on fair and equitable
sharing of benefits derived from the commercial use of genetic resources.
Thus, two major equity concerns should be addressed in the commercialization process of
agro-biological diversity and TK. These mainlyinclude: (a) ABSof genetic resources; and
(b) PIC. These ensurethe sovereign rights of the states over their biological resources. The
national government, subject totheir national laws, is conferred the authority to determine
access to genetic resources. Access to genetic resources should be on mutually agreed
terms and also on PIC of the partiesproviding the access. GoN, as providing and accessing
party,is required to establish legal,administrative and policy measures on mutually agreed
terms to achieve fair and equitable sharingof technological benefits arising from research
and developments, and economic benefits arisingfrom the commercial utilization of genetic
resources.
Gauchan, 201160has also pointed out that benefit sharing mechanism should include both
financial and non-financial benefits. However, the benefit-sharing mechanism must be
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
19
made simpler and less bureaucratic. Mechanism should be developed to deliver the
revenues earnedfrom benefit sharing to the concerned farmers.
At this situation it is extremely difficult to say howmuch benefits will have to be shared
throughthe benefit-sharing mechanism and how to distribute benefits to farmerswho
conserve and sustainably usecrop genetic resources. Norwayhas unilaterally announced to
payan amount equivalent to 0.1 percentof all its seed sales to the benefitsharingmechanism, suggesting other countriesto follow suit (SWATEE, 2009) 61 . Some
Europeancountries have followed this and the first funds from thebenefit-sharing
mechanism are being distributed but there isstill a long way to go until the requiredfunds
have been secured.
d. Rights to Participate in Policy Decision Making Process
This is one of the four rights of the farmers recognized in Article 9.2(C) of ITPGRFA i.e.
the right to participate in decision making on matters related to the conservation and
sustainable use of plant genetic resources and farmers’ rights.
In Nepal, generally, policies and laws are formulated based on technical knowledge,
experiences and secondary information of the technocrats. The decisions on the
formulation of policies and laws are made in isolation of real major stakeholders. The
participation of such stakeholders has been overlooked in the policy and law formulation
processes. Hence, such policies and laws have either never been implemented or been
implemented partially.
Nepal can adopt various mechanisms through which farmers’ can participate in decision
making. MoAD, FAO and International Fund for Agricultural Development (IFAD)
initiative on bringing paradigm shift in policy process (under Pro-poor Policy Approach
Program) could be adopted as the holistic approach and a paradigm shift in policy and law
formulation processes. Similarly, the consultation meetings and workshops with the major
stakeholders as adopted during the development of Agriculture Development Strategy
2015-2025 (ADS) at central and local levels. Thisis an example of wider stakeholder
consultation and such strategies should also be adopted. The representatives of leaders of
the farmers and farming communities or their organization could be involved to hear their
voice for decision making on their rights to own, develop, save/store, re-use, exchange, sell
and share benefits of use of their plant genetic resources for commercial purposes. The new
Act which is in the process of formulation should include such provisions.
e. Rights to Claim Compensation for Losses Due to Use of Protected Varieties
Farmers should also get rights to claim compensation for losses incurred due to use of new
protected varieties depending on the contexts and situations. In some cases, situation may
arise when farmers use new protected varieties (with breeders rights or patent rights), the
crop may fail and farmers may incur losses due to bad quality of the seeds or wrong
information supplied about the new varieties. In addition there may be cases where
breeders may develop new variety from the use of farmers’ varieties without prior consent
of the farmers. In such cases farmers should have right to claim ownership rights and get
equitable share of benefits derived from the commercialization of such new varieties.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
20
Since last few years Nepal is experiencing a great loss of farmers crops due to use of some
protected and some illegally imported exotic crop varieties. Severe cases of crop losses
were observed in Bara, Bhaktapur and other districts in hybrid maize. In the absence of
strong legal provisions to make concerned entity compensate for the loss the GoN was
compelled to adopt some relief measures for the poor farmers. The farmers, in general,
were robbed thrice - first by robbing farmers’ plant genes which originally came from the
farmer conserved varieties without sharing benefits of variety being developed from their
parental line, second by robbing them by not compensating for crop loss, and third by
robbing farmers by charging exceptionally high price as compared to farmers’ own seed.
Hence, development and enforcement of a clear and strong legal and institutional
instrument with simplified but legally strong provision for compensation should be
devised. Registration of farmers’ plant genetic resources is a pre-requisite for all these.
The new Act should exclusively make legal provision for to effectively ban on the
production, import, export and use of terminator seeds because it is a direct assault on
farmers and indigenous cultures and on food sovereignty. A strong monitoring mechanism
should also be developed with severe penalty with longest possible life imprisonment in
the violation of law. A legal system for declaration of non-terminator seed should be builtin all seed related systems.
Terminator seed threatens the well-being of all rural people primarily the very poorest. The
aim of terminator seed technology 2 is to maximize seed industry’s profits by forcing
farmers to return to the commercial seed market every growing season. If commercialized,
terminator would make it biologically impossible for farmers to save their seeds and breed
their own crops. If a farmer loses the ability to save his seed, he cannot continue to select
plants that are best adapted to local ecology and community needs. Terminator seeds are
sometimes called “suicide seeds” because of the impact that terminator would have on the
livelihoods of the farmers. Thus, this technology can perhaps best be described as
“homicide seeds”62.
Terminator genes can move via pollen in the first generation to contaminate neighbouring
fields of open pollinated crops, passing on sterility genes and resulting in unexpected yield
loses for farmers. Terminator seeds could also be unintentionally introduced through seed
markets if mixing and contamination occur. Farmers would be unable to identify
terminator genes in their crop and seed supply until after planting the seed, and discovering
that the seed does not germinate. Sterile seeds could translate into significant yield loses.
