Seed Commons

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= concept, and name of a particular blog

Concept

Example

For an example, see the Bionatur campaign in Brazil


History

The Seed Diversity Protection Movement

Frances Moore Lappe:

"Just as dramatic is the struggle for the seed. More than 1,000 independent seed companies were swallowed up by multinationals in the past four decades, so today just three—Monsanto, DuPont and Syngenta—control about half the proprietary seed market worldwide.

Fueling the consolidation were three Supreme Court rulings since 1980—including one in 2002, with an opinion written by former Monsanto attorney Clarence Thomas—making it possible to patent life forms, including seeds. And in 1992 the Food and Drug Administration released its policy on genetically modified organisms, claiming that “the agency is not aware of any information showing that [GMO] foods…differ from other foods in any meaningful or uniform way.”

The government’s green light fueled the rapid spread of GMOs and monopolies—so now most US corn and soybeans are GMO, with genes patented largely by one company: Monsanto. The FDA position helped make GMOs’ spread so invisible that most Americans still don’t believe they’ve ever eaten them—even though the grocery industry says they could be in 75 percent of processed food.

Even fewer Americans are aware that in 1999 attorney Steven Druker reported that in 40,000 pages of FDA files secured via a lawsuit, he found “memorandum after memorandum contain[ing] warnings about the unique hazards of genetically engineered food,” including the possibility that they could contain “unexpected toxins, carcinogens or allergens.”

Yet at the same time, public education campaigns have succeeded in confining almost 80 percent of GMO planting to just three countries: the United States, Brazil and Argentina. In more than two dozen countries and in the European Union they’ve helped pass mandatory GMO labeling. Even China requires it.

In Europe, the anti-GMO tipping point came in 1999. Jeffrey Smith, author of Seeds of Deception, expects that the same shift will happen here, as more Americans than ever actively oppose GMOs. This year the “non-GMO” label is the third-fastest-growing new health claim on food packaging. Smith is also encouraged that milk products produced with the genetically modified drug rBGH “have been kicked out of Wal-Mart, Starbucks, Yoplait, Dannon, and most American dairies.”

Around the world, millions are saying no to seed patenting as well. In homes and village seed banks, small farmers and gardeners are saving, sharing and protecting tens of thousands of seed varieties.

In the United States, the Seed Savers Exchange in Decorah, Iowa, estimates that since 1975 members have shared roughly a million samples of rare garden seeds.

In the Indian state of Andhra Pradesh—known as the pesticide capital of the world—a women-led village movement, the Deccan Development Society, puts seed-saving at the heart of its work. After the crushing failure of GMO cotton and ill health linked to pesticides, the movement has helped 125 villages convert to more nutritious, traditional crop mixes, feeding 50,000 people.

On a larger scale, Vandana Shiva’s organization, Navdanya, has helped to free 500,000 farmers from chemical dependency and to save indigenous seeds—the group’s learning and research center protects 3,000 varieties of rice, plus other crops." (http://www.thenation.com/article/163403/food-movement-its-power-and-possibilities?)


2.

"Why in the world would seeds be part of this discussion, you might ask? Seeds became ‘intellectual property’ under WTO provisions that allow the patenting of life forms. Villagers may be required to pay to plant the seeds and grains which they have grown and shared from time immemorial, or to use animal products which they have always employed as medicine. Resourceful profiteers have slapped down patents on everything from ancient Indian Basmati rice to Mexican yellow beans. (The latter case is the epitome of bio-piracy: Larry Proctor, the president of a Colorado-based seed company, bought some dried yellow beans in Sonora, Mexico, in 1994. Proctor applied for, and was granted, a U.S. patent and a U.S. Plant Variety Protection certificate on the bean, which he renamed Enola. The patent made it illegal for unlicensed sources in the U.S. to grow, sell, import, or use the Enola bean. Proctor then sued 16 Colorado-based farmers and small seed companies for illegally growing and selling 'his' bean. Some years later, the U.S. Patent & Trademark Office revoked the patent.)

