How can Open-Source Licences contribute

to seed-sovereignty?

Name: Fabian Gut

University: Georg-August Universität Göttingen / Universität Kassel

Matriculation Number: 40112775

Study Programme: Sustainable International Agriculture

Specialisation: International Organic Agriculture

Course: Critical Perspective on the Global Food System

Semester: SS 2019
 Structure

1. Introduction ...................................................................................................................................1
2. What is Open Source? ...................................................................................................................2
3. Open Source on for seed?! – Why even considering ................................................................ 3-4
4. Open-Source Seed? .......................................................................................................................5
5. Current programs and initiatives in open-source seed? ............................................................ 6-7
5.1 OSSI (America) ...................................................................................................................................... 6-7
5.2 OpenSourceSeeds (Germany) .................................................................................................................... 7
6. Possible problems and shortcomings ....................................................................................... 7-9
7. Conclusion ............................................................................................................................. 9-10
8. References ............................................................................................................................ 11-12
1. Introduction:
Currently seed sovereignty, and with it food sovereignty as a whole, is more endangered than ever.
In 2009 already 73% of the seed sector were dominated by only ten large companies. (Retrieved
in 2012)
Today the concentration and power balance might even have shifted more towards only a few big
companies, e.g. through the recent merging of Bayer and Monsantoa, two of the companies which
by themselves were already among the biggest in that sector. (“Historischer Deal: Bayer bei
Monsanto-Übernahme am Ziel,” 2018)
On top of this potentially unhealthy power balance these companies claim intellectual property
rights and patents on many varieties, thus making it virtually impossible for anyone besides them
to access these genetics, also ruling out any further breeding with them. Even worse, even farmers
are restricted from saving seed. Often adding up to legal prohibition, technologies hindering the
plants from producing fertile seed (e.g. terminator seed) are installed in the varieties produced
and distributed by the seed giants. More and more varities are patented by the seed giants by the
day, wherefore they are not even cringing from bio piracy. (info@sustainablefoodtrust.org, n.d.)
Obviously facing all off the above, counter movements formed and started looking for ways to
deal with these issues. They started looking into other sectors facing similar challenges, whereby
they might have stumbled upon a resolution in the software sector.
Recently open-source licences have been discussed as solution-approach regarding property-
rights and patent related issues in other sectors, including the seed sector.
This paper aims at presenting and explaining open-source licences in general and in the seed
sector in particular. It shall be explained how it can and already is used to counteract the
propertisation of seed. Next to its possibilities and benefits also problems and shortcomings shall
be described.
Respectively, a literature research was conducted. Common scientific literature available and
accessible online was included as well as other relevant online-sources, mainly consisting of the
websites of projects working in the sector and/or somehow dealing with open-source seeds
themselves.

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2. What is Open-Source?
As previously mentioned, open source originated in the software sector. In this context, open
source software is software of which the source code is basically open, or rather free to use. This
implies that anybody is allowed and able to work with and on the source-code and do with it
whatever he or she may want to (e.g. build a new program on the foundation of the old source
code) (“Open Source”, n.d.)
Open respectively only means that the source-code should be available to basically anyone, it
does not imply that the product is free of charge (“Open, aber nicht immer gratis,” n.d.)
In fact it is still possible to charge money for the product and to earn money that way to e.g.
finance the development or even to generate assets.
Products created in the way explained above would be open-access or commons: They could be
used by anybody without any restriction, but also don´t include any protection This basically
means they and follow-up products build on their foundation could still be patented.
So how can this be prevented from happening? How can protected commons be created?
This is where open source comes into play. There are plenty of different open source licences, but
one thing most of them got in common is that they include a paragraph in the agreement that
obliges any user that develops any follow-up products to guarantee all future users the same rights
that were granted to him beforehand. This principal called copy left makes it virtually impossible
to patent any products based on open-source products, as the licence agreement constitutes a
legally binding contract (J. Kotschi & Rapf, 2016)
Copyleft works viral. Once the ball got going, more open-source products should result, as all
descending products obligatory have to be released under the same licence (“Open-Source
Licensing For Dummies,” n.d.)
Paradoxically, open-source licences thereby use the copyright to protect and ensure the copyleft
(J. Kotschi & Rapf, 2016)
It seems with open-source licences and the copyleft, a way was found to secure commons for the
future and to limit or even stop proprieting. Protected commons are created.
Apart from the software-sector this idea has been used in many other sectors, e.g. music and art
(creative commons-licence). Coming up it shall be discussed, if it could also be an option suitable
for the seed-sector.

