Intellectual property rights and bio commons: open source and beyond

Abstract

For many years seeds and plant varieties were beyond the purview of intellectual property rights. But since the 1930s intellectual property rights have covered them. Till the advent of trade‐related intellectual property rights under the World Trade Organisation, nations had no obligation to extend intellectual property rights to them, unless they were members of the International Union for the Protection of New Varieties of Plants. Apart from provisions of trade‐related aspects of intellectual property rights, changes in laws, technological advances, and judicial interpretations of laws have resulted in the strengthening of the rights of patent holders and breeders, while farmers' rights have been diminished or effectively nullified. This has other implications like restriction on the researchers' freedom to invent and innovate and for North–South trade in seeds and grains, particularly in GM crops such as soya. In this article, open source is suggested as a solution and a BioLinux model is put forth as an alternative. While it is not claimed that open source will be a panacea, this article highlights some of the possibilities that are opened up by open source. It also suggests that open source will be very useful in finding a solution to anti‐commons problems while promoting innovations.