France Might Allow NGOs To Sell Public Domain Seeds To Non-Commercial Buyers. Might?

from the so-what's-the-problem? dept

When Techdirt has written about seeds in the past, it tended to be in the context of patents, and how Big Agribusiness is trying to use multiple layers of intellectual monopolies to prevent patented seeds from entering the public domain. By contrast, seeds that are already in the public domain — that is, owned by no one and thus everyone — ought to be unproblematic. But an interesting story in Intellectual Property Watch indicates that’s not the case in France:

the French Senate is due to consider a bill on biodiversity for the third time. That bill, which could be modifying several legislations, might allow for the sharing and selling by non-governmental organisations of seeds in the public domain to non-commercial buyers, which is so far not permitted under the current French legislation, according to sources.

The fact that non-governmental organisations are currently not allowed to sell public domain seeds to non-commercial buyers seems curious, to say the least. The issue seems to be about governmental control, since the new law:

would allow NGOs already sharing and selling seeds to individual gardeners, which are not on the French National official seeds catalogue, to legalise their activities, and escape prosecution, according to a press release [pdf] (in French) from Kokopelli, one of those associations.

That’s a reminder of how controlling seeds was a key government power back in the days when agriculture represented a far greater share of economic activity than it does now. Such control may have been justified back then in terms of ensuring that “official” seeds were the varieties they claimed to be, and of high quality. But it’s surely time for restrictions on selling public domain seeds to be relaxed not just in France but everywhere they exist, to promote biodiversity and to offer a counterbalance to the increased control exercised by companies using patents.

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Comments on “France Might Allow NGOs To Sell Public Domain Seeds To Non-Commercial Buyers. Might?”

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That One Guy (profile) says:

Wrong term

If there’s such heavy restrictions it doesn’t seem accurate to refer to them as ‘public domain’ seeds, as were that the case then there would be no such restrictions upon their use.

They may not be covered by patents and locked down accordingly, but given the fact that simply selling them to non-commercial groups/individuals is illegal claiming that they are ‘public domain’ doesn’t really seem to fit, leaving them in a limbo-ish status where they’re not technically restricted by patent law, but for all intents and purposes the status is effectively the same with the government as the ‘owner’.

Anonymous Coward says:

Re: Wrong term

I disagree with your interpretation.
In France there are seeds in the government domain; seeds which are registered and cataloged and legal.
Then there are all other seeds.
Are they in the government domain? Not really, no. The government doesn’t know about them and does not regulate them directly. They’re neither known by the government, nor illegal. What is illegal is the sale of non-government-sphere seeds, which criminalizes these public domain seeds as a byproduct of the regulation of the government domain seeds.

This is a case where government regulation has criminalized the sale of public domain seeds but in which the public domain still exists and is legal for noncommercial purposes.

Not that I’m intending to argue against you if you still disagree; it’s not a particularly important point…

Anonymous Coward says:

What an odd bit of law.
I suppose you do, as the article points out, have to have some baseline seed to call “wheat” in order to conform to it. It’s no good buying a tonne of wheat only to receive a truckload of potatoes, with no legal basis to challenge what is “wheat” and what is “potato”.
It does seem odd that trading in non-controlled seeds has been illegal up to this point, though. Just give government controlled seeds a public catalog and an “approved” stamp and everything else an (optional) “not government approved” stamp…

orbitalinsertion (profile) says:

So is this implying that commercial sales are perfectly fine, or sales or sharing not performed by NGOs? Or is it all illegal and NGOs are the only entities being considered for being allowed to perform this activity? NGO seems to be the operative bit here.

It’s weird because I don’t see anything where this has to do with IP, environmental protection, or controlled origin. I suppose it would take finding and reading through a lot of vague references.

Dickon Hood (profile) says:

It's (probably) an EU thing...

According to the second half of there’s an EU list of official seed you can market to consumers. This is probably just France’s implementation of that directive being tweaked.

(I have no relationship with The Real Seed Catalogue other than being a member of their club at one point by purchasing some very interesting chilli seeds from them. I do, however, recommend them.)

Anonymous Coward says:

Re: Re:

Apparently the kudzu thing is largely imaginary/observer bias. Kudzu happens to do alright near roads, and very well in recently landscaped areas; the result being that if you built a road through the South, the area next to the road would suddenly become a haven for kudzu, as would the land cleared to display a billboard.
Everywhere else, it doesn’t really do so well.

Anonymous Coward says:

Public domain seed?

The only “public domain seeds” that I am familiar with, are the ones you pick out of the bowl before you fire her up. My guess is you are referring to subsidized seed.

We have similar subsidy programs here in the states, and some are restricted. For example states typically have their own nursery programs, but they won’t ship across state lines. Why should one state subsidize another’s environmental initiatives?

So I can understand why sales would be restricted in France. My guess is that the intent is to subsidize DOMESTIC production, and that if they don’t restrict sales much of that seed can be expected to be resold across borders.

Seeds from banks tend to favor regional conditions. So even IF seeds are given to NGO’s it will take a while for any large scale plantings to achieve the kind of performance they did at home. They still have to crop select on-site for a few years to optimize production.

The exception is in cases where products are GMO’s for specific traits such as flood, drought, or chemical tolerance. Typically that kind of performance doesn’t come from state programs, but corporate ones.

If I put my Dr. Evil hat on…

If I recall correctly, Monsonto was bought by an EU conglomerate recently. I could conceive of this as a trojan horse in a couple of different ways. Hmm…

Another Anonymous Coward (profile) says:

Some background

This is probably due to Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed:

This directive could be interpreted to make it illegal to sell any seeds not on the official list of allowed seeds. Due to the cost of getting a seed variety on the list, only seed varieties encumbered by intellectual “property” are on the official list.

When this directive was about to be implemented in the EU member states, the seed companies saw this as a great opportunity to get rid of competition by making it illegal to sell all the old heirloom varieties not on the official list of allowed seeds. So they lobbied big time in the various EU member state parliaments, and in most states they had success.

Where I live (Denmark) sales of seeds from the many old heirloom varieties became illegal when this directive was implemented into local law.

But a lot of people concerned about biodiversity defied the new laws and continued to produce and sell the now “illegal” seeds. These seed pirates also became very vocal to media and politicians that the new laws were bad.

This lead to “COMMISSION DIRECTIVE 2009/145/EC of 26 November 2009 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties.” (Yes, the title really is that long). But that directive did not really change anything.

But seeds of many plant species have limited storage time, so if not constantly grown and taken seed from these plant varieties would go extinct. This has been an argument for the seed pirates from the beginning, but now more than a decade has passed this argument has more weight: Several thousand heirloom plant varieties in Europe would have gone extinct if not for the illegal work done by these pirates.

In Denmark this resulted in a small law change last year: Now it is legal to sell the heirloom seeds not on the official list of allowed seeds, provided the seeds are not sold for commercial plant production. So now I am no longer a criminal.

I am glad that something similar seems to be happening in France too.

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