The purpose of defining intellectual property is to grant personal rights to immaterial things. It is designed to encourage innovation by allowing innovators to receive compensation, or even royalties, for their investment.
Several intellectual property rights can be applied to seeds: on the one hand, the brand and geographical indication are able to add value to a product or seed by protecting its name. On the other hand, patents and plant breeders’ rights can protect the creation of a new plant variety.
In theory, industrial-scale seed companies and smaller growers should both be able to benefit from intellectual property protection, as it is a universally accessible service. However, the reality is that these rights, and patents in particular, appear to be mostly the domain of large companies: not only are the costs of registering and maintaining a patent, or plant-breeder certification, prohibitive for small farmers; the structuring of the official varieties’ catalogue also excludes them from the market. The catalogue is limited to varieties that respect certain criteria of distinctiveness, stability and uniformity, and demonstrate their agricultural, technological and environmental value. This leads to prohibitive costs for the development, inscription and maintenance of the entry into the catalogue, which effectively closes the door to small businesses.
Exploring the accessible options
However, intellectual property law does also contain some approaches which are not without interest for smaller farmers. They mustn’t hesitate to use the various intellectual property rights accorded through private rights, which are more open and easier to put in place – even though they have limited applications. For example, the plant breeders’ rights, which were initially created and adapted for the specificities of the plant and vegetable world, enable the existence of the ‘growers’ privilege’. The growers’ privilege allows a grower, within certain conditions, to reuse the plants they have harvested in order to seed their holding the following year (these seeds are referred to as ‘farm-saved’).
Clearly, the conditions are limiting and are becoming ever more so under successive reforms. European regulation limits the usage of farm-saved seed to a list of varieties. However, the European plant breeders’ rights regulations (regulation 2100/94) makes specific allowances for smallholdings, which are exonerated from paying royalties to the breeder when they have resorted to using farm-saved seeds. It should also be noted that similar exemptions exist for patents.
The value of geographical indicators
An alternative approach can also be considered, which demonstrates the advantage of linking a variety to a geographical zone. In principle, geographical indications can offer smallholdings a way to protect their seeds by promoting particular varieties that are best adapted to their environment.
There can be a real benefit in focusing on the strong links that can exist between a plant variety and the soil in which it grows. By nature, plant varieties are best suited to certain soil and weather conditions – specifics which the scale of industrialisation and standardisation of seeds often struggles to take into account. In France, the recognition of Provence thyme as a protected geographical indication and Espelette chilli pepper as a controlled designation of origin has helped add value to these regional varieties.
Geographical indications are a way to collectively localise plant varieties and anchor them in a location or region, which allows the maximisation of their value whilst also ensuring there is a collective benefit. This approach also offers a way to protect not just the biological aspect, but also the associated knowledge and production processes.
Opening up the market
A final approach to consider can be found in a model inspired by the philosophy of creative commons licences, when applied to agricultural seeds and germs. The creative commons association creates licences which allow willing copyright owners to grant more open licences in order to promote the sharing of otherwise protected materials. Creating such a licence can afford growers a short or longer term flexibility to share, purchase and develop seeds. This approach is perfectly suited to help significantly grow the market for seeds developed by non-industrialised farmers.