Restoring the Seed Commons: Call for Clarity on Intellectual Property Rights

By CR Lawn

The seed industry has been changing rapidly. After recent mergers (Bayer/Monsanto, ChemChina/Syngenta, Dow/DuPont), just three companies dominate the global seed trade. Increasingly, giant multinationals are using Intellectual Property Rights (IPR) to reinforce corporate power. As gardeners and farmers, we are losing the right to work with our seeds, and most seed companies aren’t telling us.


Closeup of organic spinach plant
‘Abundant Bloomsdale’ spinach. Bred by Organic Seed Alliance and cooperating organic farmers. Thick, broad, succulent, sweet dark-green leaves. Highly savoyed. Upright plant form keeps leaves out of the mud.

Our ability to save seeds, even of some heirloom varieties that have been passed down for generations, is threatened. Now, when you shop for that favorite seed variety in your preferred seed catalog or on a website, you need to ask if you are buying the seed or merely renting it for a one-time use. Are you getting full rights to use the seed as you may wish, or are you renting permission to use the seed only for a single purpose and for a single season?

The Open Source Seed Initiative (OSSI) has identified four seed freedoms:

  1. The freedom to save and grow seed for replanting or for any other purpose.
  2. The freedom to share, trade and sell seed to others.
  3. The freedom to trial and study seeds and to share and publish information about them.
  4. The freedom to select or to adapt seeds, to make crosses, or to use them to breed new lines and varieties.

These traditional freedoms that farmers have exercised since the dawn of agriculture are now being stripped from us, for the most part without our knowledge or conscious authorization.

A contract with one of Fedco’s suppliers tipped me off that many varieties now come with use restrictions that nullify those four freedoms. Subsequently, I researched Fedco’s 1,000-plus selections and found more than 120 varieties burdened with IPR. Though most of the restricted varieties were F-1 hybrids, a minority were open-pollinated cultivars, even including some heirlooms.

Ears of Dakota Black Pop popcorn
‘Dakota Black Pop’ popcorn. Bred by David Podoll, Prairie Road Organic Seed. Relatively early for a popcorn, in spite of having bigger ears and being more productive than most popcorns. Plants are 4-6 feet high.

IPR manifest in various forms: through Plant Variety Protection (PVP), utility patents, in contracts from the wholesaler to the retailer, and through language on bag tags (tags on seed bags that contain restrictive language that comes into force when they are opened) and invoices.

The total number of use-restricted varieties in the seed market is large and growing. Many medium- and large-sized retailers routinely buy patented and other IPR-restricted varieties from the same nine wholesalers as Fedco, as well as from others.

At the request of its customers, Fedco phased out Seminis varieties when Monsanto bought out Seminis in 2006, and more recently Fedco has refused to offer utility-patented varieties from any source.

Most good seed catalogs identify the PVP varieties, and somewhere in small print, address the limitations PVP mandates. PVP does not restrict growers from saving seeds for their own use, or amateur and professional breeders from conducting breeding research with them.

Utility-patented varieties are relatively new to garden seed and are much more restrictive than PVPs. Johnny’s Selected Seeds has set a good example by identifying these varieties among their offerings, but many other retailers have not yet followed suit. Signposting utility patents is crucial because they convey comprehensive limitations on the use of the seed, prohibiting all seed saving — even for home use, breeding, or researching and publishing on the variety — without permission of the patent holder.

To farmers and gardeners, the least-known incursion on seed rights comes through contracts and bag tags whose provisions apply to retailers but may or may not carry through to end users. This is a new level of IPR that is now invading even varieties for gardeners; it is invisible to those who plant the seeds. Nothing in the variety descriptions warns you that you are not buying full rights to the seed. The seed company never tells you on its website or in its catalog that it does not own the seed, that it purchased only a license to sell its use, subject to certain conditions and limitations, and that as a grower you are purchasing only a limited license to rent the seed one-time. You are not buying unlimited use.

