Category: Intellectual property rights

I’ve been tremendously privileged to be at the Seed Savers Exchange 33rd Annual Campout and Conference in Decorah, Iowa. It’s a wonderful gathering of people interested in saving and sharing seeds, with all sorts of workshops, practical classes, and speakers. One of this year’s speakers was Jack Kloppenburg, of the University of Wisconsin. Kloppenburg wrote First the Seed (now available in a second edition), which is the best analysis of the economic nexus that surrounds seeds and plant breeding. He told the audience he was “here to share an idea, just like you guys share seeds.” So I’m sharing his idea: the Open Source Seed Initiative.

Kloppenburg set out his ideas in a 2010 paper in the Journal of Agrarian Change. In it, he rejects what he calls the “accomodationist” approach to patents and other efforts to restrict access to plant genetic resources. Accomodationists, he says, seek “market mechanisms for compensating those from whom germplasm is being collected”. Instead, he proposes a more radical approach derived directly from the open source software movement. The Open Source Seed Initiative prevents the privatisation of plant genetic resources and, in Kloppenburg’s view, also “might actually facilitate the repossession of ‘seed sovereignty’”.

Open source software is accompanied by a licence that encourages people to share it and create new programs with it, and at the same time prevents anyone from releasing a program that uses the code under any other form of licence. The creativity embedded in the code cannot be privatised. Kloppenburg and a group of like-minded seed companies, plant breeders and academics want to apply similar licences to plant genetic resources.

Kloppenburg is at pains to point out that actually he has nothing against plant patents, other intellectual property rights, contractual “bag-tags” or any of the other mechanisms that commercial breeders use to enforce ownership of their products.

“The problem isn’t the tool,” he told the conference. “The problem is who is using the tool and why.”

There have been three meetings so far to discuss the Open Source Seed Initiative, and although the details have yet to be worked out the underlying concept is simple. An OSSI licence allows me to give you seed (or any other form of plant genetic resources) with only one condition: that you have to share it, and anything you create with it, with exactly the same condition attached.

“It becomes viral,” Kloppenburg explained. “Now ‘viral’ is kind of problematical for people in agriculture,” he conceded, “but it is. It propagates.” As it does so, it creates a protected commons, as opposed to an open commons, of things that can be freely shared but not privatised. That is OSSI’s great potential strength, according to Kloppenburg.

“People who will share are unrestricted. People who won’t share aren’t interested.”

The general idea of a protected commons for plant genetic resources bubbles up from time to time, Kloppenburg told the audience, citing Richard Jefferson’s CAMBIA initiative as one manifestation. He credits the germ of OSSI to Tom Michaels, a bean breeder then at the University of Guelph in Canada, who in 1999 proposed the idea of a general public licence for plant germplasm, or GPLPG.

Kloppenburg stressed that the lack of a monopoly does not mean a lack of payments. As with open source software, there are many ways in which plant breeders and others can seek payment for their services. There could be different forms of OSSI licence, allowing royalty payments to the breeder on the first transfer. And seed companies would be free to charge for OSSI-protected varieties.

Many details remain to be worked out. Who will police the licences, and how? Will it be possible to discover traits shared under OSSI and then incorporated into privatised varieties? How could that be proved? And the global plant genetic resources community has yet to start a serious discussion of the idea. That may prove a hard sell after the long struggle to obtain the current International Treaty on Plant Genetic Resources for Food and Agriculture, which Kloppenburg doesn’t think is working.

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.

The current material transfer agreement that accompanies plant germplasm under the International Treaty has some elements of an open source licence about it – but could go much further. Is there any chance CGIAR genebanks, whose holdings constitute the bulk of germplasm available under the International Treaty, could actually lead the way to the just and productive regime that OSSI is looking for, or are they too beholden to the private sector?