Innovations, commons and creativity: Open Source, Bio Linux and Seeds

In Canada testing for breast cancer has become difficult, if not impossible because of the patent rights and threats by the company that own that patent.1 The patenting of tests raises many issues and it is not just patients who are victims of patents. The way of scientific research is conducted is also affected by patents as a researcher cannot be sure whether (s)he is using a process which has been patented. And patents these days cover processes, research tools and techniques.2 After the decision in State Street Bank and Trust Co v. Signature Fin.Group Inc and In re Lowry it is clear that patent claims are admissible for information in the form of computer software and data-structures. And last year the US Supreme Court affirmed that plants are eligible for utility patent protection, although they are eligible for intellectual property protection under both Plant Patent Act (PPA) and Plant Variety Protection Act (PVPA). This decision in J.E.M.Ag Supply v. Pioneer Hi-Bred affirms the practice of US Patent and Trademark Office (PTO) in granting patents on plants.
 
   Since 1985 PTO has granted hundreds of such patents. Moreover this decision raises whole lot of other question relating to research exemption, farmer’s rights over the seed etc.3 It is estimated that patents relating to rice were less than hundred per year until 1995 and increased to more than six hundred per year between 1996 and 2000. According to one study done in 1997 about 60% of the 410 patents on Bt genes and Bt pesticide technology were held by six company groups.4
 
   This rush to patents is often justified on the grounds that patents promote innovation, a stronger IPR regime is an incentive for attracting Foreign Direct Investment and to promote investor confidence. But these claims are disputed. Even those support trade liberalization are aware of the problematic nature of such assertions. For instance T. N. Srinivasan writes:
 
 
 
‘On the first and basic question, the empirical evidence in favour of a strong link between patents rights and innovation does not exist. In the absence of such a link, patent protection is not even a means of promoting innovation, let alone being the most cost-effective means’.5
 
 
 
Winners and losers
 
Who gains from a universal strong regime of IPRS as envisaged under TRIPS Agreement? According to one study, if TRIPS were fully implemented only nine countries, nine developed countries would have positive net receipts and of this the US alone will get $19 billion per year. This is almost equal to what the other eight countries combined would get. And Canada would end up with a net negative .transfer of 574 million dollars per year. Even Korea a developing nation with a wide Research and Development (R&D) base and with many patents in the USA would be end up with a net negative transfer of $1533 million.6 So it is no wonder that TRIPS has become such a hotly debated topic and many NGOS are arguing that TRIPS should be taken out of WTO.
 
   Yet it is a mistake to think that TRIPS is something that will harm the developing nations only, and will benefit the developed nations. In reality it will benefit the IPR holders and not the general public, particularly the poor whether they are in the developed nations or in developing nations. The harsh fact is that the citizens of developed nations end up paying more for drugs thanks to stronger IPR regimes and public policy that favours the drug manufacturers at the cost of the public. But the holders of IPRs who gain most from them are not the scientists or innovators but the companies, investors and the University/Research Institutes. And in industries like biotechnology IPRs is crucial as intellectual capital and is essential for the company to survive and to attract funding. According to one study, the biotechnology companies rely on science funded by public money and conducted in public sector institutions for very basic scientific research.7 And the universities/non profit sector are also making money out of IPRs. For instance with 18,000 licences in use, American, Canadian universities, hospitals, and research institutes earned in $862 million as royalties in 1999.8 No wonder that claims over IPRs in biotech run into hundreds of million dollars.
 
   The mad worship of IPRs is doing more harm than good – whether for science, or health or for advancement of knowledge or for dissemination of information and putting knowledge into public domain. We find that the utopia of the Information Society is being turned into a nightmare of copyrights, patents, and other forms of IPRs blocking not only to access to information but also to monopoly claims over knowledge. And patent claims are being made over human genes also. The issue of patenting genes has raised a host of issues- ranging from the criteria of patentability to limits to patenting.9
 
   Thus we are witnessing a strong tendency at the global level as well as in many countries to extend the regime of IPRs and to extend coverage of IPR claims. This is based on a very narrow view of creativity, innovation and progress in science and dissemination of knowledge. And as we have seen, IPR claims are being made not only over physical matter or devices but also over ideas, and living objects as well. Some of the basic ideas about property, individual right over his/her own body parts, plants and living beings have become matters of disputes and claims. In other words IPRs is fast becoming a strategy to colonise, to claim monopoly rights and to privatise the commons. One way to counter this is to resist, question, challenge and to fight against it by all means possible.
 
