Seed law, intellectual property and public policies

Seed law, intellectual property and public policies

By Aldo P. Casella *

For this they use fallacious arguments, such as that we do not have a legal system for the protection of innovations, or that it is not updated, and that prevents the entry of new technologies, damaging our competitiveness and efficiency, when the exponential growth of agricultural production is notorious throughout The incorporation of the most advanced technologies, including, of course, those originating from modern biotechnology is not alien to it. In reality, what drives the interest in including a new seed law on the legislative agenda is the opportunity to adopt a system that increases the control by companies over plant and biotechnological innovations, with the immediate result of transferring in their favor a higher proportion of income, and with the mediate objective of facilitating control of product chains.

The instrument to achieve this is the so-called Intellectual Property system, and the norms that address it in the seed law constitute the main, if not the only, object of the reform proposals. The changes that they seek and the actions and pressures to achieve it, the new contracts that reveal the control model that they try to achieve from intellectual property are set out below, necessarily preceded by some brief notions on intellectual property with specific references to the case of the vegetables.

In essence, Intellectual Property Rights constitute a special regime by which the State, having fulfilled the conditions established by the respective law, recognizes innovators and inventors temporary exclusivity to exploit their invention or innovation. The justification is to compensate the efforts of the innovator or inventor, encouraging him at the same time to disseminate his invention or innovation, since at the end of the exclusivity period, it passes into the public domain, with a view to technological advancement. Although temporary, it constitutes a monopoly of the right to exploit the invention, from which the important role that it can play as an instrument of control and income capture can be deduced, especially in a context of concentration of companies and technological powers.

However, the possibility of generating economic monopolies is hindered by the delimitation of the scope of the "exclusivity" of exploitation by the law, and the antitrust counterweights that it may also provide, such as compulsory licenses or prohibition of anti-competitive practices, what is logically settled in the field of political decisions. The "patent" right responds fully to these characteristics and is the paradigm of "industrial property" within Intellectual Property Rights. The patent regime, as it has governed the world with nuances for a little over a century, was designed primarily for the protection of mechanical inventions. It was not intended for plant products, which were consequently excluded from this protection system.

In addition to the objections to the patentability of living matter, the particularity of these products has always constituted a serious impediment for plant innovations to constitute patentable inventions. It must be borne in mind, first of all, that in agriculture the product, the grain or part of the plant, that time is a means of production, since it is also seed or reproductive material. This constitutes no less differentiating fact, since a plant product eventually protected by any intellectual property right is self-reproducing or naturally reproducible, unlike other innovations, particularly mechanical inventions, which must be imitated and manufactured. That the product is also a means of production for farmers is demonstrated by the age-old practice of reserving part of their harvest to use as seed for the new sowing, without which it would have been impossible to continue the productive cycle. This practice is linked to another peculiarity, which is the incremental character that all plant innovation presents, clearly differentiated from mechanical inventions (which at the same time reveals the fundamental role that over the centuries played in the conservation and improvement of species). same farmers, who today want to prevent the use of seeds or charge for their use). Indeed, farmers not only reserved but also selected their seeds and improved their crops, including through exchange with other farmers or other farming communities.

As Vandana Shiva (in Stolen Harvest) says, for more than ten thousand years, farmers have worked with nature to develop thousands of varieties of crops that adapt to diverse cultures and climates. This is how they conserved and improved natural plants and varieties. , and gave rise to new varieties that continue to be the basis of those currently obtained by modern plant breeders. Most of the cases as members of private companies or public entities such as INTA.

To get an idea, in the National Seed Institute (INASE) there are more than 400 soybean varieties registered according to data from 2007. However, the most relevant characteristic of the Plant Breeder's Right is that it circumscribes the exclusivity of the owner of the variety plant to the marketing of its seeds or reproductive material. Consequently, in this system, unlike what would result with a “patent” right, the farmer who sows a protected variety is free to use part of the crop of his product as seed for its new sowing and also has full freedom. to dispose of the products as raw material, transforming or delivering them to third parties, or use them for food. The farmer, on the other hand, cannot sell his product as seed for sowing to a third party, as it would violate the right of exclusivity in the commercialization of the holder of the variety; However, when the latter sells seeds of the protected variety, they cannot impose payments or conditions for their use as seed for their own sowing or for the disposal of the products. Furthermore, in order to continue breeding, the protected variety can be used to obtain a new variety without the need for authorization from the owner.

