FARMERS’ RIGHTS UNDER INTELLECTUAL PROPERTY REGIME IN THE
PHILIPPINES
I. Introduction
The agriculture industry has been one of the biggest sources of income of the Philippine
economy and for the last ten (10) years, it has comprised approximately 20% of the Philippine
Gross Domestic Product (GDP), 24% of total export earnings and 46% of total employment in
the last fifteen (15) years1. Approximately one third of the land area in the country is classified as
agricultural lands. However, only 58% or 5.8 million ha of it are suitable for crop production
while only 2.5 million ha are considered to have a potential of being cropped. Nonetheless, food
crops, particularly rice and corn, continue to be the major contributors to the country’s
agriculture gross value added and have become major sources of growth. 2
Yet despite remaining as an agriculture-dependent country, only a little has apparently
been done to ‘cultivate’ this sector while being mindful of who we call the backbone of our
nation- the farmers. Unfortunately, while farmers continue to play an important role in the
economic, social, and political fabric of the society, the Philippines has reportedly been passive
when it comes to their rights.3
Like many developing countries, the Philippines, for the past decade, has been under
tremendous pressure from industrialized countries and the global seed industry to allow for
Intellectual Property Rights (IPR) on plant varieties in order to comply with the agreement on
Trade Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization
(WTO).4 Hence, on 7 June 2002, President Gloria Macapagal-Arroyo formally signed Republic
Act 9168, also known as the Philippine Plant Variety Protection Act of 2002. The law aims in
protecting and securing the exclusive rights of plant breeders with respect to their new plant
variety, particularly when beneficial to people, through an effective intellectual property system.
Through a PVP certificate over a new plant variety issued by the National Plant Variety
Protection Board, plant breeders would then have the right to authorize the production or
reproduction, conditioning for the purpose of propagation, offering to sale, selling or other
marketing strategies, exporting, importing and stocking of the plant variety.
1
Bureau of Agricultural Statistics (BAS) 2003
2
Environmental Sustainability Issues in Philippine Agriculture,
https://core.ac.uk/download/pdf/6486838.pdf
3
Farmers Rights are Human Rights SEARICE Statement for the UPR;
https://lib.ohchr.org/HRBodies/UPR/Documents/session13/PH/SEARICE_UPR_PHL_S13_2012_S.E.A_S
outheastAsialInitiativesforCommunityEmpowerment_E.pdf
4
Farmers, indigenous peoples, scientists and NGOs criticize PVP law that strengthens TNC monopoly
over seeds: US meddling exposed
However, notwithstanding a provision on exemption to plant variety protection which
acknowledges the traditional right of a farmer to save, use, replant and sell his produce from a
protected variety, on the condition that propagation is not being done for commercial purposes,
several farmers groups, indigenous people organizations, NGOs and scientist groups criticized
the passage of the law. For these groups, the PVP Act of 2002 violates farmers' inherent and
traditional rights to seeds and its associated knowledge; is a threat to biodiversity, sustainable
agriculture and food security; will harm research and innovation; and will further strengthen
multinational and transnational corporations' control of over Philippine Agriculture. 5 As been
noted in several studies, farmers' rights provisions in the enacted plant variety protection laws of
Southeast Asian countries like the Philippines, are weak and protection provided to breeders for
the use, reproduction and sale of their plant varieties are very strict. While the commercial
breeders were protected by either Plant Breeders Rights or through patents in plant varieties, the
farmers' contributions as preservers and developers of the gene pool, on which was based much
of the incremental changes that were made by commercial breeders, remained unrewarded and
unprotected.6
In sum, the expansion of scope of intellectual property protection to include plant
varieties and ensuing monopoly on genetic resources has raised concerns as it affects mainly
traditional rights of farmers. 7 It is on this score that the researchers aim to analyse the farmers’
rights development in the Philippines and the issues relating to said rights in the parlance of
Intellectual Property Rights. This study also seeks to point out inadequacies in the legislation in
providing full proof protection to the farmers’ agricultural knowledge in the Philippines.
