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116 | Farm Saved Seeds: A Right to Use or a Right Abused? EFFL 2|2018

Farm Saved Seeds: A Right to Use or a Right

Abused?
Enrica Senini*

This paper will present and discuss the farmers' rights to seeds and all the main legal is-
sues related thereto. It will deal with the legal aspects of the IP rights of the breeders and
corporationswho own patented seeds or registeredplant varieties as opposed to the farm-
ers' historicaland customary right to set aside, sow and share those protected seedsfor fu-
ture harvests, thus also ensuring crops' resilience to climate change and biodiversity. The
contributionwill present the current international,EU and nationallegislationson the farm-
ers' right to seeds and the conflicting IP rights of breeders to prohibitfarm saved seeds, or
to claim endless royalties on successive harvests. The border between these two rights is
very controversialand faces two categories of economic operators (farmersand breeders)
having uneven contractual, economic and political powers, thus raising not only complex
legal issues but also a tremendous impact on social aspects of rural life, especially in de-
veloping countries' communities. The scope of the paper is to examine whose rights shall
prevail and to explore whether the legal concept of abuse of right may be used as discern-
ment.

1. Introduction ture, mutagenesis, and a range of marker aided se-

A seed is a fertilised ovule of a flowering plant con-
taining an embryo capable of germination to pro-
duce a new plant. Seeds are the first link in the food
chain and represent the millenial efforts of breeders,
farmers and nature itself to diversify and adapt to
climate changes, variable soil characteristics and pol-
lution.
Until the last century, seeds were a common re-
source for farmers. Archeologists report that over
23.000 years ago the first human tribes in North
America and Mexico started to save and select seeds
by discovering that fruits having different shape and
taste could be crossed and their seeds could be re-
planted to get different fruits'varieties. Over the fol-
lowing centuries, through continuous hybridisa-
tions and climate mutations, humans reached the
early stage of crops we have come to know. At the
beginning of the 20th century researchers discov-
ered that plant immunity to certain infectious dis-
eases was a trait attainable by breeding and started
to study the genetics of plants. Advances were first
made by hybridisation and selection; at a later stage
a range of other technologies such as genetic en-
hancement by genetic transformation, tissue cul-
lection methodologies were applied. Efforts in plant
breeding led to huge effects on yield and quality, yet
only for the relatively small number of crops which
were targeted by those efforts. Crop improvements
on major varieties such as maize, wheat, rice and
cotton boosted the establishment of a commer
cialised market for improved seeds and correspond-
ing inputs such as fertilisers and pesticides. As a re-
sult, in many regions of the world increasing pro-
ductivity allowed farmers to overcome food scarci-
ty and to generate a market-oriented agriculture.
However, the dependence on external inputs rose,
too. Crop research became increasingly privatised
and as a consequence the protection of intellectual
property rights on plant genetic resources by plant
variety protection (PVP) or patenting started to be
pursued.
As is clear from above, historically agriculture is
one of the first economic sectors where life forms
have encountered intellectual property rights (IPRs)
Enrica Senini, LL.M., Partner at Studio Legale Senini, Brescia,
Italy. Email: <e.senini@senini.biz>.
EFFL 2|2018
and the increasing quest to protect newly bred crops
through monopoly. This process started in the 198os
in the United States where agrochemical corpora-
tions and multinationals, due to the decrease of prof
it opportunties deriving from the enactment of
stricter regulations, bought out small, family-owned
farms involved in the seed business, thus entering in
the promising seed industry. At a later stage, much
larger corporations merged with each other, eventu-
ally reducing the number of global players in the
agrochemical and seed industry to almost four, and
gaining through this economic concentration a
strong power towards governments seemingly as
protection but enforcing their seeds' monopolies. By
contrast these changes negatively affected the busi-
ness of farmers who went through increased prices
and the prohibition to save seeds due to the IPRs vest-
ed as a result of the commercial and political pres-
sures mentioned above.
11. Life Forms and Techniques of
Appropriation
Traditionally, patents have applied solely to inven-
tions. Naturally occurring substances, like DNA, were
exempt from patentability. Then, in 1980, Mr. Anan-
da Mohan Chakrabarty, an engineer working for Gen-
eral Electric, U.S.A., filed an application for a patent
on a bacterium that he had modified genetically so
that it could consume oil. The U.S. Patent and Trade-
mark Office rejected Chakrabarty's application on
the ground that the bacterium was a product of na-
ture, hence non-patentable. Chakrabarty challenged
this decision, arguing that, by altering the organism,
it was his ingenuity that made the bacterium valu-
able. The case ended up before the Supreme Court,
which ruled in favor of the applicant, stating that the
fact that micro-organisms are alive is without legal
significance for the purpose of patent law. Chakrabar
ty's creation is recognised as being the first life-form
to receive a patent.
