Key Cases - Post-Monsanto: A Farmer’s Right to the Seed (3/3)
"Farmers in the Field at Dusk" by UnitedSoybeanBoard. https://www.flickr.com/photos/95352257@N06/10060059944
In 2022, Monsanto v Schmeiser still remains the leading case in Canadian intellectual property (IP) law concerning patenting life. Judicially considered 131 times [1], it has served as a precedent in a range of proceedings both within the food and agricultural sector [2] and far beyond. [3] With its decision, “the Supreme Court … aligned Canada's patent law on biotechnological inventions with that of” other Western nations. [4] However, it did not do so without consequence. Schmeiser spent the remainder of his life, until his death in October 2020, fighting what he felt was a “moral perversity of current interpretations of patent laws”. [5] His main concern was farmers’ rights, particularly the implication of the judgment on a farmer’s “traditional right to plant and reuse seed”. [6] This sentiment is shared by many in the agricultural sector [7] who fear that the trajectory toward strengthened IP rights has meant that “small-scale farmers …tend to be overlooked” in favour of multinational corporations. [8] The Monsanto “outcome was [just one example of] the progressive exclusion of the farmer from the production of seed [and] the negation of his or her role as an autonomous plant breeder”. [9]
The Right to the Seed and Farmer Autonomy
Plant innovation has been the job of the farmer for nearly 10,000 years. [10] The practice of setting aside a portion of the harvest for the next season’s sowing to develop a seed that produces higher yields and more tolerant crops has been observed since the Neolithic period [11]. It is only in recent years that the West has begun to see a clear “separation of … farming and breeding” [12], creating a tension between intellectual property rights and farmers’ rights.
The trend toward increased “intellectual property protections [has] ultimately resulted in an increased use of gene-licensing agreements”. [13] As was the case in Monsanto, corporations use their patent protection to enter into technology use or seed licensing agreements which are contracts that often “prohibit saving seeds for any purpose” [14] upon purchase of the patented material. This has both cultural effects, as seed-reuse is a custom for many, and tangible economic effects as the seeds are “economically sterile" [15]; farmers are forced to repurchase new seeds every season [16], a practice Schmeiser himself had not engaged in for many years prior to the Supreme Court decision. [17]
Not only is the traditional practice of seed breeding infringed upon, so too is “farmer independence and autonomy”. [18] These licensing agreements contain a multitude of stipulations concerning both the use of the seed, and rules for the “post-harvest use and sale of the patented crop”. [19] Monsanto’s TUA for Roundup Ready Canola included clauses stating that the seed could only be used as a monocrop, and that the sale of the crop could only be done if the purchaser was authorized by the company. [20] Despite all of the work that farmers put into crop production, companies like Monsanto remain in control. [21] The seed, which once belonged to the farmers, now “remains the property of the company”. [22]
Some may wonder why farmers enter into these agreements if their right to seed, as recognized by the United Nations in Article 19 of the Declaration on the Rights of Peasants and Other People Working in Rural Areas, are in turn being infringed upon. [23] The answer is that farmers who choose not to enter into these agreements are at a production disadvantage. Even those who do not enter into agreements are affected by the patent protection. In 2003, as the Monsanto case was preparing for the Supreme Court, the UN Food and Agriculture Organization “reported that canola farmers in Western Canada are no longer able to produce organic varieties” .[24] Farmers are increasingly stripped of their choice to farm organically as the overwhelming presence of genetically modified seeds makes it “more and more difficult” for the two practices to coexist. [25]
The Future of Agricultural Bioengineering in Canada
Though Monsanto no longer exists in name as the corporation merged with the life sciences company “Bayer” in 2018, the dominance of large bioengineering companies and subsequent concern for farmers’ rights remains. [26] As biotechnology companies continue to grow in power and IP rights in the agricultural sector continue on their path toward stringency, farmers’ rights are made more vulnerable. The Canadian Biotechnology Advisory Committee has put forth recommendations like the inclusion of “a farmer’s privilege provision … in the Patent Act that specifies farmers are permitted to save and sow seeds from patented plants” to avoid such vulnerabilities. [27] However, no such measures have been taken. Until changes are made, what was once considered “to be one of [the] farmer’s highest duties [will continue to be] recognized as a crime” [28].
