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Why Access and Benefits Sharing is Neither

Access and Benefits Sharing

This is currently at the heart of The Convention on Biological Diversity (CBD). In principle, what it means is that the world’s genetic resources are available for everyone to use, and everyone is guaranteed access. In addition, there is a predefined mechanism that ensures people who work with biodiversity are paid fairly for what they do. While this sounds very laudable, it couldn’t be any further from reality.

The Collection

The first step was defining what exactly were the world’s genetic resources, and putting them in a central place. The place was the global seed vault in Svalbard, Norway. The plant materials were supposed to be donated by their owners, but this too was far from reality. Most countries just declared their genetic resources as owned by the treaty, so all that had to be done was find and seize them.

In other cases the person in possession was deemed the ‘owner’, and consent was all that was necessary was to obtain a sample. In almost all cases there insufficient information for informed consent. It was simply common practice to share samples of seeds with others. In addition, these often involved seeds bred hundreds of years before, and it was impossible to get the consent from the original owner(s).

In the US the head of the largest Seed Saving organization the Seed Savers Exchange refused to give his consent, so he was thrown out of the organization. In an equally unfriendly way, the largest European organization Arche Noah lost their collection. Organizations were infiltrated, seeds were seized or samples of everything obtained. Public and private seed collections were absorbed, and often every effort made to ensure unofficial seeds were put beyond use. In the first Golf war, Iraq’s seed collection was bombed, to put it out of use. It was really impossible for anyone to say no to having their seeds seized, and original contributors of seed samples to collections were not consulted.

Access

In principle, anyone who wishes to work with biodiversity can request a seed sample from a local genebank. It’s the assumption that the use of seeds will be monetized, so for example people suspected of just being simple gardeners may not have access. It is however a very firm principle that the seeds belong to the CBD, and those requesting a seed sample are only borrowing the genes inside the seeds. This is often established on the national level by treaty, and sometimes it’s necessary to also sign a written agreement so complicated that many lawyers could not say what the consequences of it might be. The use of the seeds come with administrative requirements beyond the ability of most seed savers, independent plant breeders or small businesses.

Many seeds currently in genebanks are degrading. All seeds need to be regenerated periodically, or they will die. In addition the methods used are the most cost effective and sometimes flawed, resulting in the loss of genetic information. In order to truly preserve seeds, regeneration needs to be done ‘in-situ’, that is on real farms or gardens. Seeds regenerated in geenbanks do not adapt to changes in climate or the emergence of new pests and diseases.

The principle behind obtaining seed samples from a genebank is that the genes inside the seeds will eventually be used commercially, and royalties will need to be paid for this. If the genetic material is eventually sold, for example to a home gardener, this person will only have a legal right to plant the seeds and use the products of this. The end user does not have the right to save seeds, replant them, share with others or otherwise use the biodiversity.

The proper use of biodiversity is enforced with DNA tests. Just like it’s possible to determine who your ancestors were with a DNA test, in the same way it’s possible to determine where your seeds came from. Since people plant seeds and use biodiversity, there are major privacy implications with these DNA tests.

In principle, ordinary seed savers and individuals do not have to follow these rules, but again the reality is something very different. Exactly who is a simple seed saver and who is an entrepreneur, or an actor, or a user of biodiversity is under intense discussion at the moment. It’s not clear who has to follow what rules. In addition, everyone is bound by the legality of obtaining seed samples from a genebank, and everyone is subject to a lawsuit or criminal prosecution.

In addition, since Access and Benefit Sharing amounts to privatization, someone owns the genes in the seeds you are using. That means, even if you are a seed saver or individual and not subject to the rules and administration of using those seeds, you still need to think about who is ultimately going to get the royalties, what conditions are going to be imposed on the end user, what the royalties are going to cost and so on. Plant breeding is difficult enough, and plant breeders often struggle to find the single gene they need for a particular trait. Combining all of these aspects makes things almost impossible.

There is the argument that yes, plant breeding and seed saving will become too complicated for an individual to manage, so what’s necessary is to joining an association or organization. The reality is everyone working with seeds needs to involve themselves with hard core capitalism.

