Lexxion Verlagsgesellschaft mbH

Corporate Plant Breeders and Indigenous Farmers’ Rights

Author(s): Nehaluddin Ahmad, Gary Lilienthal and Paul Hodgkinson
Source: European Food and Feed Law Review , 2018, Vol. 13, No. 5 (2018), pp. 437-451
Published by: Lexxion Verlagsgesellschaft mbH

Stable URL: https://www.jstor.org/stable/10.2307/90026224

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EFFL 5|2018 Corporate Plant Breeders and Indigenous Farmers’ Rights 437

Corporate Plant Breeders and Indigenous

Farmers’ Rights: Linnaeus Overrides the F.A.O.
Nehaluddin Ahmad, Gary Lilienthal and Paul Hodgkinson*

The Malaysian Government has been advised not to ratify the International Convention for
the Protection of New Varieties of Plants of 1991 (UPOV 1991), which favours developed coun-
tries’ corporate plant breeders, at the expense of Malaysian biodiversity and the country’s
small farmers. The article examines critically the rights being manipulated within the un-
derlying legal norms of statutory plant breeders’ rights, with resort to Hohfeld’s three ele-
ments of rights. The question is whether changing the name of a species of plant, after re-
moving the plant from its native habitat, for trade purposes, could effectively extinguish
farmers’ rights. Plants and seeds have been removed from their natural habitats, then re-
named, violating farmers’ rights and misrepresenting them as crops owned by industrial
farming interests. Malaysian rubber plants and seeds have been removed by deception from
their natural indigenous habitats in Brazil, violating both farmers’ claimed, articulated and
enforced customary and UN Food and Agriculture Organization (FAO) rights, and then mis-
represented as crops owned by the industrial farming interests of Europe. This system was
legitimated in the self-deified and ennobled professional Botanist Linnaeus.

Keywords: UPOV 1991; corporate plant breeders; biodiversity; Hohfeld on rights; the craft
of deception; FAO rights; Linnaeus.

I. Introduction . . . law is right taken objectively, from the point of

The Malaysian Government has been urged not to ac-
cede to the International Convention for the Protec-
tion of New Varieties of Plants of 1991 (UPOV 1991).
Malaysia already has the Protection of New Plant Va-
rieties Act 2004 (PNPV Act), under the World Trade
Organisation’s intellectual property agreement.1
The objective is to examine critically the rights ma-
nipulated by statutory plant breeders’ rights. Hohfeld
argued the rule about rights2 as follows:
view of society, right is the personal conviction of
men as to what is due. Right is commonly under-
stood as what a man considers to be right from his
personal point of view, while law is right as laid
down by a power which is above the parties, whose
task is to arbitrate between the various claims and
to harmonise them as a whole.3
Because farmers’ knowledge is central to this argu-
ment about farmers’ rights, consideration begins

* Prof. Dr. Nehaluddin Ahmad, MA, LL.B., LL.M. (Luck. India) LL.M.
(Strathclyde, UK), LL.D. (Meerut University, India) is a Professor at
the School of Law, Sultan Sharif Ali Islamic University (UNISSA),
Brunei Darussalam. For correspondence: <ahmadnehal@yahoo.com
>; Prof. Dr. Gary Lilienthal, Dip. Counselling, (A.I.P.C.), LL.B.,
(Sydney University, Australia), Grad. Dip. Legal Pract., (College of
Law, Sydney), M. Psychoanalytic Studs., (Deakin University, Aus-
tralia), Ph.D., (Law) (Curtin University, Australia) is a Professor of
Law at the School of Law, University of Gondar, Gondar, Ethiopia.
For correspondence: <carrington.rand@icloud.com>; Paul Hodgkin-
son, B.AppSc. (Agric), Charles Sturt University (Australia), is The King
George III Fellow in Botanical Archives, Carrington Rand, Canberra,
Australia. For correspondence: <pkhodgkinson@yahoo.com.au>.
1 S. M. Mohamed Idris, ‘CAP urges gov’t not to join UPOV’,
Malaysiakini, 20th February 2017, https://m.malaysiakini.com/let-
ters/373153#rbBEuojP1qu1dIfU.99, retrieved 7th January 2018.
2 Wesley Newcomb Hohfeld, ‘The Foundations of a Theory of
Rights’, The Virginia Law Register, vol. 10, no. 8, 1924, pp.
549-562.
3 Ibid.

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438 Corporate Plant Breeders and Indigenous Farmers’ Rights
with the Platonic doctrine that knowledge of every
existing object is acquired by three necessary means.4
The knowledge itself comes after these means. Fifth,
the object itself is in a true and cognizable form.5
These four are the name, the definition, the image,
and the knowledge.6 Thus, changing the name of
something affects how it is known, and any right to
property in it.
The question is whether changing the name of a
species of plant, after removing the plant from its na-
tive habitat, for trade purposes, could effectively ex-
tinguish farmers’ rights. We show that plants and
seeds have been removed from their natural habitats,
renamed using a foreign professional system, violat-
ing farmers’ rights and misrepresenting them as
crops owned by industrial farmers.
The argument begins with a short legal narrative
analysis of the intellectual property legal norms un-
derlying the original ownership of Malaysian rubber
trees. Then there is a section on the critical sophisti-
cal context of proposing a law, to allow a critical com-
parison between FAO Farmers’ Rights and the oppos-
ing UPOV-based Plant Breeders’ Rights. Discussion
proceeds to analyse critically the legal role of gener-
ating plant names. The argument concludes with a
critical comparison with the opposing system of folk
plant nomenclature.
The research outcomes suggest that Malaysian
rubber plants and seeds have been removed by de-
ception from their natural indigenous habitats in
Brazil, violating customary and FAO rights, and then
misrepresenting them, simply by renaming them, as
crops owned by European industrial farming inter-
ests. The ennobled botanist Carolus Linnaeus legiti-
mated the naming system, founding an institutional
control emanating from Europe.
II. Indigenous and Corporate Rights
1. The Malaysia Rubber Trees
7 13 Ibid., p. 198. See Richard Evans Schultes, ‘Members of Euphor-
Over some 100 years, an imperial enterprise, Hevea
brasiliensis (Willd. ex A. Juss.) Müll. Arg., a plant of
the spurge family, altered human behaviour world-
wide,8 as the source of 98 percent of natural rubber.9
Rubber-yielding plants grew in the old world, yet Eu-
rope found no significant use for their product made
only in the East. Columbus had observed West Indies
natives playing a game with rubber balls made not
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EFFL 5|2018
from Hevea but from Castilla elastica Cerv., a fig fam-
ily member.10
Schultes reviewed the taxonomic and nomenclat-
ural history of the genus Hevea.11 The scientific com-
munity began to know Hevea in 1775, when botanist
J. B. C. F. Aublet12 described the genus and its first
species, H. guianensis, from French Guiana collec-
tions. He detailed indigenes’ production methods for
rubber, appending ethno-botanical information on
using its seeds for food.13 It is unlikely natives would
have known of this overseas report and its likely ram-
ifications.
In 1801, Carl Ludwig Willdenow,14 a German
botanist, described a second species, H. brasiliensis,
from the mouth of the Amazon River,15 ignoring the
plant’s native name. Subsequent exploration of the
Amazon Valley, by the British Botanist Spruce, added
new species to the genus Hevea, now comprising 10
species and three varieties. Only H. guianensis, H. ben-
thamiana, and H. brasiliensis yielded sufficient latex
to produce rubber on an industrial scale. H. brasilien-
sis gave the best product.16
4 See Plato, Laws 895d, where ‘Essence’, ‘Definition’, and ‘Name’
are enumerated; also see Plato, Parmenides, 142a.
5 Plato, Letter VII, 342a.
6 Ibid., 342b.
7 1876-1976. Kew collectors obtained seeds in 1876 after which
botanists were able to classify and give new names. By 1976, the
rubber industry had utterly altered human lifestyles around the
world like no other single species of plant, according to Richard
Evans Schultes, ‘The Tree that Changed the World in One Centu-
ry’, Arnoldia, vol. 44, no. 2, 1984, pp. 3-16.
8 R. E. Schultes, ‘The History of Taxonomic Studies’, Hevea, Botani-
cal Review, vol. 36, 1970, pp. 197-276.
9 L. G. Polhamus, Rubber: Botany, Production and Utilization,
Interscience Publishers, New York, 1962.
10 Charles Morrow Wilson, Trees & Test Tubes: The Story of Rubber,
Henry Holt, New York, 1943, pp. 26-27; Richard Evans Schultes,
‘The Tree that Changed the World in One Century’, Arnoldia, vol.
44, no. 2, 1984, pp. 3-16.
11 R. E. Schultes, ‘The History of Taxonomic Studies’, in Hevea,
Botanical Review, vol. 36, 1970, pp. 197-276.