Open Source Seed Initiative

The Open Source Seed Initiative (OSSI) seeks to maintain fair and open access to plant genetic resources worldwide by creating a pool of varieties that are completely free of intellectual property restrictions. The primary mechanism for achieving these goals is the dissemination and propagation of the OSSI Pledge and of OSSI-Pledged varieties. Participating breeders OSSI-Pledge their chosen varieties.

The OSSI Pledge is passed along with all seed of OSSI-Pledged varieties and their derivatives. The OSSI Pledge: You have the freedom to use these OSSI-Pledged seeds in any way you choose. In return, you pledge not to restrict others’ use of these seeds or their derivatives by patents or other means, and to include this Pledge with any transfer of these seeds or their derivatives.

The Pledge preserves the rights of farmers, gardeners and breeders to freely use, save, replant and improve seed of OSSI-Pledged varieties and their derivatives now and for future generations. To date, OSSI has 415 Pledged varieties from 38 participating breeders offered by 61 seed company partners, each of which sells at least one OSSI-Pledged variety that comes with full rights as enumerated in OSSI’s four seed freedoms.
For descriptions and photos of all OSSI-Pledged varieties with links to the seed companies that sell each variety, visit the the Seeds page.

Common language on bag tags and in contracts limits permission to a single planting and strictly forbids using the seeds and any plant material from them for repeated propagation. Typical wording is, “All Intellectual Property Rights remain with x. The customer shall not use the seeds for reproduction in any manner …” Wholesalers who use bag tags to convey restrictions usually bag tag all their varieties — not just F-1 hybrids, but also OP varieties and even heirlooms in the public domain. Even small seed companies that purchase from larger retailers may unwittingly be getting use-restricted seeds, never even seeing the limitation-conveying bag tags.

As a further source of ambiguity, the wholesalers who offer IPR varieties are not consistent about whether these limitations on their direct customers carry through to third-party end users. When I posed that question to six different suppliers I got mixed results. While one answered “no,” another responded that growers and home gardeners were not restricted and only large-scale commercial propagation was prohibited. Three others said “yes,” one of whom went on to ask, “If you are repackaging the seed, do you have any restrictive language on your packaging?” One of the larger suppliers was the only one to include an affirmative duty clause in its contract with Fedco to convey these restrictions to third-party users and a companion clause making Fedco potentially liable if a third-party user failed to comply.

Issues Affecting End Users

These ambiguities can trouble end users in at least three ways. First, IPR may inhibit new would-be seed savers. To be sure, many users may not care. Only a minority of home gardeners save seeds for replanting, and then only for certain crops. Even fewer select to try to improve varieties or use them as breeding material. Then too, most of the restricted varieties are F-1 hybrids that would not come true in the next generation and would require a number of seasons of selection to stabilize into a desired cultivar.

Second, for commercial growers, IPR limitations present more serious issues. They may prevent growers who wish to save seed from doing so, as well as from adapting, selecting and improving these varieties. A majority of growers who responded to the latest Organic Seed Alliance survey saved at least some of their own seeds and on average fulfilled at least 20 percent of their own seed needs. They are among the heaviest seed users. Many said that they would like to learn the seed arts and would consider becoming commercial seed growers.

Lastly, growers could unknowingly be violating IPR and, in the worst-case scenario, find themselves in legal trouble, as did those who allegedly violated Monsanto’s bag-tag restrictions on farm seed.

Rows of butternut squash gourds
‘Bigger Better’ butternut squash. Bred by Carol Deppe, Fertile Valley Seeds. Early 5-12 pound butternut with long thick necks. Matures reliably in Willamette Valley Oregon in spite of its large size.

The lack of clarity about whether each IPR agreement extends to third-party users may be even more troubling to retail seed houses. Furthermore, acting on an affirmative obligation to convey the restrictions to end users might not only add to overhead expenses but could also depress retail sales on the restricted varieties.