Benefit Sharing

The benefit sharing part are the royalties someone pays. In theory you, or the organization you belong to, can negotiate a cut of the profits. This is assuming you produce a commercially product. Since the seeds are ultimately owned by the worlds wealthiest families and individuals, they will certainly benefit the most.

In theory, all the world’s biodiversity has been collected and cataloged as part of the CBD. The reality is the US is not a formal part of this treaty, but in fact offers a great deal of cooperation. This means under some circumstances, some biodiversity in the US is still ‘free’. This offers some possibilities to work around the CBD, but as a result countries all over the world cracking down on importing ‘illegal’ seeds, creating a cat and mouse game that’s adding another layer of complexity on everything else.

Unworkable

This entire approach is unworkable. The world has changed since the idea of Access and Benefit Sharing first came about, and it’s not necessary to fund biodiversity in this way anymore. There is a huge amount of damage caused by the collection of biodiversity and storing in genebanks. There are many flawed assumptions about the level of cooperation people will offer, and what technology is capable of achieving.

Our house is on fire, and it’s time to move on from all of this.

Simply maintaining all seeds as public domain was a viable solution for hundreds of years, and people are able to find their own motivation for working with biodiversity on these terms.

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Organic Potato Logic

The most contentious pesticides used on potatoes have been phased out in Europe, meaning there’s not much difference between organic and conventional. In addition, more blight resistant varieties have become available in the last few years.

Certification for organic varieties on the other hand requires seeds and seed potatoes be regrown for 3 years under organic conditions before they can be sold as organic. Mostly ‘organic conditions’ is an administrative issue, requiring fees and inspections. I’ve been involved in the lobbying of this issue, and it’s intended to give a commercial advantage to those who have organic planting materials.

Now, suddenly, organic potato growers are at a disadvantage because they can’t use the newer blight resistant varieties. They’re stuck growing the older varieties where certified organic planting material is available. Somehow this is ‘news’, and is featured in an article here, on a website that’s almost unreadable because of the volumes of fake news there. Their proposed solution is we should buy more expensive organic potatoes, grown from outdated varieties with lower yields, in order to make it more profitable for growers to grow certified organic varieties that are not significantly different from conventional varieties.

I think the message here is also that when you buy organic products, you support:

  • Fake News
  • Deceptive and Misleading Lobbying
  • Products that Unfairly Compete with Small and Local Producers
  • Overpriced Products in Supermarkets Displacing Cheaper Ones

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EU Inception Impact Assessment

Introduction

This post is directed towards at least two very different audiences. The first is the EU Commission as a formal response to a possible revision of plant and forest reproductive material legislation (also known as the EU Seed Law). The second audience are the readers in general of this blog, and since I haven’t posted on this in a while, this means I also have to provide a lot of background information. Since my readers fall into a number of categories, you may even consider there are many more than two different audiences.

Everyone reading this has their own expectations about what I should say and how I should say it, and probably many will be disappointed. All I can say, like usual, is the comments section below is open.

Response to the Commission Proposal

For the members of The Commission reading this, let me first say I choose the baseline policy choice: Do Nothing. The remainder of this post is my justification.

Background

In 2013 there was a legislative attempt to change the EU seed laws. Recollections vary, but this attempt failed. Few people were happy with what was proposed. On a technical level, this was an attempt to replace 12 EU directives with a regulation, which would have meant little or no space for local/national interpretation, something that nearly all stakeholders found problematic.

Shortly after this food industry representatives came to an agreement with the Danish Seed Savers to reinterpret the 12 EU directives into local Danish law. Many including myself consider this to be a ‘Gold Standard’ in legislation. Because of how the EU works, this means in principle any European can open a seed company in Denmark and operate under local Danish laws.

