Open Access to scientific publications is part of a broader movement regarding knowledge: from competition and protection to sharing and collaboration. Intellectual property is one, or the, centre issue. For example, in a 2008 report, the International Expert Group on Biotechnology, Innovation and Intellectual Property Rights argued for abandoning the old IP regime that rests on high walls and tight control. The Geneva Declaration on the Future of the World Intellectual Property Organization already argued likewise in 2004. Sharing and collaboration are the new concepts. But not only is this transition far from smooth, it is also far from agreed how and where exactly change is necessary. Should the patent system be changed completely? Or just the way the patent system is implemented? Or should we look much wider and deeper, with the patent system as just a cog in the machine? And which are the changes that are meanwhile taking form in practice, through the myriad of books, manifestos, initiatives, meetings, background forces? Today let me take a quick look at this wider field, if only to notice that it is widely confusing and, in comparison with last week’s good news, somewhat chilling.
In his recent PhD thesis at Wageningen University, Plants, Genes and Justice, Bram de Jonge studied global benefit-sharing in plant biotechnology. In a very interesting chapter (ch 5, also to found at http://www.gspjournal.com/ Vol 4, No. 3), he looks at two international institutes of potato innovation: the international Potato Centre (CIP) in Peru and Wageningen University and Research Centre in Wageningen, the Netherlands. Briefly summarized, the typical motivation for scientists at both institutions is to spread and share knowledge. But in both countries, other important stakeholders constrain the options. In Peru, the state as well as indigenous farmer communities fear biopiracy (in somewhat different ways) and want to prevent it through protection of their local genetic resources. In The Netherlands, Wageningen University lives in the same climate as the other universities and has become entrepreneurial. It aims to support the Dutch private sector in attaining a competitive position, it should meet the “valorization” terms of its funding agencies and it also aims to improve its own financial and strategic position. This all points in directions of protection through patenting. According to Bram de Jonge’s analysis, different and complex though the environments of CIP and Wageningen UR are, both are subject to forces that drive them to protection, and in both cases the challenge is to “balance protection with sharing for the common good.” But sharing comes with risks and uncertainty. De Jonge calls for courage: “In order to fulfill their mission and serve the common good, public research institutes should not hesitate to take that first step and dare to share.”
“Dare to share” is a call for individual and institutional heroism: courage in the service of public good. But the question is also how such heroism can be supported: which are the sharing tools that are available, or can be mobilized or developed? Bram de Jonge concludes that the benefit-sharing road that has been travelled by giving states sovereign rights over biological resources has mainly led to stalemate, as the case of Peru illustrates. Yet, frustratingly, the alternative roads are still very tentative and uncertain.
Meanwhile, out there in the commercial fields of plant breeding, fierce contests on IP regimes are going on. Here is a current one. Earlier this year, the Dutch plant breeders association (Plantum) opposed the growing influence of patents in the world of plant breeding, arguing for breeders’ rights. While traditional plant breeders’ rights allow the breeder of a new variety commercial protection, they also allows other researchers to use the protected variety for research into new varieties, through the so called “breeders’ exemption”. Patent law does not contain such a breeders’ exemption. The right to do research should be bought through licences, and the big companies often ask a lot of money for them, so that it becomes hard for smaller firms to remain active in research. Some smaller firms reportedly are already out of the game. Hence Plantum’s plea. The Dutch minister of Agriculture reacted by announcing a study into the consequences of patent rights and breeders rights. The results of this study, conducted by Niels Louwaars of Wageningen University, are expected next month. Meanwhile, the plant science industry federation Croplife as well as Monsanto have written to the Dutch minister, arguing that innovation requires patents. Plantum’s proposals would have “a severely chilling effect” on innovation, writes CropLife International (p. 3).
Many now argue that it is patents themselves that chill innovation, for example through the patent thicket effect. It is not an issue where the overall truth is easily available, but in the case of plant breeding at least, whatever the overall innovation effect may be, the patent system seems to concentrate the trump cards in the hands of the big and powerful.
[...] 7, 2010 by Cor van der Weele In November last year (see post # 16), I wrote about an IP clash on plant breeding in the Netherlands. The Dutch plant breeders [...]