Article 6 – Sustainable Use of Plant Genetic Resources

This Article requires parties to develop and maintain appropriate policy and legal measures that promote the sustainable use of PGRFA. The obligation in Article 6.1 is absolute and does not contain any elements that qualify it, such as the reference to national legislation in Article 5.1. On the other hand, the list of measures given in Article 6.2 is illustrative only, providing examples to the Contracting Parties of possible measures that they can use to achieve their obligations under paragraph 6.1 (as underscored by the qualification “as appropriate”). As with Article 5, this Article draws heavily on the priority activity areas set out in the GPA, in particular: broadening the genetic base of major crops; increasing the range of genetic diversity available to farmers; strengthening capacity to develop new crops and varieties that are specifically adapted to local environments; exploration and promotion of the use of underutilized crops, and deployment of genetic diversity to reduce crop vulnerability.

In this sense, Article 6 and Article 5.2 provide a good basis for a policy that stimulates agriculture that is both environmentally friendly and has a broad genetic basis.

The Article is much more specific than the corresponding Articles in the CBD. Article 6 of the CBD, appropriately entitled “general measures”, requires each Contracting Party to develop or adapt “national strategies, plans or programmes” to reflect the measures set out in the Convention for the conservation of biodiversity and the sustainable use of its components.

“Strategies, plans or programmes” are not defined in the text of the CBD, but have been refined by the Contracting Parties, though COP decisions and national implementation. As currently understood, CBD Article 6 refers to “National Biodiversity Strategies and Action Plans” (NBSAPs), which have been adopted by most Contracting Parties. NBSAPs are intended to promote inter-sectoral cooperation, toward the goal of “sustainable use”, as set out in Article 10 of the CBD.

For purposes of applying the NBSAP concept within the Treaty, those terms are often seen as sequential:

Sustainable use of PGRFA is crucial to both short-term and long-term food security. PGRFA support the livelihood of every person on Earth. They are the plant breeder's most important raw material and the farmer's most essential input. Properly managed, these resources need never be depleted, for there is no inherent incompatibility between conservation (Article 5) and utilization (Article 6).

The focus of this paragraph is on promoting diverse farming systems that enhance agricultural biodiversity. Farming systems relate to the whole farm rather than its individual elements; they are driven as much by the overall welfare of farming households as by goals of yield and profitability. Farming systems are closely linked to livelihoods because agriculture remains the single most important component of most rural people's lives as well as playing an important role in the lives of many people in peri-urban areas. Thus, in this paragraph, the Treaty reaches beyond its scope of PGRFA to address broader issues of agricultural biodiversity, including at the farming system level.

Farming systems involve a complex combination of inputs, managed by farming families but influenced by environmental, political, economic, institutional and social factors. Research and extension institutions are increasingly aware that a holistic approach, drawing on both local and external knowledge, is necessary to address poverty and sustainability effectively.

The paragraph calls for policies that promote diversity in farming systems. It also calls for the promotion of farming systems that enhance the sustainable use of agricultural diversity.

The addition of the reference to “fair” agricultural policies is a reference to the need to ensure that agricultural policies do not have distorting effects on trade through the granting of subsidies disguised as measures to promote traditional farming and sustainable agriculture.

This paragraph draws on Priority Activity Area 11 of the GPA: “Promoting Sustainable Agriculture through Diversification of Crop Production and Broader Diversity in Crops”. The paragraph draws particular attention to the need to ensure the highest degree of intra-specific variation or diversity (Priority Area 11), as well as maximizing variation between species (Priority Area 12: “Promoting Development and Commercialization of Under-utilized Crops and Species”). Traditional farming practices and farmers management of their landraces sometimes increase intra-specific variation as a means of ensuring more stable yields and greater resistance to diseases and pests as well as greater adaptability to new environmental stresses. It is important to strengthen research to determine which elements of these practices are robust enough to persist through changes in farming practices.

