Commons, a Model for Managing Natural Resources

Seeds : The Collective Rights of Farmers, Gardeners and Communities versus Intellectual Property Rights

, par KASTLER Guy

Agrochemical industrial interests have developed a range of legal and technological instruments to gain total control of seed production, and consequently of the entire agricultural and food sector. In order to liberate cultivated biodiversity from this deadly capitalistic trap, it is crucial to empower farmers and their communities, putting greater emphasis on their experience, their knowledge and their rights.

Catalogue, certifications, plant breeders’ rights and patents

The accelerating erosion of cultivated biodiversity is a direct threat to the capacity of humankind to produce the food it will need tomorrow, in particular in the context of climate change, which will require plants to have a significant adaptation capacity. This erosion is the result of the monopolistic practices of a few transnational corporations, which aim to gain full control of the food chain, from the seed to the right of peoples to feed themselves. These corporations have prompted laws which forbid farmers to reproduce their own seeds in their own fields, and forced them to substitute these seeds for a handful of synthetic genes over which these firms can claim intellectual property. But life does not easily bend to industrial standardisation. This is why transnational corporations are now coming up with new, more complex rules and technologies, in order to suppress life itself. Their imagination is limited only by the extent of their greed. However, these projects will collapse as soon as they become the object of public scrutiny ; it will be obvious to everyone that biodiversity needs to be re-sown and reborn each year.

Biodiversity is not conserved or reproduced – it is renewed

Seeds are first and foremost the reproductive organs of autonomous living organisms, plants, as well being part of a common heritage which has evolved and continues evolving alongside humans. The renewal of biodiversity is the very condition of life, which would simply disappear if all living organisms were too much alike, and incapable of evolving to adapt to the natural environment. Seeds travel, but grow into plants that do not move ; once they have taken roots, only their diversity and their genetic variability will allow them to adapt to the diversity of land and climate conditions. Farmers have always sought to improve and adapt their varieties by selecting some seeds out of their crops and exchanging them in small quantities between themselves, in order to maintain their diversity and variability. Such exchanges have given birth to numerous plant varieties, commons born from the work and knowledge of the rural communities which have selected and safeguarded them.

Industry versus biodiversity

The industrial seed system hates diversity, and aims to replace such exchanges between farmers and communities with mass markets. It can only tolerate standardised, homogeneous, stable products. A century of “plant breeding” has satisfied the needs of the industry, with eugenic methods in line with late 19th and early 20th century ideologies : the identical multiplication of “elite” plants, and the suppression of all individual plants which don’t fit the established norms. A new player emerged in lieu of farmers to select and multiply these new elite seeds in an artificial environment : the seed industry, an extension of the agribusiness and the pesticide industries. Homogeneous varieties are indispensable to industrial transformation processes. And since seeds are now all identical, farmers can no longer adapt them to the diversity of land and climate conditions using traditional methods ; the variability of agricultural conditions must itself be suppressed and homogenised with chemical fertilisers and industrial pesticides, which the new seeds have specifically been selected for.

F1 hybrids and certification make farmers’ seeds illegal

In order to create and expand a market for their seeds, industrial interests have to eliminate their main source of competition : the seeds that farmers can reproduce themselves, every year, with every new harvest. To this effect, they have used both legal and technological methods – patents and certification on the one hand, hybrid seeds and biotechnologies on the other. The generalisation of hybrid corn from the 1930s onwards, first in the United States and then in the rest of the world, made it normal for many farmers to have to buy their own seeds anew every year. The legal instrument used by the US seed industry to protect its acquired market position was the patent. In Europe, seed industrials have chosen a slightly different approach, lobbying for the establishment of an official and mandatory catalogue of seeds and varieties. It was made illegal to sell or even circulate a seed which was not certified and registered in the catalogue. The legal instrument used to protect plant breeder’s interests was in this case the certification d’obtention végétale (COV). Today, with the development of biotechnologies that force plants’ life processes to fit industrial needs, COV and patents are often combined to obtain total protection of intellectual property.

Bearded wheat. Source : Yann G (CC BY-NC-SA 2.0)

Humanity’s common heritage vanishes into numeric databases

The appropriation of genetic resources

Cultivated biodiversity is the key raw material on which the seed industry depends. By making farmers’ seeds illegal, there is the risk that cultivated biodiversity could disappear under the laws driven by industrial interests. This is why governments have organised the collection of all existing seeds and varieties before they potentially disappear. In 1983, the UN Food and Agriculture Organisation (FAO) argued that “phytogenetic resources are a common heritage of humankind and must be preserved and freely accessible to be used in the interest of present and future generations.” Farmers’ seeds growing in fields around the world thus became a resource freely accessible to the industry. This heritage has become a commodity on the global market. On the one hand, the seeds, generated by the labour and knowledge of farmers, are declared to be a common good to all humankind, and cannot be commercialised because of the mandatory catalogue and certification ; on the other hand, they can be turned into privatised commodities by the seed industry through intellectual property rights.

