Appropriation of plant varieties and their collective management: a challenging equilibrium between the promotion of agricultural innovation and Farmers' Rights

On 25 March 2015, the Enlarged Board of Appeal of the European Patent Office (EPO) widened the extent of patent claims over plants with the Broccoli II (G 0002/13) and Tomatoes II (G 0002/12) cases.

This ‘decision leaves considerable leeway for patenting novel and inventive plants and products thereof, which have been produced by “conventional” methods including breeding steps’ (Minssen and Nordberg, 2015: 81). Plant products such as fruits, seeds and parts of plants are now considered patentable even if they are obtained through ‘essentially biological breeding methods’ involving crossing and selection. This decision goes counter to a European Parliament Resolution (2012/2623(RSP), which is not binding) adopted on 10 May 2012 on the patenting of essential biological processes. This loose interpretation of the European Patent Convention (EPC) Article 53(b)³ allows to patent native genes and traits,⁴ which can be found naturally in any variety of a specific species. This means that a patent owner may impede breeders from using any variety that happens to contain this patented native trait, even if he/she was already using this variety previously (Girard, 2015: 4, 9-10). In Europe, variety protection normally happens under Plant Breeders’ Rights (PBRs), where a breeder’s exemption allows other breeders to use the protected variety when breeding a new variety.⁵ In the US,⁶ besides plant variety protection, utility patents may cover seeds, plants, cuttings and plant varieties since the Ex parte Hibberd case law in 1985 (227 USPQ 443) (Llewelyn and Adcock, 2006: 88). This protection prohibits a breeder to use the initial material for further breeding and the farmer to sow the material without paying royalties (Janis, 2001: 105-117).

These EPO decisions extend further the appropriation and enclosure of plants and seeds, which accelerated at the end of the twentieth century (Helfer, 2004) following a general trend in the intellectual property field (Cohen, 2004), and which Sabrina Safrin called ‘hyperownership’ (Safrin, 2004).

It shrinks even more the rights of farmers to save, grow and sell their seeds. Farmers’ rights had already been reduced to nothingness with the revision of the UPOV Convention in its 1991 Act, where Articles 14(1), 14(5), 15(1)(iii), and 15(2) define the scope and exceptions of Breeders’ Rights. Previously, under the 1978 Act, the UPOV Convention left flexibility for States to recognize farmers’ right to replant seeds from the crop produced by protected seeds for his own subsequent use (save seeds); to exchange seeds with other farmers without paying additional royalties to the breeder; and to use a protected variety to create new varieties without prior authorization of the original breeder. The 1991 Act reduced the right to freely exchange seeds and imposed limitations on their replanting (against royalty payment). As for the right to use seeds for further breeding, the 1991 Act limits it to new varieties that are not ‘essentially derived’ from protected varieties.⁷ The overall result of the amendment has narrowed the exemption and expanded the rights of first-generation breeders (Helfer, 2004).

As a reaction, recent regulatory developments occurred in Europe to reaffirm the unpatentability of plants derived from biological processes. France adopted a law on biodiversity protection excluding plants derived from biological processes from patentability.⁸ Germany,⁹ Italy and the Netherlands have similar legislations. Under the pressure from the European Parliament and the European Commission,¹⁰ the EPO modified its implementing regulations.¹¹ Under the new Article 28(2) ‘European patents shall not be granted in respect of plants or animals exclusively obtained by means of an essentially biological process’. However, it should be noted that this ruling does not prevail on the EPC and that if a conflict arises, the latter will prevail (Article 164(2), EPC).

Notwithstanding this latter development in Europe, the appropriation trend is reinforced by the current ‘dematerialization’ of crop varieties (i.e.

detach the genetic sequence information of a variety from the physical seed out of which the code has been extracted). Dematerialization supports the consideration that seeds are to be tackled as commercial goods (i.e. resources out of which profit can be extracted). Avoiding envisaging all the other dimensions of the seeds (cultural, religious, ethical, biological, societal, etc.) and forcing to decouple the information relating to the variety from its physical shell is a hypocritical nonsense serving the only commercial dimension of the seed for a limited number of seed stakeholders (i.e. the seed industry). The digital/genetic sequenced information (DSI) of a variety does not come from nowhere. It is extracted from the crop. Even if one may then send it and use it independently from the plant, its link with the physical variety cannot be ignored. Indeed, it is not information that will then be sowed back in the field, but a new variety, improved thanks to the use of the DSI. When talking about food production, one cannot use the information as such. One cannot eat information. DSI is used to recreate new varieties to be put on the global market, and hence the link and interdependence between the DSI and the physical shell of the seed cannot be passed over in silence. This superficial separation of elements and relationships goes against the holistic approach to agrobiodiversity governance as a sustainable commons. It also goes counter to elementary principles of legal interpretation (Vienna Convention on the Law of Treaties 1980), as demonstrated in Chapter 4.