12 1720-1778.
biaceae in primitive and advanced societies’, Botanical Journal of
the Linnean Society, vol. 94, 1987, pp. 79-95, at p. 89. Hevea
brasiliensis was valued by Amazonian Indians primarily as a
source of edible, carbohydrate-rich seeds, not for latex. And for
further discussion, Richard Evans Schultes, ‘The Amazonian
Indian and Evolution in Hevea and related genera, Journal of the
Arnold Arboretum, vol. 37, 1956, pp. 123-148.
14 1765-1812
15 Ibid., p. 210.
16 Ibid.
EFFL 5|2018
A formal change of the name of the rubber plant
from that of an ancient indigenous naming system
to that of the Linnean system apparently occurred in
Europe in 1775. French explorers had called the plant
caoutchouc, derived from a South American word,
probably cahuchu, meaning ‘weeping wood’, remain-
ing in indigenous use for three centuries or more.
This likely represented a folk name for the rubber
plant. The same root appears in other European lan-
guages, such as: in German, kautschuk; in Spanish,
caucho; in Italian, caucceio.17 Four years later, L. C.
Richard proposed the new name, Siphonia. Two years
later, Gmelin published a third generic name for this
botanical concept: Caoutchoua and made the bino-
mial C. elastica to replace Aublet's H. guianensis.
Cook argued that Siphonia should be prefered be-
cause Hevea was a Latinized form of an Ecuadorian
Indian name, heve, of the moraceous rubber tree
Castilla elastica Cerv. This vernacular name was nev-
er used for the euphorbiaceous Pará rubber genus.18
Nevertheless, the International Code of Botanical
Nomenclature essentially legislated for Botanists that
Hevea was the correct name.19
17 Charles Morrow Wilson, Trees & Test Tubes: The Story of Rubber,
Henry Holt, New York, 1943, p. 29.
18 O. F. Cook, ‘Naming the cultivated rubber tree Siphonia Rid-
leyana’, Journal of Washington Academy of Science, vol. 31,
1941, pp. 46-65, cited in R. E. Schultes, ‘The History of Taxonom-
ic Studies’, in Hevea, Botanical Review, vol. 36, 1970, pp.
197-276, at p. 199.
19 R. E. Schultes, ‘The History of Taxonomic Studies’, in Hevea,
Botanical Review, vol. 36, 1970, pp. 197-276, at pp. 198-199.
20 O. F. Cook, ‘Naming the cultivated rubber tree Siphonia Rid-
leyana’, Journal of Washington Academy of Science, vol. 31,
1941, pp. 46-65.
21 L. H. Brockway, Science and Colonial Expansion: The Role of the
British Royal Botanic Gardens, Yale University Press, New Haven
& London, 2002, p. 146.
22 H. A. Wickham, On The Plantation, Cultivation, and Curing of
Parà Indian Rubber (Hevea Brasiliensis), with an Account of its
Introduction from the West to the Eastern Tropics, Kegan Paul,
Trench, Trübner, London, 1908, p. 48.
23 Ibid., p 50.
24 Ibid., p. 54.
25 Ibid.
26 H. A. Wickham, On The Plantation, Cultivation, and Curing of
Parà Indian Rubber (Hevea Brasiliensis), with an Account of its
Introduction from the West to the Eastern Tropics, Kegan Paul,
Trench, Trübner, London, 1908, p. 55.
27 P. R. Wycherley, ‘The Singapore Botanic Gardens and Rubber in
Malaya’, Gardens Bulletin Singapore, vol. 17, 1958, pp. 175-186,
at p. 176.
28 H. A. Wickham, On The Plantation, Cultivation, and Curing of
Parà Indian Rubber (Hevea Brasiliensis), with an Account of its
Introduction from the West to the Eastern Tropics, Kegan Paul,
Trench, Trübner, London, 1908, p. 59.
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Corporate Plant Breeders and Indigenous Farmers’ Rights 439
In 1876, the Royal Botanic Gardens of King George
II, successfully germinated rubber seeds from Brazil.
Cook, of the United States Bureau of Plant Industry,
in 1941 described this transfer as ‘Wickham's rape’
of the Brazilian rubber tree,20 suspicious of the trans-
fer’s lawfulness. According to Brockway, indigenes
who already discovered and made selections for im-
provement over countless generations, held the best
varieties of rubber or caoutchouc trees,21 implying
their overt farmers’ right.
Attempts in 1873 and 1875 to transfer Hevea from
Brazil, on behalf of Sir Clements Markham of the In-
dia Office, were unsuccessful. The embryo of Hevea
seed was killed off by rapid fermentation in the trop-
ical heat. When success eventually came to the Eng-
lishman, Henry Wickham, it was because he realised
the problem was that of slow transport. In 1876, the
Amazonas, an English steamboat, steamed up the
Amazon River, finding no return cargo.22 Wickham
chartered the ship and commissioned Tapüyo Indi-
ans to collect and package the seed.23 The ship
steamed downstream from Santarém, 650 km up the
Amazon River. Wickham declared to customs offi-
cials in Pará, at the river's mouth, the ‘exceedingly
delicate botanical specimens specially designated for
delivery to Her Britannic Majesty's own Royal Botan-
ic Gardens of Kew’.24 Officials dispatched the ship,
which steamed to England.25 According to Wick-
ham’s own apparently tendentious account, the mere
mention of a British monarch’s name overcame the
will of South American Customs officials.
Young trees from this transfer, by the Royal Botan-
ic Gardens, were sent to Ceylon, directed by Sir Joseph
Hooker and Sir Clements Markham. Some went on
to Singapore, and others to other tropical parts of the
British Empire.26 The oldest tree of Hevea brasilien-
sis (Willd. ex A.Juss.) Müll.Arg. at Kuala Kangsar,
Malaysia, was one of nine seeds planted in 1877.27
When the Brazilian Government discovered the
British plantation efforts were successful, they pro-
hibited further export of their rubber plant seeds, a
restriction still maintained. Consequently, the huge
rubber plantation industry began with these original
seeds, from a single locality and a single ecotype of
Hevea brasiliensis, not really the most promising one.
Only 26 original trees parented some 1,900 seedlings
from the British Crown’s Kew Botanical Gardens.
Wickham thanked the Indian government, at that
time a colonial vassal state of Britain, for backing
him.28 He appeared to be concerned more with the
440 Corporate Plant Breeders and Indigenous Farmers’ Rights
transfer’s logistics, than with its legality. Schultes re-
flected:
If we consider the changes for the good of mankind
that ‘white blood’ brought about when the rubber
tree was finally domesticated, perhaps we might
agree that it was actually blood of the gods!29
This crafty quote invokes ancient methodologies for
creating new laws, outside the legislature. Wickham’s
rhetoric of whiteness and domestication was careful-
ly calculated to attribute ‘otherness’ to the people
from whom the plants were removed. This set the
scene for using structured scientific knowledge to ig-
nore indigenous rights. Ignoring others’ rights could
now be accomplished by simply introducing new Im-
perial laws, conflicting with, and if properly intro-
duced, successfully overriding indigenous custom-
ary laws.
III. The Critical Sophistical Context of
Proposing a Law
Introducing, attacking or proposing a law was an or-
atorical exercise in the sophistical progymnasmata,
at the highest skill level. The word ‘progymnasmata’
occurred first in Rhetoric for Alexander,30 written dur-
ing the fourth century B.C.E. Aristotle preserved it31
in his On Rhetoric.32 The exercise was more declam-
atory33 than other progymnasmata exercises. It was
29 Richard Evans Schultes, The Tree that Changed the World in One
Century, Arnoldia, Vol. 44, No. 2, 1984, pp. 3-16, at p. 16.
30 P. Chiron, ‘The Rhetoric to Alexander’, in Ian Worthington, ed., A
Companion to Greek Rhetoric, Blackwell, Malden, 2007, p. 90.
31 George A. Kennedy, trans., Progymnasmata: Greek Textbooks of
Prose Composition and Rhetoric, Society of Biblical Literature,
Atlanta, 2003, p. xi.
32 Ibid.; See John H. Freese, trans., Aristotle, The Art of Rhetoric,
Loeb Classical Library, Harvard University Press, Cambridge,
1924.
33 See immediately below for discussion of the term ‘declamation’.
34 The term ‘hypothesis’ refers to declamations on judicial or delib-
erative topics. These declamatory themes identified specific laws
in rhetorical context, or individuals in historical context. Hypoth-
esis differs from the progymnasmata exercise of thesis, which
deals with one proposition without reference to specific persons.
The hypothesis should deal with specific circumstances, such as
person, action and cause. George A Kennedy, trans., Progymnas-
mata: Greek Textbooks of Prose Composition and Rhetoric,
Society of Biblical Literature, Atlanta, 2003, p. xiv, p. 121, citing
Aphthonius on thesis.
35 ‘I shall say that an argument is pragmatic when it consists in
estimating an action, or any event, or a rule, or whatever it may
be, in terms of its favourable or unfavourable consequences; what
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EFFL 5|2018
more of an hypothesis than a thesis.34 However, it
used the thesis procedure of arguing two sides of a
central issue, applied to a specific law.
