Giulia Caddeo, FLF Student
Ip rights on seeds are nowadays one of the biggest issues in the food sector. If on the one hand, IP rights could be a reasonable way to protect inventions and, in that way, to incentive creativity and innovation, on the other hand very much depends on the object protected by this kind of legal protection. This issue could be investigated by many points of view: in fact, economic, social and ethic issues are connected to this broader subject. In particular, it is debatable if IP rights could have a positive impact on the effort to feed a world population that is forecasted to remarkably grow from now to the next 30 years. How research and innovation can contribute in food security? Is this the best way to help the developing of the Third World? Are there evidences of a better performance of modern agriculture techniques –that encompasses the use of modified seeds- compared to the traditional ones?
It is arguable that the daily protection system of IP rights with regards to seeds and plants is protecting multinational enterprises profits instead of food security, farmers autonomy, climate and sustainability. Indeed, as Ramòn Vera Herrera highliths:
“… the main point is that all conventions, constitutional reforms and laws on the themes of seeds being promulgated, or already executives, in many countries, aim at promote intellectual property rights. These rules protect the exclusive right of maintaining, using and exchanging only certain varieties and this generates, in the short term, a huge monopoly of large multinational corporations on seed production. In this way is protected the right to impose the purchase of “packages” that include seeds constructed and/or modified in the laboratory and all chemical products (pesticides, activators, fertilizers) necessary for their cultivation; It is also allowed for large companies to promote intensive cultivation programs; all this aims to establish a relationship of growers dependence (corn, rice, etc.) from multinationals operating in the agrochemical sector … ”
Scientific, legal and “peasants” elements
This statement can be sustained by evidences both from legal and science experts. In particular, one good example could be the report High and Dry – Why Genetic Engineering Is Not Solving Agriculture’s Drought Problem in a Thirsty World. It monitors the situation regarding the increasing phenomenon of drought and what biotechnology and genetic engeenering can do in diverting this process. It describes a particular type of modified crop with the gene cspB, a product developed by Monsanto’s researchers. This type of corn is been found unable to tolerate extreme drought, increasing corn productivity nationwide no more than 1 percent. The report points out that “By comparison, classical breeding techniques and improved farming practices have increased drought tolerance in U.S. corn by an estimated 1 percent per year over the past several decades, according to one recent study (due to the challenges of measuring drought tolerance, this value should be considered a rough estimate). That means traditional methods of improving drought tolerance may have been two to three times as effective as genetic engineering, considering the 10 to 15 years typically required to produce a genetically engineered crop. If traditional approaches have improved corn’s drought tolerance by just 0.3 percent to 0.4 percent per year, they have provided as much extra drought protection as Monsanto’s GE corn over the period required to develop it”. In general, several studies have proved that traditional breeding of crops against drought have reached significant results, whilst genetic engeneer experiments are often unable to reproduce drought conditions in greenhouses. This means that their results fail when are exposed to natural conditions. Traditional techniques, by contrast, are by their very definition immerse in a natural environment, so plants directly react to it. Moreover, there are no evidences of water use efficiency with this Monsanto’s cspB corn. In fact, generally, “drought-tolerant crops typically do not require less water to produce a normal amount of food or fiber”.
Linking this scientific observations with the analysis of the UPOV Convention, the current scenario is sufficiently clear: new crops varieties (genetically modified or not) are often create not to address current nutritional and climate problems, but to guarantee profit for powerful firms. In fact, the last version of the convention contains a lot of advantages to multinational enterprises that are, conversely, detrimental for peasants, especially for small producers and for those of them that live in the poorest countries. It’s evident the distance between the current legal framework and, for instance, the objectives of the most influent and important peasants social movement, La Via Campesina, that is struggling for food security, food sovereignty and food rights since 1992. For its components, the concept of genetic resources as humanity’s heritage should still be at the centre of the current international legal framework. Before the incursion of transnational corporations, genetic resources were considered humanity’s heritage, and this was reflected in international agreements, granting producers the concept of farmers’ rights over genetic resources. Yet, at the present stage, the International Union for the Protection of Authors’ Rights over Plant Varieties (UPOV) protects living materials under regimes similar to those controlling industrial property. This point is stressed very strongly by La Via Campesina and it is clear that from its point of view the problem is not a somewhat kind of protection in itself, or IP rights in themselves, but the object protected by these legal tools and the possibility for actors different by multinational enterprises to deal with it. As it is readable on The Position of Via Campesina on Biodiversity, Biosafety and Genetic Resources,
“As peasants we know we have the sovereign right to use our resources while ensuring that they are handled in an environmentally healthy way. We therefore consider that we have the supreme authority to decide in the regulation of access to genetic resources. […] We oppose intellectual property over any form of life. We want to elevate to a universal principle the fact that genes, as the essence of life, cannot be owned. The only owner of life is the holder of that life, who lives it, sustains it, feeds and preserves it. It is an aberration that genetic materials which peasants and indigenous people have kept alive, cared for and protected for more than 10,000 years could now be the property of corporate business. And that we have to pay royalties for those seeds which were gathered from our lands and homogenized or modified abroad. […] We oppose not advances in knowledge, but its monopolization and inappropriate use”.
The inappropriate use of knowledge, in light of the UPOV provisions and of cspB studies, is what cause the increase and inevitable dependence of growers by the seeds provided by multinational enterprises. In fact, the collaboration with them means having a guaranteed economic return but the commitment of using these seeds, that must re-bought every year because they are not fertile. Other studied have proven, however, that in cases of natural disaster genetic modified crops are unable to resist and so there is the necessity to find the original ones in the “centres of diversity”? Moreover, the contamination between plants and the high diffusion of protected/modified seeds have caused the disappearance of about 90% of ancient seeds. This clearly is a loss of natural treasure and biodiversity that could have important repercussion in the health of the planet and their inhabitants, that are not yet known.
All the elements developed until now demonstrate that genetic engeneering and IP rights are not the best solution to struggle hunger and sustain food security, because they cause an enclosure of the seeds already existent in nature and a possible danger with the genetically modified ones. These two tools could, instead, be useful if employed in the protection of ancient peasants knowledge and of those modern techniques and innovations able to improve them or used only as subsidiary options. To conclude, IP rights as ruled by UPOV are a urgent problem also in the light of competition law. Like in other fields, even in these case mergers are the main instrument of concentration. The intersection among IP rights, competition law, farmers condition and consumers health are evident. The problem is that until now court decisions tend to favor IP rights instead of other relevant economic reasons. Therefore, future law reforms must take into account all those dimensions and the existence of interrelations among them.
Competition, Intellectual Property Rights and Transgenic Seed, Diana L. Mosst, South Dakota Law Review, Vol. 58, 2013
High and Dry – Why Genetic Engineering Is Not Solving Agriculture’s Drought Problem in a Thirsty World, Doug Gurian-Sherman, Union of Concerned Scientists, June 2012
Il Diritto alla Condivisione Dei Semi: la Convenzione UPOV e le implicazioni sulla libera condivisione dei semi, Grazia GIORDANO e Dario RUGGIERO, 2014 – www.lteconomy.it
The Position of Via Campesina on Biodiversity, Biosafety and Genetic Resources, SAGE Publications (London, Thousand Oaks, CA and New Delhi) , 1011-6370, Vol. 44:4, 2001,