Open Seeds: Biopiracy and the Patenting of Life (2012)

The oft-neglected legal minefield of intellectual property rights has seen a surge in public interest in recent months due to the storm of protest over proposed legislation and treaties related to online censorship. One of the effects of such legislation as SOPA and PIPA and such international treaties as ACTA is to have drawn attention to the grave implications that intellectual property arguments can have on the everyday lives of the average citizen.

As important as the protection of online freedoms is, however, an even more fundamental part of our lives has come under the purview of the multinational corporations that are seeking to patent the world around us for their own gain. Unknown to a large section of the public, a single US Supreme Court ruling in 1980 made it possible for the first time to patent life itself for the profit of the patent holder.

The decision, known as Diamond v. Chakrabarty, centered on a genetic engineer working for General Electric who created a bacterium that could break down crude oil, which could be used in the clean-up of oil spills. In its decision, Supreme Court Chief Justice Warren Burger ruled that:

“A live, human-made micro-organism is patentable subject matter under 35 U.S.C. § 101”

With this ruling, the ability to patent living organisms, so long as they had been genetically altered in some novel way, was established in legal precedent.

The implications of such a monumental ruling are understandably wide-reaching, touching on all sorts of issues that have the potential to change the world around us. But it did not take long at all for this decision’s effects to make itself felt in one of the most basic parts of the biosphere: our food supply.

In the years following the Diamond v. Chakrabarty decision, an entire industry rose up around the idea that these new patent protections could foster the economic incentive for major corporations to develop a new class of genetically engineered foods to help increase crop yields and reduce world hunger.

The first commercially available genetically modified food, Calgene’s “Flavr Savr” tomato, was approved for human consumption by the Food and Drug Administration in the US in 1992 and was on the market in 1994. Since then, adoption of GM foods has proceeded swiftly, especially in the US where the vast majority of soybeans, corn and cotton have been genetically altered.

By 1997, the problems inherent in the patenting of these GM crops had already begun to surface in Saskatchewan, Canada. It was in the sleepy town of Bruno that a canola farmer, Percy Schmeiser, found that a variety of GM canola known as “Roundup Ready” had infected his fields, mixing with his non-GM crop. Amazingly, Monsanto, the agrichemical company that owned the Roundup Ready patent, sued Schmeiser for infringing their patent. After a years-long legal battle against the multinational that threatened to bankrupt his small farming operation, Schmeiser finally won an out-of-court settlement with Monsanto that saw the company agree to pay for the clean-up costs associated with the contamination of his field.

In India, tens of thousands of farmers per year commited suicide in an epidemic labeled the GM genocide. Sold a story of “magic seeds” that would produce immense yields, farmers around the country were driven into ruinous debt by a combination of high-priced seeds, high-priced pesticides, and crop failure. Worst of all, the GM seeds had been engineered with so-called “terminator technology,” meaning that seeds from one harvest could not be re-planted the following year. Instead, farmers were forced to buy seeds at the same exorbitant prices from the biotech giants every year, insuring a debt spiral that was impossible to escape. As a result, hundreds of thousands of farmers have committed suicide in the Indian countryside since the introduction of GM crops in 1997.

As philosopher, quantum physicist and activist Vandana Shiva has detailed at great length, the effect of the invocation of intellectual property in enabling the monopolization of the world’s most fundamental resources was not accidental or contingent. On the contrary, this is something that has been self-consciously designed by the heads of the very corporations who now seek to reap the benefit of this monopolization, and the monumental nature of their achievement has been obscured behind bureaucratic institutions like the WTO and innocuous sounding agreements like the Agreement on Trade-Related Aspects of Intellectual Property Rights.

VANDANA SHIVA: There used to be in the FAO at that time—the Food and Agriculture Organization of the United Nations—a term used called seed wars. The chemical industry that had moved into the seed sector had started to say it’s not fair that farmers save seed. It’s not equitable that they save seed. Equity is monopoly. Only the corporations should have the right to seed.

And they spent a lot of time, [but they] couldn’t get their way, because in the United Nations, you have one vote for one country. And the majority of the countries happen to be third world countries. They happen to be countries which have given seed and biodiversity to the world. And they did not like the idea of seed being reduced to private property.

So the corporations then moved to a new institution that was being created through what was then a half-institution called the General Agreement on Trade and Tariffs.

And it’s fascinating that for 30 years, industry had drafted laws for all kinds of monopoly. Monopoly in entertainment. If a Mickey Mouse turns up anywhere, even in a child’s notebook, they should pay royalty. Or a T-shirt.

And by then, a company that had only been related to warfare, to Agent Orange, very rapidly moved into the biotechnology sector, very rapidly started to buy up both venture capital firms as well as seed companies. And Monsanto emerged, as the biggest seed monopoly in the world, in the drafting of what is today called the trade-related intellectual property rights agreement. What a mouthful! Precisely because this is not trade-related and seed is not intellectual property. It doesn’t pop out of anyone’s head.

Intellectual property is defined as property in products of the mind. Here is a very material, biological system that is suddenly redefined as intellectual property. And a whole agreement was shaped around it.

And “TR” was put because India, my country, refused to accept patent law as a trade issue. We said, “No, this is about nations deciding how far monopolies will go, nations deciding the balance between the public and the private.” And we had worked out a patent law over 20 years of democratic debate in society to get rid of the British laws that had been exactly like what we are coming back to: total monopoly in a few companies’ hands.

