Give value to your variety

The open-source licence applies only if all users, starting with the breeder, comply with the regulations. Seed that has already been put on the market without an agreement on the open-source terms cannot be protected from patenting because the licence cannot be applied retroactively. Such varieties are, therefore, excluded from open-source licensing.

A major licence violation occurs when open-source material has been used to develop a new variety that is then made subject to patent or plant-variety protection. Infringements can be proven in several ways. First and foremost, the breeder’s documentation can be analysed. According to the provisions of the Nagoya Protocol, detailed documentation is now mandatory for every breeding process. The user of the plant genetic material must document when, where and under which conditions he or she received it. The phenotype and other characteristics of the original variety can also be compared with those of the newly developed one. Comparative gene mapping may be a third option.

As a basic rule, licence infringements can be prosecuted. Our licence is drawn up on the basis of German civil law and can therefore be enforced within the framework of international civil law in most countries of the world.

One of our most important research tasks is to develop new concepts for financing plant breeding work. The label “open source” has already boosted the marketing of individual varieties and thus ensures some return flow of funds.

Seen historically, most agricultural seeds were developed without compulsory levies. Also today, many organic cereal and vegetable breeders in Europe finance their breeding activities partly through “variety development contributions” that are negotiated between breeders, seed producers and farmers. Some charge a small levy on traded items or raise funds from government programmes and donors. More information can be found in the paper “Who pays for seeds?”.  

Another aspect may be even more important. Common-property seeds are more than just inputs for agricultural production. Their use also benefits society as a whole in that they are essential for maintaining biodiversity, cultural landscapes, ecosystem system services as well as the capacity to adapt to climate change. These benefits are less and less provided by the business model currently followed by the private seed sector with its IPRs. If plant breeding leads to benefits for society as a whole, then not only farmers and direct users but also people involved in processing and marketing as well as consumers and the State should be helping to carry the breeding costs.

"Genetic engineering (GE) in plant breeding” includes a range of different technologies, and new ones are continuously emerging. What is regarded as GE therefore cannot be precisely defined and regulated by law once and for all. The open-source licence with its copyleft principle, i.e. the transfer of seed-licensing terms to subsequent generations of seed, is designed for perpetuity and cannot exclude plant-breeding techniques that are not yet known.

Nevertheless, the licence provides an effective protection against GE. All GE processes are time-consuming and require comparatively high investments in plant breeding. Economically, such expenditures can be justified only if they can be protected by patents, but patents or other exclusive IPRs are not allowed by the open-source licence. 

Thus, the open-source licence does not prohibit GE de jure but it does prevent it de facto. We regard the licence as a good protective mechanism and are not aware of an equally valid alternative.