Reimagining the relationship between food sovereignty and intellectual property for plants: Lessons from Ecuador and Nepal

• DOI: http://doi.org/10.1111/jwip.12134
• Author: David J. Jefferson,Kamalesh Adhikari
• Date: 01 November 2019
• Published date: 01 November 2019

© 2019 The Authors. The Journal of World Intellectual Property © 2019 John Wiley & Sons Ltd

J World Intellect Prop. 2019;22:396–418.396

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wileyonlinelibrary.com/journal/jwip

DOI: 10.1111/jwip.12134

ORIGINAL ARTICLE

Reimagining the relationship between food

sovereignty and intellectual property for plants:

Lessons from Ecuador and Nepal

David J. Jefferson

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Kamalesh Adhikari

School of Law, University of Queensland,

Forgan Smith Building, St Lucia, Queensland,

4072, Australia

Correspondence

David J. Jefferson, TC Beirne School of Law,

W474 Forgan Smith Building, University of

Queensland, St Lucia 4072, QLD, Australia.

Email: d.jefferson@uq.edu.au

Abstract

The concept of food sovereignty is regularly conceived as one

side of a binary. Thus, scholars frequently juxtapose food

sovereignty—as embodied in small‐scale, customary, or

peasant agriculture—against large‐scale, industrial, andglobal

modes of food production. The logic of this dichotomy

suggests that the realization of food sovereignty is incompa-

tible with the recognition of intellectual property for plants

and seeds. In contr ast, we argue that food s overeignty and

intellectual property are not necessarily mutually exclusive

concepts. Instead, food sovereignty activists and lawmakers

alike are reimagining intellectual property to move beyond a

focus on exclusive ownership, thus deploying it in novelways.

Our argument draws on extensive fieldwork, based on which

we relate the experiences of two case study countries,

namely Ecuador and Nepal.We describe how these countries

recently embedded rights related to food sovereignty in

reformed constitutional frameworks. We also evaluate how

these novel constitutional food sovereigntyrights shaped the

making of other national laws in Ecuadorand Nepal, including

frameworks whose purpose is to protect plant varieties as

intellectual property. Throughoutthe article, we demonstrate

that countries can both promote food sovereignty and

protect plant varieties as intellectual property. One way that

governments can achieve this goal is to ensure that all

relevant laws and policies—including those which relate to

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intellectual property for plant varieties, seed certification,

and commercialization, and access and use of native genetic

resources—are tailored to the realities of local food and

seed systems.

KEYWORDS

constitutional rights, customary agriculture, food sovereignty,

Intellectual property, law and society, local food and seed systems,

seed policies

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INTRODUCTION

The concept of food sovereignty

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is regularly conceived as one side of a binary. Thus, much food sovereignty advocacy

pits the “peasant mode of production”against “global capitalist agriculture,”or in other words, small‐scale/customary

versus large‐scale/industrial forms of farming (Bernstein, 2014). This dichotomization is especially evident in debates

over the role of intellectual property in agriculture. In fact, one of the reasons based on which peasant movements

initially adopted food sovereignty as a “rallying cry and political program”was to oppose the expansion and enforcement

of intellectual property laws in relation to food and agriculture (Edelman et al., 2014, p. 914).

Advocates for food sovereignty have argued that the concept and intellectual property—especially in relation to

seeds—are inherently opposed and that their respective agendas serve social actors whose interests are mutually

exclusive (Borowiak, 2004; McMichael, 2014; Pimbert, 2009; Shiva, 2001, 2004). Much of the opposition to

standard forms of intellectual property for plant varieties has taken the form of advocacy in favor of “seed

sovereignty.”This is envisaged as a key component to food sovereignty, because seed sovereignty aims to ensure

that farmers remain able to access and control the planting material on which they rely for food production

(Kloppenburg, 2010, 2014; Trauger, 2015; Wittman, 2009; Wittman, Desmarais, & Wiebe, 2010). The hypothesis

that intellectual property might impede seed sovereignty has led some studies to conclude that exclusive,

proprietary models for the protection of plant varieties could gravely affect smallholder farmers, for instance by

jeopardizing the human right to food

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(Berne Declaration, 2015).

There are many practical reasons that explain why tension exists between food sovereignty and intellectual

property. Foremost is the fact that when intellectual property systems enable owners to exercise exclusive control

over protected plant varieties, farmers are often required to obtain authorization from these right‐holders to

engage in a variety of common farming practices related to the production, reproduction, saving, and exchange of

seeds and other planting or harvested materials (Cullet, 2004; De Jonge & Munyi, 2016; Dhar & Chaturvedi, 2005;

Oguamanam, 2015). A related concern is that although farmers often experiment and innovate, selecting and

crossing plants with favorable traits, intellectual property laws frequently do not recognize farmers’contributions

to the development of new plant varieties (Adi, 2006; Correa, 1996; Halewood, 2016; Soleri & Cleveland, 2004;

Brush, 1993). Food sovereignty is imagined as a solution to these problems (Jansen, 2015; Patel, 2009), embodying

goals such as ensuring that farmers are free to decide which seeds to plant, save, reuse, and develop; and with

whom and where to exchange and sell planting material through customary systems (Kloppenburg, 2014).

In this article, we recognize that intellectual property regimes can operate as real impediments to agricultural

systems, especially those which rely on farmers’ability to freely use and circulate seeds. However, we argue that

food sovereignty and intellectual property are not dichotomous concepts. The fact that food sovereignty and

intellectual property do not exist in binary opposition to one another is illustrated, for example, by instances in

which groups of farmers and other food sovereignty activists have engaged with intellectual property as a means to

claim communal control over certain types of plants, in addition to associated indigenous or local knowledge.

Furthermore, aspirations associated with food sovereignty increasingly are shaping intellectual property laws, as

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