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3. Open-Source on for seed?!-Why even considering?
Prima facie, the software sector and the seed sector seem to have nothing much in common, but
at least they got two important commonalities, which also justify the consideration to also use
open-source licences in the later.
1. Existence of a global network of (potential) peer producers: All over the world farmers
basically have always been growing plants, selecting the best plants for specific traits and crossing
them with other varieties to better them. That way new, potentially better, varieties were created.
These were then exchanged or traded among them. So basically, comparable to the global network
of peer producers in software, where software or rather the source-code is contentiously shared
and worked on among different programmers, in the seed-sector the seed, or rather the genetic
information transferred with it, could, or rather de facto already is, shared among and worked on
by many different breeders and farmers.
2. Intellectual Property rights / Patents constitute a challenge: As already mentioned, patents and
intellectual property rights, mainly being claimed and enforced by the big companies of the sector,
which have been seriously restricting producers in the software sector for a relatively long time.
relatively recently, also producers in the seed sector “(...) have found their traditions of creativity
and free exchange being challenged by the IPRs of the hegemonic ‘permission culture’ and have
begun looking for ways not just to protect themselves from enclosure and dispossession, but also
to reassert their own norms of reciprocity and distributed innovation.” (Kloppenburg, 2010)
For these reasons open source has been proposed by members of the plant-breeding community
for more than twenty years already. In fact, some initiatives and programs around the globe took
this idea one step further and put it into action. These examples and their experience values shall
be touched upon later.
Such an open-source (seed-) licence, or rather licensing system, (...) is simple, elegant and
effective. It can 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,.” (Kloppenburg, 2010)

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Implementation of open-source licensing (...) could have significant effects consistent with
strategies of both impeding dispossession and enabling repossession“(Kloppenburg, 2010)
The resistance of the traditional and open-source seed-producers is strengthened as, the more
seed is released under open-source licences, the larger the pool of seed no longer available for
proprietary breeding. This hampers the work of large seed-companies wanting to proprieties seed,
even though it does not impede proprietistion itself, as less material is available to patent as well
to use within their breeding programs. Once released under open source neither the original
variety itself nor any variety that is based on it can be proprietised anymore. Consequentially,
these genetics are usually no longer interesting to industrial seed companies. The further help to
impede biopiracy/bioprospecting as “(...) few commercially-oriented bio-prospectors will be
willing to collect under those open-source conditions.” (Kloppenburg, 2010)
Many of them would eventually backpedal if they are faced by an open-source agreement coming
with the genetics they want to “steal”. (Kloppenburg, 2010)
On top of strengthening the resistance, open source licensing in the seed sector “(...)may have
even more potential for repossession, for the creation of effective space for the elaboration of
transformative alternatives.” (Kloppenburg, 2010)
Furthermore, it may be beneficial for developing a legal/institutional framework that recognises
farmers’ collective sovereignty over seeds, as open source licences are enforceable by law,
excluding those seeking for propitiation of genetic material but allowing and securing freedom to
freely exchange, save and improve it to those willing to work under open-source conditions.
Cooperation among those willing to work under these conditions is supported and strengthened
through them. Also developing and setting up a framework for the marketing of non-patented and
non-use-restricted seed might be simplified, if such seed is/can be protected through open-source
licences. (Kloppenburg, 2010)
Looking at all these potential benefits, ultimately the question, why open-source licences are not
already the standard for all those farmers and breeders opposing patenting and IPRs on seed,
arises.
Obviously also this system got its problems and shortcomings, which are partly also reflected by
the history and the experiences of existing projects. All this will be touched upon in later
paragraphs, but first an idea, for a concept for open-source seed could be like, shall be presented.