Retailers lack the inclination and the resources to police their customers and may be at risk if their obligation to wholesalers explicitly or implicitly conveys such responsibilities. Wholesalers’ use of overly broad language on their documents may have a chilling effect on seed savers who are aware of the issues challenging the seed trade. Even when they have no intentions of enforcing IPR on small-scale-seed savers, wholesalers may be trying to have the best of both worlds — using excessively broad language to discourage seed saving while at the same time not wishing to risk consumer backlash.

Why have so many seed retailers accepted use-restricted varieties? Because they could not otherwise obtain permission to sell these varieties, which are often considered indispensable by market growers. Trialing for alternatives is lengthy, costly and carries no guarantee of success, and refusing to sell varieties essential to growers risks heavy loss of sales.

Retailers are caught in a real bind, from which only those small, more ideologically driven companies who rely solely on their own seed production/growers and eschew wholesalers have been able to escape. Nor is the organic industry immune from IPR, as three large-scale international wholesalers — Bejo, Sakata and Enza Zaden (doing business as Vitalis) — prominently feature restricted varieties.

Increasing Transparency

I learned early in my career that my best customers were my most knowledgeable ones. They appreciated knowing exactly what they were getting from their seed company. They wanted clear variety descriptions, including honest acknowledgments of weaknesses. Many wished to know more about the sources of their seed. Is it local or international? Is it a large multinational corporation or small-scale farmer? As the Fedco catalog included more of this type of information, our business grew. I call this transparency: providing clarity about exactly what is being offered and why.

The lack of transparency about seed-use restrictions is a huge issue. I understand why the seed industry might prefer to ignore it and pretend there is no problem. But given the growing intrusiveness of IPR and the sad history of farmers who fought Monsanto, this would be very shortsighted. Greater transparency, between wholesalers and retailers and retailers and their customers, could enhance good will all across the trade. People have a right to know whether they are buying or simply renting seed and the obligations they are incurring.

If you are a wholesaler, what can you do? Use clear language on your bag tags and contracts. Do they restrict all third-party users, some third-party users or no third-party users? Say what you mean, mean what you say, and don’t ask for restrictions that you don’t need.

If you are a retailer, attempt to negotiate away unreasonable contract provisions. Don’t sign agreements asking you to perform what you are not capable of or inclined to. Identify the restricted varieties on your website and in your catalog and the nature of those restrictions that apply to third-party users.

Surely sharing any license or bag-tag restrictions on seed use is as important in a variety description as agronomic strengths and weaknesses. This should be easy and a major selling point for those who offer few or no use-restricted varieties. It will be harder for those companies who offer this service and will require the support of their customer service representatives — but I can’t think of a better way to build loyal customers than to educate them.

If you are a grower for whom the four seed freedoms matter, ask your retailers whether you are buying full rights to the seeds or are only renting them for restricted one-time use. If they can’t or won’t answer, look elsewhere and support those who are more transparent.

If you want to exercise any of the seed freedoms — not just rent seeds for one-time use — spend your dollars accordingly. If a supplier is offering a variety with restricted use, perhaps you can find the same variety offered unrestricted elsewhere or a nearly equivalent unrestricted variety.

Since the dawn of agriculture, we farmers have controlled our seeds. Each generation has stood on the shoulders of our forebears, observing, selecting and enhancing seed varieties in a shared commons of freely circulated knowledge and seeds. The loss of seed rights in our lifetime is the great closure of these commons. Our seed privileges, rights and responsibilities are in jeopardy of being utterly destroyed. It is up to us to fight back — to expand a supply of seeds that we can control and to restore our fundamental age-old rights.

Resources

Seeds

For descriptions and photos of OSSI-pledged varieties with links to the companies that sell each variety, visit the Seed page.

Books

Deppe, Carol. Breed Your Own Vegetable Varieties: The Gardener’s and Farmer’s Guide to Plant Breeding and Seed Saving 2nd ed. (Chelsea Green, 2000).