Practitioners of declamations analysed either an
historical or a legal problem, and developed a prag-
matic argument to respond to its favourability.35
They fashioned their argument to a target audience
who needed to know the consequences of the argu-
ment’s elaboration.36 Thus, ‘introduce a law’ persua-
sively described the causation for a new law.
Ancient manuscripts suggested that four identi-
fied old sophistical masters of this pragmatic skill
discussed elaborating ‘introduce a law’, in their ora-
torical exercises: Hermogenes; Aphthonius; Nico-
laus the Sophist; and, John of Sardis.37
Quintilian categorised the elaboration of introduc-
ing a law as either deliberative or controversial. Few
arguments should be advanced, and they must be
near certain. Arguments were divided into those af-
fecting sacred, public, or private rights.38 The elabo-
rator should commend the law by the three grades,
in ascending order as follows: (a) because it was a
law; (b) because it was public; (c) because it promot-
ed the worship of the gods.39 Rebuttals are based on
the personal standing of the proposer, the proposal’s
procedural probity, or whether it conflicted with any
current law.40 Its interpretation must be constrained
to the local jurisdictions. Justice should be discussed
repeatedly, within more than one point of elabora-
tion.41
happens in such cases is that all or part of the value of the conse-
quences is transferred to whatever is regarded as causing or
preventing them.’ Ch. Perelman, ‘Pragmatic Arguments’, Philoso-
phy, vol. 34, no. 128, 1959, pp. 18-27.
36 Michael Mendelson ‘Declamation, Context, and Controversiality’,
Rhetoric Review, vol. 13, no. 1, 1994, pp. 92-107.
37 Hugo Rabe, ed., Aphnonii Progymnasmata, Teubner, Leipzig,
1926, pp. 27, 47R; George A. Kennedy, trans., Progymnasmata:
Greek Textbooks of Prose Composition and Rhetoric, Society of
Biblical Literature, Atlanta, 2003, pp. 79, 105, 148, 201, 202;
Joseph Felten, ed., Nicolai Progymnasmata, Teubner, Leipzig,
1913, pp. 77-78; George A. Kennedy, trans., Progymnasmata:
Greek Textbooks of Prose Composition and Rhetoric, Society of
Biblical Literature, Atlanta, 2003, p. 207, citing John of Sardis;
Morgan, Literate Education in the Hellenistic and Roman Worlds,
Cambridge University Press, Cambridge, 1998, p. 221; Hugo
Rabe, ed., Aphnonii Progymnasmata, Teubner, Leipzig, 1926, p.
261, 16. It appeared the orator could attribute ratification to a
deity.
38 Quintilian, Institutes of Oratory, Rev. John Selby Watson, trans.,
Bell, London, 1892, Book 2, para. 33.
39 Ibid., para. 34.
40 Ibid., para. 35.
41 Ibid., para. 38.
EFFL 5|2018 Corporate Plant Breeders and Indigenous Farmers’ Rights
Introducing a law was a public promotion of a
pragmatic proposition about rights, as a sacred com-
mand ratified by a deity or paramount lawgiver. It
was elaborated pragmatically in the essential
favourability contexts of justice and enforceability.
The exercise’s argument must show clear causation
of the law’s future consequences, such as through a
popular allegory. This would be cognate to an august
professional institution’s taxonomical rules, such as
those of the Botanists, under the fatherhood of Lin-
naeus.
The United Nations Food and Agricultural Orga-
nization of the United Nations (FAO) appears to have
set about using this process to advance the rights of
indigenous farmers, in its formulation of farmers’
rights.
IV. FAO Farmers’ Rights
1. The Re-emergence of Farmers Rights
Historically, farmers stewarded biodiversity. For at
least 10,000 years, farmers have selected the best
42 F. Mathias, ‘The Agricultural Biodiversity Argument’ in Why
Farmers' Rights Matter, <http://www.farmersrights.org/about/why
_fr_matters_1.html>, retrieved 11th September 2017.
43 R. D. Tella, ‘Towards Promotion and Dissemination of Indigenous
Knowledge. A Case of NIRD’, International Information Library
Review, vol. 39, 2007, pp. 185–193.
44 A. Maroyi, ‘Enhancing Food Security through Cultivation of
Traditional Food Crops in Nhema Communal Area, Midlands
Province, Zimbabwe’, African Journal of Agricultural Research,
vol. 7, 2012, pp. 5412–5420.
45 F. Mathias, ‘The Poverty Eradication Argument’, in Why Farmers'
Rights Matter, 2015, <http://www.farmersrights.org/about/why_fr
_matters_2.html>, retrieved 11th September 2017.
46 Ibid.; United Nations, FAO Treaty, art. 9.2.
47 Josephine R. Axt, M. Lynne Corn, Margaret Lee, and David M.
Ackerman, Biotechnology, Indigenous Peoples, and Intellectual
Property Rights, Congressional Research Service Report for Con-
gress 93–478 A, Washington, 1993, pp. 24-26.
48 Convention on Biological Diversity, article 8(j); see also United
Nations Environment Program (UNEP), Farmers’ rights and rights
of similar groups: The rights of indigenous and local communities
embodying traditional lifestyles—Experience and potential for
implementation of Article 8( j) of the Convention on Biological
Diversity (UNEP/ CBD/IC/2/14, 20 May 1994, Intergovernmental
Committee on the Convention on Biological Diversity, second
session, Nairobi, 20 June–1 July 1994, Item 4.2.4 of the provision-
al agenda), Nairobi, 1994.
49 Daniela Soleri and David A. Cleveland, ‘Hopi Crop Diversity and
Change’, Journal of Ethnobiology, vol. 13, 1993, pp. 203–231.
50 Daniela Soleri and David A. Cleveland, ‘Hopi Crop Diversity and
Change’, Journal of Ethnobiology, vol. 13, 1993, pp. 203–231.
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441
seeds and methods of propagation, and exchanged
them with other farmers, to diversify their varieties.
Their accumulated knowledge has cultivated about
7000 species of food, with over 100,000 distinct vari-
eties.42
Indigenous farming uses systematic indigenous
knowledge, acquired locally through experience, ex-
perimentation, and an understanding of the envi-
ronment and its people’s needs,43 implying local
plant naming. Indigenous systems for crop produc-
tion are expressed as factual formulae, thus exclud-
ing the field of positive law. The farmers generate
indigenous crops with knowledge of the environ-
ment’s conditions and seasonal changes, without
capital, external inputs, or modern industrial knowl-
edge.44
In developing countries, traditional farmers have
remained as stewards of this genetic diversity, but
with worldwide transformations of agriculture now
hindering them. United Nations Food and Agricul-
ture Organization (FAO) deliberations conceived
farmers’ rights to enable farmers’ stewardship of crop
genetic diversity, to spread the risk of crop failure
from pests, diseases or adverse climates.45
Farming implies claims of rights to land and wa-
ter. Farmers usually articulate land rights, water ac-
cess, and easy access to seed, safety and health. There-
fore, farmers’ rights likely subsist as composite bun-
dles of rights.46
2. Rights of Indigenous Farmers
For farmers’ rights, the presumption is of ‘indigenous
farmers’ rights, as those who mainly use ‘traditional’
methods, according to custom, without modern in-
dustrial farming. This includes ‘indigenous’ farmers,
predating invasion by outsiders.47 The Convention
on Biological Diversity refers to ‘indigenous and lo-
cal communities embodying traditional lifestyles’,
cropping methods invaders might not understand.48
Folk crop varieties are the key indicia for this kind of
farming. Indigenous farmers have articulated claims
to traditional crop genetic resources, because of their
long involvement in the creation and stewardship of
these resources.49
Indigenous farmers experiment with modern
crop varieties, adopting them when they show local
adaptation, cultural value and increased yield.50
This necessitates an understanding that indigenous
442 Corporate Plant Breeders and Indigenous Farmers’ Rights
peoples have exercised a right to define them-
selves,51 a claim now recognised by the United Na-
tions.52
The FAO describes farmers’ rights as ‘rights aris-
ing from the past, present and future contribution of
farmers in conserving, improving and making avail-
able plant genetic resources, particularly those in the
centres of origin/diversity. These rights are vested in
the International Community, as trustees for present
and future generations of farmers ….’53 There appears
to be growing agreement internationally that farm-
ers’ rights are both human rights and intellectual
property rights.54 Specifically, the FAO Treaty rights
are as follows:
1. The protection of traditional knowledge rele-
vant to plant genetic resources for food and agri-
culture;
2. The right to equitably participate in sharing
benefits arising from the utilisation of plant ge-
netic resources for food and agriculture;
3. The right to participate in making decisions, at
the national level, on matters related to the con-
servation and sustainable use of plant genetic
resources for food and agriculture;
4. The right that farmers have to save, use, ex-
change and sell farm-saved seed/propagating
material, subject to national law and as appro-
priate.55
Protection of traditional knowledge, as might be rel-
evant to plant genetic resources for food and agricul-
ture, implies from Plato’s seventh letter that a right
to naming such plants must also be protected.56 A
51 Hurst Hannum, Autonomy, Sovereignty, and Self-Determination:
The Accommodation of Conflicting Rights, University of Pennsyl-
vania Press, Philadelphia, 1996; Pacific Concerns Resource
Center, Proceedings of the Indigenous Peoples’ Knowledge and
Intellectual Property Rights Consultation, Pacific Concerns Re-
source Center, Sura, 1985.