1 'Appropriation' in the [P context has been defined as "the differ-
ent means an economic agent may use to profit from its inven-
tions or innovations by temporarily enjoying some kind of monop-
olistic power over the knowledge it creates" (Andres Lopez,
Innovation and Appropriability, Empirical Evidence and Research
Agenda, in <http://www.wipo.int/edocs/pubdocs/en/wipo-pub
101 2-introl.pdf>).
Farm Saved Seeds: A Right to Use or a Right Abused? I 117
The development of biotechnologies occurred in
the following years, and the pressures of the biotech,
agrochemical and seeds corporations ensured that
several govermnents included in their legislation the
possibility to patent genes, plants, animals and ge-
netically modified organisms. Since 1930, though, the
United States Congress enacted the Patent Protection
Plant (1930) that granted a limited protection to plant
biotechnology, allowing special "plant patents" for al-
most all plants characterised by asexual reproduc-
tion. The US wanted full patent protection for all
fields of technology while under the European Patent
Convention (1973) the acceding States already pro-
hibited patents on plant and animal varieties, and es-
sentially biological processes for the production of
plants and animals.
The turning point, or rather the circumstance that
lit the fuse in the debate on IP protection on life forms
on a worldwide scale and their techniques of appro-
priation, was the provision contained in Article 27
of the Trade-Related Intellectual Property Rights
(TRIPS) Agreement of WTO, negotiated at the end
of the Uruguay Round in 1994. Article 27 (3) b) states
that "[plartiesmay exclude from patentabilityplants
and animals other than microorganisms, and essen-
tially biologicalprocess for the production of plants
or animals other than non-biologicaland microbiolog-
ical processes. However, parties shall provide for the
protectionofplant varietieseither by patents or by an
effective 'sui generis' system or by any combination
thereof This provision shall be reviewedfour years af
ter the entry into force of the Agreements establishing
the WTO".
Although some developing countries like India
have strongly campaigned (and are still campaign-
ing) against this provision, it has never been reviewed
as it was supposed to be in 1999. As a matter of fact,
therefore, the current obligation for WTO Members
regarding the IP protection of life forms in the field
of plants, seeds and animals is represented in Box 1
below.
Unlike developing countries, where local commu-
nities and farmers claim their right to food security
and to freely use their ancestral and indigenous
knowledge in agriculture and plant breeding, govern-
ments in developed countries interface with corpo-
rations undergoing sophisticated research and devel-
opment activities that claim, on the contrary, full le-
gal protection and enforcement of their inventions
as not to jeopardise their investments.
118 | Farm Saved Seeds: A Right to Use or a Right Abused?
TRIPS AGREEMENTS 1994 (REV. 1999)
BIOTECH INVENTIONS t PLANT VARIETIES
POSSIBLE LEGITIMATE EXCLUSIONS
- plants other than
-_animals microorganisms
- essential biological process other than
non-biological and microbiological processes
Box 1: TRIPS Agreements
Source: Author's compilation.
But how can a seed be patentable in the light of
the de minimis provision underlined above?
III. Is a Seed Patentable, and to What
Extent Can the Insertion of a Gene
in an Existing Seed Can Be
Considered as a Patentable
Invention Having Novelty
Character?
A seed is a form of life and the question of its
patentability has unavoidably raised concerns in re-
lation to the ethical and environmental issues under
lying the delicate field of granting monopolies on
life forms and biological processes occurring natu-
rally.
Under the exceptions provided for by Article 27
of the TRIPS Agreement, plants and animals other
than micro-organisms and essentially biological
processes for the production of plants or animals oth-
EFFL 2|2018
I
Plant aietv Protectiuon PP)
-TPOV Members (last revision 1991)
- non-UPOV Members: national laws
er than non-biological and microbiological process-
es may be exempted from patentability.
According to the European Patent Convention
(EPC) which dates back to 1973, patents on conven-
tionally bred plants are predominantly prohibited in
Europe: Article 5 3 (b) of the EPC states that European
patents may not be granted for "plantor animal va-
rieties or essentially biological processesfor the pro-
duction of plants or animals". New interpretations of
the EPC, also reflected in the Guidelines for Exami-
nation in the EPO, have nevertheless allowed for such
patents.
