Congratulations Nic and Nath on having the site “Lifehackered” is you call it.
Someone on Lifehacker has posted a comment that is resonant of concerns expressed elsewhere. They said:
But copyright theft paranoia strikes after looking over the site. The seed stash lets you list your cuttings and seeds. Seed saving is a huge movement in the UK and parts of the Pacific Northwest. It’s a grassroots effort on behalf of our vanishing biodiversity and a protest against corporate control of local and global food supplies.
Unfortunately, even without genetically modified plants in the picture, now hybrid plants often also have copyright protections on them.
So listing those saved seeds and cuttings provides more info than a gardener might want to broadcast on the web.
Some of the agribusiness/chemical lawsuits against individual farmers have been truly Orwellian.
I’m trying to get my head around what they are suggesting here. Is it that if you go along to your local Kmart or Bunnings or whatever, and buy a packet of Yates seeds, grow them, save the seeds, and then grow from the saved seeds, and write about it on Myfolia – then Yates could read about it and prosecute you?
Where ever possible I am growing from heirloom, open-pollinated, organic seeds sources from small seed suppliers in Australia. Am I jeopardising them in anyway by writing about my seed sources here?
I’d be very interested in other Myfolians opinions.
You’re not jeopardising anyone selling heirloom seeds. I think to count as heirloom something has to be too old to fall under copyright. So no one’s estate can sue anyone because they have all almost certainly fallen into the public domain, even if they were once copyrighted. The issue would be with more recently developed cultivars.
Having seeds isn’t a problem. It’s not violating copyright to say you own a particular seed, anymore than it violates copyright for me to say I own a particular record. The thing to be more paranoid about is the swaps, which are more legally dubious. Giving away a plant that you bought is perfectly legal, just as giving away a particular CD is legal. Certainly exchanging is legal—the right to sell secondhand CDs, DVDs, and books, has been upheld repeatedly. What might not be legal is taking a cutting of a copyrighted plant so there are two of them. This is why saving particular seeds or cuttings might be problematic. Seeds of hybrids aren’t true, so those seeds surely count as satire, which should be legal. I don’t know what the legal status of cuttings would be.
But, for other copyrightable media, there’s the notion of fair use. I’m not honestly sure how this would apply to plants. If there’s no fair use, then allowing copyright to apply to plants at all is problematic. An (admittedly lazy) web search didn’t turn up much regarding the legal basis of plant copyright. Partly because plant is another name for factory, and um… I’m lazy. The only legal document on the first page distinguished between copyright, patents, trademarks, and plant variety protection. So it’s possible that plant variety protection is another beast entirely. One thing I’ve read, though, is that different companies often market hybrids that are made from the same parent plants under different cultivar names. So partly this is about branding. If company X calls something the Xplant and company Y calls it the Yplant, they have no way of actually telling what you’ve got, unless you’ve admitted you got it from company X rather than company Y. One way around this is to just call it Zplant and have an open source generic naming system that separates itself from brand identities.
I’m rambling and I’m going to stop now.
It’s not copyright but patent that the person is talking about. Certain hybrids are patented. I’ve raised this issue before. It’s something we as Folians need to be aware about because propagating from patented hybrids is illegal (depending on the laws of the countries involved). So, for instance, the trees I have that were developed by Zaiger Genetics are patented. I cannot give or sell scionwood from these trees to anyone. The only way one is supposed to be able to obtain these varieties is by buying them from a nursery that has paid the patent license.
It was easy for me to know these are patented because it says so on the tags and it said so on the websites where I bought them. However, there are various flowers, trees, plants, etc. that are patented and the average consumer doesn’t know it. Patents are very common in the field of rose-breeding, for instance. So before putting it up for swap, Google. If you see it listed somewhere with a patent number or with the name having a registered trademark, you are not legally able to propagate it if you live in a country that recognizes that patent law.
Heirloom seeds, by definition, are not patentable. They were developed by our ancestors, not professional plant breeding labs.
