Biological Open Source and the Recovery of Seed Sovereignty
* Article: Impeding Dispossession, Enabling Repossession: Biological Open Source and the Recovery of Seed Sovereignty. JACK KLOPPENBURG. Journal of Agrarian Change, Vol. 10 No. 3, July 2010, pp. 367–388.
"Corporate appropriation of genetic resources, development and deployment of transgenic varieties, and the global imposition of intellectual property rights are now widely recognized as moments of accumulation by dispossession. Though robust and globally distributed, opposition to such processes have been largely defensive in orientation, and even accommodationist in demands for the development of market mechanisms for compensating those from whom germplasm is being collected.A more radical stance founded on legal and operational mechanisms drawn from the open-source software movement could not only function to impede processes of dispossession, but might actually facilitate the repossession of ‘seed sovereignty’. Implementation of ‘biological open-source’ arrangements could plausibly undergird the creation of a protected commons populated by farmers and plant breeders whose materials would be freely available and widely exchanged, but would be protected from appropriation by those who would monopolize them."
"Ironically, it is agriculture – the very locus classicus of primitive accumulation – that presents a significant and plausible opportunity to both impede accumulation by dispossession and to enact a novel and fertile form of repossession.The particular terrain of struggle I am concerned with is not the landscape per se, however, but the gene-scape and the mind-scape.
The concentration of corporate power in the life sciences industry, the global imposition of intellectual property rights (IPRs), the privatization of public science, the spread of genetically modified (GM) crops, the development of ‘Terminator’ technologies and the proliferation of bioprospecting for both genetic resources and associated cultural knowledge have been explicitly recognized as contemporary moments of primitive accumulation/accumulation by dispossession (Mooney 1979; Kloppenburg 1988; Harvey 2003; Hardt and Negri 2004). The seed itself is very often the object and substance of these instances of appropriation.
As both foodstuff and means of production, seed sits at a critical nexus where contemporary battles over the technical, social and environmental conditions of production and consumption converge and are made manifest. Who controls the seed gains a substantial measure of control over the shape of the entire food system.
In response, over the past decade agrarian, environmental and social advocacy groups and organizations have been working in the context of a highly diffuse but powerful social movement that has had success at slowing – though certainly not stopping – what has come to be broadly understood as the project of corporate ‘globalization’ in agriculture (Schurman and Kelso 2003). A leading edge of this oppositional movement has been the transnational network of farmer groups, organized as La Vía Campesina, that has taken the achievement of ‘food sovereignty’ as its global objective (McMichael 2006; Desmarais 2007). But if ‘food sovereignty’ is to be achieved, control over plant genetic resources must be wrested from the corporations that seek to monopolize them and be restored to, and permanently vested in, social groups and/or institutions with the mandate to sustain them and to facilitate their equitable use. That is, realization of food sovereignty is predicated in no small part on the repossession of ‘seed sovereignty’.
It is my contention here that while resistance to contemporary forms of genetic and epistemic dispossession have had some success, attempts to create progressive alternatives such as farmers’ rights, participatory plant breeding, a revitalized public science, the development of agro-ecology and support for decentralized and community-based seed distribution and marketing have found insufficient traction.
Further, it also seems to me that the mechanisms that have been pursued to address the inequities of such practices as bioprospecting have too often actually functioned to articulate farmers and indigenous communities more closely to the market system rather than to construct new and positive spaces for alternative action. Specifically, inasmuch as they have accepted the principle of privatization – rather than sharing – as their constitutive basis, they have all proved inadequate even at impeding accumulation by dispossession, much less at facilitating the recovery of seed sovereignty.
The homogenizing ambitions of what McMichael (2008, 207) calls ‘the globalization project’, and what Hardt and Negri (2000) name simply as ‘Empire’, are not limited to food and agriculture, but are manifested across all social, economic and biophysical spaces.Whatever the specific context, a central element of the neoliberal initiative is the appropriation of that which is shared in ‘the commons’ or ‘the public domain’ and its transformation into an exclusive, commodified form. Not only are enclosures not unique to land, they are not limited to what are conventionally understood to be ‘material’ resources. Thus, copyright and patent law have been developed to appropriate and commodify the ideas that are the product of human creativity, a process that Boyle (2008, 45) argues is ‘the second enclosure movement . . . the enclosure of the intangible commons of the mind’.
Wherever and whenever they are imposed, enclosures call forth modes of resistance. A particularly powerful and fertile response has been manifested by the ‘free and open-source’ software movement (Raymond 1999; Boyle 2008). Finding their creativity, productivity and contributions to the community limited by copyright, patents and restrictions on exchange of software code, programmers have devised ways to use contract and copyright law to create legal mechanisms that have allowed them to enforce sharing rather than exclusion. Further, the provisions that can be incorporated into open-source and related ‘copyleft’ arrangements can also effectively prevent the appropriation of code by companies that would use it for exclusive purposes. Not only is appropriation of the public domain impeded, but a ‘protected commons’ is established that serves as a relatively autonomous space for the nurturing of diverse forms of innovative, social production.