   The other way to fight is to turn this on its head and to prove that there are better ways of promoting creativity, rewarding innovations and to further the betterment of humankind. Many NGOs, academics, social movements have been focusing on TRIPS for the past few years. The controversies over access and provision of drugs for AIDS in Africa and in Brazil galvanized public opinion and developed nations were forced to face this and it resulted in the Doha Declaration. However the battle is far from over and post-Doha there has been no consensus on IPRs, compulsory licensing and drugs. TRIPS is an issue that has ramifications for health, food security, environment, human rights and livelihood and it is no wonder that it has been attracting a lot of attention in the last few years.10 Developing nations have also been voicing their concern in international fora, particularly in the views expressed to the WTO.
 
   Resisting the global onslaught of stronger IPR regimes is necessary but not sufficient The underlying logic has to be challenged in theory and in praxis. Both theory and praxis are related and one can enrich the other. In this there is ample scope for scholars, NGOs, social movements and governments of developing nations to come together to promote discourses that challenge the current tendency to use IPRs to establish what has been called Infogopolies and Biogopolies.11 In the second part of this article I outline some alternative perspectives and examples that have challenged the dominant discourse on IPRs, creativity and innovation. A lot needs to be done on this and what I outline should be taken as a preliminary survey.
 
 
 
The concept of ‘open source’
 
What have seeds have to do with software or Linux and Open Source movement to do with plant breeders’ rights and patents on seeds? The Open Source movement and the development of Linux challenge the view that innovation is possible only if there are strong IPR regimes and only big companies can develop operating systems. Although free software and open source software are used extensively in the internet not many users are aware of it. The internet was born out of a project funded, researched and built by funding from public sources. The net is also the antithesis of a centralised model of information sharing and information production. Peer to Peer networking has questioned the established models of information sharing, production and dissemination of knowledge in the web.
 
   Farmers have been experimenting with plants since time immemorial. The variety we see today in vegetables, grains, cereals etc. is due to these experiments and innovations. Plants and germplasm have travelled across through world for many reasons and the modern ‘green revolution’ relied heavily on this diversity to develop the new varieties. Yet the very spread of the green revolution resulted in loss of genetic diversity in fields. But farmer innovation is a continuing process. Plants and germplasm have been considered common heritage and those who developed and conserved this invaluable resource were never granted IPR. Only for the twenty years or so there has been a discussion on farmers’ rights and the need to recognize and reward them. So far there has been more talk than concrete plans to put this into practice.
 
   Today there is a threat to the centuries old practice of farmers saving seeds, sharing them with others and experimenting with seeds of others. There is no universally accepted standard for IPRs on plants and seeds. But the TRIPS under WTO makes it necessary that countries provide some IPR protection for plant varieties. Broadly speaking countries can have national laws that provide for sui generis protection or can frame their laws in accordance with the UPOV convention of 1991. Current laws in USA have negated most of the rights farmers once had. The farmer is now only a user of a material and has become like any other user of a patent. In other words the farmer is using seeds, which are eligible for patent protection, besides Plant Breeders’ Rights. This double protection norm has been upheld by the US Supreme Court and the UPOV also favours this. This is now the only way to foster innovation and develop new varieties and to promote them.
 
   There have been other ways of developing seeds, new varieties and ensuring that farmers really benefit out of them without being reduced to dependency on the seed companies. Participatory seed building is an example of plant breeding that uses modern science, and combines it with farmers’ knowledge and experience to develop suitable varieties. In this farmers evaluate varieties, design the criteria to assess them and interact with scientists in developing new varieties.12 The idea that users can contribute to innovations is not new. But what is interesting about participatory plant breeding is that it builds on farmers’ knowledge and experience and uses their wisdom is producing varieties that meet their criteria. For example farmers in an arid region may prefer a low yielding, drought resistant variety to a high yielding variety that needs huge quantities of water. Here the idea is to develop a variety that would make them less vulnerable to risks and to ensure that they get some yields even if there is a drought. In fact farmers have been planting, selecting and developing different varieties for different purposes. And farmers are free to use these varieties in anyway they want.
 
   Thus diversity is not only maintained but enhanced. But under the current IPR regime according to UPOV or US law the farmer cannot do any such thing with the seeds. For new varieties the farmer has to rely on universities or on seed companies. Recentexamples from India prove that farmers are not all that helpless. In Andhra Pradesh, Deccan Development Society, a NGO based in Hyderabad initiated a programme that has helped farmers and peasants, mostly in dry regions, to try out traditional varieties and to use sustainable agricultural practices as an alternative. This has helped to rekindle interest in traditional varieties, exchanging seeds and in testing them in many places. The farmers have also tried to evolve an alternative Public Distribution System (PDS) for supply of food grains to the needy.
 
   In Uttranchal state in India a movement to save seeds, Bhij Bacho Andolan, has been engaged in reviving interest in traditional seeds, making farmers use them and exchange them. Although these are small experiments they demonstrate what is possible. Such experiments and innovations are not confined to developing nations alone. Thus if we consider the issue of seeds and innovation we can find solutions and it is neither necessary nor desirable that plants should be brought under stronger IPR regimes that reduce farming and agriculture to total dependency on seed companies or IPR holders for a critical input like seed.
 
