How can we justify seeds as a form of intellectual property?
The 17th-century gospel according to John Locke
Private property rights are not a modern invention, and historians of political ideas have traced various legal, philosophical, and common understandings of property back to Roman law and medieval thinkers. There’s good reason we continue to teach and study the property theories laid out by political theorists such as Plato, John Locke, Jean-Jacques Rousseau, and Karl Marx, for their very different ideas about whether and how private property is created and justified are the at the heart of much contemporary discussion about property rights. In this essay, I want to share a summary of British theorist John Locke’s labor theory of value, which he explained in a canonical chapter of The Second Treatise of Government, originally published in 1689, and show how his perspective justifies the privatized ownership of seed varieties. Fundamentally, Locke believed that individual property rights are inalienable and non-political — given at birth by God and not by any government or political institution—and therefore, he argued, one of government’s core duties is the protection and preservation of private property as a natural right. Still vibrant today, this perspective supports the belief that seed varieties can be owned and controlled by those who have done the necessary “labor.”
John Locke (Source)
Locke’s theory of property
According to Locke, property rights are created by interacting with something that has not already been claimed in a way that increases its value. Using the example of a person who has gathered acorns or apples, Locke said that the person becomes the owner at the moment of “first gathering” because the labor of collecting the nuts or fruit “put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right.” He continued, “Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property” (2.27; original italics).*
Locke also added two precautionary limits: first, the right to property extends only to the point “where there is enough, and as good, left in common for others” (2.27) and, second, we may accumulate only as much as we can use before it spoils (2.31).
Since the 17th century, Locke’s approach has become a heavyweight contender in the arena of property theory to the extent that his justification of property rights mirrors the theoretical framework for making sense of both material and intellectual property. In effect, Locke’s theory is the skeleton that organizes and operates the international patent system’s legal tendons and economic veins.
At this point, I want to emphasize a few critical elements of Locke’s understandings of property that are especially significant when we consider the privatized ownership of food and crop seeds (note: for background on why I see the issue of seeds as a problem that requires our attention, see my earlier post on “The ownership of seeds”).
By ignoring existing indigenous relationships with land and broadly defining what is eligible for private property rights, Locke’s labor theory of property provided a philosophical foundation for privatized land seizure.What does it mean to be previously unclaimed, which makes something eligible to become private property? As a 17th century Englishman, Locke believed that the historical (and disappearing) European commons was a pool of unowned resources. The oak trees belonged to no one and everyone, but the acorns belonged to those individuals who gathered them. In a similar way, Locke viewed the colonized American landscape as an unowned commons ripe for acquisition. Locke’s description of “the wild woods and uncultivated waste of America” is revealing: According to this way of reckoning, untilled land without buildings is defined as unused and unclaimed; sustainable hunting and gathering activities do not increase the land’s value and therefore create no prior property claim. This perspective has profoundly affected land policy, especially in the United States. For example, in accordance with Locke’s approach, the U.S. government categorized vast areas of lands as unused and unclaimed and, through legislation such as the Homestead Act of 1862, promised free parcels of “unappropriated public lands” to settlers who invested labor by living on and cultivating the land for a minimum of five years, thus increasing the land’s value (https://www.archives.gov/education/lessons/homestead-act). By ignoring existing indigenous relationships with land and broadly defining what is eligible for private property rights, Locke’s labor theory of property provided a philosophical foundation for privatized land seizure.
What counts as an increase in value as a result of personal investment? The U.S. Homestead Act provides a telling illustration here as well. The Act was designed to encourage westward expansion and followed Locke in regarding Native American lands as “waste” ready for “subduing” through agricultural labor. This characterizes “raw nature” as valueless and human civilization and culture as the world’s highest goal. Many governments have used a similar approach in land-use decisions (for example, see Bedouins by the Lake (2009), which describes the impact of the Aswan Dam on the nomadic Bedouins who had been living on the land swallowed by the new Lake Nasser). According to Locke’s theory of property, nomadic and hunter/gatherer uses of land constitute a zero baseline while agricultural production or mechanical structures are signs of added value, thus creating individualized ownership.
According to Locke’s theory of property, nomadic and hunter/gatherer uses of land constitute a zero baseline while agricultural production or mechanical structures are signs of added value, thus creating individualized ownership. These complications play an important role as we apply Locke’s perspective to the privatization of food and crop seeds.
World Intellectual Property Organization, Rome (personal photo)
Food and Crop Seeds as Intellectual Property
In the four centuries since Locke penned his chapter “Of Property,” both U.S. patent law and international intellectual property agreements have reflected the Lockean traditions of 1) labor as the source of ownership and 2) higher value as the guideline for privileged use. As these standards are applied to intellectual (vs. material) property, “labor” takes a less muscular form but the same principle applies: We create new property rights when we begin with something to which we all have access — whether that is a story, musical chord, or concept — and through our knowledge, skill, and creativity change its form to a new and distinct version.
