You now know how and why biodiversity is at stake. In our Breeder’s Rights and the Preservation trilogy, we exposed the mechanisms potentially threatening this biodiversity and introduced alternative concepts, such as open source. In Open Source Breeding – Part 2, we gave you some options to start open sourcing your genetics. We have done our best to gather information and initiate a movement. Now, it’s your turn to make change happen…
In Spring of 2019, Phylos Bioscience sparked a controversy in the community. One of the most important but unnoticed aspect of this scandal is that, bioengineering companies in the space such as Phylos, use genotype-related data to breed (i.e. the plant identity). Specifically, massive datasets of genomics are used to drive marker-assisted breeding programs.
However, when looking at the issued or pending plant patents, no reference is made to the genotypes/identity. Instead, the “unique” traits brought forward to justify the patent are on the chemotypic level (the qualities of the plant)! This means that a genetically distinct patented plants might produce chemovars similar to yours.
To simplify, patent-driven breeders use plants identities to conduct their breeding programs, but have so far used plant qualities to support their plant patent applications.
Could the owner of a patented cultivar sue you for infringing their patents based on the chemotypic manifestation of your distinct genetics? That’s a really important question time will have to answer… as this may have an impact on the ability of cultivators to grow public domain varietals.
Over the past year, we’ve gathered as much information as possible on intellectual property issues when it comes to plants. We also reached out to all the relevant organizations we could find to advance the cause. It’s now time for the people on the field (no pun intended) to take over the open-source breeding movement and make it theirs! Oh, and let’s clarify something: an open-source breeding license is not an honor system…
The legal value of the open source license
An open source license is like… any other license agreement: it is a legally binding agreement. It can be enforced in court if necessary. Parties to an open source license agreement are required to comply with all terms and clauses. In case of contract breach, either party can demand reparation in court.
While patents apply to third parties, contracts apply only to parties within the agreement. In that sense, a open source license is less strong than a patent. However, it still is a legally binding document that signatories have to comply with if they don’t want to have to provide reparation to other parties.
An open source license is enforceable in the jurisdiction defined within the license agreement. This is why we need to localize the Open Source Breeding License. Making enforcement practical for breeders and non-profit beneficiaries, indeed implies localizing the license in their jurisdictions.
The impact on Public Domain strains
Some of you might think “but why would someone dictate how I should distribute these genetics down the road?”… and this is a really valid question!
In an ideal world, all genetics should remain in the public domain. Seeds are commons, actually they’ve been in the public domain since humans converted from hunters gatherers, into sedentary communities. When they settled, humans gave birth to agriculture. Breeding was one crucial activity, through which future harvests were ensured. This lasted for thousands of years. Only during the past few decades did the concept of proprietary biology (specifically proprietary crops) emerge. This is precisely because of this proprietary dynamic that leaving varietals in the public domain is no longer enough. It leaves all existing biodiversity available for gradual privatization, eventually reducing biodiversity.
While the concept of public domain is philosophically the ideal we should tend toward, open-source licensing emerges as the second best option when patent-driven breeding becomes a dominant model. Open-source licensing is more protective by applying restrictions on the terms of propagation and distribution, based on copyleft principles.
However, it is important to understand that open source licensing doesn’t have any impact on already existing and future public domain strains. All the OG Kush, Girl Scout Cookie and Purple Haze of this world are and will remain in the public domain. They cannot be distributed under any open source license. They can’t be licensed (or patented at all). No open-source license will change that.
Newly bred varietals will be eligible to open source licensing, and their progenies (from crossing such open source varietals), will have to remain in the open source pool. In such a context, it will be important for anyone procuring open source genetics to know that, they will be on the hook for how they distribute these genetics or their progenies, since they will be required to remain under open source licensing. Any licensee failing to comply with the terms of the license will be legally accountable and may face reparation claims by the licensor or the beneficiary (e.g. acting on licensor’s behalf).
You will still be able to procure public domain genetics if open-source is too intimidating for you. Open Source genetics will simply be one additional option, aside from public domain strains (our collective legacy).
How will it work?
Breeders releasing their strains under open-source license will explicitly inform their customers upon transaction (whether on Strainly, or any other channel). Their listing will point to the link of the full license, for customers to acknowledge. On the seed packs, a label with a summary of the terms and a QR code or link pointing to the full license terms will be displayed. Anyone procuring such seeds, will be deemed to be aware of the open-source license terms and implications.
Customers will have to comply with the license terms pertaining to the procured genetics, on a perpetual basis. Customers who would want to breed from open-source genetics, will have to release such newly bred genetics under the same license terms. A breeder considering other licensing terms (or even patenting), would therefore have to use public domain strains to work from.
Gradually, a community of open-source breeders, working from either public domain genetics, or, the ever growing open-source genetic pool, will emerge and grow organically. Eventually, proprietary (i.e. patented) genetics, public domain and open-source genetics will coexist (based on very different motivations).
Basically, open-source genetics are a genetic sanctuary in case access to public-domain varietals becomes compromised for whatever reason.
Make the change happen!
Over the past year, we’ve contacted various non-profit organizations in North America to ask them to issue the open-source breeding license in a practical jurisdiction for US-based and Canadian breeders. The goal is to locally define the terms of a collective effort to preserve genetics for their members. This sparked a lot of interest.
If you’d like to manifest your interest and make this issue a priority for growers alliances and farmers associations, sign the petition for an open source license on change.org and share it on social media!
Let’s make it happen together!