52 Josephine R. Axt, M. Lynne Corn, Margaret Lee, and David M.
Ackerman, Biotechnology, Indigenous Peoples, and Intellectual
Property Rights, Congressional Research Service Report for Con-
gress 93–478 A, Washington, 1993, pp. 24-26.
53 See FAO Treaty, art. 9.2; Jose Esquinas-Alcazar, ‘Farmers’ Rights’,
Paper presented at the Patenting Life Workshop, STOA of the
European Parliament, Brussels, Belgium, March 3–4, 1994.
54 David A. Cleveland and Stephen C. Murray, ‘The World's Crop
Genetic Resources and the Rights of Indigenous Farmers’, Current
Anthropology, vol. 38, no. 4, 1997, pp. 477-516, at p. 490.
55 FAO Treaty, art. 9.2.
56 Plato, Letter VII, 342a.
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right to equitably participate in sharing benefits aris-
ing from the utilisation of plant genetic resources im-
plies that industrial farmer corporations may not mo-
nopolise these resources. A right to participate in
making decisions at the national level suggests that
legislative drafters, who implement statutes without
consultation with indigenous farmers, violate the
FAO right. The terms ‘national law’ and ‘as appropri-
ate’ appear to agree with the requirements of ‘intro-
duce a law’, as above.
The World Intellectual Property Organization
(WIPO) has studied applying customary laws to tra-
ditional knowledge generating farmers’ rights.57
Food and Agriculture Organization studies conclud-
ed, in part, that recognising and protecting custom-
ary land rights was a critical component of protect-
ing indigenous land rights.58
3. Rights and Obligations
The rights to property, generally and including intel-
lectual property, are negative rights with exclusion-
ary facets of the claim. Following Hohfeld’s view of
Austin, the idea of a property right could be expressed
as follows: where someone had a right, there was a
state of affairs with one person having a claim on an
act of forbearance by another person.59 This forbear-
ance protected the rights-holders’ interests, inferring
a grant of exclusive rights to use, dispose of and trans-
fer property.60 Because it was a state of affairs, it must
be proved by a bundle of facts and sustaining sub-
sidiary evidence.
57 See World Intellectual Property Organization, Leaflet No. 12:
WIPO and Indigenous Peoples, WIPO, 2017, p. 4; Rodrigo de la
Cruz I, ‘Regional Study in the Andean Countries: Customary Law
in the Protection of Traditional Knowledge’, Final Report Revised
for WIPO, Quito, November 2006.
58 Rachael S. Knight, Statutory Recognition of Customary Land
Rights in Africa: An Investigation into Best Practices for Lawmaking
and Implementation, FAO Legislative Study 105, Food and Agri-
culture Organization of the United Nations, Rome, 2010, p. vi.
59 John Austin, Lectures on Jurisprudence – The Philosophy of
Positive Law, 5th edn., Holt, New York, 1885, vol. I, p. 397, vol. II,
pp. 799, 802, 808, cited with approval in Wesley Newcomb
Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial
Reasoning’, The Yale Law Journal, vol. 26, no. 8, 1917, pp.
710-770, at pp. 748, 749.
60 This statement of Hohfeld’s so-called ‘correlativity axiom’ is
nevertheless subject to several exceptions, as argued in Ronen
Perry, ‘Correlativity’, Law and Philosophy, vol. 28, no. 6, 2009,
pp. 537-584.
EFFL 5|2018
Hohfeld’s correlativity axiom, discussed above, as
applied to FAO farmers’ rights, appears to have been
violated by world commercial interests, backed by
some Western European states, in a process of sim-
ply introducing new laws that overrode and conflict-
ed with the indigenous farmers’ rights.
V. Plant Breeders’ Rights Legislation
1. Trade-Related Aspects of Intellectual
Property Rights
The World Trade Organization's (WTO) agreement
on Trade-Related Aspects of Intellectual Property
Rights (TRIPs) mandates member states to protect
plant varieties with their patents regime, a sui gener-
is system, or with a hybrid combination. Most states
do this through the International Union for the Pro-
tection of New Varieties of Plants (UPOV) Conven-
tion-compliant statutes.61
The original push for forming UPOV came from
three European organizations: ASSINSEL, a corpo-
rate commercial plant breeders’ trading group,
formed for plant varieties protection;62 Association
Internationale pour la Protection de la Propriété In-
tellectuelle, (AIPPI), an organization promoting in-
dustrial patents;63 and, the International Chamber of
Commerce. Six Western European countries found-
61 International Union for the Protection of New Varieties of Plants,
Guidance for the Preparation of Laws Based on the 1991 Act of
the UPOV Convention, adopted by the Council at its Forty-
Seventh Ordinary Session on October 24, 2013, Geneva.
62 The International Association of Plant Breeders for the Protection
of Plant Varieties. International Seed Federation, History of the
International Seed Federation, <http://pestlist.world-
seed.org/isf/history.html>, 2017.
63 Association Internationale pour la Protection de la Propriété
Intellectuelle (AIPPI), About AIPPI, <https://aippi.org/about-
aippi/>, 2017, retrieved 28th July 2017.
64 Association for Plant Breeding for the Benefit of Society, UPOV
Convention, <http://www.apbrebes.org/content/upov-convention
>, 2011, retrieved 28th July 2017.
65 Karin Fister, Iztok Fister, Jana Murovec, Borut Bohanec, ‘DNA
Labelling of Varieties Covered by Patent Protection: A New
Solution for Managing Intellectual Property Rights in the Seed
Industry’, Transgenic Research, vol. 26, no. 1, 2017, pp. 87–95.
66 International Convention for the Protection of New Varieties of
Plants, adopted in Paris in 1961, revised in 1972, 1978 and 1991.
The UPOV Convention has been revised on 10 November 1972,
on 23 October 1978, and on 19 March 1991, in order to reflect
technological developments in plant breeding and experience
acquired with the application of the UPOV Convention.
67 Ibid.
68 Ibid., art. 1(vi).
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Corporate Plant Breeders and Indigenous Farmers’ Rights 443
ed UPOV. With the WTO’s TRIPS Agreement, there
are an increasing number of trade agreements oblig-
ing developing states parties to join UPOV and im-
plement its statutes.64
World Trade Organization members must ac-
knowledge new plant varieties, and uphold them as
intellectual property rights. The 1991 UPOV conven-
tion confers such rights upon an individual breeder,
identified as someone who either found, ‘collected’,
or created a new plant variety, someone having legal
contractual capacity for the production of the new
plant variety, or someone with inherited legal rights
to this category of intellectual property.65 This sounds
like it could facilitate the old discovery/terra nullius
formulation for acquiring the others’ property by the
rhetoric of institutional knowledge overriding in-
digenous rights.
2. International Union for the Protection
of New Varieties of Plants
The International Union for the Protection of New
Varieties of Plants system of plant variety protection
arose with the International Convention for the Pro-
tection of New Varieties of Plants, adopted by a Paris
Diplomatic Conference of 2nd December 1961.66 The
United Kingdom, the Netherlands and Germany rat-
ified this UPOV Convention on 10th August 1968,
thereby creating the international basis for recogni-
tion of plant breeders’ intellectual property rights,67
apparently without any consensus from the remain-
ing countries in the world, or assessments of favoura-
bility to their farmers’ rights.
3. Plant Variety
Although a plant species’ rank is a significant botan-
ical classification, plants within a species can be
quite different. Thus, farmers and growers are said
to prefer a more accurately defined group of plant
nomenclature, from within a species, which they call
a ‘plant variety’. The UPOV Convention defines
‘plant variety’ as a plant grouping within a single
botanical taxon of the lowest known rank. This def-
inition provides that a plant variety must be recog-
nisable by its characteristics, visibly different from
any other plant variety, and remain unaffected by
propagation.68
444 Corporate Plant Breeders and Indigenous Farmers’ Rights
4. Denomination
Each UPOV member must register a new plant’s de-
nomination of variety when it issues the new vari-
ety’s title of protection. The breeder chooses the new
variety’s denomination. It must satisfy all the crite-
ria in the 1991 UPOV Act.69
The breeder must submit the new denomination
to all members of the Union and, unless unsuitable
within any particular jurisdiction, all Union mem-
bers will register the submitted denomination. A
trademark, trade name, or similar, may be connect-
ed with the submitted denomination for selling or
marketing, provided it is easily recognizable.70
5. UPOV Guidance for the Preparation
of Laws
Chapter VI of the UPOV Guidance for the Prepara-
tion of Laws discusses Variety Denomination. It in-
69 It must be different from all other denominations used by other
members of the Union for the same, or a closely related, species;
it must not be liable to mislead or cause confusion concerning
the nature of the variety or identity of the breeder; it must enable
the variety to be identified; no rights in the denomination shall
hamper its free use as the variety denomination (even after expiry
of the breeder's right); prior rights of third persons must not be
affected and such rights can require a change of the variety
denomination; it may not consist solely of figures, unless this is an
established practice. UPOV 1991 Act, art. 20
70 UPOV 1991 Act, art. 20.
71 The variety shall be designated by a denomination, which will be
its generic designation. Subject to paragraph [(4)], no rights in
the designation registered as the denomination of the variety
shall hamper the free use of the denomination in connection
with the variety, even after the expiration of the breeder’s right.