Native corn. Souce : Craig Hennecke (CC BY-NC-ND 2.0)

Initially, the public collections of genetic resources that were thus established were accessible to all. But farmers weren’t given any real means to access and make use of this wealth, although it had originated in their fields. They were even prevented from doing so due to confidentiality rules, to the absence of a crop identification system, and to numerous administrative obstacles. In 1992, at the Rio Summit, the countries from the global South, which host the major part of global biodiversity, demanded that the benefits derived from the development and marketing of their genetic resources be shared with them. The seed industry took this opportunity to force them to formally recognise the intellectual property rights which generate these benefits. Since then, only a handful of new patent holders have actually respected their commitment to share benefits ; and not one COV holder has respected this commitment, since they are under no obligation to state the origin of the genetic resources they use. The main change resulting form the 1992 compromise was that all collections were placed under the direct authority and sovereignty of states. It is becoming more and more frequent that these states deny farmers any access to their collections even though these are the very farmers whose parents have generated everything they contain. Only the industry benefits from continuous access to the collections, under the pretext that they give access to a tiny fraction of their own genetic resources.

Synthetic biology : a virtual reality replacing the natural world

After selecting elite plants, using natural crossing techniques, from the beginning of last century, and after manipulating their genes directly in the 1980s, the seed industry is now venturing to build synthetic genes, on the basis of numeric virtual sequences stored in computers. Genetic engineering’s transgenes are still approximate copies of natural genes, altered through chemical manipulation. The next step will thus be the development of totally artificial plants. Under the pretext of a lack of funding, national gene banks have been abandoned, reduced to computerised or privatised gene collections. At the same time, the main areas of origin and diversification of the world’s major crops have been deliberately contaminated by patented genes. An “apocalypse gene bank”, set up in 2008 on a Norwegian island, is only accessible to transnational corporations and preserves all the world’s seeds in ice. These frozen seeds will never be planted again to maintain their germinating capacity. Synthetic biology has no need for living seeds ; numeric genetic sequences, which can be retrieved from dead plants, can be reproduced through chemical synthesis. This is probably why transnational corporations have left seed banks to die.

Collective rights and commons

The collective rights of farmers, gardeners and communities

Cultivated biodiversity is an unalienable commons, a common heritage of the farmers’ communities which have selected it over millennia. We borrow it from our children. Until the recent apparition of the seed industry, all cultivated varieties were reproducible. All were first and foremost local varieties. They were selected and conserved in a particular region, by a particular human community, under collective use rights which were often unwritten, and were negotiated within these communities : the right to conserve, to re-sow and to exchange seeds while respecting agronomical and social rules, or rules for protection against exogenous pollen flows, consumption, seed thefts, wars, invasive plants or the forced replacement of locally adapted varieties with external crops which proved to be only temporarily more profitable. Along with these traditional rights, one should also add the right to participate in decisions on managing public resources, the right to access their parents’ seeds locked up in gene banks, the right to protection against transgenic contamination, subsidised industrial seeds, de-localisations or biopiracy, the right to preserve farmers and community knowledge. These rights are neither property rights nor individual rights, but collective use rights.

The characteristics which single out a farmers’ variety cannot be reduced to morphological traits, nor to its numeric genome ; its characteristics are primarily reflected in terms of agronomical techniques, taste, nutritional value, cooking, adaptation to transformation techniques, culture, religion, landscape... all of which relate to a specific local, social and economic context. There is no variety without the human community that has selected and renewed it. Reducing a variety to its morphological or numeric characteristics is a way of separating it from its specific local, social and economic character, in order to facilitate its appropriation by impersonal trade and intellectual property rights. The denial of communities’ collective rights will often result in the destruction of these communities and of their economic, social and cultural environment.

In affluent countries, most traditional rural communities have disappeared, replaced by industrial agriculture. But new communities and networks are arising today, not necessarily grounded in a single location, but upholding a common agricultural, economic and social model, based on autonomy and re-localisation. These communities are engaged in selecting and renewing new farmers’ varieties, working with the resources still available in public collections. They have to decide which rules are to govern the use of these seeds. As long as the rules are not decided upon collectively, each individual will be responsible for answering questions such as : will he/she obey the laws of the market and give seeds away to people who won’t be able to cultivate them correctly, or who will generate unfair competition, which will destroy the community where the seed was originally selected, if not destroyed by biopiracy, private appropriation of the variety or development of GMOs ? Or will he/she decide that the variety is sufficiently stable and can be circulated safely ? Or that the variety is too young and fragile, and that the seeds should only be given to people who are able to take care of them properly ?

