TWN Info Service on Biodiversity and Traditional Knowledge (Apr25/03)
4 April 2025
Third World Network

Plant Treaty: “Subscription-Only” Prospects Fade, Weak Governance to Continue

Rome, 4 April (TWN) – As the negotiations at the Thirteenth Meeting of the Ad Hoc Open-ended Working Group (WG13) to Enhance the Functioning of the Multilateral System of the ITPGRFA continue, the prospects of a “subscription-only” system for benefit-sharing payments have faded as developed countries go back on their promises.

[ITPGRFA is the International Treaty on Plant Genetic Resources for Food and Agriculture popularly known as the Plant Treaty. The WG13 meeting is taking place in Rome from 1 to 4 April 2025.]

The Multilateral System of Access and Benefit-sharing (MLS) of the Plant Treaty is a system for facilitating access to seeds and other propagating materials (technically known as PGRFA) for research and breeding, and for fair and equitable sharing of the benefits arising from the utilization of the same, on a mutually reinforcing basis.

A “subscription-only” system was a proposal devised during the course of negotiations in the Working Group to ensure predictable benefit sharing by making recipients of PGRFA from the MLS (i.e. users) contribute annually, instead of waiting for them to commercialize a newly-bred variety of seed or propagating material which might happen only after several years of accessing a PGRFA from the MLS.

Unfortunately, the MLS system has failed to deliver on its mandate on a mutually reinforcing basis, with only access to PGRFA materials having increased since the establishment of the MLS. Contrary to the requirements of Article 10.2. of the Plant Treaty, the MLS has been lacking efficiency, effectiveness and transparency in its governance. Despite the scale of genetic resources it facilitates access to, there has not been concomitant effort to ensure the resources are not diverted for non-Treaty purposes or misused for environmentally- and socially unsound purposes.

The conspicuous lack of legal certainty for benefit-sharing, in particular predictable monetary benefit-sharing, has resulted in a process to enhance the MLS, which began ten years ago. At the same time developed countries and their agencies who dominate the process captured the opportunity to expand the scope of PGRFA covered under the MLS. Currently, the MLS covers only 35 food crops and 29 forages, but the developed country proposal is to open the MLS to “all PGRFA” - i.e. any plant that has any potential value for the food and agriculture.

North America not ready to change Treaty’s original benefit-sharing agreement

Canada and the United States, negotiating as the North American region, reiterated they can only accept a “dual access” system, that is based on both subscription and “single access”. They said they cannot change the original compromise made in the Treaty which is reflected in Article 13.2.d.ii:

“The Contracting Parties agree that the standard Material Transfer Agreement referred to in Article 12.4 shall include a requirement that a recipient who commercializes a product that is a plant genetic resource for food and agriculture (seeds or propagating material) and that incorporates material accessed from the Multilateral System, shall pay to the mechanism referred to in Article 19.3f, an equitable share of the benefits arising from the commercialization of that product, except whenever such a product is available without restriction to others for further research and breeding, in which case the recipient who commercializes shall be encouraged to make such payment.”

Accordingly, under Article 6, paragraph 7 of the current standard Material Transfer Agreement (SMTA), a person selling seeds or propagating material is required to make monetary contributions to the Treaty’s Benefit-sharing Fund when their products are not available for further research and breeding. Article 6, paragraph 8 of the SMTA further encourages persons who make their products available for further research and breeding to voluntarily contribute to the Benefit-sharing Fund. These provisions together are considered a “single access” system.

The subscription system is a modified proposal of the existing Article 6, paragraph 11 of the SMTA which provides for a “periodic discounted payment”.

In the subscription system, the recipients of the MLS materials must make an annual periodic payment based on the sales of all of the PGRFA products (seeds) in their portfolio, provided recipients have turnover beyond a certain threshold.

In fact, the "single access” system is a misnomer. As a few developing countries negotiators explained to TWN: "It is neither one-time access nor access to a single crop, but an escape route for not sharing benefits. The term ‘single access’ gives a false impression that the MLS is only being used in a very limited sense."

Currently, the debate in the WG13 meeting is whether both the single access and subscription system are needed for the future, or only the subscription system. Under the subscription system, the merit is that there is no need to prove that the user has developed a seed incorporating materials from the MLS. While in the single access system, the payments can be avoided by simply proving that the incorporation of the materials from the MLS is not substantial in the products commercialized by the user. Unfortunately, breeding a new variety takes several years and the Treaty Secretariat has no mechanism to follow up on the process.

North America said the recipients should be able to choose between two options according to their preference. However, North America argued that Article 6, paragraph 8 could be made mandatory instead of voluntary, as Article 13.2.d further allows the Governing Body to make such decisions. They stated this change is the maximum for them.