Shortly after this was the Organic Regulation. I was politely asked not to participate in these discussions, which was fine because I don’t have a lot of interest in certified organic food. What was clear was that civil society was all but excluded from these discussions. In reality these discussions were on adapting EU Seed Laws to standards established by the Convention on Biological Diversity. In simple terms, they were largely between the seed industry and the world’s wealthy families and individuals, who are in the process of privatizing biodiversity. Since not many people care about certified organic food, there was not a lot of attention paid to this. An interesting ‘third party’ in these discussions was Copa-cogeca, Europe’s largest farmers union, whose position is probably closer to that of civil society than any of the other players. There was quite a fight between the various parties over the Organic Regulation, that is partly still ongoing, but the Organic Regulation has passed and will come into force.

It would be one thing if the wealthy families of the world formed their own political party, or otherwise their own identity. At least then we would all know who we are talking to and negotiating with. In the case of EU seed laws, the wealthy families have simply taken over civil society’s seed movements, and now use them as a mouthpiece for their own political goals. The entire seed movement in many parts of the world has been all but decimated. In Europe the main mailing list the seed movement uses to communicate has been taken over by the ultra-wealthy and all discussions are managed. I think this is short-sighted, because I think an intact seed movement could be a benefit to a lot of people in a lot of ways. I also think it’s dishonest for the ultra-wealthy to pretend to be in agreement with civil society. It’s just a big lie.

It’s interesting how the battle over our food has become something of a microcosm of society as a whole, and how there won’t be any solutions until world governments figure out how to tax wealthy people and corporations. It’s also interesting EU seed law has become a battle between the world’s ultra-wealthy and corporations, when the ultra-wealthy own the corporations. It’s only the legal definition of a corporation that keeps them from teaming up together.

Convention on Biological Diversity (CBD)

Everything depends on the next meeting of the CBD in Kunmig, China in October. Hopefully they will decide the very problematic privatizing of the world’s biodiversity should be scraped. This would be in the interests of civil society, and strangely enough also the seed industry in Europe. I’m pretty sure this would also be what the farming union Copa-cogeca would prefer as well. This is really the most important issue, more important than any relaxation of seed laws in Europe or elsewhere. This privatizing of biodiversity is much worse than any patents, IPR, seed laws or anything similar we currently face. Literally we are facing the ultra-wealthy owning all the worlds biodiversity, dolling it out gene by gene, and turning our food and nature into something that’s marketed by startups like energy saving light bulbs, electric cars or new mobile phone features.

Being able to implement the privatizing of biodiversity depends on being able to achieve many of the things civil society have been working on for a long time. For example patents, PVP, other IPR and limitations on what farmers can grow all stand in the way of implementing privatization. The ultra-wealthy are working very hard on these issues, fraudulently, in the name of civil society.

Civil society therefore needs to do an about face, and take positions counter-intuitive when compared to the past. We need to join forces with anyone who opposes the privatization biodiversity, and this means standing by the seed industry and Copa-cogeca for the time being. The seed industry did work with us on changing the Danish seed laws, and has indicated this could be a model for the future. The ultra-wealthy are currently standing in the way of this, and any future change in EU seed laws puts the current Danish seed laws at risk. If the CBD decides to abandon privatization, we will certainly want to reconsider.

It’s also to the advantage of civil society to (carefully) let the battle between corporations and ultra-wealthy rage on and wear out both sides.

Current Legislative Proposal

While Seed Law reform in Europe is desperately needed, this is not the time or way for it to be done. This is something the ultra-wealthy has to do, and win. There is no place for the opinions of civil society, and these have been successfully silenced.

Reform of the EU seed law is something that should be cause for celebration. Current EU seed laws date back to WWII and the eugenics program. The current EU seed law has genetic tests called DUS and VCU. DUS or Distinct, Uniform and Stable is the test that gives our food blond hair and blue eyes. VCU or Value for Cultivation and Use gives our food superior intellect. These tests don’t serve any purpose, and should be scraped. We are still undergoing a Holocaust in our food systems. Freeing ourselves from this has parallels with every other form of racism in society today.

Instead of celebrating, we have to oppose the changes in order to prevent privatization under the Convention on Biological Diversity. This isn’t a cause for celebration, it’s not a news story, it’s nothing. We have no choice but sit back and wait to be screwed one way or another.