Being a controversial issue among Member States,
the European Parliament and the Council adopted
on the 6th of July 1998 Directive 9 8/44/EC on the le-
gal protection of biotechnological inventions with
the purpose of harmonising the existing national
laws of the EU Member States regarding the
patentability of inventions related to biological ma-
terial and to give a definition of "essentially biologi-
cal processes" which constitutes the main dividing
line between patentability or non-patentability. In
EFFL 2|2018
the late 1990s this was a burning issue considering
the techological progress in the plant sector whose
results have led to techniques of introducing gene
markers in the crossing and selection of new plants,
thus opening the question as to whether such tech-
niques fall under the definition of "essentially bio-
logical processes" or constitute a patentable inven-
tion.
Article 2 (2) of the Directive provides that "a
processfor the production of plants or animals is es-
sentially biologicalif it consists entirely ofnaturalphe-
nomena such as crossing or selection" and further on
Article 4 (1) b) states that essentially biological
processes for the production of plants shall not be
patentable.
It seems therefore that the trigger point for ensur
ing the patentability of a plant, or of a seed, is the
technical process involved in the invention, such as,
for example, the insertion of a gene into a genome.
Therefore an invention founded on an essentially bi-
ological process shall not be patentable, it not being
technical in nature. This is also the interpretation
adopted by the European Commission with Notice
No. C/2016/6997 on certain articles of the Directive.
In 1999, following the adoption of Directive
9 8/44/EC, the Administrative Council of the Euro-
pean Patent Office (EPO) decided to include in the
EPC Implementing Regulation (Articles 27 and 34)
the main relevant provisions of the Directive, with
prevalence of the EPC Rules over the Directive in case
of conflict (Article 164 (2) of the EPC).
However, there remained some inconsistencies be-
tween Article 26 (5) of the Rules, according to which
an essentiallly biological process is a process for the
production of plants and animals consisting entire-
ly of natural phenomena such as crossing or selec-
tion, and Article 53 (b) EPC which gives a wider de-
finition under the exceptions to patentability saying
that patents shall not be granted in respect to plant
2 Decisions of the Enlarged Board of Appeal of the EPO G2/12
('Tomatoes') and G2/13 ('Broccoli II').
3 Principally Navdanya International founded by Dr. Vandana
Shiva in India. Recently, on 25th November 2014, the organisa-
tion 'No Patents on Seeds' filed an opposition before the EPO
against a patent claiming inter alia "utility of single nucleotide
genomic polimorfism markers associated with major soybean
plant maturity and growth habit genomic regions" including
"methods for screening plants and seeds from the genus Glycine
with markets associated with genomic regions that are related to
the plant maturity and growth habit of Glycine plants", on the
gound that such patent falls within the exclusion from patentabili-
ty of essentially biological processes under Article 53 (b) EPC.
Farm Saved Seeds: A Right to Use or a Right Abused? I 119
or animal varieties or essentially biological process-
es for the production of plants or animals. Basically,
a process of sexual crossing and selection including
the technical step of introducing a trait into the
genome is patentable under Rule 26 (5) while
patentability would be excluded under Article 53 (b)
EPC.
In March 2015 the Enlarged Board of Appeal of
the EPO that frequently admitted the inconsistency
of the above mentioned provisions, came to the de-
cision2 that procedures of conventional breeding
may not be patented, but that plants originating from
such breeding efforts may be patented nevertheless.
In June 2017, in document CA/ 5 6/17, the Adminis-
trative Council of the EPO clarified the interpretation
of Article 53 (b) of the EPC by way of amendments
to Rules 27 (b) and 28 of the EPC to state - in line
with Directive 9 8/44/EC - that plants or animals ob-
tained exclusively from essentially biological
processes are excluded from patentability. However
if such process contains within the biological steps
of selection and/or crossing an additional step of tech-
nical nature, consisting, for example, in the introduc-
tion of a trait or a gene into the genome or a modifi-
cation thereof that does not result in the mere mix-
ing of the genes of the plants chosen for the sexual
crossing, then this process can be patented.
As a consequence, under both Directive 9 8/44/EC
and the EPC, seeds whose trait is the result of an es-
sential biological process are excluded from
patentability but transgenic seeds, on the other hand,
are patentable. The argument supporting this con-
clusion is that although the seed as such is the result
of the fertilisation of the flower and hence of an es-
sential biological process, the transgene inserted in
the seed and the characterising feature caused there-
by are the result of a technical process.