Farmers and gardeners the world over are protecting and sharing their common inheritance. They are growing seed libraries (“We refuse to call them ‘banks',” one Native farmer told us) to save and share native and heirloom seeds with all who want to grow them. Most international gatherings of peasants and small producers involve elaborate seed ceremonies, where people from one region give their native varieties to others: sweet tamarind seed from Thailand, for example, or dinorado rice from the Philippines. Sometimes they create a little piece of the commons on the spot, planting a garden together with those repositories of life from their collective homelands.

One seed-protecting initiative is the Bija Satyagraha movement in India. Bija means 'seed', and satyagraha refers to non-violent resistance, a term made popular by Gandhi during the Indian freedom struggle. This movement is shielding farmers’ traditional seed rights from genetically modified seeds and private patents. Beyond the aforementioned seed libraries and exchange programs, the movement also organizes seed fairs to share information and strategies. In the spirit of the 1930 Salt Satyagraha, or salt march, when thousands of Indians walked 240 miles to the sea to collect salt and thus defy the British salt tax, Seed Satyagraha also calls on farmers to boldly declare non-cooperation with Indian seed patent laws. Five million peasants have done so. Furthermore, Bija Satyagraha sponsors tribunals against WTO-model copyright policies and laws which deny farmers their seed rights; in these, farmers and researchers present testimony on the damning impacts of these laws on their livelihood.

In order to further preserve a seed commons, the U.S.-based Organic Consumers Association has organized a Millions against Monsanto campaign. They have launched legal and policy challenges to the agribusiness giant that now holds almost 650 seed patents. Each patent means that farmers are no longer legally entitled to plant and save that seed variety, but instead must buy it anew each year from Monsanto. While the fight against the corporate super-power is an entrenched one, the activists have scored some victories, such as the 2007 revocation by the U.S. Patent and Trademark Office of four Monsanto patents on genetically modified seeds. (The reason is that Monsanto had used those patents to intimidate, sue, and in some cases bankrupt, farmers for the crime of saving seeds from a crop to plant the following year, a practice that goes back to the beginning of agriculture.) In 2007, the European Patent Office revoked Monsanto’s species-wide patent on all genetically modified soybeans, after a legal challenge filed by Greenpeace and others." (http://otherworldsarepossible.org/defending-global-commons)


On the (legal) history of Seed Commons and their enclosure

Keith Aoki:

"Seeds have been exchanged for centuries without being conceived as objects of intellectual property. Prior to the twentieth century, seed germplasm was recognized as valuable, but treated as a “free” resource— characterized as that which is the “common heritage” of humankind. The common heritage treatment of germplasm was not without serious problems, not the least of which was to facilitate the outflow of germplasm from equatorial centers of genetic diversity during the era of colonial expansion, where the botanical gardens in countries like England helped lay the foundation for plantation economies.8 Even after former colonies gained independence, the patterns of germplasm flow ran from the former colonies into the laboratories, genebanks, and testing fields of the developed countries. Within developed countries, farmer landraces and germplasm emerged protected by intellectual property laws.


II. SEED GERMPLASM, 1980–2000: FROM “COMMON HERITAGE” TO “SOVEREIGN PROPERTY”

This part analyzes and critiques developments such as the 1992 Biodiversity Conference and the resulting Convention on Biological Diversity, the creation of the World Trade Organization (WTO), the ongoing implementation of TRIPS, and the 2001 Doha Round and its subsequent collapse in Cancun, Mexico, in the summer of 2003. Also worthy of consideration is the network of international agricultural research stations and seed conservation banks administered by the Rockefeller Foundation Consultative Group on International Agricultural Research, as well as the role of the Food and Agriculture Organization (FAO) of the United Nations.


A. 1983: International Undertaking on Plant Genetic Resources for Food and Agriculture

The FAO became a flashpoint for debates between the countries of the North and the South regarding the legal treatment of PGRs. Over the United States’ objections,14 the FAO adopted the IUPGR in 1983 and also established an FAO Commission on Plant Genetic Resources (CPGR).15 The IUPGR and the CPGR were spearheaded by a group of developing countries and were supported by an array of NGOs allied with the International Coalition for Development Action.