Deppe, Carol. The Resilient Gardener: Food Production and Self-Reliance in Uncertain Times (Chelsea Green, 2010). (Includes breeding for a number of corn, bean and squash varieties.)

Deppe, Carol. The Tao of Vegetable Gardening: Cultivating Tomatoes, Greens, Peas, Beans, Squash, Joy, and Serenity (Chelsea Green, 2015). (Includes breeding for organic systems, rejuvenating heirloom varieties, dehybridizing hybrids and tomato genetics and breeding.)

Kloppenburg, Jack. First the Seed: The Political Economy of Plant Biotechnology, 1492-2000 (2nd ed.), (University of Wisconsin Press, 2005). (The definitive book on control of seed in U.S.A. by Jack Kloppenburg, Professor Emeritus of Community and Environmental Sociology, University of Wisconsin-Madison. Jack is one of the founders of OSSI and a member of the board of directors.)

Articles

Open Source Success: Grow Varieties for Organic Systems by Carol Deppe, Acres U.S.A., January 2017. Join the Open Source Seed Movement: Growing, Breeding & Sharing Crop Varieties by Carol Deppe, Acres U.S.A., January 2016.

Websites

Open Source Seed Initiative.; Carol Deppe.

Sources of Intellectual Property Rights (IPR)

Plant Variety Protection (PVP) restricts propagation for sales. Brown bag exemption permits seed saving for personal use but prohibits donating or selling of those seeds. Breeders’ rights exemption permits variety to be used for selection and breeding.

Sources of Intellectual Property Rights (IPR)

Plant Variety Protection (PVP) restricts propagation for sales. Brown bag exemption permits seed saving for personal use but prohibits donating or selling of those seeds. Breeders’ rights exemption permits variety to be used for selection and breeding.

IPR Mechanisms & Policies, By Supplier 

Bejo: Contract contains clear language with comprehensive IPR prohibiting seed saving, propagating and using for breeding, also an explicit responsibility on the part of retailer to take affirmative action to ensure that third-party end-users adhere to these terms.

Cornell University: License allows retailer licensee to contract with its own seed growers to multiply and produce seed for these crops in exchange for a 10 percent royalty on retail sales. The license also establishes that the varieties are Cornell’s intellectual property and restricts retailers from doing further selection or breeding work on them.

Crookham: Contract restricts purchaser to growing a single crop from the seeds. It does not allow the purchaser or any third-party user to produce additional seed from the Crookham varieties.

Floranova: Bag tag prohibits customers from using seeds for reproduction in any manner without the prior written consent of Floranova. Floranova holds its customers to these terms, but does not restrict third-party users from saving the seeds from their planting.

Sakata: Bag tag restricts customer use to the production of a single crop. Prohibition against propagation for seed saving applies to third-party users.

Syngenta: Bag tag limits permissible use of the seed to the production of a single commercial crop. I infer that this limitation applies to all third-party users. (see below).

Syngenta Flowers: Bag tag limits permissible use of the seed to the production of a single commercial crop. Confirmed by email that the restriction applies to whomever opens and plants (or otherwise uses) the seed. It is only to be used for a single commercial crop and may not be saved. Restrictions apply to all third-party end-users.

HM.Clause/Tezier: Reverse side of invoices as well as bag tags contain IPR restrictions against saving and propagating seed and using it for breeding purposes.

Genesis: Bag tag grants permission to use the seeds only for a single planting. Follow-up with Genesis indicated the restriction is limited to commercial large-scale propagation and does not apply to growers and home users saving seeds for personal usage.

IPR Varieties by Crop & Supplier 

The list below represents only the tip of the iceberg of IPR varieties offered to the trade by these and other suppliers. Varieties are indicated as either F-1 hybrids or open-pollinated (OP) varieties. OP varieties are often available from multiple suppliers, some of whom likely do not restrict them. OP heirlooms are in italics.

