agriculture

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. 

Two cases involving the patenting of living organisms are now pending before the U.S. Supreme Court, and the outcomes do not look good.  It appears that commoners who wish to use seeds, genes and other living things as a shared gift of nature will be cast out into the darkness once again.  The Court seems poised to privilege the private control of lifeforms, providing yet another legal subsidy for the market order. 

The seed case was brought by a 75-year-old farmer from Indiana who had bought commodity soybeans from a grain elevator.  As described by the New York Times, an estimated 90 percent of all U.S. soybean crops are now grown from genetically modified Monsanto seeds resistant to the Roundup herbicide.  Not surprisingly, many of the seeds that farmer Vernon Hugh Bowman bought contained second-generation versions of Monsanto seeds.   

The problem is, Bowman inadvertently grew a new batch of GMO seeds without paying Monsanto or getting its authorization.  Monsanto sued him, claiming that Bowman’s crops infringed Monsanto’s patent.  Accepting the view that Monsanto’s patent let it control even second-generation seeds, a U.S. federal district court forced Bowman to pay an $84,000 fine.  

In his legal filings, Bowman argues that once a patented object is sold, the seller loses control over how it can be used.  This is a legal doctrine known as “patent exhaustion.”  It’s similar in concept to the “first sale doctrine” in copyright law, which prohibits publishers and other copyright holders from charging licenses for library books or DVDs.  If the scope of copyright or patent rights is too extensive, sellers can control too many “downstream” uses of the product, usually with harmful effects on competition, innovation and price.  (Come to think of it, though, that is precisely what is also happening with e-books and e-journals:  publishers are licensing content rather than selling it, giving them much greater control over downstream markets.)

Raj Patel has been tracking the pathologies of the global food system for many years.  An activist and academic who teaches at the UC Berkeley Center for African Studies, Patel has just published a second, updated edition of his 2008 book, Stuffed and Starved:  The Hidden Battle for the World Food System. 

The problem with the food system is not that we don't produce enough calories to eradicate hunger, Patel notes.  It's that the food system has its own priorities of institutional consolidation and profit, which means that more than 1 billion people in the world are malnourished and 2 billion are overweight – which is worse than when the first edition of Patel's book came out. 

Patel has also been a serious student of the commons.  His 2010 book, The Value of Nothing:  How to Reshape the Market Society and Redefine Democracy, is a lucid overview of the fallaciious premises of market economics and its dismal performance.  He also goes on at length about the ability of the commons paradigm to help ameliorate food sovereignty, environmental sustainability and social justice.

Recommended reading is a recent interview with Patel at Stir, the vigorous, commons-oriented British political journal founded by Jonathan Gordon-Farleigh.  (Incidentally, Stir is in the midst of a Kickstarter campaign to pay for a print run of a book collecting some of its best articles.)

Here are a few excerpts from Stir’s interview with Patel:   

On genetically modified crops & climate change:  “We have an increasing amount of evidence to suggest that agro-ecological farming systems will be able to feed the world in the future.  The GM advocates are saying, “What about drought-resistance and climate-change-ready crops?” That seems to be nonsense!  To have a crop that is climate-change-ready is ludicrous because change is precisely change — it is so many different things.  It could be new pests, rains coming at the wrong time; it could be too much rain, or too much heat.  It is impossible to have a single crop that is ready for those possible changes.  We’ve already seen the limits of that because Monsanto has a product called ‘Drought Guard’ — a genetically-modified crop that performs no better than any conventional crop in resisting anything but a mild drought.  The problem with this is that climate change isn’t about mild anything but extreme weather events.”

A thousand-year-old tradition of farming commons in southern England may be jeopardized as housing prices drive out farmers and render the commoning rights moot.  Yes, there are still self-identified commoners in England.  BBC radio recently interviewed a handful of the remaining commoners who rely upon the New Forest in Hampshire to feed their cattle, sheep and chickens.  The 23-minute radio report focused on how the farming commons is a way of life that has preserved the distinctive ecological landscape – and how this future is now in doubt.

New Forest is said to be the largest remaining tracts of unenclosed pasture land, healthland and forest in the southeast portion of England.  The land became a royal forest in 1079 when King William I shut down 20 hamlets and isolated farmsteads, provoking an uproar.  He then consolidated the land into a single tract, the New Forest, which he used for royal hunts. 