Over time, persistent yield losses could force farmers and peasants to stop growing certain
crops, crops that may be important to family and community food security, lucrative
market crops or crops that are useful in rotation with others. If farmers buy terminator
seeds, they may eat or abandon their traditional seeds without realizing that their new crop
will render seeds sterile in the second generation. It would be virtually impossible for
farmers’ to seek compensation for contamination as there would be little chance of proving
that terminator genes were at fault. The costs in time and money of legal suits are also
burdensome for farmers and they face great odds in legal challenges against powerful
corporations. Farmers who find their seed contaminated with terminator genes could lose
trust in their own seedstock. If contamination is persistent, farmers could lose their
traditional and local varieties and be forced to abandon their own seed that is adapted to
2
Terminator technology refers to plants that have been genetically modified to render seeds sterile at harvest - it is also called Genetic
Use Restriction Technology or GURTS.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
21
local conditions and community needs. Loss of traditional varieties and decline in breeding
would also threaten the practice and retention of traditional and local knowledge.
11.
Expected Results of Protection of Farmers’ Rights
As discussed earlier there are several benefits in protecting rights of the farmers. Some
important expected results of protection of Farmers’ Rights are listed below.









12.
Farmer’s Rights to use, save, re-use, exchange, breed, sell, conserve and to have access
to diverse open source seeds are legally ensured,
Traditional varietal wealth are conserved by the farmers to stimulate plant variety
innovations by the breeders and researchers,
Use of farmers’ PGRs by breeders are rewarded through equitable ABS,
Use of farmers’ TK on selection, improvement, maintenance, conservation and the like
of their PGRs by any entity are rewarded through ABS of TK,
Farmer’s Rights to participate in policy decision making process are ensured,
Farmer’s Rights to compensation for the loss incurred due to use of bad seeds or wrong
information of protected varieties are ensured,
Adaptation and mitigation measures against climate change become possible with the
conservation and protection of farmers’ rich PGRs,
Development of seed industries sustained due to continuous availability of farmers’
rich PGRsfor breeders, and
Food security is ensured.
Plan of Action to Implement Protection of Farmers’ Rights
Nepal has formulated and enacted some policies and legislations related to seed sector
development and protection of breeders rights. However, present policies and legislations
still have some lacking specifically in recognizing the contribution made by the farmers
and farming communities to develop and conserve the local and indigenous varieties of
crops which are the excellent pool of genetic attributes to be utilized for further breeding
purposes. Hence, relevant treaties, conventions, policies and legislations were reviewed to
find the gaps and propose plan of action to implement the reforms.
Thus, this plan of action has been proposed based on analysis of gaps found during the
review of related treaties, conventions, policies, legislations and literature with focus on
protection of rights of farmers’ and farming communities’ for their contribution on the
conservation and development of local and indigenous varieties and seeds of crops.
The Plan includes formulation of legal and organizational instruments together with
development of mechanism for ensuring five Farmers Rights being identified. Brief
descriptions about these are presented below.
12.1 Formulation and Enforcement of Protection of Farmers’ Rights on Their Plant
Varieties Act
Act related to protecting the rights of the farmers and their plant variety should be
formulated and enforced in order to meet the requirement of TRIPs. Harmonization
between draft bills related to CBD and TRIPs should be made. For example, farmers’
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
22
rights on the wild relatives of their cultivated crops should be specified in the draft bill
prepared by MoFSC.
Farmers’ rights on the wild relatives of their cultivated crops should be specified in the
draft bill prepared by MoFSC. The term “Farmer” should be clearly defined in the new bill
to identify the owner of the plant varieties such that it encourages farmers to conservetheir
plant varieties. Similarly, types of Farmers’ Rights should be identified and defined. Legal
provision should be made to register and issue certificate of registration of farmers’
variety/ies to ensure farmers’ rights on their plant varieties.
Article 27.3(b) of TRIPs excludes patentability of plants and biological processes for their
creation. However, these are the farmers’ rich accumulated TK which should also be
protected through the development of legal instruments. So, legal provision for registration
and issuing certificate of registration of farmers’ TK on selection, development,
conservation, storage, maintenance etc. of their plant variety/iesshould be made in the new
PFRPVA.
Bio-prospecting or commercial use of useful traits or commercialization of the genetic
resources (GRs) cangeneratebenefits to the entrepreneurs. For this we should have full
information about the commercial value of the GR that the famers and farming
communities have which is stilldifficult to understand the use and non-use values of GRs.
Hence, registration ofimportant trait and valuation of these traits are necessary to have
some idea necessary fornegotiating the benefit sharing. The concern is that the benefits
should be shared equitablyamong the contributors. Contribution from the farmers or
farming communities or custodians for bio-prospecting isthe genetic materials whereas that
from the bio-prospecting company is capital goods and human resources. Without knowing
the value of the individual GR it is difficult to compare thosewith the capital goods and
human resources that can be valued at market price.The equitable share of monitory and
non-monitory benefits to the farmers and localcommunities can be realized in the following
ways63.

The benefits may be shared in terms of monetary payments like access fees or fee per
sample collected, advance payments in lump sum or sharing the benefits after earning
in the future or creating community conservation funds to support community
development.

The non-monetary benefits may be in terms of sharing new varieties developed,
research in local farms together with the farmers, joint ownership of varieties
developed, social recognition or awards to the donor of the genetic resources or the
development of social infrastructure like school, drinking water and road.
None of the Nepalese policies and legislations deals about the benefit sharing of the human
food crops. The Agro-biodiversity Policy 2063 deals benefit sharing of mainly non-human
food crops. The provision for payment for use of seeds or varieties of farmers and
communities should be made in the new Act together with detail modalities of
implementing benefit-sharing which is simpler and less bureaucratic. The revenues earned
should only be available for use by farming communities in the way that they decide.
