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"There is no such activity as Bioprospecting

- there is only Biopiracy" RAFI

From: IT Kenya / ITDG*











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In Kenya, as in most of the rest of the developing world, the indigenous genetic resources of poor communities are being lost, because of the spread of industrial agriculture and the consequent marginalisation of small-scale food production, and they are being stolen by corporate-sponsored scientists and other plant collectors - the Biopirates - without adequate compensation.



'Prior Informed Consent' means that when someone from within or outside of the community wants to use the community's genetic resources, for whatever purpose, they should explain exactly what they are going to use them for, who the ultimate enduser will be, and agree, in a legally-binding way, how any benefits, from the further commercial development of these resources, will be shared with the community. In order for communities to be able to negotiate effectively, make reasonable assessments of the implications of any information they are given and be able to claim adequate compensation for their genetic materials, there needs to be an agreed framework supported by appropriate legislation at national level. (See, for example, EcoNews Africa Vol. 5, No. 7, 4 April 1996)



This is because the Rights of communities, food producers and herbalists to these genetic resources, are not recognised. The questions are, therefore: In what way should these Rights be recognised, what controls of access to these resources should communities have and what monetary gain should they expect from allowing access to corporations which depend on these resources as raw material for their biotechnological and agricultural industries? Only with adequate recognition, protection and reward will these resources be conserved and appropriate compensation be granted to the communities. Central to this is the right to 'Prior Informed Consent', ensuring communities know what they are agreeing to.

In Kenya, who should benefit from these Rights? Should the state receive any benefits - what knowledge does the state have about the communities' genetic resources? Should the state have sovereignty over the resources (as agreed to in the Convention on Biological Diversity) or should it only be the communities - and which communities?

Would any benefits be distributed equitably from government, within the community and within the household? The recognition of the Rights to the knowledge embodied in genetic material for food and agriculture - the biodiversity of food species (Agricultural Biodiversity) - is an issue of fundamental importance to the people who developed this diversity - the smallholder farmers, pastoralists and artisanal fisherfolk of the world. But recognising these Rights means being prepared to negotiate access to these resources and the knowledge that is contained within them. It also means recognising that any financial rewards gained from the further commercial development of these resources should be shared with the originators - the communities who conserve, manage and continue to develop this biodiversity.




The Convention on Biological Diversity (CBD) places legal liability on states to ensure the 'fair and equitable sharing of benefits' arising from 'the use of traditional knowledge, innovations and practices' (See especially, Article 8j). It also recognizes that 'indigenous and local communities embodying traditional lifestyles' are the guardians of biological diversity and its sustainable management, and acknowledges its critical importance in 'meeting the food, health and other needs of the growing world population'.



Without adequate recognition for their 'intellectual' contribution - their knowledge and skills - to the development and management of these resources, small-scale food producers will not be able continue this service to their peoples, the nation and the international community. They will cease to conserve the genetic resources which are the first link in the food chain and will no longer be able to safeguard this agricultural biodiversity which is so essential for food security. This is why the discussion of these Rights is such an important subject of significant local, national and international debate. Much is at stake - communities could gain significant recompense for their past and present efforts, as they regain control of their resources: Industrial food production and the biotechnological industry would have to pay much more for their genetic raw materials. The debate is most prominent with regard to plant genetic resources for food and agriculture - the issue of 'Farmers' Rights' - though there are emerging debates over the genetic resources of domestic livestock and fish.


The Development of 'Farmers' Rights'

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NGOs introduced Farmers' Rights in 1985 as a first response to the North's pressure to recognize Plant Breeders' Rights as an "agreed interpretation" to the FAO International Undertaking on Plant Genetic Resources (IU). After intense opposition from the North and passionate support from the South, Farmers' Rights were entrenched in the International Undertaking (IU) in 1991. Farmers' Rights were inserted, as well, in 1992 into Agenda 21 and in the Convention on Biological Diversity (CBD). FAO's Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture, which was prepared by FAO as a result of Agenda 21's commitment to the conservation of agricultural biodiversity, also includes continued commitment to the implementation of Farmers' Rights, although in 'lower case'. Vía Campesina, the international network of 40 farmers' organisations, has made an impassioned plea to the Commission on Genetic Resources for Food and Agriculture for the recognition of Farmers' Rights.