This first (physical and informational) appropriation trend strengthens the increasing domination of food and agriculture markets by a few corporate multinational companies (De Schutter, 2009b, 2010c; Altieri and Nicholls, 2012; Foresight, 2011; Clapp and Fuchs, 2009).

As a reaction, farmers (e.g. LaVia Campesina, see Claeys, 2015), researchers (such as the Open Source Seed Initiative, promoted by Prof.

Jack Kloppenburg at the University Wisconsin-Madison, see Deibel, 2018), breeders (such as the Garden Organic UK-based association and its Heritage Seed Library) and citizens (e.g. G raines de Troc) are acting collectively worldwide to promote sustainable conservation, use and exchange patterns (e.g. the French Reseau Semences Paysannes, see Demeulenaere, 2018) for so-called ‘non-industrial varieties’.¹² This second trend represents an alternative path to produce local, diverse, sustainable and healthy food (Altieri and Nicholls, 2012; IPES-Food, 2016), taking into account the interdependent and holistic approach mentioned above.

Concurrently with these two trends emerges the global challenge of feeding a growing world population in the face of increasing social, economic and environmental vulnerabilities (Sumner and Tiwari, 2011; SDSN, 2013) together with the more specific issue of conservation and access to seeds for food security and sustainable agriculture (Cullet, 2004, 2005). Indeed, on 25 September 2015, the United Nations Sustainable Development Summit adopted 17 Sustainable Development Goals (SDGs), of which ‘Goal 2 Zero Hunger’, provides in target 2.5 that

[b]y 2020, [States should] maintain the genetic diversity of seeds, cultivated plants and farmed and domesticated animals and their related wild species, including through soundly managed and diversified seed and plant banks at the national, regional and international levels, and promote access to and fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge, as internationally agreed.

Since the middle of the twentieth century, policies (through the green revolution, Evenson and Gollin, 2003; Tangley, 1987; Brush, 2001) have promoted the large-scale production of uniform, high yielding monocultures of a few staple crops, in highly artificial environments, as the solution to feed a growing population (Evenson and Gollin, 2003).

The focus was on increasing yields through the development of new breeding technologies, thereby quickly replacing local and diverse varieties with uniform crops worldwide (FAO, 1998) and shifting the economic and legal classification of seeds from public goods to highly privatized goods (Helfer, 2004; Chiarolla, 2006). Today, numerous studies show that this approach has had various serious consequences. First, a rapid diversity loss resulting from the widespread intensive monocultures (FAO, 1998, 2010; Esquinas-Alcazar, 2005). Second, the domination of a few multinational corporations over the entire agriculture input sector (De Schutter, 2009b; Howard, 2009). Third, the hyperownership and enclosure of seeds through legal and technological means (Safrin, 2004), leading to the increasing brittleness of traditional informal seed systems (Louwaars, 2008; De Schutter, 2009b; Wattnem, 2016). Fourth, the continuing reduction in numbers of small-scale farms on which most of developing countries’ population rely for their food production (Altieri and Nicholls, 2012), etc.

While agrochemical companies have systematically used the argument of reducing hunger and malnutrition to promote policies (Magretta, 1997; Simanis and Hart, 2001) that strengthen their dominant position worldwide¹³ and expand the commodification process (Chiarolla, 2006), it is undeniable that these strategies have not reached the ‘official objective’ of eliminating hunger and malnutrition (SDSN, 2013; De Schutter and Vanloqueren, 2011; Dorward et al., 2004), despite the significant yield increases (Morley et al., 2014). Indeed, although the number of hungry people had diminished,¹⁴ the first Millennium Development Goal (MDG) to eradicate poverty and hunger and the ‘Zero Hunger’ 2015 Sustainable Development Goal (SDG) are far from being achieved (FAO, 2014b; De Schutter, 2008),¹⁵ in part because hunger crises are not only due to food production problems but rather related to general policy directions (Sen, 1981) including the (mis)appropriation paradigm.

