The Commons, Plant Breeding and Agricultural Research

Challenges for Food Security and Agrobiodiversity

Fabien Girard, Christine Frison, Fabien Girard, Christine Frison

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367508418
• eBook ISBN: 9781351615891
• Edition: 1
• Topic: Law
• Subtopic: Intellectual Property Law
• Index: Law

The joint challenges of population increase, food security and conservation of agrobiodiversity demand a rethink of plant breeding and agricultural research from a different perspective. While more food is undeniably needed, the key question is rather about how to produce it in a way that sustains biological diversity and mitigates climate change.

This book shows how social sciences, and more especially law, can contribute towards reconfiguring current legal frameworks in order to achieving a better balance between the necessary requirements of agricultural innovation and the need for protection of agrobiodiversity. On the assumption that the concept of property can be rethought against the background of the 'right to include', so as to endow others with a common 'right to access' genetic resources, several international instruments and contractual arrangements drawn from the plant-breeding field (including the Convention on Biological Diversity, technology exchange clearing houses and open sources licenses) receive special consideration. In addition, the authors explore the tension between ownership and the free circulation and exchange of germplasm and issues such as genetic resources managed by local and indigenous communities, the ITPGRFA and participatory plant-breeding programmes.

As a whole, the book demonstrates the relevance of the 'Commons' for plant breeding and agricultural innovation.

1 Farmers, innovation and intellectual property

Current trends and their consequences for food security

Graham Dutfield¹

Introduction

Food security depends on access to a sufficient quantity of nutritious food. With a huge and growing global population, an ever-increasing proportion of which has no involvement in the production or supply of food, innovation that enhances food security has never been more important. Crop improvement in terms of greater productivity and nutritional quality is an essential area for innovation. Of course, plant innovation goes back more than 10,000 years, without which there would have been no such thing as agriculture. For almost the whole period, it has exclusively been carried out by farmers. Its success has been dependent on the exchange of ideas and plant material, albeit not necessarily without restrictions such as those based on local norms opposing or constraining free access to all (Coomes et al. 2015). The professionalisation of plant breeding, done by scientists who are not themselves farmers, is comparatively recent. It has been advantageous in many respects. However, the ever-increasing pervasiveness of scientific breeding and the evermore exclusionary legal and regulatory norms that are integral to it has certain problematic aspects, which are all too rarely admitted. This chapter argues, first, that encouraging plant innovation in favour of food security entails a much wider appreciation of its diverse sources starting from the farm all the way to the biotech corporation, as well as a higher awareness of the social normative and legal context enabling such innovation to flourish. Intellectual property rights are alien intruders as far as small-scale and resource-poor farmers in developing countries are concerned. The idea of seeking monopoly protection over their cultivars is likely to be unthinkable to such farmers. Second, for policymaking farmer-centric approaches to innovation emphasising autonomy, freedom and openness, and utilising the capacity to innovate of small farmers, in collaboration or otherwise with scientific breeders, are necessary too. This is especially the case in developing countries where ‘traditional’ agriculture continues to resist the tide of top-down models of rural development, often driven by the pursuit of profit, that treat farmers as consumers of innovations produced elsewhere, possibly in a very distant location.

The chapter first explains what plant innovation is and how it has evolved over time. It then traces the separation of the practice of breeding from cultivation and shows how, as time went by, new legal norms – mostly patents and plant variety protection (PVP) – came to predominate and have become global in their application. The implications for food security and for the small-scale farmers, who continue to be vital providers of food throughout the world, have been mixed. Food production globally has soared, yet food security remains a huge problem with millions going hungry or suffering from diseases caused by poor nutrition. Meanwhile agricultural biodiversity is encountering huge stresses.

From a global history perspective, intellectual property rights, while apparently being the ‘new normal’, are in fact a recent and highly disruptive deviation from norms going back millennia. The same may be said for seed licenses. Meanwhile, the needs, interests, social norms, agricultural practices and innovations of small-scale farmers still tend to be overlooked.

