6.2 German Case Study
171
This procedure is the main reason for the small share of old varieties in German
farmers' fields.
The Plant Variety Protection Act, which determines the exclusive rights for the
sale of a variety, grants two exceptions: breeder's exemption and farmer's
privilege. Both exemptions have their supporters as well as their opponents. The
biotechnology industry invests heavily in research and development and is very
much interested in protecting their inventions against competitors. The breeding
companies, however, depend on the free access to prebred products for further
breeding (Hammer, 1995). Without utilizing the new products from other
companies or from the public sector 87 , the breeding companies are too small to
invest much financial resources in basic breeding research (Hammer, 1995). The
typical German small and medium-sized breeding companies as well as the big
biotechnology companies refuse the farmer's privilege, claiming that it is an
obstacle and disincentive for further breeding efforts. The farmers and many
NGOs, however, understand their privilege as a kind of traditional fundamental
right (BUKO, 1996). The re-used seed, derived from farm-saved seeds is still used
in significant quantities. It is estimated that approximately 50% of the area under
cereals (excluding maize) is planted with re-used, farm-saved seed in Germany;
for potato and grain legumes, the seed change ratio is 40% and between 30 and
50% respectively (BML, 1994).
Germany has tightened the variety protection since 1997 by introducing a fee
for the re-use of farm-saved seeds, whereby smallholders may still benefit from
the farmer's privilege. This modification is based on the changes in UPOV's
convention from 1991 (upOV '91). The underlying principle of the agreement
between the German Farmers Association and the German Plant Breeders
Association is an increase in the farmers' seed quality by the promotion of
certified seed and the reduction of the economic advantage and profitability of reused seed through a fee for the re-use of seed.
The amount of the fee depends on the farmer's seed change ratio (SCR)88.
Farmers with a SCR of over 60% for cereals and legumes and a SCR of over 80%
for potatoes, are released from the fee. Lower ratios lead to fees between US $ 2
and US $ 13 per hectare for cereals/legumes and between US $ 56 and US $ 83
per hectare for potatoes. The fee is levied as a lump sum and its amount depends
on the SCR and is fixed every year. The lower the SCR, the higher the fee. In
contrast, farmers obtain a discount of 10% on the license fee for a specific
certified seed if their SCR for that variety is over 80%89. (DBVIBDP, 1996).
The agreement signed in 1996 must be viewed in light of the above mentioned
seed change ratio of approximately 50% and its slight upward trend in the last
years (BML, 1994). The promotion of the breeding efforts and weakening of the
re-use of seed are attempts made to increase the use of technological development
on the farms. The major problems with this new system, however, are the
07 For instance, the universitary breeding research.
00 The seed change ratio (SCR) is defined as the ratio between the share of area planted with
certified seed to the overall area planted to the respective crop.
09 The discount would amount to approximately US $ 0.6 per 100 kg of certified seed.
171
This procedure is the main reason for the small share of old varieties in German
farmers' fields.
The Plant Variety Protection Act, which determines the exclusive rights for the
sale of a variety, grants two exceptions: breeder's exemption and farmer's
privilege. Both exemptions have their supporters as well as their opponents. The
biotechnology industry invests heavily in research and development and is very
much interested in protecting their inventions against competitors. The breeding
companies, however, depend on the free access to prebred products for further
breeding (Hammer, 1995). Without utilizing the new products from other
companies or from the public sector 87 , the breeding companies are too small to
invest much financial resources in basic breeding research (Hammer, 1995). The
typical German small and medium-sized breeding companies as well as the big
biotechnology companies refuse the farmer's privilege, claiming that it is an
obstacle and disincentive for further breeding efforts. The farmers and many
NGOs, however, understand their privilege as a kind of traditional fundamental
right (BUKO, 1996). The re-used seed, derived from farm-saved seeds is still used
in significant quantities. It is estimated that approximately 50% of the area under
cereals (excluding maize) is planted with re-used, farm-saved seed in Germany;
for potato and grain legumes, the seed change ratio is 40% and between 30 and
50% respectively (BML, 1994).
Germany has tightened the variety protection since 1997 by introducing a fee
for the re-use of farm-saved seeds, whereby smallholders may still benefit from
the farmer's privilege. This modification is based on the changes in UPOV's
convention from 1991 (upOV '91). The underlying principle of the agreement
between the German Farmers Association and the German Plant Breeders
Association is an increase in the farmers' seed quality by the promotion of
certified seed and the reduction of the economic advantage and profitability of reused seed through a fee for the re-use of seed.
The amount of the fee depends on the farmer's seed change ratio (SCR)88.
Farmers with a SCR of over 60% for cereals and legumes and a SCR of over 80%
for potatoes, are released from the fee. Lower ratios lead to fees between US $ 2
and US $ 13 per hectare for cereals/legumes and between US $ 56 and US $ 83
per hectare for potatoes. The fee is levied as a lump sum and its amount depends
on the SCR and is fixed every year. The lower the SCR, the higher the fee. In
contrast, farmers obtain a discount of 10% on the license fee for a specific
certified seed if their SCR for that variety is over 80%89. (DBVIBDP, 1996).
The agreement signed in 1996 must be viewed in light of the above mentioned
seed change ratio of approximately 50% and its slight upward trend in the last
years (BML, 1994). The promotion of the breeding efforts and weakening of the
re-use of seed are attempts made to increase the use of technological development
on the farms. The major problems with this new system, however, are the
07 For instance, the universitary breeding research.
00 The seed change ratio (SCR) is defined as the ratio between the share of area planted with
certified seed to the overall area planted to the respective crop.
09 The discount would amount to approximately US $ 0.6 per 100 kg of certified seed.