 
 
Software and Copyleft
 
The open source movement and development of Linux have proved that it is possible to develop world class software by collaborative working without rigid IPR regimes. The idea of Copyleft, promoted by the Free Software Foundation (FSF), enables one to copy and modify a programme as long as two criteria are met. One is that they should allow others to modify the modifications .The other is that a Copyleft software should not be made proprietary. There are common features between this and how farmers developed new seed varieties. In both approaches there is a tendency to promote further innovation and to encourage building on what is available. The other is that proprietary claims are not favoured. In other words every innovation becomes a part of commons. This commons is enriched by further innovations. This method challenges the assumption that innovations are possible only if they are done by a big organisation with a centralised structure and only if there are strong IPR regimes. This model which might be termed biolinux is an open-ended model of innovation Its beauty is that we can use these ideas in different contexts to develop socially relevant technologies and products without the negative costs associated with proprietary claims One recent example from India indicates that Open Source / Free Software ideas can be put into practice and can go a long way to fulfilling needs without being bound to proprietary software.
 
   Simputer has been developed as a tool that is user friendly and could be used by anyone who is not familiar with English. It is built on a Linux/GNU version and has no key board. It supports local languages and even a person who is illiterate can use it as the information can be read out as it uses speech processing technology. Simputer is the brainchild of a team of technocrats based in Bangalore. Simputer could be used for multiple applications and it supports Smart Cards. Since it is based on a non-proprietary operating system software applications can easily be developed easily for it. It has a web browser, e-mail client and can be run on batteries. It is rugged and can be used even in remote areas where there is no electricity.
 
   Furthermore, Simputer has a facility that makes it unique. A text to speech tool called Dhvani has been integrated into it, which is claimed to be able to support almost all Indian languages. Although as of now it is expensive, it has features which make it an ideal system for a variety of uses, particularly for those who know only the local language. If Simputer is produced in large numbers it is likely that prices will come down. Software could be developed for various purposes and for various categories of users.13
 
   The development of Open Source software coupled with devices like Simputer could revolutionize the way computers are being used in developing nations. More such efforts are needed to demonstrate that innovations are possible without strong IPRs. Again it is essential that initiatives like participatory plant breeding, farmer centred conservation and seed exchange programmes are undertaken on a broader scale than before. The Open Source movement and Free Software paradigm prove that alternatives do exist and it is possible that better and reliable software could be developed, applied and distributed without any help from a dominant player such as Microsoft. But the dominance of Microsoft was possible because it capitalised on the IPR regime and behaved in a manner that was not conducive to innovations that were not compatible with its strategies. According to Kim and Hart:
 
 
 
‘The sophisticated management of intellectual property was the second essential ingredient in the success of Wintel. While the diffusion of technical standards was a part of the offensive dimension of Wintel strategies, the protection of intellectual property was part of its defensive dimension.’14
 
 
 
   The creative response to Microsoft is not to establish another closed proprietary system, but to develop and promote software that turns the logic of Microsoft on its head. There are many important lessons for developing nations in the Microsoft case. First stronger IPR regimes can inhibit development of innovation. It is in the best interests of developing nations to promote operating systems and software that are governed by Copyleft or under Open Source, so that further innovation is possible without depending upon a single supplier. Further adopting policies that favour Open Source/ free software models will give a boost to indigenous talent and will unleash their creativity. In this context it is worth noting that some developing nations are taking similar initiatives.15
 
   Instead of taking a piecemeal approach it is essential that those who challenge the TRIPS and stronger IPR claims, whether they are from the developing or developed world, find an approach that looks at the wider ramifications of strong IPR regimes. For instance access to information is as important as access to medicines. Similarly the seeds issue is not one that concerns farmers alone. It cannot be reduced to just an issue of IPRs. Only if we look at the whole picture can we think of alternatives to strong IPR regimes and counter claims that without them no innovation is possible. n
 
 
 
Notes
 
1. ‘U.S. patent stops breast cancer testing’, John Bermingham, The Province, 20 October 2002. Posted in EnvTechSoc List by Mark D. Whitaker. See also Jon F. Merz ‘Discoveries: Are There Limits on What May Be Patented’ in Who Owns Life (Eds) D.Magnus et al., Prometheus Books 2002.
 
 
 
2. See R. Eisenberg, ‘Bargaining Over the Transfer of Proprietary Research Tools’ in Expanding The Boundaries Of Intellectual Property (Ed) R. C.Dreyfuss et al. Oxford University Press 2001.
 