These collective rights are not alienable, they are not commodities – a use right which can be sold can be bought by an individual and become a private property. These use rights are negotiated, first within communities, then between communities. Free trade can only come after these negotiations have taken place.

Free seeds or local commons ?

Farmers’ seeds are not in fact part of any “global heritage” : the dynamic management of biodiversity does not take place on a worldwide scale, but on the scale of local territories and communities. Unlike standardised industrial varieties, farmers’ seeds which are used in a particular area and according to particular agricultural methods have been specifically developed and selected within this area and this agricultural model, so that it is naturally adapted to them. Such seeds can then be circulated between areas and/or agricultural models, which renews their internal diversity by bringing out characteristics which remained undeveloped in the initial conditions. This circulation also renews the diversity of the genetic stock where they are introduced, or gives birth to new varieties which are adapted to the new location and to the local people’s practices. But before they can be cultivated on a large scale in the new area, they must be adapted to the new conditions through successive selection and multiplication cycles. This is why exchanges of exogenous seeds usually involve small quantities, barring exceptional circumstances or catastrophes. Seed trade is either local or restricted to very small amounts, as opposed to the global seed trade, which distributes industrial maize seeds – seeds which have been multiplied in one country (Chile) – all over the world. Seeds are today either a local commons, or an industrial commodity protected by intellectual property rights. The former are and must remain subject to the collective use rights of the communities which give them away or receive them. Only those communities can decide if those seeds are free or not. The latter cannot be as “free” as a free fox in a henhouse : the dissemination of industrial seeds can only be accepted by local communities, after they have first had an opportunity to assess the potential risks on their health, on the environment and on local agricultural and cultural systems. GMOs and other biotechnologies should be banned.

Going even further than the Rio Convention on Biological Diversity, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) acknowledges the past, present and future role of indigenous and farming communities in conserving phytogenetic resources, as well as their ensuing rights : the right to see local knowledge protected ; to have a share in the benefits of any development ; to participate in national decision-making regarding genetic resources ; to conserve, re-sow, exchange and sell farmers’ seeds. The responsibility to enforce these rights is nevertheless delegated to governments.

Is this prospect based on real political commitment or is it just a facade ? In its attempt to breathe new life into the concept of “global heritage”, industrial propaganda is now arguing that COV “liberates” seeds from patents in order to legitimise a new global campaign to collect all wild and cultivated biodiversity and the associated local knowledge. By crossing and re-crossing every available genetic resource in every direction, the industry will wind up having exhausted any possible innovation. It has now done away with the barriers between species, and it is able to use, just like the pharmaceutical industry, any gene derived from wild biodiversity. The appropriation of communities’ local knowledge allows it to know where to look. Brandishing the threat of a global food, climate and energy crisis, it is now venturing to take control of the remaining three quarters of wild global biodiversity, just as it has done with the cultivated first quarter. This translates into a large-scale and brutal appropriation of land, forests, rivers and underground resources (which they try to legitimise by presenting them as “global heritage”, rather than the heritage of local communities). This new expansion of the enclosure of the commons also involves patents being extended to genes, atoms, nanoparticles or BiPs, as well to services and technologies to make use of biodiversity.

Sowing Biodiversity

In a context where states betray their public trust role by legitimising the appropriation and destruction of biodiversity, it becomes vital to empty out the gene banks and start rebuilding living genetic collections in the fields of the world, as well as in open seed houses, under the control of civil society. This is not about going back to the agricultural practices of our grandfathers, although their seeds are probably the best starting point for modern farmers’ seed selection. There is a place for the progress of a century of plant breeding, as long as it is not dependent on chemical fertilisers and pesticides, fossil fuels, or biotechnologies which have adverse health, environmental and social impacts. A crucial shift will be the advent of a legal framework which excludes any form of intellectual property right on life forms and on the associated knowledge, and which recognises the right to food sovereignty and the collective use rights of communities as legitimate restrictions to “free” trade. These collective rights are the key to the survival of biodiversity as a commons against intellectual property rights and free trade, which aim to replace it with virtual synthetic clones. Nobody will give us those rights ; organised civil society must claim them. To prevent the deliberate destruction of biodiversity, biodiversity has to be sown and re-sown. Even if it involves civil disobedience !