International Union for the Protection of New Varieties of Plants,
Guidance for the Preparation of Laws Based on the 1991 Act of
the UPOV Convention, Adopted by the Council at its Forty-
Seventh Ordinary Session on 24 October 2013, Geneva, art.
20(1).
72 International Union for the Protection of New Varieties Of Plants,
Guidance for the Preparation of Laws Based on the 1991 Act of
the UPOV Convention, Adopted by the Council at its Forty-
Seventh Ordinary Session on 24 October 2013, Geneva, art.
20(2).
73 International Union for the Protection of New Varieties of Plants,
Guidance for the Preparation of Laws Based on the 1991 Act of
the UPOV Convention, Adopted by the Council at its Forty-
Seventh Ordinary Session on 24 October 2013, Geneva, art.
20(3).
74 Prior rights of third persons shall not be affected. If, by reason of a
prior right, the use of the denomination of a variety is forbidden
to a person who, in accordance with the provisions of paragraph
[(7)], is obliged to use it, the [name of the authority] shall require
the breeder to submit another denomination for the variety.
International Union for the Protection of New Varieties of Plants,
Guidance for the Preparation of Laws Based on the 1991 Act of
the UPOV Convention, Adopted by the Council at its Forty-
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EFFL 5|2018
structs legislative draftspersons, in states’ legisla-
tures, to model their Plant Breeder Acts sections on
denomination, under the following headings and de-
scriptions.
(a) Designation of varieties by denominations; use
of the denomination;71 (b) Characteristics of the de-
nomination;72 (c) Registration of the denomina-
tion;73 (d) Prior rights of third persons;74 (e) Same
denomination in all members of UPOV;75 (f) Infor-
mation concerning variety denominations;76 (g)
Obligation to use the denomination;77 and (h) Indi-
cations used in association with denominations.78
This virtually ensures close similarity of the vari-
ous states’ legislation, violating several of the require-
ments of elaboration in ‘introduce a law’, discussed
as above. The Malaysian Protection of New Plant Va-
rieties Act, 2004, sets out that country’s rules for de-
nomination in a single statutory section:
Denomination of a new plant variety. (1) The de-
nomination of a plant variety the registration of
which by the Board is applied for: (a) shall be the
Seventh Ordinary Session on 24 October 2013, Geneva, art.
20(4).
75 A variety must be submitted to all members of UPOV under the
same denomination. The [name of the authority] shall register the
denomination so submitted, unless it considers the denomination
unsuitable. In the latter case, it shall require the breeder to submit
another denomination. International Union for the Protection of
New Varieties of Plants, Guidance for the Preparation of Laws
Based on the 1991 Act of the UPOV Convention, Adopted by the
Council at its Forty-Seventh Ordinary Session on 24 October
2013, Geneva, art. 20(5).
76 The [name of the authority] ensures that the authorities of the
members of UPOV are informed of matters concerning variety
denominations, in particular the submission, registration and
cancellation of denominations. Any authority may address its
observations, if any, on the registration of a denomination to the
[name of the authority]. International Union for the Protection of
New Varieties of Plants, Guidance for the Preparation of Laws
Based on the 1991 Act of the UPOV Convention, Adopted by the
Council at its Forty-Seventh Ordinary Session on 24 October
2013, Geneva, art. 20(6).
77 Any person who offers for sale or markets propagating material of
a variety protected within the territory of [State/Intergovernmental
Organization] is obliged to use the denomination of that variety,
even after the expiration of the breeder’s right in that variety,
except where, in accordance with the provisions of paragraph
[(4)], prior rights prevent such use. International Union for the
Protection of New Varieties of Plants, Guidance for the Prepara-
tion of Laws Based on the 1991 Act of the UPOV Convention,
Adopted by the Council at its Forty-Seventh Ordinary Session on
24 October 2013, Geneva, art. 20(7).
78 When a variety is offered for sale or marketed, it is permitted to
associate a trademark, trade name or other similar indication with
a registered variety denomination. If such an indication is so
associated, the denomination must nevertheless be easily recog-
nizable. International Union for the Protection of New Varieties
of Plants, Guidance for the Preparation of Laws Based on the
1991 Act of the UPOV Convention, Adopted by the Council at its
Forty-Seventh Ordinary Session on 24 October 2013, Geneva,
art. 20(8).
EFFL 5|2018
generic designation of the plant variety; (b) must
enable the plant variety to be identified; (c) shall
not exclusively consist of numerals; and (d) shall
be different from other plant variety denomina-
tions which identify an existing plant variety of
the same plant species or a closely related species.
(2) The Board may reject any denomination of a
plant variety which : (a) does not satisfy the re-
quirements of subsection (1); (b) is contrary to pub-
lic order or morality (c) is not suitable for the iden-
tification of the plant variety; or (d) may cause con-
fusion concerning the characteristics or the iden-
tity of the breeder of the plant variety. (3) Where
a denomination of a plant variety is rejected by
the Board under subsection (2), the Board may re-
quire the applicant to furnish a new denomination
within a specified time. (4) If a new denomination
as required under subsection (3) is not furnished
by the applicant within the time specified by the
Board, the application shall be deemed to be with-
drawn and shall not be further proceeded with,
but without prejudice to a fresh application being
made by the applicant. (5) The denomination of a
registered plant variety shall be used when the
plant variety is offered for sale on a commercial
basis and if a trade mark, trade name or other sim-
ilar indication is used together with the denomi-
nation, the denomination of that registered plant
variety must remain easily recognizable. (6)
Notwithstanding the expiration of the duration of
the breeder's right in respect of a plant variety, any
person who offers for sale on a commercial basis
any propagating material of a registered plant va-
riety shall continue to use the denomination of
that registered plant variety.79
79 Protection of New Plant Varieties Act 2004, (Malaysia), sect. 16.
80 Anna Pavord, The Naming of Names: The Search for Order in the
World of Plants, Bloomsbury Publishing, London, 2005, p. 26.
81 Michael Foucault, The Order of Things, Tavistock Publications,
London, 1970, p. 134.
82 Brad Sherman, ‘Taxonomic Property’, The Cambridge Law Jour-
nal, vol. 67, no. 3, 2008, pp. 560-584, at p. 566.
83 Judith Winston, Describing Species: Practical Taxonomic Proce-
dures for Biologists, Columbia University Press, New York, 1999,
p. 9.
84 J. McNeill, ‘Nomenclature of Cultivated Plants: A Historical
Botanical Standpoint’, Acta Horticulturae, vol. 29, 2004, pp.
29-36, at p. 31.
85 C. Jeffrey, An Introduction to Plant Taxonomy, Academic Press,
London, 1968, p. 17.
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Corporate Plant Breeders and Indigenous Farmers’ Rights 445
Arguably, this Malaysia statutory provision already
satisfies Chapter VI of the UPOV Guidance for the
Preparation of Laws, being consistent with UPOV
guidance, suggesting a violation of Malaysia’s own
farmers’ customs and, therefore, their farmers’
rights. Of prime importance in protecting farmers’
traditional knowledge is maintaining their system of
plant nomenclature because, according to the doc-
trine in Plato’s seventh letter, the name ultimately
generates knowledge of the plant.
VI. Plant Names
1. Taxonomic Norms
People needed to identify and differentiate plants,
for professional purposes. In the 18th and 19th cen-
turies, world trade in plants expanded.80 Confusion,
created by this increasing trade, raised demand for
a general science of order, that would make sure
when ‘confronted with the same individual entity,
everyone will give the same description, and inverse-
ly, given such a description everyone will be able to
recognise the individual entities that correspond to
it’.81
The 1867 Paris First International Botanical Con-
gress formally adopted the International Code of
Botanical Nomenclature as the global standard for
plant classification and naming.82 The latest version
of it is the Shenzhen Code, adopted in 2017 at the
19th International Botanical Congress. These are es-
sentially private statutes, and therefore for their le-
gitimisation, they will require famous people of the
status of paramount law-giver.