Endnotes
[1] See Monsanto Canada Inc. v Schmeiser, 2004 SCC 34.
[2] See McCain Foods Limited v J.R. Simplot Company [2021] FCA 4, FCJ 37.
[3] See Bristol-Myers Squibb Co. v Canada (Attorney General), 2005 SCC 26; see also Varco Canada Ltd. v. Pason Systems Corp, [2013] FC 250, 236 ACWS. (3d) 714.
[4] Eugene C. Lim, “Harvesting the “Forbidden Fruit” of Biotechnology Research: Genetic Engineering, International Law and the Patentability of Higher Life Forms in Canada” (2012) 10 Can. J. L. & Tech. 205 at 208.
[5] Madeleine Sheinfeld, “Remembering Percy Schmeiser: Farmer and Hero,” foodtank (November 2020), online:<foodtank.com> [perma.cc/KWK8-JYLG].
[6] Javier Lezaun, “Pollution and the Use of Patents: A Reading of Monsanto v. Schmeiser” in Nico Stehr, ed, Biotechnology: Between Commerce and Civil Society (New York: Routledge, 2004) 135 at 138.
[7] See Peter Straub, “Farmers in the IP Wrench: How Patents on Gene-Modified Crops Violate the Right to Food in Developing Countries” (2006) 29 Hastings Int'l & Comp. L. Rev. 187 at 188.
[8] Graham Dutfield, “Farmers, Innovation and Intellectual Property: Current Trends and their Consequences for Food Security” in Fabien Girard & Christine Frison, eds, The Commons, Plant Breeding and Agricultural Research: Challenges for Food Security and Agrobiodiversity (London: Routledge, 2018) 21 at 22.
[9] Lezaun, supra note 6 at 141.
[10] Dutfield, supra note 8 at 21.
[11] See Ibid at 22.
[12] Ibid.
[13] See Justin T. Rogers, “The Encroachment of Intellectual Property Protections on the Rights of Farmers” (2010) 15:1 Drake Journal of Agricultural Law 149 at 162.
[14] Peter, W.B. Phillips, “Farmers’ Privilege and Patented Seeds” in Peter W.B. Phillips & Chika B. Onwuekwe, eds, Accessing and Sharing the Benefits of the Genomics Revolution (Dordrecht: Springer, 2007) 49 at 50.
[15] Lezaun, supra note 6 at 140.
[16] See Rogers, supra note 13 at 162.
[17] See Monsanto, supra note 1 at para 60.
[18] Dutfield, supra note 8 at 35.
[19] Rogers, supra note 13 at 162.
[20] See Monsanto, supra note 1 at para 11.
[21] See Rogers, supra note 13 at 150.
[22] Ibid at 151.
[23] See Hans Morten Haugen, “The UN Declaration on Peasants’ Rights (UNDROP): Is Article 19 On Seed Rights Adequately Balancing Intellectual Property Rights and the Right to Food?” (2020) 23 J World Intellect Prop. 288 at 289.
[24] Claire R. Parfitt & Daniel F. Robinson, “Trade-Related Intellectual Property: Implications for the Global Seed Industry, Food Sovereignty and Farmers’ Rights” in Guy M. Robinson & Doris A. Carson, eds, Handbook on the Globalisation of Agriculture (United Kingdom: Edward Elgar Publishing Inc., 2016) 291 at 303.
[25] Ibid.
[26] See Nienke Busscher, et al, “Civil Society Challenges the Global Food System: The International Monsanto Tribunal” (2020) 17:1 Globalizations 16 at 25.
[27] Phillips supra note 14 at 59.
[28] Rogers, supra note 13 at 150.