by Keith Aoki. NC: Durham: Carolina Academic Press, 2008. 280pp. Paper $40.00. ISBN: 9781594600500.
Reviewed by Krishna Ravi Srinivas, Research Information System for Developing Countries, New Delhi, India. Email: krsriniv [at] gmail.com.
Plant Genetic Resources (PGRs) have played a crucial role in the global agriculture and food production system. For centuries they were treated as part of the common heritage of (hu)mankind, which meant that it was free for all and might was right in dealing with PGRS. With the industrialization of agriculture and development of modern plant breeding based on genetics, commodification of seeds was made possible. Availability of intellectual property protection for plant varieties and seeds gave rise to many issues, because until then seeds were considered products of nature and were not covered by intellectual property protection. Globally, the North-South divide in the late seventies and early eighties regarding access to germplasm, and the signing of TRIPS in 1994, changed the rules of the game in transactions involving PGRs. The International Treaty on Plant Genetic Resources for Food & Agriculture (ITPGFRA) was an initiative that sought to combine conservation and access to PGRs with benefit sharing mechanism and recognition of Farmers’ Rights. Still the global regime of PGRs is far from clear, as at least three treaties/conventions have considerable overlap among them, i.e. ITPGFRA, TRIPS and CBD (Convention on Biological Diversity). Keith Aoki in SEED WARS, gives an overview of the developments in the past, the current trends, and discusses future directions in this acrimonious issue of intellectual property rights (IPRs) on plant genetic resources.
Chapter One introduces the reader to the global transfer of PGRS, the technological progress and developments in agriculture and their impact on PGRS, and the important role played by PGRs from other countries in development of agriculture in the US. Aoki shows how hybridization brought in changes in seed supply and use and transformation of the seed industry. This process was a major step in commodification of germplasm. One of the effects of this commodification was the move to apply intellectual property protection to plants.
Chapter Two deals with developments in applying IP rights over plant varieties and the advent of technology in which prompted new questions, and the outcome of the technological revolution in agriculture. Within seven decades, the extension of IP rights resulted in ever stronger protection. The decision in DIAMOND v. CHAKRABARTY (1980) paved the way for patenting of genetically modified organisms, and subsequent decisions affirmed the availability of patent protection for plants. With the availability of Plant Variety protection under PVPA and patents under Patent Act, the industry sought and obtained the elimination of [*660] farmers’ exemption that enabled their reuse of saved seed. The industry underwent a major transformation during the last two decades of the twentieth century. Consolidations and mergers created firms that not only dominated the agro-chemical industry but also became major players in seeds and agricultural biotechnology as well. Thus the commodification process was complete. Decisions in ASGROW (1995) and SCHMEISER (2004) confirmed that patent law was applicable to seeds and use of patented seed was like use of any other patented product. In SCHMEISER, the Supreme Court of Canada expanded the meaning of patent law and held that unauthorized use of patented seed material was an infringement of patent rights. The dual protection was affirmed by the US Supreme Court in J.E.M.AG SUPPLY (2001). Thus the farmer was reduced to the role of a mere consumer of seeds who had no right to reuse, sell or exchange the output as seed material.
Chapter Four discusses developments at the international level and the transformation of the discourse on ownership and control over PGRS. PGRS were no longer considered as Common Heritage of (Hu)mankind but as resources that were subject to sovereign rights of countries. The Convention on Biological Diversity linked conservation, and access with sovereign rights of nations over genetic resources. It established norms for access and benefit sharing. It was a compromise solution for North-South conflict over access and use of PGRS. The TRIPS (Trade Related Intellectual Property Rights) Agreement of the WTO sought to harmonize the rules for a global intellectual property regime. Article 27.3(b) of TRIPS extended IP protection to plant varieties, but whether it mandated patent protection was a controversial issue. Developing countries took advantage of the sui generis option and tried to craft a regime that balanced IP protection with farmers’ rights.
The International Treaty on Plant Genetic Resources for Food & Agriculture complicated matters further as it brought in a Multi-Lateral System for PGRs and recognized farmers’ rights, while also giving shape a to benefit sharing regime. Aoki discusses the regime shifting and the consequences for global management of plant genetic resources. He addresses the breakdown of ‘common heritage’ system through multiple international conventions/treaties and suggests the consequent possibility of the tragedy of anti-commons. He rightly states, “While it is important not to overstate the argument, at times it seems that the expansion of intellectual property has taken on a strange but dynamic life of its own” (p.97).