Artichoke
Imperial Star, open-pollinated, Genesis
Basil, sweet
Round Midnight Basil, F-1 hybrid, HM.Clause/Tezier
Sweet Basil conventional, open-pollinated, Sakata
Sweet Basil organic, open-pollinated, Sakata
Sweet Dani Lemon Basil, open-pollinated, PVP
Beans
Masai, open-pollinated, Syngenta
Beets
Boldor, open-pollinated, Bejo
Bull’s Blood conventional, open-pollinated heirloom, Sakata
Bull’s Blood OG, open-pollinated heirloom, Sakata
Chioggia, open-pollinated heirloom, Sakata
Red Ace, F-1 hybrid, Sakata
Robin, F-1 hybrid, Sakata
Touchstone, open-pollinated, Sakata
Broccoli
Arcadia, F-1 hybrid, Sakata
Bay Meadows, F-1 hybrid, Syngenta
Fiesta, F-1 hybrid, Bejo
Green Valiant, F-1 hybrid, Sakata
Gypsy, F-1 hybrid, Sakata
Broccoli, Romanesco
Veronica, F-1 hybrid, Bejo
Brussels Sprouts
Diablo, F-1 hybrid, Bejo
Gustus, F-1 hybrid, Syngenta
Hestia, F-1 hybrid, Bejo
Cabbage
Bartolo, F-1 hybrid, Bejo
Deadon, F-1 hybrid, Bejo
Gonzales, F-1 hybrid
Gunma, F-1 hybrid, Bejo
Melissa savoy, F-1 hybrid
Super Red 80, F-1 hybrid, Sakata
Wirosa, F-1 hybrid, Bejo
Calendula
Maya Orange, open-pollinated, Genesis
Carrots
Mokum, F-1 hybrid, Bejo
Napoli, F-1 hybrid, Bejo
Over the Rainbow has elements of Bejo’s Rainbow Mix in it, a mix with F-1 hybrids
Purple Haze, F-1 hybrid, Bejo
White Satin, F-1 hybrid, Bejo
Yaya, F-1 hybrid, Bejo
Yellowstone, open-pollinated, Bejo
Cauliflower
Candid Charm, F-1 hybrid, Sakata
Graffiti, F-1 hybrid, Syngenta
Snow Bowl, F-1 hybrid, Sakata
Symphony, F-1 hybrid, Syngenta
Celery
Tango celery, open-pollinated, Bejo
Celery, cutting
Afina, open-pollinated, Bejo
Coriander
Caribe, open-pollinated, Bejo
Corn
Ambrosia sweet corn, F-1 hybrid, Crookham
Bodacious R/M sweet corn, F-1 hybrid, Crookham
Honey Select sweet corn, F-1 hybrid, Syngenta
Incredible R/M sweet corn, F-1 hybrid, Crookham
Kandy Korn sweet corn, F-1 hybrid, Syngenta
Robust 98114W popcorn, F-1 hybrid, Crookham
Serendipity sweet corn, F-1 hybrid, Syngenta
Silver Queen sweet corn, F-1 hybrid, Syngenta
Sugar Buns sweet corn, F-1 hybrid, Crookham
Cosmos
Cranberries Double Click, open-pollinated, HM.Clause/Tezier
Double Click Mix, open-pollinated, HM.Clause/Tezier
Double Click Rose Bonbon, open-pollinated, HM.Clause/Tezier
Cucumber
Ministro, F-1 hybrid, Sakata
Silver Slicer, open-pollinated, Cornell University
Dahlia
Harlequin Mix, open-pollinated, Syngenta Flowers
Endive
Olesh Tres Fine Maraichere, open-pollinated, Genesis
Kale
Darkibor kale, F-1 hybrid, Bejo
Redbor kale, F-1 hybrid, Bejo
Winterbor kale, F-1 hybrid, Bejo
Kohlrabi
Kolibri, F-1 hybrid, Bejo
Leeks
Lancelot, open-pollinated, Bejo
Lincoln, open-pollinated, Bejo
