The Privatisation of Life Forms: Can Seed Be Owned?

Seed: the Ultimate Gift

Seed is the first link in the food chain. It is the embodiment of life’s continuity and renewability; of life’s biological and cultural diversity. Seed, for the farmer, is not merely a source of future plants/food; it is the storage place of culture, of history. Seed is the ultimate symbol of food security. .
Free exchange of seed among farmers has been the basis of maintaining biodiversity as well as food security. This exchange is based on cooperation and reciprocity. A farmer who wants to exchange seed generally gives an equal quantity of seed from his field in return for the seed he gets.
Free exchange among farmers goes beyond mere exchange of seeds; it also involves exchange of ideas and knowledge, of culture and heritage. It is an accumulation of tradition, of knowledge of how to work the seed. Farmers gather knowledge about the seeds they want to grow in the future by watching them actually grow in other farmer’s fields. The cultural and religious significance of the plant, gastronomic, drought and disease resistance, pest resistance, keeping, and other value shape the knowledge that the community accords to the seed and the plant it produces.
Paddy, for example, has religious significance in most parts of India and is an essential component of most religious festivals.
The Akti festival in Chhattisgarh, a centre of diversity of the Indica variety of rice, reinforces the many principles of biodiversity conservation. In the South, rice grain is mixed with kumkum (vermilion) and turmeric and given as a blessing. The priest is given rice, often along with a coconut, as an indication of religious regard. Other agricultural produce whose seeds, leaves, or flower form an essential component of religious ceremonies include coconut, betel leaves, arecanut, wheat, finger and little millets, horse gram, black gram, chickpea, pigeon pea, sesame, sugarcane, jack fruit seed, cardamom, ginger, banana and gooseberry.
New seeds are first worshipped and then planted. The new crop is worshipped before being consumed. Both these festivals – planting and harvest – are celebrated in the fields and symbolize people’s intimacy with nature. At the time of planting, the field is seen as mother; worshipping the field is a sign of gratitude towards the earth, who as mother feeds the millions of life forms who are her children. Festivals like Ugadi, Ramanavami, Akshay Trateeya, Ekadashi Aluyana Amavase, Naga Panchami, Noolu Hunime, Ganesh Chaturthi, Rishi Panchami, Navratri, Deepavali, Rathasaptami, Tulsi Vivaha Campasrusti and Bhoomi Puja cannot be celebrated without religious ceremonies around the seed. Seed festivals include those related to identification of which seed to grow, its germination and other aspects.
According to Hindu mythology, seed is a gift of Srushtikarta (Brahma, the creator), who created seeds in primordial times. The Puranas refer to people getting fala (fruit/reward) by worshipping gods through religious sacrifices. In the case of complete extinction of any one form of matter, the people performed samudra manthana (churning the ocean) to get it back. Indian agricultural folklore includes instances of kings who ploughed the land to plant seed. Janaka, the father of Sita, worshipped Varuna (god of rain) during a drought and got a handful of seed from him, which he planted after ploughing the land himself, so that his people would not go hungry. Seed is also considered and worshipped as Dhanalakshmi (the goddess of wealth).
In Indian culture, all forms of nature are believed to interact with and influence one another, be they of this earth or of space. This interaction and influence in often reflected in the linking of cosmic influences of planets and stars to life forms on earth. The navadhanyas (nine seeds) and their respect navagrahas (nine cosmic influences) symbolize balance in the field and a reflexive relationship in the Ayurveda tradition. The relationship of some of the seeds and the graha is given below:

Seed not only plays a important part in the rituals and rites of communities, it also represents the accumulation over centuries of people’s knowledge and, by being a reflection of the options available to them, it represents their choice. In today’s context of biological and ecological destruction, seed conservors are the true gifters of seed. Conserving seed is conserving biodiversity. Conserving seed is thus more than merely conserving germplasm. Conserving seed is conserving biodiversity, conserving knowledge of the seed and its utilization, conserving culture, conserving sustainability.
The culture of seed saving and seed exchange which has been the basis of Indian agriculture is today under threat. New technologies, like the technologies of the green revolution and biotechnologies, devalue the cultural and traditional knowledge embodied in the seed and erode the holistic knowledge of the seed from the community. This results in the seed itself becoming extinct, as the existence of the seed is tied intimately with its holistic knowledge.
This process is being hastened by the new IPR regimes which are being universalized through TRIPs. The IPR regimes of the west allow corporations to usurp the knowledge of the seed and monopolize it by claiming it to be their private property. Over time, this results in monopolistic corporate control over the seed itself, restricting its free sharing within and across communities.
New intellectual property rights are being introduced through the WTO in the form of patents or breeders’ rights. Patents on plants and seeds imply that corporations which have the patent can claim that a seed or plant or crop variety is their invention and exclude others from making, selling, using, or distributing the seed or crop. The ancient system of saving seed or exchanging seeds freely with neighbours is thus viewed as ‘intellectual property theft’ under IPR regimes. Companies are already taking farmers to court in industrialized countries for seed saving and seed exchange.
There are two ways in which farmers’ rights and freedoms related to agricultural systems and seeds are being eroded. Firstly, seed legislation pushes out farmers’ varieties and makes farmer’ breeding an illegal activity. Secondly, farmers are forced to give up their inalienable rights to save, exchange and improve seed. This forces farmers to use only ‘registered’ varieties. Since farmer’s varieties are not registered and individual small farmers cannot afford the costs of registration, they are slowly pushed into dependence on corporations who seed ‘registered’ seed varieties.