Some opposers of this legislation3 assert that seeds
have always existed in nature and therefore their mu-
tations, although obtained through non-essential bi-
ological processes, are not patentable, inter alia, for
lack of novelty character of the invention, and due to
the fact that most of these "technical" processes are
rather a discovery (excluded from patentability pur
suant to Article 52 EPC and by most all national laws
on patents) and not an invention.
The novelty requirement is to be intended as ab-
solute novelty, i.e. the invention shall be considered
to be new if it does not form part of the state of the
art. The state of the art, or prior art, shall be held to
120 | Farm Saved Seeds: A Right to Use or a Right Abused?
comprise everything made available to the public by
means of a written or description by use, or in any
other way, before the date of filing of the patent ap-
plication. Since most of the filings for patents on
transgenic seeds also claim the invention of the orig-
inal seed as being the starting point of the technical
non-essential biological process, the novelty require-
ment can be often argued to be lacking.
OtherS4 have argued that patents on seeds and oth-
er life forms conflict with Article 53 (a) of the EPC,
which prohibits patents that would be an exploita-
tion of basic ethical values. If seeds used for food pro-
duction become patented inventions, then the life of
farmers is likely to suffer from strategies devised by
large seed companies seeking to maximise profits be-
fore the patent expires.
All opposers also campaign against patented seeds
as they threaten biodiversity and the natural capabil-
ity of nature to adapt to climate change and pests.
These arguments have also been supported by
some governments of developing countries at the
WTO in the discussions on the proposed amend-
ments of Article 27.3 (b) of the TRIPS: India has stat-
ed that "clearly, there is a case for re-examining the
need to grant patents on life forms anywhere in the
world. Until such systems are in place, it may be ad-
visable to exclude patents on all lifeforms", and the
African Group too has proposed "thatArticle 27.3 (b)
be revised, to prohibitpatents on plants, animals, mi-
cro-organisms,essentially biologicalprocessesfor the
production of plants and animals and non-biological
and microbiologicalprocesses for the production of
plants or animals".
The rationale behind these concerns lies, on one
hand, on the impact of transgenic, uniform and sta-
ble seeds on biodiversity and, on the other hand, on
the monopoly granted to seed companies that can ba-
sically control prices of seeds and demand from farm-
ers endless royalties on all successive harvests whose
seeds are qualified as propagation material covered
by the patent.
The consequence of this practice has affected
farmers' lives, food security and custom to exchange
seeds with neighbours, as well as the possibility for
farmers to develop, for example, flood, drought, or
frost resistant varieties depending on the environ-
ment where they were grown.
But what are farmers' rights related to the practice
of seed saving and re-using them for successive har
vests?
EFFL 2|2018
IV. What Is the Issue at Stake?
1. Farmers' Rights to Seeds: a historical
Overview on Social, Cultural and
Legislative Initiatives Protecting the
Ancerstal Knowledge on Crop
Breeding, Harvesting and
Conservation by Farmers and Rural
Communities - the Agricultural
Exemption.
In agriculture, seed saving is the practice of keeping
seeds or other reproductive material from vegeta-
bles, grain, herbs, and flowers for use from year to
year. This is the traditional way farms were main-
tained for the last 12,000 years and saving and ex-
changing seeds has been a question of life and food
secutiry for many farmers fully depending on the in-
come generated by their harvests. This is still the case
in many developing countries in Africa and Asia
where the custom to save seeds, exchange and re-
plant them is also part of ancestral traditions and rit-
uals, often celebrated in traditional religious cere-
monies.
Often this traditional knowledge or the peculiar
genetic characteristics of the biological material de-
veloped by farmers along the centuries through cross-
ing and selecting indigenous varieties has been used
by corporations for developing transgenic seeds and
plants. This phenomenon has been often referred to
by peoples' movements as biopiracy, i.e. as the use of
intellectual property systems to legitimise the exclu-
sive ownership and control over biological resource,
biological products and processes that have been
used over centuries in non-industrialized cultures.