So the lawyers, of course, were very clever, put “TR” before “IP” and said, now it’s trade-related by definition, so now you will accept it. After the WTO came into force, a representative of Monsanto actually said this. He said, “What we’ve achieved in this agreement is something unprecedented. We defined a problem. And in this case, the problem was farmers saving seeds. That was a problem. And we defined the solution: make it illegal for farmers to save seeds. And we created the instrument, which is the TRIPS agreement, which forces every country now to have laws of monopoly. And we created the institution that would ensure that these are implemented.”

The institution, WTO, is an interesting institution because it’s an international court, it’s an international non-parliament, non-democratic, and it is the international executive. As Monsanto’s representative said, “In shaping this treaty, we were the patient, the diagnostician, and the physician all in one.”

For me, that’s a description of dictatorship.

SOURCE: Vandana Shiva – The Future of Food and Seed

Although the deck appears to be stacked in favour of the giant multinationals and their practically inexhaustible access to lobbying and legal funds, the people are by no means incapable of fighting back against this patenting of the biosphere.

In India itself, where so much devestation has been wrought by the introduction of genetically engineered crops, the people are fighting back against the world’s most well-known purveyor of GMO foods, Monsanto. The country’s National Biodiversity Diversity Authority has enabled the government to proceed with legal action against the company for so-called biopiracy, or attempting to develop a GM crop derived from local varieties of eggplant, without the appropriate licences.

LEO SALDANHA: …which is essentially owned by Monsanto.

REPORTER: Ground for this environmental activist. Leo Saldanha filed the complaint that has led to India charging American agricultural giant Monsanto with biopiracy. And the eggplant, or brinjal, is what the company is accused of stealing. Leo says Monsanto illegally used indigenous brinjal varieties to create a genetically modified version of the vegetable.

SALDANHA: So there are six varieties taken from Karnatakam which Monsanto has taken without any conformance with the Biological Diversity Act, and therefore it is biopiracy. And once they put the Bt gene into brinjal, then it becomes a commodity which is essentially owned by Monsanto.

REPORTER: The brinjal is one of the most popular vegetables in India, with close to 2,500 varieties. In 2010, Monsanto’s partner companies nearly got approval to commercialize a GM variety called BT brinjal. But massive public protests forced the government to ban it indefinitely.

Undeterred, Monsanto has continued testing other GM crops. Two months ago, a hastily destroyed experimental field of GM maize was filmed by a local TV crew. Monsanto has been accused by Greenpeace of not informing the field’s owner about the nature of the crop.

AMRIT GOWDA: We didn’t really have an agreement. Monsanto just made me sign a form.

REPORTER: What was written on the form?

GOWDA: Nothing. There was just a date and the name of the company.

SOURCE: India Suing Monsanto for Biopiracy

Although resistance to the patenting of the world’s food supply should be applauded in all its forms, what is needed is a fundamental transformation in our understanding of life itself from a patentable organism to the common property of all of the peoples who have developed the seeds from which these novel GM crops are derived.

This concept, known as open seeds, is being promoted by organizations around the globe, including Dr. Vandana Shiva’s Navdanya organization.

SHIVA: Traditional knowledge has grown as a tradition that is shared. It has grown cumulatively and collectively. That is what makes it deeply distinctive.

Intellectual property rights are based on the idea of an individual having rights, which is then based on the idea of an individual making innovation, which is not the way knowledge actually works. Knowledge is a collective tradition. It’s a common resource of society.

To me, the idea of treating seed as an invention, a system in which farmers would be treated as thieves and criminals for saving their seeds and performing their duty to the earth, is abhorrent. That’s what made me get involved in this idea to keep seeds open.

Open source is like open seeds. Open pollinated variety seeds are made through pollination of bees and butterflies acting in freedom. They are free in the sense they can be saved generation after generation. They are seeds of prosperity, they are seeds of life.

Open source software is the same. It is a way of spreading prosperity and knowledge in society rather than creating scarcity, poverty and deprivation.

SOURCE: Vandana Shiva: Seeds of open source

To be sure, it will be a long and arduous uphill battle to bring this issue to the attention of a public that seems to be but dimly aware of what genetically modified foods are, let alone the legal ramifications of the ability to patent life, but as the work of such organizations as Navdanya continues to educate people about the issues involved, the numbers of those opposed to the patenting of the biosphere likewise increases.

From seed-saving and preservation projects to an increased awareness of and interest in organic foods, people around the globe are beginning to take the issue of the food supply as seriously as the companies that are quite literally attempting to ram their products down the consumers’ throats.

As always, the power lies with the consumers, who can win the battle simply by asserting their right to choose where and how they purchase the food, a lesson that was demonstrated once again earlier this month in Germany.

REPORTER: Dieter Renner is an organic farmer in the state of Rheinland-Pfalz. He’s the fourth generation in his family to grow grain and vegetables, all organically. He’s glad that BASF decided to transfer its research unit for genetically modified crops out of Germany. He says local farmers will benefit.

DIETER RENNER: I’m pleased. It’s proof that the people who oppose genetically modified crops are right. 70% of Germans oppose genetic technology, so BASF made the right decision about leaving Germany. It’s too bad they’ll still be able to carry out their research in the US. This kind of research should be stopped.

SOURCE: Genetically Modified Foods Not Welcome | People & Politics [VIDEO NO LONGER AVAILABLE]