seeds

I don't normally post long essays, but I want to share this terrific piece by Maywa Montenegro de Wit on the struggle to create a socio-legal class of seeds can be shared.This mode of seed usage prevailed throughout most of history, of course, but as major ag-biotech corporations have aggressively pushed proprietary and genetically modified seed, seed-sharing and breeding among farmers has become marginalized and sometimes illegal. This has made farmers more dependent on expensive seeds and industrial farming techniques with harmful ecological impacts. It has also discouraged traditional agricultural practices that work with nature in which seed is shared and improved upon through commoning.

Montenegro is an assistant professor in the Environmental Studies Department at the University of California-Santa Cruz. Her work draws on political ecology, science and technology studies, and rural sociology to address issues of seed diversity and access to it.

This essay appeared in the recently published anthology, The Great Awakening: New Modes of Life amidst Capitalist Ruins, which I co-edited with Cardiff University professor Anna Grear. More about the book at Punctum Books, which published the collection of essays under a Creative Commons Attribution-ShareAlike license, with both print and PDF versions available.

1. Introduction

C.R. Lawn knows what primitive accumulation feels like.[1] As founder of the Fedco Seeds cooperative, he saw fungicide treatments become ubiquitous in the 1980s, and decided to stop sell- ing seeds laced with the hazardous chemicals. In the 1990s, as GMOs came online, he placed a moratorium on the technology out of concern for unknown risks. Nine years later, when Monsanto bought out Seminis — Fedco’s largest supplier of vegetable seeds — Fedco began boycotting the company because, as Lawn explains, “we could not in good conscience sell their varieties.” The chemicals, the GMOs, and the patents, Lawn says, are part of a broader phenomenon: “We have privatized our common wealth in the hands of the few at the expense of the common good.”

C.R. Lawn and his Fedco growers and packers are not alone in these deliberate rejections of seed enclosures. They are part of a movement gaining traction in many parts of the world, Global North and South, that refuses to adopt the dominant wisdom: that agrobiodiversity is best managed as private property; that breeding innovation will not occur in the absence of patents, variety protections, and other intellectual property (IP) rights; and that “improved seeds” result from individual ingenuity, rather than from collective knowledge, gleaned in and through experience with the land. From India to Peru, France to the Philippines, social movements are now advancing a bold discourse of seed freedom, seeking to reclaim what has been appropriated, privatized, and separated from the everyday and practical experience of farmers and farmer-breeders.

This chapter traces a novel expression of seed freedom that emerges from something old: the concept of a “commons.” Conventionally defined as social or natural resources not owned by anyone, but over which a community has shared and equal rights, the commons go back many centuries in agrarian history, their enclosures marking a crucial juncture in the transition from feudalism to capitalism.[2] I add to the burgeoning new commons literature by looking at commons as a biocultural form, specifically in relation to seeds. Scholarly emphasis to date has been primarily on rules and institutions of resource management, following the principles of a well-governed commons.[3] My argument is that seeds turn our attention to the politics and practices of access to means of reproduction. We consider how community rules, values, and practices of making new seed varieties — or plant breeding — are at once driven and shaped by a larger political economic order. We explore how seed diversity is gained and/or lost through histories of legal, scientific, and biological enclosure.

Following recent contributions to commons scholarship, I emphasize commons as a living, dynamic field of practice — not simply a resource divided amongst people, but a social transformation developed in and through the practices of commoning.[4] Moving from noun to verb, this formulation also puts greater emphasis on the people and communities intrinsic to the commons — not just on the seed, but on farmers, seed savers, and plant breeders.

I am happy to announce the publication of a new anthology that I co-edited with Professor Anna Grear, Professor of Law and Theory at Cardiff University in the UK.  The book is entitled The Great Awakening: New Modes of Life Amidst Capitalist Ruins, released by punctum books last week. 

The book asks the question: As we enter a time of climate catastrophe, worsening inequality, and collapsing market/state systems, can human societies transcend the old, dysfunctional paradigms and build the world anew?

The answer:  There are many signs of hope. In ten different essays, the book dissects the core problems of neoliberal capitalism and showcases some particularly encouraging vectors of transformation.

Anna and I want to thank the ten cutting-edge activists, scholars, and change-makers who joined us in producing this book. The authors probe the deep roots of our current predicament while reflecting on the social DNA required to build a post-capitalist future. A golden thread connecting the chapters is the role of commoning in building working utopias with the capacity to protect themselves and grow in a hostile capitalist environment. As Grear and I write in our Introduction:

Basic structures of contemporary life seem to be falling apart, no longer able to contain the chaotic energies unleashed by global capitalism, digital technologies, libertarian market culture, and modernity. One might call it a Great Unraveling. Yet, paradoxically, this period of history might also be called, accurately, the Great Awakening.