In the final chapter Aoki examines the alternatives that have been suggested as a solution to the problems created by expansion of intellectual property rights as well alternative regimes/models based on notions on ‘commons’ and Open Source models. He discusses ideas like ‘Limited Commons’ and the applicability and limitations of Open Source models, and the issue of Open Access to plant genetic resources. He concludes, “If we do not take into account the distributive effects of intellectual property law and practices regarding PGRs, the question is this : Do we control our institutions and inventions or do they, like [*661] Frankenstein’s monster control us?” (p.129). The appendix provides the excerpts from relevant international agreements and treaties and laws of the US and Canada, as well as important US and Canadian court cases.
To sum up, SEED WARS provides an excellent overview of the issues and suggests a range of options to overcome the ill effects of expanding intellectual property rights on access to plant genetic resources, seeds and plant varieties. Aoki does a nice job of drawing the linkage between IPRs and PGRs, without suggesting a return to the old Common Heritage system or arguing for a revision in the current IP regime. He thus suggests a solution by favoring alternative IP regimes based on Open Source models and treating plant genetic resources as a sort of ‘commons.’ This is the strength of the book, as it goes beyond merely discussing the problem.
A substantial portion of the book is devoted to excerpts from treaties and case law. This could have been avoided, as most of this material is available in the public domain, and a simple reference to the sources would have been sufficient. Those pages could have been devoted to more analysis and discussion.
Aoki does provide an excellent analysis of the issues, but his focus is more on case law in the US and Canada, and the development of an IP regime for plants and seeds in the US. Thus the formation of the International Union for the Protection of New Varieties of Plants (UPOV) and developments elsewhere do not get the attention they deserve. Similarly, Aoki could have explored the literature on issues like deskilling and hybrids and the consequences of colonialism for plant genetic resources. Many developing countries have developed sui generis systems that attempt to strike a balance between the norms of TRIPS and the need to affirm Farmers’ Rights, in addition to providing for Plant Breeders’ Rights. The discussion on this and on the linkage between TRIPS, the Convention on Biological Diversity, and ITPGFRA is not adequate given the focus of the book. Similarly the analysis on commons and Open Source models also misses examples like the SNP consortium (a scientific group which assesses DNA sequence variations) or the International HapMap project (whose goal is to develop a haplotype map of the human genome) and fails to have an in depth discussion of debates on applying the Common Heritage Principle to the Human Genome. Nor does he consider the relevance of similar debates regarding the United Nations Convention on the Law of the Sea for understanding the problems and merits in applying the Common Heritage Principle. Another significant omission is the discussion on the relationship between the Principle of Permanent National Sovereignty over Natural Resources and obligations under the conventions and treaties. Although Aoki addresses the issue of Farmers’ Rights, the discussion does not take into account shifts in the discourse on Farmers’ Rights and related developments at the global and national level. In fact, in many places, Aoki could have explored the issues in depth and could have connected to the extensive literature to buttress his observations and arguments. In that sense, 120 and odd pages of text are not sufficient to discuss complex issues like plant genetic resources and intellectual property rights, to map the [*662] trends, and suggest some alternatives. One hopes that Aoki will explore these themes more in detail elsewhere in the future.
Notwithstanding these shortcomings, the book is an excellent source for understanding this important set of issues. As there are not many books that deal comprehensively with these questions, particularly regarding the impact of expansion of intellectual property rights for access to and use of plant genetic resources, this book is a welcome addition to the literature.
ASGROW SEED CO. v. WINTERBOER, 513 U.S. 179 (1995).
DIAMOND v. CHAKRABARTY, 447 U.S. 303 (1980).
J.E.M. AG SUPPLY, INC. v. PIONEER HI-BRED INTERNATIONAL, 534 U.S. 124 (2001).
MONSANTO CANADA INC. v. SCHMEISER  1 S.C.R. 902.
© Copyright 2008 by the author, Krishna Ravi Srinivas.