Plant innovation: ancient, traditional and modern

Ever since the birth of agriculture, and possibly even before then, humans have done other than merely accept nature as we found it. The Neolithic adoption and spread of agriculture transformed the biosphere, turning untamed wildernesses into farmlands. Farming and crop improvement were carried out by the same people and in the same places: by farmers on the farm. From Neolithic times, farmers have set aside some of their harvested seeds for replanting. They selected such seeds, whether consciously or unintentionally, on the basis that the plants producing them possessed desirable traits such as high yields, disease resistance or drought or frost tolerance. Over the generations, this practice resulted in ever-increasing quantities of locally adapted varieties known as ‘landraces’ or ‘farmers’ varieties’. Ecologically speaking, agriculture involves arresting natural succession processes at a very early stage. By preventing the maturation of ecosystems, invasive species, often grasses like wheat, rice, barley and maize, remain dominant instead of giving way to trees (or other vegetation prevalent in mature ecosystems) as would otherwise happen without humans to prevent it by weeding, ploughing and burning. Wild plants and animals became domesticated ones, initially by becoming ‘camp followers’ taking advantage of the opportunities provided by human habitation to spread onto the disturbed terrain and scavenge for food. While human selection ultimately had a massive effect, ‘domestication’ in its early stages was not something that humans ‘did’. Rather it was a normal evolutionary response to the formation of new ecological niches resulting from human settlement and activity that selectively advantaged individuals with certain traits. Such traits included tameness in certain animals and opportunism in plants. In time, humans would have preferred plant species that were edible and individuals tending to put their energies more into vegetative growth and seed production than in developing complex and extensive root systems (Budiansky 1992). Here human selection would have come into play. Far later, the will and capability to improve the world with a little hard work and ingenuity came to be seen by Europeans as one of the hallmarks of a civilised society.

The separation of the two activities of farming and breeding is very recent historically. In some parts of the developing world, though, it has hardly begun. In late nineteenth-century North America and Europe, a marked divergence emerged between the occupation of farming and of seed improvement and production. Those engaged in the latter were selecting from the existing materials to increase their share in a growing market in commercial seed. This commercial crop improvement was empirical and experimental but with a growing scientific basis in mathematics applied to selection methods. Very soon after the 1900 rediscovery of Mendel’s insights into the laws of heredity, scientists sought to apply genetics to crop improvement. According to conventional accounts, this led in good historically linear fashion to the directed development of ‘pure lines’ of self-pollinating crops. Pure lines, a term coined by Wilhelm Johannsen, are uniform, breed true to type and contain consistent and identifiable traits that can be transferred to other plants. According to Pistorius and van Wijk (1999), ‘while Mendelian breeding allowed for a controlled mixing of genetic characteristics, pure line breeding offered a practical method to ‘fix’ them in succeeding generations’. It must be said here that debate continues as to how far the notion of the pure line truly transformed breeding practices and whether it was all that crucial in attracting new commercial interest in crop improvement (Berry 2014), but a deeper discussion falls beyond the scope of this chapter (e.g., see Bonneuil 2006). Suffice it to say that PVP is implicitly founded upon a pure line-derived conception of breeding practices and of what the ‘new plant variety’ by definition is.

Nowadays, the inputs for crop improvement work largely include earlier varieties that themselves were previously developed by the same improvement techniques. These form a large proportion of the stock of breeding material already in wide circulation among breeders. Thus, much plant breeding centres on the mixing or ‘shuffling’ of traits that are either known about already or else can be identified in easily accessible and well-characterised plant material. However, inputs also include varieties acquired from seed collections newly or only recently circulated as breeding material. In addition, varieties hitherto found within and around the fields of local and indigenous cultivators may also be used. In certain cases, such human populations inhabit areas within the centres of origin and diversity of major crops such as rice, wheat, maize and potatoes as were initially identified by the great early twentieth-century Russian geneticist Nikolai Vavilov. The centres, therefore, are strategically important in terms of food security, conservation and commercial activity in plant breeding and commercial biotechnology.