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Kunming CBD Wish List

In October Convention of Biological Diversity delegates will travel to Kunming for the delayed Conference of the Parties. In the hope my opinion matters, here’s a wish list of what I think needs to be accomplished in order to stimulate biodiversity.

End Nagoya Protocol: This is so complex and theoretical that no one understands what it means. This has effectively stopped the legal transfer of genetic material between people, across many scientific disciplines, and has brought the work of many people to a complete standstill. Not only should this be ended, but there should be no replacement protocol considered.

End or Adjust Worldwide Plant Health Restrictions: I have not been able to identify any working document justifying these restrictions. There doesn’t seem to be any peer-reviewed research suggesting such overly broad restrictions will have an impact on plant health, nor do there seem to be any strategy documents detailing what is attempting to be accomplished. If there are true plant health risks, and some measured restrictions might be of help mitigating these risks, then restrictions might be justified. Where there are no risks, there should be no restrictions. Where there are risks, these should be clearly explained and restrictions justified. Above all else, these restrictions should be open for democratic discussion and debate.

DNA testing and seed sample collection cannot be justified for reasons of plant health, and these should be stopped. Above all else, stop lying. If it’s not for reasons of plant health, be honest about what it’s for.

Stop DNA testing of seeds without permission of grower: DNA testing of seeds has enormous privacy implications for people using those seeds, just like DNA testing of people does. There should be no databases or analysis of those seeds unless requested by the user.

Stop the Open Source Seed Initiative: Seeds and documentation have been collected for this under misleading circumstances, and the people providing this are not aware of the true consequences of their participation. Return these seeds to the public domain.

Return all genetic materials to the public domain: Genetic materials that have been collected under the auspices of the CBD have been done so under misleading circumstances. It’s unlikely very many people have given their materials up with fully informed consent. These materials have always existed in the public domain, and the CBD has no right to them. The rules the CBD have placed on these materials makes them unusable for a great many people who could otherwise be working seriously on the greatest existential crisis the world has ever faced, global warming and biodiversity loss. The CBD should either be helping people with their work, or get out of the way. In the current direction, the CBD is a substantial hindrance.

Before the CBD these materials were always considered in the public domain. Collections were maintained and paid for by the companies making profits from their exploitation, and everyone had the right to receive free samples. We need to return to a similar situation, combined with collections funded with taxes imposed on the wealthy.

Stop all administrative burden: There should be no administrative burden for using biodiversity. No sMTA’s, no registrations or declarations. Biodiversity belongs to everyone, and no one has the right to demand paperwork just in order to use it.

Stop all patents on life: Genes exist in nature. Collecting and editing these genes do not constitute invention or innovation. Genes are naturally occurring and should not be subject to patents. Patents give too much power to the patent holders. It’s a ridiculous situation that governments must fund the research leading to COVID vaccinations, then companies are allowed to patent them and restrict their manufacture and use. It gives too much power to pharmaceutical companies to overcharge patients and ignore unprofitable treatments, especially in places without universal health care. It’s unreasonable to expect people who work to promote biodiversity to contend with patent restrictions. We need to pay for this sort of R&D with taxes on the world’s wealthy, or simply find another way.

It’s very possible millions of people in the world may die because patents on COVID vaccinations might prevent their efficient manufacture and distribution in poor countries. This must not be allowed to happen, and in any case must never happen again.

No payments for biodiversity services: The expectation of such payments was probably a factor in Bolsonaro’s encouraging the destruction of the Amazon, and there should be no payments to him for stopping what he’s doing or reversing the damage. Such payments should be discussed and debated in a democratic way, and paid for from taxes on the wealthy. There should be no automatic mechanisms that might stimulate biodiversity loss.

Existential crisis: Above all else remember the world and it’s biodiversity are in a real crisis. We all know we need to do a lot more than just stopping the release of greenhouse gases, we need to start removing CO2 from the atmosphere. If we aren’t going to wait for Elon Musk to develop the technology to suck all the CO2 out of the atmosphere, our only choice is to develop biodiversity in such a way that CO2 is sequestered in healthy farming soils, old growth forests and other living areas of biodiversity. Please get serious and act now.