The U.S. Patent and Trademark Office, forinstance,
in 1998 granted a patent on basmati rice (called 'Rice
Tech' claiming to have invented particular traits of
the rice genome) which is a rice variety developed by
Indian farmers by natural selection along the past
centuries and cultivated through traditional methods
of breeding. Neem (Azadirachta Indica), an Indian
indigenous plant having medicinal properties and
used for centuries by Indians to heal pain, fever and
infections, as well as insecticide especially in cotton
4 'No Patents on Seeds' campaign against patents on plants, seeds
and animals.
EFFL 2|2018 Farm Saved Seeds: A Right to Use or a Right Abused? | 121
crops, was also first patented in 1983 in the USA. At
alater time neem related processes and products have
been patented in Japan, USA and European countries.
The importance of the traditional and ancestral
knowledge for developing countries was clearly out-
lined by the representatives of such countries after
the launch of the Doha Round of the WTO in Novem-
ber 2001, in which the review of Article 27.3 (b) of
the TRIPS Agreement has recommenced: in June
2003 governments of developing countries demand-
ed a strong disclosure of originating mechanisms that
would require not only detailed information about
who provided the genetic materials or the tradition-
al knowledge used in patent applications, but also
positive proof of benefits sharing and of prior in-
formed consent (WTO doc. IP/C/W/404, PP. 4-9).
It is clear that farmers have to some extent the
right to enjoy protection of their traditional knowl-
edge and customs, and this is why national legisla-
tions, partly enacting the provisions contained in the
International Convention for the Protection of New
Varieties of Plants (UPOV Convention) have disci-
plined the so-called farmers' privilege (or 'agricultur
al exemption') aiming at protecting the customary
practice of setting aside seeds of second generation
to be used in their farm for further crops with a view
to impede farmers' dependance on seed corporations.
When plant variety protection (PVP) was first stan-
dardised by the UPOV Convention in the 196os, it
was a mostly copyright-like form of intellectual prop-
erty. The variety owner had a monopoly on the com-
mercial propagation and marketing of the variety, but
little control over other uses. Small farmers were free
to multiply seeds for their own use for as long as they
wished. Other breeders could also freely use protect-
ed varieties to develop their own material.
This represented a strong protection for farmers
but things changed dramatically in 1991, when the
UPOV Convention was revised and PVP started to
closely resemble a patent.
Under Chapter V of the UPOV Convention, ver
sion 1991, breeders have the monopoly on seeds and
propagating material. Therefore, any production or
reproduction (multiplication), conditioning for the
purpose of propagation, offering for sale, selling, im-
porting, exporting and stocking for any of the above
purposes requires the authorisation of the breeder
who may impose conditions and limitations, in ad-
dition to the payment of royalties or technology fees.
An exception to this provision is contained in Arti-
cle 15 of the Convention that allows the activities in-
dicated above, provided that they constitute acts
done privately and not for commercial purposes, ex-
perimental purposes, or done for the purpose of
breeding other varieties (the latter, though, with
some limitations). Seed exchange between farmers
is prohibited under UPOV Convention 1991.
A very similar provision on PVP was also enacted
in Article 13 of EC Regulation NO. 2100/1994 on Com-
munity Plant Variety Rights. Article 14 provides for
an exception to breeders' rights, allowing farmers,
for the purposes of safeguarding agricultural produc-
tion, to use for propagating purposes in the field, on
their own holding the product of the harvest which
they have obtained by planting, on their own hold-
ing, propagating material of a variety other than a
hybrid or synthetic variety, which is covered by a
Community plant variety right. However, this excep-
tion shall only apply to the agricultural plant species
listed in Article 14 (2).
At a later time, Article 7 of EC Regulation No.
1768/1995 implementing rules on the agricultural ex-
emption provided for in Article 14 (3) of Council Reg-
ulation (EC) NO. 2100/94 on Community Plant Vari-
ety Rights has further limited the agricultural exemp-
tion to small farmers cultivating a given quantity of
cereals and/or potatoes.
With regard to biotechnological inventions, agri-
cultural privilege is governed by Article 11 of Direc-
tive 9 8/44/CE that makes reference to Article 14 of
EC Regulation NO. 2100/1994.
Most national laws of European Member States
have disciplined the agricultural privilege in their
PVP rules and/or in the legislation on biotechnolog-
ical inventions, granting farmers limited rights to
save seeds.
In Italy, for instance, Article 70-bis (5) of the Code
of Industrial Property (Legislative Decree No.