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4. Open-Source Seed:
In this paragraph, an idea of an open-source system adapted to the peculiarities of the seed-sector
shall be given. Obviously there are no straightforward answers which fit each case, so each case
will have to be looked at again and individually fitted approaches will have to be developed.
First of all, it has to be defined, what it actually is, that is or shall be protected. For the seed sector,
it has been proposed to define the seed itself as matter to be protected, due to the following reasons:
 In some cases, or rather according to the legislation in some countries, it might not be possible
to establish licences and to apply the copyright on seed. In these cases, agreements and
protection can only be granted via contracts, and contracts require the transfer of a (physical)
good to which then special terms of use, which in this case would involve the special
characteristics of and needed for open-source, can be attached. Seed is an exchangeable good,
so by choosing the seed this procedure is made possible
 Seed includes genetic information, which is inherent to them. Therefore, this information is
automatically part of the contract. For the same reason “biological material” or “genetic
resource” could also be suitable terms, the term seed seems to be preferable for simplicity
reasons (J. Kotschi & Rapf, 2016).

As mentioned already, copyright and licences on seed might not be possible to establish in some
countries, (e.g. Germany), thus involving the open-source conditions, in a transfer-agreement
might be the option to prefer, as they can be established basically everywhere and can be
enforced globally. This means: With each transfer of the material (in this case seed) a
contract, including the corresponding rights and duties, is established. The conditions of the
contract must be openly disclosed upfront. Several different forms of disclosure are
permissible in that regard. (J. Kotschi & Horneburg, 2018)
It is of huge importance that the presented layout is not the only possible one, it shall just
represent a plausible example. It can not be stretched often enough that individual cases require
individual considerations and individual solutions
5. Current programs and initiatives:
Given the described possibilities, a surprisingly low number of initiatives tried to put this concept
into action. Currently, it seems as if globally only two projects are actively applying it, one being
the OSSI (USA) and one being OpenSourceSeeds (Germany). There are hints that other projects

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exist elsewhere, but no more information on them was found, wherefore the previously named
ones shall be presented exemplary.
5.1 OSSI (USA):
The Open Source Seed Initiative (= OSSI) is an initiative in the USA, whose declared aim is “(...)
maintaining fair and open access to plant genetic resources worldwide in order to ensure the
availability of germplasm to farmers, gardeners, breeders, and communities of this and future
generations.” (“About,” n.d.)
It was established in 2012. Instead of using a proper licence, which they nevertheless consider
realisable, they bank on a pledge for realising open-source seed. Based on their own statements
a licence would be more impractical to use.
“OSSI’s objective is to continuously enlarge the pool of crop varieties that are “OSSI-Pledged,”
and so are freely available for use and improvement by farmers, gardeners and breeders without
encumbrances. In addition, OSSI spreads information about and promotes the use of these
varieties. OSSI recruits breeders (“OSSI Variety Contributors”) who formally commit to offering
one or more of their cultivars only under the OSSI Pledge. “OSSI Seed Company Partners” agree
to sell at least one OSSI-Pledged variety, to market the seed by labeling it with the OSSI logo
and/or name, to acknowledge the OSSI breeder in variety descriptions, and to include the Pledge
and information about OSSI in their print and on-line catalogs. On the “Seeds” page of its
website, OSSI provides a list of OSSI-Pledged varieties with photos and descriptions. The list is
searchable by crop, breeder, and seed source. Through its educational and outreach activities,
OSSI creates awareness of the social value of purchasing “freed seed.” Via its website and
outreach materials, OSSI guides farmers and gardeners to its Seed Company Partners. For its
Seed Company Partners, OSSI is thereby creating a niche market for ethically produced, “freed
seed” analogous to the markets for “fair trade” and “organic” products. For its Variety
Contributors, OSSI is providing public acknowledgment of their work and, via its seed list, a way
to “register,” announce, and promote their varieties.” (“About,” n.d.)
Currently 431 finished varieties, bred by around 40 breeders, are marketed under their pledge.
(“Seeds,” n.d.)
Next to these activities, the OSSI also released its own online magazine as well as a
podcast.