II. Statement of Limitation
Basically, the agricultural industry is made up of four sectors: fisheries, livestock,
forestry and farming. In this research paper, we will focus mainly on farming more particularly
on patent or intellectual property rights regarding plant genetic resources. Given this, we shall
discuss the current conditions of the farming industry here in the Philippines, the organizations
actively participating in the promotion of farmers’ human rights and most especially the laws
protecting the rights of these farmers and laborers.
III. Issues
5
supra
6
See, for e.g., GRAIN, Plant Variety Protection to Feed Africa, 16/4 Seedling 2 (1999).
7
Sui Generis IPR Laws vis-à-vis Farmers’ Rights in Some Asian Countries:
Implications under the WT; Journal of Intellectual Property Rights Vol 16, March 2011, pp 107-116
In general outlook, the idea of farmers' rights denotes in simple terms the rights of
farmers over their resources and knowledge. As farmers in most developing countries have been
the main actors involved in saving seeds, cross breeding to produce new varieties with better
suited traits, biodiversity management and so on, they are thus the original rights-holders of
agricultural resources. With this, it is worthy to note that farmers are also intellectual property
rights-holders in a similar, if not in a more forceful way, as the modem biotechnologically
assisted plant breeders are.8 However, the September 2002 Report of the Commission on
Intellectual Property Rights recognizes that there is “an imbalance between the IP rights afforded
to breeders of modern plant varieties and the rights of farmers who were responsible for
supplying the plant genetic resources from which such varieties were mainly derived”.
1. Imposition of Patents as a Violation of Farmers Rights
The imposition of patents, particularly, fails to recognize and continues to ignore,
farmers’ significant participation in nurturing plant genetic resources.9 In a statement, the
Southeast Asia Regional Initiatives for Community Empowerment (SEARICE) pointed out that
the recent developments on imposing patent rights or intellectual property rights on plant genetic
resources violate the human rights of farmers to their livelihood and to their life, as they prohibit
the conservation, development, and sustainable use of genetic resources or seeds. 10
One good example of this is when Monsanto, a big time global agricultural company, filed 144
lawsuits against farmers regarding licensing violations of its Roundup Read or Bt seed stock.
The company’s business model requires the said farmers to acquire single-season licenses in
order for the latter to grow it. While the patent has tremendously contributed in increasing the
company’s profits, it has prejudiced the rights of farmers and has placed them at an economic
disadvantage by preventing them from saving transgenic seed material for future use.
Because of the patent rights secured by these agriculture enterprises, farmers are forced to
strictly comply with lofty or difficult to comply requirements discouraging them to farm. These
individuals depend on plant genetic resources as a form of their livelihood and if we try to limit
their rights or share, we are not providing them adequate protection. What will happen is that,
less individuals will be enticed to work in the farming sector causing economic distress.
2. Expansion of Intellectual Property Rights on Seeds as a Violation of Human Rights
The human rights impact assessment of stringent plant variety protection and seed laws
based on the 1991 Act of the International Union for the Protection of New Varieties of Plants
8
FARMERS’ RIGHTS UNDER INTELLECTUAL PROPERTY REGIME AND PVP AND FR ACT 2001;
http://shodhganga.inflibnet.ac.in/bitstream/10603/148911/11/11_chapter%205.pdf
9
Farmers Rights are Human Rights, SEARICE Statement for the UPR
10
supra
(UPOV 91) provides convincing evidence of the threat to the right to food by small-scale
farmers.11 The case studies in Kenya, Peru and the Philippines, conducted by an international
group of NGOs, revealed that plant variety protection based on UPOV 91 will make it harder for
small-scale farmers to access improved seeds since the farmers’ widespread practice of freely
saving, replanting, exchanging and selling seeds in their informal seed supply system clashes
with the UPOV 91’s provisions that restricts or even prohibits such practices for seeds arising
from protected varieties of plants by plant breeders. As access to seed is a key feature of the right
to food of resource-poor farmers, the said restriction imposed by the expansion of intellectual
property rights on seeds puts their right to food at risk.
