[en] While the laws based on the International Convention for the Protection of New Varieties of Plants (UPOV Convention) have been questioned frequently for their negative impact on farmers, there have been suggestions that Indonesia should accede to the UPOV Convention 1991. Indonesia has already enacted a Plant Variety Protection (PVP) law closely aligned to the Convention.
A study was carried out in two villages in East Java, Indonesia exploring issues experienced by farmers in relation to PVP rights of seed companies. This qualitative study involved consultations of and discussions with individual farmers, representatives from farmers’ association and local experts. The study shows the prevalence of a strong mechanism protecting PVP rights, a constant surveillance by enforcement authorities, and threats of prosecution to farmers by seed companies, resulting in the imprisonment of some. This has intensified fear among farmers and has led to self-disciplining by auto-limiting their freedom to breed and exchange seeds, thus confirming the interpretation of breeders’ rights as rights of seed companies and not of farmers.
This article reviews the impact of the UPOV-based laws and presents the major findings of the study, discussing the current UPOV-based Indonesian PVP law which impedes the farmers’ ability to exchange and breed seeds. Building upon this analysis, the article urges Indonesia not to accede to the UPOV Convention; rather, it should amend its current laws to strengthen the position of farmers in the regime of PVP law.
The study was carried with financial support from the Vlaamse Interuniversitaire Raad (VLIR-UOS) as a Global Minds Small Great Projects of Vrije Universiteit Brussels (SGP 018) in collaboration with Universitas Airlangga, Surabaya, Indonesia.
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K Aoki, 'Seeds of Dispute: Intellectual-Property Rights and Agricultural Biodiversity' (2009) 3 GGUELJ 79; C Fowler, 'The Plant Patent Act of 1930: A Sociological History of Its Creation' (2000) 82 JPTOS 621; JR Kloppenburg, Seeds and Sovereignty. The Use and Control of Plant Genetic Resources (DUP Durham and London 1988).
JR Kloppenburg, 'Seeds, Sovereignty, and the Viá Campesina: Plants, Property, and the Promise of Open Source Biology' (Workshop on Food Sovereignty, University of Saskatchewan, Saskatchewan, 17-18 November 2008) 3.
The UPOV Convention was adopted in Paris in 1961 and it was revised in 1972, 1978 and 1991. The UPOV Convention is administered by the Union internationale pour la protection des obtentions végétales (UPOV) established in 1961 and based in Geneva.
C Antons and R Kanniah, 'Plant Variety Protection and Traditional Agricultural Knowledge in Southeast Asia' (2012) 13(1) AJAL 1, 2.
R. Kanniah, 'Plant Variety Protection in Indonesia, Malaysia, the Philippines And Thailand' (2005) 8(3) JWIP 283, 283.
UPOV, International Harmonization Is Essential for Effective Plant Variety Protection, Trade & Transfer of Technology, UPOV Position based on an intervention in the Council for TRIPS, (UPOV 19 September 2002); G Dutfield, 'The Role of the International Union for the Protection of New Varieties of Plants (UPOV)' (2011) 9 Intellectual Property Issue Paper, QUNO 11; P Lertdhamtewe, 'Asian Approaches to International Law: Focusing on Plant Protection Issues' (2013) 8(5) JIPLP 288, 391.
N Barizah, 'TRIPs Plus on Plant Varieties Protection under Indonesia-Japan Economic Partnership Agreement (IJEPA)' (2009) 24(1) YURIDIKA 1, 10-11.
Indonesia-Japan Economic Partnership Agreement 2008, art (3)(c); The European Union's (EU) proposal for a legal text on intellectual property in the EU-Indonesia FTA accessed 28 December 2018.
Authors participated in a public discussion 'Right of farmers in the perspective of Plant Variety Protection' organized by Crop Protection Centre and Agricultural Licensing, Ministry of Agriculture's held in Yogyakarta, 22 November 2018 (the government representatives acknowledged that Indonesia is receiving pressures to accede to the UPOV Convention).
World Bank, Intellectual Property Rights: Designing Regimes to Support Plant Breeding in Developing Countries (No. 35517-GLB) (IBRD/World Bank 2006) 46.
CM Correa, Plant Variety Protection in Developing Countries: A Tool for Designing A Sui Generis Plant Variety Protection System: An alternative to UPOV 1991 (APBREBES 2015) 27.
