Download the pdf here.
This essay shows how to reconcile competing intellectual, common and "classic" property rights, using plants and agricultural biotechnology as an exemplar. As intellectual property (IP) has become philosophically fashionable, other important property rights have been neglected. This is evidenced in copyright law by debates over private copying and decryption technologies. It is apparent in the realm of biotechnology and human body samples. And it is epitomized in the Supreme Court of Canada's decision in Monsanto Canada Inc v Schmeiser concerning patented plant genes and farmers' seed saving rights.
Instrumental rather than natural rights arguments are usually invoked as support for IP. On this basis, most jurisdictions offer patents and plant breeders' rights cumulatively. Such IP laws help to commodify plants' germplasm, thus expropriating farmers' means of production. IP is usually balanced against the public interest, which in the context of agricultural biotechnology is especially challenged to address biodiversity, biopiracy and global hunger. In response, theorists have sought to propertize the public interest, emphasizing germplasm as common property.
Property rights in the real objects that embody ideational resources - longstanding and well-settled "classic" property rights - can also mark the boundaries of IP. Farmers' seed saving rights, for example, are not simply a socially justified exception to IP, but are an inherent element of owning "things" like seeds. Viewing the issue in this light is essential to buttress the rights of sustenance farmers in the developing world. It also adds intellectual integrity to the discipline of IP. Although the justifications for IP are essentially recycled arguments for classic private property rights, IP often subordinates classic property without hesitation. This essay argues, in the context of plants, that IP theory should not forget its roots.