Seeds of confusion : the impact of policies on seed systems

Seed is basic to crop production. Next to its importance in production, food security and rural development, seed is a key element in many debates about technology development and transfer, biodiversity, globalisation and equity. The sustainable availability of good quality seed is thus an important development issue. This study deals with the impact different types of regulation have on how farmers access seed. I have analysed current regulatory frameworks in terms of their impact on different seed systems, provided explanations for their often unintended effects and apparent inconsistencies, and proposed some solutions to the problems that have arisen. This thesis builds on earlier work on seed systems, seed laws, intellectual property and genetic resource policies that I published in various media over the past twenty years. - The analytical framework Conventional approaches towards seed system development are based on a linear perspective in which policies should promote the development of seed systems through a number of fixed stages that proceed from the traditional towards the commercial. Seed policies in developing countries have long been based on this approach. I continue to question the validity of this approach. I consider it to be insufficiently grounded in reality and therefore an inadequate guide to those involved in formulating seed related policies. My main argument is that the development of a commercial seed provision system is neither realistic nor desirable for most crops. Secondly, when policies take the most advanced crops as a reference for investments and regulation major problems arise because of the differential speed of seed system development between crops and target groups. This analysis leads to the conclusion that the linear approach is counterproductive in terms of balanced sustainable growth and development and should be abandoned. In this thesis I present an alternative framework for seed system development, which is based on the recognition of two fundamentally distinct seed systems, each with their own advantages and limitations: the farmers’ seed system and the formal seed system. This framework also includes a range of possible ways of interaction. Farmers’ seed systems are by far the most important suppliers of seed, and are particularly important for resource-poor farmers. Formal seed systems, on the other hand, provide tested seed to farmers through an organised and often regulated chain that includes genebanks, breeders, seed producers and seed marketing and distribution organisations. In practice, these different systems operate side by side to serve the needs of different types of farmers for different types of crops. Interaction between these two systems provide important ways of combining formal and local knowledge and plant materials and can lead to the creation of site specific solutions to limitations in production and produce markets. The parallel development of farmers’ and formal seed systems plus their interactions create - at the national level - a diversified seed system. Developing policies that support such diversified seed systems creates challenges for regulators. This thesis sets out to analyse and solve this problem. - Seed laws Variety and seed regulatory frameworks and seed control institutions have been developed in most countries primarily to regulate the formal seed sector. However, the provisions of relevant laws and implementing regulations usually also apply to farmers’ seed systems that are built on different principles and mechanisms. An analysis of forty national seed laws indicates considerable similarity as far as organisation and focus are concerned. Variety control systems tend to limit the number of varieties available on the market. The regulations, their interpretation by responsible committees, associated costs and implementation methods favour varieties with a wide adaptation, especially to relatively benign cropping conditions. The system is not suited to identifying varieties appropriate for smallholders farming in ecologically diverse conditions. Breeders in the private sector cater for an agricultural sector with purchasing power while those in the public sector generally focus on release requirements rather than on the needs of different groups of farmers. Variety control systems thus support neither breeding for smallholders in ecologically diverse conditions, nor the integration of seed systems at the level of crop improvement. Seed certification and quality control regulations tend to turn farmers’ seed production and particularly the exchange and sale of farm-saved seed into illegal activities and put severe restrictions on initiatives that support farmers’ seed systems. The level of farmer participation in official bodies set up under these seed laws is low. This may be one of the reasons why release procedures give little attention to the special requirements of farmers’ seed systems. Important openings in seed laws can be created that allow for diversified seed systems to develop and be recognised. Such openings would include explicit limitations on the scope of seed laws to the formal seed sector by adapting the definitions of ‘seed’ and ‘market’, for example. The full development of diversified seed systems depends on a shift of focus within those institutions responsible for implementing seed laws. Emphasis should be placed on supporting the production and use of good quality seed in both the formal and farmers’ seed systems rather than on policing the formal seed system. - Biodiversity policies Genetic resources are the building blocks of crop improvement. They have developed as a result of millennia of natural processes and of conscious and unintentional human selection. Concerns about the reduction of global crop genetic diversity have led to the specific values of genetic resources being closely defined. These definitions form an important basis for policies and measures introduced to regulate new rights over these resources. Largely based on the Convention on Biological Diversity (CBD), these regulations deal with the conservation and use of genetic resources, access to these resources and the sharing of benefits arising from their use. The CBD does not focus on agriculture alone. It covers all areas of biodiversity. I have, therefore, tested the proposition that the CBD fails to support, or even obstructs proper seed system development. In this context I have assessed the potential of the International Treaty on Plant Genetic Resources for Food and Agriculture (IT PGRFA) to correct this type of failure. The international policy framework and three distinct regional approaches to implementation strategies inspired by the CBD are analysed with regard to access to genetic resources. National regimes for access to genetic resources based on the CBD can negatively impact on seed systems. In