The tension between ‘public seeds' and IPRs: ownership as a factor of rights imbalance

The purpose of this section is to highlight the tension that arose between stakeholders in the agrobiodiversity field following the shift in considering seeds as public goods to considering seeds almost exclusively as private goods.

The historical timeline for PGRFA exchange and management shows that there is a conceptual debate on the ownership and control of PGRFA. Footer (2000: 49-50) mentions a ‘gradual paradigm shift in the attitude towards PGRFA’, while Stoll (2009: 8) refers to the development of different entitle­ments relevant to the use of genetic resources. Some stakeholders would rather treat PGRFA strictly as a private resource, i.e. a commodity subject to market and private property rules. Others would rather see PGRFA as purely public goods to be supplied, financed and conserved by public authorities. Yet others understand PGRFA as containing both a private and a public dimension, calling for a sui generis management mechanism. The ‘privateness’ or ‘publicness’ of a good is not an intrinsic characteristic of the good. Legal constructs have cre­ated these concepts (Boyle, 2003a, 2003b; Heller and Dagant, 2001). Moreover, the dichotomy between the public and private qualification of a good is not so straightforward and comes from a neo-liberal ideological claim. Aoki (1998: 13-15) shows that both categories regularly mix and that intellectual property may be fairly characterized as a jointly social product. Most of the time, a good can easily be moved from a private to a public nature (Heller, 1998).¹ Regardless of how literature names what is called public seeds,² the fact highlighted here is the impact on access to seeds for various types of ‘ownership’ over genetic resources (Chang, 2009), which result from the dual nature of the resource, i.e.

The aim of this section is not to repeat the work of said eminent academ­ics (Drahos, 2006), nor to apply these theories to biodiversity and traditional knowledge in general (Brahy, 2008) or to the agricultural innovation chain in particular (Batur, 2014), as it has already been done exhaustively. Rather, the purpose of this section is to highlight that the evolution of the property regimes applied to PGRFA - leading to the hyperownership of seeds (Safrin, 2004) - has excessively enclosed seeds and contributed dangerously to creating an ‘anticommons’ dilemma (Heller, 1998), where seeds are under-utilized.

Until fairly recently, seeds were considered as ‘free goods’ (Kloppenburg, 2004: 15) - goods in ‘the public domain’ - that is to say in lay terms seeds ‘available to all’ for further breeding and research (Pistorius, 1997). At the time of the green revolution (Tangley, 1987), improved seeds used in developing countries had the characteristic of public goods: they were easily reproduced, so many farmers could sow them (non-rivalry),³ and there was no techni­cal means for the seed industry to exclude farmers in developing countries from sowing protected improved varieties (non-excludability). Indeed, before modern biotechnology, open-pollinated seeds (whether improved or not) were widely used by farmers because they self-reproduce easily (Herdt, 1999: 4-5). Today, there are two main means of appropriating seeds (see Figure 3.1 below): i.e. the legal means (e.g. through IPRs) and the technological means (e.g. Genetic Use Restriction Technology (GURT) seeds).

Figure 3.1 Appropriation of seeds

The relatively recent entry of private companies into the plant breeding business, from the late nineteenth century onwards, has been facilitated by the development of IPRs for plants and plant varieties (Aoki, 2008; Louwaars, 2008: 51—112). The development of intellectual property rights over PGRFA reinforced by biotechnology advancements has shifted this ‘public’ feature to a private one. Previously ‘uncontrollable’ seeds can now be identified, traced and effectively protected through the enforcement of breeders’ rights or IPRs. Tansey states that

[c] ompanies naturally want to stop others from copying - or buyers reproducing - new products if they can.

