“OPEN-SOURCE” SEEDS, ANYONE?

CURRENT INNOVATION CONCERNS
Elpidio V. Peria
19 April 2014

Ars Technica, a science and technology website and online magazine, recently reported last 17 April 2014 an effort by scientists at the University of Wisconsin-Madison in the US who released 29 crops under an “open source pledge” that will enable farmers, breeders and gardeners to share those crops freely, unrestricted by patents or plant breeder rights.

In developing countries like the Philippines which have more subsistence farmers than well-capitalized agricultural entities called agribusiness corporations, we have long established such rights to freely use the seeds under a set of rights called Farmers’ Rights, though if you ask the groups pushing for those rights, they will have different sets of ideas of what it entails, and bills institutionalizing such rights for farmers have long been pending in Congress.

Asserting Farmers’ Rights in the country given the existence of established plant breeders’ rights under an existing Plant Variety Protection Act (Republic Act 9168) is more an assertion of facts on the ground than invoking legally-recognized rights which can be enforced vis-à-vis plant breeders and agribusiness corporations.

What this US-initiated effort will indicate is that on one hand, there is no need to push for a fixed set of legislative measures on this item as they can be established by a set of practitioners who are dedicated to enforcing these sets of rules.

On the other hand, it remains to be seen which side our courts will favor in instances of actual conflict of assertion of rights over these plants – the subsistence farmer or the agribusiness corporation.

Resolving conflicts of this nature will involve a determination on who owns these seeds in the first instance and whether these seeds have a market with buyers ready to take it up. Seed companies are known to assert rights only to those profitable seeds where they expect to exercise a monopoly. If the market for seeds are diffuse, meaning they are spread out to so many users that are difficult to track, and their sources are diverse, they come from many unidentified sources, which is what is fostered by these “free-to-use” seeds regime, then the court will have a difficult time, it might be better to let things be, for seed innovation to flourish.

oOo

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