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Intellectual
Property
Enhances Corporate Monopoly and Bioserfdom
HOPE SHAND / Fatal Harvest: The Tragedy of Industrial Agriculture / Island Press Jul02
"Intellectual property is the oil of the 21st century. Look at the richest
men a hundred years ago; they all made their money extracting natural resources
or moving them around. All today's richest men have made their money out
of intellectual property."
How true?
Intellectual property therefore is being extracted on anything and everything
that is worth patenting. The worldwide scramble for patents, often bordering
absurdity, has been further strengthened with the unequivocal backing of
international finance institutions and the academic world. The WTO has formalised
the process of IPR exploitation through the TRIPS Agreement.
In this essay below, Hope Shand looks at how monopoly control over plants,
animals, and other life forms jeopardizes world food security, undermines
conservation and use of biological diversity, and threatens to increase
the economic insecurity of farming communities.
Devinder Sharma /
AgBioIndia
|
Twenty years ago, the concept of intellectual property was little
known or discussed outside of corporate boardrooms, government patent offices,
or an exclusive circle of trade negotiators.
Today, intellectual property has become a powerful tool to enhance
corporate monopoly and consolidate market power. Exclusive monopoly patents
are giving a steadily shrinking number of corporate "gene giants" unprecedented
control over the biological basis for commercial agriculture.
Intellectual property is being used to eliminate the right of
farmers to save and exchange seed and to breed their own crops. Instead
of promoting innovation in agriculture, patents are stifling research and
hindering
Monopoly control over plants, animals, and other life forms
jeopardizes world food security, undermines conservation and use of biological
diversity, and threatens to increase the economic insecurity of farming
communities.
WHAT IS INTELLECTUAL PRPOERTY?
The term intellectual property (IP) refers to a group of laws
-- such as patents, plant breeders' rights, copyright, trademarks, and
trade secrets -- that are intended to protect inventors and artists from
losing control over their intellectual creations: their ideas. Intellectual
property rights are granted by a state authority for a specified time period.
The inventor has the right to exclude others from making, using, or selling
his/her creation and to determine under what circumstances others may use
the protected idea or innovation. The types of intellectual property most
relevant to plants and other life forms are patents and plant breeders'
rights. Proponents of intellectual property argue that these laws promote
innovation by rewarding inventors of new technologies and that IP laws
are essential because a temporary monopoly enables companies to recoup
their research investment.
THE EVOLUTION OF INTELLECTUAL PROPERTY IN U.S. AGRICULTURE
Historically, farmers have been the primary innovators in agriculture.
They have played, and continue to play, a major role in contributing to
the introduction and development of crops and livestock. One hundred years
ago, virtually all of the crops grown in the United States were farmer-bred
varieties. In his book Unnatural Selection, Cary Fowler describes a free
seed distribution program established by the U.S. government to encourage
farm-based plant breeding. In 1897, when this program was at its peak, the
U.S. government freely distributed 22 million packets of seeds to U.S. farmers.
The goal was to utilize the ingenuity and skills of the nation's farmers
in geographically diverse regions to select, breed, and multiply thousands
of novel plant varieties. It was the innovation of farmers that helped to
build the agricultural base of the United States.
In the 20th century the rights of farmers to freely exchange
and control their genetic materials were severely eroded as plant and animal
genetic resources became subject to monopoly control under evolving intellectual
property laws. As outlined below, the history of intellectual property
laws in the United States demonstrates the seed industry's quest to sever
the age-old relationship between the farmer and the seed.
The Plant Patent Act of 1930, the first plant intellectual property
law in the United States, was designed to reward the developers of asexually
propagated plants (mostly flowers, fruits, and ornamentals). Food crops
were intentionally excluded from coverage under the 1930 law on moral grounds,
because food was considered too important to human well-being to permit
monopolization. But times have changed. The past 35 years have witnessed
the privatisation of plant breeding and seed sales. The seed industry, increasingly
dominated by agrochemical and drug companies, began lobbying vigorously
for stronger intellectual property protection for plants as a way to stimulate
innovation and to create incentives for corporate breeders. In reality,
plant patenting was exactly what the industry needed to privatize, through
legal means, what it could not control by physical means.
In 1970, after years of seed industry lobbying, the U.S. Congress
passed the Plant Variety Protection Act (PVPA), a type of intellectual
property designed to reward developers of new sexually reproduced plant
varieties such as soybeans, wheat, cotton, and many vegetables. This breeder's
rights law contained two important traditional features. It allowed plant
breeders to freely use each other's protected varieties for further breeding
experiments. It also permitted farmers to reuse seed from their harvests
and to sell small quantities to their farm neighbors without having to pay
royalties or ask permission. This was known as the Farmer's Right, or farmer's
exemption.