An equitable benefit sharing mechanism between farmers and breeders or seed companies
for using farmers’ plant varieties and TK should be specified in the new PFRPVA.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
23
Similarly, legal provision should also be made for farmers’ rights to participate in the
policy decision makingin the new PFRPVA.
Nepalese farmers have bitter experiences of patented seed. The new Act should have clause
to protect them fromfakeseeds.There should be specific guidelines, for example,
compensationshould be twice the amount of loss assessment of “Local Plant Variety
Examination and Recommendation Committee” (LPVERC) and a jail term for repeated
offence. The legal provision for compensation of loss occurred due to use of protected
plant varieties should also be made in the new PFRPVA.
India’s Protection of Plant Varieties and Farmers’ Rights Act of 2001 is the most farreaching legislation with regard to establishing rights for farmers to save, use, exchange
and sell farm-saved seed. A unique aspect of this Act is that it confers three concurrent
rights - to breeders, to farmers and to researchers. When it comes to Farmers’ Rights, the
Act recognizes the farmer as cultivator, conserver and breeder. The Act establishes nine
rights of the farmers, of which the most important in this regard are the right to seed and
the right to compensation for crop failure (Art. 39):

The provisions on the right to seed specify that farmers are entitled to save, use, sow,
re-sow, exchange, share and sell farm produce, including seeds of varieties protected
by plant breeders’ rights. They are, however, not allowed to sell seeds of protected
varieties as branded packages. All the same, this stands as the most liberal legislation to
date in this sphere, allowing farmers all the customary rights they previously enjoyed.

The Act seeks to protect farmers from exaggerated claims by seed companies regarding
the performance of their registered varieties. The breeder is obliged to disclose to
farmers the performance of the variety under given conditions. If the material fails to
perform according to this information, farmers may claim compensation from the
breeding company through the authority set up to administer the Act.
Not only does the 2001 Act protect the rights of farmers to save, use, exchange and sell
farm-saved seed, it also seeks to ensure that these seeds are of good quality, or at least that
farmers are adequately informed about the quality of seed they buy. In addition, safeguards
are provided against innocent infringement by farmers. Farmers who unknowingly violate
the rights of a breeder are not to be punished if they can prove that they were not aware of
the existence of such a breeder’s right (Article 42).
Ensuring Farmers’ Rights to save, use, exchange and sell seed in this way must be seen as
a success with regard to this component of Farmers’ Rights, as these rights are basically
fully ensured through the Act. On the whole, India’s PPVFRA is the most advanced in
terms of Farmers’ Rights to save, use, exchange and sell seed to date. It applies to all
farmers in India, and to all crop species. So far, 12 crop species have been brought under
the scope of the Act, and more species will follow. The practice of saving, using,
exchanging and selling seeds may well exist elsewhere, but India is the only country so far
where a law has been passed establishing and securing Farmers’ Rights to this extent.
The most important lesson for others is that it is possible to uphold Farmers’ Rights to
save, use, exchange and sell farm-saved seed, also within the framework of legislation on
plant variety protection. India is a member of WTO and TRIPs and thus required to
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
24
‘provide for the protection of plant varieties’. With its 2001 Act, the country complies with
the provisions in the TRIPs Agreement on the protection of plant varieties. Other countries
like Nepal in the same position should therefore be able to pass similar laws without
neglecting their obligations towards the TRIPs Agreement.
The new Act of Nepal, which is in the process of finalization, should recognize the role of
farmers as contributorsof traditionalplant varieties for the breeding of new plantvarieties.
Breeders or industries or companies wanting to use farmers’ and farming communities’
varieties for creatingEssentially Derived Varieties (EDVs) should not be allowed to do so
without PIC of the farmers and farming communities. The provision should also be made
for registering claim and have it duly recorded at a notified centre. Ifthe claim is found to
be genuine, a share of profits made from thenew variety should go into a National Gene
Fund as has been provisioned in PPVFRA of India.
One of the studies conducted in India revealed that out of 1,654 applications only one
percent applications were registered for the farmers’ varieties whereas 73 percent
applications were registered for extant varieties and the rest 26 percent were for new
varieties 64 . Although, researcher has not analysed the reasons for lowest level of
application, the procedures to be followed and the higher amount of fee (as much as INR
20,000 for tests alone) to be paid for registration could be the reasons behind this. Thus,
this would not be the solution for conservation, development and utilization of local and
indigenous crop genetic resources through the protection of rights of the farmers’ and
farming communities. Some doable solutions should be devised to attain the noble goal of
conservation, development and utilization of rich crop genetic resources.
In comparison with the Indian farmers most Nepalese farmers are illiterate, poor,
subsistence oriented, isolated from information with low level of awareness about policies
and legislations. The new Act which is in the process of formulation should make wider
stakeholder consultations during formulation process, simplify the procedure for
registration and completely waive fee for registration. In addition, awareness campaigns
should also be organized and relevant documents and papers distributed among the leader
famers at free of cost.Until and unless farmers know the importance of their genetic
resources they are not motivatedfor conservation and protection. It is evident from the
study conducted in India that having a law is not enough, people’s awarenessand
participation are also essential. They should be made aware of endowments of their
invaluable resources, their rights and duties in the conservation, development, utilization
and benefit sharing.
12.2 Organizational Set-up for Ensuring Farmers’ Rights
There should be a strong organizational set-up to enforce legal provisions being made to
protect farmers’ rights. Efforts should be made to make the structure simple with clearly
defined duties and power and with least number of tiers or levels. Two tier institutions local and central have been proposed for protecting farmers’ rights on their plant varieties.
The brief description of the proposed organizations has been presented below.
