Can smallholder farmers benefit from intellectual property (IP) rights and patents on seeds?

Johannes Kotschi

Open-source seed as an alternative to patenting

For millennia, crop seeds have been a common good. Around the globe, crops have been cultivated, enhanced and bred by farmers, which has led to a rich diversity of crop varieties. However, over the past 70 years, plant genetic resources in agriculture have been increasingly privatised, which has been made possible by intellectual property rights such as patents and plant variety protection; market concentration has been an inevitable consequence.

Today, three corporations – notably agrochemical companies – control more than 60% of the global commercial seed market. This has created uniformity of seeds and uniformity in agricultural production, has stifled urgently needed innovation and has made farmers, and wider society, increasingly dependent on a few companies, with diminishing choice and rising costs for seeds.

And yet, uniform farming systems, with only a few crops and varieties spread over large areas of land, are diametrically opposed to what is required to cope with the global challenges in agriculture: adaptation to climate change, increase in agricultural production to feed an expected 11 billion people, and the transformation of agrochemical-based agriculture into ecological agriculture. For the various agro-ecological conditions to be met – particularly for smallholders worldwide – we (all of us in the world) need a greater diversity of crops with manifold varieties.

The private seed sector cannot supply the necessary varieties. Economies of scale and decreasing innovation by monopolies are in conflict with the challenges that lie ahead. Instead, we need a wide variety of plant breeders who have free access to germplasm suitable for breeding. But this is becoming scarce as germplasm is increasingly locked in the private domain by patents and plant variety protection. Therefore, we need a commons-based seed sector.

With the Open-Source Seed (OSS) Licence, and the newly established service provider OpenSourceSeeds, Agrecol offers plant breeders an opportunity to protect their new developments against privatisation and to maintain them as a commons. Seeds can be made available without any plant variety protection or patents. The OSS licence sets three rules:

(1)  Anyone may freely use the seed, i.e. grow, propagate and use it for breeding.

(2)  No-one, however, may privatise the seed and its further developments, as the licence excludes patenting and plant variety protection.

(3)  Each recipient assigns the same rights and obligations to prospective seed users and further seed development.

The third rule requires that future developments of the seed remain freely available; not only the licensed seed itself, but all enhancements to it are included. Thus, the licence prevents the seed from being transferred into the private domain and contributes to creating a domain of seed commons that provides freely accessible seeds, complementary to those provided by the private sector.

It is often argued that it would be impossible to finance plant breeding without royalties from patents or plant variety protection on seeds, although practices of breeders in the past and examples of current commons-oriented plant breeders refute this assumption. But more importantly, if the diversity argument is taken seriously and varieties are developed for site-specific purposes and small areas, revenues from patent royalties would be insufficient to finance plant breeding and to offer smallholder farmers high-performing varieties at affordable prices.

Therefore, we consider a decentralised system most promising: participatory plant breeding by breeders and farmers in a legal framework that allows for the development and maintenance of seed commons. Seeds are more than just an agricultural input. They benefit society as a whole. Appropriate seeds are essential for maintaining biodiversity, cultural landscapes and ecosystem services, as well as for enhancing farmers’ capacity to adapt to climate change. Plant breeding is thus a societal task rather than an economic activity. Seed production, however, has an overtly economic character. This includes OSS-licensed seeds, which may become attractive even for international seed companies.

Plant breeding requires new financing concepts, and alternatives are emerging: many organic plant breeders in Europe finance their activities partly through ‘variety development contributions’ negotiated between breeders, seed producers and farmers. Others charge a small levy on traded items or raise funds from government programmes and donors. Funds generated in this way for plant breeding are still small, but are growing steadily.

In contrast, patents on plants are constraining agricultural development, and royalties are an outdated business model.

The Technical Centre for Agricultural and Rural Cooperation (CTA) is a joint international institution of the African, Caribbean and Pacific (ACP) Group of States and the European Union (EU). CTA operates under the framework of the Cotonou Agreement and is funded by the EU.