Thus, plant taxonomy comprises three associated
activities: (a) ‘identification’, referencing a plant
within a previously named and classified set; (b) ‘clas-
sification’, collating plants into sets perceived by dif-
ferences and similarities; and, (c) ‘nomenclature’,
naming these sets of plants following rules based on
agreed norms.83 Note the uncanny similarity to claim,
articulation and enforcement of rights. The taxono-
mists’ classification scheme is a hierarchy of taxo-
nomic categories, operating like a ‘box-within-a
box’.84 The plant world hierarchy is divided into ‘Di-
visions; Classes; Orders; Families, Genera (genus),
and Species ... While all of these categories are im-
portant, the species plays a special role, as it acts as
the empirical or basic unit of classification’.85
446 Corporate Plant Breeders and Indigenous Farmers’ Rights
Above the level of species, there is agreement
among officials about taxonomic categories, howev-
er, there is less agreement about plant sub-species,86
still the domain of local farmers. Many different
names have been given to taxons, below the level of
species. These include cultivars, subspecies, forma,
sub-forma, varieties, and subvarieties. This disagree-
ment is because cultivated plants have mostly not fit
well within official botanical taxonomy.87 Thus, nam-
ing and classifying cultivated plants has a separate
body of rules and procedures, stated in the Interna-
tional Code of Nomenclature for Cultivated Plants.88
Since Linnaeus’s time,89 taxonomists have used mor-
phological or physical correspondences and dissim-
ilarities to distinguish and classify sub-species. These
remain the principal criteria for plant classification.90
One of the International Code of Botanical Nomen-
clature precepts is the Rule of Priority, which states,
after 1753, that when a plant has two names, the valid
name is the first to be published, which was essen-
tially obliteration by publication of names given by
indigenous farmers. De Candolle advocated for the
application of the priority principle in the mid nine-
teenth century. It was adopted at the 1867 Paris First
International Botanical Congress, remaining in all
subsequent botanical codes.91
To be published validly, the taxon’s name must be
published in a recognised scientific publication, with
general public distribution of its printed matter, or
at least to botanical institutions with libraries acces-
86 J. Hawkes, ‘Infraspecific Classification: the Problems’ in B. Sykes,
ed., Infraspecific Classification of Wild and Cultivated Plants,
Oxford University Press, Oxford, 1986, p. 1.
87 C. Jeffrey, An Introduction to Plant Taxonomy, Academic Press,
London, 1968, p. 91.
88 International Code of Nomenclature for Cultivated Plants, Interna-
tional Code of Nomenclature for Cultivated Plants, 8th edn.,
Scripta Horticulturae, Number 10, 2009; Brad Sherman, ‘Taxo-
nomic Property’, The Cambridge Law Journal, vol. 67, no. 3,
2008, pp. 560-584, at p. 567.
89 1707–1778; See Carolus Linnaeus, Systema naturæ per regna tria
naturæ, secundum classes, ordines, genera, species, cum charac-
teribus, differentiis, synonymis, locis or translated: ‘System of
nature through the three kingdoms of nature, according to class-
es, orders, genera and species, with characters, differences,
synonyms, places’, 10th edn., Laur. Magnus Hojer, Uppsala,
1758.
90 Brad Sherman, ‘Taxonomic Property’, The Cambridge Law Jour-
nal, vol. 67, no. 3, 2008, pp. 560-584, at p. 568.
91 See Alphonse de Candolle, Géographie botanique raisonnée, V.
Masson, Paris, 1855. In 1855 de Candolle published Géographie
Botanique Raisonnée. This brought together the data being col-
lected by the contemporary world expeditions. It explained
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EFFL 5|2018
sible to botanists.92 The Code also regulates the
name’s valid form.93 Excluding local farmers’ partic-
ipation, it requires the name to be in Latin, comply-
ing with the 18th century Linnaeus system. Thus,
each species is given a binomial name, the first word
of which is its genus (common noun) and the second
word a specific (trivial) epithet (adjective or posses-
sive noun).94
Before the binomial system, names often had ep-
ithets for the species’ descriptive features, and when-
ever a species was inserted into a new genus, its name
also changed.95 This system became unmanageable,
with world growth in plant names. Linnaeus’ system
overcame this problem because the binomial name
designated, rather than described, the plant. The bi-
nomial system thus separated official plant naming
from local farmers’ classification. It separated
nomenclature from taxonomy. A name would there-
fore remain the same, even when a plant’s character-
isation changed. This successfully stabilized plant
names,96 while ignoring indigenous farmed local
variations. Linnaeus was being set up as a person of
the status of great law-giver.
Another important principal in the International
Code of Botanical Nomenclature is the ‘type method’,
in which a name is attached permanently to its
nomenclatural type. This is the element, which vali-
dates the description of the publication of a name.97
Taxonomists have described the type method ‘as a le-
gal device to provide the correct name for a taxon’.98
living organisms within their environment and why plants were
distributed geograhically the way they were. This book had a
significant impact upon Harvard botanist Asa Gray. A. Hunter
Dupree, Asa Gray, American Botanist, Friend of Darwin, Johns
Hopkins University Press, Baltimore, 1988, pp. 235–236.
92 International Code of Botanical Plant Nomenclature (2000), Art.
32.1(a).
93 Ibid., Arts. 16-27; Brad Sherman, ‘Taxonomic Property’, The
Cambridge Law Journal, vol. 67, no. 3, 2008, pp. 560-584, at p.
568.
94 International Code of Botanical Plant Nomenclature (2000), Art.
23.1.
95 J. McNeill, ‘Nomenclature of Cultivated Plants: A Historical
Botanical Standpoint’, Acta Horticulturae, vol. 29, 2004, pp.
29-36, at p. 30.
96 Brad Sherman, ‘Taxonomic Property’, The Cambridge Law Jour-
nal, vol. 67, no. 3, 2008, pp. 560-584, at p. 569.
97 Clive Stace, Plant Taxonomy and Biosystematics, 2nd edn.,
Format Books, New York 1989, p. 213.
98 Samuel Jones & Arlene Luchsinger, Plant Systematics, 2nd edn.,
McGraw-Hill, New York 1986, p. 45.
EFFL 5|2018 Corporate Plant Breeders and Indigenous Farmers’ Rights
The type is a nomenclature expedient, fixing a botan-
ical name to a specific taxon. It requires taxonomists
to attach a new species’ name to a single individual
representative of that species, the so-called ‘type spec-
imen’. For it to be valid, publication must include the
type’s name and the institution or herbarium where
the type is held.99 Thus, botanists extinguish indige-
nous farmers’ rights.
Linnaeus wrote, in 1737, that the generic name had
the same value on the market of botany, as a coin had
in the commonwealth, as long as it became known.100
So that botanical names could function as descrip-
tions, there must be no restrictions on each name’s
use, except only to ensure the name was stable. Thus,
the name must be universally available for use.101
This is now reflected in the UPOV rule that after a
variety’s denomination is registered, no rights accru-
ing from it shall prevent its free use with the vari-
ety.102
The Director of the Kew Royal Botanic Gardens
stated that increasing worldwide trade in cultivated
plants, together with stronger legal protection of new
cultivars, demanded that names be precise, accurate
and stable.103 One of the pre-conditions for a grant
of protection for plant variety rights was that the ap-
plication must articulate a denomination, or genus,
for the new variety.104 When a name was registered,
United States plant variety rights law, for example,
dictated that the name must be applied as the plant’s
generic name,105 eliminating any possibility for reg-
istration for protection of now value-less local indige-
nous farmed species.
99 International Code of Botanical Nomenclature, 2000, Arts.
37-38.
100 C. Linnaeus, Critica Botanica (1737), p. 204, cited in S. Müller-
Wille, ‘Nature as Marketplace: The Political Economy of Linnaean
Botany’, History of Political Economy, vol. 35, 2003, pp.
154-172, at p. 158; Brad Sherman, ‘Taxonomic Property’, The
Cambridge Law Journal, vol. 67, no. 3, 2008, pp. 560-584, at p.
570.
101 International Code of Nomenclature for Cultivated Plants (2004),
Art. 28.3.
102 UPOV, 1991, Art. 13.
103 J. Hawkes, ‘Infraspecific Classification: the Problems’ in B. Sykes,
ed., Infraspecific Classification of Wild and Cultivated Plants,
Oxford University Press, Oxford, 1986, p. 6.
104 100 UPOV (1991), Art. 20(7).
105 Since 1987, the US Patent and Trademark Office has required that
a cultivar name be included in each plant patent application.
Brad Sherman, ‘Taxonomic Property’, The Cambridge Law Jour-
nal, vol. 67, no. 3, 2008, pp. 560-584, at p. 581.
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447
2. Personality Bases for Naming
A need existed for a common code for naming the
increasing number of crops selected for their superi-
or characteristics for cultivation.106 At the 1910 Inter-
national Botanical Congress, a subcommittee, led by
Rendle, drafted the International Code of Nomencla-
ture for Cultivated Plants.107 Ratified in 1930, it al-
lowed naming for both botanical and cultivated va-
rieties,108 thus providing an international platform
of sufficient status to eliminate indigenous farmers’
naming systems.
