Germplasm and the Commons: From Global to the Field- Draft Version October 2016
Krishna Ravi Srinivas PhD
Introduction :
Plant Genetic Resourcesi (PGR) are inseparable part of agricultural biodiversity. Crop improvement is
not possible without access to PGR and transformation of PGR into usable germplasm through human
intervention is a continuous process. Crop improvement is a cumulative process and the PGR found in
nature are modified by humans into germplasm which can be used for further improvement and/ or, for
cultivation. Germplasm ‘refers to the sum total of all hereditary material in a plant, as coded in its DNA.
For a crop, it reflects the compounding nature of sequential improvements carried out by breeders over
a long period of time, all of which, of course, is encapsulated in the seed Moschini (2010: 5). Another
definition of germplasm is “Germplasm: the genetic diversity (gene pool) of a certain species when used
as the source of genes in a breeding program.(Bjonstrand 2016).
According to Roa-Rodriguez and van Dooren PGR can be understood as having two componentstangible and intangible with material seeds being the tangible component and the inscribed genetic
code as the intangible component (Roa-Rodriguez and van Dooren 2008). But PGR can be
conceptualized purely as a material entity , i.e. the seed that is also a product and source for cultivation
of plants. In such cases it can be a common pool resource, part of genetic resource commons and also
be appropriated using intellectual property rights and other means including the rights of the sovereign
nations over such resources. But thanks to developments in science and technology, the informational
component in the seed can be separated from the material entity and this provides opportunities for
claiming exclusive rights through intellectual property but the informational component can also be part
of knowledge/information commons. These are equally true for germplasm.
In this article I discuss the developments in the governance of germplasm, in the last four decades and
suggest a commons approach as an alternative mode/model for governing germplasm at different
levels.
The objective of using a common approach is to develop a narrative that challenges the claims that
intellectual property protection through patents and Plant Breeders’ Rights are the most means to
incentivize innovation in plant variety development and to propose an alternative mechanism that
blends public interest in plant breeding with the rights of farmers, indigenous communities through
development of commons and providing access to such commons by regulating it through different
mechanisms.
Shifts in Regulation of PGRs : From Common Heritage of (Hu)Mankind to Common Concern and
Appropriation Through Intellectual Property
”The greatest service which can be rendered to any country is to add a useful plant to its culture.”
Thomas Jefferson
Since time immemorial there has been exchange and spread of plant varieties, novel/exotic plants, crops
and other material used for breeding, including multiplication and all this was done without much
thinking on ownership rights or exclusive claims on germplasm and plant breeding material. .ii But this
exchange and transfer was not necessarily on equal terms or was based solely on altruism and the spirit
of sharing. Rather these exchanges and transfer of materials were often part of colonial expansion and
the quest for resources. The colonial expansion and emergence of empires resulted in founding of
botanical gardens and the gardens were also used for classifying the botanical materials and their
transfer. But the rediscovery of Mendel’s law in the early twentieth century transformed plant breeding
and breeders could develop better varieties from materials available to them. For breeders accessing
germplasm collections was made possible without many restrictions and this relatively open access
system worked well as it gave them the freedom to use genetic material for varietal development
without any obligation to share the results or benefits. (Byerlee and Dubin 2010).
But systematic approach to germplasm conservation and exchange had to wait till 1948, when FAO
decided to set up a global clearing house for cataloging and sharing of resources for plant breeding
programs. Through Plant Introduction Stations at different parts of the world samples were delivered by
FAO. Thus by the early 1960s thanks to developments in science and the improved capacity to use the
genetic diversity among PGR for breeding, the demand for access and materials increased. Realizing the
need to avoid erosion and loss of genetic diversity, FAO convened the First Technical Conference on
plant genetic resources in 1967 and conservation on the global scale emerged as a key concern (Fowler
and Mooney 1990).
The advent of Green Revolution resulted in the establishment of centers for agricultural research
devoted to different crops or to meet the needs of different regions and in 1971, the Consultative Group
on International Agricultural Research was formed with representatives from private foundations,
governments and World Bank as members and the International Agricultural Research Centers (IARC)
such as International Rice Research Institute (IRRI) were brought under CGIAR. CGIAR functioned as an
independent group, outside the UN system and the IARC were not part of the FAO. Over the years, IARC
had developed an impressive collection of germplasm, rich in diversity and through them ex-situ
conservation got a boost. The centers under CGIAR exchanged and shared germplasm freely and
collaborated with different universities and research centers in varietal development, testing and
dissemination. The varieties released under the Green Revolution were available for multiplication,
sharing and further improvement without any limitations or conditions for use. The sharing of varieties
and germplasm resulted in wider and quicker dissemination of varieties developed by IARC and by other
entities in public sector. The private sector also relied on the germplasm collection of public sector
institutions for its breeding programs. All this was done without any part claiming or asserting exclusive
rights over PGR including germplasm. Thus within two decades of launch of Green Revolution , a global
pool of plant genetic resources conserved in different centers and repositories emerged. This pool
included ex-situ collections with centers under CGIAR, agricultural research institutions, national level
germplasm conservation centers and collections under agencies devoted to agricultural research and
education.
