In a sign of how far the forces of enclosure have come, the US Supreme Court ruled unanimously on Monday that re-using seeds that are patented, knowingly or not, amounts to an act of piracy. Of course, re-using seeds has been the tradition in agriculture for millennia, just as re-using songs and text is an essential element of culture.
No matter. The masters of "intellectual property" hold the whip hand, and they don't want us to re-use and share seeds as the natural course of things. If you think that a farmer ought to be able to use the seeds from one crop in the next season, you are entertaining illegal ideas. (Just be happy that Google doesn't have access to your mind yet -- although Google Glass may be a leading gambit!)
The Supreme Court case involved 75-year-old farmer Hugh Bowman, who bought bean seeds from a grain elevator and planted them in his fields. Since nearly all soybeans are now genetically engineered to be pesticide resistant, Bowman suspected, correctly, that the beans he bought might also be Roundup-resistant like the earlier generation of seeds. It turns out they were – and so Bowman grew them several seasons, using the next generation of seeds each time. But here’s the catch – the original generation of seeds are patented, and he didn’t pay Monsanto for the right to use the second-generation of seeds for planting.
This amounts to an act of intellectual property theft, according to the Court, because farmers should not presume to have the right to re-plant seeds from prior harvests. Companies like Monsanto now hold property rights in seeds, and they don’t like the competition from the commons. The commons is the radical idea that the abundance of nature (self-reproducing plants) ought to be shareable.
It is a sign of the bankruptcy of liberalism that it now joins the Court's pro-business majority in sanctifying the propertization of life itself. Writing for the Court, Justice Elena Kagan wrote that Monsanto’s patents extend into future generations of seeds. In effect, the very generativity of the seeds can be owned. She said that without this reach-through protection of property rights, farmers could get something for nothing – and Monsanto would not get its due rewards for its innovation.
Funny, I didn’t realize that Monsanto had invented the regenerative properties of seeds. Did Justice Kagan stop to think that without the gifts of nature or the innovations of millions of farmers acting as commoners, Monsanto would never have had a new seed to “invent”? Isn’t something due to the commons in return? Apparently not.
Bowman’s lawyers had pointed to the self-replicating nature of soybeans, but Kagan rejected that argument, saying that Bowman was the culprit, not the seed. "We think the blame-the-bean defense tough to credit," said Kagan, noting that Bowman "was not a passive observer of his soybeans multiplication." The Court officially did not rule on the question of how to treat a patented form of life that automatically reproduces itself with no human intervention -- but that seems like a difference without a difference.
Kagan and the other justices proved what relics they truly are. They actually think that innovation only emerges from the incentives of private property rights and market exchange. They do not comprehend that commons are vital for maintaining ecosystems and farmland, and for giving farmers a responsible, interactive role with respect to land. It is no surprise that American agriculture has degenerated into a kind of “factory,” treating soil and seed as inert things, and ignoring the nasty market “externalities” that such a mentality invariably produces.
The Court didn’t address these issues, of course. Not legally germane. Nor did the Court address the fact that Monsanto will dominate the seed market even more, now that its patents extend from one generation of seeds to the next and the next. This ruling will entrench a monoculture of crops and Monsanto’s oligopoly powers.
The folly of “human law” is that nature’s law always has the last say. And as crops become less robust after years and years of an artificially restricted genetic base, and as the soil and ecosystems lose their vitality after years and years of pesticide and herbicide spraying – all to support the concentrated market power of Monsanto – nature will rebel. Too bad the rest of us are being held hostage to this destructive economic and agricultural regime.
The enclosure of seeds took another nasty turn this week as ag-biotech companies sought to make it illegal to grow, reproduce or trade any vegetable seed or tree that has not been tested and approved by a new “EU Plant Variety Agency.” In effect, unauthorized gardening or farming would be prohibited. The noose of proprietary control over natural processes grows tighter!
The ostensible reason for the new EU law is to fix the “complexity and fragmentation” of existing legislation covering seeds. Different EU countries have different seed laws, causing “uncertainties and discrepancies” in market practices and regulatory enforcement. The new law is supposedly needed to “harmonize” the laws, and in so doing, “reduce cost and administrative burdens and support innovation.”
But the upshot of the new law is to squeeze out commons-based alternatives to proprietary seeds. Again, the commons is seen as a form of unwanted competition to the market. The new law, if enacted, could make it illegal for companies to grow and sell heirloom and rare varieties of vegetables and other plants. It would shrink the zone of legality now enjoyed by seed banks, organic growers, home gardeners and small-scale market farmers. (More about the proposed law can be found at the Real Seed Collection website.)
These types of growers would be put at a disadvantage because seeds would have to be tested and approved before they could be distributed and sold. Of course, this would favor large multinational corporations that have the resources and lawyers to game the system, shape the market and exclude competitors (including commoners).
The proposed EU law, “Plant Reproductive Material Law,” threw a few bones to amateur growers, who are allowed to save and swap “unapproved” seeds. And organizations can do so, too, so long as they have fewer than ten employees.
But the real point is that the future of seeds would be controlled by an EU bureaucracy and the major companies that dominate its policymaking. If your seeds aren’t on the “approved list,” well, you are a pirate….a scofflaw….a brigand.
That’s the whole point of enclosure, of course: to declare the commons illegal and shut it down as a source of subsistence and survival. And don’t go about thinking that generous concessions today amount to much – because they are likely to be attacked tomorrow.
I have heard of a proposal a few years ago to establish a General Public License for Plant Germplasm, in order to do for seeds what the GPL did for software. If you know of any efforts afoot on this front, please let us know. Update: Here's how US taxpayers are supporting US State Department efforts to promote Monsanto's biotech seeds around the world.
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