Exclusion, commodification, and plant variety rights legislation

Agriculture and Human Values

Volumn 14, Issue 4, 1997, Pages 313-323

  Alexandra, Andrew ^a,c,d   Walsh, Adrian ^b  

^a CHARLES STURT UNIVERSITY   (Australia)

^b UNIVERSITY OF NEW ENGLAND   (Australia)

^c UNIVERSITY OF MELBOURNE   (Australia)

^d CHARLES STURT UNIVERSITY   (Australia)

Author keywords

Alienability; Commodification; Justification; Plant variety rights (PVR); Property rights; Scarcity

Indexed keywords

EID: 53249142505     PISSN: 0889048X     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1007307102903     Document Type: Article

References (52)

1. John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1980), pp. 126-130. Rawls cites H. L. Hume; A. Hart and J. R. Lucas as arguing along similar lines - as have many others.
2. Nothing follows, of course, from this definition about whether any particular good is actually good - the class of goods and the class of the good are not identical either in intension or extension, though there is a fair bit of overlap - a lot of goods are in fact good, and much of the good is available as goods.
3. For a more elaborated account of the nature of commodities compatible with that given here, see Margaret Jane Radin, Contested Commodities (Boston: Harvard University Press, 1996), pp. 118-120; for further discussion of the concept of alienation,
4. see the same author, "Market inalienability," in 100 Harvard Law Review, 1848-1925 (1987).
5. The general approach to the nature of property taken here was influentially enunciated in A. M. Honore's paper, "Ownership," in A. G. Guest (ed.), Oxford Essays in Jurisprudence (Oxford: Clarendon Press, 1961).
6. Honore's specific list of rights and limitations has been modified and extended by, e.g., Lawrence C. Becker in "The moral basis of property rights," Nomos 22: Property (New York: New York University Press, 1980), pp. 190-191;
7. Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), p. 49. Nothing we say depends on the choice of one of these formulations.
8. Our approach is somewhat similar to that of John Christman in The Myth of Property (Oxford: Oxford University Press, 1994), who argues for a "bifurcated conception of ownership. ... control ownership and income ownership are separable rights bundles" (p. 147). However, Christman "[f|ollow[s] other writers ... in analyzing ownership in terms, first, of tangible things, and then assuming that the main elements of the model can be extended to other kinds of property" (p. 24), whereas we argue, in effect, that the differences between tangible and intangible goods are such that the justifications for the allocation of property rights may not automatically translate from one to the other.
9. Here following Jan-Erik Lane, The Public Sector (London: Sage Publications, 1993), p. 22;
10. drawing on distinctions found in Mancur Olson, The Logic of Collective Action (Cambridge, MA: Harvard University Press, 1965), pp. 14-15.
11. For discussions of the relationship between common pool and private goods see David Schmidtz, "When is original appropriation required," The Monist 73 (1990): 504-518, who puts the case for transforming common pool goods into private goods;
12. contra, e.g., Richard A. Epstein, who argues against it in "Why restrain alienation," 85 Columbia Law Review (1985).
13. Hegel, in The Philosophy of Right, trans. Knox (Oxford: Oxford University Press, 1976), pp. 37-57, presents an argument that may be taken as denying that scarcity is always a necessary condition for the institution of property. For Hegel, property rights over certain artifacts (using this term in a broad sense) are justified, in fact obligatory, since these artifacts are expressions and extensions of the creator's personality, so that to use or alter them without the creator's consent is unjustifiably to ignore and curtail her autonomy. This argument appears to us to have some force. If accepted it may also point to possible tensions in our concept(s) of property rights, since there can be no guarantee that property rights allocated on the basis of creator's rights will serve the social ends justifying property rights on the "circumstances of justice" argument. However, the creator's rights argument will be limited in application, relevant only to those things that can plausibly be seen as expressions of personality. Typically, this will not include plant types.
14. Jeremy Waldron, The Right to Private Property, op. cit., p. 32.