Diversity in cropping systems is often of particular importance from the standpoint of pest control. Short rotations of crops with a uniform genetic base are particularly vulnerable to pest pressures. The two prime examples of this vulnerability are the tragic potato blight (Phytophthora infestans) epidemic in Ireland in the 19th century, and more recently, the corn leaf blight (Helminthosporum maydis) epidemic of the 1970s in the United States. This paragraph therefore demonstrates the importance of maintaining a diverse genetic base as a resource for farmers and plant breeders to develop crop varieties resistant to various pest organisms. More diverse farming systems may be less vulnerable to pests and diseases and may offer greater food security. Traditional farming systems tend to be more agriculturally diverse. Recent studies have revealed the extent to which traditional farmers seek to conserve and enhance the genetic diversity of their landraces as a means of ensuring yield stability and resistance to disease and changing environmental conditions. Seed is often brought in from outside the immediate farming area as a means of enhancing the diversity of local crops; in some societies such seed exchanges are sanctioned by religious or other rituals.70 Priority Activity Area 11 stresses the need to

“support efforts to identify those activities used in plant breeding, plant research and farming systems that foster on-farm diversity. Such research might include a review of non-homogenous farming systems such as those based on intercropping, polycropping, integrated pest management, and integrated nutrient management, for their possible wider applicability, as well as research to develop appropriate plant breeding methodologies. ... Support should be encouraged for developing improved tools and methodologies for assessing genetic vulnerability and identifying, if possible, the ideal equilibria in crops between genetic uniformity and diversity consistent with practical, technical and economic considerations that sustain ecosystems.” (GPA, paragraphs 174, 185 and 186)

Box 5. Systems of Supply of Seed and Other Propagating Material, and the Sustainable Utilization of PGRFA

Seed systems that supply seed and other propagating material such as clones, are critical in determining farmers' choice of planting material, and thus utilization patterns of crop genetic resources. Such systems are formed by the interaction between farmers' demand for crop varieties and the traits they embody, and the available supply of such varieties. Seed and propagating material systems impact on the degree of choice farmers have in selecting varieties – which in turn affects the degree to which the public good of diversity conservation is provided and ultimately the sustainability of the system of utilization. Better understanding of how such systems impact farmers' choices is important in designing efforts to promote sustainable utilization.

On the supply side, it is important to understand the way in which seeds and other propagating material are produced, including both genetic content (e.g. breeding) and physical quality (seed and clonal production), as well as the way in which they are distributed or made available (markets, extension packages, social exchange networks), and the costs at which they are made available. The demand side of the system is comprised of the individual and overall portfolio of characteristics or services which farmers desire from seeds, clones and the genetic resources they embody, as well as the physical attributes of the delivery mechanism, e.g. seed and clonal quality, and the farmers' ultimate willingness to pay for such goods either in cash or kind.

Farmers, particularly small farmers, make use of multiple channels for sourcing their seed. In recent literature, these channels been considered as belonging to one of two broad seed systems: the “formal” seed system, and the “informal” system. The latter is variously described as the “local”, “traditional” or “farmer” seed system.71

The formal seed system is straightforward to characterize, as it is deliberately constructed and involves a chain of activities leading to clear products: certified seed of verified varieties. The chain usually starts with plant breeding, resulting in different types of varieties and hybrids, and promotes materials towards formal variety release and maintenance. Formal regulations or protocols aim to maintain varietal identify and purity, as well as to guarantee physical, physiological and sanitary quality. Seed marketing takes place through officially recognized seed outlets, either commercially, or via national agricultural research systems. The central premise of the formal system is that there is a clear distinction between what is “seed” and what is “grain”.

The informal seed system is basically what the formal system is not. Activities tend to be integrated and locally organized, and the informal system embraces most of the other ways in which farmers themselves produce, disseminate and access seed: directly from their own harvest; through barter among friends, neighbours and relatives, and through local grain markets or traders. What characterizes the local system most is its flexibility. The same general steps take place in the informal system as in the formal, but they take place as integral parts of farmers' grain production rather than as discrete activities. The steps also do not flow in a linear sequence, and are not monitored or controlled by government regulations. Rather, they are guided by local technical knowledge and standards and by local social structures and norms, including market forces. Varieties may be landraces or mixed races.

