General Public License for Plant Germplasm

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Contents

Contextual Citations

1.

"Seed sovereignty cannot be achieved by farmers alone. It must be manifested as a system encompassing producers, plant scientists, public scientific institutions and seed marketers. GPLPG/BioLinux/open-source/‘copyleft’ arrangements could plausibly constitute a legal/regulatory framework that could open an enabling space within which these different social actors could be effectively affiliated."

- Jack Kloppenburg , in: Biological Open Source and the Recovery of Seed Sovereignty


2.


"Use of the GPLPG by farmers, indigenous communities and progressive plant scientists could initiate the establishment and elaboration of an alternative network of varietal development and seed production and exchange. Given the power of agribusiness, the co-opted and compromised character of public agricultural science and the constraints of many national agricultural policies, that is now no easy task. If a protected commons based on open-source principles can be birthed, its midwives must be the constellation of diverse social movements now working around the globe for a more just and sustainable agriculture."

- Jack Kloppenburg , in: Biological Open Source and the Recovery of Seed Sovereignty

Introduction

Sepp Hasslberger:

"The same multinational corporations that are putting their proprietary, genetically modified plants into the envorinment and onto our tables are also well on the way to establishing a monopoly ...on seeds. They have purchased the majority of commercial seed companies and the choices for farmers to use non-GM seeds are getting fewer and fewer.

So here is a counter-proposal. Following the example of what was done for free and open source software with a "General Public License" (GPL), Jack Kloppenburg is proposing to establish a GPLPG (General Public License for Plant Germplasm) license for seeds and plant varieties that allows free use of the plants by farmers and growers, but prevents any so licensed seeds or plants from being subsequently altered and made commercial.

The license imposes on subsequent users of the Plant Germplasm (the seeds or plants) that any new varieties developed on the basis of those plants be similarly licensed for free use."


Description

Jack Kloppenburg:

“The specific mechanism Michaels goes on to propose is a “General Public License for Plant Germplasm (GPLPG)” that is explicitly modeled on the GPL developed by the FOSS movement for software.

For Michaels, creating the GPLPG involves a straightforward adaptation of the GPL. Plant scientists would supply germplasm to other parties accompanied by a Materials Transfer Agreement (MTA) specifying the conditions under which the material is being made available. Those conditions would include copyleft provisions permitting (indeed, encouraging) further development and recombination and improvement of the germplasm, but requiring that any lines or cultivars “derived in whole or in part from GPL plant germplasm must likewise be made available to others under GPLPG and without further restriction for use in subsequent breeding programs” (Michaels 1999).

This mechanism is simple, elegant, and effective. No new law is required; like the “shrinkwrap” license already common to software and commercial seed sales, the GPLPG is based on existing contract law. No patenting or PBR protection is necessary; again, the GPLPG is based on existing contract law, not on IPR statutes. The GPLPG is enforceable in existing law; just like the “shrink-wrap” license already common to software and commercial seed sales (Technology Use Agreements), there are statutory legal consequences for those who violate the license provisions. The vehicle for the GPLPG, the MTA, is familiar to the plant science community; the MTA is now the standard mechanism for germplasm exchanges in universities, government agencies, private companies, and the international system and scientists and administrators are accustomed to its use.

The GPLPG can be used for patented or otherwise IPR protected materials; if an owner chooses to release IPR-protected materials under the GPLPG, those IPR provisions are not enforced against GPLPG licensees. The GPLPG is compatible with a flow of benefits to the breeder; royalties may be charged for reproduction and distribution of lines, but not on subsequent uses or distributions by others. The GPLPG is compatible with commercial seed sales; seed of GPLPG lines maybe reproduced and sold, but the vendor has no claim on subsequent uses or distributions. GPLPG seed will not be attractive for appropriation and incorporation into proprietary breeding programs; the “viral” nature of the license requires that any derivative lines developed using GPLPG germplasm must also be distributed under the GPLPG, thus eliminating the possibility of capturing monopoly profits from downstream and derivative applications and uses.

In sum, the GPLPG is sufficiently simple to be used by many different actors (individual farmers, communities, indigenous peoples, plant scientists, universities, non-governmental organizations, government agencies, and private companies) in many places and diverse circumstances. Properly deployed, it could be an effective mechanism for creating a “protected commons” for those who are willing to freely share continuous access to a pool of plant germplasm for the purposes of “bazaar”-style, distributed peer production.” (https://colonos.wordpress.com/2009/02/27/seeds-sovereignty-and-the-via-campesina-plants-property-and-the-promise-of-open-source-biology/)


Discussion

Jack Kloppenburg:

"Implementation of open-source mechanisms such as the GPLPG could have significant effects consistent with strategies of both impeding dispossession and enabling repossession. In terms of resistance, the GPLPG would:

• Impede the patenting of plant genetic material.A GPLPG would not directly prohibit patenting (or any other form of IPR protection) of plant genetic material, but would render such protection pointless.The GPLPG mandates sharing and free use of the subsequent generations and derivatives of the designated germplasm. In effect, this prevents patenting, since there can be no income flow from the restricted access to subsequent generations and derivative lines that it is the function of a patent to generate. Further, the viral nature of the GPLPG means that as germplasm is made available under its provisions and used in recombination, there is a steadily enlarging the pool of material that is effectively insulated from patenting.