Plant innovation is inherently cumulative based on incremental improvements on what already exists. Much of what exists goes back thousands of years and has generally been freely available for everyone’s benefit. Admittedly, modern field-crop breeders are not usually reliant on traditional farmers’ varieties on an everyday basis, except when they are starting up new breeding programmes. Even then, this reliance is likely to diminish over time as they focus evermore on the recycling of modern varieties. However, local farmers’ varieties (Halewood and Lapeña 2016; Louwaars and De Boef 2012) and wild relatives of crops (Castañeda-Álvarez et al. 2016; Montenegro 2016) continue to be extremely important for integrating new traits or new variants of known traits (e.g., disease resistance), and their continued use and existence is essential for breeders and local/indigenous communities alike. Being themselves conservers (through their use of agricultural biodiversity) and crop improvers (thought their selection practices and on-farm experimentation), many so-called ‘traditional’ cultivators provide an essential service to breeders and to those of us who do not farm and need others to provide sustained food security. Indeed, global food security can be enhanced by encouraging their use and by ensuring that access to them be kept open, subject to the rules and principles of the UN Food and Agriculture Organization (FAO) International Treaty on Plant Genetic Resources for Food and Agriculture, which establishes a multilateral system of facilitated access to plant genetic resources but respects national sovereignty and requires benefit sharing.

Incremental as it is, plant breeding is a very laborious and time-consuming process. It takes about seven to ten years to get from the first cross to the marketable variety. The first task is to determine the objectives of the breeding programme. One obvious goal is to produce varieties with higher yields, but there are many other possible objectives such as the development of varieties with added or improved characteristics such as pest resistance, disease resistance or drought tolerance; compatibility with inputs such as fertilisers and pesticides; and improved consumption or food-processing characteristics. A major challenge for breeders is to respond on the one side to the requirements of varying farming conditions, and on the other hand to the need to develop varieties that can be sold widely. Furthermore, they increasingly have to respond to the ever-changing demands of conglomerate seed and chemical companies, food-processing companies and supermarket chains.

The hyper-abundance of food products in the developed world and the reduction of mass hunger in a few developing countries are largely attributable to modern agriculture including the varieties in common use bred by public and private sector breeders. One must avoid being Panglossian about this. Overconsumption and the low-quality diets of many people, with all the attendant health problems from diabetes epidemics to malnutrition, are other consequences we can hardly sweep under the carpet. The modern food system is also highly dysfunctional. Putting these problems aside for just a moment, generating revenues from plant breeding is a challenge. This is significant if we accept as we should crop improvement’s contribution to social welfare enhancement. For varieties that breed true, meaning they have consistent traits that persist generation by generation, farmers and even amateur gardeners can save, clean and replant or sell seeds. Asexually reproducing species can be mass copied through techniques such as cutting and grafting. In response, biological technologies such as those for producing hybrids, intellectual property and contract law – as applied through use of licenses that purchasing seed dealers and farmers must agree to – may be deployed so that breeders can derive revenue from plant varieties that they have developed.

The discussion is true as far as it goes but it largely leaves out today’s small-scale farmers. There is a tendency to write off traditional small-scale systems as being obsolete, maladaptive and generally unproductive. One of the main reasons why we fail to respect traditional agriculture is perhaps that the word ‘traditional’ implies a rootedness to the past as if that is its defining and only feature. To suggest that traditional knowledge is old and therefore lacks novelty is an unhelpful presumption. It may well be true that these systems alone will never support today’s global population, of which more than half is now urban dwelling, and that modern intensive agriculture based on high-yielding varieties and large doses of chemical inputs is vital.

Perhaps the difference between what ‘scientific’ breeders and small-scale farmers do with respect to crop improvement is overstated in a way that justifies intellectual property protection for the former and exclusion of protection for the latter. It was certainly not always like this. How plant breeders conceptualise their work, their role and the extent to which they intervene in and control nature has changed over the decades and not only on scientific grounds. Nowadays intellectual property and commercialisation are implicated in this as never before. As historian Berris Charnley (2015: 23–24) explains:

In the 1950s and 60s, despite the US Plant Patent Act 1930 and UPOV, and the legal arguments around inventorship behind such legislation, many plant breeders still saw themselves as stewards of somewhat natural variability, rather than as inventors. The varieties they produced had to be constantly maintained, otherwise a variety might “run out”, becoming heterogeneous and unruly. This stewardship role – enshrined in breeders’ practices – was a key selling point in catalogues which proclaimed the length of time varieties had been maintained and purified […] Over the decades since mid-century the variety has slowly been ossified as a fixed and discrete unit. Variability has been recast within acceptable boundaries which do not threaten a variety’s integrity. In the years since 1980, this conception of variety has in turn been displaced as the product of plant breeding by allegedly fixed identifiable entities around which intellectual property could be circumscribed, without the need for maintenance – DNA sequences.

