1. Ingrid Rosalie Gorre and Wilhelmina Pelegrina SEARICE
Overview of typical measures relevant for the realization of Farmers’ Rights to fair and equitable benefit sharing Global Consultation on Farmers’ Rights November 2010, Addis Ababa, Ethiopia
Ingrid Rosalie Gorre and Wilhelmina Pelegrina SEARICE

2. Simplified Value Creation Chain for Genetic Resources
Source: Julia Rojahn, 2010, Fair Shares or Biopiracy: Developing Ethical Criteria for Fair and Equitable Sharing of Benefits from Crop Genetic Resources, unpublished dissertation. Eberhard Karls Universität, Tübingen.

3. Cycle of farmers’ innovation
What is not realized by many is that when farmers utilize plant genetic resources, it is usually a cycle utilizing the traditional knowledge in order to innovate and create better and more adapted species. This process continues often without the need for creating enclosures such as IPRs. In some instances, the benefit sharing already comes into the form of being able to sell the new variety to fellow farmers. In fact, IPRs sometime kill innovation instead of promoting it. Thus, when we examine benefit sharing mechanisms, it is important to note whether the arrangement allows for farmers continuing innovation.
In farmers’ fields: genetic resources are under perpetual state of conservation,use and development. A dynamic system over space and time; the ‘foundation’ of Farmers’ Rights to PGRFA - that these dynamic processes (customary) continues; whether benefit sharing mechanisms support this process. 3

