The Legislative Study Of Farmers’ Right In Plant New Variety Protection

With the development of economy and the progress of genetic science and technology, people’s idea about world plant genetic resources transited from the early "resource sharing" to "exclusive rights of farmers”, so the FAO proposed the concept of “farmers’ right” firstly in1979to protect farmer’s interests for their contribution to the protection of plant genetic resource. farmers’ right, as a new right, is paid special attention by both north and south countries. The core of farmers’ right is the protection of farmer’s right for their contribution, and the carrier of farmers’ right is plant genetic resources. This paper focus on the study of the nature of farmers’ right, the content of farmers’ right, the realization of farmers’ right and the legislation of farmers’ rights in China. The international community has relevant international treaties about farmers’ right and some countries have studied farmers’ right in the form of domestic legislation, but people have different opinions, and the dispute focuses on whether farmers’ right belongs to intellectual property right or is an exclusive right. So there is still not a unified understanding about the nature of farmers’ rights, the content of farmers’ right and accountability issues of farmers’ right in the international community. Although China’s "Regulations on Protection of New Varieties of Plants" involves some part of farmer’s right, the concept of “Farmers’ Right” is still blank in China. Under the backgrounds of the disputes of International Plant Genetic Resources Protection in international community and China’s plant genetic resources constantly being "infringement”, this paper systematically analyses farmers’ right by the reference of the international conventions, national legislation and domestic research theory and related legislative policies.This paper argues that farmers’ right, as an exclusive property rights and the counterpart of intellectual property rights, is an exclusive right. The author draws this conclusion by the support the theoretical basis of sustainable conservation of plant genetic resources theory, farmers’ right to development theory, and the balance of interests’ theory. Farmer’s right includes: the farmers’ privilege (seed-save rights, seed exchange rights, marketing rights), the right for their contribution to plant genetic resources, the right to prior informed consent plant genetic resources, and the right to participate in plant genetic resources, the right to benefit-sharing plant genetic resources. According to various studies of farmers’ rights and against the unfavorable situation of China’s lack of law about farmers’ right, the author proposed that China needs to join ITPGR Convention and make Farmers’ Right in the "New Plant Variety Protection Act ". The legislation of Farmers’ Right Act embodies the four principles, namely, the protection of farmers’ contribution rights principle, the protection of sovereignty of plant genetic resources principle, benefit-sharing principle, biodiversity and sustainable development principles. In the legislation of farmers’ right, some specific systems should be strengthened, namely, the establishment of specialized institutions to protect farmers’ right, specifically the nature, the content and the scope of farmers rights,,the realize of Farmers’ Right, the establishment of chain mechanisms to protect farmers’ interests,trade security early warning mechanisms and the establishment of an accountability system and exemption system. The study will fill legislative gaps of farmers’ interests, and protect genetic resources and the interests of farmers who make contribution to the protection of genetic resources.