T Braunschweig and others, Owning Seeds, Accessing Food: A Human Rights Impact Assessment of UPOV 1991 Based on Case Studies in Kenya, Peru And the Philippines (The Berne Declaration Zurich 2014) 6.
NP Louwaars and others, Impacts of Strengthened Intellectual Property Rights Regimes on The Plant Breeding Industry in Developing Countries (Report commissioned by the World Bank Wageningen 2005) 4.
Braunschweig and others (n 13) 7.
ibid.
A Christinck and MW Tvedt, The UPOV Convention, Farmers Rights and Human Rights: An Integrated Assessment of Potentially Conflicting Legal Frameworks (GIZ 2015) 63.
Recognizing the farmers' dependency on commercial breeders' seeds as a serious problem, the Committee on ESCR recommended in 2008 that India provide '[s]tate subsidies to enable farmers to purchase generic seeds which they are able to reuse, with a view to eliminating their dependency on multinational corporations.' Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties Under Articles 16 And 17 of The Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights-India, Fortieth Session 28 April-16 May 2008 (UN Economic and Social Council, E/ C.12/IND/CO/5 8 August 2008) para 69.
Christinck and Tvedt (n 17); ibid.
International Treaty on Plant Genetic Resources for Food and Agriculture 2001, art 9.
Lertdhamtewe (n 7) 395.
UPOV Convention 1991, art 15(2).
ibid art 34(3).
T Adebola, 'Examining Plant Variety Protection in Nigeria: Realities, Obligations and Prospects' (2018) 22(1-2) JWIP 36, 43; For discussion on intellectual property and concerns over sovereign discretion in the matters of domestic issues like food security see R Neethu, 'Sovereign Trusteeship and Multilateral Protection of Intellectual Property Rights' (2015) 10(2) JIPLP 89.
OAU, The African Model Legislation on the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources (OAU Algeria 2000).
SI Straba, 'Legal and Institutional Considerations for Plant Variety Protection and Food Security in African Development Agendas: Solutions from WIPO?' (2017) 12(3) JIPLP 191, 192.
E Opoku Awuku, 'Intellectual Property Rights, Biotechnology and Development: African Perspectives' in D Wüger and T Cottier (eds), Genetic Engineering and the World Trade System: World Trade Forum (CUP Cambridge 2008) 109, 114.
O De Schutter, Report of the Special Rapporteur on the right to food (UN. A/64/170 2009) para 40.
UN Human Rights Council, United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (adopted 28 September 2018 (A/HRC/RES/39/12)), art 19(1)(d). The Resolution was adopted by a recorded vote of 33 to 3, with 11 abstentions (in favour: Afghanistan, Angola, Burundi, Chile, China, Cô te d'Ivoire, Cuba, Democratic Republic of the Congo, Ecuador, Egypt, Ethiopia, Iraq, Kenya, Kyrgyzstan, Mexico, Mongolia, Nepal, Nigeria, Pakistan, Panama, Peru, Philippines, Qatar, Rwanda, Saudi Arabia, Senegal, South Africa, Switzerland, Togo, Tunisia, Ukraine, United Arab Emirates, Venezuela (Bolivarian Republic of); against: Australia, Hungary, United Kingdom of Great Britain and Northern Ireland; abstaining: Belgium, Brazil, Croatia, Georgia, Germany, Iceland, Japan, Republic of Korea, Slovakia, Slovenia, Spain.
Committee on International Trade and Committee on Women's Rights and Gender Equality, Report on Gender Equality in EU Trade Agreements (EU Parliament, 2018(2017/2015(INI)) A8-0023/2018) para 18.
ibid para 19.
Decision C-1051/12, Colombian Constitutional Court, 05 December 2012 cited in JA Pabón Cadavid, 'Indigenous and Traditional Communities Must Be Consulted Before Approval of Intellectual Property Treaties' (2015) 10(1) JIPLP 11, 11-13.
UPOV, 'Status in Relation to The International Union for The Protection of New Varieties of Plants UPOV Convention' accessed 1 August 2019.
UPOV, Annual Report of the Secretary General for 2000 (UPOV Council, Thirty-Fifth Ordinary Session, 25 October 2001, Geneva, 27 September 2001, C/35/2) para 119.