This paragraph calls for participatory plant breeding that develops varieties particularly adapted to local social, economic and ecological conditions. It expands on Priority Area 2 of the GPA.

The reference to the participation of farmers links up with the right to participate in decision-making set out in Article 9.2(c). The paragraph focuses in particular on farmers in developing countries.

This paragraph reflects the concerns of Priority Activity Area 10 of the GPA (“Increasing genetic enhancement and base-broadening efforts”). 72 Farmers over time have developed landraces that are particularly adapted to local conditions, including social, economic and ecological conditions, and incorporate a large degree of intra-specific genetic diversity. Intraspecific diversity (i.e. the diversity within each species as opposed to the diversity between species) is particularly important in allowing crops to resist disease or pests, or to respond to local conditions of drought, excessive humidity or other current or future ecological challenges. This is particularly important for crops on marginal lands.

As noted above, the introduction of new and improved plant varieties may increase genetic uniformity and, as local farmers turn to new varieties for greater productivity, reduce the diversity of their crops. There is thus a need to broaden the genetic base of crops, including by incorporating some of the genetic traits present in the landraces hitherto used in those localities, to the extent they allow those landraces to respond better to particular local conditions.

Farmers using traditional methods will tend to undertake such base-broadening activities through interbreeding new improved varieties with their own local crops. However, from the perspective of any individual farmer, breeder, company or institute, the costs of incorporating diverse germplasm into varieties that have already been improved may be excessive and may well outweigh the benefits they can realize. Such benefits will accrue, not only to the individual farmer, but also to the local community and to society in general.

Public support is necessary to promote these plant breeding efforts where the private sector cannot accomplish this on its own. However, due to their local knowledge and access to locally adapted landraces, the participation of local farmers is particularly useful. Approaches identified in the GPA include introgression of useful agronomic traits identified through characterization or evaluation into locally adapted or elite material for further use in breeding programmes, and base-broadening of breeders' material through incorporation of wider genetic diversity in general and locally adapted traits in particular.

These activities are closely related to the promotion of the expanded use of local and locally adapted crops and underutilized species which are the subject of Paragraph (e) below, as the incentive for producing such crops is much greater if markets can be found for them.

Increasing the diversity of materials available to farmers is one of the underlying objectives of the Treaty. Ultimately it is the farmers themselves that will need to make use of this diversity to improve their crops and protect them against yield fluctuations and diseases. While no mechanism is expressly specified for increasing the range of such material available to farmers, it is clear that the other components of the Treaty (including international cooperation, technical assistance, the ex situ collections of PGRFA held by the IARCs, and, of course, the Multilateral System) can be instrumental. Modalities may include, for example, facilitating farmers' access to ex situ collections and creating market conditions that favour such availability.

Box 6. Implementation of Farmers' Rights at the national level

At the national level, some proposals for national legislation have reaffirmed support for the concept of Farmers' Rights. An example of the possible implementation of such rights at the national level is offered by the Protection of Plant Varieties and Farmer's Rights Act 2001 (the “Act”), approved in India in August 2001. Farmers' Rights are not specifically defined. However, Section 31 of the draft states that:

Nothing contained in this Act shall affect the right of a farmer to save, use, exchange, share or sell his farm produce of a variety produced under this Act... provided that a farmer shall not be entitled for such right in case where the sale is for the purpose of reproduction under commercial marketing arrangements.

