While there are several efforts by farmers and civil soci- ety organisations around conserving and using existing diver- sity it is under severe threat from the onslaught of newer technologies like GM and also legal systems make seed a proprietary resource preventing further development.

Open Source Seed Systems

The process of modernization of agriculture has deskilled the farmers making them passive consumers of industrial products including seeds. This has not only result- ed in increased economic and ecological costs but also made farmers lose their control over their productive resources and production processes. This process has led to a monoculture of crops, production practices and food habits which had seri- ously affected the resource poor farmers and resource poor farms especially in rainfed areas on one hand and the health of the consumers on the other.

While the concerns for biodiversity conservation let to various international conventions, treaties etc like Convention on Biodiversity, International Treaty on Plant Genetic Resources for Food and Agriculture, while the push for

exclusive rights by industry evolved UPOV, TRIPS under WTO. Both these concerns have influenced the national gov- ernments to introduce newer legislations or modify the exist- ing ones to honour these international agreements. There were several conflicting provisions in both the treaties and some grey areas left unanswered. It is time now to look into these commitments and provisions to understand and evolve legal and institutional systems which can uphold the farmers’ customary rights over genetic resources and associated landscapes, cultural and spiritual values and customary laws, on which the continued conservation and improvement of PGRS by farmers depends.

In India, two of the so-called progressive legislations in India in the form of PPVFR Act (Protection of Plant Varieties and Farmers’ Rights Act) and BDA (Biological Diversity Act), the former under TRIPS’ compliance obligations and the lat- ter under CBD obligations. However, both these legislations are basically located within IPR frameworks, that too which primarily to uphold breeders’ and researchers’ rights and grant farmers’ rights almost as residual rights.

While there are several efforts by farmers and civil soci- ety organisations around conserving and using existing diver- sity it is under severe threat from the onslaught of newer technologies like GM and also legal systems make seed a proprietary resource preventing further development.

In this context, it is essential to think of a newer frame of institutions, legal frameworks which protects farmers’ inter- ests and at the same time ensure free and open access the germplasm for crop improvement and use. This requires changes not only in national plant variety protection laws, but also in other seed regulations which govern the seed market.

The new IPR (Intellectual Property Rights) regime cou- pled with GM technology will further worsen the situation as few people will get exclusive rights over seed and technolo- gy. In addition to existing technical restrictions on reuse of seed, legal restrictions will now apply. GM soybean in Argentina, GM canola in Canada and GM Cotton experience in India are classical examples on how the seed industry can arm twist the farmers, governments and even the grain traders to keep their exclusive control over seeds.

Given the seriousness of the problem we need to plan and evolve innovative processes, technologies and institu- tional systems which can help in conserving existing diversi- ty, evolve newer lines, produce and meet the needs of the farmers. For this to happen we need to build a network of

  • People engaged in conservation and revival of traditional varieties, characterize and share with others
  • Farmers and organisations which can develop Value for Cultivation and Use (VCU) data for the existing tradition- al/improved varieties in different agroclimatic and growing conditions using participatory varietal selection
  • Farmers/breeders engaged in selection and development of newer varieties using participatory plant breeding prin- ciples
  • Farmers institutions involved in production and marketing of seed to other farmers

To implement such a model there has to be an agency as Open Source Seed Network (or Open Source Seed Foundation if we want it as a standalone organisation) which can bring all the players on to a platform, build confidence on each other and coordinate the activities and act as a nodal

agency at the national level. This agency can also for bring- ing together breeders and farmers and for guiding farmers on aspects of conservation, data generation, participatory breed- ing, registration and licensing as Open source. There could be a common pool to which farmers can contribute their seeds 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) which are governed under contractual law and have open source clauses. Several such national initiatives can form into a Global Forum for Open Source Seed Initiatives.