The exchange and use of materials available under this pool was based on the Common Heritage of
Mankind (CHM) Approach. This approach was grounded in the notion that plant genetic resources
constitute a commons that should be accessible to all with very few or no restrictions on collection,
exchange, use and classification. Plant genetic resources were considered a global resource not subject
to restrictions under national sovereignty but in reality national sovereignty was not a major barrier for
collecting, sharing and using them . This enabled CGIAR centers and the FAO to freely collect, exchange,
store and share matierials with many stakeholders including plant breeders, researchers and private
sector breeders. Under FAO, an International Board on Plant Genetic Resources was set up. Calls for
developing a global legal convention on PGR were made the 1981 biennial conference of FAO and there
was a divide between developed nations(North) and developing nations(South) divide on this with
North opposing such a convention. The idea of treating PGR as CHM was similar to treating a resource as
it was in public domain, free for access and free to access and use. According to Bush
“Common heritage refers to the treatment of genetic resources as belonging to the public domain and
not owned or otherwise monopolized by a single group or interest. Common heritage is similar to
common property regimes that anthropologists and other social scientists have described for nonmarket
economies. Neither common heritage nor common property implies lack of rules (res nullius) …. Rather
they imply community management (res communes) that involves regulated access to common
resources and reciprocity among them.” (Brush (2004: 221-22)
The Commission on Plant Genetic Resources for Food and Agriculture (CPGR) was established by FAO in
1983. The CPGR adopted the International Undertaking on Plant Genetic Resources (IUPGR) which was a
non-binding Undertaking which dealt with rules and standards for conservation and exchange of plant
genetic resources. It was based on the premise that PGR were the ‘Common Heritage of Mankind’. But
the coverage and definition of PGR under the Undertaking became a contentious issue. According to the
Undertaking, PGR included plant varieties and elite breeding lines, and, traditional landraces, wild plants
and commercial plant varieties protected by Plant Breeders’ Rights were considered as similar and were
to be exchanged, shared and used under the CHM principle. It treated ‘products of nature’ such as
traditional landraces and varieties protected under Plant Breeders’ Rights as the same under the
category of PGR. But USA and some European governments questioned such a treatment and argued
that this was contradictory to UPOV Convention and national intellectual property (IP) regimes which
recognized exclusive rights over plant varieties including the right to exclude and right to commercialize
inventions including plant varieties. Land races and ‘raw’ germplasm was considered as products of
nature and hence could not be considered for IP protection while plant varieties developed by breeding
could be considered for such a protection if they met the criteria for an invention in case of patents or
the criteria for Plant Breeders’ Rights (PBRs). The South, which is a key source for PGR perceived this as
unjust and argued that it had no gains from CHM approach which justified unfettered access to
germplasm and from grant of IP protection for plants and plant varieties in the North. Most of the gene
banks were in located developed nations and the transfer of germplasm from South contributed
significantly to agriculture in the North. Moreover there was a need for access to germplasm for
developing new and improved varieties and PGR was economically valuable. Hence CHM became a
contentious issue with North and South finding it problematic. The status of PGR in gene banks,
particularly those in CGIAR centers became a matter of dispute. A compromise was reached and it was
agreed that CHM was not applicable for varieties that were protected under UPOV convention or under
national IP regimes and open access for germplasm from land races did not mean free access without
any payment or obligation and plant breeders and other collectors could be made to pay for the
germplasm collected by them and/or access could be made conditional. With these developments CHM
approach was considerably weakened and was almost given up as a guiding principle.
