Building open source seed systems towards a protected commons Ramanjaneyulu Centre for Sustainable Agriculture Alliance for Sustainable and Holistic Agriculture
Seed realities• Yadha Beejam Tatha Phalam• Seed basic and self propelling input• Green revolution led to loss of crop and genetic diversity• Seed market in india is BIG (Rs.10000 crores in 2010)• Of the total demand only 30% is met by the public – private agencies• In this 70% is met by private corporations• All technologies packed into seeds• Seed is becoming a proprietary input
Key questions• Protecting farmers rights over their germplasm, in the context of three so-called progressive legislations in India – PPVFR Act (Protection of Plant Varieties and Farmers Rights Act) under TRIPS compliance obligations – BDA (Biological Diversity Act) under CBD obligations for India – Seed Bill 2010 to regulate seed market in the country – However, both these legislations are basically located within IPR frameworks, that too which primarily uphold breeders and researchers rights and grant farmers rights almost as residual rights.• However, while many of us are often articulating concerns around IPRs in various mild and/or rigid forms, many others are going ahead and doing registrations of varieties under the PPVFR Act (and without an effective system of surveillance there is no knowing if there is any bio-piracy that is happening)
Context• Existing laws unable to prevent biopiracy – Case of neem, Basmati, Naphal wheat etc• Broad patents – Species patents, gene patents, process patents etc• GM contamination – Percy Schmeiser case, Bt Bikeneri Narma• Changing role of Public sector – Withdrawl – PPPs• IPR based restructuring of Seed Industry
Technology evolution…. Wild germplasm Systematic Plant Breeding Modern Biotechnology Elite OP Tissue Culture Landraces Populations Genetic Hybrid Engineering Composites Domestication OP Inbred varieties Inbreds/Hybrids
Monoculturing crops, genes Total plant sp.: 250,000 Edible plant sp.: 50,000 Plant sp. used for food: 250 90% cal. In human diet from: 15 60% calories In human diet from: 3 HYVs & Hybrids have narrow genetic base Genetic Engineering has led to further monoculturing of genes
Bt cotton case…• 2002: Three hybrids of Bt cotton were introduced in India by Mahyco Monsanto Biotech Ltd (MMB). – Prices were fixed at Rs. 1800 per packet of 450 g which can be used to sow in an acre – In 2005 Rasi and Ankur seeds which also developed Bt cotton in license agreement with MMB also got approval for their Bt hybrid seeds – License agreement show that the Indian companies which entered into the agreement have to pay upfront Rs. 50 lakhs and an amount annually fixed by MMB. They were asked to pay Rs 1200 on every packet initially.
Issue of compensation on failure• 2005: after establishment of large scale cotton seed failure in Warangal dist, State government asked Mahyco to pay compensation.• This company refused to pay and moved to AP high court on paying compensation saying state govt is harassing them. AP High court orders also were in favour of Mahyco and till date the company has not paid the compensation
MRTP Case2006: AP government filed a case with MRTP Commission requesting that Commission to declare the agreement between Indian seed companies and MMB as void as it is leading to monopoly and increase in seed prices – MMB maintained that it is not monopoly as other events (Nath seeds and JK agri genetics) were approved. MRTP ruled that the royalty collected is higher the state government should take action to reduce it. – As there was no law to regulate the seed prices, AP state government used its power under granting trade licenses under Seed Control Order based on Essential Commodities act, 1955 – The prices of Bt cotton seed were fixed at Rs 750 a packet (450 gm) and Rs 925 in 2006 for Bt 1 and Bt 2 respectively. This was further reduced to Rs 650 and Rs 750 respectively in 2008. – As the Agreement between MMB and Indian Seed Companies continues to exists they still have to pay the royalty as demanded by the company.
Post MRTP case• The industry quickly changed the recommendation from one packet (of 450 g to two packets of 450 g per acre) which quickly doubled their business.• MMB was collecting royalty of Rs 150 and Rs 225 on Bollgard-I and Bollgard-II respectively.• In 2006, after MRTP commission’s ruling to reduce the bt cotton seed price, AP government reduced the cotton seed prices to Rs. 650 and Rs. 750 for bollgard I and II. Challenging this, MMB moved to Delhi high court on this issue.