Moreover, no farmer can freely access seeds protected by intellectual property rights,
without signing a contract that prevents them from saving, reusing, or replanting the seeds. The
Plant Variety Protection Law of the Philippines or Republic Act No. 9168 punishes farmers
when they reproduce, replant, reuse, share or sell the reproduced seeds to other farmers. With
this, SEARICE notes, farmers lose the capacity to reduce production costs and increase their
income.
3. Absence of Farmers’ Voice in Participatory and Decision-making Processes
While there are thousands of international, national and local events on human rights,
there is no voice of Farmers Rights in these occasions. There are no laws that allow farmers to
participate in processes and decide on matters affecting them. In the context of Intellectual
Property regime, most laws have only emphasized the rights of breeders. In fact, even sections of
the Plant Variety Protection (PVP) Law provides penalties to farmers who reproduce patented
seeds.12 It has come to a point where breeding their own corn seeds becomes life-threatening.
The voice of these farmers are diminished by the compelling fear imposed by profit-seeking
businessmen. According to the Universal Declaration of Human Rights, the imposition of such
penalties violate farmers’ human, economic, social and cultural rights because the imposition of
such patents disallow farmers to reduce production costs.
IV. Applicable laws
International
While we have focused our research on local laws enacted here in the Philippines, there are
international laws and organizations that are worth mentioning, such as the foleral lowing:
1. International treaty on Plant Genetic resources for food and agriculture
11
“Owning Seeds, Accessing Food” https://issuu.com/erklaerungvbern/docs/2014_2909_hria-
upov_report_final?e=3524425/9624358
12
Section 52, Section 54 and Section 56 of the PVP Law
The International Treaty on Plant Genetic Resources for Food and Agriculture popularly known
as the International Seed Treaty, is a comprehensive international agreement in harmony with the
Convention on Biological Diversity, which aims at guaranteeing food security through the
conservation, exchange and sustainable use of the world's plant genetic resources for food and
agriculture (PGRFA), as well as the fair and equitable benefit sharing arising from its use. It also
recognises farmers' rights, subject to national laws to: a) the protection of traditional knowledge
relevant to plant genetic resources for food and agriculture; b) the right to equitably participate in
sharing benefits arising from the utilisation of plant genetic resources for food and agriculture;
and c) the right to participate in making decisions, at the national level, on matters related to the
conservation and sustainable use of plant genetic resources for food and agriculture. The Treaty
establishes the Multilateral System of Access and Benefit-sharing to facilitate plant germplasm
exchanges and benefit sharing through Standard Material Transfer Agreement (SMTA).
The treaty has implemented a Multilateral System (MLS) of access and benefit sharing, among
those countries that ratify the treaty, for a list of 64 of some of the most important food and
forage crops essential for food security and interdependence. The genera and species are listed in
Annex 1 to the treaty.
Some believe the treaty could be an example of responsible global governance for ensuring that
plant genetic resources essential for present and future food security can be kept accessible to all
farmers and in the public domain.
https://en.wikipedia.org/wiki/Conservation_ethic
Food and Agriculture Organization of the United Nations
http://www.fao.org/plant-treaty/areas-of-work/farmers-rights/en/
Farmers' Rights are critical to ensuring the conservation and sustainable use of plant genetic
resources for food and agriculture and consequently for food security – today and in the future.