In 1989, Farmers’ Rights (FR) were recognized under IUPGR as an acknowledgement of contributions of
farmers’ and farming communities in in-situ conservation and in contributing to PGR through farmers’
varieties and in domesticating crops and varieties over millennia. FR was more a normative principle
than a legally enforceable rights and it was left to the discretion of the countries to act upon this
principle and make it an enforceable right and an entitlement. With the Convention of Biological
Diversity asserting the Sovereign Rights over biological diversity including PGR by the countries the CHM
approach was almost dead. In addition to this CBD recognized Access and Benefit Sharing (ABS) as a key
principle for regulating access and utilization of genetic resources. This was further enshrined in Bonn
Guidelines and the Nagoya Protocol through specific norms and rules for ABS, including the principle of
Prior Informed Consent. The CBD recognized the rights of indigenous communities under Article 8(j). The
CBD laid stress on conservation and sustainable use of biodiversity. Under CBD, CHM was made
redundant and biodiversity was recognized as Common Concern (Jaeckel 2013). The TRIPS Agreement
1994 through Article 27.3(b) mandated IP protection for plant varieties and this ushered in a global
regime for IP protection for plant varieties, in addition to the UPOV Convention which was revised in
1991.
With the CHM approach becoming out of fashion, clarity was needed over the status of germplasm held
by CGIAR Centers. The agreement between CGIAR and FAO mandated that the designated germplasm
was to be held in trust and CGIAR was to ensure that its dealings would not undermine the interests of
stakeholders. As per the article 3(a) and (b) of the agreement: (a) The Center shall hold the designated
germplasm in trust for the benefit of the international community, in particular the developing countries
in accordance with the International Undertaking on Plant Genetic Resources and the terms and
conditions set out in this Agreement; (b) The Center shall not claim legal ownership over the designated
germplasm, nor shall it seek any intellectual property over that germplasm or related information. This
ensured that the collections were held in trust without any absolute ownership claims over germplasm
by CGIAR or by FAO.
For making the IUPGR a binding one and to harmonize that with CBD, in 1994 FAO initiated
intergovernmental negotiations. After many years of negotiations, this resulted in the signing of the
International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) in 2001 and
ITPGRFA came into effect in 2004. A key objective of ITPGRFA was to create a Multi-Lateral System
(MLS) for facilitating access to and sharing of PGR with benefit sharing. It has established the MLS woth
64 specifically identified crops and forages and joining and contributing to MLS is on a voluntary basis.
The MLS has enhanced access to PGR but there are many issues with MLS and the access regime under
ITPGFRA and some of them have limited the effective functioning of MLS and fulfilling of objectives of
ITPGRFA. iii.
The legal position regarding PGR, particularly germplasm has undergone a sea change as it is subject
many Agreements/Conventions/ Treaties such as CBD, UPOV, TRIPS and ITPGRFA. Implementing them at
the national level and harmonizing national laws with them has not been without inconsistencies and
contested claims. The CHM is dead for all practical purposes with IP rights and rules on ABS becoming all
the more important in ownership, accessing and utilization of germplasm. Of course the North-South
divide is still evident in international fora over interpreting provisions of TRIPS and CBD.
Farmers’ Rights have been recognized by ITPGRFA while CBD recognizes the rights of indigenous
communities. But in giving effect to them remains as a contentious issue. ITPGRFA recognizes FR but it
has no provisions to give effect to FR at national level. Similarly counties (e.g. India) have tried to strike a
balance between IP rights on plant varieties, PBR and FR by enacting sui generis systems that are
compliant with TRIPS and also give scope of realization of FR. But are they sufficient in the context of
strengthening of IP rights for plants and plant varieties, concentration in global seed industry and other
developments that weaken/limit FR over germplasm, seeds and plant varieties.
PGR as/and Commons: Discourse and Strategy
In the last 15 years or so, there have been debates and initiatives to bring in a commons perspective on
PGR and ensure that at least some of the negative impacts of IP rights on plant varieties and other
biological resources are mitigated and new options for innovations are opened up. Open Source, Open
Innovation and discourses on knowledge commons, new commons and the MLS under ITPGRFA have
been some of the key factors that have influenced this discourse and practice. Conceptualizing
germplasm and PGR as commons and use of open source approach to protect it as a shared commons
without right to enclose/misappropriate and use of licenses modeled after General Public License
enables new ways to approach this question instead of choosing between an unregulated, free for all
CHM approach and strong proprietary rights oriented, exclusionary IP rights approach. Having said this
one should also acknowledge that these approaches are evolving and have not crystallized into a fully
working models/programs that have successfully demonstrated that this approach works. Rather the
discourses and initiatives are in different stages of development. The core principle of GPL, its viral
clause ensures that improvements are shared and no subsequent innovator can enclose what is
available to him/her through claims for IP rights. This approach is not anti-IP rights and it creatively uses
the principles from GPL for sharing, exchanging and facilitate innovation and shared commons.iv . The
downside is that GPL was developed for software and biological materials like PGR and germplasm are
very different from software. Still the GPL has been used to develop a license for open source seeds in
Germany by Agrecol. On the other hand, the Open Source Seeds Initiative in USA has chosen a simple
approach, instead of using a complicated licensing agreement or model.
