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Context of '(July 2003): Seed Industry Representative: Farmers Don’t Have Right to Save Seeds'

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A number of agricultural biotech firms secure patents on genetic use restriction technologies (GURTs). GURT, more commonly known as “terminator” technology, involves genetically engineering seeds to grow into sterile plants. The motivation behind this technology is to provide a means for seed companies to protect their intellectual property rights. By making their seeds genetically sterile, seed companies can prevent farmers from saving and replanting proprietary seeds, thus forcing farmers to purchase new seeds every year. Critics say that biotech companies intend to use the technology to force their seeds on Third World farmers, most of whom engage in subsistence-level farming and plant only common seed. The seed industry sees these farmers as a huge untapped market. Seed savers number an estimated 1.4 billion farmers worldwide—100 million in Latin America, 300 million in Africa, and 1 billion in Asia—and are responsible for growing between 15 and 20 percent of the world’s food supply. [USPTO Patent Database, 3/3/1998; Rural Advancement Foundation International, 3/30/1998; Ecologist, 9/1998] In addition to GURT, companies are seeking to develop a similar technology, called T-GURT or genetic trait control. This technology would make plant growth or the expression of certain genes contingent on whether or not the seed or plant is exposed to certain chemicals. For example, AstraZeneca is developing a technology to produce crops that would fail to grow properly if they are not regularly exposed to the company’s chemicals. The Canadian-based Rural Advancement Foundation International (RAFI) suggests that T-GURT could serve as a platform upon which certain proprietary traits could be placed. In order to turn positive traits (e.g., herbicide-resistance) on, or negative traits (e.g., sterility) off, the farmer would need to either apply proprietary chemicals to the crops as they grow or pay to have the seeds soaked in a catalyst solution prior to planting. Critics note that this technology, like terminator technology, would require that farmers pay every year to have functioning seeds. Farmers would, in effect, be leasing the seed. Companies developing GURT and T-GURT seeds include Novartis, AstraZeneca, Monsanto, Pioneer Hi-Bred, Rhone Poulenc, and DuPont. [Rural Advancement Foundation International, 1/27/1999; Rural Advancement Foundation International, 1/30/1999; Rural Advancement Foundation International, 1/30/1999]
Critics Say: -
bullet Terminator seeds would either turn poor farmers into “bioserfs,” by requiring them to pay for their seed every year, or drive these farmers out of farming all together. Proponents counter that farmers would not be forced to buy the seed. [Rural Advancement Foundation International, 3/30/1998]
bullet If biotech seed companies were to penetrate the markets of non-industrialized countries, their seeds would replace thousands of locally grown and adapted varieties resulting in a significant loss of the world’s agricultural biodiversity. [Rural Advancement Foundation International, 3/30/1998]
bullet The use of terminator technology would allow the seed industry to expand into new sectors of the seed market, like those for self-pollinating crops such as wheat, rice, cotton, soybeans, oats and sorghum, according to the Canadian-based Rural Advancement Foundation International (RAFI). “Historically there has been little commercial interest in non-hybridized seeds such as wheat and rice because there was no way for seed companies to control reproduction. With the patent announcement, the world’s two most critical food crops—rice and wheat—staple crops for three-quarters of the world’s poor, potentially enter the realm of private monopoly.” The organization notes that according to FAO, wheat, the world’s most widely cultivated crop, was grown on 219 million hectares in 1995. Rice, which was cultivated on 149 million hectares that year, produced the most crop by weight at 542 million tons. [Rural Advancement Foundation International, 3/30/1998]
bullet Critics warn that terminator technology would threaten the farmers’ expertise in seed selection and traditional plant breeding. [India, 12/2/1998]
bullet Some scientists have warned that introducing terminator genes into the germplasm could result in the development of a virus that could disable all non-terminator seeds. “This is perfectly possible,” according to Dr. Owain Williams, of the Gaia Foundation. “Already bacteria have been developed for fixing nitrogen into corn roots, so why not a killer bacteria?” [Independent, 3/22/1998]
bullet Terminator technology is also likened to piracy. Anuradha Mittal and Peter Rosset of Food First/The Institute for Food and Development Policy, write: “Patenting genes the same way you patent software robs Third World farmers. While they and their ancestors developed almost all important food crops, transnational corporations can now blithely patent those crops and make mega profits without in any way compensating traditional farm communities for the original research. Genetic resources taken freely from southern countries will be returned to them later as pricey patented commodities. ‘Terminator’ technology is a way of locking this ‘bio-piracy’ into the very genes themselves.” [San Francisco Chronicle, 3/1/1999]
Proponents Say: -
bullet Supporters of the technology say that farmers will not be required to buy the seed and therefore will not purchase it unless they perceive some benefit from using it. Critics say that this scenario is not realistic. In a market dominated by an ever diminishing number of seed companies, selection will be limited. RAFI notes: “Current trends in seed industry consolidation, coupled with rapid declines in public sector breeding, mean that farmers are increasingly vulnerable and have far fewer options in the marketplace.” [Rural Advancement Foundation International, 3/30/1998]
bullet Some proponents argue that terminator seeds would be no different than F1 hybrids, which produce lower quality seeds than their parents. [London Times, 11/4/1998]
bullet Advocates say that terminator technology will allow the industry to safely release genetically modified plants into the environment, without the risk of contaminating related crops or wild plants. [New Scientist, 2/26/2005] Critics say that alleged benefit is outweighed by the danger terminator seeds pose to food safety, farmers’ rights, and agricultural biodiversity. [Rural Advancement Foundation International, 3/30/1998]