Local Level Institution
A simple structure of local level institution to initially deal with the establishment of
farmers’ rights and registration of traditional local and indigenous varieties and TK has
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
25
been proposed with the provision of representation form the most relevant government and
farmers’ institutions. This organization could be named as “Local Plant Variety
Examination and Recommendation Committee” (LPVERC). This institution should be
established at the district with members representing the relevant organizations of public
and private sectors as given below.
Table 1: Composition of members in LPVERC
#
Post
Organization
1
2
3
Chief District Officer
Local Development Officer
Chief
4
5
6
7
8
9
Chief
Chairperson
Renowned Academician
Renowned Expert
Farmers’ representatives
Chief
District Administration Office
District Development Committee
Relevant NARC farm/centre looking after related
VDC or DDC or region
District Forest Office
Concerned VDC or DDC
Academic institution of related VDC or DDC
Any from Nepal
Farmers’ organization nominated by GoN
District Agriculture Development Office
Portfolio in the
Committee
Chairperson
Member
Member
Member
Member
Member
Member
Member
Member Secretary
The duties, responsibilities and power of this organization could be as listed below. Most
of these have been drawn from Gauchan, 201165.











Coordinateconservation and use of local plant genetic resources,
Maintain community biodiversity register (CBR) to document plant genetic resources
at farmers’ and farming community levels,
Establish mechanism for PIC,
Establish “Local Plant Gene Fund” (LPGF) for the collection of funds from local
benefits sharing and other activities related to plant genetic resources,
Establish Community Seed Bank (CSB) to conserve, exchange, mortgage and enhance
access to local plant genetic resources,
Establish an equitable benefit sharing mechanism,
Establish monitoring mechanism to check bio-piracy,
Organize participatory plant breeding groups for ensuring farmers’ access to diverse
genetic resources and enhancing their knowledge, skills and rights on the genetic
resources and TK,
Organize community biodiversity exhibitions to create awareness and recognition of
the local plant genetic resources among local communities,
Formulate and implement the program budget for in-situ conservation and other
activities, and
Forward and discuss program budget with national level institution named as “National
Plant Variety Registration and Certification Board” (NPVRCB).
National Level Institution
A NPVRCB has to be established under MoAD administering tests for the registration and
issuing certificates for traditional local and indigenous varieties of farmers and farming
communities. The broad outline of duties, responsibilities and power of this organization
for establishing the rights of farmers and farming communities are to:
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
26













provide advice to GoN to formulate the national policies and laws relating to rights of
farmers and farming communities on their traditional local and indigenous crop
varieties;
establish cooperation and collaboration with national and international government and
non-government organizations for the conservation and utilization of traditional local
and indigenous crop varieties of the farmers and farming communities;
develop benefit sharing mechanism both at local and national levels;
formulate plans, programs and projects to encourage private and public sector
investment towards the farmers’ traditional local and indigenous seed industry
development;
regulate or control or cause to be regulated or controlled, the quality-standards of the
seeds to be produced by the seed industries operated in the private and government
sectors;
approve, release and register the farmers’ and farming communities’ seeds of new
variety as prescribed;
conduct DUS test of the seeds of new variety and grant theright of ownership to the
breeder, farmers and farming communities as prescribed;
determine the quality-standards of the seeds;
recognize the quality-standards determined by native or foreign bodies as pernecessity;
carry out other necessary activities relating to traditional local and indigenous varieties;
establish “National Plant Gene Fund” (NPGF) for the collection of funds from benefits
sharing, compensation provided to the communities, contribution from national and
international organizations and other sources;
use NPGF for supporting conservation and sustainable use ofgenetic
resourcesincluding in- and ex-situ collectionand for strengthening the capabilities of the
entities in carrying out such conservation and sustainable use; and
finalize program budget submitted by LPVERC and forward to MoAD for further
action for approval.
Plan of Action are presented in the table below.
Related
Treaty or
Convention
CBD
Issue
Recommendation
Responsible Entity &
Action Sought
Design legal
provisions to protect
Farmers’ Rights on
wild relatives of
their cultivated
crops.
 Farmers’ rights on the wild relatives
of their cultivated crops should be
specified in the draft bill prepared by
MoFSC.
TRIPs
Design legal
provisions as per sui
generis system.
 Formulation ofPFRPVA.
 Organize awareness
among the major
stakeholders.
 Organize meetings,
seminar & workshops
in different regions for
wider consultation
with farmers and their
representatives.
 MoFSC review &
revise the current draft
bill to include farmers’
rights on the wild
relatives of their
cultivated crops.
 Organize awareness
among the major
stakeholders.
 Organize meetings,
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
27
Related
Treaty or
Convention
Issue
Define “farmer” in
relation to
identifying the
ownership on their
plant varieties with
the vision of
promoting
conservation of
these plant varieties.
Identify and define
bundles of Farmers’
Rights.
Ensure Farmers’
Rights on their Plant
Varieties.
Article 27.3(b) of
TRIPs excludes
Recommendation
 Two broad categories of farmers
identified: (a) individual farmer; and
(b) farming community.
 The farming community should be
further categorized as: (a)
community/iesvillage; (b) district/s;
(c) region/s; (d) mountain/s; (e)
hill/s; (f) Terai/s; and (g) nation.
 Make legal provision to register &
issue certificates of to different
categories of farmers for their plant
varieties.
 Five types of Farmers’ Rights have
been identified: (a) Rights on seed;
(b) Rights on ABS for using farmers’
plant varieties; (c) Rights on ABS
for using farmers’ TK; (d) Rights to
participate in the policy decision
making process; and (e) Rights to
compensation for losses due to use
of protected varieties.