In its Article 9, the International Treaty recognizes the enormous contribution that the local and
indigenous communities and farmers of all regions of the world, particularly those in the centers
of origin and crop diversity, have made and will continue to make for the conservation and
development of plant genetic resources which constitute the basis of food and agriculture
production throughout the world. It gives governments the responsibility for implementing
Farmers' Rights, and lists measures that could be taken to protect, promote and realize these
rights:
• The protection of traditional knowledge relevant to plant genetic resources for food and
agriculture;
• The right to equitably participate in sharing benefits arising from the utilization of plant
genetic resources for food and agriculture;
• The right to participate in making decisions, at the national level, on matters related to the
conservation and sustainable use of plant genetic resources for food and agriculture; and
• The right that farmers have to save, use, exchange and sell farm-saved seed/propagating
material, subject to national law and as appropriate.
Local Laws
1. Intellectual Property Code, Plant Variety Protection Act Intellectual Property and the
Philippine Plant Variety Protection Act of 2002
Both the Intellectual Property Code and the Plant Variety Protection Act Intellectual
Property only provide limited recognition for forms of traditional knowledge. Under the
Intellectual Property Code13, plant varieties, animal breeds and biological processes for the
production of plants or animals other than micro-organisms and and non-biological and
microbiological processes cannot be patented. However, there is still room for the enactment of
sui generis protection for plant varieties. This option has been exercised with the enactment of
the Philippine Plant Variety Protection Act of 2002. The said Act14 protects the traditional right
of small farmers to save, use, exchange, share or sell their farm produce of a protected variety as
long as it is not for reproduction. Also, it allows the exchange and selling of seeds among small
farmers for reproduction and replanting on their own land. Despite the protection provided to the
said farmers, the Act is silent as to benefit sharing.
2. Republic Act No. 7607 (Magna Carta of Small Farmers)
R.A. 7606 was signed into law on June 4, 1992 and the objective of the law is to basically
provide equitable distribution of benefits and opportunities to the small farmers here in the
country. It also aims to promote the participation of small farmers, farm workers, farmers’
cooperatives and organizations in the planning, organization, management and implementation
of agricultural programs and projects. This law touches the general aspects of infrastructure and
farm inputs, rural credit delivery system, wage and incentives, and research services.
3. Republic Act No. 9168 Philippine Plant Variety Protection Act of 2002
This act is aimed at protecting and securing the exclusive rights of plant breeders with
respect to their new plant variety, particularly when beneficial to people, through an effective
intellectual property system. The state, while recognizing intellectual property rights in the field
of agriculture, does so in a manner supportive of and not inconsistent with its obligation to
maintain a healthful ecology in accord with the rhythm and harmony of nature.Under this act,
farmers may now apply for a certificate of plant variety protection. This Act provides developers
of new varieties of plants patent-like rights that protect the reproduction and of their varieties.It
is a legal designation designed to protect plant breeders. It grants them an intellectual property
right over the seed, whether the new cultivar was achieved through traditional open-pollinated
13
Sec. 22.4 of the Intellectual Property Code
14
Sec. 43 (d) of the Philippine Plant Variety Protection Act of 2002
methods, by hand or through genetic modification. No one else is allowed to profit from sale of
that seed over an ensuing period of time. The seeds can be exchanged amongst researchers for
research purposes, though. Even if it’s a cross that happened naturally on one farm and was
discovered by farmer A, and the same cross occurs spontaneously on the land of farmer B, if
farmer A registered it first, he has the rights to the seed for sale purposes. To be granted PVP
status, the breeder must prove that the plant is new, distinct, uniform and stable. New and distinct
means compared to all previously existing varieties.
4. High-value crops development act of 1995
In 1995, R.A. 7900 was created. It is an act to promote the production, processing,
marketing and distribution of high value crops.An excerpt from its declaration of policy,It is
hereby declared the policy of the State to accelerate the growth and development of agriculture
in general, enhance productivity and incomes of farmers and the rural population, improve
investment climate, competencies and efficiency of agribusiness and develop high-value crops as
export crops that will significantly augment the foreign exchange earnings of the country,
through an all-out promotion of the production, processing, marketing, and distribution of high-
value crops in suitable areas of the country. High value crops command a high price both on
local market and overseas. They are in such demand that the government encourages farmers to
grow these crops.Under this act, proponents of said program are entitled to incentives such as
crop insurance, credit assistance, credit guarantee,tax exemption and others.