A variety of analysts have begun to think about the ways in which open-source principles and legal mechanisms might be applied to the production of biological knowledge, technologies and products. I am especially interested in exploring how specifically biological open-source arrangements for plant germplasm have been proposed, and how their deployment might undergird the creation of a protected commons of farmers and plant breeders whose materials would be freely available and widely exchanged but would be effectively protected from appropriation by those who would monopolize them. In what follows, I will examine how biological open source might be concretely operationalized not simply in defence against accumulation by dispossession, but in the service of actual repossession of a protected space into which plant improvement practices and institutions with transformative capacity can be introduced and elaborated."
OPPOSING DISPOSSESSION: ACCOMMODATION OR RESISTANCE?
"The processes of accumulation by dispossession described above have not been unopposed. Much of the resistance that has been pursued on genetic resources over the last 25 years has been undertaken under the rubric of the construct called ‘farmers’ rights’.Written into the 1989 ‘agreed interpretation’ of the FAO’s (Food and Agriculture Organization) International Undertaking on Plant Genetic Resources, farmers’ rights were to have balanced breeders’ rights by conferring on farmers a moral and a material recognition of the utility and value of the labour they have expended, and continue to expend, in the development and regeneration of crop genetic diversity. However appealing in conception, farmers’ rights as they have actually been implemented in international fora have been little more than a rhetorical sleight of hand, a means of diverting activist energies into prolonged negotiations with corporate lobbyists and state bureaucrats. The final result of 12 years of talks was, in 2001, approval of an International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) that neither effectively impedes genetic dispossession nor provides any material recompense for what is being taken (Kloppenburg 2004, 342–4).
A second line of action has involved efforts to exploit an opening in theWTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Article 27.3(b) of TRIPS requires WTO member nations to offer some form of intellectual property rights in plants through patenting, plant breeders’ rights (PBR) arrangements, or an ‘effective sui generis system’. In theory, this option provides nation-states with an opportunity to shape legislation to protect the interests and needs of farmers and indigenous peoples, and to craft IPR arrangements that respect and reward collective invention. In practice, many nations – often under pressure from the USA and other advanced capitalist nations – simply adopt a PBR framework rather than develop an alternative approach (De Schutter 2009, 6).
With international and national-level institutions insufficiently attentive to their needs and rights, communities of farmers and indigenous peoples have in some cases turned to a third mechanism – direct bilateral arrangements – in an effort to establish rights over crop biodiversity, manage bioprospecting and derive a flow of benefit from genetic materials.These have ranged from detailed and highly legalistic models typical ofWestern patent law to frameworks that are more like a treaty than a contract.The evidence produced by a number of assessments of these arrangements shows that not only have they failed to deliver any significant benefits; they have also frequently caused considerable social disruption, and have too often actually been actively damaging to the contracting communities (Hayden 2003; Greene 2004).
It should not be surprising that these modalities have been so ineffective. The existing IPR regime is a juridical construct shaped to serve corporate interests. When confronted with initiatives that would recognize collective invention or recognize community-based invention, companies and their state allies obstruct such efforts or, when forced to accept them, press for their dilution and their incorporation into the dominant system in a way that is minimally disruptive. Moreover, the collective character of the production of crop genetic resources and their wide distribution and exchange almost always makes appropriate allocation of ‘invention’ to a person, to persons, to a community, to communities, or even to a people or peoples an impracticable – and often divisive – task (Kloppenburg and Balick 1995).
Even if some legitimate partner can be identified, it is difficult to see how farming and/or indigenous communities or organizations can provide informed consent to bioprospecting activities and construct exchange agreements adequately sensitive to their own interests. Further, the indeterminacy of the value of any material at the point of collection, the difficulty of distinguishing the magnitude of value added in subsequent breeding and marketing, and the imbalance of power between donor and collector render the flow of any material benefit via such instruments as access fees, licensing fees and royalties uncertain at best.
Beyond these practical difficulties, there is a larger issue. The nature of property is called into question when the individuals or communities identified as prospective ‘owners’ reject the very notion of owning seeds or plants that they may regard as sacred or as a collective heritage (Hurtado 1999; Salazar et al. 2007). IPRs are actually a means of circumventing and obscuring the reality of social production and subsuming the products of social production under private ownership for the purposes of excluding others from use. How can they be anything but antagonistic towards social arrangements that encompass more co-operative, collective, commons-based forms of knowledge production?