particular they can lead to a reduction in the genetic resources available for different forms of plant breeding and exchange among communities. Since developing countries currently obtain larger numbers of genetic resources from genebanks than industrialised countries, it can be concluded that farmers in developing country are particularly negatively effected by the increasing number of access restrictions being implemented worldwide. The Multilateral System of the IT PGRFA is expected to facilitate access and benefit sharing for many important food crops and pasture species. Although it is too early to assess the actual effects of this treaty it is likely that it will alleviate some of these effects. - Intellectual Property Rights Intellectual Property Rights (IPRs) are a recent phenomenon in the seed sectors of developing countries. Like seed laws, these new regulatory systems impact on various seed systems. The potential impact of different types of IPRs is analysed from a historical perspective and - drawing on a large number of stakeholder interviews - an attempt is made to determine whether the introduction of such legal systems can be used to promote diversified seed systems. The options available to developing countries that want to design policies, regulatory frameworks and implementation systems that do not have undesired effects are then analysed. IPRs support ongoing trends towards the commercialisation of the breeding and seed sectors. This trend disregards or even threatens the interests of resource-poor farmers, especially in cases where public research institutions are encouraged to create their own revenue through the use of IPRs. Strong IPR-like utility patents and plant breeder’s rights consistent with the 1991 Act of Convention for the Protection of New Varieties significantly restrict opportunities for farmers’ seed systems and small local seed companies to use the best available varieties, because in these systems exchange and sale of protected variety seed among farmers requires the consent of the right holder. The analysis provides guidance for the development of IPRs in developing countries at the policy, legal, and institutional levels that minimise such negative effects. Balanced exemptions for farmers and breeders in breeder’s rights and patent systems as well as a differentiation of the strengths of these rights across crops and farmer groups can be effective. Also, initiatives within the current IPR systems can support access to technology for the poor. Countries that intend to develop their IPRs in breeding in support of diversified seed systems will have to withstand current harmonization pressures from trade negotiations that would unnecessarily limit the flexibility offered by the World Trade Organisation. - Discussion: disconnection and incoherence The development of policy and regulatory frameworks affecting seed systems shows a disconnection between parallel policy processes on the one hand and between policies and everyday agriculture on the other. Current seed laws and IPRs cater for the needs of a relatively small segment of the total seed supply sector. Moreover, tensions exist between international agreements in the trade, environment and agricultural sectors. I discuss the conflicts between these policies and regulations that lead to disorientation, uncertainty, and commotion – in short ‘confusion’ - and I suggest a series of explanations and solutions. Disconnections are identified among different stakeholders within a dossier, between dossiers (agriculture, trade, environment) and between different levels (local, national, international). These disconnections explain most of the inconsistencies in the observed policy outcomes. Parallel negotiations combined with insufficient direction over the relevant departments within a national government are important reasons for inconsistencies among dossiers, especially when complex power relations between departments and countries are strongly influenced by the involvement of particular stakeholders in individual dossiers. Disconnection between local, national and international levels within a dossier may be due to insufficient knowledge about agricultural practice, the prevalence of ‘higher’ policy goals, or to an attempt to modernize agriculture through legislation. The analysis shows that given the complex influences and power relations among individuals and organizations, inconsistencies in policy making processes are inevitable. This is particularly the case in those policy areas that affect seeds where widely different objectives and value systems are represented. Legislation based on disconnected and inconsistent policies lead to problems with implementation, to confusion, and - in the field of genetic resources and seeds - to juridification and ‘hyperownership’ when proponents of national, communal or individual rights systems are caught in an increasingly dense thicket of rights. The obvious solution lies in creating institutional mechanisms that increase communication among government departments and different levels of government, increasing opportunities for better policy congruence. At the legal level, options include avoiding generic wording in legislation that would have unintended effects beyond the primary focus, as often shown for seed laws and IPRs and to allow for flexibility and change as soon as the situation requires it. Alternatives can also be found in mechanisms that increase the public space without changing the rules. These include targeted public investments, open source strategies, standardised text for humanitarian use licenses for both IP and genetic resource rights, and patent pools. The initiative to use such tools can come from either government or from private or civil society stakeholders. Seed is an essential element in crop production, representing a valuable resource that is important in sustaining the supply of food, feed, flowers, fuel and many functional compounds for industry. Seed is also essential for rural development and poverty reduction. It is, therefore, important to continually search for solutions to the inconsistencies that threaten the availability, access and quality of the seed farmers need. All these solutions can only develop when current inconsistencies are clearly formulated. This study contributes to that goal. It also analyses options available and, in some cases, it proposed regulatory change that could improve coherency, encourage more diversified seed systems and lead to policies that are increasingly consistent with development goals. Contrary to the main trends it criticises, such as linear approaches to seed system development and globally harmonised IPRs, this study offers no blueprint solution. Rather, it seeks to contribute to an improved analysis that will make targeted interventions possible at various policy levels and provide productive solutions to the problems that farmers actually face.