30/2005) provides that farmers are permitted to use
patented material of plant origin for the reproduc-
tion and propagation within their own farms under
the conditions set forth at Article 14 of EC Regula-
tion NO. 2100/1994. With regard to PVP, Article 14 of
Legislative Decree No. 455/1998 implementing the
UPOV Convention envisages an exception to the
breeders'rights by permitting acts done privately, for
non-commercial purposes, for experimental purpos-
es or for breeding other varieties.
In Africa and Asia there are strong pressures to
permit farm saved seeds at least for certain crops es-
122 | Farm Saved Seeds: A Right to Use or a Right Abused?
sential to farmers' survival and food security, but
such protection is granted by PVP laws while nation-
al laws on patents generally allow patents on seeds
pursuant to Article 27.3 (b) of the TRIPS Agreement.
India's Protection of Plant Varieties and Farmers'
Rights Act 2001 - which is one of the most protective
legislations for farmers and one of the few expressly
stating the role of farmers "in respect of their contri-
bution made at any time in conserving, improving and
making available plant genetic resourcesfor the de-
velopment of new plant varieties" - entitles farmers,
pursuant to Article 39 (iv), to save, use, sow and re-
sow, share and sell farm produced seeds including
those of varieties protected by plant breeders' rights
"in the same manner as he was entitled before the en-
try into force of this Act" provided that the farmer
shall not be entitled to sell branded seeds of a variety
protected under the Act. However, the same liberal
provisions are no more enacted in the Indian Patent
Law which, under the pressures of WTO, has now in-
troduced the possibility to patent seeds and prevent
farmers from using, exchanging, selling and re-sow-
ing patented seeds and any propagating material.
PVP laws in Africa, where they are enacted, grant
certain protection to small farmers allowing seed ex-
change for certain essential crops, but these legisla-
tions coexist with deep-rooted informal community
based seed systems that are still the main supply
channel for farmers, and are therefore difficult to be
enforced. Interestigly, some African legislations (e.g.
Uganda) allow farmers to exchange breeders'protect-
ed seeds for purposes other than commerce, mainly
in order to ensure biodiversity and food security to
the poorest communities.There is therefore a funda-
mental right embedded in the farmers' right to save
seeds, which is the right to food.
2. The "Big Four": Monsanto, Bayer,
Syngenta, and Pioneer - Their Biotech
Ascent and the "Patent Seeds Rush"
While farmers struggle to maintain their rights on
seeds and to change laws in order to reinstate their
traditional custom to save, re-use and exchange seeds
and to defend food security, there is yet another side
of the seed story: the achievement of a few biotech
companies to control the seed market.
This industry concentration arose in the 1990s fol-
lowing the proliferation of patents granted on genet-
EFFL 2|2018
ically engineered seeds, along with a real rush of cor
porate mergers and acquisitions among seeds and/or
agrochemical corporations. Today, the proprietary
seed market accounts for a staggering share of the
world's commercial seed supply.
It has been estimated that the proprietary seed
market now accounts for 82% of the commercial seed
market worldwide. In 2007, the global proprietary
seed market was 22,000 million US dollars out of the
commercial seed market valued at 26,700 millions.
The world's largest seed company, Monsanto, ac-
counts for almost one-quarter (23%) of the global pro-
prietary seed market. The top three companies (Mon-
santo, DuPont, Syngenta) together account for 47%
of the worldwide proprietary seed market.
Proprietary, genetically engineered seeds patent-
ed by these multinationals mainly contain a techno-
logical trait capable of making them resistant to pests
or to herbicides. The promise that comes with these
seeds is to bring higher yielding crops which per
suade farmers to invest their money (and mostly to
access to credit) in order to buy these seeds and the
herbicides to which they are resistant.
Where patented or protected by PVP laws, these
seeds enjoy full protection and entitle seed corpora-
tions that own the monopoly to claim endless royal-
ties on all propagation material, i.e. to any seed and
crops grown therefrom, obtained from former crops,
and even on seeds propagated without the consent
of the user, for example through wind or other nat-
ural phenomena. Since such seeds are resistant only
to certain herbicides and chemicals (also manufac-
tured and marketed by the same corporations), farm-
ers are basically entangled in the obligation to pur
chase these seeds and combined fertilisers at the price
dictated by these corporations. This dependence has
led many farmers into debt and - in cases reported
in India - to even commit suicide.