4. Typologies of benefit sharing legislations
1. In some instances, like in the Philippines, while there is a benefit sharing mechanism in the bioprospecting agreements, there is no clear rule on what the communities will get. The benefit sharing that is clear is with the government, in terms of the bioprospecting undertaking. What the law only establishes is the communities right to prior informed consent before bioprospecting activities take place. The law probably assumes that the community will only provide the PIC if there is a benefit sharing arrangement. There is no mention in the law of the concept of benefit sharing with farmers. The Philippine law also creates a wildlife fund but the fund does not specify that communities can access the fund. "Sec.  29. Wildlife Management Fund. ­ There is hereby established a Wildlife Management Fund to be administered by the Department as a special account in the National Treasury which shall finance rehabilitation or restoration of habitats affected by acts committed in violation of this Act and support scientific research, enforcement and monitoring activities, as well as enhancement of capabilities of relevant agencies.
The Fund shall derive from fines imposed and damages awarded, fees, charges, donations, endowments, administrative fees or grants in the form of contributions. Contributions to the Fund shall be exempted from donor taxes and all other tax charges or fees imposed by the government." (RA 9147)
2. There are some instances like in Thailand where the law creates a benefit sharing fund, where farmers can directly access the fund.
Section 54. There shall be established in the Ministry of Agriculture and Co-operatives a fund call the "Plant Varieties Protection Fund" to expended for the purposes of assisting and subsidising activities related to the plant varieties conservation, research and development, consisting of the following property: (1) income accruing from profit-sharing agreements under section 52; (2) money or property received from the registration of plant varieties; (3) subsidies from the Government; (4) donated money or property; (5) fruits or other benefits accruing from the Fund. Money or other property under paragraph one shall be remitted to the Fund without having to remit the same as State revenue.
Section 55. The money in the Fund shall be expended for the following activities: (1) assisting and subsidising any activities of communities in connection with the conservation, research and development of plant varieties; (2) serving as expenses of local government organisations for the purposes of their subsidising the conservation, research and development of plant varieties of communities; (3) serving as expenses in the management of the Fund. The management of the Fund and the control of the expenses therefrom shall be in accordance with the Regulation prescribed by the Commission with the approval of the Ministry of Finance.
Of course, like I said in my presentation, the fund is at the expense of creating an enclosure through PVP. My question is, are the trade-offs clear and have we really maximized the benefit sharing mechanism. Will the creation of the enclosure, in turn, allow farmers to further innovate through capacity building, technology transfer, participation in public research? Or is this just an inconsequential amount that is not really worth it. Furthermore, the decision of who can get access to the fund is a government decision. Can farmers' rights be at the will of the government? Who controls the funds? Are farmers part of the decision making process? According to the Thai law, the fund shall be administered by a committee compromised by government officials. Section 56. There shall be a Fund Committee consisting of Permanent Secretary of the Ministry of Agriculture and Co-operatives as the Chairman and not less than seven other members appointed by the Commission and the Director-General of the Department of Agriculture shall be the secretary and a member.
3. Similarly, the Indian law also establishes a national fund. However, the Indian PVP and Farmers Rights law also establishes other modes of benefit sharing such as the one direct with the community, and the creation of an award for conervation. Gene Fund. 45. (1) The Central Government shall constitute a Fund to be called the National Gene Fund and there shall be credited thereto— (a) the benefit sharing received in the prescribed manner from the breeder of a variety or an essentially derived variety registered under this Act or propagating material of such variety or essentially derived variety, as the case may be; (b) the annual fee payable to the authority by way of royalty under subsection (1) of section 35; (c) the compensation deposited in the Gene Fund under sub-section (4) of section 41; (d) the contribution from any national and international organisation and other sources. (2.) The Gene Fund shall in the prescribed manner be applied for meeting— (a) any amount to be paid by way of benefit sharing under sub-section (5) of section 26; (b) the compensation payable under sub-section (3) of section 41; (c) the expenditure for supporting the conservation and sustainable use of genetic resources including in-situ and ex-situ collections and for strengthening the capability of the Panchayat in carrying out such conservation and sustainable use; (d) the other expenditures of the schemes relating to benefit sharing, framed under section 46. Framing of schemes etc. 46. (1) The Central Government shall, for the purposes of section 41 and clause (d) of subsection (2) of section 45 frame by notification in the Official Gazette, one or more schemes. (2) In particular and without prejudice to the generality of the provisions of sub-section (1), the scheme may provide for all or any of the following matters, namely:— (a) the registration of the claims for the purposes of section 41 under the scheme and all matters connected with such registration; (b) the processing of such claims for securing their enforcement and matters connected therewith; (c) the maintenance of records and registers in respect of such claims; (d) the utilisation, by way of disbursal (including apportionment) or otherwise, of any amounts received in satisfaction of such claims. (e) the procedure for disbursal or apportionment by the Authority in the event of dispute regarding such claims; (f) the utilisation of benefit sharing for the purposes relating to breeding, discovery or development of varieties; (g) the maintenance and audit of accounts with respect to the amounts referred to in clause (d). At the same time, the Indian law also has a direct benefit sharing  arrangement with communities but only in reference to local varieties that the community has proven that they have conserved. Section 48. A person who collects, procures or gathers a local domestic plant variety or any part thereof for the purposes of variety development, education, experiment or research for commercial interest shall make a profit-sharing agreement in relation to the profits derived from the use of such local domestic plant variety. In authorising any person to carry out the act under paragraph one and in making the profit-sharing agreement, the local government organisation, farmers' group or co-operative to which the certificate of registration of the local domestic plant variety is granted shall make the agreement in the name of the community, provided that approval of the Commission shall first be obtained.
Section 49. Twenty percent of the profits derived from authorising another person to use the rights in the local domestic plant variety shall be allocated to the persons who conserve or develop the plant variety, and sixty percent thereof to the community as its common revenue and twenty percent thereof to the local government organisation, the farmer's group or the co-operative that makes the agreement. The profit-sharing among the persons who conserve or develop the plant variety shall be in accordance with the regulations prescribed by the Commission. In the case of any dispute in connection with the allocation of profits under paragraph one, it shall be decided by the Commission.
The Indian law also grants recognition for conservation of plant genetic resources. 4. The Bhutan law Conditions for benefit sharing Upon fulfilment of all the conditions described above, the Competent Authority may grant access if one or more, when relevant, of the following minimum conditions for benefit sharing, which are to be included in the Material Transfer Agreement or Contract Agreement to be signed between the Competent Authority and the Applicant. These conditions may also be considered in any Material Transfer Agreement or Contract Agreement to be signed between the applicant and any other relevant stakeholder. a. A flat fee and upfront payments. b. The sharing of the research results and relevant information. c. Royalties d. Milestones payments. e. Recognition as a partner in intellectual property ownership of products derived from the supplied material. Biodiversity Act of Bhutan, f. Joint research activities. g. Concessionary rates or free supply of commercial products derived from the resources provided. h. Transfer of technologies. i. Training and capacity building. j. The acknowledgment of the origin of the genetic resources in any publication resulting from the research activities. k. Donation of equipment to national institutions. l. Other benefits, monetary or non-monetary.         27. (1) There shall be constituted a Fund to be called the National Biodiversity Fund and there shall be credited thereto – (a) any grants and loans made to the National Biodiversity Authority under section 26; (b) all charges and royalties received by the National Biodiversity Authority under this Act; and (c) all sums received by the National Biodiversity Authority from such other sources as may be decided upon by the Central Government. (2) The Fund shall be applied for – (a) channeling benefits to the benefit claimers; (b) conservation and promotion of biological resources and development of areas from where such biological resources or knowledge associated thereto has been accessed; (c) socio-economic development of areas referred to in clause (b) in consultation with the local bodies concerned. 5. Costa Rica law - Costa Rica laws requires benefit sharing for access to genetic resources. ARTICLE 63.- Basic requirements for access The basic requirements for access will be: 1.- Prior informed consent of the representatives of the place where the access will occur, be they the regional councils of Conservation Areas, the owners of farms or the indigenous authorities, when it is in their territories. 2.- Approval of the prior informed consent by the Technical Office of the Commission. 3.- The terms of technology transfer and equitable distribution of benefits, when there are any, as agreed in the permits, agreements and concessions, as well as the type of protection of associated knowledge demanded by the representatives of the place where the access will occur. 4.- The definition of the ways in which the said activities will contribute to the conservation of species and ecosystems. 5.- The designation of a legal representative resident in the country, when it concerns people or legal persons living outside the country. Here it is clear that the benefit will go directly to the representatives of the place of access. Also benefit sharing includes technology transfer. In addition, the Costa Rican also utilizes the incentives as seen below. ARTICLE 100- Plan of incentives. The Ministry of Environment and Energy and the other public authorities will apply specific incentives be they fiscal, scientific-technological or other kinds, in favour of the activities or programs carried out by people or legal nationals, who contribute to achieving the objectives of the present law. The incentives will be constituted by, among others, the following: 1.- Exoneration from all taxes on equipment and materials, which regulations of this law define as indispensable and necessary for the development, research and transfer of appropriate technology for the conservation and sustainable use of biodiversity, except automobiles of any class. The exoneration will be given by PLENARY LAW No LEGISLATIVE ASSEMBLY means of authorization from the Ministry of the Treasury, and prior approval of the respective study by the Ministry of Environment and Energy. 2.- Public recognition like the distinctive Ecological Flag. 3.- National and local prizes for those who emphasise in their actions the conservation and sustainable use of biodiversity. 4.- Payment of environmental services. 5.- Favourable credit for micro-businesses as concerns mortgages. 6.- Anything else applicable in the Law of Promotion of Scientific and Technological Development, No. 7169, of the 26th of June, 1990, and other laws, which permit the attainment of the objectives arranged in this law. ARTICLE 101- Incentives for community participation. The participation of communities in the conservation and sustainable use of the biological diversity shall be promoted by means of technical assistance and special incentives in this law and its regulation, especially in areas harboring species which are rare, endemic or in danger of extinction . ARTICLE 102- Finance and assistance for community management. The Ministry of Environment and Energy, in co-ordination with the competent public authorities and civil society, will give priority to forms of financial and technical support or any other form, for the projects of community management of biodiversity. ARTICLE 103- Removing negative incentives. The Ministry of Environment and Energy and remaining public authorities, taking into consideration public interest, should revise existing legislation and propose or carry out changes necessary to eliminate or reduce incentives which are negative for the conservation of biodiversity and its sustainable use and propose appropriate disincentives. ARTICLE 104- Promotion of traditional breeding. The Ministry of Environment and Energy, and other public authorities, will promote the conservation and sustainable use of biological and genetic resources that have been the subject of breeding or selection by local communities or indigenous peoples, especially those which are threatened or are in danger of extinction and need to be restored, recuperated or rehabilitated. The Ministry will give the technical assistance or finance necessary to fulfil this obligation. What is the bottomline after all of this? Back to your question. Do farmers really benefit from all of this? Based on Regine's survey, everything seems to be good. Pero feeling ko Dit, most of her respondents were from government kaya ganoon yong sagot. Ano yong parameters of success ng mga policies nila. Hindi clear yon sa research nya. Perceptions lang ang nakuha nya. Siguro, bottomoline is, are farmers better off or worse now? What kind of transfer of technology has taken place? What kind of capacity building has happened. Based on Regine's survey the capacity building that has taken place parang mostly from GO-NGO project. Siguro parang SEARICE. The funds did not come from the funds set up by national law.
Typologies of benefit sharing legislations 4