Patents on Plants

Patents on plants raise serious concerns about monopolies over food and agriculture systems. There are two trends in plant patents that create a threat to biodiversity, the survival of small farmers, and the food security of all people. The first trend is for broad species patents such as those held by Agracetus (now owned by Monsanto) on cotton and soybean. The granting of patents covering all genetically engineered varieties of a species, irrespective of the genes concerned or how they were transferred, puts in the hands of a single inventor the possibility to control what we grow on our farms and in our gardens.
Unlike plant breeders’ rights (PBRs), the utility patents are very broad based, allowing monopoly rights over individual genes and even over characteristics. PBRs do not entail ownership of the germplasm in the seeds, they only grant a monopoly right over the selling and marketing of a specific variety. Patents, on the other hand, allow for multiple claims that may cover not only whole plants, but plant parts and processes as well. So a company could file for protection of a few varieties of crops, their macro-parts (flowers, fruits, seeds and so on), their micro-parts (cells, genes, plasmids and the like) and whatever novel processes it develops to work these parts, all using one multiple claim.
Patent protection implies the exclusion of farmers’ right over the resources having these genes and characteristics. This will undermine the very foundations of agriculture. For example, a patent has been granted in the US to a biotechnology company, Sungene, for a sunflower variety with very high oleic acid content. The claim was for the characteristic (i.e., high oleic acid) and not just for the genes producing the characteristic. Sungene has notified others involved in sunflower breeding that the development of any variety high in oleic acid will be considered an infringement of its patent.
The landmark event for the patenting of plants was the 1985 judgement in the US, now famous as exparte Hibberd, in which ‘molecular genetics’ scientists Keneth Bibberd and his co-inventors were granted patents on the tissue culture, seed, and whole plant of a corn line selected from tissue culture. The Hibberd application included over 260 separate claims, which give the molecular genetics scientists the right to exclude others from use of all 260 aspects. While Hibberd apparently provides a new legal context for corporate competition, the most profound impact will be felt in the competition between farmers and the seed industry.
A framework is thus now in place that allows the seed industry to realize one of its longest held and most cherished goals – that of forcing al farmers of any crop to buy seed every year instead of obtaining it through reproduction. Industrial patents allow the right to use the product, not to make it. Since seed makes itself, a strong utility patent for seed implies that a farmer purchasing patented seed would have the right to use (or grow) the seed, but not to make seed (to save and replant). If such patents are introduced in India, the farmer who saves and replants the seed of a patented or protected plant variety will be held as violating the law. The US of course is pushing for patent regimes in the area of agriculture in India.
The TRIPs agreement militates against people’s human right to food and health by conferring unrestricted monopoly rights to corporations in the vital sectors of health and agriculture. A recent decision on a plant patent infringement suit has set a new precedent for interpreting plant patent coverage in the US where it was ruled that a plant patent can be infringed by a plant that merely has similar characteristics to the patented plant. When combined with the reversal of burden of proof clauses, this kind of precedence can be disastrous for countries from where the biodiversity that gave rise to those properties was first taken; more so if the original donors of the biodiversity are accused of ‘piracy’ through such legal precedence in the absence of the prior existence of biodiversity laws that prevent the misuse of such legal precedence.
In countries, where plant patents are not allowed, patenting genes is available as an opening for patenting properties and characteristics of the plant, and hence having exclusive rights to those properties and characteristics. Further, patents for plant-based products, such as patents for azardirachtin derivative insecticides from the neem taken out by transnational corporations like W.R. Grace, will also have a major impact on the access to raw material and market for neem products.
In practical terms, allowing patenting in the field of agriculture will have the following adverse consequences:

1. It will encourage monopoly control of plant material by western transnational corporations. This in turn will make farmers dependent on corporations for the most critical input in agriculture, i.e., seed. This monopoly control is more far-reaching given the takeover of seed companies by large chemical and agribusiness corporations which control other inputs into agriculture such as fertilizers, pesticides and herbicides. Monopoly control on seed linked with corporate control over agriculture will lead to large scale disappearance of farmer’s varieties, thus threatening biodiversity conservation as well as farmer’s survival. Biodiversity erosion will in turn lead to the erosion of the rich cultural diversity of our country.
   
   
2. Due to royalty payments the prices of seeds will go up.
   
   
3. The changed economics resulting from IPRs will lead to the displacement of small farmers, who will get into debt and destitution.
   
   
4. Large-scale uprooting of agricultural society, without equivalent absorption in new industrial opportunities, will lead to social disintegration, spurt in crime and breakdown of law and order.
   
   
5. Intellectual Property protection in the area of agriculture and plant variety will undermine food security since the protected and patented varieties are not linked to food needs, but to the processing and marketing requirements of agribusiness.
   