 Make legal provision for registration
and issuing certificate of registration
of farmers’ plant variety/ies in the
new PFRPVA.
 Define registration process in
PFRPVA.
 Farmers’ Rights should include:
 right of the farmer to save, use,
and sell farm saved seeds;
 right of the farmer to further
develop the varieties created by
the breeders; and
 give farmers IPRs over their
assets (plant varieties and TKs).
 Constitute LPVERC at district level
to scrutinize and prepare documents
for recommendation for registration
to NPVRCB.
 Constitute NPVRCB at central level
conduct tests and to issue certificate
of famers’ plant variety registration.
 Make legal provision for registration
and issuing certificate of registration
Responsible Entity &
Action Sought
seminar & workshops
in different regions for
wider consultation
with farmers and their
representatives.
 GoN, MoAD review &
revise the current draft
bill - Plant Variety
Protection, 2005.
 Rephrase the title of
the draft bill to
PFRPVA.
 GoN, MoAD include
definition of “Farmer”
in the current draft bill
(PFRPVA).
 GoN, MoAD include
these bundles of
Farmers’ Rights in the
current draft bill
(PFRPVA).
 GoN, MoAD
includefarmers’ plant
varietyregistration
provisions in the
current draft bill
(PFRPVA).
 GoN, MoAD include
TK registration
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
28
Related
Treaty or
Convention
Issue
Recommendation
patentability of
plants and biological
processes for their
creation.



Designing benefit
sharing mechanism
between farmers and
breeders or seed
companies for using
farmers’ plant
varieties.



of farmers’ TK on selection,
development, conservation, storage,
maintenance etc of their plant
variety/ies in the new PFRPVA.
Define registration process of TK in
PFRPVA.
Constitute LPVERC at district level
to scrutinize and prepare documents
for recommendation for registration
of TK to NPVRCB.
Constitute NPVRCB at central level
to conduct tests and to issue
certificate of famers’ TK
registration.
Design a scientific base for
quantifying benefits of using
farmers’ plant variety & breeders’
variety.
Design a formula for quantifying
equitable share of benefits to farmers
and breeders.
Or
Begin with Norway model to pay an
amount equivalent to 0.1 percent of
all its seed sales to the benefitsharing mechanism with the
provision for its review in future.
Design a scientific base for
quantifying benefits of using
farmers’ plant variety & breeders’
variety.
Design a formula for quantifying
equitable share of benefits to farmers
and breeders.
Designing equitable
benefit sharing
mechanism between
farmers and breeders
or seed companies
for using farmers’
TK.

Ensure farmers’
rights to participate
in the policy
decision making.
 Farmers’ representatives have been
included in the “Local Plant Variety
Examination and Recommendation
Committee” (LPVERC) to ensure
their rights to participate in decision
making.
 Encourage participation of farmers
and their representatives in meetings,
workshops, trainings etc related to
farmers’ plant variety aspects.
 Legal conditions for compensation
should be specified for the breeder
and seed companies before they
introduce their varieties into the
market.
 Legal provision should be made for
compensating farmers by the seed
companies or breeders for the loss
occurred due to use of companies’ of
breeders’ protected plant varieties.
 Make legal provision of “Loss
Ensure farmers’
rights to get
compensation of loss
occurred due to use
of protected plant
varieties.

Responsible Entity &
Action Sought
provisions in the
current draft bill
(PFRPVA).
 MoADconduct studies
to develop benefit
sharing mechanism to
be included in the
current draft bill
(PFRPVA).
 MoADconduct studies
to develop benefit
sharing mechanism to
be included in the
current draft bill
(PFRPVA).
 GoN, MoAD include
farmers’
representatives in
LPVERCand specify
members in this
Committee in the
current draft bill
(PFRPVA).
 GoN, MoADshould
include legal provision
for compensating
farmers for the loss
occurred due to use of
protected plant
variety/iesin the
current draft bill
(PFRPVA).
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
29
Related
Treaty or
Convention
Issue
The Treaty covers
genetic resources of
35 food and 29
forage crops (Annex
1) which are in the
public domain and
under the control of
the parties but it
specifically does not
tell about farmers’ in
situ conserved crops.
Recommendation
Assessment Team” (LAT) involving
GoN and Nepal Agriculture
Research Council experts,
representatives of farmers and
company/breeder.
 Make legal provision to compensate
twice the amount quantified by the
LAT.
 There could be two options:
 Initiate proposal to specifically
include farmers’ in situ
conserved crops in the Treaty; or
 Develop legal instrument for PIC
and mutually agreed terms as per
CBD.
 As other seven South Asian
countries, Nepal should not adopt
UPOV.
 Clause 18(Ka) should be removed
from Seed Act, 1988.
UPOV
Whether or not to
adopt.
Seed Act, 1988
Seed Act to be
harmonized with
new bill (PFRPVA)
Seed
Regulation,
2013
Seed Regulation to
be harmonized with
new bill (PFRPVA)
 Clause 12(2 & 3) and Part-Gha of
Agrobiodiversity
Policy, 2007
Harmonized
between Agrobiodiversity Policy
and new bill
(PFRPVA) should
be made on defining
farmers, farmers
plant varieties, ABS
and TK.
 The definition for farmers, farmers
plant varieties, ABS and TK should
be harmonized in the Agrobiodiversity Policy and new bill
(PFRPVA) in order to avoid
confusion.
13.
Annex-1 should be removed from
Seed Regulation, 2013.
Responsible Entity &
Action Sought
 MoAD initiate
proposal to
specifically include as
many as farmers’ in
situ conserved crops in
the Treaty and process
through GoN; or
 Develop strong legal
instrument for PIC and
mutually agreed terms
as per CBD in the
newPFRPVA.