Another feature is the Act's efforts to put Farmers' Rights at a par with Plant Breeders' Rights. The Act gives farmers the entitlement, like industrial breeders, to apply for registration of a plant variety. Section 16 (d) includes “any farmer or group of farmers or community of farmers ...” in the list of applicants for registration. Farmers are entitled not only to apply for registration of a new variety but also of a farmer's variety (Section 39(1)(i)). Under the definition of farmer's variety the Act includes “(i) a variety which has been traditionally cultivated and evolved by the farmers in their fields; or (ii) a wild relative or landrace of a variety about which the farmers possess the common knowledge” (Section 2(k)). The Act gives protection not only to newly-developed varieties but also to existing varieties (‘extant variety’ in the wording of the Act – Section 2(j)). According to Section 39(1)(i), the registration is subject to the same UPOV-derived criteria that apply to commercial breeders. However, at time of publication, the governing body of UPOV had not yet stated whether the provisions of this Act were compatible with the UPOV Convention.

In the same Act a fundamental component of Farmers' Rights is the benefit-sharing mechanism. The Act sets out two channels for providing benefits to traditional farmers. The first is inserted in the process of registration of a variety. The Protection of Plant Varieties and Farmers' Rights Authority publishes the contents of the certificate of registration and invites claims on benefit-sharing to the variety. Any person or group of persons or non-governmental organisation is entitled to claim such benefit-sharing. A procedure is established in order to grant the breeder the right to opposition to such claim. The final decision on the amount of benefit-sharing is reserved to the Authority, that shall take into consideration both the extent and nature of the use of the genetic material of the claimant in the development of the variety and the commercial utility and demand in the market of the variety. The sum shall be deposited by the breeder of the variety in the National Gene Fund (Section 26, sub-sections 1 to 6). The second benefit-sharing channel is set out in the provisions included in the Farmers' Rights section. Section 39(1)(iii) reads as follows:

[a farmer] who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled ... for recognition and reward from the National Gene Fund ... provided that material so selected and preserved has been used as donors of genes in varieties registrable under this Act.

Entitled to file claims for recognition and reward of contributions are any person, group of persons or any governmental or non-governmental organisation on behalf of any village or local community. The claims are to be filed in any centre notified with the previous approval of the central Authority. The centre is responsible for verifying ‘... if it is satisfied that such village or local community has contributed significantly to the evolution of the variety which has been registered ...’. Once the central Authority has received the report from the centre and the breeder has been given the opportunity to file objections, an order may be issued to grant a sum of compensation to the claimant. The breeder of the variety shall deposit the prescribed sum in the National Gene Fund (section 41, sub-sections 1 to 4).

Another interesting example of possible implementation is the “African Model Legislation for the Recognition and Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access of Genetic Resources”, developed by the Organization of African Unity (OAU) in 2000, but which however has not been implemented by any African country. Part V of the draft defines the concept and the scope of Farmers' Rights:

24(1) Farmers' Rights are recognized as stemming from the enormous contributions that local farming communities, especially their women members, of all regions of the world, particularly those in the centres of origin or diversity of crops and other agrobiodiversity, have made in the conservation, development and sustainable use of plant and animal genetic resources that constitute the basis of breeding for food and agriculture production; and

(2) For farmers to continue making these achievements, therefore, Farmers' Rights have to be recognized and protected.

Article 26 defines the scope of the Farmers' Rights:

26(1) Farmers' Rights shall, with due regard for gender equity, include the right to:

(2) Notwithstanding sub-paragraphs c) and d), the farmer shall not sell farm-saved seed/propagating material of a breeder's protected variety in the seed industry on a commercial scale.

(3) Breeders' Rights on a new variety shall be subject to restriction with the objective of protecting food security, health, biological diversity and any other requirements of the farming community for propagation material of a particular variety.

Among other examples, in 2002, the Republic of Philippines enacted a new Plant Variety Protection Act.73 The Act provides for the protection of plant varieties in the Philippines, along the lines of UPOV 1991 (see Box 9). It is designed to protect and secure the exclusive rights of plant breeders with respect to new plant varieties they have bred, discovered or developed that meet the criteria of being new, distinct, uniform and stable. Certificates of Plant Variety Protection may be issued providing protection for 25 years, for trees and vines, and 20 years for other types of plant. Section 43 of the Act provides for exceptions to plant variety protection. These include the “traditional right of small farmers to save, use, exchange, share or sell their farm produce of a variety protected under the Act, except when a sale is for the purpose of reproduction under a commercial marketing agreement.” The National Plant Variety Protection Board is to determine the condition under which this exception is to apply, taking into consideration the nature of the plant cultivated, grown or sown. The provision is also to extend to the exchange and sale of seeds among and between small farmers, provided that the small farmers may exchange or sell seeds for reproduction and replanting in their own land.