Extending the commons approach to germplasm is possible but it is not simple because germplasm or
for that matter PGR are not typical common pool resources, nor can be categorized as global commons,
given the changes in the governance regimes for PGR at different levels. According to Schmietow
“The rationale for conceptualizing genetic resources with the help of a theory of knowledge commons is
based on the acknowledgement that the public nature of these goods is endangered. The perceived
value of plant genetic resources has increased rapidly due to powerful means of realizing their potential
with new biotechnologies.Simultaneously, there is a growing awareness that they are a limited natural
resource. This makes them akin to other goods, such as the deep seas or outer space, which are of
global common interest beyond technological and economic exploitation only after becoming accessible
as a resource.” (Schmietow, 2012 P 74).
Peter Drahos designated commons within PGRs under positive-negative and inclusive-exclusive
categories and this results in four type of commons – negative inclusive, negative exclusive, positive
inclusive and positive exclusive. (Drahos 2006). In negative commons, the resources are owned by none
and hence can be appropriated or alienated by anyone without the consent of others where as in
positive commons, resources are owned by all and hence alienation needs the consent of everybody
else. In reality how exclusive and inclusive a common is depends on the right to exclude and the right to
alienate and how these are regulated. While studies, findings and principles from analysis of common
pool resources and collective governance of such resources provide key insights for understanding PGR
as commons and in developing appropriate governance mechanisms the models and approaches cannot
be simply duplicated as now PGRs cannot be considered as common pool resources or as common
resources or as global public good and more importantly access to germplasm and use, at different
levels from local to global is mediated by a regime complex that continues to evolve.
Nevertheless different scholars have interpreted or analyzed PGR as commons of different kinds. Aoki
and Luvai have characterized PGR as ‘limited commons’ (Aoki, Luvai 2007). Boettiger and Wright have
favored a ‘protected commons’ approach to PGRs. PGRs have also been considered as ‘global commons’
in the literature (Halewood 2013, 7-8, Herdt 1999, Schmietow 2012). I have proposed a BioLinux model
which considers germplasm as a shared with responsibilities and obligations to use, innovate and share
and licensing and other mechanisms are used to regulate them. (Srinivas 2006). Use of Open Source
mechanisms has been suggested by some (Srinivas 2002, Srinivas 2006, Kloppenburg 2010, Deibel 2013,
Aoki and Luvai 2007).
According to some scholars, ITPGRFA itself creates a sort of commons in plant genetic resources coupled
with regulated access and benefit sharing principles.v This approach uses intellectual property rights not
to enclose or to monopolize but to share, exchange and facilitate further innovation.vi Development of
commons in plant genetic resources can be useful for public sector institutions to work together; they
can use the open innovation model to develop new plant varieties and release them under licenses that
respect breeders’ rights and farmers’ rights. But as of now these models and approaches are yet to be
tested and validated. Stoll points out that ITPGRFA provides scope for private sector to participate in
and use the MLS and hence MLS and ITPGRFA provides scope for contributions from private entities and
public institutions (Stoll 2011).
The origin of the current discourse on commons and open source approaches to germplasm can be
traced to a paper by Thomas Michaels who in 1999 at the Bean Improvement Cooperative Conference
made a proposal for use of GPL for germplasm (Michaels, 2000). Subsequently this idea was discussed
and developed further by others (e.g. Srinivas 2002, Srinivas 2006, , Kloppenburg 2010, Deibel 2013,
Aoki and Luvai 2007). Today the Open Source Seed Initiative in USA has used this approach to make
available varieties and seeds that can be used without a complicated licensing mechanism and these are
free varieties but not varieties without charge. The OSSI uses a simple approach and instead of a license
it uses a pledge which states:
“You have the freedom to use these OSSI seeds in any way you choose. In return, you pledge not to
restrict others’ use of these seeds or their derivatives by patents, licenses or other means, and to
include this Pledge with any transfer of these seeds or their derivatives.” (Lubi e.al. 2015)
The pledge is expected to develop a protected commons and enable breeders to share germplasm and
varieties and promote public sector breeding. The seeds and derivatives obtained through this pledge
are not in public domain and are part of the protected commons that would be developed with usage of
the pledge and sharing of seeds obtained/distributed under this pledge. The mechanism in OSSI is
simple and easy to understand but there are issues like enforcement and dealing with violations of
pledge. Further who would maintain the protected commons and who would monitor how the seeds,
varieties and germplasm made available under the pledge are used and shared.
