Intellectual property rights and bio commons: open source and beyond

Abstract

For many years seeds and plant varieties were beyond the purview of intellectual property rights. But since the 1930s intellectual property rights have covered them. Till the advent of trade‐related intellectual property rights under the World Trade Organisation, nations had no obligation to extend intellectual property rights to them, unless they were members of the International Union for the Protection of New Varieties of Plants. Apart from provisions of trade‐related aspects of intellectual property rights, changes in laws, technological advances, and judicial interpretations of laws have resulted in the strengthening of the rights of patent holders and breeders, while farmers' rights have been diminished or effectively nullified. This has other implications like restriction on the researchers' freedom to invent and innovate and for North–South trade in seeds and grains, particularly in GM crops such as soya. In this article, open source is suggested as a solution and a BioLinux model is put forth as an alternative. While it is not claimed that open source will be a panacea, this article highlights some of the possibilities that are opened up by open source. It also suggests that open source will be very useful in finding a solution to anti‐commons problems while promoting innovations.

Seeds as biosocial commons : an analysis of various practices in India

“…Access, as different scholars have pointed out serves as an important factor in determining whether PGRs remain as commons or not (Brush, 2007;Davalos et al, 2003;Deibel, 2013;Halewood et al, 2013;Ramanna and Smale, 2004;Srinivas, 2006;Kloppenburg, 2010). The debates on access to resources, however has two generic approaches and can be differentiated as the rights and as the ability perspectives.…”

“…Before the implementation of IPRs in the domain of PGRs, farmers' practices were characterised by the development and exchange of varieties with other fellow farmers without any legal binding (Srinivas, 2006). In principle, this enabled accessibility to the seeds of different varieties from all over the world.…”

“…Advancing their argument, Boettiger and Wright (2006) gave the example of open source models 2 as a possible solution for creating a protected commons for different stakeholders. Similarly, some scholars emphasise the production of commons in PGRs through the use of open source mechanisms (see Aoki and Luvai, 2007;Benkler, 2004;Dedeurwaerdere, 2012;Deibel, 2013;Kloppenburg, 2010Kloppenburg, , 2014Srinivas, 2006).…”

“…All these procedures created and modified the relations farmers had with nature and other stakeholders. (Kloppenburg, 2010;Srinivas, 2006), but also enabled transnational corporations to extend their control over agricultural production (Ruivenkamp 1989(Ruivenkamp , 2005. However, this appropriation of seeds has been contested, not only by overt protests and activist sabotage (see Gadgil and Guha, 1994;Herring, 2005;Shiva, 1991), but also by what van der Ploeg (2010: 16) names a 'third kind' of resistance.…”

“…It was Ostrom's (1990) work in particular that became a stepping stone for the study of commons resources. Parallel to this, scholars also reflected on commons through a tragedy of anticommons framework, which arises from the exclusion of stakeholders from an effective resource use due to the multiple rights involved in its use (Buchanan and Yoon, 2000;David, 2001David, , 2004Heller and Eisenberg, 1998;Lessig, 2001;Murray and Stern, 2007;Parisi et al, 2005;Ramanna and Smale, 2004;Srinivas, 2006). These various studies despite borrowing from different frameworks approached the analysis of commons from the point of property relations.…”