15. Lawrence C. Becker, in "The moral basis of property rights," The Right to Private Property, op. cit., claims that anthropological evidence indicates that there never has been such a society;
16. James O. Grunebaum, in Private Ownership, op. cit., p. 67, claims that as a matter of logic there could not be.
17. See Amartya Sen, "The moral standing of markets," in E. F. Paul, F. D. Miller, and J. Paul (eds.), Ethics and Economics (Oxford: Basil Blackwell, 1985), pp. 1-19, esp. 9-12.
18. We are not of course claiming that under- or over-production never occurs in a capitalist society - just that there is a tendency towards sufficiency. Nor are we denying that there is a tendency within capitalist economies to generate more and more desires.
19. Or, for that matter, that they play a major role in the promotion of desirable innovation. What evidence there is gives cause for skepticism about their general importance, though they are arguably significant for particular firms and industries. See, e.g., D. S. Thomson et al., The Economic Implications of Patents in Australia (Canberra: Australian Patent Office, 1981), esp. the papers by Macdonald and Llewellyn;
20. C. T. Taylor and Z. A. Silberston, The Economic Impact of the Patent System (Cambridge: Cambridge University Press, 1973);
21. Joel Mokyr, The Lever of Riches: Technological Creativity and Economic Riches (Oxford: Oxford University Press, 1990), esp. pp. 246-247.
22. For a discussion of the benefits and costs of intellectual property regimes in biological goods see Michele Svatos, "Biotechnology and the utilitarian arguments," Social Philosophy and Policy 13 (1996): 113-144.
23. See J. P. Berland and R. Lewontin, "Breeder's rights and patenting life forms," Nature 322 (1986): 785-788, esp. 788;
24. Frederick H. Büttel and Jill Belsky, "Biotechnology and intellectual property: Social and ethical dimensions," Science, Technology and Human Values 12 (1977): 31-49.
25. For these constraints see Ch. VI of the "International Convention for the Protection of New Varieties of Plants" in Plant Breeder s Rights Act 1994; and 43.1-9 of that Act.
26. Plant Breeder's Rights Act 1994, 11-15.
27. Here we follow Joel Feinberg, "Voluntary euthanasia and the inalienable right to life," in Sterling M. McMurrin (ed.), The Tanner Lectures on Human Values: 1 (Cambridge: Cambridge University Press, 1980), pp. 221-251.
28. PVR legislation has generally been understood by analogy with existing intellectual property rights legislation, in particular that governing industrial patents. This analogy is fragile at a number of points, but in this respect at least it appears sound, in Australia anyway, where the right to sell patented goods is (roughly speaking) mandatory. (Though it seems that in the USA it is discretionary.) The relevant section of the Australian legislation is Patents Act 1990 (Cat. No. 92 8522 3) 12.135. As a referee for this journal pointed out, one important point where the analogy breaks down is that it is a precondition of gaining a patent that one displays intellectual innovation at the level of the production and replication of a product or process, while this is not true of registration for ownership plant varieties. Provided that the variety is eligible for registration, the only knowledge that need be displayed is that possessed by any competent horticulturist. A useful discussion of some of the conceptual issues involved in the relationship between PVR and patents is found in Gerd Winters, "Patent law policy in biotechnology," Journal of Environmental Law 4 (1992): 167-187.
29. For a discussion of the economic argument in favor of the granting of mandatory rights as a spur to innovation see Theodore M. Horbulyk, "Intellectual property rights and technological innovation in agriculture," Forecasting Social Change 43 (1993): 259-270, esp. 261-263.
30. Plant Breeder's Act 1994, 43.1(e). Though the Act contains a relatively lengthy "Definitions' section, no definition is given of 'exploitation'." The only plausible reading of its meaning, in the context of the Act, is that it refers to commercial exploitation.
31. See "Breeder's rights and patenting life formsPlant Breeder's Act 1994, ," op. cit.
32. For a description of how PVR legislation has actually impacted on commercial farming practice in a particular instance, see Tracey Clunies-Ross, "Creeping enclosure: Seed legislation, plant breeders' rights and Scottish potatoes," The Ecologist 26 (1996): 110-114.
33. See, e.g., F. H. Buttel and J. Belsky, "Biotechnology, plant breeding and intellectual property," The Ecologist ," op. cit.;
34. S.A. Scotchmer, "Standing on the shoulders of giants: Cumulative research and patent law," Journal of Economic Perspective 5 (1991): 29-41;
