As part of our series on Culinary Modernism, I’m republishing some older posts and essays from REALFOOD.ORG. This piece was originally published on 22 October 2013.

I was part of a discussion last night about seed saving and intellectual property that was organized in response to this article from the Genetic Resource Action International (GRAIN):

It’s also a hot issue because the seed industry is working hard to secure legal systems that restrict seed saving by farmers, be it through the World Trade Organisation (WTO), bilateral trade agreements or direct lobbying of governments. PVP or plant breeders’ rights legislation is all about taking power away from farmers to produce and reproduce seeds. And these laws are gaining ground. Governments caving in to the pressure often say, “Don’t worry, we will protect the rights of the farmers at all cost!” They swear that nothing will prevent farmers from continuing their “traditional” and “historic” practice of conserving, exchanging and further developing seeds. And so they write into their law this “farmers’ privilege”. Yet the fact is, the farmers’ privilege is a legal “yes, but” on seed saving – with the “but” getting bigger by the day. Country after country that has established a plant variety protection law has progressively made the farmers’ exception more and more restricted. To the point that it becomes meaningless. Why? Because the breeders keep asking for stronger and stronger rights. Tightening the loophole that allows farmers to save seeds is the easiest way to give more power to the breeders.

A lot of people who opine about the current intellectual property issues in modern agriculture are unaware that the patenting of seeds didn’t start with biotech in the 80’s. It started in the US with the Plant Patent Act of 1930 with assists from Thomas Edison and Florio LaGuardia. An updated version was passed in 1970 with the Plant Variety Protection Act which allows farmers to save conventional seeds but not to sell them. (you can copy and burn a CD, but you can’t start selling CD’s)

My response to the GRAIN piece was that it raised legitimate concerns, but breeding has become more sophisticated and resource intensive, the seeds add more value, breeders need to be rewarded properly and their rights protected.

The answer in the developing world is for seeds developed by public universities and NGO’s to be released under more permissive licenses, including releasing them into the public domain. I’ve also heard of efforts by NGO’s to buy breeding patents and release them into the public domain. That’s a promising idea. There are a number of grassroots groups doing open source breeding. All to the good.

Anastasia Bodnar also had seed saving on her mind yesterday. She has a two part post discussing why breeder’s rights are important and a look at market power in the seed industry.

Basil breeding would be cool just as a hobby, and if I was in the business of selling basil, it could potentially be a way to create a niche market for myself. But hey, if I did then go and spend years making careful crosses, then sold my lovely purple Thai basil plants to people, then anyone who wanted more of the basil that I spent years developing could just plant the seeds from them. And there’d be nothing to stop them from selling the plants from those seeds. Unless there was a way for me to protect my invention. If I was just doing this as a hobby or if I wanted to share my purple Thai basil with the world for free, that’d be great. Yay for sharing seeds! But what if I needed to make money from the basil? What if this was my full time job and I made money because my basil was special and if people just started growing it and giving it away or selling it, this would cut into my market and all of my efforts breeding a special variety would in the end have all been just a waste of time because now I can’t make a living off it. Boo for sharing seeds!

Waking up this morning it occurs to me that there is a deeper issue here (and someone else in the discussion seemed to have had the same thought over night).

Trying to protect farmers’ right to save seeds only has an economic importance in low productivity systems where the benefits of specialization haven’t kicked in. By and large modern farmer’s don’t save seed because it isn’t a good use of their time and it would yield an inferior seed. If the pre-breeder’s rights seeds were so great, they would still be around to save and share.

If saving seeds is an economical use of a farmer’s time, that’s a bad sign. Energy and resources should be invested to help them raise productivity going forward rather than a backward looking approach of trying to preserve traditional farming. The right to save seed should be protected, and it’s hard to imagine instances where it won’t be. There may be improved seeds that come with strings attached, but if farmers don’t find those a fair bargain, they should be able to fall back on seed in the public domain or covered by more permissive agreements that allow for seed saving.

The bottom line is that if farmers are mired in such unproductive farming systems that saving and cleaning old seed is an economical use of their time, that should be seen as a sign that they need access to better infrastructure, risk management, non-predatory credit. It shouldn’t be a call to arms to defend low productivity farming.

But saving seed exerts a strong pull on the imagination of pastoral sentimentalists. There is a very appealing parsimony and self sufficiency associated with saving seeds. But in reality it’s a parsimony and self sufficiency forced by bad circumstance, not embraced through the farmer’s individual agency.

[POSTSCRIPT] It was brought to my attention that I gave short shrift to farmers in developing nations that save seed. Farmers in developing nations do save seed, and in some crops, more than I had realize when I wrote this. What I was reacting to in this piece is the tendency of some NGOs in developing countries to focus on shielding subsistence farmers from market forces and over romanticize traditional production, rather than helping them get the tools to integrate and adapt. The focus on seed saving is often a marker for that.

My emphasis is on the distinction between necessity and choice. Farmers in the first world are doing the math in a spreadsheet and making a cost benefit calculation about whether they can get sufficient yields to stay competitive without investing in the latest seeds. What we are talking about in developing nations is farmers saving seed out of necessity, because they can’t afford the seeds that could lift them out of farming at the subsistence level. There is a big difference between having the choice in 2015 between getting one more year out of seed you bought in 2011 and buying need seed and being trapped into saving 19th century seed in 2015.

[UPDATE: 6 June 2015: To see the dramatic difference it makes to have the ability to choose to purchase improved (non-biotech) seed versus being trapped into saving it and replanting the same seed indefinitely, check out the next few minutes of this travelogue looking at farming in African villages.]

The Food and Farm Discussion Lab conversation on the subject has been excellent.

https://www.youtube.com/watch?v=zI_lwy8KfHI

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