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23 April 2014updated 17 Jan 2024 6:20am

Farmers can turn to open source seeds to get around restrictive patent laws

The Open Source Seed Initiative seeks to undermine the costly and restrictive regulations that govern the best seed variants, to the benefit of farmers, not corporations.

By Ian Steadman

Seeds are intellectual property. For those of us who do not farm, or who don’t follow the ins-and-outs of the agriculture industry, this may be a surprise, but seeds and plants are things that individuals or companies can apply for patents on, and thus control how they are sold to farmers or other consumers.

Consider Monsanto, the massive agritech company whose patented genes are in somewhere between 85 to 90 per cent of the soybeans, corn, cotton, sugar beets and canola grown in the US. It’s in the business of both seeds and weed killer. The most popular weed killer in the US is glyphosate, which Monsanto sells under the brand name glyphosate; its plants are both immune to glyphosate’s effects and give higher yields than competing varieties. Farmers end up buying several products from Monsanto instead of just one, as they complement each other by design. And to keep farmers buying seeds, Monsanto makes them sign an agreement that forbids them from picking and planting any of the seeds the corn produces, instead buying fresh seeds from the company for each harvest. This is entirely legal, thanks to seed patents, and it has made Monsanto a huge company with a multitude of critics (it only just missed out on first place in the Consumerist‘s most-recent annual “Worst Company In America” poll).

Monsanto defends itself by pointing out that, just like a pharmaceutical company, it needs the ten years of patent-protection on its genetically-modified seeds to guarantee a return on its research and development investment. As Monsanto puts it on its website:

[T]he farmers who were saving seed in the past were saving seeds that naturally occurred, not the type of enhanced-trait seeds Monsanto is marketing to modern growers. Seeds that are resistant to glyphosate (Roundup)and contain other desirable traits such as pest resistance or drought tolerance don’t normally occur in nature.

“Roundup Ready soybeans did not exist except by science,” [Monsanto trait stewardship lead] Scott Baucum said. “It was man-created. We took something that would not have occurred without our efforts and intervention and we created something of much higher value. In this country, that qualifies for a patent.”

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This is a very modern thing. Farmers, from the very earliest periods of agricultural development in the pre-historical period, would pick out strains of plants they liked and bred them over generations to emphasise the traits that they most wanted. That process involved a lot of swapping of seeds, of farmers exchanging their best varieties with each other and passing on tips and tricks that they’d found useful. As much as anything, companies like Monsanto are hated because they insist that this kind of thing is not just illegal, but immoral. But what can farmers do?

They could, maybe, look to the world of software for inspiration. The Open Source Seed Initiative, which has just launched, offers exactly what its name suggests – “open source” seeds. In software, open source is a way of using copyright law against itself. Programs can be released under a license which mandates that anyone is free to use it, copy it, share it, or indeed remix or edit it and then put that out as a new, different release under the same license. It’s “open source” because the source code is open and free for anyone to read, and change – “free”, in this context, meaning like “free speech”, not (as is often said) like “free beer”. People can charge for open source products, but it’s the freedom to do what one wants with the product once purchased that’s crucial. Android is open source, and is based on Linux, which is the open source grandfather of innumerable other open source grandkiddies. Wikipedia is open source. There is open source cola, and open source architecture. Now there are open source seeds, as NPR reports:

At an event on the campus of the University of Wisconsin, Madison, backers of the new Open Source Seed Initiative will pass out 29 new varieties of 14 different crops, including carrots, kale, broccoli and quinoa. Anyone receiving the seeds must pledge not to restrict their use by means of patents, licenses or any other kind of intellectual property. In fact, any future plant that’s derived from these open source seeds also has to remain freely available as well.

Irwin Goldman, a vegetable breeder at the University of Wisconsin, Madison, helped organize the campaign. It’s an attempt to restore the practice of open sharing that was the rule among plant breeders when he entered the profession more than 20 years ago.

“If other breeders asked for our materials, we would send them a packet of seed, and they would do the same for us,” he says. “That was a wonderful way to work, and that way of working is no longer with us.”

The weirdness of patent law, as applied to living things like plants, can become expressed in unexpected ways. Monsanto’s plants are so dominant in US farming that organic farmers actually took the company to court last year out of a fear that their non-engineered plants were at risk of contamination – that is, they were worried about their organic crops and neighbouring crops grown from Monsanto seeds cross-breeding accidentally, in the process passing the genetically-engineered bits of the Monsanto plants into the supposedly-“natural” organic plants. Not only have the organic farmers had to take expensive steps to stop cross-contamination (like putting up big nets between fields), but it also opened them up to a lawsuit. Monsanto has a history of ruthlessly pursuing farmers who break its agreement not to plant the seeds from its plants, and those organic farmers might – completely unintentionally – have ended up with seeds that were indistinguishable from those Monsanto sells.

The farmers, in that case, won a “partial victory”, as a court ruled that Monsanto would be held to a promise not to sue in case of accidental contamination, but it’s still very odd, intuitively. And it also opens up an interesting reverse-case – say a Monsanto-seed crop was pollinated by an OSSI-seed crop, giving seeds that were legally considered to be OSSI seeds, and thus open source and free to plant. What then? What if elements of a seed released under an OSSI license ended up being sold as a product of Monsanto? What if the OSSI seeds, through sharing and cooperation between farmers, become better than Monsanto seeds? Would that force Monsanto to end its restrictive licenses?

Regardless, corn and soybeans are not included in the OSSI list of seeds as of yet, and as those are two of the most important crops – seriously, corn is in everything – it’s unlikely that the OSSI will have much influence or impact outside of breeding and research institutions, which share discoveries and embrace an open approach to developing plants. That may change as its catalogue expands, or if lots of farmers get on board.

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