35. Theodore M. Horbulyk, "Intellectual property rights and technological innovation in agriculture," Journal of Economic Perspective ," op. cit.
36. We focus on consequences at the national level. However, there are clearly issues of international justice involved in the institution of PVR legislation, particularly since the majority of commercially valuable plant types come from the Third World. For relevant empirical data and a discussion of some of the issues, see Franz Broswimmer, "Botanical imperialism: The stewardship of plant genetic resources in the Third World," Critical Sociology 18 (1991): 3-18.
37. J. I. Stallman, "Plant patents and public research priorities," Choices 5 (1991): 29-41.
38. Tracey Clunies-Ross, "Creeping enclosure: Seed legislation, plant breeders' rights and Scottish potatoesChoices ," op. cit.;
39. "Custom puts farmers at odds with seed breeders," Congressional Quarterly Report 54 (1994): 2245.
40. There may also be what we might call sociological costs, borne by farmers whose role and range of interactions in the local economy is restricted by PVR legislation. In buying and selling plant reproductive material they now have the role only of the buyer of such material from a small number of commercial organizations, whereas previously they may have been both buyers and sellers in a market that involved a series of transactions with their fellow farmers - transactions that produced social as well as economic benefits. This line of thought has been stimulated by the approach of such social exchange theorists as Peter Blau in Exchange and Power in Social Life (New York: John Wiley, 1967). Again, there is an issue here that awaits empirical clarification.
41. David Goddden, "Plant variety rights: Framework for evaluating recent research and continuing issues," Journal of Rural Studies 3,3 (1987): 255.
42. Other papers by the same author on PVR include "Economic issues concerning plant variety rights: General and Australian perspectives," Agricultural Economics Bulletin, No. 26 (1981), Department of Agricultural Economics and Business Management, University of New England, Armidale;
43. "Induced institutional innovation: Plant variety rights, patents and genetic engineering," Oxford Agrarian Studies 19 (1991): 3-19;
44. "Plant variety rights and the incentive to innovate" (with John Kennedy), Oxford Agrarian Studies 21 (1993): 105-118.
45. Though Buttel and Belsky claim that in the USA at least the Introduction of PVR legislation "may not have led to any increase in private plant breeding beyond that which would have been expected from historical trends." See "Biotechnology, plant breeding and intellectual property: Social and ethical dimensionsOxford Agrarian Studies ," op. cit., p. 35.
46. For evidence that might seem to contradict this claim, at least in the case of a particular crop type, see Carl E. Pray and Mary Knudson, 'Impact of intellectual property rights on genetic diversity: The case of US wheat," Contemporary Economic Policy 12 (1993): 102-112.
47. There are complex issues about universals here that we will not delve into, merely noting that it seems that for the purposes of the legislation biological types are characterized in purely structural terms, whereas we usually think about them in historical terms too.
48. The talk of "degree" here is appropriate since even those varieties that are held to manifest uniformity and stability usually do so less than totally. The point remains that more is seen as better.
49. The dangers of monocultures were graphically and famously illustrated by the Irish Potato Famine of the late 1840s. English explorers returned from the Caribbean coast in the 16th century with only one variety of potato. Planted everywhere in northern Europe, when this genetically-uniform crop was struck by blight, it denied the Irish their primary source of food. Combined with the policies of the British Government and English absentee landlords, the famine left two million dead and two million searching for a new life in other countries. See P. R. Mooney, Seeds of the Earth: A Public or Private Resource (Ottawa: Inter Pares, 1979);
50. Joel Mokyr, Why Ireland Starved: A Quantitative and Analytical History of the Irish Economy 1800-1850 (London: Allen and Unwin, 1983);
51. K. H. Connell, "The potato in Ireland," Past and Present 23 (November 1962): 57-71.
52. Jack Ralph Kloppenburg Jr., First the Seed: The Political Economy of Plant Biotechnology 1492-2000 (Cambridge: Cambridge University Press), p. 143.