The key concepts

  • Open Source Seeds System for us means ‘arrangements that facilitate and preserve freedom of access and use of plant genetic material, prohibit exclusive rights, and apply to any subsequent derivatives of those materials
  • Freedom of access: Any one committing to OSS agree- ment receives freedom of access and use for the materi- al under Material Transfer Agreements (MTAs)
  • Freedom of use: Open source seeds would be available for farmers and breeders with freedom to use
  • Farmers have freedom to use, reuse, sell
  • In case of Selections and Breeding of derivatives
  • Clear acknowledgement of the source of breeding material
  • the derivatives can only be distributed under open source arrangement
  • Genetic Modification not allowed
  • Commercial Seed Production (Farmers and Farmers Cooperatives)
  • Benefit sharing with the open source seed network for continuing the initiative
  • Have to use the same varietal name but can brand differ- ently

The farmers and organisations involved in the network need to perform the following functions

  • Conservation and revival of existing varieties: Organise farmers and institutions interested in conserva- tion, to recover and retrieve seed varieties that were in use or that are still in use, and popularise them among farmers. This helps farmers not only in rediscovering old varieties, but also in preserving them. Mapping tools would be used to document existing seed diversity and share the information. Minimal set of physical characters of the varieties for identification and differentiating between varieties can be evolved for each crop and can be documented.
  • Participatory Varietal Selection for generating Value for Cultivation and Use data for existing varieties: Apart from the traditional varieties, farmer breeders across the country have evolved several varieties with specific characters to suit their needs. Similarly, public sector research organisations have developed several varieties and hybrids which have great potential. If the Value for Cultivation and Use data can be generated using Participatory Varietal Selection for these varieties along with traditional varieties, in various growing conditions farmers can make choices easily. Such data catalogues can be published and shared. Such catalogues also establishes prior art and can prevent the biopiracy to an extent.
  • Breeding to evolve newer varieties: Another solution is to develop new varieties/hybrids working with farmers, taking into account their specific needs and demands. This could be by farmer breeders, institutional breeders and/or a collaborative Participatory Plant Breeding
  • Institutional breeders: Public institutional breeders Participatory Plant Breeding:

  • Maintenance Breeding: One of the very important func- tion ignored is make continuous selections from the lines, to keep up the quality. Few groups have to take this responsibility. Many of the best varieties have lost their vigour due to poor maintenance.

OSS Foundation

(Registration, licensing, monitoring, coordination and legal issues)

Conservation, revival and characteriza- tion of tradi- tional var. Custodian Farmers engaged in conservation gene banks and research stationsBreeding newer varieties/hybrids farmer breeders through selec- tions participatory plant breedingMaintenance breeding – collaboration with research institutionsGenerating Value for Cultivation and Use Data Farmers organiza- tionsresearch institu- tionsSeed production, distribution/ marketing Community Seed BanksFarmers cooperativessmaller seed companiesindividual farmers

Seed using Farmers

Farmers have developed seed varieties by experiment- ing over centuries and sharing the improved varieties with oth- ers. As a result of this continuing experimentation, testing, se- lection, propagation and exchange, diversity was made pos- sible. Participatory plant breeding tries to mix the best in mod- ern science with the wisdom of farmers in order to select/de- velop varieties that are both farmer-friendly and meet the needs

of different agro-climatic zones. Participatory plant breeding is also a learning process. Farmers evaluate seed varieties by various criteria and decide what to choose and which im- provements to make. Instead of a standardised product we can also use evolutionary breeding principles (continuous se- lections)

Participatory plant breeding can also be used to make traditional varieties more suited to meet the needs of today’s farmers.

These methods are not exclusive choices. They can be used together to conserve biodiversity, maintain existing and to develop new varieties.

  • Community Seed Banks, Community Seed Enter theprises, Seed fairs, Seed Production and marketing: The farmer cooperatives, individual entrepreneurs who are interested in producing and marketing the open source licensed Seed. This involves establishment of Commu- nity managed seed banks at village level which can be feder- ated with an effective decentralized production, procure- ment, storage, distribution and marketing net- work in which ‘Community Based Organizations’ at village level plays the key role.

