Rights or ability: Access to plant genetic resources in India

• Date: 01 July 2018
• Author: Guido Ruivenkamp,Archana Patnaik,Joost Jongerden
• Published date: 01 July 2018
• DOI: http://doi.org/10.1111/jwip.12102

DOI: 10.1111/jwip.12102

ORIGINAL ARTICLE

Rights or ability: Access to plant genetic

resources in India

Archana Patnaik

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Joost Jongerden

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Guido Ruivenkamp

Sociology and Anthropology of

Development, Wageningen University,

Wageningen, The Netherlands

Correspondence

Archana Patnaik, Sociology and

Anthropology of Development, Wageningen

University, Wageningen, The Netherlands.

Email: patnaik.sai@gmail.com;

archanapatnaikwur@gmail.com

Funding information

(NWO)-WOTRO (Science for Global

Development), Grant number:

W 01.65.326.00

The difficulties that stakeholders face in accessing plant

genetic resources have been a concern of many scholars

since the introduction of intellectual property rights. One of

these issues is that of access, which is mostly approached

from a rights perspective. Here it is argued that such a rights

perspective limits a critical reflection on the possibilities for

enhancing accessibility to the Plant Genetic Resources

(PGRs) on three grounds and to go beyond this limitation, we

introduce an ability perspective. The ability perspective

brings into focus how farmers organise their access to PGRs

and is researched in four PGRs conservation banks in India;

one ex situ and three in situ. An informal system of

conservation (in situ) and sharing through informal networks

is found to provide better access mechanisms for the small

and marginal farmers in India, while access to conserved

resources stored at the three in situ banks created biosocial

relations and biosocial commons. However, each case

studied had certain disadvantages in respect of granting

access to the farmers, so additional mechanisms to facilitate

better access to the conserved resources are suggested.

KEYWORDS

ability, access, commons, intellectual property rights, plant

genetic resources

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which

permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no

modifications or adaptations are made.

© 2018 The Authors. The Journal of World Intellectual Property Published by John Wiley & Sons Ltd

J World Intellect Prop. 2018;21:157–175. wileyonlinelibrary.com/journal/jwip

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INTRODUCTION

The limitations on the use of plant genetic resources (PGRs) and the difficulties stakeholders face in accessing them

have been the concern of many scholars since the introduction of intellectual property rights (IPRs) (Esquinas-Alcázar,

2005; Kloppenburg, 2010; Ramanna & Smale, 2004; Shiva, 2001).

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One of these issues is access. Issues of access to

PGRs through IPRs are considered problematic as they restrict plant breeding and access to agrobiodiversity,

especially for poor farmers lacking sufficient information and education with which to reap the benefits of the IPRs

(Eyzaguirre & Dennis, 2007). Consequently, therehas been an intensive debate on the issue of access to PGRs, framed

through the investigation both of opportunities within the rights perspective

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and of the ability perspective of the

farmers to create their own forms of accessibility (Deibel, 2013, 2014; Kloppenburg, 2010, 2014; Satheesh, 2000;

Shrestha et al., 2005). Here, access to PGRs is analysed using an ability rather than rights perspective in an

investigation of how farmers in India organise their access to conserved landraces in the context of two different

conservation practices, ex situ and in situ. Taking this ability perspective, we focus on the social mechanisms through

which small and marginal farmers gain access to the conserved landraces in the ex situ and in situ conservation banks

and we analyse various socio-political and cultural relations that facilitate or inhibit farmers in realising their

accessibility to the conserved PGRs. We argue that access to resources through informal seed networks leads to

continuous interaction between the resources and the stakeholders, which strengthens the biosocial

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relations and

thereby provide both biological and social benefits to the farmers.

This argumentline is constructed in the following way. First,an explanation is provided for choosing theability and

not the rights perspective.Then, we describe ways in which the ability perspective may be employed forthe analysis

of various social mechanismsthrough which small and marginal farmers gain accessto the conserved landraces in ex

situ and in situ conservationbanks. Next, there follows a descriptionof the research methodology used for the analysis

of the different social mechanisms used by the farmers. We have used twodifferent types of analysis in this article:

1. A historiographic analysis of the implementation of IPRs in the domain of PGRs to highlight the abilities of farmers

to resist and reformulate legislative changes and thereby create a juridical space of manoeuvre;

2. An analysis of four concrete case studies describing the social mechanisms farmers use to gain access to conserved

landraces in both in situ and ex situ conservation banks.

Finally, the article concludes with a comparison of the various access mechanisms used in the four cases to reflect

on possibilities that would enhance farmers’access to landrace varieties conserved in the in situ and the ex situ

conservation banks.

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GOINGBEYONDTHERIGHTSPERSPECTIVE

The debates on access to PGRs are carried out within the rights perspective focus on the governance of resources

through law and how various politico-legal institutions regulate this (Deibel 2013, 2014; Esquinas-Alcázar, 2005;

Kloppenburg, 2010; Ramanna & Smale, 2004; Shiva, 2001). The access mechanism operates through property rights

which control the use of the resource but this mechanism neglects other, socio-cultural factors that also affect

different stakeholders’access to the conserved resources (Ribot & Peluso, 2003). Such a focus thus limits a critical

reflection on the possibilities for enhancing accessibility to the PGRs in at least three ways.

First, the rights perspective restricts one's understanding of the various webs of social relations that exist

alongside the property relations, even as these influence the actual access to PGRs. Supporting this claim scholars like

Ribot and Peluso (2003) suggest that social relations constructed around the positions of different stakeholders in

respect of conserved resources may, in turn, affect the appropriation, management and use of these resources by the

stakeholders. Similarly, Nightingale (2011), in her study of a Scottish fishing community, established that in-shore

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