The fundamental right of the farmer to save his or her seed
for replanting was considered so important that the seed industry made assurances
to Congress that no further attempts would be made to expand proprietary
rights over seeds or endanger the farmer's exemption. But those promises
were quickly forgotten. In 1994 the U.S. Congress delivered a crushing blow
to farmers' rights when it amended the PVPA and eliminated the farmers' right
to resell proprietary seed from their harvest to farm neighbors. The pattern
is a familiar one. Every time plant intellectual property laws have been
amended, it expands the scope of protection and the rights of corporate breeders
at the expense of farmers, diversity, and society. It is clearly in the interest
of those with money and power to amend any intellectual property system
to strengthen their legal monopoly.
CONTROL OF BIOTECHNOLOGY
Intellectual property has been a major factor in the growth
and consolidation of the U.S. biotechnology industry. In the 1980s U.S. patent
laws were redefined to allow for exclusive monopoly control of all biological
products and processes. Over the course of a single decade, the U.S. government
took giant steps to accommodate the corporate desire to patent life:
- In 1980 the U.S. Supreme Court ruled in the landmark case of Diamond v. Chakrabarty that genetically engineered microorganisms are patentable.
- In 1985, the U.S. Patent and Trademark Office ruled that plants (previously protected by Plant Variety Protection laws and the Plant Patent Act) could qualify under the stronger utility patent laws.
- In 1987, the U.S. Patent and Trademark Office ruled that animals are also patentable.
As a result of these decisions, virtually all living organisms
in the United States, including human genetic material, became patentable
subject matter, just like any other industrial invention. As one industry
analyst explains:
"Since 1980 it can no longer be said that something is not patentable just because it is living. ... Biotechnology has advanced so rapidly in recent years that there is now virtually no life form which does not have the potential as the subject of patent application."
The patenting of life forms represents a radical departure
from the scope of traditional intellectual property law. In addition to
the basic criteria for patenting (novelty, usefulness, and nonobviousness)
there is a well-established doctrine in patent law that "products of nature"
are not patentable. But with the advent of genetic engineering, it did not
take long to redefine what is considered human "invention" and legally
patentable.
THE GENE GIANTS
Seeds are software. And we have the seeds.
-Alfonzo Romo Garza, CEO of Grupo Pulsar, a Mexico-based conglomerate that controls 25 percent of the global vegetable seeds market
Recent years have seen a breathtaking consolidation
of power over plant genetic resources worldwide. Seed is the first link in
the food chain. Whoever controls the seed controls the food supply. For companies
that have combined interests in seeds and agrochemicals, the patented seed
is the ideal delivery system for a package of proprietary technologies:
genes and related inputs. As a result, many of the world's largest agrochemical
and pharmaceutical corporations have spent billions of dollars acquiring
seed and biotech companies. For example, Monsanto has spent more than $8
billion acquiring seed and biotech companies; DuPont acquired Pioneer Hi-Bred,
the world's largest seed company, for $9.4 billion; Dow bought Cargill Seeds
North America last year.
Today, the top 10 seed companies control almost one-third
of the $24.7 billion commercial seed market. But corporate market share
is much higher in specific seed sectors and for certain crops. For example:
- Forty percent of U.S. vegetable seeds come from a single source. The top five vegetable seed companies control 75 percent of the global vegetable seed market.
- DuPont and Monsanto together control 73 percent of the U.S. seed corn market.
- Just four companies (Monsanto, DuPont, Syngenta, Dow) control at least 47 percent of the commercial soybean seed market. An estimated 10 percent of the market is in public varieties. An estimated 25 percent of North American soybean seed is farmer-saved, not newly purchased.
- At the end of 1998, a single company, Mississippi-based Delta & Pine Land, controlled more than 70 percent of the U.S. cottonseed market. Delta & Pine Land is perhaps best known for its notorious patent on genetic seed sterilization (aka terminator).
With the advent of genetic engineering, the Gene Giants
are staking far-reaching claims of ownership over a vast array of living
organisms and biological processes. As a result, fewer and fewer companies
are making critical decisions about the agricultural research agenda and
the future of agriculture worldwide. The power of exclusive monopoly patents
is giving these companies the legal right to determine who gets access to
proprietary science and at what price.
BIOSERFDOM
With the evolution of intellectual property laws, farmers
are losing the right to use and develop plant diversity. Today, under U.S.
patent law, it is illegal for farmers to save patented seed and reuse it.
Why does this matter? Farmers have been selecting seeds and adapting their
plants for local use for more than 200 generations. Up to 1.4 billion
people in the developing world depend on farm-saved seeds as their primary
seed source. Crop genetic diversity enables farmers to adapt crops suited
to their own ecological needs and cultural traditions. Communities that
lose traditional varieties, adapted over centuries to their needs, risk
losing control of their farming systems and becoming dependent on outside
sources of seeds and the inputs needed to grow and protect them. Without
an agricultural system adapted to a community and its environment, self-reliance
in agriculture is impossible.
When genetic engineers at Monsanto or DuPont develop
a new variety of soybean, corn, or cotton, they are building on the accumulated
success of generations of farmers who have selected and improved seeds
for thousands of years. The companies insist that they "invented" their
genetically engineered plants and that they should be rewarded with exclusive
monopoly patents. In reality, corporate plant breeders are fine-tuning
and modifying plants that were developed by anonymous farmers and the more
recent contributions of institutional breeders.