Intervention of Vía Campesina to the FAO Commission on Genetic Resources for Food and Agriculture, on the Revision of the International Undertaking on Plant Genetic Resources

Last June, in Leipzig, Vía Campesina had the opportunity to present the proposal that Farmers' Rights, the Global Plan of Action, and the terms of the International Undertaking should be implemented through a broad-based consultation process with producer's organisations, peasants, indigenous people, and farmers. The fact that our declaration was incorporated in the Leipzig conference report in paragraph 30, recording our request for a permanent and flexible consultation process that will permit the participation and adequate representation of all stakeholders, is very important to us.

Now, we wish to ask you to bring about this consultation, and we restate our position that this Commission and the FAO, as representatives of the international community, should support a consultation process at national, regional and international levels that guarantees the integral participation of farmers, as the best mechanism that governments have to develop policies for implementing the Rights of their peoples.

It is appropriate now to describe the principles on which the international community should recognize Farmers' Rights, among which should be included:

  1. Farmers' Rights have a deep historic character, have existed since humans created agriculture to serve their necessities, have remained vital through our conservation of biodiversity, and we endorse them with our constant generation of new resources and their improvement. We are the guardians of these genetic resources, which support the evolution of species. We are the inheritors of the skills and knowledge of the generations that have created this biological wealth, and for this we only ask that you recognize our Rights.
  2. Farmers' Rights include the right over resources and associated knowledge, united indivisibly, and mean the acceptance of traditional knowledge, respect for cultures and recognition that these are the basis of the creation of knowledge.
  3. The right to control, the right to decide the future of genetic resources, the rights to define the legal framework of property rights of these resources.
  4. Farmers' Rights are of an eminently collective nature and for this reason should be recognized in a different framework from that of private property.
  5. These rights should have a national application, and the Undertaking should promote legislation to this effect, respecting the sovereignty of each country, to establish local laws based on these principles.
  6. Rights to the means to conserve biodiversity and achieve food security, such as territorial rights, right to land, right to water and air.
  7. The right to participate in the definition, elaboration, and execution of policies and programmes linked to genetic resources.
  8. The right to appropriate technology as well as participation in the design and management of research programmes.
  9. The right to define the control and handling of benefits derived from the use, conservation and management of these resources.
  10. The right to use, choose, store and freely exchange genetic resources.
  11. The right to develop models of sustainable agriculture that protect biodiversity and to influence the policies that support it.

Vía Campesina rejects intellectual property rights and the patenting of any form of life or of knowledge associated with these genetic resources because it is a threat to biodiversity and results in the legalization of the expropriation of knowledge and resources by industrial companies and transnational corporations. The fact that 95% of food-related patents are concentrated in only 7 countries and a few companies serves as sufficient example. We want to alert our governments to the danger that the monopolization of knowledge by a few transnationals threatens the future of humanity.

Food security is now one of the great concerns of humanity. Eliminating the hunger of 800 million poor people in the world is a task intimately linked to the work of this Commission. Food security is only possible if there is sufficient support for agricultural biodiversity, whose conservation and sustainable use we farmers have achieved through generations of implementing Farmers' Rights. Now, ladies and gentlemen, all that remains is to recognize them.

Thank You.

FAO, Rome, December 10, 1996


The revised IU may become a legally-binding Protocol to the CBD. The Conference to the Parties to the Convention (COPs) are discussing agricultural biodiversity and they have invited FAO to develop the IU into what the COPs could recommend as a Protocol to the Convention. However, the traditional resource rights respected by communities throughout the world, many of which are the originators of these genetic resources, are being undervalued. This is because Plant Breeders' Rights - the 1991 version of the International Convention for the Protection of New Varieties of Plants (UPOV 91), and the Trade Related Intellectual Property Rights (TRIPs) agreement of the World Trade Organisation (WTO) - are becoming more important internationally, supported mainly by Northern governments and Industry.






What type of rights are dominant?

