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Free Seeds, Not Free Beer": Participatory Plant Breeding, Open Source Seeds, and Acknowledging User Innovation in Agriculture

Free Seeds, Not Free Beer": Participatory Plant Breeding, Open Source Seeds, and Acknowledging User Innovation in Agriculture

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Published by P2P Foundation
Jack Kloppenburg is a Professor in the Department of Community and Environmental Sociology at the University of Wisconsin-Madison. He is the author of the influential First the Seed: The Political Economy of Plant Biotechnology, 1492-2000. In his work on the “foodshed,” he has envisioned the emergence of a sustainable food system founded on local/regional food production, regional reinvestment of capital, local job creation, the strength of community institutions, and direct democratic participation in the local food economy. Most recently, he has joined with farmers, plant breeders and sustainability advocates to establish the Open Source Seed Initiative, an organization committed to facilitating vigorous innovation in plant breeding by preserving the right to unencumbered use of shared seeds and their progeny in breeding programs.
Jack Kloppenburg is a Professor in the Department of Community and Environmental Sociology at the University of Wisconsin-Madison. He is the author of the influential First the Seed: The Political Economy of Plant Biotechnology, 1492-2000. In his work on the “foodshed,” he has envisioned the emergence of a sustainable food system founded on local/regional food production, regional reinvestment of capital, local job creation, the strength of community institutions, and direct democratic participation in the local food economy. Most recently, he has joined with farmers, plant breeders and sustainability advocates to establish the Open Source Seed Initiative, an organization committed to facilitating vigorous innovation in plant breeding by preserving the right to unencumbered use of shared seeds and their progeny in breeding programs.

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Published by: P2P Foundation on Sep 09, 2013
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Electronic copy available at: http://ssrn.com/abstract=1390273
Electronic copy available at: http://ssrn.com/abstract=1390273
 
School of LawUniversity of California, Davis
 
400 Mrak Hall DriveDavis, CA 95616530.752.0243http://www.law.ucdavis.edu
 
UC Davis Legal Studies Research Paper Series
 Research Paper No. 167April 2009
Free Seeds, Not Free Beer": Participatory Plant Breeding, OpenSource Seeds, and Acknowledging User Innovation in Agriculture
Keith Aoki
 This paper can be downloaded without charge from The Social Science Research Network Electronic Paper Collection:http://ssrn.com/abstract=1390273
 
 
Electronic copy available at: http://ssrn.com/abstract=1390273
Electronic copy available at: http://ssrn.com/abstract=1390273
AOKI
 
FINAL 3/28/2009
 
2:32:53
 
PM
101
 
“FREE SEEDS, NOT FREE BEER”:PARTICIPATORY PLANT BREEDING, OPENSOURCE SEEDS, AND ACKNOWLEDGING USERINNOVATION IN AGRICULTURE
Keith Aoki
*
 
I
 NTRODUCTION
 In the context of user-innovation, agriculture has been a field wherefarmers substantively contributed to developing and improving existing andnew plant varieties. This essay paraphrases Free Software Foundation andcomputer programmer 
 par excellence
Richard Stallman’s description of what “free software” means in the context of what the open source softwaremovement may have to impart to contemporary plant breeding. It looks athow the rise and expansion of intellectual property rights in plants andvarieties during the twentieth century has significantly reduced the role of farmers in plant breeding, turning them into consumers providing labor toraise crops in which others hold the underlying intellectual property rights.This essay makes three basic points. First, it examines the shift in thetreatment of plant genetic resources (PGRs) from “common heritage” to“sovereign property.” This shift occurred during 1980s through the 1990sand was embodied in the characterization of PGRs in the 1983 InternationalUndertaking on Plant Genetic Resources (IUPGR) to the characterization inthe 1992 Convention on Biological Diversity (CBD) as “sovereign property.” This was a development that was harmonious to expandingintellectual property rights in such resources as articulated and required bythe 1994 Trade Related Aspects of Intellectual Property (TRIPS).Secondly, this essay stresses the relationship between the public domainand intellectual property rights by examining the difference between “open-access” resources, where no one has the right to exclude, and “limitedcommons” resources that are shared within a group but that are off-limits to
* Professor of Law, University of California-Davis King Hall School of Law. Thanks toKatherine Strandburg, Brett Frischman, and the other participants in the
When WorldsCollide: Intellectual Property at the Interface Between Systems of Knowledge Creation
 Symposium. Thanks to Professor Kevin Davis for his insightful comments on the draft of this paper delivered at the symposium. Thanks also to my research assistants RebekahYalcinkaya and Amanda Sherwood.
 