Marigolds
Inca II, open-pollinated, Syngenta Flowers
Melon
Arava melon, F-1 hybrid, Genesis
Athena muskmelon, F-1 hybrid, Syngenta
Mustard
Osaka Purple, open-pollinated, Genesis
Onions
Ailsa Craig, open-pollinated heirloom, Bejo
Expression, F-1 hybrid, Bejo
Patterson, F-1 hybrid, Bejo
Prince, F-1 hybrid, Bejo
Red Bull, F-1 hybrid, Bejo
Red Marble, F-1 hybrid, Bejo
Redwing, F-1 hybrid, Bejo
Talon, F-1 hybrid, Bejo
White Wing, F-1 hybrid, Bejo
Oregano
Zaatar, open-pollinated, Genesis
Pac Choi
Joi Choi, F-1 hybrid, Sakata
Parsley
Krausa, open-pollinated, Bejo
Plain Leaf, open-pollinated, Sakata
Root parsley
Arat, open-pollinated, Bejo
Peas, Sugarsnap
Sugar Heart, open-pollinated, Syngenta
Super Sugarsnap, open-pollinated, also PVP, Syngenta
Peppers
Flavorburst, F-1 hybrid, Bejo
Gilboa, F-1 hybrid, Genesis
Peacework, open-pollinated, Cornell University
Tiburon, F-1 hybrid, Sakata
Pumpkins
Diablo, F-1 hybrid, Sakata
Wee-B-Little, open-pollinated, also PVP
Radicchio
Fiero, F-1 hybrid, Bejo
Indigo, F-1 hybrid, Bejo
Radishes
Cheriette, F-1 hybrid, Sakata
Cherry Belle, open-pollinated, Sakata
Easter Egg, open-pollinated, Sakata
French Breakfast, open-pollinated heirloom, Sakata
Gloriette radish, F-1 hybrid, Sakata
White Icicle, open-pollinated, Sakata
Shallots
Camelot shallot, F-1 hybrid, Bejo
Salpiglossis
Royale Mix, open-pollinated, Floranova
Salvia
Seascape Mix, F-1 hybrid, Floranova and Syngenta Flowers
SeaOats
Sea Oats, open-pollinated, Genesis
Spinach
Avon, F-1 hybrid, Sakata
Olympia, F-1 hybrid, Sakata
Space, F-1 hybrid, Bejo
Summer Squash and Zucchini
Gentry summer squash, F-1 hybrid, Syngenta
Raven zucchini, F-1 hybrid, Syngenta
Spineless Beauty zucchini, F-1 hybrid, Syngenta
Sunburst Patty Pan, F-1 hybrid, Syngenta
Y-Star Summer squash, F-1 hybrid, Genesis
Swiss Chard
Fordhook Giant, open-pollinated, Sakata
Rhubarb conventional, open-pollinated heirloom, Sakata
Rhubarb OG, open-pollinated heirloom, Sakata
Tomatoes
Bobcat, F-1 hybrid, Syngenta
Esterina cherry tomato, F-1 hybrid, Genesis
Magic Mountain, F-1 hybrid, Bejo
Super Sweet 100, F-1 hybrid, Syngenta
Sweet Treats cherry tomato, F-1 hybrid, Sakata
Watermelon
Quetzali, open-pollinated, also PVP, Syngenta
Sangria, F-1 hybrid, Syngenta
Sweet Favorite, F-1 hybrid, Sakata

This article appeared in the January 2019 issue of Acres U.S.A. magazine.

CR Lawn founded the Fedco Seeds Co-operative in 1978 and served on its management team for 40 years. Until his retirement in June 2018, he wrote most of the variety descriptions in the Fedco catalog. He currently serves on the Board of Directors of the Open Source Seed Initiative (OSSI).