The Open Source Seed movement is an answer to some of the problems of the current food and agriculture system that, in turn, throws up many questions. osSeedCommons is a meeting and debate space for this movement.
In order to facilitate further reflection about seed commons, and in particular the idea of ‘Open Source Seed’, we have collected a series of questions adapted from different critiques of the open source concept and related research on commoning. If your question has not been asked or answered unsatisfyingly, get in touch and ask (again).
Why do we need Open Source Seed?
Response : The current market and IPR based system favours and has created an oligopoly that abuses seed, soil and the environment, cannot meet nutritional demands, and leaves farmers as mere pawns in a game controlled by banks and a few agricultural corporations. Open Source Seed is a framework that encourages a non-centralised structure of diverse, numerous, small companies pooling their knowledge resources and becoming a commons: more than the sum of their parts. So, the question is: Which structure do you want?
Seeds and software are so different; this whole thing of open source seeds makes no sense at all?
Response : That’s a good question (even if it isn’t actually a question). If you step back and think about what seeds are and what software is in terms of social relations, rather than thinking of them as things, then it will appear that seeds and software are not so dissimilar. Both are relatively easy to transport and share and they are both very useful things, potentially enriching, but in order to use them you require a material context: seeds and software require land to, respectively, grow or to build the material infrastructure and energy supply that their use involve. Both are then moments in a large material dimension. Open source software inscribes values of sharing and working together onto the material and relational realm of computer systems. Open source seeds inscribe values of sharing and working together onto the material and relational realm of food systems.
Because ‘open source’ is a term from computing, it carries connotations of digital worlds and implies a belief in technical progress that we want to move away from, does it not?
Response : There are of course a lot of good reasons to be critical about digital technologies, technical fixes and the progress myth and its development and growth imperatives. Many people are excluded from the digital world of high-tech, for better and for worse. The association of seeds with ‘open source’, however, is not a reference to the software, or hardware or associated ideologies of technological improvements, but a reference to particular acts of commoning: building community, innovating and developing resources, in a spirit of solidarity, participation and sharing rather than competition, exclusion and profit-orientation.
Are you saying that the term commons always equals good and that because certain software is Open Source or because certain hardware runs on Open Source Software, it is always ethical?
Response: ‘All things have two handles, beware of the wrong one’. Although widely embraced by hackers, nerds and scientists, Free and Open Source software’s primary impact on cyberspace is arguably associated with the corporate sector’s take-over (recuperation, enclosure) of what was hitherto charted and populated by pioneers and enthusiasts. The rise of Amazon, Facebook and Google et al. (and the consequent demise of the Internet as a frontier of human freedom) has been based on server farms that are running customised versions of GNU/Linux, a Free and Open Source operating system. In the case of Google’s infrastructure it is estimated that the total number of servers is more than a million. Open Source, then, has an ambiguous legacy that makes it a mixed blessing.
The Free Software principles and the Open Source methods, however, are less ambiguous: Except in certain domains of traditional (peasant, indigenous) science and knowledge systems where secrecy, knowledge and power are inextricably linked, the freedom to access, use and share things, as well as the methods of never concealing the historical development and underlying code or composition of a given thing, are suggestive of something that we tend to recognise as a ‘good thing’, which enhances human freedom and increases diversity.
The unfettered ‘freedoms’ associated with open source might not work in the case of indigenous customs, or what?
Response : If the free sharing of seeds runs counter to particular indigenous customs, e.g. when certain seeds can only be circulated amongst people with particular skills or roles (such as healers or elders), or under certain circumstances (such as during special celebrations or at particular times of the year) due to particular cosmological views, then the importance of cultural integrity might trump the importance of sharing. But this should be discussed and explored with the people in question on a case-by-case basis and not unquestioningly assumed from the outset. Things change, cultures evolve, everything flows.
Moreover, open source does not promote ‘unfettered’ freedom, it promotes freedom in perpetuity under certain conditions, e.g. free use as long as the seed is not privatised (through intellectual property rights). It might be fruitful to explore the possibility of attaching other conditions to the seed, such that the sharing of the seed perpetuates rather than undermines the spirit of the indigenous customs that surround its use.
Should ‘open source licenses’ be developed that are legally defensible? Why? Why not?
Response : In principle all licenses appear to be legally defensible, as long as the necessary rights of exchange are in place, since contract law is quite straightforward with regards to what (very little) constitutes a lawful contract. Open source licenses have been treated in court as a matter of contract law, seeing the GPL as a contract which outlines general business terms and conditions. It is a formal agreement in writing in which ‘a promise given for a promise’ is made.