There is a growing awareness of the need for a fundamental shift in mindset and culture, as suggested by the youth climate protests of recent times; the rise of progressive politics; and a general sense that the system is broken and needs to be replaced. Amidst the messy unwinding of obsolete paradigms, many sturdy, fresh, and green sprouts of change — marginal, as yet, to the public consciousness — are emerging.

As more and more plant varieties have become privatized through patents, and as large corporations have bought up smaller seed breeders, a dangerous consolidation has occurred. The genetic diversity of agricultural crops has shrunk, making crops more vulnerable to disease and our food supply more insecure. Meanwhile, farmers and the public have become more dependent on a few large agrochemical companies.

In short, seed patents have become a tool for privatizing seed from the pool of open and commonly owned plant genetic resources: an insidious enclosure of seed commons.

This scenario is eerily similar to the consolidation of software for personal computers some twenty years ago.  Microsoft used its market dominance to incorporate all sorts of software programs into its Windows operating system, a strategy sometimes referred to as “embrace, extend and extinguish.”  As Microsoft exploited its de facto monopoly over common software systems, programs for word-processing, spreadsheets and other functions began to go out of business.

But just as open source software served as a powerful antidote to proprietary software, so a group of academics, activists and plant breeders in Germany has now pioneered a similar antidote to seed patents:  an open source license.

The Open Source Seed license, recently released by a group called OpenSourceSeeds, is trying to “make seeds a common good again.” The license amounts to a form of “copyleft” for new plant varieties, enabling anyone to use the licensed seeds for free. Like the General Public License for free software, the seed license has one serious requirement: any seeds that are used, modified or sold must be passed along to others without any legal restrictions.

Not so long ago, the language of “intellectual property” (IP) was the only serious way of talking about creative works and inventions.  Copyright and patents provided the default framework for explaining how someone’s bright idea grew into a marketable product, and how that in turn contributed to economic growth and human progress. It was a neat, tidy, reassuring story.  It had an irresistible simplicity – and the endorsement of the ultimate authority, government.

And then…. the pluriversal realities of life came storming the citadel gates!  Over the past fifteen or twenty years, the monoculture narrative of IP has been attacked by indigenous cultures, seed activists, healthcare experts, advocates for the poor, the academy, and especially users of digital technologies.  It has become increasingly clear that the standard IP story, whatever its merits on a smaller scale, in competitive industries, is mostly a self-serving, protectionist weapon in the hands of Hollywood, record labels, book publishers, Big Pharma and other multinational IP industries. 

We can thank the authors of a new anthology for helping to explain how the standard IP narrative is profoundly flawed, and how an array of challengers are showing how knowledge-creation so often emerges through social commons.

Free Knowledge:  Confronting the Commodification of Human Discovery, edited by Patricia W. Elliott and Daryl H. Hepting, provides a refreshing survey of the many realms in which corporations are enclosing shared knowledge -- and a sampling of commons that are democratizing the production and control of knowledge. (The book is published by University of Regina Press, and is licensed under a Creative Commons BY-NC-ND license.)

The past thirty years have seen a massive patent grab to control agricultural seeds and the crops that are grown, not just in the US but around the world.  In the name of progress and greater yields, seed companies introduced proprietary GMO and hybrid seeds, slowly squeezing out seeds that are more common and shareable. This is exactly what Microsoft did in software, using Windows to marginalize competing software systems, and this is what bottling companies have done to water, trying to supplant tap water with heavily marketed branded water.

Some folks at the University of Wisconsin have launched a new effort to fight this trend in the seed market through what they call the Open Source Seed Initiative. The project last week released 29 new varieties of broccoli, celery, kale, quinoa and other vegetables and grains, all of them licensed under the equivalent of software’s General Public License (GPL), which is what has allowed GNU/Linux to remain in the commons. 

The license, known as the Open Source Seed Pledge, lets anyone use the open source seeds for whatever purpose they want – provided that any subsequent seeds produced are also made available on the same basis.  The idea is to bypass the built-in bias of proprietary control in the patent system, and assure that the new seeds will be available for anyone to grow, breed and share in perpetuity, without the fear of someone imposing intellectual property restrictions on later uses of the seeds.

The University of Wisconsin-Madison news office quoted horticulture professor and plant breeder Irwin Goldman, one of the authors of the pledge, as saying:  “These vegetables are part of our common cultural heritage, and our goal is to make sure these seeds remain in the public domain for people to use in the future.”  Last week Goldman released two carrot varieties he developed, named Sovereign and Oranje, at a public ceremony outside of the university’s microbial sciences building.

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.)