Patents or other strong form of Intellectual Property Rights regime

Collective rights, but not individual "property" rights

Who can own such rights?

Rights awarded to individuals

Rights vested in communities to be held in trust for future generations

What is extent of such rights?

Rights limited to genetic resources and Intellectual Property

Rights must extend to land and livelihoods to ensure effective conservation of resources

What is scope of such rights?

Rights recognize a single inventive step

Rights must recognize the accumulated intellectual contributions of many preceding generations



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Patents are not the best instrument to protect the intellectual property in agricultural biodiversity - they were introduced to protect industrial inventions, not biological development. Through their provision of exclusive monopoly rights over an 'invention', they tend restrict innovation rather than promote it. They may also exclude benefits being derived by the farmers and indigenous people whose contributions have been essential to the development of the patented material. In addition patents may limit access to genetic resources including the right to be able to re-sow varieties harvested on the farm, if they contain patented material.



Under patent law, farmers replanting patented seed for the next season would be legally required to pay royalties. This has a number of implications. Firstly, many of the most successful varieties available commercially are derived from stock which has been carefully bred by people in the South. But instead of being rewarded for their important contribution - both for developing the genes for desirable traits and the knowledge and skills required to use these - they may be required to pay the companies to use the products.

Secondly, patenting will seriously limit the access that people, and the poor in particular, have to the genetic resources on which their lives depend. This also has grave implications for the gene pool that makes up our food supplies. The domestication of plants and animals did not happen spontaneously. It was the result of thousands of years of sharing knowledge, seeds and breeds between people much more freely than patents would allow.



The International Convention for the Protection of New Varieties of Plants (UPOV), which was set up to give crop plant breeders exclusive rights over the varieties they develop in the absence of legislation to allow the patenting of plant material, is also moving towards a patent-like regime. The UPOV 91 Revision prevents farmers from saving seed from one harvest to the next unless they pay royalties to the plant breeder.

Both patents and the UPOV 91 agreement disregard the traditional rights of indigenous and farming communities to their genetic resources and associated knowledge. In contrast, both the CBD and the IU call for a strengthening of these rights. But these rights will have to be fought for against the interests of Northern government delegations, which are susceptible to powerful industrial interests. Which side is Kenya on?


Need for Alternative Rights Regimes

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Many indigenous people and local communities think that Farmers' Rights do not go far enough, and that any acceptable rights regime will need a wider coverage than existing options. A number of alternative rights regimes are emerging. The Working Group on Traditional Resource Rights (WGTRR) Programme, for instance, proposes the adoption of a bundle of rights, uniting existing international law, non-binding international agreements ('soft law') and existing practice - in order to protect community knowledge systems where the notion of individual 'property' is absurd. Genetic Resources Action International (GRAIN) proposes that an expanded form of Farmer's Rights, which GRAIN terms Communal Rights, could be developed. These will need to provide for 'effective' Intellectual Property protection, a requirement of both the WTO and the CBD.

The international NGO Community Biodiversity Development and Conservation programme (CBDC) has developed a Protocol for addressing these issues in which binding agreements are reached between research and development organizations and communities before any access to germplasm, or any use of knowledge derived from the community, can be made.




The international NGO Community Biodiversity Development and Conservation programme (CBDC) has developed a Protocol for addressing issues of equity in germplasm exchange, in-situ conservation and intellectual integrity, in joint programmes of work between communities and organisations. It covers Rights and responsibilities in relation to germplasm, information, funds, technologies, methodologies and systems. It is based on mutual trust but assumes that decisions are taken from "bottom up" (from the community to the global level) and that authority will rest, as far as possible, at the community level. It believes that farmers and humanity are best served through the full and free exchange of plant genetic resources unfettered by the constraints imposed by intellectual property or other monopolistic market practices. It will therefore not cooperate with organisations, which do not reject the recognition of IPRs and the granting of patents for genetic resources.


 Intellectual Property Rights regimes (IPRs) are being promoted in the WTO and the CBD. The General Agreement on Tariffs and Trade (GATT), the forerunner of the WTO requires that States "provide for the protection of plant varieties by patents or by an 'effective' sui generis system".