Timeline Tags: Seeds, Food Safety

A bill that would require registration and state-level regulation for seed cleaners is introduced into the Ohio state legislature. Seed cleaners are businesses that “clean” seeds for farmers by removing the chaff (which includes grit, dirt, cut plant material). The proposal, introduced by Rep. Joe Haines, is being pushed by Monsanto. James E. Betts, a Columbus attorney who represents Monsanto, tells the Columbus Dispatch, “One of the things the state has a legitimate interest in is regulating the marketplace. It’s important that every seed a farmer gets is a pure seed and is, essentially, as advertised. The seed-cleaning business is not licensed or registered. It’s a segment of seed market that has not been identified.” Seed cleaners would be required to keep records on every farmer who has seeds cleaned or conditioned. For example, the cleaner would need to record the following: the accepted name and brand or variety of the seed; any patents or plant variety protection certificates associated with the seed; the farmer’s contact information; and the amount of seed being cleaned or conditioned. Farmers would also have to sign an indemnification statement, which would also be held by the seed cleaner. The seed cleaner would be obligated under law to store these records for five years and make them available upon request to the State’s Director of Agriculture. Roger Peters, an Ohio farmer and seed cleaner, asks, “Why should any farmer be forced to keep records on law-abiding farmers who clean their own seed? And why should public tax dollars be used to protect the patents of private seed companies like Monsanto?” Sean McGovern, executive administrator of the Ohio Ecological Food and Farmers Association, has similar feelings about the bill. “I can’t imagine any use for this bill accept to enforce Monsanto’s patents,” he says. [General Assembly of the State of Ohio, 1/28/1999; Rural Advancement Foundation International, 3/7/1999; Columbus Dispatch, 4/4/1999] The bill is not passed. [General Assembly of the State of Ohio, 1/28/1999]

Entity Tags: Monsanto, Ohio

Timeline Tags: Seeds

Bill Leask, executive director of the Canadian Seed Trade Association, one of four groups that initiated the Seed Sector Review, tells Inter Press Service in an interview, “I don’t think farmers ought to have a legal right to save seeds.” He and others in the seed industry have said they believe seed saving is a “privilege.” [The Food and Agriculture Organization of the United Nations, 4/16/2006]