The Group of Latin America and the Caribbean countries (GRULAC) and most of the developing countries prefer a subscription-only system. Developing countries from Asia also said they can consider providing various subscription schemes to the subscriber.

However, North America has continued to reject the subscription-only system and insisted on the dual access system, reiterating it is part of the original compromise of the Treaty. It even insisted on the phrase “subscription option”, rather than “subscription mechanism” throughout the text on the package of measures to enhance the functioning of the MLS.

Europe echoes seed industry’s demands

Europe said that even though they view subscription as the most effective option for enhancing the MLS, they prefer the dual access system because their stakeholder consultations showed no support for a subscription-only system. However, the International Planning Committee for Food Sovereignty, an organisation representing 6000 organisations and 300 million small scale food producers and farmers’ groups across the world (several of them in Europe) has long been insisting on a subscription-only system.

“We are usually sitting a few meters from them in the FAO rooms where these issues are discussed,” says Guy Kastler, a French farmer from La Via Campesina and member of the IPC working group on agrobiodiversity. “In these and other forums, we have always supported a subscription-only system, with advance payments, that also includes DSI (digital sequence information), as well as strong and binding national laws to prohibit patents on DSI contained in genetic resources in the multilateral system".

It appears that Europe gives more primacy to their industry stakeholders – seed companies – rather than the rights holders under the Treaty – the farmers. Germany and France have championed a dual access system, while Switzerland and Norway are under pressure to agree to a dual access system rather than a subscription-only system.

As the Working Group Co-chairs proposed to streamline textual paragraphs for Articles 6.7, 6.8 and 6.11 of the SMTA, Switzerland and Norway stepped in to streamline the language provisionally, along with other countries in the Working Group. They negotiated and drafted the three paragraphs in brackets in a descriptive manner that would not reflect whether they are optional or not.

A new paragraph 6.6bis has been inserted to keep the debate alive and negotiations on this paragraph have been deferred to a later stage:

“The Recipient, at the time of signing or accepting of this Agreement, shall select between two access options, as provided for in Article 10: the subscription option pursuant to Article 6.11 and Annex 2, or the single access option pursuant to Articles 6.7 and 6.8 and Annex 4, unless the Recipient is already a Subscriber.”

GRULAC questions efficacy of single access

Regarding the single access option, GRULAC asked how the system would work in reality. t questioned the capacity of the MLS or Third Party Beneficiary (FAO) to know if the recipients have developed a PGRFA product and sold it in the open market using the material from the MLS in a manner described in the MLS.

The Co-chairs’ response was that the MLS relies on the goodwill of the seed industry to know about the commercialization and there is no other approach to find out what the products are or what the research outcomes are.

Following this response, GRULAC proposed text obligating the recipient to notify the FAO, within 60 days of commercialization. The African Group and other developing countries supported the proposal. Some other developed countries engaged with the proposal although they did not express agreement with it.

“Practically impossible” to engage with users of the MLS?

During the discussion on the efficiency of single access, civil society organizations (CSOs) asked for clarification from the Treaty Secretariat about the current practices of reporting by the recipients under the existing SMTA. CSOs also asked whether there is any practice in the Secretariat to engage with recipients on a regular basis.

Under the current SMTA, Annex 2 paragraph 3, although reports must be filed annually, it is considered as an obligation arising only upon commercialization. The Secretariat confirmed that the reports are submitted only after commercialization, and they do not currently have any mechanism of engagement or following up with the recipients regarding how they use the PGRFA received from the MLS.

The Executive Secretary stated that considering the scale of number of users and PGRFA exchange it is “practically impossible” to engage with users of the MLS.

Previously, the Secretariat had said that their digital infrastructure is capable of issuing subscription numbers to the subscribers of the MLS in a very speedy manner, if not instantly, and ensuring that PGRFA transactions take place without delay.

It is not clear what hinders the same digital infrastructure from periodically asking the recipients for updates in their research. 

A participant in the meeting said, on condition of anonymity, that there is a lot that the Treaty mechanisms, especially the Secretariat and Article 15 institutions (i.e., the International Agricultural Research Centres of the Consultative Group on International Agricultural Research), can do about improving governance and transparency. However, they are reluctant to do so, as a culture of unregulated exchange of germplasm and data has been entrenched over years of practice.

CSOs, farmers’ groups and developing countries in the Working Group equally fear and lament that the current package of measures is not going to do anything to improve the governance, accountability and transparency of the MLS.

Avoidance of text changes

As the negotiations have progressed, the Co-chairs continue to be reluctant to change text in the 2019 package of measures, where language is marked with “agreed ad ref”. The explanation given by the Co-chairs is that there is no time to negotiate new changes or to introduce new ideas. This is to enable the Working Group to finish the process on time and submit the package of measures to the Governing Body of the Treaty in May.