(Tansey, 2002: 579)

The knowledge embedded in the seed can now ‘legitimately’ be managed as a private good (Roa-Rodriguez and Van Dooren, 2008: 187). While these IPRs were intended to create incentives for investment in the private plant breed­ing sector,⁴ they also represented a break in the earlier tradition of unfettered access for a majority of stakeholders (i.e. farmers and small breeders around the world). In particular, it has been argued that IPRs’ power to interrupt the open flow and use of plant genetic resources threatens food security and poverty alleviation in developing countries in particular, by reducing their access to essential PGRFA (Runge and Defrancesco, 2006; Bonadio, 2007). As portrayed by the former UN Special Rapporteur on the Right to Food (UN, 2004), the current PGRFA management system seems to experience: ‘a marked paradigm shift from a system seeking to foster food security on the basis of the free exchange of knowledge to a system seeking to achieve the same goal on the basis of private appropriation of knowledge’. Furthermore, as Boyle puts it

[d] o we know that property rights in this sphere will yield the same surge of productive energy that is claimed for the enclosure of arable land? There, I think the answer is a resounding ‘No’. We rush to enclose ever-larger stretches of the commons of the mind without convincing economic evidence that it will help our processes of innovation and with very good reason to believe it will actually hurt them.

(Boyle, 2003b: 49-50, and footnote 70)

This position is confirmed by Heller (2010) who contends that private owner­ship usually creates wealth, but that too much ownership has the opposite effect in that it creates gridlocks.

To grasp the existing legal framework, as well as its strengths and weaknesses, it is important to consider the effect of two trends (Safrin, 2004). One may envision the TRIPS Agreement as the culmination of a drive for multilateral protection of intellectual property rights affecting genetic resources gener­ally (i.e. strong recognition of property rights over genetic resources). On the other hand, one may also view the CBD as the outcome of a pushback by States - especially developing countries - to re-establish control over their basic resources (Coban, 2004). Indeed, these resources would serve as inputs into the burgeoning new sectors where genetic resources are now being commercially exploited, but states would participate in the benefits of their uses by imposing a benefit-sharing obligation on the user of the resources. However, the imple­mentation of the CBD at the national level has led to the opposite result, i.e. the limitation in the exchanges of genetic resources instead of their expanded access (IUCN, 2004; Garforth et al., 2005). In addition, it has acted as a comple­mentary tool to the appropriation and commodification of biological diversity, reinforcing the TRIPS/UPOV trend. Analysing the interrelationships between the two international regimes of sovereignty and property rights over biodiver­sity, namely the CBD and the TRIPS agreement, Coban confirms indeed that

[w]e have also seen that both property and sovereignty regimes are mani­festations of exclusivity and power relations; that both work together in the commodification of life forms; that the creation and realization of IPRs entails the exercise of state-sovereignty rights; and that the structural relationship between the economic/private actors/property rights and the political/state authorities/sovereignty rights manifests a ‘separation­in-unity’. In contrast to views that see these two regimes of property and sovereignty rights as contradictory, the paper has thus shown that they are complementary in the process of capitalist accumulation.

(Coban, 2004: 755)

Consequently, access and availability are subject to (costly) property rights. Tansey explains clearly how the current IPR regime was fitted into the GATT negotiations,⁵ and how it was created by a small number of actors representing powerful corporate interests and professionals to fit their specific commercial objectives into global public policies. Burris et al. (2005: 31) confirm that it is important to grasp the ins and outs of the establishment of such regime as ‘[u]nderstanding how power is distributed and wielded is a precondition for pro­moting just and efficient governance’. Dutfield and Suthersanen (2008: 22-23) repeat that these developments in intellectual property law began in Europe or North America and are spreading to the rest of the world through agreements such as the TRIPS or bilateral and regional free trade agreements. Consequently, national intellectual property, especially patent, regimes throughout the world are being increasingly held to standards of protection based on those of the most economically and politically influential countries. Based on these facts, Tansey (2002: 580) raises two issues: first, the way global rules are made reflects the clearly imbalanced nature of this process; and second, whether the content of these rules is appropriate (illustrating the ‘one-size-fits-all’ rule problem).