Section 72 allows for the establishment of inventories to protect locally-bred varieties from misappropriation and unfair monopolization. Thus, in an effort to protect the rights of farmers against possible encroachment by plant breeders, the Campagao Farmers' Production and Research Association (CFPRA) of Campagao village has decided to establish a community registry of local rice varieties that they have developed, to ensure that they are not subsumed under the new Act, and are thus protected from misappropriation and unfair monopolization, and to assert the community's rights over its genetic resources. “After a series of group meetings and discussions, the group formulated a community affidavit declaring that all rice varieties maintained in their community shall be protected from the PVP Act, and that seeds of these varieties shall remain freely accessible to farmers for purposes of using, selling, saving and exchanging with other farmers. The affidavit also includes a list of names and kinds of rice varieties that the community has been using and continually developing since they started their efforts in participatory plant breeding. The registry also includes basic characterization of the varieties.74 The entries will be updated every cropping season.

Other proposals for the recognition of the rights of local, indigenous and farmer's communities at the national level include the following:

This paragraph reflects the GPA's Priority Activity Areas 2 (“Supporting on-farm management and improvement of plant genetic resources for food and agriculture”), 11 (“Promoting Sustainable Agriculture through Diversification of Crop Production and Broader Diversity in Crops”), 12 (“Promoting Development and Commercialization of Underutilized Crops and Species”) and especially 14 (“Developing new markets for local varieties and “diversity rich” products”).

For many developing countries, underutilized crops are essential for food security, but a large proportion of the resources available to plant breeders are invested in very few crops. Not all underutilized crops are “minor”. Millet and cassava (both included in the Treaty's Multilateral System) are grown over enormous areas, but generally for subsistence needs and local markets. Other crops, such as teff (Erogrostis tef Zucc.), have enormous region-specific importance, but are not produced over large areas.

In order to fulfill the obligations of this paragraph, Contracting Parties will have to address the increasing uniformity in the agricultural market place, usually the result of the promotion of new and improved varieties that are widely adapted, concentration on productivity, the rise of global consumer markets, and changes in traditional cultures and consumer preferences. Better market opportunities and supportive policies for local and locally adapted and underutilized crops and species increase the incentive for farmers to continue to use these crops and species and thus to conserve biodiversity. They also help to maintain local knowledge concerning the management and uses of these crops and species. Many local and underutilized plants have potential for more widespread use, and their promotion could contribute not only to local income generation, but also to food security and agricultural diversification, particularly in areas where the cultivation of major crops is economically marginal. The Treaty encourages current programmes for conservation, research and development to promote these crops and species.

Promoting the expanded use of such crops will require capacity-building for farmers, local communities, scientists and extension specialists in identifying underutilized crops with potential for increased sustainable use, the development of sustainable management practices, developing post-harvest processing methods and developing marketing methods.

Finally, the Treaty recognizes that it may not always be appropriate to expand the use of local and locally adapted crops, varieties and underutilized species, for example when the most productive or sustainable variety is a widely adapted introduction, or when local staple food needs are such that only major crops can be cultivated.

Initially the Unit is concentrating on stakeholders working with plant species. The main activities of the GFU include:

This paragraph reflects Priority Activity Areas 10, 11 and 13 of the GPA, and is closely linked with the preceding paragraphs.

The paragraph focuses on on-farm management and conservation and the need to expand the diversity of varieties and species to be used. Research needs to be undertaken, plant breeding efforts promoted and the genetic base of crops expanded in order to make a broader range of genetic diversity available for farmers to use. This paragraph focuses on their actual use on farm.

