The rise of the breeding industry, modern biotechnology and IPRs: genetic resources gain economic value

At the beginning of the twentieth century, hundreds of small companies producing seeds, mostly adapted to local conditions, constituted the seed industry in developed countries.

Universities and government agencies were the main creators of new varieties through publicly funded plant breeding programmes (Herdt, 1999: 6), which were then provided to seed companies for further improvements at little cost or for free (ibid: 4). At that time, farmers could reproduce seeds of new varieties easily and

[t]he incentive for private companies to invest in developing new plant varieties was limited because open-pollinated seeds are like a public good - once they exist it is difficult to prevent any farmer from using them (nonexcludable), and because they self-reproduce, their use by one farmer does not compete with their use by another (non-rival).

(ibid: 5)

However, the agricultural field and the seed industry landscapes changed dramatically, switching drivers from a general public interest to more private ones (Fowler, 1994: 137-151; Jaffe and Srivastava, 1994). Agricultural science had previously been largely supported and financed by public institutions, such as

the United States Department of Agriculture (USDA), or the Institut National de Recherche Agronomique (INRA) in France. This trend had reversed by the end of the twentieth century (Evenson, 2005: 194; Schimmelpfenning and Heisey, 2010). The progressive commodification¹³ of PGRFA and the increase of their economic value (Christensen, 1987: 289)¹⁴ were made possible inter alia thanks to two trends: the development of modern biotechnologies with high agricultural research and development (R&D) costs and the political decision to widen IPRs over plants (Safrin, 2004: 641; see also Fowler, 1994; Aoki, 2010: 83-105).

On the scientific side, the development of hybrid seeds, and later of DNA- based techniques (i.e.

modern biotechnology) and their application to plants, allowed for the production of seeds of special varieties (i.e. genetic modification), for which companies sought IP protection. Indeed, Evenson (2005: 194) says that the ‘gene revolution’ had depended on the development of IPRs. Agricultural economist Robert Herdt states that, contrary to open-pollinated seeds, ‘[h] ybrid seeds are not public goods because it is possible for companies to exclude farmers from [reproducing their seed’.¹⁵ DNA techniques allow for the development and improvement of a wide range of new plant traits that increase the economic value of plants (Sedjo, 1992: 210), which opened new possibilities for financial benefits (Bragdon, 2004: 16). This ability to commodify what was once easily taken and used without any control has opened the door to major landscape changes (for a negative assessment of this commodification process Kloppenburg, 2004). What was once a myriad of family-size seed companies producing seeds of hundreds of locally adapted crops, merged to create major multinational agrochemical and seed companies.¹⁶ These mega agro-companies promote uniform high-yielding varieties and control important market shares.¹⁷ Bragdon (2004: 16; FAO, 1996a: 165) specifies that by 1996, the world’s top ten agrochemical corporations accounted for 82 per cent of global agrochemical sales and that the top ten seed corporations accounted for 40 per cent of the commercial seed market. These companies have little incentive to produce crops that are important to the poor and disadvantaged farmers who primarily save their own seeds (Herdt, 1999: 8-9). To protect the interests of these companies, developed countries promoted the expansion of the scope of application of IPRs.¹⁸

On the regulatory side, the development of IP legislations was justified by the argument that R&D in the field of agriculture was very long and costly (Evenson, 2005: 203). Breeders and developers therefore needed to be able to get returns on their investment through the exclusive right to exploit their invention for a limited period of time.¹⁹ In the US since 1930, varieties of vegetatively propagated plants have been patentable under the 1930 Plant Patent Act,²⁰ while sexually propagated plants²¹ have been protected under the Plant Variety Protection Act (PVP Act) since 1970.²² However, Chiarolla notes that the Plant Patent Act voluntarily limits the scope of patent application for food security reasons. According to him, ‘the 1930 Plant Patent Act was specifically designed for the protection of vegetatively propagated (mainly ornamental) plants only,

History of the seed regulatory setting 31 with the stated intention to exclude staple foods, such as grain, from its scope of application’ (Chiarolla, 2006 : 42).

At the international level, the Union for the Protection of New Plant Varieties (UPOV)²³ adopted in 1961 recognized sui generis property rights to breeders over improved plant varieties, although still allowing an access policy for research and further breeding.

With the rapid progress achieved by science in the 1980s and 1990s, in particular DNA-based techniques, new regulatory structures were needed. In 1980, the US Supreme Court decided in the Diamond vs. Chakrabarty case to allow patenting of biological organisms, traits and genes. The court held that under Title 35 USC. 101, a live, human-made micro-organism is a patentable subject matter. The ‘respondent’s micro-organism constitutes a “manufacture” or “composition of matter” within that statute’.²⁴ Along with the 1991 modification of the UPOV Convention,²⁵ the adoption of the trade-related Aspects of Intellectual Property (TRIPS) Agreement of 1994²⁶ led to the culmination of a drive towards internationally recognized protection of IPRs (Chiarolla, 2011: 76) affecting genetic resources generally.²⁷·²⁸

What is important to recall from this brief historical background is the shift of perception in the control and ownership over PGRFA. Before World War II, seeds were exchanged easily, for commercial, social and cultural purposes. However, this trend was hampered by several facts, including: 1) the realization of the loss of genetic diversity and its subsequent massive collection campaigns by developed countries; 2) the development of new technologies leading to the various revolutions (industrial revolution in the eighteenth century, green revolution in the 1960s and biotech revolution in the 1990s); 3) the consecutive increase in financial value of specific PGRFA, and the strengthening of IPRs over these PGRFA. These facts have created an atmosphere where poor people, small farmers, and developing countries felt robbed by the multinational companies and developed countries who expanded their control over PGRFA (and exclusion of use) through technological and legal means.

Scholars have named this conflict the ‘Seed Wars’ (Aoki, 2008; Christensen, 1987: 299-301; Mooney, 2011). In the 1980s, Christensen (1987: 280) argued that if ‘the rift between the poor and the rich countries continues to widen, access to germplasm may be lost’. This tension pushed for the development of international regulation recognizing the nature of ‘common heritage of mankind’ to PGRFA in order to secure a free access to these resources for the benefit of present and future generations (Mgbeoji, 2003; Baslar, 1998).

Box 2.3 Modern biotechnology and intellectual property rights

• 1920s: Development of the first (Filial 1) F1 hybrid crop varieties

• 1953: The double-helix structure of DNA is discovered

• 1960s: Green Revolution

• 1961: Creation of the International Union for the Protection of New Varieties of Plants (UPOV) then revised in 1972, 1978 and 1991.

• National legislations restrict access to PGRFA (including through IPRs)

• 1980s: Diamond v Chakrabarty U.S. Supreme Court case

• 1995: First genetically engineered crop commercialized (GMOs)

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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

The rise of the breeding industry, modern biotechnology and IPRs: genetic resources gain economic value

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