The majority of scientific plant names are La-
tinised names of Greek origin. Pliny used common
Latin names instead of Greek names where extant,
translating botanical texts by Theophrastus.109 The
Renaissance resurgence of learning in Europe was a
rediscovery of classical knowledge and included the
Greek texts by Theophrastus110 and Dioscorides.111
Linnaeus listed many other Latinised Greek names
in his Critica Botanica and Philosophia Botanica, tak-
ing ancient names in designating new genera.112 In
Critica Botanica,113 Linnaeus decreed Greek generic
names were to be written in Latin character, since ‘in
every age it had been recognised practice among all
botanists, by Pliny and others, to write Greek names
in Roman letters’.114 Thus, classical deified figures
appear in many plant names as tributes to Greek
Mythology, for example, Narcissus the youth, who
fell in love with his own reflection.
Narcissus was a beautiful youth, son of the river-
god Cephissus, who attracted the attention of a
106 Robert L. Geneve, Plant Names, University of Kentucky, Depart-
ment of Horticulture, 2017, [24].
107 W.T. Stearn, ‘Proposed International code of nomenclature for
cultivated plants’, Journal of Royal Horticultural Society, vol. 77,
1952, pp. 157-173.
108 Robert L. Geneve, Plant Names, University of Kentucky, Depart-
ment of Horticulture, 2017, [24].
109 William T Stearn, Botanical Latin, David & Charles, Brunel
House, Newton Abbot, Devon UK, 2013, Chapter 19, Greek
Words in Botanical Latin, p. 252.
110 Theophrastus, De historia plantarum, Venetiis Aldus Manutius,
Romanus, 1497.
111 Dioscourides, De material medica, T. A. Osbaldeston, trans., 1st
edn., IBIDIS Press, Johannesburg, South Africa, 2000.
112 William T Stearn, Botanical Latin, David & Charles, Brunel
House, Newton Abbot, Devon UK, 2013, Chapter 19, Greek
Words in Botanical Latin, p. 252.
113 C. Linnaeus, Critica Botanica, Conrad Wishoff, Leiden, 1737.
114 Ibid, p. 253.
448 Corporate Plant Breeders and Indigenous Farmers’ Rights
mountain nymph Echo and in failing to return her
love, her grief was great and she gradually pined
away, becoming a mere shadow of her former self
until nothing remained except for her voice, which
from then on gave back, with unerring fidelity,
every sound that was uttered in the hills and dales.
Narcissus was punished by Aphrodite by causing
him to fall in love with his own image, which he
beheld in a neighbouring fountain, whereupon,
consumed with unrequited love, he wasted away,
and was changed into the flower which bears his
name.115
Asclepias commemorated Asclepias, the Greek god
of medicine.
Asclepias, the god of the healing art, was the son
of Apollo and the nymph Coronis. He was educat-
ed by the noble Centaur Chiron, who instructed
him in all knowledge, but more especially in that
of the properties of herbs. Asclepias searched out
the hidden powers of plants, and discovered cures
for the various diseases that afflict the human
body. He brought his art to such perfection that he
not only succeeded in warding off death, but also
restored the dead to life. It was popularly believed
that he was materially assisted in his wonderful
cures by the blood of the Medusa, given to him by
Pallas-Athene.116
This naming system would be too overwhelming for
those in indigenous farming communities trying to
exercise traditional farmers’ rights.
As a major commemoration, Carolus Linnaeus,117
by now dubbed ‘Father of plant taxonomy,’118 was an
individual of complexity, self-consciousness and self-
importance, viewing himself alternately as the great
reformer of botanical science or as an insignificant
disregarded individual resembling the small plant,
Linnaea borealis L., with which he chose to commem-
orate himself.119 In his autobiography, Linnaeus de-
ified himself by stating that God had been with him,
eradicating his enemies and making a great name
for him, as great as those of the greatest men on
Earth.120
Plant names that commemorated historical fig-
ures in botany were a favoured group. An awareness
of personal mortality motivated Linnaeus to honour
himself and fellow botanists in some plant names.
In Critica Botanica, he wrote that he felt that gener-
ic names formed to perpetuate the memory of a
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botanist of excellent service should be preserved re-
ligiously.121
3. Herbals and Herbalists
The strong association between deified rule-makers
of official botany and official medicine’s arguably
slippery slope process of ‘medicalization’122 for man-
aging social danger was demonstrated in the theoret-
ical term, the Doctrine of Signatures.123 This 15th to
17th-century theory asserted that God created every-
thing in the physical world for human benefit and
all had a specific purpose relative to humankind. God
imparted a ‘signature’ on plants as pointers to how
to use the plant in medicine.124 Nicholas Culpep-
per125 popularized the notion of the Doctrine of Sig-
natures. In his herbal, clearly referring to Platos’ sev-
enth letter advice on knowledge, he wrote: ‘by the
icon (or image) of every herb, man first found out
their virtues.’126
The Doctrine of Signatures attributed the plants’
form or location as a clue to their medicinal uses.
115 E. M. Berens, The Myths and Legends of Ancient Greece and
Rome [1894], Books on Demand, 2011, pp. 172-173.
116 E. M. Berens, The Myths and Legends of Ancient Greece and
Rome [1894], Books on Demand, 2011, p. 180.
117 1707-1778.
118 Zhi-Qiang Zhang, Hans-Joachim Esser, and Maarten JM Christen-
husz, ‘Phytotaxa 100: The Rise of a Major Journal in Systematic
and Taxonomic Botany’, Phytotaxa, vol. 100. no. 1, 2013, p. 1.
119 Heinrich C. Kuhn & Eckhard Keßer, The Polemics between Carl
Linnaeus and Johann Georg Siegesbeck, n.d., Scricciolo [website],
<http://www.scricciolo.com/linnaeus_polemic.htm>, accessed 22
July 2017.
120 Ibid.
121 Carl von Linné and J. Browallius, Caroli Linnaei Critica Botanica
in Quq Nomina Plantrum Generica, Specifica, Et Variantia, Lug-
duni Batavorum, Apud Conradum, Wishoff, 1737; Carolus Lin-
naeus, Philosophica Botanica, S. Freer, trans., Oxford University
Press, Oxford, 2003, p. 285.
122 In 1983, Zola defined medicalization as ‘a process whereby more
and more aspects of daily life have come under the control, the
influence and the supervision of medicine’. I. K. Zola, Socio-
medical Inquiries: Recollections, Reflections and Reconsidera-
tions, Temple University Press, Philadelphia, 1983, p. 295.
123 Jakob Boehme, Signatura Rerum, or The Signature of All Things,
Gyles Calvert, London, 1651.
124 L. I. Conrad, M. Neve, V. Nutton, & R. Porter, The Western Med-
ical Tradition, 800 BC - 1800 AD, Cambridge University Press,
Cambridge, 1995; R. Porter, The Greatest Benefit to Mankind: A
Medical History of Humanity from Antiquity to the Present,
Harper Collins, London, 1997.
125 1616 – 1654.
126 N. Culpepper, Cullpepper’s Complete Herbal: A Book of Natural
Remedies of Ancient Ills, Foulsham, London, 1880, p. 24.
EFFL 5|2018 Corporate Plant Breeders and Indigenous Farmers’ Rights
Many common names like bone set, eye-bright, liv-
erwort, and heart's ease reflected their uses.127 The
Doctrine of Signatures ‘is primarily a symbolic de-
vice used to transfer information, especially in pre-
literate societies’,128 suggesting how indigenous
farmers might have been persuaded to yield to ‘their
betters’ in Europe, and accept foreign-made statutes
by botanists.
John Gerard129 was the most recognised of these
European herbalists. His popular herbal, called the
Herball or Generall Historie of Plantes, is still in
print.130 He reformulated Dodoens' herbal, pub-
lished 43 years earlier. Matthias de L'Obel was hired
as a consultant, correcting more than 1,000 errors in
it.131 In his herbal of 1597, Gerard is depicted in a por-
trait holding a potato plant. The first description in
English of the Andean or white potato, Solanum
tuberosum L., from the new world appears in his
herbal, as the ‘Virginian Potato’, erroneously thought
to be native to North America.132 Linnaeus commem-
orated Gerard with the naming of a genus, Gerar-
dia.133 Gerard’s publication dispersed new names for
readers of English, and in this way ignored indige-
nous names. Plants and seeds transfers like the pota-
to contributed to the development of Europe and po-
litical and economic expansion into the rest of the
world in the quest for supplies of food and raw ma-
terials.134 While the transfer of plants and seeds
known as the Columbian Exchange135 did involve ex-
127 This theory suggested that the external form of a plant or mineral
indicated its medicinal value. R. B. F. Frazer, ‘Roger Bacon And
Thirteenth Century Medicine’, The British Medical Journal, vol.2,
no. 3835, 1934, p. 40.
128 Bradley C. Bennett, ‘Doctrine of Signatures: An Explanation of
Medicinal Plant Discovery or Dissemination of Knowledge?’,
Economic Botany, vol. 61, no. 3, 2007, pp. 246-255.
129 1545-1612.
130 John Gerard, The Herball or Generall Historie of Plantes, Bonham
& John Norton, London, 1597.