The traditions of commoning in the New Forest are quite involved and detailed, as Wikipedia notes:

Commons rights are attached to particular plots of land (or in the case of turbary, to particular heaths), and different land has different rights – and some of this land is some distance from the Forest itself.  Rights to graze ponies and cattle are not for a fixed number of animals, as is often the case on other commons. Instead a marking fee is paid for each animal each year by the owner. The marked animal's tail is trimmed by the local agister (Verderers’ official), with each of the four or five Forest agisters using a different trimming pattern. Ponies are branded with the owner's brand mark; cattle may be branded, or nowadays may have the brand mark on an ear tag.

Rarely have I read an essay that knits together some very different commons with such wisdom and depth. Joline Blais' 2006 essay, “Indigenous Domain: Pilgrims, Permaculture and Perl,” is a wonderfully insightful analysis that reveals the underlying unity and logic of commons principles. Her piece appeared in Intelligent Agent (vol. 6, no. 2), published by the Inter-Society for the Electronic Arts.

Blais' essay is valuable because it speaks to the rift that is said to separate commons based on natural resources and those of cyberspace. The segregation of those two classes of commons has always bothered me. There are of course significant differences between managing depletable natural resources and managing cheap and limitless stores of digital information. Yet it has always struck me that the two great tribes of commoners have much more in common than not, and should be in closer consultation with each other.

Blais not only confirms this, she suggests a way forward. She does this by applying her extensive knowledge of actual indigenous peoples to contemporary permaculture and digital culture. The links that she draws among them are not rhetorical or metaphorical, but explanatory. Because she understands the common paradigm is about integrating resources, social relationships and culture into a single system, she is able to identify recurrent patterns of commoning in some very different resource regimes.

For example, Blais draws clear connections between Native Americans managing their lands and the permaculture movement.  The latter, emulating indigenous peoples, is trying to re-create sustainable human/nature relationships in a modern context. She also shows how the cultural practices of indigenous peoples resemble those of digital communities. One example is the community of programmers that created and maintains Perl, a programming language, in its low-tech, high-trust systems of self-governance.

The women of Erakulapally – a small village two hours west of Hyderabad, India – spread a blanket onto the dusty ground and carefully made thirty piles of different seeds:  their treasure, the symbols of their emancipation.  A rich aroma wafts through the air. 

For these women – all of them dalit, members of the poorest and lowest social caste in India – seeds are not just seeds.  They are the vehicle for a remarkable transformation in their lives, local farming and their ecosystem. 

Over the past twenty-five years, thousands of women in small villages in the Andhra Pradesh region of India have escaped from working as low-paid, bonded laborers, to become self-reliant farmers able to grow enough to feed their households.  Food was once unaffordable and hunger common.  Now the women can feed their families, often without having to buy anything in the market.  Despite their status as dalits, they are no longer filled with fear and anxiety, but rather show great confidence and pride in themselves.

A group of us attending the recent conference of the International Association for the Study of the Commons drove out to meet the women last week.  We were welcomed with a tasty millet-based drink and a short chorus of joyous singing.  Our meeting was hosted by the Deccan Development Society (DDS), a grassroots organization that is helping the poorest rural women of India recover their rich traditions of sharing seeds and community-managed farming.  The foyer of the building in which we met featured a “seed shrine” -- dozens of small clay pots filled to the brim with colorful seeds.

Every two years, the universe of scholars who study the commons converge on some spot on the planet to present their research findings, argue about theoretical models and party-hardy.  Just kidding about that last one, but it is hard to imagine a more interesting party than 600 people from 90 countries around the world. 

I have encountered an Indian economist who has closely studied the role of women in improving the sustainability of forest commons in Nepal (Bina Agarwal), an Australian academic who has written about modern-day gleaning such as “dumpster diving” (James Arvanitakis), a British activist who helped pass a modern-day law to protect British common lands (Kate Ashbrook of the Open Spaces Society), an Indian-American who is studying how language shapes our ability to understand the commons (Vijaya Nagarajan), a Belgian historian of the European commons (Tine De Moor), among many others.

It is quite a pleasant shock to suddenly be around so many people who not only know what the commons is; they can get into some rather arcane and sophisticated arguments about it.  The conference is skewed towards academics, however, which means that the policy and activist sensibility is somewhat muted.  That’s too bad, but I hope it might change in the future. 

There is also an emphatic focus on natural resource commons, with a very limited exploration of so-called “new commons,” by which the IASC academics mean commons that have arisen in unconventional realms such as the Internet.  I find this too bad, because there is so much to be learned from digital commons, which are among the most robust commons out there.  The phrase “new commons” is also vaguely off-putting because it privileges the natural resource commons so absolutely.  Now I have an inkling of how Native Americans must have felt to have been “discovered.”