Plants, Property, and the Promise of Open Source Biology

• Jack Kloppenburg, “Seeds, sovereignty, and the Vía Campesina: Plants, property, and the promise of open source biology“, prepared for the Workshop on Food Sovereignty: Theory, Praxis and Power, 17-18 November 2008, St. Andrews College, University of Saskatchewan, draft dated 22 November 2008, 34 pp.

URL = http://www.drs.wisc.edu/kloppenburg/_publications/2008%20Se%20eds%20and%20Sovereignty.pdf

Summary

Jack Kloppenburg:

"(“Would a Biolinux approach be attractive to farmers and public plant scientists in the North? On one hand, these Northern actors have a considerable volume of political and institutional capital to deploy in working toward seed sovereignty. The consequences of continued inaction cannot be much clearer than they are now, and a Biolinux approach at least offers a refreshingly aggressive orientation. On the other hand, both farmers and public sector scientists are deeply embedded in existing norms and practices and this profound path dependence makes a radical change appear impossible. They are actually less likely than their counterparts in the South to recognize, understand, and act on the structural conditions that entangle them.” (http://ssrn.com/abstract=1390273)

Excerpts

excerpt (pp. 16-17):

“The specific mechanism Michaels goes on to propose is a “General Public License for Plant Germplasm (GPLPG)” that is explicitly modeled on the GPL developed by the FOSS movement for software.

For Michaels, creating the GPLPG involves a straightforward adaptation of the GPL. Plant scientists would supply germplasm to other parties accompanied by a Materials Transfer Agreement (MTA) specifying the conditions under which the material is being made available. Those conditions would include copyleft provisions permitting (indeed, encouraging) further development and recombination and improvement of the germplasm, but requiring that any lines or cultivars “derived in whole or in part from GPL plant germplasm must likewise be made available to others under GPLPG and without further restriction for use in subsequent breeding programs” (Michaels 1999).

This mechanism is simple, elegant, and effective. No new law is required; like the “shrinkwrap” license already common to software and commercial seed sales, the GPLPG is based on existing contract law. No patenting or PBR protection is necessary; again, the GPLPG is based on existing contract law, not on IPR statutes. The GPLPG is enforceable in existing law; just like the “shrink-wrap” license already common to software and commercial seed sales (Technology Use Agreements), there are statutory legal consequences for those who violate the license provisions. The vehicle for the GPLPG, the MTA, is familiar to the plant science community; the MTA is now the standard mechanism for germplasm exchanges in universities, government agencies, private companies, and the international system and scientists and administrators are accustomed to its use.

The GPLPG can be used for patented or otherwise IPR protected materials; if an owner chooses to release IPR-protected materials under the GPLPG, those IPR provisions are not enforced against GPLPG licensees. The GPLPG is compatible with a flow of benefits to the breeder; royalties may be charged for reproduction and distribution of lines, but not on subsequent uses or distributions by others. The GPLPG is compatible with commercial seed sales; seed of GPLPG lines maybe reproduced and sold, but the vendor has no claim on subsequent uses or distributions. GPLPG seed will not be attractive for appropriation and incorporation into proprietary breeding programs; the “viral” nature of the license requires that any derivative lines developed using GPLPG germplasm must also be distributed under the GPLPG, thus eliminating the possibility of capturing monopoly profits from downstream and derivative applications and uses.

In sum, the GPLPG is sufficiently simple to be used by many different actors (individual farmers, communities, indigenous peoples, plant scientists, universities, non-governmental 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.” (https://colonos.wordpress.com/2009/02/27/seeds-sovereignty-and-the-via-campesina-plants-property-and-the-promise-of-open-source-biology/)