The problem is therefore not so much about our capacity of producing enough food (indeed studies have shown that within our limited world resources, we are able to feed the world population; Altieri and Nicholls, 2012; De Schutter, 2009b), but rather about managing and facilitating the access to food and to the seeds (and other agricultural inputs) needed for its production in a fair and equitable manner (Lappe et al., 1998; De Schutter, 2008; Pautasso et al., 2013; Sen, 1981).

A growing number of studies show that a different type of agriculture could better address the above-mentioned needs (IPES-Food, 2016; SDSN, 2013; Rodale Institute, 2011), taking into account the social, economic and environmental hazards.¹⁶ In December 2010, the Special rapporteur on the Right to Food, Olivier De Schutter, pointed out that ‘States can and must achieve a reorientation of their agricultural systems towards modes of production that are highly productive, highly sustainable and that contribute to the progressive realization of the human right to adequate food’ (De Schutter, 2010a, De Schutter and Vanloqueren, 2011; Pautasso et al., 2013). Drawing on an extensive review of the scientific literature on the topic, the Special Rapporteur identified agroecology¹⁷ as a mode of agricultural development to be promoted (Altieri and Faminow, 1996; Sanchez Carpio and Becheva, 2014). Agroecology demonstrates that yields can be doubled within ten years’ time and that favouring diversity increases productivity while facing environmental challenges (Altieri et al., 2012b; Altieri and Nicholls, 2012; Rodale Institute, 2011). In an interview in the New Zealand Herald, Steve Wratten confirms these observations,¹⁸ saying we ‘have the protocols or recipes’ to do this, ‘but getting governments to adopt it has a major barrier: international corporations’ (Reider, 2015). Wratten points here to a crucial issue: the necessity for political will to cooperate and promote collectively a fair and equitable access regime to food and seeds. Besides, other crucial aspects should also be tackled, such as access to land and the issue of land grabbing, or access to water.

This observation highlights the imperative need for all stakeholders in the world food chain - and especially states - to cooperate to operate a transition towards a sustainable agriculture and food system. As mentioned above, access to seeds for producing food is of vital importance for reaching food security worldwide (Frison, Cherfas and Hodgkin, 2011). Indeed, states are highly interdependent with regard to the provision of food and agriculture plant varieties (Khoury et al., 2015; Fowler and Hodgkin, 2004; FAO, 1998). Countries’ interdependence justifies a ‘compulsory’ cooperation between states in establishing and protecting a fair and equitable access to seeds. This international cooperation challenge can be addressed by setting up (global) institutional arrangements (Keohane and Ostrom, 1995; Jungcurt, 2007). This is precisely why the International Treaty on Plant Genetic Resources for Food and Agriculture¹⁹ (hereafter the Treaty) was shaped and adopted in 2001. Steered by sustainable development principles, the Treaty designs several tools to help countries reach their food security and sustainable agriculture overall goals (Frison, 2006). Two major provisions - the Multilateral System of access and benefit-sharing (MLS; Treaty Articles 11-13) and the recognition of Farmers’ Rights (FRs; Treaty Article 9) - are designed as incentives for Contracting Parties to provide a facilitated access to seeds to all food and agriculture stakeholders, including smallholder farmers. The MLS is viewed as a global commons system (Halewood, 2013; Santilli, 2012), where stakeholders manage together the access to seeds, their conservation and sustainable use. Both tools - the Multilateral System and Farmers’ Rights - aim at proposing an alternative path to the current food and agriculture system blocked in the middle of a private/public good dilemma. However, little thorough research has been conducted on analysing whether these tools adequately respond to the need for reaching food security and sustainable agriculture through the collective management of plant genetic resources for food and agriculture (PGRFA, or seeds).²⁰

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Source: Frison Christine. Redesigning the Global Seed Commons: Law and Policy for Agrobiodiversity and Food Security. Routledge,2019. — 294 p.. 2019

Appropriation of plant varieties and their collective management: a challenging equilibrium between the promotion of agricultural innovation and Farmers' Rights

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