Taking into account these particularities, as well as the public interest in the continuity of the improvements and in avoiding monopolistic situations in view of the notorious link between agricultural production and the satisfaction of fundamental needs, when professional plant breeders and companies specializing in seeds promoted the intellectual protection of their new varieties, a system of their own, different and subsequent to the patent system, called the Plant Breeder's Right (DOV) (N. of E .: Breeder would be the person who has created , discovered or tuning a variety).

The DOV constitutes an intellectual right that is recognized to the breeders on the new plant varieties that they obtain or discover. Although it is noted in the previous paragraphs, it must be taken into account that the "plant variety" constitutes a classification within the same species based on its distinctive characteristics and behaviors, and that all plant species (soy, wheat, etc.) include many Varieties, whether of natural origin, product of adaptation to their environment and ecological conditions, or of the practice of farmers, or obtained by professional plant breeders, currently in the changes that multinational companies want.

A proprietary system for vegetables

These three axes: use of own seed, free availability of products and access for plant breeding, constitute the core of the DOV system and act as a decisive obstacle for the monopoly control of seeds and agricultural product chains. This is the intellectual property system in plant innovations adopted in our country by the seed law No. 20,247 and Law 24,376 that approved the 1978 UNPOV agreement. Both here and in other countries, and notably in those of the Mercosur that share The same regime, the seed and biotechnology companies, and the governments of their countries of origin, for a couple of decades have advocated radically changing it and assimilating it to a patent system. They intend for the holders of intellectual property the power to prevent the use of seeds by farmers, thereby compelling them to acquire them annually, or to condition it on the payment of compensation or royalties for each sowing, which would constitute a strong permanent transfer of income in your favor. This restriction would increase the control of this fundamental input, and together with the proposals that may also affect the free disposal of products, it opens the doors to the dominance of the productive chains and the consolidation of models of integration of production and trade of grains.

In this period, the adoption of transgenic varieties became general, that is, those to which genetic engineering techniques incorporate genes or genetic events that confer certain qualities that the species does not naturally possess. The most widespread case is the so-called RR Gene that confers resistance to the herbicide glyphosate to soybean varieties that are planted in the entire enormous area dedicated to this crop in Argentina, since it facilitates chemical control of weeds by fumigations. Leaving aside the unresolved controversy on the delicate issue of patenting biological and genetic material, these “genes” incorporated into successive generations of varieties are often considered biotechnological inventions protected by patents, which companies also invoke to restrict the use of seeds, require royalty payments from farmers, or impose other conditions including those related to product disposal.

With these objectives, the seed companies formed by the Asociación de Semilleros Argentinos (ASA) and led by Monsanto, have been developing a constant and tireless action to alter the current rules of intellectual property and seed use according to their interests, exercising all kinds pressure and a strong lobby on legislators, officials and government and administrative agencies. Thus, they have managed to install as an imperative the need for a new seed law, and in recent years from the public sphere several projects have been proposed, which invariably, to a greater or lesser extent and with some nuances, pleased the aspirations of seed companies. The last one, with similar content, was promoted in 2012 by the Ministry of Agriculture with active participation of the National Seed Institute (INASE), in ostensible agreement with the Argentine Seed Growers Association (ASA), which fervently defended it. However, it was never referred to the National Congress, thus denying that the project was sponsored by the Presidency of the Nation, as suggested by the Secretariat of Agriculture and ASA, while some political opposition denounced it as an alleged agreement with Monsanto, product of the visit that the President made to the United States.