If another world is going to be possible, might its development not be facilitated more by the expansion of opportunities for humans to enact the principle of sharing than on the extension of the reach of the principle of privatization? The really radical route to establishing a just and agronomically productive regime for managing flows of crop germplasm is not to arrange payment for access to genetic resources, but to create a mechanism for germplasm exchange that allows sharing among those who will reciprocally share, but excludes those who will not.What is needed is not recreation of the inadequate open-access commons, but creation of a ‘protected commons’."
The BioLinux Strategy
"A number of analysts have begun to look to the FOSS movement as a model for development of biological open-source practices – ‘BioLinuxes’ (Srinivas 2002) – that might be the basis for resisting enclosure of the gene-scape and for reasserting modalities for freer exchange of biological materials and information (Deibel 2006; Hope 2008). Efforts have been made to apply open-source and ‘copyleft’ principles to a variety of bioscience enterprises (Cassier 2006) including mapping of the haplotypes of the human genome (International HapMap Project), drug development for neglected diseases in the global South (the Tropical Diseases Initiative), the standardization of the components of synthetic biology (BioBricks Foundation) and a database for grass genomics (Gramene).
By far the most substantial of such initiatives has been that undertaken by Richard Jefferson and his colleagues at the non-profit CAMBIA. Convinced of the utility of advanced genetics for improving agriculture in marginal and inadequately served communities, he had been frustrated by the narrow uses to which corporations have put genetic engineering and deeply critical of the constraints they place on the sharing of patented technology (Jefferson 2006). Jefferson has formally institutionalized the principles of BIOS (capital ‘I’) in the charter and operations of a programme known as BiOS (lower case ‘I’), an ‘innovation ecosystem’ designed to ‘democratise problem solving to enable diverse solutions through decentralised innovation’ by ensuring ‘both freedom to operate and freedom to cooperate’ in a protected commons (CAMBIA 2009). BiOS involves integrating cutting edge biological research with open-source licensing arrangements that ‘support both freedom to operate, and freedom to cooperate’ in a ‘protected commons’ (CAMBIA 2009). The ‘copyleft’ provisions of the BiOS licence have proven effective in deflecting companies seeking to access CAMBIA’s portfolio of vectors and biotechnologies for the purpose of developing derivative products that would not be shared except on their terms. A protected commons can be – indeed, has been – created.
The seed sector appears to offer some interesting potentials for elaboration of a ‘BioLinux’ approach to open-source innovation (Douthwaite 2002; Srinivas 2002; Aoki 2008). Millions of farmers the world over, mostly but not exclusively in the global South, are engaged in the recombination of plant genetic material and are constantly selecting for improvements. Even more massively than their software programmer counterparts, they are effectively participating in the process of distributed peer production that Eric Raymond has characterized as the ‘bazaar’. Like programmers, farmers have found their traditions of creativity and free exchange being challenged by the IPRs of the hegemonic ‘permission culture’ and have begun looking for ways not just to protect themselves from enclosure and dispossession, but also to reassert their own norms of reciprocity and distributed innovation. Moreover, farmers have potential allies in this endeavour who themselves are capable of bringing useful knowledge and significant material resources to bear.
Although its capacity is being rapidly eroded, public plant science yet offers an institutional platform for developing the technical kernels needed to galvanize recruitment to the protected commons. And in the practice of ‘participatory plant breeding’ there is an extant organizational vehicle for articulating the complementary capacities of farmers and scientists in the North (Murphy et al. 2004) as well as the South (Salazar et al. 2007). Could ‘copyleft’ arrangements establish a space within which these elements might coalesce and unfold into a movement for the recovery of something resembling seed sovereignty?
The recent appreciation of the potential utility of open-source methods for the seed sector was preceded by a similar apprehension on the part of a member of the plant breeding community itself. At the 1999 Bean Improvement Conference, University of Guelph bean breeder Tom Michaels presented a paper titled ‘General Public License for Plant Germplasm’ (Michaels 1999). In it, he noted that as a result of
- . . . the opportunity to obtain more exclusive novel gene sequence and germplasm ownership and protection, the mindset of the public sector plant breeding community has become increasingly proprietary. This proprietary atmosphere is hostile to cooperation and free exchange of germplasm, and may hinder public sector crop improvement efforts in future by limiting information and germplasm flow. A new type of germplasm exchange mechanism is needed to promote the continued free exchange of ideas and germplasm. Such a mechanism would allow the public sector to continue its work to enhance the base genotype of economically important plant species without fear that these improvements, done in the spirit of the public good, will be appropriated as part of another’s proprietary germplasm and excluded from unrestricted use in other breeding programs. (Michaels 1999, 1)
The specific mechanism that Michaels goes on to propose is a ‘ General Public License for Plant Germplasm (GPLPG) ’ that is explicitly modelled on a type of licence common to open-source arrangements in software. This mechanism is simple, elegant and effective. It can be used by many different actors (individual farmers, communities, indigenous peoples, plant scientists, universities, nongovernmental organizations, government agencies and private companies) in many places and diverse circumstances. Properly deployed, it could be an effective mechanism for creating a ‘protected commons’ for those who are willing to freely share continuous access to a pool of plant germplasm for the purposes of ‘bazaar’-style, distributed peer production."