 Nepal should not adopt
UPOV.
 MoADshould initiate
amendment to remove
Clause 18(ka) from the
Seed Act, 1988.
 MoADshould initiate
amendment to remove
Clause 12(2 & 3) and
Part-Gha of Annex-1
from Seed Regulation,
2013.
 MoADshould initiate
amendment in the
Ago-biodiversity
Policy.
Conclusion
Nepal is richly endowed with agro-biodiversity. The Nepalese farmers have developed,
conserved and used agro-biodiversity for generations. Now, these noble deeds are in threat
due to patenting of plant varieties. A two-pronged strategy has been proposed to motivate
farmers conserve agro-biodiversity and foster future innovations in agriculture
simultaneously. Formulation and enforcement of a legal instrument has been recommended
to legitimatize the rights of the farmers on their plant varieties. A bundle Farmers’ Rights
have been identified to be included in the legal instrument. This is also a legal obligation of
Nepal being the member of WTO and TRIPs in particular.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
30
Annex 1: List of crops covered under the Multilateral System FAO ITPGRFA
Food crops
#
1
2
3
4
5
Crop
Breadfruit
Asparagus
Oat
Beet
Brassica
complex
Genus
Artocarpus
Asparagus
Avena
Beta
Brassica et al.
6
7
8
Pigeon Pea
Chickpea
Citrus
Cajanus
Cicer
Citrus
9 Coconut
10 Major aroids
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
Carrot
Yams
Finger Millet
Strawberry
Sunflower
Barley
Sweet Potato
Grass pea
Lentil
Apple
Cassava
Banana/Plantain
Rice
Pearl Millet
Beans
Pea
Rye
Potato
Eggplant
Sorghum
Triticale
Wheat
Faba Bean/Vetch
Cowpea et al.
Maize
Cocos
Colocasia,
Xanthosoma
Daucus
Dioscorea
Eleusine
Fragaria
Helianthus
Hordeum
Ipomoea
Lathyrus
Lens
Malus
Manihot
Musa
Oryza
Pennisetum
Phaseolus
Pisum
Secale
Solanum
Solanum
Sorghum
Triticosecale
Triticum et al.
Vicia
Vigna
Zea
Observations
Breadfruit only
Genera included are: Brassica, Armoracia, Barbarea,
Camelina, Crambe, Diplotaxis, Eruca, Isatis,
Lepidium, Raphanobrassica, Raphanus, Rorippa, and
Sinapis. This comprises oilseed and vegetable crops
such as cabbage, apeseed, mustard, cress, rocket,
radish, and turnip. The species Lepidiummeyenii
(maca) is excluded.
Genera Poncirus and Fortunella are included as root
stock.
Major aroids include taro, cocoyam, dasheen and
tannia.
Manihot esculenta only
Except Musa textilis
Except Phaseolus polyanthus
Section tuberosa included, except Solanumphureja
Section melongena included
Including Agropyron, Elymus, and Secale.
Excluding Zeaperennis, Zeadiploperennis, and
Zealuxurians
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
31
Forages
Legume Forages
#
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
Genera
Astragalus
Canavalia
Coronilla
Hedysarum
Lathyrus
Lespedeza
Lotus
Lupinus
Medicago
Melilotus
Onobrychis
Ornithopus
Prosopis
Pueraria
Trifolium
Species
chinensis, cicer, arenarius
ensiformis
varia
coronarium
cicera, ciliolatus, hirsutus, ochrus, odoratus, sativus
cuneata, striata, stipulacea
corniculatus, subbiflorus, uliginosus
albus, angustifolius, luteus
arborea, falcata, sativa, scutellata, rigidula, truncatula
albus, officinalis
viciifolia
sativus
affinis, alba, chilensis, nigra, pallida
phaseoloides
alexandrinum, alpestre, ambiguum, angustifolium, arvense, agrocicerum,
hybridum, incarnatum, pratense, repens, resupinatum, rueppellianum,
semipilosum, subterraneum, vesiculosum
Grass Forages
#
51
52
53
54
55
56
57
58
59
60
61
62
Genera
Andropogon
Agropyron
Agrostis
Alopecurus
Arrhenatherum
Dactylis
Festuca
Lolium
Phalaris
Phleum
Poa
Tripsacum
Species
gayanus
cristatum, desertorum
stolonifera, tenuis
pratensis
elatius
glomerata
arundinacea, gigantea, heterophylla, ovina, pratensis, rubra
hybridum, multiflorum, perenne, rigidum, temulentum
aquatica, arundinacea
pratense
alpina, annua, pratensis
laxum
Other Forages
# Genera
63 Atriplex
64 Salsola
Species
halimus, nummularia
vermiculata
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
32
Annex 2: Farmers’ Rights Specified in Article 9 of ITPGRFA
9.1 The Contracting Parties recognize the enormous contribution that the local and
indigenous communities and farmers of all regions of the world, particularly those in
the centres of origin and crop diversity, have made and will continue to make for the
conservation and development of plant genetic resources which constitute the basis of
food and agriculture production throughout the world.
9.2 The Contracting Parties agree that the responsibility for realizing Farmers’ Rights, as
they relate to plant genetic resources for food and agriculture, rests with national
governments. In accordance with their needs and priorities, each Contracting Party
should, as appropriate, and subject to its national legislation, take measures to protect
and promote Farmers’ Rights, including:
a) protection of traditional knowledge relevant to plant genetic resources for food and
agriculture;
b) the right to equitably participate in sharing benefits arising from the utilization of
plant genetic resources for food and agriculture; and
c) the right to participate in making decisions, at the national level, on matters related
to the conservation and sustainable use of plant genetic resources for food and
agriculture.
