Can we all agree that copyrighting seeds is bizarre?

The purpose of copyright law is to protect an invention or innovation, ensuring that people who put substantial energy into developing something receive some sort of return — it would be hardly fair to spend millions on a technology, for example, only to have other companies promptly start selling it and undercutting your price. They’d be benefiting from your work, while you’d be struggling to recoup your losses. Consequently, copyright law creates an incentive for innovation. Invent something, introduce something new to the world, and you’ll get legal protections that allow you to be the sole controller of that property for a set period of time, whether you choose to lease the copyright or manage it directly.

I am not opposed to copyright law. I take advantage of it myself on a regular basis to protect my own intellectual property — I do not want my work being used for someone else’s profit and credit. It represents considerable labour, whether it’s an opinion essay or a researched feature or a personal essay or something else entirely. I look out for the copyright interests of my fellow writers as well.

That said, the state of copyright law in the United States is rather dire and it’s in need of substantial reforms. Backward and issue-laden law creates problems like orphan works and completely ridiculous copyright protections, and one such example is the parts of the law that cover living organisms. These are also designed to promote innovation by encouraging people to breed and refine things like plants (or to genetically modify living organisms, applying substantial scientific research and expertise in a lab environment to achieve a carefully controlled outcome like knockout mice). The work of people and organisations who contribute to such projects should be acknowledged and, as with other works, it shouldn’t be permissible to profit from their works within the period protected by copyright.

But when it comes to seeds, things get really bizarre. Many companies are producing genetically modified crops, which should clearly be protected under copyright law, as they definitely meet the standard of an innovation. And others are carefully breeding plants to achieve desired outcomes like drought tolerance, or to breed back in heritage traits. These innovations, too, are reasonably covered by copyright law — if an organisation puts months or years of work into restoring heritage strawberries or making an apple more delicious, it ought to get some control of the product. But in other instances, people are retaining copyright on seeds that are really quite old, like tomato varieties grown in the early 19th or even 18th century, jumping to copyright them to take advantage of a hole they spot on the market. Or they’re claiming to have ‘discovered’ something that already existed, as in the case of attempts to copyright BRCA-1 and -2. I find this irritating.

The copyrights surrounding seeds are particularly irritating because of how they’re being interpreted in court and what this means for farmers. If you grow a crop of corn, for example, you are not allowed to save seeds to replant next year if you’re cultivating a copyrighted variety — something you may not even be aware of, especially if you’re a casual farmer (granted, casual farmers aren’t likely to be the target of costly suits). Instead, you have to purchase brand new seed. Every year. Moreover, you can get dinged not just on replanting seeds, but on natural cross-pollination, which is impossible to control for, so if you do reseed and it’s legally allowable, but your crops have genetic traits from a neighbouring field of copyrighted plants, you can get in trouble.

This is, forgive me, completely ridiculous. It’s analogous, some might argue, to buying a book: You buy a single copy of, say, Gone Girl and you can do what you want with it — read it, give it to the library, lend it to a friend, use it for kindling, whatever — but you cannot make a copy of it and distribute that copy, because that’s viewed as infringement. That’s the same reasoning that people use to argue that seed saving shouldn’t be permitted, on the grounds that it is effectively ‘copying’ an original text. But farming doesn’t quite work like reading books, and it seems far more sensible to argue that people are effectively subleasing the copyright when they buy seeds. I am not a copyright attorney of course, and though I understand the legal arguments that underscore the repeated successful suits brought down on seed savers, I just think they’re unfair. Companies are attempting to preserve their markets by forcing farmers to come back annually for seeds, instead of continuing to expand their market, and continuing to innovate with new crops and varietals. In this sense, the copyright protection acts as a disincentive, because companies hope to reap (haha) considerable profits from a few core patents rather than getting off their arses and continuing to develop new and interesting crops. They also scour around for existing organisms to copyright, rather than, you know, developing their own.

Seed saving copyright on large scale farms is also quite different from casual farmers. Seed exchanges are getting extremely difficult to run because people (rightly) fear that they will be targeted by aggressive companies and their attorneys, which means we’re losing rare and heritage varieties as well as the fellowship of communities equally enthused about farming and gardening. There’s a huge difference between kicking a few copyrighted tomato seeds to a friend for personal use and growing a massive commercial crop to be sold for tens of thousands. Yet, under the law, both are viewed very similarly, and both parties can face penalties for doing it.

Isn’t this just, a bit, I don’t know, unfair?

Image: Canadian maple tree seeds, Shawn Harquail, Flickr