Meddling with Essential Commodities Act• 2007: Central government has amended the Essential Commodities Act removing ‘Cotton seed’ from the list. This nullified the seed control order.• When Agriculture officers in Warangal district found that Mahyco Bt hybrids are being sold in Warangal market, they raided and seized the shop. Mahyco challenged that cotton seed was removed from Essential Commodities Act, hence Seed control order which draws powers from EC Act does not apply to cotton.• AP Government came up with a new act to regulate the Transgenic cotton seed which was more stringent..• 2008: Cotton seed was brought back into Essential Commodities Act• 2012: AP government still struggling to make a seed law as the Central Act is still pending
Cost of a 450 g seed bagCompanies don’t want to cut royalty case Unregulated Royalties • 2010: Seed companies approachedSeed procurement, Rs. 288.00 the govts to increase the seed pricesprocessing, treatment and as they have to pay the royalties upproduction to Rs. 156.00Supervision, quality control, Rs. 60.00 • AP government didn’t agree toPacking etc (450 g) reduce seed price, but fixed prices asRefuge Rs. 20 Rs. 650 BG-I, Rs. 750 for BG-II which (pigeonpea)/ Rs. effectively reduced the royalty to Rs. 73.00 50/- for Bollgard-I and Rs. 90/- forDistribution & after sales Rs. 38.00 Bollgard-IIservice , Market • In 2010, Monsanto filed case in AP High Court requesting to stop stateFinancial and Admin costs Rs. 92.00 govt from reducing the royaltyResearch cost Rs. 95.00 arguing that it does not have anyTotal cost per packet (450 g) Rs. 593.00 power to do so. The case is still pending in the court.Trait fee payable Rs. 165.00 • 2011: Bt cotton seed for 2011-12 toDistribution retail costs Rs. 198.09 Rs 830 for BG-I trait and Rs 930 for(21.5%) BG-II trait.Total Rs. 773.00 • 2012: Rs 850 for BG-I and Rs 1,050(National Seedmen Association of India) for BG-II
Bt brinjal case• UAS dharwar had a licensing agreement with Mahyco and Monsanto to develop Bt Brinjal under ABSP-II project• As per the BDA a prior permission from NBA is needed which was never taken• After Karnataka biodiversity board made a complaint, NBA and Environ Min announced an action• Not initiated even today
Therefore….• How to ensure Free and fair access to farmers to quality seeds?• How to prevent others from gaining IPRs on farmers resources? – Can we use the NBPGR registry as the way by which we establish prior art, without walking into an IPR framework ourselves• Additionally establish a Linux-equivalent system when it comes to Seed: an open source system which allows for physical and legal access, on the condition that no one else down the line gets any exclusive rights over the material either. In a sense, it is a system that does not rest on any laws, but the way MTAs and MUAs are drawn up• Institutional systems that can help to take this forward• How do we protect farmers knowledge on using biodiversity• How do we regulate the seed market?
Why open source?• Users as co-developers• Options for local customization/adaptation• Free to share rather than exclusive use• Helps further spread as the license agreement calls for further adapting open source license, hence it would be ‘protected commons’
How?• The variety will be made available with a GPL or a similar document explicitly stating rights and claims.• The varieties will be in the public domain or covered under plant breeders/farmers rights without restricting the rights of others to experiment, innovate, share the seeds or exchange seeds.• There will be no restriction on using this to develop new varieties or to experiment with but it is essential that the variety derived from this should also be available without any monopolistic claims and restrictions on further development.
Implementing open source• An agency which can coordinate such activities and act as an agency for bringing together breeders and farmers and for guiding farmers on aspects related to IPRs.• There could be a common pool to which farmers can contribute and from which they can ask for samples; and this common pool of germplasm can also exchange materials with others under Material Transfer Agreements (MTAs) and Technology Use Agreements (TUAs)• It can be partnership between farmers, farmer breeders, farmer cooperatives, NGOs, Research institutions etc
General Public License• Plant germplasm designated as GPL is freely available for use in any breeding program• Any cultivar a breeder develops that’s has GPL plant germplasm in pedigree must also be designated as GPL Germplasm• The license specifies that – The germplasm if is designated as GPL – By using this germplasm in any crop development the recipient acknowledges that any varieties derived in whole or part from GPL germplasm must likewise be designated as GPL and made available to other breeding programs – A sample of the GPL germplasm should be placed with the coordinating agency with all details for VCU
How useful?• Helps to increase access to plant germplasm freely• Prevent or impede – Biopiracy – Use of farmer derived genetic resources in proprietary breeding – Further development of GMOs• Develop a legal/institutional framework – that recognizes farmers collective sovereignty over seeds – That allows farmers to freely exchange, save, improve, and sell seeds – In which farmers cooperate with farmer breeders/ scientists/ institutions in the development of new plant varieties – For marketing of seed that is not patented or use-restricted