Breeders' rights and open source crop germplasm
The freedom to operate (FTO) and the costs of acquiring and protecting intellectual property (IP) has become a major concern among both private and public plant breeders, especially in the IP intensive transgenic crops. Despite the developments in biotechnology, crop breeding still remains a sequential process where the best new varieties build on the successful varieties of the past. Given this breeding process, if FTO reduces the ability of breeders to access the best germplasm this could slow the rate of global crop improvement in both transgenic and non-transgenic crops. This potential problem has led many agricultural science leaders to raise concern about the possibility of an anti-commons developing because of growing freedom to operate issues.One of the solutions that is proposed for the growing FTO issue in plant breeding is the development of “open source” research platforms similar to those that led to the development of the Linux computer operating system. With an open source research process anyone is able to use the research platform to develop commercial products but any improvements made to the research platform become part of the platform for future users. The proponents of this approach, such as CAMBIA, argue that it will maintain access to critical intellectual property and allow optimal sharing of knowledge to take place.In this paper we examine the intellectual property rights associated with crop germplasm and varieties in Canada. We show that the “breeder rights” that are built into many current systems of breeder rights systems create a de facto open source system. This system allows breeders to use previously released varieties as breeding material for their own breeding programs allowing them to improve their own germplasm base. Once this is done, and a new variety is released from the program, it then becomes available for other breeders to use in the same manner. Few would argue that this system has not had a long history of success.As a counterfactual we consider the case where provisions of the UPOV 1991 act are used to give plant breeders the rights to not only protect their current varieties from being illegally copied but would also give them claim over any future varieties developed that use their variety as breeding material. In the factual, a three stage model has two public sector breeders seeking to maximize the benefits of their varieties over a heterogeneous group of iii farmers. In the first stage of the model the breeders decide the optimum amount of germplasm to share between each other. The second stage of the model requires the breeders to decide the optimal level of yield it should set as a plant breeding target. In the final stage farmers make an adoption choice basing their decision on the variety that best suits their farm. Backward induction is then used to solve both of the models. Applying the results of this simulation to the wheat plant breeding system in western Canada, shows that such a revised breeders’ rights system would quickly lead to a large number of potential owners for each variety released, which would then increase transactions costs and eventually lead to an anti-commons or FTO issue. In the case where there are no intellectual property rights on varieties breeders are able to produce a variety that more farmers will adopt because breeders’ costs will be lower due to germplasm sharing. Once intellectual property rights are introduced into the system, breeders choose to reduce the amount of variety sharing, which then reduces the number of farmers who would adopt the new variety, thus decreasing the benefits for farmers. Given this outcome, jurisdictions that implement the provisions of UPOV 1991 which may hinder FTO, may find benefits from developing other legal measures to maintain an open source type access to germplasm.
open source, plant breeder's rights, germplasm, UPOV, essential derivation
Master of Science (M.Sc.)