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5.2 OpenSourceSeeds (Germany):
This initiative, which was born out of a workgroup within the German association AGRECOL in
2012, label themselves “(...)a group of plant breeders, agronomists, lawyers and commons
activists who fight for the free use of seed.” (“About us | Open Source Seeds,” n.d.)
Their approach to enable open-source seed is based on a transfer agreement. They developed a
complete licence and a corresponding framework and offer the following services:
 Providing open-source licences for new varieties, breeding-lines and variations
 Legal protection of the above
 Advice for anyone interested in (open-source) seed-business
 Information about licensed varieties and much more (“About us | Open Source Seeds,”
n.d.)
Currently eight varieties are licenced under their new licence
These initiatives show that open source seed can be more than just a theoretical concept, and
has indeed already been put into action successfully. But certainly they also unbosomed
problems and shortcomings, which shall be presented in the next paragraph.
6. Possible problems and shortcomings:
After first disclosing how open-source seed could work as well as presenting the factual reality,
at this point, possible problems and shortcomings of open-source seed shall be presented.
First of all it has to be said that open source can only be an effective counter pole against current
practices, if enough people somehow decide to participate. Only then, the beneficial effects will
effectively become reality. However, as the low number of registered varieties and participating
institutes shows, this might not be the case yet.

In this regard it might become a problem that all participants in seed trading somehow have to
earn money, an in that way rely on the market and the corresponding system, which is, at least to
some degree, working rather for the bigger shareholders. Switching to an unknown system might
be too much of a risk to many.
Given the existing power difference it remains doubtable that licence-claims against potentially
more powerful seed giants can even be successful. There are also no precendant cases for such

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scenarios yet, but it is definitely harder for smaller institutions to even track licence violations, as
follow-up binds many resources. (Albers, 2019)
In addition, even though theoretically proven, doubts remain whether the copyright, which was
initially designed as a masters tool, set up to protect the bigger players, can really be re-purposed
and turned against them. (Kloppenburg, 2014)
As briefly mentioned earlier on, also the legal differences between different countries can
constitute an obstacle for open-source seed. In many countries, including most EU-countries, the
copyright is not applicable to seed. Therefore, licences cannot be established effectively. Open-
source seed can still be established, if, as described above, the open-source framework is included
in a transfer agreement. Also, when it comes to tracing and to where open-source genetics might
have been used (e.g. so in identifying and enforcing misconduct, different laws might constitute
a problem. (Albers, 2019)
For example the Nagoya-protocol, which is one of the most important mechanisms for
internationally enforcing open-source licences, has not yet been ratified nor signed by many
countries, including the homes of some of the biggest seed-companies. (D. J. Kotschi, 2016)

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Illustration 1: Ratificatio of the Nagayo-Protocol: Green=Digned, Blue=Member, Shades of Grey=Not
Signed (“Nagoya-Protokoll,” 2019)

Some also still doubt that breeding-efforts can be financed without the income through patent-
fees. But even today most breeding-efforts, especially when it come to small scale breeders and
development-countries, is financed without such fees, and also previous breeding, which led to
most of the currently used varieties, was mostly financed without them.. (D. J. Kotschi, 2016)
7. Conclusion:
Open Source Seed has shown its potential to effectively counteract propertisation and patenting,
but it is also still in its infancy. Only a few projects practically apply it, and we might not yet
know how to most effectively apply the tool of open-source in and for seed.
More research should be conducted to ,on the one hand side, support currently existing projects
in overcoming existing problems and ,on the other hand side, to further develop and refine the
model itself.
Also potential synergies between open source and other tools and mechanisms should be further
investigated, as fixing the faulty seed system with just one tool might be well-nigh impossible.
However, if we want to apply the tool of open-source licences to b battle the seed giants, it needs
more involvement on all levels. The more varieties are licensed and in that way protected and the
more people no longer buy seed distributed by the seed giants the more powerful this tool can

