1. Building open source seed systems
towards a protected commons
Ramanjaneyulu
Centre for Sustainable Agriculture
Alliance for Sustainable and Holistic Agriculture

3. 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

4. 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)

5. 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

7. 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

8. 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

9. 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.

10. 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

11. MRTP Case
2006: 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.

12. 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.

13. 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

14. Life in queues

15. Cost of a 450 g seed bag
Companies don’t want to cut royalty case
Unregulated Royalties
• 2010: Seed companies approached
Seed procurement, Rs. 288.00
the govts to increase the seed prices
processing, treatment and
as they have to pay the royalties up
production
to Rs. 156.00
Supervision, quality control, Rs. 60.00 • AP government didn’t agree to
Packing etc (450 g) reduce seed price, but fixed prices as
Refuge 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/- for
Distribution & after sales Rs. 38.00 Bollgard-II
service , Market • In 2010, Monsanto filed case in AP
High Court requesting to stop state
Financial and Admin costs Rs. 92.00
govt from reducing the royalty
Research cost Rs. 95.00 arguing that it does not have any
Total 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 to
Distribution 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

16. 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

17. 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?

18. 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’

19. 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.

20. 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

21. 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

22. 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