131 Anna Pavord, Chapter 21 The Last of the Herbals 1560-1640, In
The Naming of Names: The Search for Order in the World of
Plants, Bloomsbury Publishing, London, 2005, pp. 374-391.
132 John Gerard, The Herball or Generall Historie of Plantes, Bonham
& John Norton, London, 1597, II.146.
133 C. Linnaei & J. Browallii, Critica Botanica In qua nomina plan-
tarum, generica, specifica, & variantia, examini subjiciuntar,
electiora confirmantur, indigna rejiciuntur: simulque doctrina
circa denominationem plantarum traditur, seu, Fundamentorum
botanicorum pars IV. accedit Johannis Browallii De necessitate
historiae naturalis discursus, Apud Conradum Wishoff, Lugduni
Batavorum, 1737, p. 92. Gerardia L. is now a synonym of Stenan-
drium Nees, a genus of flowering plants in the family Acan-
thaceae native to the Americas.
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449
change, there was exploitation without consent and
an absence of benefit-sharing. Thus, indigenes, who
had already described the plant orally and had made
selections for improvement over countless genera-
tions, were victims of biopiracy.136
4. Folk Plant Nomenclature
The various societies differed in how they conceptu-
alised plants. Nevertheless, there are several common
and general structural precepts of folk classifica-
tion.137 In all folk languages, recognised groupings
of plant organisms can be isolated linguistically, and
be referred to as taxa. Examples in English would be
such as indicated by these names: plant, oak, and
vine.138 These can be recognised as primary names.
Taxa are grouped in classes known as taxonomic cat-
egories. They probably number a maximum of
five,139 named ‘unique beginner, life form, generic,
specific, and varietal’.140 These are arranged hierar-
chically.141 Taxa of the same category usually occur
at the same hierarchical level.142 The taxon of unique
beginner is at level zero. Forms of life taxa are at lev-
el one. Generic taxa are usually at level two. Specific
taxa are usually at level three. Varietal taxa are usu-
ally at level four. Taxa assigned to each category show
linguistic or taxonomic features calculated for plant
recognition.143 Thus, indigenous farmers had their
134 Lucile H. Brockway, Science and Colonial Expansion: The Role of
the Royal Botanic Gardens, Yale University Press, New Haven
and London, 2002, p. 36.
135 Alfred W. Crosby, The Columbian Exchange: Biological and
Cultural Consequences of 1492, Greenwood Publishing Compa-
ny, Wesport Conn., 1972.
136 V. Shiva, Biopiracy: The Plunder of Nature and Knowledge, South
End Press, Boston, 1997. The term biopiracy refers to the unethi-
cal and illegal exploitation of one’s knowledge or resource with-
out prior consent or benefit-sharing agreement by a third party
through intellectual property right claims.
137 Brent Berlin, Dennis E. Breedlove and Peter H. Raven, ‘General
Principles of Classification and Nomenclature in Folk Biology’,
American Anthropologist, New Series, vol. 75, no. 1 1973, pp.
214-242.
138 Ibid.
139 Ibid.
140 Ibid., p. 215.
141 Ibid.
142 Ibid.
143 Ibid.
450 Corporate Plant Breeders and Indigenous Farmers’ Rights
own formal plant naming system of which probably
the name cahuchu, meaning 'weeping wood', (rub-
ber tree) would be the relevant example.
In folk plant nomenclature, unlike in the Linnaean
system, many classes of generic rank are aberrant, in
respect to their defining features, placing them out-
side taxonomical hierarchies.
The Linnaean system is noted for its control of the
generic rank to limit aberrancy, suggesting its intol-
erance for names that it did not fully control. This
folk system aberrancy may have been because of ei-
ther morphological visibility or local economic sig-
nificance. Generic names are primary lexemes in lo-
cal languages, such as the equivalent of oak or pine.
They are the most common groupings in nature and
the most psychologically prominent, since they are
learned from early childhood.144 By comparison, the
Linnaeus system of Latin names cannot have such
psychological prominence because Latin is an effec-
tively dead language, used only in the priestly fields
of law, medicine and religion. Taxa with membership
of specific and varietal categories are far less numer-
ous than members of the generic category,145 allow-
ing UPOV statutes to multiply them, protect them,
and take effective control of the generic taxa. The Lin-
naean system has effectively removed local knowl-
edge from local plants, and transferred it craftily to
private legislatures run by merchant botanists.
VII. Conclusion
The story of rubber showed the genesis of ignoring
farmers’ rights by super-adding European taxonom-
ical naming systems, with the apparent force of law,
as a corollary of secondary meaning. A formal change
of the name of the Brazilian rubber plant, from an
ancient indigenous naming system to the Linnaean
system, apparently occurred in Europe in 1775, by
means of a legislative-style debate among botanists.
Indigenous farmers were unlikely to have been part
of this debate. It appears the professional institution-
al Botanists began private legislation processes using
the progymnasmata exercise of ‘Introducing a Law’.
In respect for the FAO farmers’ rights, protection
of traditional knowledge, as might be relevant to
plant genetic resources for food and agriculture, im-
plies from Plato’s seventh letter that a right to nam-
ing such plants must also be protected. A right to par-
ticipate equitably in sharing benefits arising from the
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EFFL 5|2018
utilization of plant genetic resources implies that in-
dustrial farming corporations may not monopolise
these resources. A right to participate in making de-
cisions at the national level suggests that legislative
drafters, who implement statutes without consulta-
tion with indigenous farmers, will violate the FAO
right. The terms ‘national law’ and ‘as appropriate’
appear to agree with the requirements of ‘introduce
a law’, discussed as above. The European Botanists
appear to have violated all these arguably ancient cus-
tomary rights, breaching their rules’ requirement for
justice.
World Trade Organization member states must ac-
knowledge the making of new plant varieties, and
uphold them as intellectual property rights. The 1991
UPOV Convention confers such rights upon an indi-
vidual breeder, identified as someone who either
found or created a new plant variety, someone hav-
ing legal contractual capacity for the production of
the new plant variety, or someone with inherited le-
gal rights to this category of intellectual property.
This system of enforcing statutory rights rewarded
the so-called ‘collectors’, whose activities were legal-
ly suspect.
UPOV drafters stated, acting to define the farmers
and growers for them, that farmers and growers pre-
ferred a more accurately defined group of plant
nomenclature from within a species, which they call
a ‘plant variety’. The UPOV Convention provides that
a ‘plant variety’ be registered on the basis of its de-
nomination. This would allow registration of new
species, and permit foreign botanists to re-describe
the generic forms. The Malaysia Plant Breeders statu-
tory provision satisfies Chapter VI of the UPOV Guid-
ance for the Preparation of Laws, being consistent
with UPOV Guidance, suggesting a violation of
Malaysia’s own farmers’ customs and, therefore, its
farmers’ rights.
The Linnaean binomial system of plant nomencla-
ture separated official plant naming from local farm-
ers’ classification. It sets up Linnaeus as a person of
144 Brian Stross, ‘Language Acquisition by Tenejapa Tzeltal Children’,
Working paper No. 20 of the Language-Behavior Research Labo-
ratory, University of California, 1969, Berkeley; Brian Stross,
‘How Tzeltal Children Learn Botanical Terminology’ in Munro S.
Edmonson, ed., Meaning in Mayan Languages, Mouton, 1973,
The Hague.
145 Brent Berlin, Dennis E. Breedlove and Peter H. Raven, ‘General
Principles of Classification and Nomenclature in Folk Biology’,
American Anthropologist, New Series, vol. 75, no. 1 1973, pp.
214-242, at p. 216.
EFFL 5|2018 Corporate Plant Breeders and Indigenous Farmers’ Rights 451

the status of great law-giver. Linnaeus made two sub-
stantial innovations to taxonomy and nomenclature.
First, he developed a scheme for grouping plants in-
to a genus, based on flower parts. Second, he alone
determined that all plants should be described by two
Latin names. He argued that this radical change from
folk naming systems ‘stablized’ plant nomenclature,
where the use of ‘stabilize’ was quite likely the de-
ployment of craft, through speciousness, to avoid the
power of varying indigenous epistemologies.
The Paris Code was the final legislative result of
Linnaeus’ trans-national legislation, as the frame-
work for the modern international code for naming
plants. It established the Rule of First Priority, stat-
ing that the oldest or first published name was the
accepted name. By this crafty but specious deception,
it was unlikely that indigenous farmers would seek
to publish their ancient folk plant names.
Malaysian rubber plants and seeds have been re-
moved by crafty deception from their natural habi-
tats, violating both farmers’ claimed customary and
FAO rights, and craftily misrepresenting them as
crops found, and therefore owned by industrial farm-
ing interests. Claiming a new plant breed, after it had
been stolen from overseas indigenous people who
did not communicate with European government de-
partments, is a suspect process. The system of setting
up the trans-national rules for this industrial owner-
ship emanated from the self-deified, ennobled
botanist, Linnaeus.

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