The IUPGR was a nonbinding agreement that set out rules and standards for exchanging and conserving seeds and plant genetic resources. Importantly, the IUPGR took the position that PGR were to be considered the common “heritage of mankind.” The IUPGR’s “common heritage” principle was controversial, as it delineated an extremely broad definition of PGR subject to the undertaking. Under this principle, commercial plant varieties protected by breeders’ rights and plants protected by patents were

Despite restrictions such as the passage of the U.S. Plant Patent Act (PPA) in 193010 and the use of trade secrecy from the 1920s to keep hybrid plants proprietary,11 the mid-twentieth-century Green Revolution was largely underwritten by the free use and exchange of germplasm. The seed germplasm was exchanged from and between International Agricultural Research Centers (IARCs) premised on the idea that such germplasm was the common heritage of (hu)mankind. However, by the last quarter of the twentieth century, the common heritage treatment was largely supplanted by the notion and practice in which human intervention creating new plant varieties results in patents or other forms of exclusive intellectual property.

to be treated in the same way as traditional landraces and wild plants—as common heritage. Therefore, these commercial plant varieties would be freely accessible to farmers and breeders around the world.


B. 1989: The Keystone Dialogues and “Farmers’ Rights”

Unsurprisingly, countries such as the United States flatly refused to participate in the IUPGR, resulting in a stalemate until 1989, when the developing and developed countries were able to reach a preliminary agreement on three principles related to PGR. The Keystone Dialogues first came to the consensus that cultivated plant varieties covered by plant variety protection rights would not be considered freely accessible, therefore asserting the availability of intellectual property rights in plant varieties.19 Second, the parties agreed that common heritage or free accessibility to farmers’ land races20 did not mean access free of charge; that is, it might be possible to design a regime where plant breeders could be obligated to pay for plant tissue and seeds collected in a particular country’s territory.21 Finally, the parties adverted to a vague idea of farmers’ rights.22 These rights were left undefined, but the FAO acknowledged that some sort of recognition should be due for the millennia of farmers’ efforts spent in domesticating contemporary agricultural staple crops and varieties.

The concept of farmers’ rights was an idea proposed by a Canadian nongovernmental organization (NGO), the Rural Advancement Foundation International (RAFI).24 RAFI’s proposal of the concept was meant to embody concerns over genetic erosion and the North-South “gene drain.” As envisaged by RAFI, farmers’ rights would be a new type of collective intellectual property rights, meant to counter Plant Breeders’ Rights (PBRs). Farmers’ rights theoretically would allow farmers to receive compensation from an international genetic conservation fund to be administered by the FAO.


Farmers’ rights advocates focused on the following four issues:

(i) the right to grow, improve and market local varieties and their products;

(ii) the right to access improved plant varieties and use farmsaved seeds of commercial varieties for planting and exchange;

(iii) the right to be compensated for the use of local varieties in the development of new commercial products by outsiders; and

(iv) the right to participate in decision-making processes related to acquir[ing], improv[ing] and us[ing] [Plant Genetic Resources for Food and Agriculture] . . . .


In 1989, the FAO adopted a new interpretation of the 1983 IUPGR that declared that PBRs were compatible with common heritage and also recognized the principle of farmers’ rights—that most of the world’s valuable germplasm came from the developing world and was the result of thousands of years of selection by farmers, and that some form of compensation should be paid for use of that germplasm. However, neither the international fund nor farmers’ rights crystallized in the period following 1989, in large part because contributing to the fund was voluntary.


C. 1961, 1978, 1991: International Union for the Protection of New Varieties of Plants

In 1961, a group of European nations met to create the International Union for the Protection of New Varieties of Plants (UPOV),28 which was designed to create a legal basis for PBRs in privately bred varieties of plants.

The UPOV protections went further than those of the PPA, which protected only asexually reproduced plants. The UPOV protected all varieties of plants as long as they were (1) new, (2) distinct, (3) uniform, and (4) stable.

The United States passed its own form of plant variety protection—the PVPA—in 1970 at the height of the “Green Revolution.”31 These pieces of legislation were indications that plant breeding in North America and Europe was becoming increasingly dominated by private plant breeders.