The definition of Sui generis Rights is an alternative, unique form of intellectual property protection, designed to fit a country's particular context and needs. Sui generis protection is being considered by the World Trade Organisation, through Trade Related Intellectual Property Rights (TRIPs), and by the Convention on Biological Diversity, as an alternative to patents.

However, although now Sui generis Rights are a hot topic in intergovernmental fora, the 1999 revision of TRIPs could reject the idea of Sui generis protection and demand a universal patent system, or the adoption of UPOV 91 (see above).


The CBD is less prescriptive but also stresses the importance of "adequate and effective protection of intellectual property rights", which some delegations interpret as patents or other strong form of IPR. As Norah Olembo, Director of the Kenya Industrial Property Office says, "This was based on the assumption that only the intellectual contributions of corporate sponsored scientists need protection and compensation. This has generated debate as to how the IPR will restrict transfer of technology from the industrial North to the unindustrialised South. ... The outcome of the debate notwithstanding, raw materials which the corporate sponsored scientists depend on ... is the biodiversity and genetic materials obtained in the South. It is natural to acknowledge and give IPR for the ownership of this biodiversity..." (emphasis added) The questions are: Why is it natural for the state to acknowledge IPRs on community resources and is it ethical or desirable for common and ancestral knowledge to be owned by any individual?


Implications for small-scale food producers in Kenya

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 In Kenya there is a push from government to apply Patents, under the Industrial Property Act Cap 509 of 1989, to the intellectual property embodied in traditional herbal remedies. There is also an assertion of the 'weakness' of current Plant Breeders' Rights legislation, Plant Breeders and Varieties Act Cap 324, 1979, which grants protection in Kenya for 25 years to registered distinct, uniform and stable varieties. "Breeders could consider patent protection if their inventions involve microbiological processes" says Prof Olembo. This could herald the introduction of a regulation regarding patents on plant varieties or the adoption of UPOV 91. Either of these step could work against the interests of smallholder farmers. An effective sui generis system would be a more acceptable development (see above).

Kenya has, however, ratified the Convention on Biological Diversity, has adopted AGENDA 21, is a party to the Leipzig Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture and to the Plan of Action of the World Food Summit, is a member of the FAO Commission on Genetic Resources for Food and Agriculture and is a member of the Conference of the Parties to the Convention on Biological Diversity. Kenya has implemented Environmental Protection laws and the gazetting of areas of land to be protected from cultivation. Within all these international and national instruments there are many references to the need to protect traditional smallholder production systems, local species and varieties and local knowledge.

The challenge is to ensure that any extension of Intellectual Property Rights systems, of Plant Breeders' Rights (eg UPOV 91), or of Patents do not further infringe the Rights of Kenyan small-scale food producers to the genetic resources needed for food production and health - an effective sui generis system would provide better protection. Equally, the challenge is to ensure that Kenya supports wholeheartedly the development, recognition and implementation of legally-enforceable 'Farmers' Rights' within the revised International Undertaking on Plant Genetic Resources, currently being negotiated in the FAO Commission on Plant Genetic Resources.  

This will require full and continuing consultation with farmers and their organisations. Only by so doing will the Intellectual Rights and the protection of Community Knowledge, which are fundamental to the conservation of agricultural biodiversity, be assured.




Learn more about these issues

Discuss these issues openly with communities

Support full implementation of 'Farmers' Rights'

Agree a policy on Prior Informed Consent

Develop a Protocol for work with communities

Advocate for permanent and continuing consultation by government with farmers' and pastoralists' groups, on these issues

Communicate the possible impacts of international and national legislation on IPRs, Plant Breeders' Rights and patents

Communicate the possible benefits and costs of international Conventions, Protocols, Plans of Action

Campaign for the adoption of a sui generis system of rights specifically for Kenya

Engage in national and international advocacy on these issues and enable farmers' and pastoralists' organisations to participate as well

Above all, decide which side of the fence you are sitting on.


*Briefing prepared by Patrick Mulvany (Jan 1997, adapted Nov 1997)

On behalf of:

IT Kenya

PO Box 39493



Tel: + 254 2 446243

Fax: +254 2 445 166

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