Answer: By providing a model for licensing agreements that can protect the farmers’ intellectual property rights in the seed that they use. 

I recently posted on the problem of biopiracy — the appropriation of genetic resources from developing nations by pharmaceutical and other companies.  Similar concerns have been raised about agro-companies obtaining exclusive intellectual property rights in plant genetic resources that have been first developed and used by farmers in developing nations. 

Fortunately, 3L Ryann Beck has come up with a clever solution that involves adapting the open source licencing systems commonly used for computer software.  Under Ryann’s proposal, a nonprofit steward would obtain intellectual property rights in plant genetic materials on behalf of the farmers who developed them.  Packages of the seeds would then be labeled with a “copy-left” license that would preclude purchasers from obtaining enforceable intellectual property rights in the seeds or derivatives of the seeds. 

Ryann’s proposal is contained in a new paper on SSRN.  Her paper got a nice write-up on the IPKat blog a few days ago, and is forthcoming in the Arizona Journal of Environmental Law and Policy.  The abstract appears after the jump. 

The TRIPS treaty requires that WTO members offer patent or sui generis protections for plant life. Yet, many developing countries oppose intellectual property for plant life because, for those nations, plant IP has proven to be financially, environmentally, and socially detrimental. The farmers’ rights movement has grown out of such opposition and is an effort on the part of interest groups and developing countries to afford subsistence farmers control over farming methods and compensation for their contribution to the world’s biodiversity. Developing nations and farmers’ rights groups have spearheaded multiple treaties aiming to curtail plant monopoly rights; however, the treaties have been ineffective and the growing strength of plant monopolies in developed countries is unlikely to wane. Meanwhile, farmers need a solution that allows them to maintain control over their farming practices, preserve traditional cross-breeding methods, and receive compensation for their contribution to the state of the art of crop varieties. Open source provides such a solution. An open source regime protecting farmer-developed plant varieties would utilize intellectual property and copy-left-inspired seed wrap licenses to generate a pool of plant species that farmers could freely grow, improve, and market. Open source programs would further farmers’ rights by protecting farmer-developed resources from predatory monopolization and providing an entity through which farmers can share information and have a voice in agriculture-related policy-making. Additionally, open source pools would act to conserve biodiversity and promote environmentally-friendly farming by encouraging farmers to cultivate plant varieties adapted to local climates and disease instead of using mass-produced seed and treating heavily with pesticides.