Intellectual Property Rights and Bio Commons: Open Source And Beyond

Abstract

This article advocates the use of an open source model as an alternative intellectual property rights regime for seeds and plant varieties. The BioLinux model suggested in this article is based on open source principles. The article traces the evolution of intellectual property rights and examines the current situation in the context of TRIPS and controversies over patents on Genetically Modified Plants. It is pointed out that as TRIPS does not define the key term invention, invention in the context of plant genetic resources is problematic. It gives examples from various laws on this. It examines the Farmers' Rights and how the stronger IP regimes are resulting in restricting/negating Farmers' Rights. The article examines the Freedom To Operate and anti-commons in germplasm and the importance of Freedom To Operate for plant breeding in public interest. It introduces the idea of Open Source and use of Open Source Licenses. The applicability of Open Source for agricultural biodiversity, particularly in germplasm, seeds and plant varieties is highlighted. The BioLinux model is suggested as an alternative model. It is suggested that participatory plant breeding and innovation by farmers can be combined with an Open Source approach to develop relevant plant varieties, to conserve germplasm and to propagate. It is contended that Open Source can provide workable models in non-software contexts also.

[This article forms part of the author's research on open source models in non-software contexts.]

Keywords: TRIPS, WTO, GMO, patent, plant variety, seed, germplasm, farmers' rights, anti commons, open source, BioLinux, Linux, GPL, plant breeding, common heritage