Making Public Sector as Partners in Open source Breed- ing

As a result of the opportunity to obtain more exclusive novel gene sequence and germplasm ownership and protec- tion, the mindset of the public sector plant breeding commu- nity has become increasingly proprietary. This proprietary atmo- sphere is hostile to cooperation and free exchange of germplasm, and may hinder public sector crop improvement efforts in future by limiting information and germplasm flow. A

new type of germplasm exchange mechanism is needed to promote the continued free exchange of ideas and germplasm. Such a mechanism would allow the public sector to continue its work to enhance the base genotype of eco- nomically im- portant plant species without fear that these improvements, done in the spirit of the public good, will be appropriated as part of another’s proprietary germplasm and excluded from unrestricted use in other breeding programs. The specific mechanism can be a “General Public License for Plant Germplasm (GPLPG)”. Similarly, all the public germplasm collections can be brought under GPLPG.

Implementation of open source mechanisms such as the Open Software License/General Public License (OSL/GPL) could have significant effects consistent with both strategies of resistance and creativity. In terms of resistance, the GPL would:

  • Prevent or impede the patenting of plant genetic mate- rial: A GPL would not directly prohibit patenting (or any other form of IPR protection) of plant genetic material but would render such protection pointless. The GPL man- dates sharing and free use of the subsequent generations and derivatives of the designated germplasm. In effect, this prevents patenting since there can be no income flow from the restricted access to subsequent generations and derivative lines that it is the function of a patent to gener- ate. Further, the viral nature of the GPL means that as germplasm is made available under its provisions and used in recombination, there is a steadily enlarging the pool of material that is effectively insulated from patent- ing. Enforcing the GPL against possible violators would not be easy given the resources necessary. But even the mere revelation of violations would have the salutary ef-

fect of illuminating corporate malfeasance and eroding the legiti- macy of industry and its practices.

  • Prevent or impede bioprospecting/biopiracy: The GPL could be similarly effective in deterring biopiracy. Faced with a request to collect germplasm, any individual, com- munity or people could simply require use of a materials transfer agreement incorporating the GPL provisions. Few commercially oriented bioprospectors will be willing to col- lect under those open source conditions. Again, enforc- ing the GPL against possible violators would not be easy, but instances in which “bioprospecting” can be revealed to unambiguously be “biopiracy” would contribute to pub- lic Aawareness and strengthen popular and policy oppo- sition to unethical appropriation of genetic resources.
  • Prevent or impede the use of farmer derived genetic re- sources in proprietary breeding programs: Because nei- ther the germplasm received under a GPL nor any lines subsequently derived from it can be use-restricted, such materials are of little utility to breeding programs oriented to developing proprietary cultivars. Any mixing of GPL germplasm with these IPR protected lines potentially com- promises their proprietary integrity. Application of the GPL to landraces could therefore effectively prevent their use in proprietary breeding programs.
  • Develop a legal/institutional framework that recognizes farmers’ collective sovereignty over seeds: A major advan- tage of the GPL is that it does not require the extensive development of new legal statutes and institutions for its implementation. It relies on the simple vehicle of the mate- rials transfer agreement that is already established and enforceable in conventional practice and existing law. It

uses the extant property rights regime to establish rights over germplasm, but then uses those rights to assign sov- ereignty over seed to an open-ended collectivity whose membership is defined by the commitment to share the germplasm they now have and the germplasm they will develop. Those who do not agree to share are self-se- lect- ed for exclusion from that protected commons.

  • Develop a legal/institutional framework that allows farm- ers to freely exchange, save, improve, and sell seeds: For farmers, the feature of the space created by implementa- tion of the GPL that is of principal importance is the free- dom to plant, save, replant, adapt, improve, exchange, distribute and sell seeds. The flip side of these freedoms is responsibility (and under the GPL, the obligation) to grant others within the collectivity the same freedoms; no one is entitled to impose purposes on others or to restrict the range of uses to which seed might be put. In the face of increasing restrictions on their degrees of freedom to access and use seed, application of the GPL offers a means for farmers to create a semi-autonomous, legally secured, “protected commons” in which they can once again work collectively to express the inventiveness that has historically so enriched the agronomic gene pool.
  • Develop an institutional framework in which farmers and plant scientists work together in the development of new plant varieties that contribute to a sustainable food sys- tem: The “protected commons” that could be engendered by the GPL can, and must, also encompass scientific plant breeders whose skills are different from but comple- mentary to those of farmers. Many new cultivars will be needed to meet the challenges of sustainably and justly feeding an expanding global population in a time of ener-