Challenges in the exchange of PGRFA 57 What was once plenty, available and free is now few, hardly accessible and costly. What was once ‘commonly’ held ‘in trust’ (mainly in situ in gene-rich developing countries) by ‘Humanity’ (Cooper, 1993) is now privately owned by monopolistic agrochemical companies (from developed countries) (Kloppen­burg, 2004: 11). As Runge and Defrancesco (2006: 1722) have written ‘there is no question that exclusive rights to private property, real or intellectual, confer tangible benefits to those who hold them’; but they continue on saying that this ‘may require altering the balance in the bundle of these rights, and a reas­sertion of the private and public efficiencies gained from real and intellectual assets treated as common property’.

Revealing this tension and to force a rebalancing in the access to PGRFA, initiatives have bloomed worldwide within different stakeholder groups (farm­ers, academics, breeders, citizens, states and international research centres). These initiatives aim at an alternative path promoting a sustainable agriculture for the collective interest (Altieri and Nicholls, 2012), (i.e. to produce local, diverse, sus­tainable and healthy food)⁶ inter alia by sharing, exchanging and conserving seeds ‘freely’, that is to say in an inclusive manner (which does not mean without any access and management rules). Examples of such initiatives are provided below.

La Via Campesina⁷ is the most active and widespread farmers’ organization worldwide (Claeys, 2014a, 2014b; Lambek et al., 2014). It was born in 1993 and defends small-scale sustainable agriculture as a way to promote social justice and dignity. It strongly opposes corporate driven agriculture and transnational companies that are ‘destroying people and nature’. It comprises about 164 local and national organizations in 73 countries from Africa, Asia, Europe and the Americas. Altogether, it represents about 200 million farmers. Since its birth, one of its objectives is the fight against ‘biopiracy’⁸ of seeds and genetic information.⁹

Academics at Wisconsin-Madison University, along with breeders and farm­ers, have recently created the Open Source Seed Initiative (OSSI)¹⁰ to ‘keep the new seeds free for all people to grow, breed and share for perpetuity, with the goal of protecting the plants from patents and other restrictions down the line’ (Miller, 2014). According to the OSSI website, OSSI is inspired

by the free and open source software movement that has provided alterna­tives to proprietary software, OSSI was created to free the seed - to make sure that the genes in at least some seed can never be locked away from use by intellectual property rights. Through [their] Pledge, OSSI asks breeders and stewards of crop varieties to pledge to make their seeds available without restrictions on use, and to ask recipients of those seeds to make the same commitment. OSSI is working to create a pool of open source varieties, to connect farmers and gardeners to suppliers of open source seed, and to inform and educate citizens about seed issues.¹¹

(The Open Source Seed Initiative, https://osseeds.org/)

Citizens are also grouping themselves worldwide in associations to promote the free conservation, use and exchange pattern¹² for so-called ‘traditional

varieties’.¹³ New movements on old seed varieties development and exchange seek to provide different, more diverse seeds to people to produce differently, more sustainably and to face climate change.¹⁴ Association Kokopelli¹⁵ created in France or the Garden Organic a UK-based association,¹⁶ and its Heritage Seed Library are examples of such initiatives emanating from the ground. Networks of local and national associations of farmers, citizens, NGOs and other actors also group themselves to develop a collective action, inter alia in organic agriculture production and conservation with Reseau Semences Paysannes¹⁷ for example (Demeulenaere, 2014, 2018).

Even states and international research centres collaborate to render more effi­cient the collective management of ex situ conservation and use of PGRFA. For instance, A European Genebank Integrated System (AEGIS) comprises 34 mem­bers and 58 associate members’ agreements, manage a total of 25 291 accessions. AEGIS’ objective (Maggioni et al., 2015 : 14) is to conserve in a collaborative way and at agreed quality standards, the genetically unique and important accessions for Europe of all crops and making them available for breeding and research through [Standard Material Transfer Agreements] (SMTAs) (emphasis added).

These examples clearly show that at all levels (local, regional, national and international), and within different stakeholder groups (farmers, academics, breeders, citizens, states and international research centres), there is a need for ‘dis-enclosing’ and facilitating access to seeds, although it might not be for the same purposes overall. The consequences of enclosure resulting from the current property regime associated to PGRFA need to be overcome.