9.3 Nothing in this Article shall be interpreted to limit any rights that farmers have to
save, use, exchange and sell farm-saved seed/propagating material, subject to national
law and as appropriate.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
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Annex 3: Access and Benefit Sharing Specified in Articles 10 and 13 of ITPGRFA
Benefit Sharing Specified in Article 10 of ITPGRFA
10.1 In their relationships with other States, the Contracting Parties recognize the
sovereign rights of States over their own plant genetic resources for food and
agriculture, including that the authority to determine access to those resources rests
with national governments and is subject to national legislation.
10.2 In the exercise of their sovereign rights, the Contracting Parties agree to establish a
multilateral system, which is efficient, effective, and transparent, both to facilitate
access to plant genetic resources for food and agriculture, and to share, in a fair and
equitable way, the benefits arising from the utilization of these resources, on a
complementary and mutually reinforcing basis.
Benefit Sharing Specified in Article 13 of ITPGRFA
13.1 The Contracting Parties recognize that facilitated access to plant genetic resources for
food and agriculture which are included in the Multilateral System constitutes itself a
major benefit of the Multilateral System and agree that benefits accruing therefrom
shall be shared fairly and equitably in accordance with the provisions of this Article.
13.2 The Contracting Parties agree that benefits arising from the use, including
commercial, of plant genetic resources for food and agriculture under the Multilateral
System shall be shared fairly and equitably through the following mechanisms: the
exchange of information, access to and transfer of technology, capacity-building, and
the sharing of the benefits arising from commercialization, taking into account the
priority activity areas in the rolling Global Plan of Action, under the guidance of the
Governing Body:
a) Exchange of information
The Contracting Parties agree to make available information which shall, inter alia,
encompass catalogues and inventories, information on technologies, results of technical,
scientific and socio-economic research, including characterization, evaluation and
utilization, regarding those plant genetic resources for food and agriculture under the
Multilateral System. Such information shall be made available, where non-confidential,
subject to applicable law and in accordance with national capabilities. Such information
shall be made available to all Contracting Parties to this Treaty through the information
system, provided for in Article 17.
b) Access to and transfer of technology
i) the Contracting Parties undertake to provide and/or facilitate access to technologies for
the conservation, characterization, evaluation and use of plant genetic resources for
food and agriculture which are under the Multilateral System. Recognizing that some
technologies can only be transferred through genetic material, the Contracting Parties
shall provide and/or facilitate access to such technologies and genetic material which is
under the Multilateral System and to improved varieties and genetic material developed
through the use of plant genetic resources for food and agriculture under the
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
34
Multilateral System, in conformity with the provisions of Article 12. Access to these
technologies, improved varieties and genetic material shall be provided and/or
facilitated, while respecting applicable property rights and access laws, and in
accordance with national capabilities.
ii) access to and transfer of technology to countries, especially to developing countries and
countries with economies in transition, shall be carried out through a set of measures,
such as the establishment and maintenance of, and participation in, crop-based thematic
groups on utilization of plant genetic resources for food and agriculture, all types of
partnership in research and development and in commercial joint ventures relating to
the material received, human resource development, and effective access to research
facilities.
iii) access to and transfer of technology as referred to in (i) and (ii) above, including that
protected by intellectual property rights, to developing countries that are Contracting
Parties, in particular least developed countries, and countries with economies in
transition, shall be provided and/or facilitated under fair and most favourable terms, in
particular in the case of technologies for use in conservation as well as technologies for
the benefit of farmers in developing countries, especially in least developed countries,
and countries with economies in transition, including on concessional and preferential
terms where mutually agreed, inter alia, through partnerships in research and
development under the Multilateral System. Such access and transfer shall be provided
on terms which recognize and are consistent with the adequate and effective protection
of intellectual property rights.
c) Capacity-building
Taking into account the needs of developing countries and countries with economies in
transition, as expressed through the priority they accord to building capacity in plant
genetic resources for food and agriculture in their plans and programmes, when in place, in
respect of those plant genetic resources for food and agriculture covered by the Multilateral
System, the Contracting Parties agree to give priority to (i) establishing and/or
strengthening programmes for scientific and technical education and training in
conservation and sustainable use of plant genetic resources for food and agriculture, (ii)
developing and strengthening facilities for conservation and sustainable use of plant
genetic resources for food and agriculture, in particular in developing countries, and
countries with economies in transition, and (iii) carrying out scientific research preferably,
and where possible, in developing countries and countries with economies in transition, in
cooperation with institutions of such countries, and developing capacity for such research
in fields where they are needed.
d) Sharing of monetary and other benefits of commercialization
i) The Contracting Parties agree, under the Multilateral System, to take measures in order
to achieve commercial benefit-sharing, through the involvement of the private and
public sectors in activities identified under this Article, through partnerships and
collaboration, including with the private sector in developing countries and countries
with economies in transition, in research and technology development;
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
35
ii) The Contracting Parties agree that the standard Material Transfer Agreement referred
to in Article 12.4 shall include a requirement that a recipient who commercializes a
product that is a plant genetic resource for food and agriculture and that incorporates
material accessed from the Multilateral System, shall pay to the mechanism referred to
in Article 19.3f, an equitable share of the benefits arising from the commercialization
of that product, except whenever such a product is available without restriction to
others for further research and breeding, in which case the recipient who
commercializes shall be encouraged to make such payment.
The Governing Body shall, at its first meeting, determine the level, form and manner of the
payment, in line with commercial practice. The Governing Body may decide to establish
different levels of payment for various categories of recipients who commercialize such
products; it may also decide on the need to exempt from such payments small farmers in
developing countries and in countries with economies in transition. The Governing Body
may, from time to time, review the levels of payment with a view to achieving fair and
equitable sharing of benefits, and it may also assess, within a period of five years from the
entry into force of this Treaty, whether the mandatory payment requirement in the MTA
shall apply also in cases where such commercialized products are available without
restriction to others for further research and breeding.
