Open Source Policy as an option for Farmers’ Rights to Access to Genetic Resources
K.R. Srinivas Ph.D, RIS, New Delhi
 This is a new perspective on Farmer Rights – which is goes beyond the Acts and regulations. It looks the rights from an Open Source perspective.
Usually the issues on Farmers’ Rights and Access are discussed around Strong IP rights, Change in nature of Germplasm, National Laws and Farmers’ Rights, International Treaty, whether resistance alone is enough, what are the creative options and alternatives and the responses like Farmers’ as Innovators and Collectives.
Open Source as an alternative
What is Open Source? Open source can be compared to Linux and Wikipedia – both of which depends on collective innovation. The advantage is that you can contribute and get recognized too. But in the case of patents, there is an element of monopoly right - building a wall around and not allowing anyone to use. In Open Source our ‘right’ is linked to our ‘responsibility’ to allow others to use. Thus, Open Source is not anti-IPR. It allows others to innovate. The license for this is given under GPL (now GPL3).
Why Open Source approach to Germplasm? Because it has similar patterns of contributions and use from different producers/innovators. There are other features which make it appropriate to adopt open source for Germplasm like:
- Germplasm is a critical resource
- Germplasm is Global Public Good
- Germplasm is not just nature’s handiwork
- Farmers’ and Communities play a role in Biodiversity and
- Open Source can enhance ‘commons’ and prevent enclosure.
Some Science Commons
- SNP Consortium (pharmaceutical)
- AfCS – Alliance for Cell Signaling
- HapMap Project
- CAMBIA- BIOS
- BioBricks in Synthetic Biology
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The Approaches to Germplasm can be
- Enclosure through patents- patents on cell lines, genes, gene fragments
- Dual Protection - Patenting of seeds, plant varieties and plant breeders rights
- Sui Generis Systems that balance rights of farmers’ and others
- Open Source approach
Open source prevents and opposes the logic of monopoly right by making the Source code made available for others, using licenses to create viral effect, making available the improvements on the same terms that were made available and even if bundled with proprietary software source code is available with all rights. Open Source enables user innovation as user has right to modify, redistribute, change and customize software and offer it under GPL.
Patent Commons and Eco-Patent Commons
- Patents can be used for specific purpose like open source software by anyone without any fear of infringement. Eg. Apache software can be freely used for development purposes, though not for commercial use.
- Use of GPL to ensure that what is taken from commons in not enclosed.
- Eco-Patent Commons- same principle in technologies in climate change. About 80 companies are working on climate change and energy efficiency eg. Nokia.
Bio Linux model
The prospects for using this model are bright considering the background. Farmers are users and innovators. And the plant/seed varieties are available under a license similar to GPL or modeled after GPL. Also the varieties can be under PBRs (Plant Breeders Rights) provided farmers’ rights are taken care of. There is scope for new varieties to be developed but made available under the same terms. Participatory Plant Breeding (PPB) could be used to develop varieties. The advantages of Participatory Plant Breeding is that there is a collaboration between farmers and scientists in developing varieties and Farmers evaluate and decide on which varieties to be used cutting down top-down approach but driven on user need. Also PPB is more suited to diverse farming conditions than green revolution monocultures and diversity is recognized and enhanced in this approach.
Legal status of GPL
- GPL is a legally tested license
- FOSS (Free and Open Source Software) developers use it extensively
- No need for separate law or authority
- Can be enforced easily as it combines contract law and IP law principles with specific rules
- No scope for misinterpretation as rights and obligations are specified
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PPB and Germplasm
- PPB can draw on germplasm from farmers
- Germplasm made available under a GPL specific to germplasm
- Use of Material Transfer Agreements
- Does not prevent patenting directly but makes it irrelevant as enclosure through patenting not possible due to viral effect
How can BioLinux be used?
It can be used by farmers’ to safeguard from others misappropriating their varieties, it can also be used by organic farmers to develop new varieties in organic farming. It can be combined with PPB and farmer innovation and exchanged with other farmer communities simultaneously protecting farmer innovations.
Other possibilities are using it for farmers’ varieties, extant varieties and linking with farmers’ rights. It also requires a committed organizing for BioLinux through open access and Benefit-sharing. In order to allow cooperation it is advisable not to patent scientific data; only upstream products can be patented. The terms for data sharing could be between specific communities on specific terms. There are different types of commons and different types of pools and other resource sharing arrangements. Such alliances /commons are gaining popularity among the private companies interested in innovation and development. It can be adopted in NGOs and farmer collectives.
Open to Open Source
Open Source can be seen in a broader context through debates on commons, open access, open innovation, public goods and public domain. As an alternative paradigm for innovation, it is a new way to approach the IP issues. We need to have another look at seeds and sovereignty going beyond CHM vs. sovereignty approach. We need to find a Commons approach mid way between both. Creative solutions are necessary as resistance alone won’t suffice. When we oppose the corporate, we have to put in place an alternative model to replace the corporate, which could base on Open source. Innovation and conservation are equally important. “No problem is a big problem when thousand minds work on it”.
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