The paragraph also stresses the need to strengthen links between on-farm management, conservation and use on the one hand, and plant breeding and agricultural development. A wide diversity of varieties adapted to local conditions needs to be bred and the seed distributed. In this context, farmers benefit in many ways from having a wide range of seed varieties and other planting materials, including:

However, availability of a wider diversity of varieties can be constrained by poor harvests, inadequate on-farm storage facilities, insufficient means to multiply quality seed, and poor seed distribution systems. These problems can apply to seed of both local and commerciallybred varieties. Parastatal and commercial seed companies sometimes have difficulty supplying seed of varieties specifically adapted to unique and local conditions. Often they cannot offer the range of varieties, or seed of so-called “minor” crops, on which many farmers rely, because of high transaction costs and the low purchasing power of farmers. There is thus a need to strengthen local capacity among farmers and local communities to produce and distribute seed of many crop varieties, including some landraces/farmers' varieties, that are useful for diverse and evolving farming systems.

Seed regulatory frameworks aim to promote varietal and seed quality, and thereby to protect farmers from planting sub-standard seed. Seed laws commonly regulate variety testing and release, seed certification, and seed quality control, and they establish the institutional framework of national seed councils and certification agencies. Variety release systems aim at making only varieties of proven value available to farmers. Seed certification aims at controlling the varietal identity and purity throughout the seed chain. Seed quality control checks on seed quality such as viability, purity and health. Seed quality control also protects bona fide seed producers from competition by less scrupulous colleagues. Seed laws are not usually intended to influence the direction of plant breeding. However, there are significant indirect effects of the variety release systems and of seed certification requirements on plant breeding methodologies and the resulting varieties. Breeders tend to target favourable farming conditions, wide adaptation and varietal uniformity as a result.

There are a number of options for regulatory reform. In plant breeding, more emphasis could be placed on decentralising variety testing, breeding for particular niches, and making site selection, trial management and analysis more representative of farmers' conditions. In variety regulation, simpler registration proce- dures may have advantages. Further, variety regulation might be adjusted to ensure that it does not bias or limit the development and use of public and farmer varieties. Variety performance testing for release could be made more flexible. In seed quality control, standards might be re-examined for their relevance to particular farming conditions, and much of the responsibility for monitoring seed quality could be passed to seed producers and merchants, accompanied by well-defined public oversight and enforcement mechanisms.

As situations may differ from country to country, this paragraph notes that such adjustments should be carried out as appropriate.

70See Louette, D. (2000) Traditional management of seed and genetic diversity: what is a landrace? In Genes in the field: on-farm conservation of crop diversity. S.B. Brush (ed.), pp. 109-142, IDRC and IPGRI, Lewis Publishers, CRC Press LLC; Parzies, H.K., Brocke, K.V., Spoor, W. and Geiger H.H. (2001) Contrasting seed management practices for landraces of barley and pearl millet in Rajasthan, India, inferred from gene flow data. Abstract from the XVIth EUCARPIA Congress, Plant Breeding: Sustaining the Future, Edinburgh, Scotland, 10-14 September 2001.

71Each of these terms has a particular nuance, and each is problematic. “Informal” systems are not purely “farmer” systems in that markets are important. Neither are they purely “local” since both markets, and exchange through social networks connect various localities. Finally, they are not “traditional” in the strict sense, because they are constantly evolving. “Formal” and “informal”systems should not be equated with formal and informal sectors.

72See also D. Cooper et al. 2001. Broadening the genetic base of crop production. CABI, FAO and IPGRI.

73Republic Act No. 9168, An Act to Provide Protection to new Plant Varieties, Establishing a National Plant Variety Protection Board and for Other Purposes, the Philippine Plant Variety Protection Act of 2002.

74Alywin Darlen M. Arnejo, The Community Registry as an Expression of Farmers' Rights: Experiences in Collective Action Against the Plant Variety Protection Act of the Philippines, Paper presented to the CAPRI-IPGRI International Workshop on Property Rights, Collective Action and Local Conservation of Genetic Resources, Rome, 29 September – 2 October 2003.

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