Means of Enforcement of Farmers Rights under TRIPS

Patents

If TRIPS means patents in their present form, it will offer little to farmers who provide in situ conservation beyond, at best, defence of their continued right to free access to the genetic material in the seeds they use. Standards of patentability include novelty, provide for compensation only for individuals as distinct from communities, and exclude disembodied knowledge.

How would less developed countries fare under TRIPS? Farmers' rights to their germplasm and knowledge could not be effectively protected by a conventional patent system. Patents have never applied to pure knowledge of techniques or processes, nor to intellectual property acquired from other parties. The notion of an Amazonian tribe obtaining a patent for their traditional communal knowledge of the insecticidal benefits of a jungle plant is unrealistic.

Alternatives to Patent Protection

Several modes of compensation for development of intellectual property compensation are worth considering in cases for which patents are unavailable. These include protecting local knowledge as a 'trade secret' that can be marketed under the protection of trade secrecy law (Vogel, 1994). Farmers can also be compensated individually or as a collective group for innovation as well as conservation via transfers to them directly, or to their government as in the Merck-Inbio agreement and in debt-for-nature swaps, which apply to other aspects of biodiversity conservation.

Development of effective means of compensating farmers for their germplasm and related knowledge is an unsolved problem. Here we concentrate on a separate but related issue: What could such protection be worth to farmers? Assuming full compensation is feasible, what could less developed countries expect from full remuneration for the value of their germplasm? As a preliminary, we delineate some important distinctions in the next section.

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