Under the 1978 UPOV, local varieties grown by farmers were considered open access because they lacked the uniformity and stability required for protection. The 1978 UPOV, however, did have a “farmers’ exemption” that allowed any farmer who purchased seeds of a protected variety to save seeds from those crops for subsequent replanting without paying additional royalties.32 The seed industry lobbied many governments heavily to limit the 1978 UPOV farmers’ exemption.

In the 1991 UPOV, farmers’ rights were curtailed as follows:

(1) Article 15.2 made farmers’ rights optional, with each UPOV member nation free to decide whether or not to implement such rights;

(2) the farmers’ privilege to save and exchange seed was eliminated;34 (3) plant breeders’ exemptions were narrowed in Article 14.5, which meant that “essentially derived” varieties cannot be marketed without permission from the original plant breeders.


D. 1992: Convention on Biological Diversity

The CBD,36 adopted at the 1992 United Nations Conference on Environment and Development in Rio de Janeiro, Brazil, was aimed at conserving biodiversity, but has had direct implications for the issue of intellectual property rights in PGR. The CBD was a multilateral agreement resulting from a process that arose out of environmental concerns in the Organization for Economic Cooperation and Development (OECD) member countries. The CBD took the position that economic incentives are necessary in order for developing countries to conserve their biodiversity, rather than seek quick gains through activities—such as deforestation—that result in the destruction of biodiversity. While the CBD did not focus on PGR for food and agriculture, it addressed general concerns relating to the conservation of all plants and other organisms in the global ecology. Many of the same divides and controversies that surfaced in the FAO debates over the IUPGR also surfaced in the CBD negotiations.


Some of the concerns cited included:

(1) the North-South divide over distribution of the benefits of biological organisms;

(2) the propriety of granting intellectual property rights over living organisms; and

(3) technology transfer questions regarding access to technologies necessary to utilize the benefits of such biological organisms.

However, the CBD differed in one key respect from the IUPGR. Unlike the IUPGR, the CBD acknowledged that many nations had already granted intellectual property protection for biotechnological inventions. Additionally, the CBD did not take a common heritage approach to biological resources, but applied the notion that countries of origin of biological resources exercised sovereignty over plants, animals, and microorganisms within their national boundaries. With PGR characterized as a species of sovereign national property, the CBD posited that this sovereign property was a basis for informed consent (prior to extraction/exploitation) and benefit sharing.


E. 1994: Agreement on Trade Related Aspects of Intellectual Property Rights

In 1986, the initial focus of the Uruguay Round, and specifically TRIPS,43 was an attempt by industrialized nations to secure multilateral protection for new technologies, pharmaceuticals, and copyrighted media works against unauthorized imitation or duplication.44 However, by 1990, intellectual property protection for biological organisms had emerged as a major negotiating point, as newly patented biotech inventions began making their way to the market. Additionally, the phenomenal spate of mergers and acquisitions in the chemical and pharmaceutical economic sectors that began in the 1970s continued with these companies swiftly moving into the areas of genetically engineered plants, plant breeding, and crop development. The same companies aggressively acted to secure some form of global intellectual property protection for their new innovations.

These claims for more expansive intellectual property protection were met with opposition from some developing countries on public interest grounds.48 TRIPS was signed by 125 countries in 1994 and mandated that PGR be accorded either plant variety protection, patent, or effective protection under a sui generis system.49 These signatures meant that many of the gains made by the developing world via the CBD were thus weakened by TRIPS.


F. 2001: International Treaty on Plant Genetic Resources for Food and Agriculture

Although the FAO’s 1983 IUPGR was nonbinding, farmers’ rights were recognized in an FAO resolution in 1989 that proposed “establishing a mandatory international fund to support conservation and utilization of [PGR] through various [programs] particularly, but not exclusively, in the Third World.”50 This fund was implemented in the 1990s, and, as a result, the FAO decided to institute farmers’ rights through a global plan of action adopted in Leipzig, Germany, in 1996.51 The utility of the global plan of action was ultimately hampered by a lack of sufficient funding.

In 1994, the FAO initiated an intergovernmental round of negotiations meant to revise the 1983 IUPGR in order to

(1) make it legally binding, and

(2) harmonize its provisions with the 1992 CBD, which was at odds with the 1983 IUPGR’s broad definition of “common heritage” (the CBD had stressed the notion of PGR as sovereign property.)

