Access, Commons and Plant Breeding Reframing the legal system to face the challenges of an increasing world population and the preservation of agrobiodiversity – CommonPlant

We used the following method: a thorough examination of the already identified bio-commons and, after being satisfied that they can ensure food security and the conservation of agricultural biodiversity, a careful study of the conditions for their legal recognition. The project was built upon three pillars:

- The understanding of the bio-commons;
- The issue of the appropriation and ownership of the bio-commons;
- The issue of the governance/administration of the bio-commons.

In order to achieve this objective and to carry out this multi-pronged analysis, it was necessary to gather experts hailing from different disciplines during a two-day workshop as a way to give them the opportunity to consolidate what has up until now been largely individually-based research.
Importantly enough, the approach intended to account for the multifaceted and complex nature of agro-biodiversity conservation. Rather than endeavouring to tackle directly the issue on the legal side, the project first sought to grasp in their multifaceted dimensions (scientific, anthropological, cultural, sociological) the existing bio-commons and to progress towards a full-fledged understanding on their main features. In so doing, it relied on first-hand expertise provided by specialists of eco-anthropology and ethnobiology (e.g. Victoria Reyes-García, Elise Demeulenaere, Laura Rival, Eric Garine). Besides, the project endeavoured a twofold perspective assessment on the impact of intellectual property right regimes on agrobiodiversity and food security: the first was carried out from “within” the intellectual property right regimes, as it strives to challenge the classical “right to exclude”; the second, informed by the concept of the “Commons”, seeks to assess the benefits and drawbacks of pooling genetic resources for the sake of biodiversity conservation and to address the issue of the appropriate legal regime to ensure open access to, and free flow and exchange of, genetic resources.

Dr Laura Rival (from the Oxford Institute of Social & Cultural Anthropology) and the project coordinator organised a two full-day workshop which took place the 30th September and the 1st October at the Maison Française d'Oxford.

The two-way workshop was intended to heighten the reflections and offer the time necessary to further develop and enhance common themes. Above all, its goal was to provide the opportunity to lay important groundwork for further scientific research and to provide the basis for a multi-author book.

More specifically, the First Session was devoted to the issue of access (“right not to be excluded” from the use or enjoyment of something”) within proprietary regimes (e.g. access and benefit sharing, access and clearinghouses, access and open-source patents). The Second Session provided the opportunity to explore more directly the issue of the “Commons” in the plant innovation field, notably by questioning the potential, benefits and limitations of designing or promoting the so-called “bio-commons”. Participants raised questions about the status of genetic resources and related traditional knowledge of local and indigenous communities, the status of the product of participatory plant breeding, the possibility of allocating collective rights over traditional knowledge, landraces and new farmers' varieties. Two further papers addressed the issue of the Global Governance of the ITPGRFA.

The workshop brought together experts from different countries and disciplines:
- In ecological and social anthropology and ethno-biology: Dr Victoria Reyes-García, Dr Laura Rival, Dr Eric Garine Wichatitsky and Dr Elise Demeulenaere;
- In sociology and history of sciences: Dr Eric Deibel and Dr Frédéric Thomas;
- In law: Pr Graham Dutfield, Dr Elsa Tsioumani, Dr Michele Spanò, Dr Geoffroy Filoche, Dr Susette Biber-Klemm and Dr Christine Frison;
- In political science: Dr Selim Louafi;
- in agricultural development: Dr Johannes Kotschi;

To date, the project coordinator, associated with one the workshop participants, Dr. Frison, have submitted a book proposal to a leading academic publisher in the UK. Our proposal was received with much enthusiasm and the editorial project is currently under review.

The proposed book would consist of 18 chapters arranged in 3 parts, subdivided in several sections. The outline is drafted as follows:

1. Introduction

Part 1. Setting the Scene – Grasping the Nettle

Part 2. Moving Beyond the Absolute “Right to Exclude” – Towards an “Inclusive” Approach of Ownership

Section 1. Access and Benefit-Sharing
Section 2. Access and Licensing

Part 3. Dealing with the Commons: Moving beyond Public and Private Ownership?

Section 1. Working Out the Theoretical Frameworks
Section 2. Of Some Possible Models: Mapping and Protecting the Bio-Commons
A. Understanding the Bio-Commons
B. A Common Property Regime for the Bio-Commons?
C. Governing the Bio-Commons

So far, confirmed contributors include: Dr Petra Benyei, Dr Laura Calvet-Mir, Dr Eric Deibel, Dr Elise Demeulenaere, Pr Graham Dutfield, Dr Geoffroy Filoche, Dr Christine Frison, Dr Eric Garine, Dr Fabien Girard, Patricia Guzmán Aguilera, Dr Johannes Kotschi, Dr Sélim Louafi, Barbara Pick, Dr Victoria Reyes-García, Dr Laura Rival, Dr Michele Spanò, Dr Frédéric Thomas.

The publication of a multi-authors book with a leading academic publisher in the UK (submitted).

The joint challenges of food safety and conservation of agrobiodiversity are making us rethink the issue of agricultural production. We have to produce more, but especially better in order to sustain biological diversity and to mitigate and adapt to climate change. In this prospect, it is urgent for us to develop a sustainable crop production system that relies less on natural resources (soils, water-aquifer), fertilizers and protection products. There are probably many ways to address these challenges; and it is undisputed that sciences and technics have a major role to play in this respect. But if we remember that many aspects of the plant breeding model and the crop production system have been influenced by policy choices, as well as by legislative and regulative options, thus it appears clearly that, to a great extent, food safety and conservation of agrobiodiversity are tightly linked with policy choices made in respect of intellectual property. Social sciences, and more especially Law, can contribute to reframing the current legal framework and to achieving a better balance between the necessary requirements of progress and innovation – which could not be fulfilled without sufficient incentives for industry in the form of intellectual property rights – and the need for protection of informal innovation systems carried out by farmers, and local and indigenous communities.
What seems to be a very fruitful avenue of reflection for the project of research would be to investigate the concept of property as classic liberal and neo-liberal thinkers have established it. The challenge is therefore to interrogate private ownership and what can be seen as its main distinguishing feature in the Western world, namely the right to exclude. In this prospect, the debate on access in the law of property provides a good starting point. Due consideration must be given to pioneering works developed in political economy field, especially those of Jeremy Rifkin who has been able to perceive the change in modern capitalism with a power no longer based on property but on access to service. To be sure, Rifkin points out the risk of communication of cultural experiences. But it highlights something we have long time ago lost sight of: ownership can be thought differently so that cooperation can replace self-interest, access trumps ownership; in sum, property can be defined as the right not to be excluded.
It has recently been suggested to move beyond this reflection upon private property and access. Another fruitful avenue to explore would be the acknowledgment of a third way between public and public property. What is at stake here is to frame new “commons” (“biens communs”) or preserve and promote existing “commons”. The last decade has seen a growing interest in, and thorough reflection on, the commons – natural resources commons as well as intellectual commons –, especially in the United States and in Italy. But very few studies have been carried out on the commons in plant breeding. This issue would merit further debate, if only because the term “the commons” is commonly used when it comes to the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), participatory plant breeding or collaborative research program to support the genomics research.