Electronic copy available at: http://ssrn.com/abstract=1390273
Electronic copy available at: http://ssrn.com/abstract=1390273
AOKI
 
FINAL 3/28/2009
 
2:32:53
 
PM
102
FORDHAM LAW REVIEW 
[Vol. 77free exploitation to outsiders. In the context of PGRs, this essay looks atthe way that the 2001 International Treaty on Plant Genetic Resources(ITPGR) creates a type of “limited commons” for a limited number of cropsand forages and what the benefits and drawbacks of such an approach has.Finally, this essay suggests that, in the pervasive colonization of globalindustrial agriculture by intellectual property controlled by largemultinational agrochemical entities, open source license principles mayhelp farmers and plant breeders cooperate in creating decentralized spacesfor participatory plant breeding and ironically using “private” contracts andlicenses to leverage greater and more open “public” access to plant varietiesand the genetic resources they contain.I.
 
U
SER 
-I
 NNOVATION
,
 
A
GRICULTURE
,
AND
I
 NTELLECTUAL
P
ROPERTY
 As Professor Katherine Strandburg and others have illustrated, wecurrently face critical questions about the global governance of innovation,especially when analyzing the “interplay between the global IP regime andthe revitalized practices of user innovation and open and collaborativeinnovation.”
1
In particular, in the area of agriculture, the emerging globalintellectual property regime of TRIPS seems to embody a distorted balance between initial and follow-on innovation
2
in a way that fails to respect or account for heterogeneous local knowledge of the sort often practiced byfarmer-users.
3
 Drawing on the work of Eric von Hippel, Professor Strandburg hasargued that TRIPS, intellectual property systems in general, and patentsystems in particular of the developed world are heavily biased against
1. Katherine J. Strandburg,
 Evolving Innovation Paradigms and the Global IntellectualProperty Regime
, C
ONN
.
 
L.
 
EV
.
 
(forthcoming 2009) (manuscript at 3),
available at 
http://ssrn.com/abstract=1229543;
see also
Margaret Chon,
 Intellectual Property and the Development Divide
, 27 C
ARDOZO
L.
 
EV
. 2821 (2006); Rochelle Cooper Dreyfuss,
TRIPS- Round II: Should Users Strike Back?
, 71 U.
 
C
HI
.
 
L.
 
EV
.
 
21 (2004); Daniel J. Gervais,
 Intellectual Property, Trade & Development: The State of Play
, 74 F
ORDHAM
L.
 
EV
. 505(2005); Peter K. Yu,
TRIPS and Its Discontents
, 10 M
ARQ
.
 
I
 NTELL
.
 
P
ROP
.
 
L.
 
EV
. 369(2006);
Symposium: Intellectual Property, Trade and Development: Accommodating and  Reconciling Different National Levels of Protection
, 82 C
HI
.-K 
ENT
L.
 
EV
. 1655 (2007).2. Examples of this are, Agreement on Trade-Related Aspects of Intellectual PropertyRights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization,Annex IC, Legal Instruments—Results of the Uruguay Round, art. 27, 33 I.L.M. 1125(1994) [hereinafter TRIPS] (prohibiting discrimination between different fields of technology);
id.
art. 31 (a case-by-case approach to compulsory licensing);
id.
art. 30(limited exceptions to strong patent rights). Note that Katherine Strandburg has proposedamending TRIPS by replacing the current Article 30 with a broad provision allowingexemptions/exceptions “reasonably calculated to promote innovation” and making Articles27 and 28 subject to such exemptions. Strandburg,
supra
note 1 (manuscript at 8).3
. See generally
P
ATRICIA
L
UCIA
C
ANTUÁRIA
M
ARIN
,
 
P
ROVIDING
P
ROTECTION FOR 
P
LANT
G
ENETIC
ESOURCES
:
 
P
ATENTS
,
 
UI 
G
 ENERIS 
 
S
YSTEMS
,
AND
B
IOPARTNERSHIPS
(2002);
 
D
ARRELL
A.
 
P
OSEY
&
 
G
RAHAM
D
UTFIELD
,
 
B
EYOND
I
 NTELLECTUAL
P
ROPERTY
:
 
T
OWARD
T
RADITIONAL
ESOURCE
IGHTS FOR 
I
 NDIGENOUS
P
EOPLES AND
L
OCAL
C
OMMUNITIES
(1996);
 
W
ALTER 
V.
 
EID ET AL
.,
 
B
IODIVERSITY
P
ROSPECTING
:
 
U
SING
G
ENETIC
ESOURCES FOR 
S
USTAINABLE
D
EVELOPMENT
(1993).

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