13.3 The Contracting Parties agree that benefits arising from the use of plant genetic
resources for food and agriculture that are shared under the Multilateral System
should flow primarily, directly and indirectly, to farmers in all countries, especially in
developing countries, and countries with economies in transition, who conserve and
sustainably utilize plant genetic resources for food and agriculture.
13.4 The Governing Body shall, at its first meeting, consider relevant policy and criteria
for specific assistance under the agreed funding strategy established under Article 18
for the conservation of plant genetic resources for food and agriculture in developing
countries, and countries with economies in transition whose contribution to the
diversity of plant genetic resources for food and agriculture in the Multilateral
System is significant and/or which have special needs.
13.5 The Contracting Parties recognize that the ability to fully implement the Global Plan
of Action, in particular of developing countries and countries with economies in
transition, will depend largely upon the effective implementation of this Article and
of the funding strategy as provided in Article 18.
13.6 The Contracting Parties shall consider modalities of a strategy of voluntary benefitsharing contributions whereby Food Processing Industries that benefit from plant
genetic resources for food and agriculture shall contribute to the Multilateral System.
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
36
Acknowledgement
Protecting Farmers’ Rights on their Plant Varieties by Dr.Shiddi Ganesh Shrestha
37
End Notes/References
1
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4
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FAO. 2013. Country Report on the State of Nepal’s Plant Genetic Resources for Food and
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5
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Agriculture. Commission on Genetic Resources for Food and Agriculture, FAO, Rome,
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7
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8
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FAO.2015. Coping with Climate Change: The Roles of Genetic Resources for Food and
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10
Government of Nepal. 2013. National Seed Vision (2013-2025). Government of Nepal,
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12
Ibid.
13
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14
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15
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16
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USA.
18
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19
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21
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24
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USA.
25
Government of Nepal. 1988. Seed Act, 2056. Government of Nepal, Ministry of
Agricultural Development, Seed Quality Control Centre, Lalitpur, Nepal.
26
Ibid.
27
Ibid.
28
Ibid.
29
Ibid.
30
Ibid.
31
Brahmi, P., Saxena, S. and Dhillon, B.S. 2004.The Protection of Plant Varieties
andFarmers’ Rights Act of India.In: Current Science, Vol. 86, No. 3, pp 392-396, 10
February 2004.
32
Ibid.
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33
Ibid.
34
Ibid.
35
Wikipedia. 2015. www.wikipedia accessed on 18 January 2015.
36
WTO. 1995. Agreement on Trade Related Aspects of Intellectual Property Rights
(Annex 1C). WTO, Geneva, Switzerland.
37
Government of Nepal. 1988. Seed Act, 2056. Government of Nepal, Ministry of
Agricultural Development, Seed Quality Control Centre, Lalitpur, Nepal.
38
FAO. 2009. International Treaty on Plant Genetic Resource for Food and Agriculture.
Rome, Italy.
39
http://www.economyprofessor.com/pareto-optimality-1906 accessed on 19 March
2015.
40
http://www.worldseed.org/isf/intellectual_property.html accessed on 10 March 2015.
41
Brahmi, P., Saxena, S. and Dhillon, B.S. 2004.The Protection of Plant Varieties and
Farmers’ Rights Act of India.In: Current Science, Vol. 86, No. 3, pp 392-396, 10 February
2004.
42
Ibid.
43
http://www.cbd.int/information/parties.shtml accessed on 19 March 2015.
44
http://www.planttreaty.org/list_of_countries accessed on 19 March 2015.
45
FAO. 2009. International Treaty on Plant Genetic Resources for Food and Agriculture.
FAO, Rome, Italy.
46
https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm accessed on 19
March 2015.
47
http://www.planttreaty.org/list_of_countries accessed on 19 March 2015.
48
http://seedfreedom.info/who-owns-the-seed/ accessed on 21 January 2015.
49
http://www.cbd.int/information/parties.shtml accessed on 19 March 2015.
50
Government of Nepal. 2013. National Seed Vision (2013-2025). Government of Nepal,
Ministry of Agricultural Development, Seed Quality Control Centre, Lalitpur, Nepal.
51
Government of Nepal. 2069. Seed Regulation, 2069. Government of Nepal, Ministry of
Agricultural Development, Seed Quality Control Centre, Lalitpur, Nepal.
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52
GoN. 2005. Agro-biodiversity Policy, 2063. Government of Nepal, Ministry of
Agricultural Development, Seed Quality Control Centre, Lalitpur, Nepal.
53
WTO. 1995. Agreement on Trade Related Aspects of Intellectual Property Rights
(Annex 1C). WTO, Geneva, Switzerland.
54
FAO. 2009. International Treaty on Plant Genetic Resources for Food and
Agriculture.FAO, Rome, Italy.
55
United Nations (UN). 1992. Convention on Biological Diversity. UN, Washington DC,
USA.
56
FAO.
2010.
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http://www.fao.org/news/story/en/item/46803/icode/ accessed on 20 March 2015.
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Wynberg, R., Niekerk, J.V., Williams, R. and Mkhaliphi, L. 2012. Securing Farmer’s
Rights and Seed Sovereignty in South Africa (Policy Brief).Biowatch, Durban, South
Africa
57
Fact Sheet # 1. 2004. Under Attack: Farmers’ Rights to Use, Re-use and Sell Seed.
NFU National Office, Saskatoon, Canada.
58NFU
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Singh, A.P., Manchikanti, P. and Chawla, H.S. 2011.Sui Generis IPR Laws vis-à-vis
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61
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Pant, K.P. Undated. Access to Genetic Resources and Benefit SharingPerceptions,
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41