• Impede bioprospecting/biopiracy.The GPLPG could be similarly effective in deterring biopiracy. Faced with a request to collect germplasm, any individual, community or people could simply require use of a materials transfer agreement (MTA) incorporating the GPLPG provisions. Few commercially oriented bioprospectors will be willing to collect under those open-source conditions.

• Impede the use of farmer-derived genetic resources in proprietary breeding programmes. Because neither the germplasm received under a GPLPG nor any lines subsequently derived from it can be use-restricted, such materials are of little utility to breeding programmes oriented to developing proprietary cultivars. Any mixing of GPLPG germplasm with these IPR-protected lines potentially compromises their proprietary integrity.


In addition to its capacity for reinforcing resistance, the GPLPG may have even more potential for repossession, for the creation of effective space for the elaboration of transformative alternatives.


Implementation of the GPLPG would help to:

• Develop a legal/institutional framework that recognizes farmers’ collective sovereignty over seeds. The GPLPG relies on the simple vehicle of the materials transfer agreement that is already established and enforceable in conventional practice and existing law. It uses the extant property rights regime to establish rights over germplasm, but then uses those rights to assign sovereignty over seed to an open-ended collectivity whose membership is defined by the commitment to share the germplasm they now have and the germplasm they will develop.Those who do not agree to share are self-selected for exclusion from that protected commons.

• Develop a legal/institutional framework that allows farmers to freely exchange, save, improve and sell seeds. For farmers, the feature of the space created by implementation of the GPLPG that is of principal importance is the freedom to plant, save, replant, adapt, improve, exchange, distribute and sell seeds. The flip side of these freedoms is responsibility (and under the GPLPG, the obligation) to grant others within the collectivity the same freedoms; no one is entitled to impose purposes on others or to restrict the range of uses to which seed might be put. In the face of increasing restrictions on their degrees of freedom to access and use seed, application of the GPLPG offers a means for farmers to create a semi-autonomous, legally secured, ‘protected commons’ in which they can once again work collectively to express the inventiveness that has historically so enriched the agronomic gene pool.

• Develop an institutional framework in which farmers co-operate with plant scientists in the development of new plant varieties that contribute to a sustainable food system.The ‘protected commons’ that could be engendered by the GPLPG can, and must, also encompass scientific plant breeders whose skills are different from but complementary to those of farmers. Many new cultivars will be needed to meet the challenges of sustainably and justly feeding an expanding global population in a time of energy competition and environmental instability. The open-source arrangements that have undergirded the successes of distributed peer production in software could have a similar effect in plant improvement.

If in software it is true that ‘to enough eyes, all bugs are shallow’, it may follow that ‘to enough eyes, all agronomic traits are shallow’. Participatory plant breeding offers a modality through which the labour power of millions of farmers can be synergistically combined with the skills of a much smaller set of plant breeders. The GPLPG offers plant scientists in public institutions a means of recovering the freedoms that they – no less than farmers – have lost to corporate penetration of their workplaces. Public universities, government agencies, and the CGIAR system should be the institutional platform for knowledge generation based on the principle of sharing rather than exclusion. Public plant breeders, too, can be beneficiaries of and advocates for the protected commons.

• Develop a framework for marketing of seed that is not patented or use-restricted. The GPLPG is antagonistic not to the market, but to the use of IPRs to extract excess profits and to constrain creativity through restrictions on derivative uses. Under the GPLPG, seed may be reproduced for sale and sold on commercial markets. By carving out a space from which companies focusing on proprietary lines are effectively excluded, the GPLPG creates a market niche that can be filled by a decentralized network of small scale, farmer-owned and co-operative seed companies that do not require large margins and that serve the interests of seed users rather than investors."


Source

  • Jack Kloppenburg, “Seeds, sovereignty, and the Vía Campesina: Plants, Property, and the Promise of Open Source Biology“, prepared for the Workshop on Food Sovereignty: Theory, Praxis and Power, 17-18 November 2008, St. Andrews College, University of Saskatchewan, draft dated 22 November 2008, 34 pp.

URL = http://www.drs.wisc.edu/kloppenburg/_publications/2008%20Se%20eds%20and%20Sovereignty.pdf


excerpt above is from pp. 16-17

More Information

  • Michaels, T., 1999. ‘General Public License for Plant Germplasm: A Proposal by Tom

Michaels’. Paper presented at the 1999 Bean Improvement Cooperative Conference, Calgary, Alberta.