5. Other benefit sharing measures
‘upstream focused benefit sharing’
Democratizing agricultural research and extension by mainstreaming within institutions farmers’ participation - e.g. participatory plant breeding
With different typologies, mostly in the global south: Nepal, Bhutan, Lao PDR, Vietnam, Thailand, Philippines, India, China, Indonesia, Cambodia, Iran, Morocco, Syria, Jordan, Nicaragua, Costa Rica, Guatemala, Cuba, Honduras, Mexico, Zimbabwe, Ethiopia, Sierra Leone etc
With components of technology/skills transfer, information exchange and capacity building among farmers, plant breeders/researchers

6. Other benefit sharing measures
Public support and funding for on-farm conservation and biodiversity management at local/community level
Community seed banks and seed saving networks
mostly initiated by civil society organizations and farmers themselves but gaining strong goernment support (e.g. Ethiopia, Mali, Zimbabwe, India, Brazil, Colombia, Philippines, Thailand, Canada etc)
Community based seed production
funding and insitutional support to local seed clubs formed by farmers (e.g Vietnam)

7. Other benefit sharing mechanisms
Public support and funding …
Community developed seeds for disaster relief response (e.g. Philippines and Thailand)
Price incentives for farmer developed seeds (traditional or new varieties by farmers) and grains
E.g. Hue, Vietnam Department of Agriculture and Rural Development bought farmer seeds at higher prices which were distributed to other farmers for use
Support for farmer capacity building for seed production including on-farm conservation and participatory plant breeding
E.g. 1:1:1 program of An Giang DARD with Vietnam Food Company and farmer groups

8. Some examples of possible benefit sharing mechanisms that can support Farmers’ Rights under the Nagoya protocol
Access fees/fee per sample collected or otherwise acquired;
Special fees to be paid to trust funds supporting conservation and sustainable use of biodiversity;
Research funding;
Participation in product development;
Strengthening capacities for technology transfer;
Institutional capacity-building;
Contributions to the local economy;
Research directed towards priority needs, such as health and food security, taking into account domestic uses of genetic resources in the Party providing genetic resources;
Food and livelihood security benefits;
Social recognition

9. What is the measure of success?
Are farmers better off with the different mechanisms?