In the absence of a patent, farmers who buy ge-
netically engineered seeds are asked to sign contracts
that dictate how their crop is grown - including what
chemicals to buy - and forbid them from saving and
replanting seeds. Some corporations claim in their
contracts with farmers a "technology fee" charged for
the alleged "technology trait" vested in the engi-
neered seed. Obviously, any failure by farmers to pay
royalties or not to save and re-use seeds causes seed
5 Source: Context Network 9
EFFL 2|2018
corporations to resort to lawsuits, which once again
are too expensive for small farmers and hence are
mosly settled pending trial in favor of the corpora-
tion.
This has given corporations incredible control
over the production of major staple crops, such as
maize and wheat, and has extinguished the native
varieties that over centuries have become naturally
resistant to pests, drought, floods and the local sea-
sonal weather fluctuations.
It is clear that farmers do not have any negotiat-
ing power toward seed multinationals and this dis-
placement engenders the question whether breeders
and seed corporations are entitled to persevere in
these practices and to enforce their monopoly up to
the limit to also breach fundamental human rights
of farmers, like the right to food. The result of this
abuse of power has been a staggering decline in pro-
ductivity and essential crops across the world, leav-
ing to question the ability to sustain global food sup-
ply in the coming years.
V. The Existing Conflict: Do Breeders'
and Seed Corporations' IP Rights
Prevail over Farmers' Rights to Save,
Exchange and Re-Plant Seeds? To
What Extent Can This Right Be
Exercised? The Path of the Abuse of
Right.
The necessity to define the borders of law in order
to prevent conflicts with fundamental rights was the-
6 Lionel Neville Brown, "Is there a General Principle of Abuse of
Rights in European Community Law?", in Institutional Dynamics
of European Integration, Essays in Honour of Henry G. Schermers,
Martinus Nijhoff Publishers, 1994, at p. 512.
7 ECJ Case C-i 10/99, Emsland-St5rke GmbH v Hauptzollamt
Hamburg-Jonas [2000] EU:C:2000:695.
8 "Subject to its national legislation, respect, preserve and maintain
knowledge, innovations and practices of indigenous and local
communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity and
promote their wider application with the approval and involve-
ment of the holders of such knowledge, innovations and practices
and encourage the equitable sharing of the benefits arising from
the utilization of such knowledge, innovations and practices".
9 "The Contracting Parties, recognizing that patents and other
intellectual property rights may have an influence on the imple-
mentation of this Convention, shall cooperate in this regard
subject to national legislation and international law in order to
ensure that such rights are supportive of and do not run counter
to its objectives".
Farm Saved Seeds: A Right to Use or a Right Abused? | 123
orised by Plato and Aristotle who located equity as
the remedial of honor and justice. This is what Ro-
mans called bonafides (good faith), a concept that at
a later time became part of many modern civil law
legal systems as a general principle of law.
The doctrine of abuse of rights is closely connect-
ed to the principle of good faith. Such an abuse is
deemed to occur when a party exercises a right in
such a manner that its benefit and the counterparty's
loss or burden are unjustifiably disproportionate. The
doctrine of abuse of rights also implies that parties'
rights must be exercised in a manner that is consis-
tent with the purpose for which such rights are grant-
ed by law. A party that abuses its rights is deemed to
have acted in bad faith and to have exceeded the pow-
ers and legitimate interests protected by the law.
European Member States having a civil law sys-
tem generally recognise the principle of the prohibi-
tion of abuse of rights not only in the traditional do-
main of contract law (where it is also sometimes cod-
ified, e.g. in Italy under Articles 1175 and 1375 of the
Civil Code), but as a general principle applying as "the
exercise of a person's right in a manner which is un-
reasonable,with consequentharm to another,whether
there was an intent to harm or mere carelessness or
6
indifference as to harm resulting" . So a conduct can
be abusive regardless of the intention to cause harm.
The European Court of Justice (ECJ), starting from
the 198os, has progressively developed a jurispru-
dence culminated in the landmark case Emsland
Starke - Hauptzollamy Hamburgonas7 that has
recognised the prohibition of abuse of rights as a gen-
eral principle of EU law. General principles of EU law,
as stated by the ECJ, have a constitutional status and
are hierarchically equal to the treaties. Hence, a
breach of a general principle is deemed as an infringe-
ment of the treaty or of a rule of law relating to its
application and is subject to judicial review under
Article 263 TFEU.