 
 
3. For a discussion on this see ‘Intellectual Property Protection For Plant Innovation: Unresolved issues after J.E.M v Pioneer’, Mark D. Janis and Jay P. Kesan, Nature Biotechnology Nov 2002, 1161-1164.
 
 
 
4. A. F. Kratiger, ‘Insect Resistance in Crops : A Case Study of Bacillus Thuringiensis(Bt) and its Transfer to Developing Countries’. ISAA Briefs 2, 1997. ISAA, Ithaca.
 
 
 
5. T. N. Srinivasan. ‘Developing Countries and Multilateral Trading System after Doha’ (2002) http://www.econ.yale.edu/growth_pdf/cdp842.pdf
 
 
 
6. ‘Who Gains from TRIPS’, Sunil Mani, Technology Policy Briefs Vol 1 Issue 1, 2002 (www.intech.unu.edu). Such studies are only indicative and are based on econometric models. Still they confirm the view of the critics that TRIPS would benefit only few countries at the cost of all other countries. In the words of Keith Makus, ‘TRIPS is,therefore, a “one size fits all” approach to a complex set of economic, political and social factors. While harmonisation may generate global efficiency gains in principle , the distributional effects may make the agreement internationally unsustainable without effective compensation to developing nations. So far there is little evidence of such compensation being paid, either explicitly or implicitly.’ (‘TRIPS: Controversies and Potential Reform’, Keith Maskus, Feb 2002. .Maskus is a Professor of Economics at University of Colorado at Boulder and is Lead Economist with the World Bank).
 
 
 
7. An analysis of the critical role of public science in innovation: the case of biotechnology’, G.Steven McMillan, Francis Narin, David L. Deeds. Research Policy 29,1-8, 2000
 
 
 
8. Data cited in ‘Principles, Property Rights, and Profits: Historical Reflections on University/Industry Tensions’, Daniel J. Kelves. Accountbility in Research 8:293-307, 2001
 
 
 
9. For an example see the article ‘How Can You Patent Genes’, Rebecca S.Eisenberg and the responses to the same in American Journal of Bioethics Vol 2 No 3 2002.
 
 
 
10. For instance see the Report of the Commission on Intellectual Property Rights 2002 (www.cipr.org),Global Intellectual Property Rights (Eds) P. Drahos, R. Mayne. Oxfam/Palgrave 2002, P. Drahos, J. Braithwaite Information Fedualism Earthscan 2002, Steal This Idea M. Perelman, Palgrave 2002, Expanding The Boundaries Of Intellectual Property (Ed) R. C. Dreyfuss et al.Oxford University Press 2001, Who Owns Life (Eds) D. Magnus et al Prometheus Books 2002.
 
 
 
11. P. Drahos ‘The Right to Food, Health and Intellectual Property in the Era of Biogopolies’ in Commercial Law and Human Rights (Ed) S. Bottomley and D. Kinley 2002, Aldershot: Ashgate Publishing.
 
 
 
12. Lousie Sperling, Loveinsohon: Using Diversity IDRC,1996, Robert Tripp, Suresh Pal, Information Exchange in Commercial Seed Markets in Rajasthan, AGREN Network Paper No 83, London: ODI, 1998. Kent Whealy, ‘Saving The Seeds of the World’, Earth Island Journal Vol 16 No 3 2001  See also Boru Douthwaite, Enabling Innovation, Zed Books 2002.
 
 
 
13. www.simputer.org. See review in www.thinkdigit.com The review in Scientific American Nov 2002 points out some negative features.in Simputer. The point is Simputer is a new product and a new concept. It is based on Linux and there is scope for improvement and innovation.
 
 
 
14. S. Kim, J. A. Hart, ‘The Global Political Economy of Wintelism’ in Information Technologies and Global Politics (Ed) J. N. Rosenau, J. P. Singh State University of New York Press 2001.
 
 
 
15. Alan Story, ‘Don’t Ignore Copyright, the “Sleeping Giant” on the TRIPS and International Education Agenda’ in Global Intellectual Property Rights (Ed) P. Drahos, R. Mayne.
 
 
 
 
 
 
 
Ravi Srinivas Krishna is a visiting scholar at The Law School, University of Pennsylvania, Philadelphia, researching on Biodiversity and IPRs on a Fulbright Fellowship. This article builds on some of the points made in an earlier paper ‘The Case For Biolinuxes’ in Sarai Reader 2 (www.sarai.net). He has written for Economic and Political Weekly, Environmental Politics, Science and Public Policy, Culture and Agriculture, etc. He has also contributed articles to The Encyclopedia on Green Politics, The EOLSS Encyclopedia. The above article is written in his personal capacity and does not necessarily reflect the views of any organization/institution. Email ravisri2002@rediffmail.com rskrishn@law.upenn.edu