This refusal to countenance the inevitability of natural variability is, Charnley argues, a fiction, and one which has wider implications: ‘The law’s recent focus on DNA sequences, as though they were static and unchanging over time, degrades the importance of stewardship roles (especially those conducted by small scale farmers in maintaining land races)’ (ibid.: 24).

In fact, we need to go much further in changing the discourse. Small-scale farmers are the main providers of food security in many developing countries, and as mentioned, their sustainable production and their maintenance and use of agricultural biodiversity are a boon for all humans. So-called traditional farmers can be highly innovative in the face of fluctuating and unpredictable environmental conditions. One might call this ‘invisible innovation’. Few efforts have been made to define, bound and quantify it. On the other hand, intellectual property protection requires that human creativity be fragmented into discrete units that form the tangible or intangible items that the legal monopoly surrounds.

Misconceptions hardly help. Contrary to what is frequently assumed, not all farmers’ varieties are ancient; neither are they all ‘traditional’: sometimes there is cross-breeding with modern varieties (Kingsbury 2009: 65–66). Anthropologist Paul Richards (1999: 315–16) explains, for example, how Mende farming communities in Sierra Leone continue effectively to manage agricultural genetic diversity, experiment on-farm with traditional and modern rice varieties and to produce their own varieties whose performance is often better than those provided by extension services. Thankfully, there is some greater appreciation that agricultural innovation needs to be construed much more broadly to include small-scale farmers:

More recently, the scope of what is considered agricultural innovation has broadened. It has become more widely understood as a process that is inherently social in nature. Individuals and communities in specific localities share and adapt local knowledge, selectively integrate “scientific” knowledge, and develop new and better ways of managing resources, responding to opportunities and overcoming local challenges.

(QUNO 2015: 8)

The Quaker United Nations Office, the source of that quote, follows with the important point that ‘A broader understanding of innovation in agriculture inspires a reconsideration of the type of policy measures that are needed to nurture and support it’ (ibid.). Such reconsideration raises a broad set of policy questions that fall beyond the scope of this article. However, it must surely involve a reassessment of the legal system ostensibly aimed at promoting plant innovation: intellectual property. Are property and monopoly necessarily the answer if the questions are much more diverse and interesting than merely that of how to generate more plant varieties that can generate profit?

There are very good reasons why small-scale farmer innovation should be allowed to persist and not interfered with by inappropriate and monopolistic intellectual property laws and seed regulations including compulsory seed lists like the European Agricultural and Vegetable Common Catalogues. The intellectual property laws may have this effect if they narrow or eliminate the privilege of farmers to replant and exchange saved seed. Seed regulations may do so if they require that the only cultivated varieties sown by farmers be those on an official seed list and that farmers’ varieties be mainly or entirely excluded from it for failing to meet strict, inflexible criteria (see Halewood 2016). Unfortunately, in many parts of the world, workable local agricultural systems have been modified and distorted and thereby rendered ineffective. One should not be romantic about traditional agriculture, if for no other reason than that many of these systems have been degraded through no fault of the local people themselves and no longer function as they did. Population increases, the spread of market economies with the introduction of export crops and Green Revolution technologies; all-too-prevalent assumptions that Western techniques and methods such as high-input monocultural agriculture are superior to local ones like intercropping, and the imposition of inappropriate laws and regulations by governments and war are all factors ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements and dedications
• Notes on contributors
• Table of cases
• Table of statutes and international conventions
• List of acronyms and abbreviations
• Introduction: Commoning the seeds: the future of agrobiodiversity and food security
• 1 Farmers, innovation and intellectual property: current trends and their consequences for food security
• PART I Access, benefit-sharing and licensing
• PART II Theoretical frameworks
• PART III The struggle for the recovery of the shrinking bio-commons
• PART IV A new vitality for the bio-commons?
• PART V Thinking global: a global commons for the seed?
• Index