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become. Therefore, what it needs more than anything else is courageous people just willing to
fight the battle for sovereignty. As shown in this paper, open source can be an effective weapon
and shield to these brave warriors.
At the end of the through creating protected commons in seed with the help of open source,
achieving and regaining sovereignty seems a little closer.

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8. References:
1.) About. (n.d.). Retrieved September 11, 2019, from Open Source Seed Initiative website:
https://osseeds.org/about/
2.) About us | Open Source Seeds. (n.d.). Retrieved September 11, 2019, from
https://opensourceseeds.org/en/about-us
3.)Albers, E. (2019, July 11). Mit Open-Source-Saatgut gegen Monopole und Klimawandel.
Retrieved September 14, 2019, from Netzpolitik.org website: https://netzpolitik.org/2019/mit-
open-source-saatgut-die-landwirtschaft-befruchten/
4.) Historischer Deal: Bayer bei Monsanto-Übernahme am Ziel. (2018, June 4). Retrieved
September 5, 2019, from https://www.faz.net/aktuell/wirtschaft/unternehmen/historischer-deal-
bayer-bei-monsanto-uebernahme-am-ziel-15621751.html
5.) info@sustainablefoodtrust.org, S. F. T.-. (n.d.). Sustainable Food Trust. Retrieved September
14, 2019, from Sustainable Food Trust website: https://sustainablefoodtrust.org/articles/food-
sovereignty-seed/
6.)Kloppenburg, J. (2010). Impeding Dispossession, Enabling Repossession: Biological Open
Source and the Recovery of Seed Sovereignty: Biological Open Source and the Recovery of
Seed Sovereignty. Journal of Agrarian Change, 10(3), 367–388. https://doi.org/10.1111/j.1471-
0366.2010.00275.x
7.)Kloppenburg, J. (2014). Re-purposing the master’s tools: The open source seed initiative and
the struggle for seed sovereignty. The Journal of Peasant Studies, 41(6), 1225–1246.
https://doi.org/10.1080/03066150.2013.875897
8.) Kotschi, D. J. (2016). Die Open-Source-Lizenz – ein Beitrag zur Bildung von Saatgut-
Commons. 4.
9.) Kotschi, J., & Horneburg, B. (2018). The Open Source Seed Licence: A novel approach to
safeguarding access to plant germplasm. PLOS Biology, 16(10), e3000023.
https://doi.org/10.1371/journal.pbio.3000023
10.) Kotschi, J., & Rapf, K. (2016). Durch open source Lizensierung. 22.
Nagoya-Protokoll. (2019). In Wikipedia. Retrieved from
https://de.wikipedia.org/w/index.php?title=Nagoya-Protokoll&oldid=190118108
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11.) Open, aber nicht immer gratis. (n.d.). Retrieved September 6, 2019, from CHIP Online
website: https://www.chip.de/artikel/Open-Source-im-Unternehmen-2_140054833.html
12.) Open Source: Was ist das genau? (n.d.). Retrieved September 6, 2019, from
https://praxistipps.chip.de/open-source-was-ist-das-genau_12877
13.) Open-Source Licensing For Dummies. (n.d.). Retrieved September 6, 2019, from BinPress
website: https://www.binpress.com/open-source-licensing/
14.)Seeds. (n.d.). Retrieved September 11, 2019, from Open Source Seed Initiative website:
https://osseeds.org/seeds/
15.) Shand, H. (2012). A Profile of Corporate Power in Seeds, Agrochemicals & Biotech. 3.

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