Entity Tags: Bill Leask

Timeline Tags: Seeds

Canada’s Supreme Court hears the case of Percy Schmeiser v. Monsanto. Schmeiser is appealing a lower court’s decision that he infringed on Monsanto’s patent when he planted canola seed in 1998 that he “knew, or ought to have known” was from glyphosate-resistant plants. Intervening on Schmeiser’s behalf are a consortium of six non-government organizations (Council of Canadians; Action Group on Erosion, Technology, and Concentration; Sierra Club; National Farmers Union; Research Foundation for Science, Technology, and Ecology; and the International Center for Technology Assessment) and the Ontario attorney general. The Ontario government is backing Schmeiser because it fears that a decision upholding the lower court’s ruling would encourage more gene patents and increase healthcare costs. Monsanto’s lawyers also presenting arguments before the court. In addition to defending the lower courts’ ruling that Schmeiser infringed on the company’s patent, the lawyers are cross-appealing the decision that the farmer’s profits in 1998 (awarded to Monsanto) only amounted to $19,832 CAD. Monsanto has calculated Schmeiser’s profit to be $105,000 CAD. Monsanto’s interveners include the Canola Council of Canada, BIOTECanada, and the Canadian Seed Trade Association. [BC Politics, 2/2/2004]
Schmeiser's Arguments -
bullet Schmeiser’s lawyer, Terry Zakreski, challenges the validity of Monsanto’s patent arguing that the patent contradicts the Harvard College v. Canada Supreme Court decision that higher-life forms cannot be patented. He explains that in claiming exclusive rights to glyphosate-resistant plant genes and cells, Monsanto is in effect claiming patentholder rights to any plants and seeds containing those genes and cells, which as the Supreme Court has already decided, is not legal. He argues that Monsanto should have instead chosen to protect its intellectual property rights under the Plant Breeder’s Rights Act, which was designed to protect the rights of seed developers. [Associated Press, 1/20/2004; BC Politics, 2/2/2004]
bullet Zakreski also argues that extending Monsanto’s patentholder rights to second-generation roundup-resistant seeds makes it illegal for farmer’s to save and share seeds—the 12 thousand year old practice responsible for creating domesticated crops. [Vancouver Sun, 1/20/2004]
bullet Even if the patent is ruled valid, according to Zakreski, Monsanto implicitly waived its patentholder rights when it failed to control the spread of its invention after releasing it unconfined into the environment. [BC Politics, 2/2/2004]
bullet Zakreski also argues that even if the court upholds the validity of Monsanto’s patent, Schmeiser did not violate the patent, because he never exploited its utility—the resistance it provides against glyphosate. The only way to use the patent, he says, is to spray Monsanto Roundup Ready Canola with Roundup, which Schmeiser did not do. [BC Politics, 2/2/2004]
bullet Zakreski notes an inherent contradiction in the claim that Monsanto is entitled to all profits resulting from the sale of seed containing the patented gene. Zakreski offers the hypothetical example of a farmer whose canola is infested with two different genes, each patented by a different company. Would each of the patentholders be entitled to the full profit? Would the farmer be required to pay each of them 100 percent, in effect being forced to pay out twice the profit from his crop? [BC Politics, 2/2/2004]
Monsanto's argument -
bullet Monsanto’s lawyers reject Schmeiser’s position that a farmer’s right to save seed overrides the company’s patent rights. In order for them to recover research and development costs they must charge farmers annually for use of the seed containing their patented gene, they argue. [Vancouver Sun, 1/20/2004; Associated Press, 1/20/2004]
bullet The company’s lawyers also insist that the Harvard College v. Canada decision does not apply to this case. Its patent is not on the entire plant, but rather just one of the plant’s ingredients. He compares the company’s gene to a special patented steel that is used for an automobile where the inventor’s rights extend only to the steel, not the entire car. The judges interrupt Monsanto’s presentation on several occasions challenging the lawyer’s steel analogy and asking Monsanto’s lawyers where Monsanto’s patent rights would end since plants have the ability to reproduce themselves and hence the inventions contained within them.
bullet Lawyers for Monsanto’s interveners said that invalidating the company’s patent would harm Canada’s economy and undermine its patent system. “Patents create a climate that favors new research,” argues A. David Morrow, a lawyer for the Canadian Seed Trade Association. [Associated Press, 1/20/2004]
bullet Biotech Canada’s lawyer, Anthony Creber, similarly states, “I’m nervous that if you don’t give (patent protection) for seeds and cells, you will have a hollow Patent Act with severe economic consequences.” [Star Phoenix (Saskatoon), 1/21/2004]
bullet Mona Brown, a lawyer with the Canadian Canola Growers Association, tells the judges that the “patent makes us more profitable and better farmers.” [Associated Press, 1/20/2004]

Entity Tags: International Center for Technology Assessment, Research Foundation for Science, Technology and Ecology, National Farmers Union, Canola Council of Canada, BIOTECanada, Canadian Seed Trade Association, Action Group on Erosion, Technology, and Concentration, Sierra Club, Monsanto, Percy Schmeiser, Council of Canadians