From the conclusion
"Enclosure of the agricultural commons was the original and archetypal form of primitive accumulation. Contemporary processes of accumulation by dispossession continue not only with regard to land itself, but are now applied to the gene-scapes and mind-scapes within which farmers – and many plant scientists – have been accustomed to freely exchange both genetic resources and ideas. The principal vehicles through which this appropriation is taking place are the development and deployment of new agricultural technologies and the global extension of laws and regulations governing IPRs, which serve the interests and intentions of agriscientific capital.
Certainly the sorts of dispossession I have described here constitute substantial challenges to the independence and well-being of farmers worldwide. They represent an especially sharp threat to many resource-poor farmers in the global South, who depend on their ability to save and replant seed as a condition of their very survival. For commercial farmers in the North and South, dispossession involves being bound every more closely and subserviently to capital and seeing what degrees of freedom they yet retain being further eroded as what Marx (1977, 899) called the ‘silent compulsion of economic relations’ pushes them inexorably into the position of the propertied labourer.And inasmuch as all of us on this planet eat and benefit from the myriad ecosystem services provided by the biosphere, most of the world’s population is rendered the poorer as enclosures of genes and ideas foreclose the options available to us by empowering a narrow set of decision-makers sitting in the boardrooms of the corporate ‘Gene Giants’.
What is at stake in the genetic and epistemic dispossession now under way is nothing less than control over one of humanity’s most fundamental means of production in a time of profound uncertainty and challenge. Food must be provided for a global population that is going to increase to 9–10 billion by 2050. How can this be accomplished in a period when, as a result of climate change, the biosphere is radically altering in ways that we understand only poorly? Who will make the critical decisions about what crop varieties are developed to respond to the rapidly evolving circumstances that confront us? Will it be the executives of Monsanto, DuPont and Syngenta, making determinations based on market signals and profitability and directing their breeders and genetic engineers to give those of us who can pay cheap feed for our cattle and biofuels for our cars? Or could it be a much broader set of decision-makers responsive to a wide set of goals and constituencies, who factor social justice and sustainability into the way they recombine plant genes? Enclosures of genetic resources and creative capacity narrow the range of technical and social options available to humanity at a time when creativity and ingenuity are most sorely needed.
The aggressions of the neoliberal project must, of course, be impeded whenever possible. However, resistance must be complemented by creative actions that are not just reactions to corporate/neoliberal depredations, but which are offensive, affirmative, positive, proactive undertakings designed to repossess and maintain alternative, (relatively) autonomous spaces. Biologial open source appears to offer some interesting possibilities.We cannot now say whether or not open-source movements might be capable of catalyzing and/or contributing to significant changes in capitalist property relations.The point is that space for change could be created by using existing property relations themselves. In a kind of institutional Aikido, open-source mechanisms could use the structure and the momentum of intellectual property and contract law itself to move that system in directions that its corporate architects did not intend and that undermine their hegemony.
The proximate manifestation of repossession of the gene-scape and mind-scape might be something called ‘seed sovereignty’. This would be comprised of a set of linked features that together constitute a coherent and robust structure.The central and organizing feature of this structure would be a commitment to institutionalized recognition of genetic resources and associated cultural/indigenous/community knowledge as a broadly social product, a collective heritage of farming communities that is to be freely exchanged and disseminated for the benefit of all. Seed sovereignty therefore entails creation of a legally defined space in which sharing is unimpeded but is protected from appropriation by monopolists. In this kind of repossessed, protected commons, farmers could continue to apply their ingenuity in the service of an agriculture that sustains not only their communities but the environment. In this, farmers would not be expected to work alone. Public scientific institutions would co-operate in the enterprise of plant breeding and improvement, albeit in a more equitable manner that embraces participatory engagement with farmers themselves and is directed to the production of diverse range of socially and environmentally sustainable plant varieties.
Achieving repossession, manifested as seed sovereignty, will not be easy. What is required is simultaneous and linked development of concepts and applications among farmers, plant scientists, seed vendors, public institutions and civil society advocacy groups in the face of corporate and state opposition. Biological open source is no panacea. It is a tool, one means of beginning a process. But it is a plausible and fecund modality for impeding further dispossession and for the pursuit of concrete initiatives for the actual repossession of a relatively autonomous space within which practices and ideas with transformative potential can be enacted. Should we not, therefore, take the advice offered by farmer, activist and McDonald’s trasher José Bové (2005)? He has suggested that ‘We should sit down with the legal people who drew up the Creative Commons licenses and see whether farmers could use a similar approach with seeds.’Yes, let’s talk."