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Seed IP laws: setting the context

The case for unrestricted saving of plant seed varieties is based on the premise of “farmer’s privilege”. Briefly si

Updated 23 Dec 2019

The case for unrestricted saving of plant seed varieties is based on the premise of “farmer’s privilege”. Briefly simplified, the concept is rooted in tradition and practice by growers to save seed varieties of annual crops for plantation in next season.

Do growers have the right to save varieties grown by their farming families for generations? Common sense agrees, considering that open-pollinated true-to-type varieties may be native to geographic locations, but certainly are not the exclusive property of any one economic agent. The argument can also be extended to non-traditional hybrid varieties, as the practice of carefully crossbreeding two different parent plants to produce new traits is as old as farming itself.

The protection to re-use - whether open-pollinated ‘true-to-type’ or cross-bred ‘hybrids’ - is also not unknown to law either. Afterall, the 2001 International Seed Treaty in tandem with Convention on Biological Diversity, recognize growers’ rights to ‘traditional knowledge’, ‘equitable participation in utilization of plant genetic resources”, and ‘to participate in decision making on national level”.

These conventions are based on principles of ‘benefit sharing’, which has become a clarion call for small-farmer advocacies, particularly in developing countries, ever since the tide changed in 1970s with the advent of biotechnology revolution. The watershed moment came in 1981 with Diamond v Chakrabarty, when US Court of Customs & Patent Appeals declared that the “fact that [living] organisms are alive is without legal significance for purposes of patent law.”

That was the first time when a patent for a genetically modified living organism was granted based on the principles of technological innovation. Previously, living things were generally understood to be non-patentable subject matter under customs law.

Global attitudes to seed-saving have seen a transformation in the decades since. Plant-variety protection and intellectual property laws are believed to be closely intertwined, mandated on WTO members under the Article 28 of TRIPS agreement that explicitly prohibits “planting, harvesting, saving, re-planting, and exchanging seeds of patented plants, or of plants containing patented cells and gene”.

That leads to a second rhetorical question: do biotechnology companies not have the exclusive intellectual property ownership of modified seeds that require years of planning, resource, and R&D spending? The common-sense answer, clearly is, yes. Moreover, because open-pollinated traditional varieties and genetically modified types appear to be completely distinct breeds – at least in definition – the two do not appear to be at loggerheads with each other.

Yet, that distinction only appears to work on paper. Consider that Pakistan adopted Seed Act (Amendment) and Plant Breeder’s Right Rules five and two years ago respectively, acknowledging intellectual property ownership of breeders to innovation in seed genome. However, the development has not been without opposition.

Critics have challenged the legislation not only on technical grounds – seed certification arguably becoming a provincial subject under 18th amendment – but also on material grounds. Petitioners argue that innovation by biotech companies essentially builds on the foundation of invaluable genetic resource provided by hundreds of years of plant-breeding by traditional growers, and at best represents a slight “alteration” to plant variety – sardonically confirmed by the use of term “modified” in GMO, not entitled to exclusive property right ownership.

This column aims to set the context of debate surrounding plant breeding law; the next column will show how the debate is divorced from facts on the ground, despite the fair acknowledgement of grower’s traditional right to native plants and varieties thereof.