Timeline Tags: Seeds

The Seed Sector Review, an industry-led initiative to restructure Canada’s seed and grain quality assurance systems (see (July 2003)), releases its phase one final report. [Inter Press Service, 10/5/2004; Natural Life, 1/2005] The report, titled Report of the Seed Sector Advisory Committee, includes several recommendations:
bullet The report expresses the view that the farmer’s “privilege” of saving and replanting seeds discourages private sector investment and makes it difficult for companies to “recoup” their investments. The report suggests developing a new system of relations between the farmer and the seed companies that would be more “equitable.” Such a method would “involve examining the balance between farmer’s privilege and breeders’ rights.” One possible solution would be to collect royalties on seed saved by farmers. “Suggestions were made that royalties could be collected through elevators or seed processors or through CWB contract programs,” the report says. [Canadian Seed Alliance, 5/5/2004, pp. 33 pdf file]
bullet The report notes that many participants of the Seed Sector Review would prefer that farmers be required to use certified seed. It cites several reasons why this would be desirable, including “improved intellectual property protection (and royalty collection), which would in turn support (fund) more research”; “a healthier seed grower and trade industry”; “more private sector involvement in Western Canada cereal breeding”; “elimination of the controversial brown bag market for sales of common seed”; “improved agricultural practices”; “improved confidence for quality assurance in the value chain”; and “increased profitability for the higher generation seed production and variety developers.” The report suggests several strategies that could be employed to compel farmers to buy certified seeds. Among those listed are “link crop insurance premiums with use of certified seed”; “increase the perceived value of certified seed”; collect royalties; “require specific standards on common seed” that would make it more costly for farmers to sell their own seed; and limit “the number of generations produced from certified seed,” which the reports notes would also result in common seed becoming “too expensive, making certified seed more economical.” [Canadian Seed Alliance, 5/5/2004, pp. 42 pdf file]
bullet The report notes that participants in the review would like to see the current wheat quality system, based on kernel visual distinguishability (KVD), replaced with a new system. They complain that KVD is a “stumbling block to innovation.” Several suggestions for an alternative system are made in the report. The report acknowledges that moving to a new system would be costly and suggests that this should be paid in part with public funds. “There should be some level of public investment in its development and implementation to support the competitive position of Canadian exports.” According to Canada’s National Farmers Union (NFU), the alternative systems suggested in the document “would increase farmers’ costs for administration, testing, segregation, identity preservation, dispute settlement, and transport costs.” [Canadian Seed Alliance, 5/5/2004, pp. 41 pdf file]
bullet The report considers the advantages that seed producers would have if Canada were to make its Plant Breeders Rights (PBR) Act compliant with the International Union for the Protection of New Varieties of Plants Convention (UPOV) of 1991 (see March 19, 1991). The 1991 UPOV is much more restrictive for farmers than the 1978 UPOV, upon which Canada’s PBR Act is currently based. Adopting the 1991 UPOV for the PBR’s framework would, among other things, lengthen plant breeders’ protection and royalty periods from 15 years to 20 years; take away farmers’ automatic right—protected in UPOV ‘78—to save, re-use, and sell seed (which is referred to as the “Farmers’ Exemption” in the UPOV Convention) [National Farmers Union, 5/13/2004, pp. 3-4 pdf file] ; create “a cascade right to extend PBR to harvested material and end products in crops where breeders did not have the opportunity to exercise his [sic] rights on propagating material” (The seed companies would need this change in order to collect royalties at elevators and seed cleaning facilities); and pave the way for seed companies to patent seed already protected under the Plant Breeders Rights Act. The report notes that participants in the review were highly supportive of the proposal to adopt the 1991 UPOV (see March 19, 1991). “[T]his change should be made as soon as possible.” [Canadian Seed Alliance, 5/5/2004, pp. 32-34 pdf file]
Reaction - The Seed Sector Review is not well received in the farming community. The Sakatoon-based National Farmers Union launches a “seed saver” campaign to rally farmers against the seed industry’s proposed changes. The farmers see the review’s recommendations as an effort to further privatize the commons, and to increase corporate profits at the expense of growers. Most of their fury is focused on changes that would compel farmers to purchase certified seed by making it more difficult to save, trade, and replant their own seeds. “There’s lots of seed trading among farmers here. We rarely buy certified seed for cereals. It’s rarely better seed and just not necessary,” says Paul Beingessner, a third-generation grain and livestock farmer from Saskatchewan. Beingessner calculates that if the recommendations were implemented, the average Canadian farm’s expenses would increase by $1,400 CAD. “It’s a money grab, pure and simple,” Beingessner says. Pat Mooney of the ETC Group, a Canadian civil society organization, says the Seed Sector Review contradicts the International Treaty on Plant Genetic Resources (see November 3, 2001), which came into force in June (see June 29, 2004). That treaty reaffirmed farmers’ rights to save, trade, and replant seed. Canada ratified the treaty on October 6, 2002. [Inter Press Service, 10/5/2004]

Entity Tags: Seed Sector Review

Timeline Tags: Seeds

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