   
6. The shift to control of agriculture through the control of seed will also contribute to secondary impacts on other natural resources, like land and water, getting into the control of MNCs.
   
   
7. IPRs in the area of seeds and plants will increase the national debt tenfold. The undermining of food security will increase food imports and hence the foreign exchange burden, thus inviting deeper conditionalities from institutions like the IMF and the World Bank.
   
   
8. The erosion of food security will create food dependency, turning food into a weapon in the hands of industralized countries, thus leading to total slavery and recolonization.

UPOV Convention, Breeders Rights and Farmers Rights

The existing international agreement that covers Plant Breeders’ rights is the International Convention for the Protection of New Varieties of Plants – UPOV Convention. The UPOV Convention was adopted initially by five European countries and membership was restricted to European countries till 1986. At that time the Convention was revised and membership opened to all countries.
The UPOV Convention is rigid, requiring that members adopt its standards and scope of protection as national law. The UPOV Convention has resulted in a high degree of standardization goes against the reality of biological diversity and the socio-economic diversity of different countries. It is therefore inappropriate as a sui generis system evolved to protect plants, people and creativity in diverse realities.
The standardisation is built into the way plant varieties and defined. To be eligible for protection, a variety must be:

• New – the variety must not have been exploited commercially.
  
  
• Distinct – it must be clearly distinguishable from all other varieties known at the date of application for protection.
  
  
• Uniform – all plants of the variety must be sufficiently uniform to allow it to be distinguished from other varieties taking into account the method of reproduction of the species.
  
  
• Stable – it must be possible for the variety to be reproduced unchanged.

Farmers Rights: A People’s Charter

1. Farmers’ Rights arise from their past present and future contribution to the conservation modification and exchange of plant genetic resources.
   
   
2. Farmers innovation in plant breeding takes place collectively and cumulatively. Therefore farmers rights arising from their role as conservers and breeders have to be vested in farming communities not in individual farmers.
   
   
3. Farmers’ rights are rights derived from intellectual contributions to the breeding of seeds and plant genetic resources. Farmers are breeders even though their breeding objectives and methods might differ from the objectives and methods of the seed industry. Farmers breed for diversity while seed industry breeds for uniformity. The recognition of farmers’ breeding strategies is necessary to stop the practise of using farmers seeds as “raw material” with no intellectual contribution of farming communities.
   
   
4. Farmers’ rights are a necessary component for the conservation of biodiversity since the breeding strategies based on the production and reproduction of diversity have to be protected if agricultural biodiversity has to be conserved in-situ. The intellectual rights and capacities of farmers have a central role in the conservation of agricultural biodiversity and need to be protected under CBD.
   
   
5. Seed is not the private property of individual farmers nor is it the “common heritage of mankind” which can be appropriated freely by seed industry and then converted into proprietary commodities and sold back at high costs and heavy royalties to the same farming communities. Seed is a common resources of local farming communities who have evolved and conserved it. Farmers are not merely “care takers” for the “raw material” that the seed industry needs for its industrial breeding. Farmers are the original breeders, custodians and owners of seed material and plant genetic resources –Farmers’ rights are community ownership rights not mere caretaker rights.
   
   
6. Farmers’ rights include their right to ecological security. This includes their right too cultivate diverse crops and crops varieties to avoid ecological risk and vulnerability. The globalised economic system dominated by TNCs in which TRIPs is embedded and which TRIPs consolidates even further creates conditions for the spread of uniformity and the destruction of diversity. This violates farmers’ rights to ecological security.
   
   
7. Farmers’ rights also include the rights of farmers as consumers. This includes the right to choose seed from the seed industry on the basis of criteria of sustainability of farmers livelihoods and the agricultural ecosystem. Farmers have a right to full environmental impact assessment of commercial seed especially hybrids and genetically engineered seeds. Farmers have a right to the full information about the risk of chemical pollution and biological pollution caused by seeds tailored to increase the use of chemicals, eg. Herbicide resistance varieties which require increased use of herbicide and also lead to the risk of transfer of herbicide resistance through pollination across large distances. Farmers’ rights therefore require that seed sales and distribution to be covered by biosafety regulations.
   
   
8. Since farmers’ choice of seed is limited by the disappearance of farmers varieties, the erosion of public sector research and by the establishment of seed monopolies through exclusive rights in the form of IPRs, farmers’ rights also involve limits on monopolies, and consumers of seed. Eg. The broad species patents on soya-bean and cotton held by Agracetus, a subsidiary of W.R. Grace.
   
   
9. Farmers’ rights also include the right to food security of agricultural producers. In recent years rural communities have been the ones most vulnerable to food scarcity, hunger and famine. Farmer’s rights to food security therefore include the freedom to produce food for their subsistence and survival and the right to exclude certain crops from IPRs so that IPRs do not become an aggravating factor for the generation of scarcity and famine.
   
   
10. Farmer’s rights include the right to produce diverse and nutritious food for healthy consumption. Safe and healthy food is an essential element of food security, and farmers’ rights are necessary for ensuring food security for all.