An open source license can arguably be enforced in a court of law – where an oral agreement is as valid and binding as a written agreement – because it articulates a mutually beneficial transaction. There are several precedents (Germany; the U.S.) where the Free Software license (the GPL) has been upheld in court on the basis of contract law. But there are as of yet no precedents for open source seeds. Until a court of law states otherwise, an Open Source Seed license or a Pledge are both valid and binding contracts, even though a license, being a familiar item in legal culture, is potentially more easily enforced. The struggle for the recognition of the rights to freely share seeds and plant genetic material has only just started…
What are the advantages and disadvantages of using a pledge (as OSSI does) as opposed to a license (like the one Agrecol has developed)?
Response : A pledge is probably more conducive to grassroots organising, while a detailed license is likely to resonate more in a corporate setting with legal staff. It is possible that a license will be easier to enforce in a court of law, because of its detailed expression of business terms and conditions and consequences of infringement. As such, professional lawyers working for seed and breeding companies interested in open source licensing might prefer a detailed license, not least because such licenses are part of the professional culture.
The advantage of a pledge is that it is clear and simple, which might in certain circumstances also be its disadvantage. It could be argued that in some cases a simpler expression of terms and conditions that can be read and understood without legal expertise, i.e. a simpler and clearer contract such as a pledge, would be easier to enforce, since neither party to the agreement should be left with any doubt about what they have entered into. Conversely, Agrecol’s license arguably removes doubt from and provides clarity to a legal process. It seems that the pledge favours a social movement attitude, while a detailed license is tailored to and targeted at the legal establishment in premeditation of possible legal proceedings.
Moreover, Agrecol’s OpenSourceSeeds license articulates that Agrecol is also a partner (the ‘Beneficiary’) in the transaction, and can pursue infringements, which thus anchors the transaction and situates a potential legal process in German law.
However, in principle both license and pledge are equally valid contracts, hence any kind of further argumentation for a specific license or pledge has to involve a presentation of its spirit and supporting community: the intentions with which the license or pledge was written and those whose interests it represent matter, too. As such, licenses and pledges have to be compared with consideration to their wider social context, rather than a mere consideration of the letters of the contract itself. Whether one or the other serves a specific seed commons better cannot easily be stated in the abstract, even when local conditions and desires are clear. In some jurisdictions one approach might be better, while in another the opposite might be true. In the absence of a series of case studies – i.e. legal processes – it is not possible to make a definitive statement. Perhaps worthy of note here, too, is that a legal process is also subject to the whims and idiosyncrasies of the judge; and, of course, might is right: ‘justice is open to all like the Ritz hotel’. Whatever each Open Source Seed initiative favours, the purpose here is to facilitate their networking and provide food for thought.
Pledging seed or licensing seed requires an individual’s authority to ‘pledge’ or license as well as that the variety in question must be novel. This excludes the use of heirloom varieties and indigenous and peasant seed which are not considered to have been bred by one particular person and/or of a definable group, does it not?
Response : This is an interesting and important question where sides can be chosen: with the letter of the law or with customs in common? Including ‘landraces’ in a seed commons could be desirable in terms of biodiversity and as legal activism, while excluding such plant varieties pays respect to the existing paradigm of plant protection and patenting. We invite further debate, reflections and discussions on this issue.
Does the Pledge thus (in a lesser way than a full license) inscribe its scientific rationality on the commons it creates?
Response : Yes and no. If ‘pledging’ plant varieties means that they have to conform to particular standards and metrics e.g. be novel, then, yes, certain scientific values are inscribed on the commons created by the pledge.
However, open source as a legally recognisable concept provides the means to define a boundary against the external world, which does not in and of itself determine the internal social organisation. Open source borrows from the modern nation state’s conceptual and jurisprudential tool box to be able to set and defend the boundaries of a commons that would otherwise run the risk of being crushed and ignored. It does not necessarily have to inscribe scientific rationality.
There are also concerns with regard to misappropriation: will a license or pledge hold up in court? Is it important? And even if not, will placing seeds in an ‘official’ commons make misappropriation easier and facilitate ‘trait mining’?
Response : For some Open Source Seed systems it will be important to police and enforce their legal boundaries, while for others defending the external boundary is less important than the internal community building that shared and declared values underpin. If an Open Source Seed system provides database access, then yes, all the data it permits access to can be appropriated by those who can access it. Again, this will be a priority to pursue for some, while for others it might not. Further debate and exchange of experiences is necessary to explore this point.
OK, you have almost convinced me about the whole Open Source Seed thing, except: Who is going to pay for it all, variety protection and patents ensure remuneration for the hard work involved in breeding?
Response : Free/Open Source Software has shown that freely sharing source code is a viable business model that allows for selling services around your creations: after all you are likely among the top experts on matters concerning your own work. In the past many plant breeders never relied exclusively on direct remuneration for their breeding efforts and the Open Source Seed community side with the many NGOs, policy makers and growing network that consider plant breeding a public concern that must be organised as a public good with public funds and support for breeders, who can sell seeds, services and expertise to sustain their livelihoods.