gy competition and environmental instability. The open source arrangements that have undergirded the success- es of distributed peer production in software could have a similar effect in plant improvement. If in software it is true that “to enough eyes, all bugs are shallow,” it may follow that “to enough eyes, all agronomic traits are shal- low. Participatory plant breeding offers a modality through which the labor power of millions of farmers can be syner- gistically combined with the skills of a much smaller set of plant breeders. The GPL offers plant scientists in public institutions a means of recovering the freedoms that they

– no less than farmers have lost to corporate penetra- tion of their workplaces. Public universities, government agen- cies, and the NARS, CGIAR systems should be the insti- tutional platform for knowledge generation based on the principle of sharing rather than exclusion. Public plant breeders, too, can be beneficiaries of and advocates for the protected commons.

  • Develop a framework for marketing of seed that is not patented or use-restricted. The GPL is antagonistic not to the market, but to the use of IPRS to extract excess prof- its and to constrain creativity through restrictions on deriv- ative uses. Under the GPL, seed may be repro- duced for sale and sold on commercial markets. By carv- ing out a space from which companies focusing on pro- prietary lines are effectively excluded, the GPL creates a market niche that can be filled by a decentralized network of small scale, farmer-owned, and cooperative seed com- panies that do not require large margins and that serve the inter- ests of seed users rather than investors. Seed sovereign- ty need not involve farmers alone, nor can it be achieved solely by farmers.

Seed sovereignty will be manifested as a system encom- passing farmers, indigenous peoples, plant scientists, public scientific institutions, and seed marketers. GPL/ OSL/copyleft arrangements could plausibly constitute a legal/regulatory framework that could open an enabling space within which these different social actors could be effectively affiliated.

Ensuring quality: The OPSS network should take up respon- sibility of maintaining the quality of the seed on the lines of Participatory Guarantee System (PGS). The techni- cal guide- lines should be formulated and shared with all the members for all the crops. Mechanisms for effective imple- mentation, technical support etc., will be provided by Network. All said, the network should gradually evolve money not only for self sustaining but to meet the compensa- tory requirements in case of exigencies.

Protecting Traditional Knowledge associated with Biodiversity

The traditional knowledge associated with use of biore- sources also needs to be protected. India should evolve rules specifically sets out to provide for protection, conserva- tion and effective management of traditional knowledge relat- ed to biodiversity. They should recognise the ownership of the holder of Traditional Knowledge and also ensures that not only should this right be upheld but the continuum of the practice also ensured. “Simply” documenting it will not ensure its con- tinuity and it needs numerous checks and balances to benefit and protect the rights of the Traditional Knowledge holder. On the management side, a licensing system which prevents mis- use, abuse and misappropriation of Traditional Knowledge is needed. This includes a stringent process of evaluation, with active participation of the State Biodiversity Boards, Biodiversity Management Committees and most importantly

8th0e Traditional Community.

Agrarian Crisis in India

The Rights of the Traditional Communities and Practitio- ners to use, share and continue their livelihood unhindered is also ensured, even while its commercial utilisa- tion is man- aged from the point of view of its ecological and social sustainability as well as ensuring adequate and equi- table benefits by way of monetary, non-monetary and wel- fare-based measures. Ensure that a strong regulatory sys- tem is in force which is a deterrent against usurpation of rights of knowledge holders and also bestows responsibility and power on the National Biodiversity Authority.

In the absence of any clear policy on this, the imple- men- tation of Access and Benefit Sharing as in Nagoya Protocol will only will provide unlimited access and benefits to the in- dustry while the ‘benefit sharing’ would be only very lim- ited to a limited number of people.