If we look at the purpose underlying Directive
9 8/44/EC on the legal protection of biological inven-
tions, Recital 55 states that "following Decision
93 /626/EEC the Community is party to the Conven-
tion on Biological Diversity of 5 June 1992; whereas,
in this regard, Member States must give particular
weight to Article 3 and Article 8 (j)8, the second sen-
tence of Article 16 (2) and Article 16 (5)9 of the Con-
vention when bringinginto force the laws, regulations
and administrativeprovisions necessary to comply
with this Directive". Furthermore, Recital 56 states
124 | Farm Saved Seeds: A Right to Use or a Right Abused?
that "the Third Conference of the Partiesto the Biodi-
versity Conventiono, which took place in November
1996, noted in Decision 111/17 that further work is re-
quired to help develop a common appreciationof the
relationshipbetween intellectualproperty rights and
the relevant provisions of the TRIPs Agreement and
the Convention on Biological Diversity, in particular
on issues relating to technology transfer and conser
vation and sustainable use of biologicaldiversity and
the fair and equitable sharing of benefits arising out
of the use of genetic resources, including the protec-
tion ofknowledge, innovationsand practicesofindige-
nous and local communities embodying traditional
lifestyles relevantforthe conservationand sustainable
use of biologicaldiversity".
The application of these principles (having consti-
tutional status) in the light of the doctrine of the pro-
hibition of the abuse of rights developed by the ECJ
as above illustrated may lead to consider the behav-
iour of seed corporations in Europe towards farmers
as abusive if it results as being inconsistent or in con-
trast with the objective of the EU rules quoted above.
It can, for example, be specifically assessed the ob-
servance of the prohibition of abuse of rights by seed
corporations claiming endless royalties also on seeds
propagated naturally or preventing farmers from sav-
ing and re-planting seeds by introducing a 'termina-
tor' gene in the seed that impedes germination. These
conducts are clearly in contrast with most principles
on the conservation of biodiversity acknowledged in-
ternationally.
Less generally, and with respect to contracts of pur
chase of technically engineered seeds imposed on
farmers, an abuse of rights can be also investigated
in single national legislation under contract law prin-
ciples in force in the relevant State.
An interesting application of the prohibition of
the abuse of rights has been done by the Nagano
(Japan) District Court with decision on 19 May 2006
in a case where a breeder requested farmers to sus-
pend the use of seeds of a certain plant variety which
was publicily known and therefore could not enjoy
any monopoly. The Court, whose decision was con-
firmed on appeal by the Intellectual Property High
Court on 21 December 2006, has held that "when it is
clear that there is a ground for invalidationof regis-
trationof the variety because of the variety being pub-
licly known, a request of suspension, compensation
and the like based on its breeder's right corresponds
to abuse of right and therefore cannot be accepted".
EFFL 2|2018
VI. Conclusions
A lot has been said and campaigned in the recent
years on the violation by seed corporations of funda-
mental human rights.
In particular, on 18 April 2017 the so-called 'Inter
national Monsanto Tribunal', an Opinion Tribunal
established in order to examine the effects of Mon-
santo's activities on human rights and environment,
ascertained that the company breached the right to
a healthy environment (granted by the UN Confer
ence on the Human Environment held in Stockholm
in 1972), the right to food (granted by Article 25 of
the Universal Declaration of Human Rights), the
right to health (also granted by Article 25 of the Uni-
versal Declaration of Human Rights) and the free-
dom of scientific research (granted by Article 15 of
the International Covenant on Economic, Social and
Cultural Rights).
It is becoming increasingly understood that cor
porations should directly pursue human rights oblig-
ations. In this respect, in 2012 the United Nations is-
sued some guideline principles stating, among oth-
ers, that "[bjusinessenterprisesshould respect human
rights. This means that they should avoid infringing
on the human rights of others and should address ad
verse human rights impacts with which they are in-
volved" (Guiding Principle 11) and "[t]he responsibili-
ty to respect human rights requires that business en-
terprises: (a) Avoid causing or contributingto adverse
human rights impacts through their own activities,
and address such impacts when they occur; (b) Seek
to prevent or mitigate adverse human rights impacts
that are directly linked to their operations, products
or services by their businessrelationships,even if they
have not contributedto those impacts" (Guiding Prin-
ciple 13).
If it is mostly in developing countries where the
conduct of seed corporations may be considered as
abusive under the perspective of the violation of hu-
man rights, such perspective is fortunately less evi-
dent in developed countries. In such countries, the
path of the abuse of rights as above illustrated may
be therefore a new progress to mitigate the imbal-
ance of contractual, economical and political powers
of seed corporations and farmers.
10 The UN Convention on Biological Diversity (CBD) in force 29
December 1993.