Under the umbrella of “genetic resource” protections, new traits embedded in seed varieties through the work of industrial and commercial research laboratories establish similar boundaries of rights. Scientific creativity, genetic trait development, and biotech innovations are the core elements of plant-breeding programs that developed in the 20th and 21st centuries, geared toward the creation of new and higher value in hybrid and transgenic seed varieties. It is important to note that plant genetic resources were a relatively late addition to the international system of intellectual property rights (IPRs) during the 20th century, replacing a public, non-legalistic landscape already in place for seeds. In fact, our existing industrial and commercial seed enterprises rely on many decades of public-sector support for agricultural science research that pushed public laboratories to produce high levels of biotech innovations without having to rely on the protection of IPRs. Even more importantly, contemporary plant-breeding programs stand on the shoulders of centuries of indigenous and peasant farmers and their accumulation of traditional knowledge tied to local landraces, wild crop relatives, microclimates, soils, and irrigation.
However, investors’ efforts to recover the costs of their biotech research changed the landscape in recent decades. A central component of IPRs is that they allow owners to maintain exclusive rights of use and transfer — in other words, IPRs are designed to preserve the owners’ market advantage and guarantee a return on investment. As a result, patent mania exploded in the United States when the Supreme Court’s ruling in Diamond v. Chakrabarty (1980) opened the door to patents on genetically modified organisms. Today, the international patent system overseen by the World Intellectual Property Organization (WIPO) legally protects innovations in plant genetic research.
The gospel according to Locke —the labor theory of value and his understanding of private property rights — fits neatly into the development of IPRs on the national and international levels. But there’s a tricky turn here that we need to investigate, for the view that seeds can be a privatized form of genetic resources slips into a Janus-faced position that is theoretically wily. On the one hand, biotech industry representatives stress that patents protect their inventions that make use of plant genetic resources but these patents do not privatize the genetic resource that has been used, which remains available to the public. On the other hand, some national laws (including U.S. law) allow patent protection of altered plant genomes, which means that specific chromosomes can be privatized. In addition, in numerous countries, the biotech industry has aggressively sought and maintained patents on gene manipulation processes or breeding methods, which then can prevent reproduction of seed varieties by their competitors, criminalize farmers’ attempts to save seed varieties for planting, and spawn seed laws and economic constraints that make it difficult for farmers to plant non-patented varieties.
In the process, the terminology of genetic resources, rather than seeds, has become dominant in academic, governmental, and commercial statements of knowledge about plant breeding and IPRs. In a subtle way, this linguistic change implies even greater openings for ownership: A seed that is understood as a container of plant genetic resources is a data source, a controllable object, a site of experimentation and potential increase in value. It is a transferrable and fungible commodity in a contractual property relationship between owners and buyers. In other words, from this perspective, seeds are valued as unclaimed datasets eligible for privatized development. Therefore, even if genetic resources cannot be patented, the biotech industry can claim rights to chromosomes within them, plants that contain those genetic elements, and the marketable seeds produced by the plant-breeding investments. In addition, the patentable plant-breeding processes and the market forces that narrow agricultural planting choices can be synchronized in ways that weaken the relationship between farmers and their crops. In this way, the intellectual property rights that are gained through plant research and production become more important than the plants and seeds themselves.
… the intellectual property rights that are gained through plant research and production become more important than the plants and seeds themselves.“Enough and as good”: One final note: Recall that Locke’s approach called for fair shares through the principle of “enough, and as good for others,” which appears to guard against monopolization and wasteful greed. In general, supporters of Locke’s theory of property reject the argument that his limitation is undermined by the ability to buy another’s labor in plant breeding programs and call it our own or by the legal status of corporate personhood in some countries, including the United States. Employers are the investors, risk-takers, and innovators, according to their view, and therefore have good reason to claim some or all of the property rights generated by their employees through plant breeding programs. Likewise, if corporations have economic and social identity as well as legal personhood, they cannot be denied their rights to the products of their labor. If monopolization and waste pose problems, according to this perspective, they can’t be resolved by denying earned property rights.
Next time: A contrasting approach to the ownership of seeds
In my next post, I am going to describe a different view that contrasts sharply with Locke’s theory of property. From this second perspective, seeds are a collective source of community well-being and collective sovereignty. This approach assumes the existence of a multispecies web of relationships that is determined by the intrinsic qualities of the seeds themselves rather than according to rights or law. From this perspective, whether and how seeds can be conceptualized as property is dependent upon the very nature of their “seedness.”
* Locke, John. 1988. Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press.