Jurisprudence
Findings
From the researchers’ gathered data, there is no denying that there are numerous laws
enacted by the legislature in the protection of the farmers’ human rights. However, the
researchers have found out that these laws have broad application and to some extent are
deficient in providing adequate protection most especially to small farmers go only gain little or
close to no income at all. It is question why the farming sector has slowed down over the years.
There are even bills which have not yet passed the third reading in Congress which could have
been a good law further protecting these farmers. One good example is Senate Bill No. 35 or the
Community Intellectual Rights Protection Act (CIRPA). The main objective of the bill is to
provide a system of community intellectual rights protection of local and indigenous cultural
communities with respect to the development of genetic resources and the conservation of the
country’s biological diversity. It seeks to redefine innovation and recognize both the collective
and cumulative intellectual right of the country’s cultural communities over the same innovation,
but sadly, said act is still pending in the senate since 2004.
If we look at the existing legal framework regarding intellectual property rights in the country, it
only recognizes the dominant industrial model of innovation which fails to empower the more
informal, communal system of innovation - farmers and indigenous communities producing,
selecting, improving and breeding a diversity of crops and livestock varieties. Also, with regards
to obtaining the PVP status, aside from the fact that it is quite expensive to obtain, evidence and
documentation is a tedious task to accomplish for such application.
Conclusion
The researchers would like to end by quoting our 1987 Constitution, Article XIII(Social
Justice and Human Rights) Section 5 which states that, The State shall recognize the right of
farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers’
organizations to participate in the planning, organization, and management of the program, and
shall provide support to agriculture through appropriate technology and research, and adequate
financial, production, marketing, and other support services.The efforts of the government
cannot be denied.However, the real question here, was their efforts enough in achieving the
mandate of our constitution.If it is enough, then why is it that all these years, they still belong to
the country’s poorest sectors and are vulnerable to hunger. The laws are there but, their
enactment alone is not enough, For the protection of their rights there must be a continuous
process from its enactment up to its implementation. Small farmers experience a very aggressive
system. They live in debt, paying high-interest rates, sometimes 50% per month. Sometimes they
have no choice but to accept these kinds of terms that eventually eat up their income. They’re
also taken advantage of by traders-- you know, the middle-man who buys their produce for one
cent and they’ll sell it for higher so they get all the profits.and then farmers face the
vulnerability.
According to the Philippine Statistics Authority’s report on official poverty statistics for the
basic sector for 2015, Among the nine basic sectors, farmers, fishermen and children belonging
to families with income below the official poverty threshold or poor families posted the highest
poverty incidences in 2015 at 34.3%, 34.0% and 31.4%, respectively.
What if our farmers give up on being farmers? What if they’ll get tired of the same old
ways? What if they’ll sell their farms for commercial use? What if they’ll not see the purpose of
what they do anymore? What if they’ll give up on us? Are we ready to face a world without
them?
On top of these challenges our farmers are facing is the imposition of patent rights or
intellectual property rights on plant genetic resources, this is clearly an impediment on their
livelihood and their life as a farmer. Thus,it is a clear violation of the human rights of farmers, as
they prohibit the conservation, development, and sustainable use of genetic resources or seeds.
References:
https://www.statista.com/statistics/578787/share-of-economic-sectors-in-the-gdp-in-philippines/
http://ap.fftc.agnet.org/ap_db.php?id=165&print=1
TO READ
https://www.philstar.com/opinion/2018/06/18/1825542/agriculture-dying-philippines
https://www.philstar.com/other-sections/news-feature/2017/07/21/1719953/killings-farmers-rise-
under-duterte