N Barizah, 'The Indonesian Plant Varieties Protection Act: The Dilemma of Meeting International and Bilateral Obligations and Protecting Traditional Farmers' in M McCann and K Brepsant (eds), WIPO-WTO Colloquium for Teachers of Intellectual Property (WIPO/WTO 2012) 59.
UPOV, Annual Report of the Secretary General for 2006 (UPOV Council, Forty-First Ordinary Session, 25 October, 2007, Geneva, 13 September 2007, C/41/2) para 49.
Antons and Kanniah (n 5) 14-15.
Laws of the Republic of Indonesia No. 29 of 2000 on Plant Variety Protection, art 2(1).
Centre for Protection of Plant Varieties and Agricultural Licensing, 'List of PVP Rights Certificates' accessed 5 August 2019.
Laws of the Republic of Indonesia No. 29 of 2000 on Plant Variety Protection, art 71.
ibid art 6(1)(4).
ibid art 6(2).
ibid art 4.
IHCS, 'Data Kriminalisasi Petani Menggunakan Uu 12/1992 Dan Uu 29/ 2000' (27 September 2016) accessed 15 August 2019.
TA Wattnem, 'Outlawing Informal Seed Systems in the Global South: Seed Laws, Certification, and Standardization' (M Sc thesis, University of Wisconsin 2014) 14-17.
H Jhamtani and D Patria, 'Case Documentation: Indonesian Farmers Prosecuted for Breeding Their Own Seeds' (Asian Farmers' Association for Sustainable Development 2006) accessed 15 October 2018.
ibid.
API, 'Belajar dari Pengalaman: Kasus Petani Jagung di Kediri, Jawa Timur Dampak Penerapan Undang-Undang Sistem Budidaya Tanaman (UU SBT) UU No 12 Tahun 1992, Kertas Posisi yang disampaikan dalam audiensi dengan pihak Sekjen DPR di Jakarta, Malang dan Surabaya tahun 2010' (24 January 2011) accessed 15 October 2018.
Jhamtani and Patria (n 46).
AFA, 'Case Documentation: Indonesian Farmers Jailed for Planting Company Corn Seeds' (Asian Farmers' Association 2006) accessed 10 June 2019.
For instance, see cases: 'Kusen bin Danuri et al., Kediri District Court Decision No. 262/PID.B/2005/PN.Kdi; Budi Purwo Utomo bin Sugito Yuwono, Kediri's District Court Decision No, 516/Pid.B/2005/PN.Kdi; Jumidi bin Karsomin, Kederi District Court Decision No. 261/PDI.B/ 2005/PN.Kdi; Suyadi bin Kartomejo, Surabaya High Court, Decision No. 157.PID/2007/PT.SBY' in API (n 48).
ibid.
ibid.
Jhamtani and Patria (n 46).
IHCS (n 44).
La Via Compensia and GRAIN, Seed Laws that Criminalize Farmers: Resistance and Fight Back (La Via Compensia and Grain 2015) 31-32.
Response of the local farmer rights/human rights activists.
La Via Compensia and GRAIN (n 56) 31-32.
See R Kanniah and C Antons, 'The Regulation of Innovation in Agriculture and Sustainable Development in India and Southeast Asia' in C Antons (ed), The Routledge Handbook of Asian Law (1st edn, Taylor and Francis 2017) 287.
S Hendrianto, Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes (Routledge Oxon and New York 2018) 193.
Given the sensitivity of the information, the specific locations have been kept anonymous.
Louwaars and others (n 14); Braunschweig and others (n 13).
Statement of Prof, Dr Sumerji SP MP. This was further corroborated by the response of farmers consulted.
This was reported by farmers and also verified with an inquiry at the sales point of a seed company. However, the management of the seed company of the selected regions denied responding despite frequent efforts of the researchers.
More about EDV is dealt Section 5.2.
M Rifa'I and M Nur Uddin, The Implications of Seeds Policy and Contract Farming (Kontruk Usahatandon) on Biodiversity Loss and Farmers' Right in Malang And Kediri Regency, East Java (API and IGJ 2010).
ibid.
Laws of the Republic of Indonesia No. 29 of 2000 on Plant Variety Protection, arts 67, 71.
