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Genetically modified crops - February issue

Wayne Parrott wparrott at uga.cc.uga.edu
Wed Feb 10 17:31:14 EST 1999

Ben David wrote:

> Wayne Parrott wrote:
> > <deletia>
> >
> > > I was pointing out that, although I may have
> > > potentially infringed on the original owner's (still debatable) IP rights, I
> > > wasn't getting something for nothing, since I had invested money, care and labour
> > > in growing the tomatoes.
> > >
> >
> > IP protects new genetic combinations (traditional or otherwise) that are put together
> > intentionally by a breeder and would not exist otherwise.  The protection accorded
> > such varieties is analogous to copyrights.  As an example, think video tapes.  You can
> > go to the rental store and rent a video tape of the latest movie, but you cannot make
> > copies of the video and sell them..  I hope you would never argue that since you "had
> > invested money, care and labour in" copying the videotapes, that you had a right to
> > sell them.
> Ummmm:
> (1) I buy oil paints from Winsor Newton, but they have no rights to the picture I create.
> Growing plants is not as passive as watching a video (in fact, there's not much that's as
> passive as watching a video...)

Your analogy is actually quite good.  In this case, the old varieties the plant breeders use
as parents in their breeding programs are analogous to the oil paints you buy.  Once the
breeders have put them together into new combinations (like you put the oil paints together to
create a painting) the breeder-- not the owner of the old varieties, owns the end result,
exactly like you would own the painting you would produce.

You don't infringe IP by growing the plant-- just like you do not infrige IP by watching a
video or by looking at the painting you made.

However, if you harvest the seed and sell them for someone else to plant, you do infringe IP,
just like you would if you copied the video you had rented.  Likewise, someone who
photographed your painting and started selling the prints without your permission is equally
in infringement.

> (2) There is well established legal precedent for the idea that certain things are the
> common property of the community - even the community of humankind. The extension of legal
> structures created to protect the two most "artificial" human endeavors (arti and
> technology) to the most "natural" of processes (plant growth) is problematic.

The Rio Treaty recognized this, and now the community source of the parental materials is
starting to be granted some ownership rights to anything developed with their germplasm.

Above and beyond that, the natural process of plant growth is not what is being protected as
IP.  It is a new combination of genes which were intentionally put together that is being

> (3) Most seed that breeds true is really a population of slightly varying genetic makeup.
> So: I plant the seed company's seed, then select the strains that did best in my
> microclimate. Voila - I am a plant breeder. Let them pay ME.

Again, this is not that far off from what can happen.  At least here in the US, a breeder must
introduce or change more than just one gene to qualify for IP, but the threshhold is low.

> Ben

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