Copyrighted Crops: Big Business, Intellectual Protection and Nature’s Bounty

Abstract: Genetically modified crops are supposedly superior to more conventional cultivars and are increasingly grown by farmers. However, the majority of such plants are developed, at huge cost, by a relatively small number of corporations, who guard their intellectual property vigoursly. In this article, we explore some of the issues behind patenting supposedly everyday crops.

Intellectual protection and large multinational corporations dominate our capitalist economy. Intellectual property, which encompasses trademarks, copywriting, patenting and other legal means of protecting ones ideas, is extremely important and can be worth millions, if not billions, of pounds. Almost everything developed by an individual or organisation can be protected in this way.

Recently, pirating of films and music has become a major news story, with large multinationals seeking to shut down websites that they say help promote intellectual property theft. Intellectual property is also important – and controversial – in the fields of biotechnology, and it is now possible, after a court case in 1980, for a genetically modified organism (GMO) to be patented.

Supporters of such patents argue that protecting the rights of the inventor promotes further research and provides an incentive for inventiveness and discovery. If such patents did not exist, it is argued, then there would be little incentive for large companies to invest money in research, thus holding technology back. Many aspects of transgenic crops are patented from the actual plants themselves to the processes involved in creating them, to specific modifications. One example is the ‘terminator gene’ sequence that is used to prevent plants reproducing without the consent of the biotechnology company that created them.

However, should transgenic crops be patented? It could be argued that such a plant is not really an invention, as only a couple of genes have been altered. In addition, patent laws mean that farmers growing transgenic seed cannot save seed – they must buy it anew next year, which could be especially problematic for poorer farmers. Such patenting may also result in ‘patent thickets’; this prevents academic research1 and further utilisation of the potentially extremely powerful genetic modification technology.

Major biotechnology companies have thousands of patents relating to GMOs. Monsanto, the largest producer of GMOs in the world, is willing to take legal action against farmers that reuse their seed and thus infringe licensing agreements, and by extension their patents. According to Monsanto, they have made 145 investigations, and around 11 of these ended up in lawsuits. This disparity is down to the fact that few farmers are willing to take on such a large company in lengthy and expensive legal battles, all of which all have ended in Monsanto victories so far.

Some cases have aroused particular controversy, the most well known is the case of the Canadian farmer Percy Schmeiser. Schmeiser was sued by Monsanto for growing Roundup Ready canola in his fields. Such canola is resistant to glyphosate, a common weed killer, and thus such crops can be sprayed as they grow, meaning that weed losses are lower. Schmeiser claimed that the seeds had come onto his farm, and portrayed the lawsuit against him as a ‘David versus Goliath’ scenario with a rapacious seed company suing a farmer who had not done anything wrong.
The truth, as ever in these situations is more complex. Although the ultimate origin of the seeds is unknown (probably coming from a neighbouring farm) investigations found that he had, in fact, used Roundup weed killer to isolate the resistant plants, harvested such plants and then planted the seed the following year. Tests revealed that 95-98 per cent of his canola fields consisted of Roundup Ready canola, an amount that would have cost him $15,000. The Supreme Court of Canada ruled that Schmeiser had ‘made use of’ the crops, and as such had infringed Monsanto’s patent.

Nonetheless, patenting such crops has undeniable benefits. Firstly, it provides a powerful incentive for the biotechnology companies to invest and research heavily in such technology. This, in turn, will lead to better genetically modified crops which, if one accepts that such modification can provide powerful benefits in the first place, will undoubtedly be a good thing. If patenting was not allowed, then it is likely that, once the initial research was done, copies of the modified plants would soon be available, reducing the profits available to the biotechnology company and thus reducing the incentives for research. This would either reduce the amount of new biotechnology products released, or place more of the burden for this expensive research on academic institutions and other public bodies.

Furthermore, by patenting plants, biotechnology companies themselves have a strong, vested interest in preventing the unauthorised spread of biotechnology crops. Although these crops are generally considered safe by the scientific community, it would be foolish to allow total dissemination of these crops with no oversight whatsoever. Therefore, by allowing companies to strictly license the use of these crops, these biotechnology companies can be used as a mechanism for ensuring proper use of these crops – though obviously this should not be a substitute for governmental oversight.

Applying intellectual property laws to genetically modified plants is far from ideal due to the issues outlined above, and indeed it can harm further use and exploitation of this technology, as well as potentially putting too much control of food supply into the hands of biotechnology giants. However, research, which can be very expensive, must be rewarded in some way, and the fruits of their labours protected. Therefore, we should probably continue to allow patenting of these modified organisms – though perhaps with suitable safeguards for allowing free and cheap academic research into these crops.

Furthermore, whilst there are definitely issues surrounding the degree to which biotechnology giants will resort to protect their intellectual property, it does not follow that we should prohibit them from patenting their own discoveries. To do so would not only increase unlicensed and thus less regulated use of GMOs, but also reduce the incentives for research in both the biotechnology and other technology sectors. This is something that the world cannot afford if we are serious about developing viable, realistic solutions to the numerous challenges facing us as the population grows, the biosphere degrades and resources run out.

Article by James Wilson. Edited by Joe Austin.


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