S Ragavan and JM O'Shields, 'Has India Addressed Its Farmers' Woes-A Story of Plant Protection Issues' (2007) 20(1) GIELR 97, 111.
Laws of the Republic of Indonesia No. 29 of 2000 on Plant Variety Protection, art 10.
Christinck and Tvedt (n 17) 69.
CIPR, Integrating Intellectual Property Rights and Development Policy: Report of the Commission on Intellectual Property Rights (CIPR 2002) 63.
Braunschweig and others (n 13) 7; Gene Campaign 'Advocacy to Protect Farmers' Rights' accessed 16 August 2019.
Barizah (n 35) 70-71.
Protection of Plant Varieties and Farmers' Rights (PPVFR) Act 2001, s 39 (1)(iv).
Ragavan and O'Shields (n 69) 111.
Christinck and Tvedt (n 17) 63.
Protection of Plant Varieties and Farmers' Rights (PPVFR) Act 2001, s 42 (India); Plant Breeder's Rights Act 1994, s 57 (Australia).
Ragavan and O'Shields (n 69) 121.
Braunschweig and others (n 13) 7.
Laws of the Republic of Indonesia No. 29 of 2000 on Plant Variety Protection, art 6(2); UPOV Convention 1991, art 14(5)(a).
Correa (n 12) 30.
Ragavan and O'Shields (n 69) 4.
Christinck and Tvedt (n 17) 64.
ibid.
ibid 67-68.
See V Lombard and others, 'Genetic Distance Estimators Based on Molecular Data for Plant Registration and Protection: A Review' (2001) 451 Acta horticulturae 55, 61; MD Janis and S Smith, 'Technological Change and the Design of Plant Variety Protection Regimes' (2007) 82 CKLR 1557, 1599.
Correa (n 12) 30.
G Wurtenberger, 'Legal Perspectives on Essentially Derived Varieties' (2013) 8 Revista Eletronica do IBPI 200, 201; JMA Blokland, 'Can We Still Take the Breeders Exemption for Granted?' (2010) 855 Acta Horticulturae 31.
NG Ignacio, JA Santos-Doctor and R Ferrer, 'Essentially Derived Varieties and the Perspective of Farmer-Breeders' (Seminar on Essentially Derived Varieties 22 October 2013 UPOV Geneva 2013) 35, 38.
Ragavan and O'Shields (n 69) 122.
CM Correa, Options for The Implementation of Farmers' Rights at The National Level (South Centre, Trade Related Agenda Development and Equity Working Papers 8 2000) 4; 'The maintenance and crossbreeding done by these traditional Communities is the result of extensive experimentation in the field. But they have not been paid for the value they have delivered, whereas breeders and seed companies have resorted to IP rights to recover their development expenditures. The farmers who utilize improved varieties are then obliged to pay for them.' E Verkey, 'Shielding Farmers' Rights' (2007) 2(12) JIPLP 825, 831.
QUNO, Definition of 'Breeder' under UPOV Why It Matters, Briefing paper 2 (QUNO 2014) 2-3.
Laws of the Republic of Indonesia No. 29 of 2000 on Plant Variety Protection, art 1(4).
R Kanniah(n 6) 295.
UPOV Convention 1991, art 1(iv).
UPOV, Explanatory Notes on The Definition of Breeder Under the 1991 Act of The UPOV Convention (Adopted by the Council at its forty-seventh ordinary session on 24 October 2013, UPOV/EXN/BRD/1).
ibid.
J Sanderson, Plants, People and Practices: The Nature and History of The UPOV Convention (CUP New York 2017) 112.
R Salazar, NP Louwaars and B Visser, On Protecting Farmers' New Varieties: New Approaches to Rights on Collective Innovations in Plant Genetic Resources (2006) IFPRI Working paper 45.
K Peschard, 'Seed Wars and Farmers' Rights: Comparative Perspectives from Brazil and India' (2017) 44(1) JPS 144.
Protection of Plant Varieties and Farmers' Rights (PPVFR) Act 2001, ss 14, 16(d), 39(1).
PPVFRA, 'Compendium of Registered Varieties under PPV&FR Act, 2001' (2018) accessed 15 August 2019.
Protection of Plant Varieties and Farmers' Rights (PPVFR) Act 2001, s 44.
