Control of Seeds

Control of seeds

Brewster Kneen

    How a society regards its seeds, whether they are  respected or abused, ‘owned’ or freely shared, is an     important expression of its culture and politics.  

A drive through farming country in the summer will quickly provide an illustration of how seeds express a culture.  A field of corn (maize) is a picture postcard of monoculture – highly uniform plants and the exclusion of virtually all other life forms. The uniformity and structure of the plants are a sign that they are designed to ripen all at the same time so they can be harvested at high speed by very large and expensive machines.  There is nothing ‘natural’ about such vast fields of single crops. They are the construct of a culture and agriculture that seeks maximum control, physically and legally, particularly over whatever can be considered as property. In capitalist society, this now includes food crops and the seeds they grow from in their commodified form.
 
The United States of America has been the leader in developing methods of gaining control over seeds, in keeping with its property-oriented culture, whether physically through various methods of plant breeding or legally through what are called “intellectual property rights.” But it was not always thus. As with patenting and copyright, the United States lagged well behind Europe in privatization and in its early years relied heavily on what is today referred to as ‘bio-piracy.’ The total reversal of public policy regarding seeds from its founding days to the present is, in fact, rather remarkable, and reveals the emergence of private profit as the guiding principle of public policy.

Even before the United States established its independence from Britain, its colonial landowners were busy gathering seeds from around the world, seeking commercially viable crops for their plantations, albeit without a great deal of success. The seeds were quite literally gathered – not purchased from farmers or seed keepers. At that time there were no seed companies; nor was there any Plant Variety Protection, plant patents or genetically engineered and patented seeds. There were virtually no mechanisms of control over seeds other than physical measures taken by individual farmers and communities to maintain their seeds by keeping them clean, dry and safe from predators, insects and thieves. Their methods to do so were both ‘scientific’ and ingenious.

As a large landowner, George Washington was an early biopirate, though nobody would have thought to call him that at the time. After independence, he became the first  President (1789-97) of the new United States and continued to import large quantities of seed from Britain and Europe for his plantation.  President Jefferson (1801-09) went further afield and imported seeds from around the world for his own use and for distribution to friends. The practice of gathering seeds from around the world continued to grow and by 1818, Elkanah Watson, a merchant, banker and farmer, was using his substantial wealth and connections to systematically request seeds from U.S. consuls all over the world. A year later Secretary of the Treasury William Crawford made a similar request of foreign consuls and naval officers, but without the authorization of funds to support plant collecting the project was limited until 1839. That year Henry Ellsworth, who was commissioner of patents from 1836 to 1849, succeeded in obtaining congressional funding for the collection and distribution of seeds, plants and agricultural statistics. Ellsworth then arranged for new varieties to be sent to farmers under the postal privileges of sympathetic members of Congress. From today’s perspective, it is wonderfully ironic to think of the US Patent Office using the Post Office to send free seeds to farmers all over the USA.

“By 1861, a total of 2,474,380 packages of seed, the bulk of which contained common vegetable and flower varieties, were being distributed through congressmen to their constituents. . .  In 1897 the volume of seed distributed reached an all-time record of 22,195,381 packages, each containing five packets of different varieties.” (Jack Ralph Kloppenburg Jr., First the Seed, second edition, Univ of Wisconsin Press 2004, pp 53-61)

When the U.S. Department of Agriculture was established in 1862, among its mandated responsibilities was “to  procure, propagate, and distribute among the people new and valuable seeds and plants.” (quoted by Kloppenburg, p59)

By the end of the 19th century, however, a commercial seed industry began to take shape and object to the public distribution of seeds which left little room for a private, for-profit, seed trade. During the 20th century the seed industry grew with the establishment of many small regional seed companies and the emergence over time of a few very large corporate enterprises. By the end of the 20th century, the development and distribution of seed was almost entirely in the hands of a very few giant corporations which consider seeds as private property to be developed, owned, bought and sold not for public good but simply for private profit. Seeds are thus transformed from sources of life into sources of profit.

Privatization is all about control, the assumption being that control is both necessary and appropriate, politically, economically and ethically – a God-given human prerogative and responsibility. This includes control of nature and environment as well as human and nonhuman creatures. Indeed, while this discussion is confined to seeds that grow in the ground, a similar discussion could be engaged in regarding human seed.  

The desire and drive for control can also be described as seeking domination and exploitation. Control of seeds is perfectly logical in this context. It is crucial, however, to recognize that this is a very peculiar and particular cultural attitude and practice, by no means universally accepted or even recognized.  It is a European, and more particularly white North American, cultural characteristic.  Owning and controlling are not recognized as desirable or even acceptable characteristics among many peoples and cultures; there is not even a word for some of these concepts in traditional languages in both North America and elsewhere.

The privatization of seeds –  their commodification and consequent subjection to ownership – is a reflection of particular cultural attitudes and social practices, namely those of dominant Western ‘civilization,’ and, as I have shown, even within Western societies the privatization of seeds is a very recent development.