Monsanto, the world's second largest seed company (now
itself owned by Pharmacia), requires farmers -- its customers -- to sign
a gene-licensing agreement before they buy the company's patented, genetically
engineered seeds. The licensing agreement prohibits the farmer from reusing
the seed for any reproductive purpose, even on his/her own land. If farmers
are caught infringing the patent, Monsanto is "vigorously prosecuting"
them in court. In some areas, Monsanto is literally policing rural communities
with Pinkerton investigators -- hired detectives - to root out seed-saving
farmers. The company has filed more than 475 lawsuits against farmers for
patent infringement and violation of technology user agreements.
In other words, farmers are being turned into criminals,
and rural communities are becoming corporate police states. The fundamental
issue is control. With the advent of genetic engineering, the farmer is
becoming a renter of proprietary seeds and livestock -- and he or she is
losing the right to make farm-level decisions. Companies like Monsanto are
attempting to dictate how farmers will farm and under what conditions. This
is popularly known as "bioserfdom." The result is that food production is
being taken out of the hands of independent farmers.
The economist Michael Boehlje calls it the "Wal-Marting"
of American agriculture. Farmers will raise animals or grow crops according
to a formula dictated by the end processors. Farmers will sign contracts
that stipulate precise levels of inputs, dictating what seed, fertilizer,
chemicals, row spacing, irrigation, harvesting technique, and other details
will be used.
RIGHTS FOR WHOM?
As the Gene Giants gain control over every phase of
production, processing, and marketing -- from "farm to fork" -- the role
of the farmer is reduced to that of a contract worker. The American farmer
becomes a "renter of germplasm," rather than an independent owner-operator.
There is no doubt that patents are a powerful tool to protect corporate monopoly,
but they do not necessarily promote innovation. The monopolistic nature of
the patent process can restrict innovation, limit competition, and thwart
new discoveries. Over time, intellectual property regimes have grown into
mechanisms that allow corporations (not individual inventors) to protect
markets rather than ideas. In today's knowledge-based economy, intellectual
property assets have surpassed physical assets such as land, machinery, or
labor as the basis of corporate value. At the end of 1995, for example, the
Hoechst group held 86,000 patents and patent applications. According to Dr.
Richard Helmut Rupp, head of Hoechst R & D, "The most important publications
for our researchers are not chemistry journals, but patent office journals
around the world." The cover of Novartis's 1997 annual report boasts that
the company holds more than 40,000 patents. IBM is now getting 10 new patents
every working day.
Increasingly, access to new agricultural technologies
is legally restricted by a complex pedigree of patented gene traits. For
example, one of Pioneer Hi-Bred's genetically engineered insect-resistant
corn hybrids requires access to 38 different patents controlled by 16 separate
patent holders. The control of patented genes and traits has created legal
barriers that make it difficult or impossible for small companies or public
sector researchers to compete or gain access to new agricultural technologies.
The uncertainty and confusion over the application of
patent law to living materials has resulted in immense legal battles among
corporations competing for ownership of strategic genes, traits, and biological
processes. Not surprisingly, the number of intellectual property lawyers
in the United States is growing faster than the amount of research. In
order for patents to have economic value, corporations must defend their
patent claims and enforce licensing requirements. The transaction costs
are enormous. The legal costs alone of obtaining a patent approach $10,000,
and it typically costs $1.5 million per party to litigate a patent. Billions
of dollars are being spent on legal fees, diverting resources away from
agricultural research and societal needs.
Today, the battleground over intellectual property has
moved to the international arena. The World Trade Organization's (WTO)
rules on intellectual property obligate all member countries to implement
minimum standards of IP for plant varieties and microorganisms. In the
developing world, where the majority of farmers depend on farm-saved seed
as their primary seed source, the notion of legal restrictions on seed saving
is perceived by many as both alien and life-threatening.
CONCLUSION
IP laws require urgent societal review. Patents and
plant breeders' rights are stifling the free flow of information and genetic
resources that are so vital to human survival and sustainable agriculture
worldwide.
Civil society organizations and some governments are
campaigning actively against the patenting of life. Farmers and indigenous
peoples' organizations are vocally denouncing patents which they believe
threaten food security and human dignity and are predatory on their resources
and knowledge. In August 2000, the United Nations Sub-Commission for the
Protection of Human Rights warned that the WTO's intellectual property rules
could infringe on the rights of poor people and their access to both seeds
and pharmaceuticals. The 1999 United Nations' "Human Development Report"
concludes that "the relentless march of intellectual property rights needs
to be stopped and questioned." The future of agriculture depends on the
promotion and protection of the farmer's inalienable right to save and exchange
seed. If we are to reclaim agriculture, we must resist monopoly control of
life. If we are to make agriculture truly sustainable, it must be built on
biological and cultural diversity, not uniformity, and on democratic institutions
that are people-centered, not profit-centered.
=====================================================* Hope J. Shand is the research director of the ETC Group, a group dedicated to the conservation and sustainable advancement of cultural and ecological diversity and human rights.
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