The Monsanto company also used as a means of pressure the promotion of lawsuits in Europe against importers of Argentine soybean by-products. He had previously published requests in the main media claiming compensation for the use of the RR gene in transgenic soybean varieties, despite the fact that he never managed to patent it in our country, proposing that they be paid for export, and warning that otherwise he would initiate lawsuits against Argentine shipments arriving at ports in European countries where the patent was held. In 2006, he finally made the threat concrete, managed to stop shipments of soybean meal in which Gen RR was present, and started the lawsuits requiring compensation. However, the National Government, exercised a brilliant defense, obtaining as a result that the European Court of Justice declared that Monsanto's European patents did not reach imports of soy by-products due to the presence of the RR gene, such as those from transgenic varieties planted in Argentina. It was and is a very important triumph for Argentina in this matter, and despite its importance, since it constitutes one of the main pronouncements in the international arena on biotechnological inventions and patents, it had very little diffusion in the large national media and its specialized supplements. It is not surprising that these media defend the interests of multinational biotechnology companies and seed companies, from which they also receive strong auspices; On the other hand, it is surprising that some officials are unaware of it or show they have forgotten it. The companies also develop contractual strategies, favored by their market power, seeking to impose conditions not yet supported by the new legislation they propose. The best known modality is that of the clause that they have called "extended royalty" in the sale of seeds, in which, contrary to the text of the law, which they consider to be repealed by private agreement, they intend to force payment for the use of seeds in the new planting. Along the same contractual lines, in 2008 Monsanto promoted the Framework Agreement "Sustainable Development of Cotton Farming", which was unusually signed by some representatives of provincial governments despite its obvious contradiction with current law. By this framework agreement, to which the producers had to adhere by signing a "letter of adhesion", the "technology provider companies", a euphemism used to designate Monsanto or the companies that by agreement with that company have Gen RR, They will "authorize" the use of transgenic varieties that incorporate it by license to farmers, who must pay "economic recognition" to them and another to the breeders of the varieties, also recognizing the companies the power to designate ginners, cooperatives , companies for the conditioning and treatment of seeds and / or seedlings and multipliers that will provide the services of ginning, multiplication, conditioning, treatment and distribution of the cotton seed product. In other words, based on their intellectual rights over “technology”, they will dominate the entire cotton production and commercial chain.

Contracts against the law

The terms of this proposed cotton agreement only pre-announced the model that the companies plan to install for all crops, for which they require the reform of the law. It was, in effect, a preview of the model that Monsanto now disseminates for soybean varieties that incorporate glyphosate and insect resistance genes, which it has called “intact technology”. Monsanto announced in 2013 in Argentina, and contemporaneously in Brazil and Paraguay, that this new technology “developed especially for South America” also incorporated a new business model for new biotechnological inventions applied to soybean varieties. The “new business model” is structured through contracts signed by the producers, in which, by invoking intellectual property rights, detailed clauses related to the acquisition and use of seeds, payment of rights and commercialization of crops are established, in which Only “authorized seedbeds”, “authorized distributors” by Monsanto and “soybean operators” participate, that is, collecting, processing or exporting companies with which Monsanto enters into agreements.

Seed Law, Intellectual Property and Public Policies It is revealed that, ultimately, the reforms promoted by the companies have the purpose of achieving an intellectual property regime in biotechnological innovations and plant varieties that facilitates the project of control and domain of the product chains. Seed and agricultural biotechnology companies, whose main exponent is Monsanto, are few in the world, highly concentrated, and they develop global policies, including the adaptation to their interests of the Intellectual Property laws in all countries, which at the same time instead they constitute state policies for their governments of origin. Such is the case of the United States, which introduces its intellectual property parameters in all free trade agreements (FTA) and exerts political pressure on local governments, as evidenced by the “Wikileaks” cables that revealed the efforts of the Embassy in our country for the collection of royalties and a new seed law, and the unfortunate condescending predisposition of some former officials (Santiago O'Donnell, ArgenLeaks, voice of Monsanto). It also shows the importance of the current discussion on the reform of the seed law, which does not deserve to be underestimated or reduced to a purely legal controversy, since neither this nor any legislation on intellectual property is politically neutral, but on the contrary, it obeys, or must obey, to designs of public policies.

(*) Teacher, researcher, specialist in agrarian law. Professor at the National University of the Northeast, UNL, UNR, UTN-Regional Reconquista. Lawyer. Doctor of Law.

Biodiversity in Latin America and the Caribbean

Video: Seed Commons and Ownership: A Listening Session on Intellectual Property Rights IPR (January 2022).