In the dominant property-centred culture of North America three approaches to control of the seed can be identified:
I) Legal – Privatization through property legislation making it possible to ‘own’ the seed (‘hard’ law);
    II) Biological – Control by biological means;
    III) Regulatory – Control through regulation (‘soft’ law).

I –  For Canada, the legal framework for the ownership and control of seeds rests on the European-initiated 1978 Convention of the Union internationale pour le protection des obtentions végétales (International Union for the Protection of New Varieties of Plants – UPOV) although Canada did not ratify this convention until 1990, when, against much opposition, Canada passed the Plant Breeders’ Rights Act. (A Seeds Act was passed by Parliament in 1923, but its purpose was to protect farmers from unscrupulous plant breeders and seed salesmen, not to establish seeds as property.)  

The PBR Act established, for the first time in Canada, legal recognition of property rights in plants. That is, the Act gave legal standing to seeds as property that could be owned. Note the peculiar use of the term ‘protect’ in referring to ownership; ‘enclose’ might be a more appropriate term.

“The Canadian Plant Breeders’ Rights Act came into force on August 1, 1990. The legislation makes it possible for plant breeders to legally protect new varieties of plants. Plant varieties, both sexually and asexually reproduced, may be covered under the legislation for a period of up to 18 years. All plant species, except algae, bacteria and fungi, are eligible for protection. The owner of a new variety who receives a ‘Grant of Rights’ will have exclusive rights over the use of the variety, and will be able to protect his/her new variety from exploitation by others.”
                    (www.inspection.gc.ca/english/plaveg/pbrpov/guidee.shtml#a1)
    
Two years later Canada signed the 1991 revision of the UPOV Convention, though it has never ratified this amended version. The major amendments extended the so-called ‘rights’ of plant breeders while restricting the ‘rights’ of farmers to save and replant seed from previous harvests.  While Canada is under no legal obligation to ratify the 1991 Convention, it is nevertheless used as a stick by the seed industry to try to force Canada to extend their privileges, in conjunction with another stick – in the other hand – of claiming (falsely) that Canada is required to ratify the Convention under the rules of various trade agreements.

In the broader legal context, what can be patented has been steadily increasing for the past 20 years, including in the realm of plants and seeds. The 2004 Supreme Court of Canada case of Percy Schmeiser vs. Monsanto is the best illustration of how far the claims of patent holders in seeds and plants have been extended in law. The Court, in a 5-4 decision, found that Schmeiser had violated Monsanto’s patent on the gene construct it had inserted, through genetic engineering, into canola, rendering the plant resistant to (able to tolerate) Monsanto’s Roundup herbicide.  The court said that Schmeiser knew, or should have known, that he was planting canola seeds that contained Monsanto’s patented ‘technology,’ however it got into his own farm-saved seed. The court went even further, in effect saying that because Monsanto’s transgene was present throughout the canola plant, the entire plant was subject to a patent.  (See “Court Confusion”, The Ram’s Horn #221, June 2004 at  http://ramshorn.ca/archive2004/221.html#meltdown )

While the Seed Act of 1923 was to protect the farmer from unscrupulous seed salesmen and questionable seed companies, now  the law is being used to protect the property and profit interests of the corporations from farmers.

Just as the seed has been privatized, so has the seed industry; that is, seed breeding has moved largely from farmers and public institutions to the private sector. Even the plant breeding that remains in public hands in Canada essentially works on the agenda established by its corporate ‘partners,’ a consequence of the Canadian government’s tying all public plant breeding grants to corporate partnerships and the corporate agenda.

II –  The second method used to gain control of seeds for purposes of profit is biological.  This approach was initiated in the mid-1930s by US maize breeders who discovered what is today referred to as hybridization. Until then, hybrids were simply crosses of two varieties of the same family of plants.

Today’s hybrids, however, are produced by systematically inbreeding two parent lines and then crossing them. Due to the deliberate inbreeding, their progeny (‘F1’ crosses) express what is referred to as hybrid vigour, but they do not breed true. That is, the F1 plants themselves produce genetically erratic seeds and are therefore generally unsuitable for planting, thus requiring the farmer to buy new hybrid seeds every season. These modern hybrids thus provide very effective control over the propagation of seed as well as very substantial profits to the seed breeders – or ‘owners’ –  at the expense of the farmers. (There continues to be a question about hybrid vigour.  Many people contend that if the same attention had been focused on open-pollinated seeds, the same or greater productivity could be achieved, but the profitability of hybrids caused the open-pollinated route to be abandoned, except when the species is recalcitrant and ‘refuses’ to hybridize.)

While modern hybridization has produced substantial biological control over the seeds, making legal control redundant, the pursuit of biological control did not stop there, in part because many crops, including wheat, are very difficult to hybridize.

A major expansion of  biological control came about with the introduction of genetic engineering and the possibility of patenting genes. As has now been legally established in some jurisdictions, this implies effective ownership not only of seeds and the plants they become (cf. Schmeiser), but more recently even the products into which they have been processed.

