GMO seed farm may be an infringement On October 30, 2007, a new law on counterfeiting 2007-1544 was published in the Official Journal. It strengthens the capacity of holders of intellectual property rights in their fight against counterfeiting: a "matter of traffickers and mafias," according to the rapporteur of the Senate Judiciary Committee.
The senator was certainly not the farmers who "make their own seed on the farm" when he said that, but it would nevertheless be wrong to think that this ancient practice and frequent escapes to the new legislation with certainty. On the contrary, a seed produced on the farm may be in law regarded as an infringement when the seed is from a farmer plant variety protected by plant breeders' rights (PBRs). PVP gives its holder a temporary exclusivity on a variety, the "protected variety". This exclusivity extends to all production seed, with some exceptions.
Certainly many farmers breed of semen on the farm from the crop of a protected variety. In practice, they breed during one or more years without requesting permission from the owner of PVP. However, the reproduction of a protected variety is legal only under certain conditions it is important to consider in distinguishing Community law, where such reproduction is possible under certain conditions, French law, where in the state, although this practice is tolerated is contrary to law as was confirmed by the Court of Appeal of Nancy in 1988.
The PVP Community, established in 1994, provides a limit to the exclusive rights of the holder. There is an exception for farmers who want to reproduce a protected variety on their farms for their own use. This exception applies only to a list of 20 species including wheat and potato, but this list does not include species such as corn and soybeans. Under this exception, the farmers can reproduce the protected variety without permission owner, but only if they fulfill certain obligations, including payment of "reasonable royalty". If a farmer does not pay the contractor, the conditions of the exception are not met. Then it is counterfeit.
same time, there is the French system of PVP created in 1970. The current wording of Article L. 623-4 of the Intellectual Property Code provides all the exclusive production of the seed - without exception - the holder of the PVP French. A farmer may So French reproduce a protected variety without the express permission of the owner. Without this authorization, it is counterfeit. It should be noted however that there is a single tolerance for wheat because a "mandatory voluntary contributions" was introduced on all crops of wheat. It is a hybrid form of levy that is paid back in part to breeders. The other part is used to fund research in France, although this deduction applies equally to French and European varieties.
To oversimplify the situation today, the seed from a protected variety and produced by a farmer is an infringement if the farmer does not pay a breeder of a variety of community or if reproduced without a French variety express authorization, except wheat. These fakes obviously fall within the ambit of the law on infringement that has reinforced the rights of owners and infringement actions.
Curiously, at the end of the hearing before the Senate on counterfeiting, the idea floated a seed farm could not be a fake. Senator Bernard Sellier had introduced an amendment to exclude the seed farm of the scope of the law. Following the remarks of Minister Novelli, M. Sellier withdrew the amendment, concluding: "You say without ambiguity: the use of farm-saved seed will not be a waiver, nor tolerance, but a right of farmers." It was explained that the forthcoming law on plant varieties would resolve the issue. Farmers could then make the seed farm. But they forgot to mention that in this bill on the plant variety right reproduce is subject to conditions such as remuneration. There are only a limited list of species. Moreover, it is clearly stated in the bill:
" Art. L. 623-24-7 . - The failure by farmers to the obligations imposed by this section to qualify for exemption [...] gives the use of that derogation the character of a counterfeit ".
Farmers who think they have a historical right to replant free and freely their seed are wrong when it comes to seeds of protected varieties. On the one hand, breeders are investing heavily and carry a long process of selection. It is normal that they can benefit from the royalties due to them and prosecute counterfeiters. On the other, it is wrong to suggest that there is a general right to reproduce and induce farmers in error. Farmers have only an exception for certain species at certain conditions and this will soon be the same situation for the French PVP (see project bill before the National Assembly should again be placed on the agenda). If a farmer reproduced of protected varieties, it must accept the obligation to compensate the breeder for his work. Research depends.
During the years 1970 and 1980, was strongly encouraged farmers to abandon their local varieties, less productive but free of any intellectual property right. They had to adopt the modern varieties and marketed. But this choice has been accompanied by the abandonment of a freedom, something that has never been explained so: by abandoning their local varieties, farmers gave up their freedom to reproduce without constraint of the seed. That is why today there is renewed interest in local varieties and also varieties in the public domain, both freely reproducible and can not be any infringement action.
© Shabnam Laure ANVAR (this article can be reproduced with explicit permission from the author, write droitetsemence (@) gmail (dot) com)
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