Since the 1980s, governments and transnational corporations from core countries led by the United States have driven a global upward ratchet of intellectual property protection. In agriculture, this has meant strengthening the rights of seed companies over the plant varieties they develop and curtailing the rights of farmers over the seeds they cultivate. Exceptionally, from the 1990s to 2013, Argentine soy growers overcame the pressures from the seed industry, guaranteeing the right to freely save seeds of proprietary varieties from their own harvests for future cultivation. Based on a comparative historical analysis of conflicts over intellectual property on seeds in Argentina, Brazil, and Paraguay from the 1990s to 2013, this study suggests that a successful mobilization of knowledge-users in struggles over intellectual property depends on (1) the organizational stability of their political representation, (2) the coordination between the organizations that rep-resent them, (3) the existence of independent channels for the representation of knowledge-users most sensitive to royalty payments, and (4) their ability to produce a public discourse capable of drawing support from a broad coalition.The author argues that
Since the early 1980s, governments and transnational corporations from core countries led by the United States have driven a global upward ratchet of intellectual property (IP) protection (Chang 2001; Drahos 2002). In agriculture, this has meant strengthening the rights of seed companies over the plant varieties they develop and curtailing the rights of farmers over the seeds they cultivate. During this period, two international treaties have raised minimum standards for the protection of IP in agricultural biotechnology: the 1991 Act of the UPOV Convention (i.e., the International Union for the Protection of New Varieties of Plants; UPOV 1991) and the World Trade Organization’s 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
UPOV was created in 1961 to provide an effective system of plant variety protection based on plant breeders’ rights. Its convention was amended in 1972, 1978, and 1991. Among other changes, the act of 1991 extended the minimal protection period for most species from 15 to 20 years and made the protection of farmers’ right to save seeds from their own fields for future cultivation optional for states. For rural communities, saving seeds is a millenary tradition whose legitimacy derives from the fact that rural producers have contributed to the creation, conservation, and improvement of genetic resources in agriculture for centuries. For seed companies, however, the practice of saving seeds is a “residue” of older forms of agriculture; it also limits corporate profits, because farmers who save seeds are less dependent on seed companies and may even act as their competitors when they exchange or sell saved seeds. TRIPS, in turn, states in article 27 that member governments may exclude the following from patentability:
plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.
The strengthening of private IP in agriculture is associated with a major transformation in the development and distribution of agricultural technology that also started in the 1980s. Private corporations replaced the public sector as the leading actor in agricultural technology, which became largely conditioned by the quest for profit and market share. “The trend [has been] to privatize the means and sources of knowledge production and to deploy strategies to enclose knowledge commons through intellectual property right regimes” (Parayil 2003: 974). Transnational seed companies have pressured states to design and enforce IP regimes that allow them to maximise the appropriation of economic returns from their R&D investments. The main focus of their pressure has been the right of rural producers to save seeds. If this right is suppressed, rural producers will have to buy new seeds on the market every year, for which they will have to pay royalties (usually included in the price of each bag of seed).
In the 1980s, Monsanto – a transnational corporation based in St. Louis, Missouri – was among the first to genetically modify a plant cell and to conduct trials with genetically modified (GM) crops. Among its chief products are the herbicide Roundup® – based on glyphosate – and Roundup Ready® (RR) soybeans – a GM variety of soybeans resistant to glyphosate. RR soybeans are advantageous for rural producers not because of superior yields per cultivated area, but because glyphosate is less expensive, less toxic, and easier to apply than herbicides used on conventional soybeans. The easier management of RR soybeans also favors the use of non-tillage sowing methods, which are more efficient and cause less erosion to the soil. Since RR soybeans started to be cultivated on a large scale in the United States, Argentina, and other countries in the 1990s, Monsanto has tried to obtain recognition and protection for IP rights on the RR technology around the world. Being an autogamous plant, soy can reproduce through self-fertilization, and its seeds retain their agronomic qualities from one generation to another. This allows rural producers to save soybean seeds for future cultivation, including those of RR varieties, which turns the right to save seeds into a problem for Monsanto.In Argentina, the corporation has unsuccessfully tried to obtain recognition for the IP rights it claims to have over RR soybeans. Not only does Argentine legislation allow rural producers to save seeds from their own fields for future cultivation without consent from or payment to seed com- panies, but the Argentine Supreme Court denied Monsanto a patent on RR soybeans in 2000, arguing that the technology no longer matched the requisite of novelty when the corporation filed its application for a patent. This severely reduced Monsanto’s capacity to appropriate part of the economic gains generated by the RR technology, prompting the company to retaliate by suspending its R&D activities in Argentina and filing a lawsuit against exporters of Argentine soybean products in Europe. In the meantime, Monsanto and other seed companies operating in Argentina had also proposed changes to national legislation on IP, demanding restrictions on the right to save seeds. To date (as of September 2013), all these attempts have been unsuccessful, with the core of Argentine legislation on IP on plant varieties remaining the same since the 1970s.The case of Argentina stands in sharp contrast to that of the United States, where Monsanto has used private contracts, lawsuits, and inspecting activities to suppress the right of farmers to save seeds. It also differs from the reality of Brazil and Paraguay, where the corporation implemented a private mechanism of royalty collection for RR soybeans that virtually eliminated the right of rural producers to freely save seeds. More broadly, the case of Argentina defies the global upward ratchet of IP protection initiated by the U.S. government around 1980. How can this cross-national variation be explained?