Intellectual Property Law and Food Security
Research Project

Alternatives to the Status Quo

One of the primary justifications for contemporary patent and plant variety protection regimes is that they are intended to promote the innovation and distribution of new and useful crop varieties. However, prior to the extension of conventional models of intellectual property to biological subject matters, states used a variety of formal and informal tactics to achieve similar ends—from the distribution of seeds by the USPTO in the early twentieth century and the adoption of one variety communities in the United States to the creation of seed storage laws under French and British colonial rule in West Africa. Attention to these and other historical precedents generate insights into the limits of legal intervention, while also providing examples of alternative regulatory possibilities.

This kind of regulatory pluralism is still evident if one looks beyond the model law approach espoused by international bodies like WIPO to the range of non-state, localised responses generated by farmers, scholars, and activists around the world. Many of these solutions currently being trialled can be critically reviewed to assess their impact and level of success. Some of these proposed solutions include the protection of farmers’ rights, ‘defensive patenting,’ humanitarian clauses, essentially derived varieties, juridical commons for food and agriculture (for instance, plant genetic commons), and myriad others intellectual property licensing systems and contractual arrangements. These solutions suggest that flexibility in the law rather than uniformity might be most suitable to tackling the complex range of problems faced by actors across disparate food and agricultural systems.