In November 2001, 116 member nations, including the United States, signed a new agreement—the International Treaty on Plant Genetic Resources. The ITPGR reaffirms the commitment to farmers’ rights as protecting traditional knowledge relevant to PGR, recognizing a right to equitable benefit sharing, and recognizing the right to participate in decision making at national levels on matters related to conservation and use of PGR.54 However, the ITPGR allowed the most important issue with regard to farmers’ rights—the right to use, exchange, and sell farm-saved seeds of traditional as well as improved varieties—to remain within the sole discretion of national governments. Instead, the ITPGR sought to achieve farmers’ rights by exchanging information, facilitating technology transfer and capacity building, and sharing the benefits, monetary and otherwise, of the commercialization of PGR.

The ITPGR addresses intellectual property rights in PGR by proposing the creation of a multilateral system (MLS). Under the MLS, a recipient of germplasm60 received through the MLS via one of the international seed banks “shall not claim any intellectual property or other rights” that limit access to PGR “in the form received from the [MLS].”61 This means that seed germplasm in the original form received from a seed bank cannot be protected by intellectual property rights. However, any individual genes, advanced lines, cells, particular DNA sequences, and compounds derived from such germplasm may be protected. The stipulation that germplasm “in the form received” will be ineligible for protection as intellectual property, works to substantially undermine the farmers’ rights provisions of the ITPGR.62 The ITPGR does not recognize any rights in individual farmers/breeders who develop new plant varieties through systemic practices, although institutional public and private plant breeders continue to enjoy protection.63 Furthermore, while the ITPGR is more comprehensive in its treatment of farmers’ rights, it does little to offer effective implementation or vindication of those rights." (http://ssrn.com/abstract=1390273)


Discussion

James K. Boyce:

"Crop genetic diversity as the common heritage of humankind

As a final example of how we can apply the common heritage principle to real-world challenges, I want to talk about seeds – specifically about rice, wheat, maize and the other crops on which we depend for our survival. These crops originated through what Charles Darwin called “artificial selection,” whereby the earliest farmers saved and replanted seeds of those plants over successive generations that did best at providing palatable and nutritious food. In this way, ultimately they bred new species that would never have come into existence without the guiding hand of human intervention.

This is perhaps the greatest example in history of what economists sometimes call “investment in natural capital”: human actions that positively enhance the ability of the environment to sustain our well-being in the long term.

Over the millennia since their ancestors first domesticated plants, generations of farmers have bred hundreds of thousands of diverse crop varieties. This diversity is what enables plant breeders today to respond to outbreaks of new insect pests and crop diseases by finding resistant varieties.

Crop diversity is sustained in the field largely by small farmers, most of them in the global South – maize farmers in southern and central Mexico; rice farmers in India, Bangladesh and southeast Asia; potato farmers in the Andes; and so on. In so doing, these farmers provide an enormously valuable service to humankind, a service for which they currently receive no compensation.

In this case, the fair sharing of our common heritage does not only mean protecting crop diversity from a genetic version of the enclosure movement that privatized common agricultural lands in 18th century Britain. It also means devising ways to reward small farmers, above all in the historic centers of crop genetic diversity in Latin America, Asia and Africa, for their vital contributions to long-term human food security.

There is much in common between small-farmer movements around the world, many of which have banded together under the umbrella of the international alliance known as Via Campesina, and the movement for environmental justice and efforts to forge a fair climate policy here in the United States.

In these and other diverse arenas, these new environmentalists are upholding the moral principle that the environment, as our common heritage, should be shared fairly within the present generation and cared for responsibly on behalf of future generations." (http://bollier.org/environment-our-common-heritage)


Blog

"A commons is a shared resource or space that benefits everyone. Historically towns were built around the square – a place for discourse and debate, for celebration and protest. Natural resources – like seed – were also held in commons. We live in a time when the commons is being lost to commodification. Seed Matters wants to revive a sense of shared purpose, benefits and responsibility when it comes to seed….join with us in The Seed Commons." (http://www.seedmatters.org/the-seed-commons/)