In contrast Agrecol in Germany has come out with a license and in this mechanism while the license is an
agreement between two parties, Agrecol is the third party that is called as beneficiaryvii. The license is a
comprehensive agreement in which licensor transfers the seeds to licensee who is a recipient, taking
possession of the seeds, Agrecol is the third party called as Beneficiary. The license indicated the role
that will be played by Beneficiary who more or less acts as a developer and manager of the commons for
materials shared/transferred through this License.
These two represent, perhaps two totally different approaches to use of open source approach with one
opting for a Pledge models that relies more on the sense of ethics and sharing among the users/sharers
while the other proposes a mechanism with a third party acting as a developer and manager/coordinator for the commons that would be developed with materials shared under the license. It is
possible to develop other licensing mechanisms or arrangements to share and also allow some form of
benefit sharing for access and for promotion of innovation.
In the recent years there has been an explosion in the literature on commons, creating alternative
mechanisms for sharing and for incentivizing innovation through open source models and open
innovation and this includes case studies on commons such as microbial commons and proposals for
development of different types of commons in different domains such as genetic commons, knowledge
commons, and biobanks based commons. While in this paper we will not attempt to review them
comprehensively, few preliminary conclusions can be drawn:
1. There is no one model that fits or suitable for all types of resources or for development of
commons, both in terms of development and regulating access through licensing.
2. Development of different types of commons is feasible through different mechanisms and in
fact is necessary given the diversity in resources, scope for appropriation and need for sharing.
Some commons that consist of purely material goods may need mechanisms that are modeled
after governance mechanisms for common pool resources where as for some such as microbial
commons, biocommons where there are material and informational dimensions complex
mechanisms may be more relevant.
3. Commons can be combined with clearing houses, patent pools and other mechanisms that
facilitate sharing and through this a well developed governance mechanism can be
institutionalized.
4. With Nagoya Protocol coming into effect and with development of MLS under ITPGRFA, ABS is
an important component in access and sharing of germplasm but the implications of both
depend on national laws and regulations and the interface between IP laws, ABS regimes and
regulation of biodiversity also has to be considered.
At present the commons on germplasm developed by different stakeholders are few in number with
their scope limited to few countries. But it need not be so, given the enormous diversity in germplasm
available with farmers and communities. For example communities and farmers cultivating a crop such
as rice/wheat can develop a commons for farmer developed varieties, varieties from landraces and
related germplasm. At the national level there can be a pool of such commons which can further be
extended to the national level. In addition to this farmers and indigenous communities can enter into
agreement with research centers and gene banks on accessing germplasm available with them by
farmers and communities so that they can develop new varieties and these can be pooled and
consolidated as commons. Similarly at the national level there can be an aggregate of germplasm
commons which will be managed by representatives from stakeholders who have contributed to that
aggregate or pool through their commons.
The modalities for the above have to be worked out and developed further.
Conclusion:
The demise of CHM approach and the rise of using IP protection for biomaterials including plant
varieties has resulted in germplasm becoming a sought after resource with inter-linked regimes to
access, share and innovate. Using commons approach combined with Open Source licensing model
provides an opportunity to find a mid way between CHM and appropriation and enclosure through IP
rights. This approach is yet to be fully understood or developed and at this stage, it can be stated that
the initial results in PGR and seeds, and relevant developments in other relevant domains are
encouraging.
i
Article 2 of the Convention on Biological Diversity defines them as “genetic material of actual or
potential value;” genetic material in turn is defined as “any material of plant, animal, microbial or other
origin containing functional units of heredity”.. Article 2 of FAO International Treaty on Plant Genetic
Resources for Food and Agriculture defines Plant Genetic Resources as “any material of plant origin
including reproductive and vegetative propagating material, containing functional units of heredity”.
ii
See Kloppenburg and Kleinman (1988), Crosby (1972), and Wood (2011) for details
iii
See Halewood.,Norigea ,and, Louafi. S. (2013) and Frisoon, Lopez.., and Esquinas (2011) for extensive
analysis of the Treaty and its implementation
iv
See Srinivas(2006), Marden and Godrefy (2012) for details.
v
Oguamanam(2014), Aoki(2008) have examined this in detail.
vi
See Srinivas(2006), Marden and Godrefy (2012) for details.
vii
Kotschi, J. and Rapf, K. (2016): Liberating seeds with an Open Source Seed (OSS) Licence.
Working Paper. AGRECOL. Guggenhausen