Genetic engineering of plants began to take shape in the 1970s, with the first genetically engineered seeds (cotton, soybeans, corn, canola) on the market in 1995-6.  Genetic engineering made it possible for companies to create, by transgenesis of various sorts, plants with particular characteristics, such as the ability to tolerate the application of a specific herbicide or to kill a certain pest. Since the transgenes can be patented, legal control is achieved through biological transformation.

Still wishing to escape the costs, and state involvement, associated with legal control, the biotech industry has gone on to develop biological mechanisms to provide almost absolute biological control over the seeds. Best known of these is what is popularly referred to as “Terminator Technology.” First developed (and patented) by Delta and Pine Land Co. (a major US cotton seed company) and the US Department of Agriculture, Terminator Technology causes the crop to produce sterile seeds. This means that the seeds, be they cotton or wheat, will produce a crop, but the seeds of that crop will not germinate if planted. Thus no law and no police are required to maintain control; it is simply built into the plant itself.  The industry prefers the term Genetic Use Restriction Technologies (GURTS) to the more popular Terminator Technology for obvious reasons. The term  is in the plural because other methods of achieving biological control are being developed, such as crops that will only mature with the application of a proprietary chemical spray.

There is a less readily obvious way to privatize and gain control of the seeds and, indeed, agriculture through biology: deliberate contamination of entire crops with patented transgenes, as has happened with canola in Canada, and is happening with rice in the USA. In the case of canola, the contamination was clearly deliberate since it is common knowledge – and one of the reasons canola was the first crop in Canada to be genetically engineered – that canola is a highly promiscuous crop and that any added characteristic, such as herbicide tolerance, would be quickly passed along to every canola plant in the area.

One could say that the efforts to gain control of the seed have gotten out of control – but not by accident.

III – The third means of privatizing and gaining control of the seed is through regulation. Regulation is  commonly regarded as a governmental, and therefore public, function, achieved by legislative enactment.  Very often, however, the legislation is only ‘enabling’ legislation, with the regulations required to implement it drafted only after the enabling legislation has been passed. The drafting of the regulations (and their subsequent revisions) may then produce results quite different than those intended by the legislators as the parties subject to the regulations are generally consulted in their drafting. This might be a reasonable procedure if  the legislators and the regulators are acting in the public interest and it is the public that is consulted, not just special interest groups. If, however, the regulatory agency – the Canadian Food Inspection Agency (CFIA) in the case of seeds – has been instructed by the government to facilitate innovation, to speed up the process of getting new products to market and not to impose any unnecessary ‘regulatory  burden’ on the interests it is supposed to be regulating – the corporate seed breeders in this case – then we can be sure that the real authors of the regulations are private, corporate interests, usually the lobby organizations for the industry subject to the regulations (in Canada this being the Canadian Seed Trade Association). The legislation then, regardless of the intentions of its drafters, will further corporate business interests, not regulate in the public interest, or the interest of farmers. This is reflected in the term ‘approval process’ now regularly used by the CFIA in lieu of ‘regulatory process.’

Regulation, in this situation, becomes regulation to support the interests of ‘the market,’ not the public, the market being the arena dominated by the corporate sector. The law of the state then becomes merely a shell of authentication for market (‘soft’) law, that is, the marketing arrangements of the corporate seed owners.

The next step is the shifting of all regulatory power from the state to the corporation. This is what has happened with the increasing production of Identity Preserved crops, a new wrinkle on the old practice of contract production in agriculture. In this case, the origin of the seed, how it is grown, and to whom it can be sold and under what conditions are stipulated by private contract. This also applies to the farmers willing to sign, for example, Monsanto’s “Technology Use Agreement” (TUA) which essentially turns the farmer into a renter, for a season, of Monsanto’s seeds. The terms of the contract or TUA – the regulations covering the use of the seed – are then a matter of private treaty.  The only role for the state is as enforcer of the contract.

The government provides the legal framework for market law, and public good is displaced by private profit as the purpose of the regulatory process. Privatization and control of the seed is facilitated and legalized by the so-called regulatory agency. The implementation and legitimization of this transfer of power is currently illustrated by the CFIA with its Proposal to Facilitate Modernization of the Seed Sector Regulatory Framework. Note the reference to a ‘regulatory framework.’ ‘Modernization’ is code for privatization. So the CFIA will provide a framework while the seed corporations will develop the regulations to go into the framework. This is the development of ‘market law,’ and with it the total reversal of the original intent of seed regulation, i.e., protection of the farmer from unscrupulous and fraudulent seed salesmen.

Hopefully, the story will not end at this point. Worldwide there is a growing awareness of the dangers of corporate control not only of seeds but of food itself. With this awareness, and alarm, seed savers, and seed saver organizations, are cropping up everywhere, and urban gardeners as well as peasant farmers are saving and selecting seeds, without reference to claims of ‘ownership’ by some corporation or, as in Europe, without reference to the illegality of using ‘unregistered’ seed. Saving seeds, and their grand diversity, is simply a natural and necessary thing to do.