Ok, so a slightly less lazy search led me to this page – http://www.nal.usda.gov/pgdic/Probe/v2n2/plant.html – which is a US government site. It mentions International Union for the Protection of New Varieties of Plants, but I’m not sure what countries belong. If your country doesn’t belong, you’re home free. But, I’m betting Australia does. I’m not sure what the international standard is, but, unless I’m reading the legalese wrong (I might be, since I should be in bed), in the US you get 18 years of protection. Furthermore, farmers have a protected right to save some seed for future use and to sell some to their neighbors. (Don’t ask me who counts as a farmer or what some seed means.) I think most anything sold by small outfits that sell organic, heirloom seeds is safe. It looks like Hybrids don’t fall under this. They probably go the trade secret route instead of the variety protection route, which is why you end up with company X and Y above selling the same hybrid under different names and pretending they’re different.
The real danger, as I see it, is that large companies will use variety protection as an excuse to go after small companies and individuals, whether or not said small companies and individuals are actually breaking the law. They’ll be bankrupted by the suit even if they win and won’t be able to bounce back from it.
The best protection might be to only list old varieties, otherwise leave it generic, if you’re saving seeds to your stash. I don’t know how anyone would prove you unlawfully propagated their plants if you aren’t claiming to have their plants. Especially since they’re terrible at copy protection, and traits specific to their plants can leak out into the rest of the population through open pollination (which is probably the most worrisome thing about GM plants).
I don’t know if this helps. Now I’m really going to stop rambling and go to bed.
Thanks for the info cmagnus and spidra. I’ve just quickly read through it as I really need to get out into the garden (2pm here), and I will read more thoroughly and check out the link later. You’ve clarified things for me, and hopefully others too.
I’ve done some research on this. It has happened. It is something that seed swappers and small farmers need to be aware of to protect themselves. Sadly, we have to to do this these days. Not to sound TOO bitter and cynical here, but since the US is based in capitalism, it seems that almost everything has a patent or copyright. It’s sad that it has reached our system of self-reliance, but it has.
Not to make people paranoid, but an informative movie for people to watch is The Future of Food. Url below:
Just to let you all know – we rolled out a change this week to add some more fields to the variety wiki. One of these changes was to add Spidra’s suggestion of flagging patented cultivar / varieties. It would be great if you know about any patented ones to add it into the wiki.
We’d love to hear if anyone has any ideas on how we can expand on this functionality further….
Hey all, I have a little experience with my rights being impugned upon by an over-zealous copyright holder, and I did a little searching of mine own and found an article from HDTV that is specific to US Law on the subject of plants and legal propagation . Don’t know if this helps at all, but it does show that only patented plants are illegal to propagate.
As for swaps of patented plants, unless you purchased them under a contract that specifically limits your rights (like a lease, for example), there is the First Sale Doctrine to consider. This was recognized by the US Supreme Court in 1908 and codified into law as 17 U.S.C. § 109 . Per wikipedia “[t]he doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained.”
All this only pertains to US Law, but as myfolia.com is hosted in the US, US Law may have the most bearing.
Just my two cents! Enjoy your day!
Oh, forgot. All references I have found refer to asexual propagation of patented plants (i.e. cuttings). None of the references make mention of the legality of sexual propagation (i.e. seed). I’m not exactly a botanist, but wouldn’t it reason that the seed of a patented plant crossed with a non patented plant would be a whole new plant genetically separate from the patented plant? Also, wouldn’t it be hard to legislate against the natural reproduction of a species?
I guess I’m up to four cents now. ;-)
Given that myfolia.com’s owners are British, I assumed the server was in the UK.
I know that in the case of the patented tree varieties I’ve purchased that it would be illegal to do any asexual propagation of them.
Oh my! Half of my garden is full of stuff that I have been given or propagated. I thought that was the whole point of gardening. This patenting business feels so wrong.
I assumed that too, but checked anyway and found the IP resolved to a server in St Louis.
My server widget tells me that MyFolia uses a US server.
“Seeds of hybrids aren’t true, so those seeds surely count as satire, which should be legal.”
Ok, that’s just brilliant :) I love it! I’m saving it and hope you don’t sue me for copyright infringement ;)
On the hybrid note, I recently had a green squash volunteer from my compost. Just weird. I have no idea where it came from.
Doing what a lot of pharmaceutical companies do – synthesizing something exactly as found in nature but tweaking one little bit so it can be patented – is wrong in my opinion. And dangerous. But I’m in favor of short-term patents for plant breeders to make back at least what they put into research and development. Breeding plants, especially fruit trees, takes time and money. Many trees take 7 – 15 years to come into bearing maturity. That’s 7 – 15 years you’re paying water, fertilizer, labor, property tax, etc. etc. just to wait long enough to see if the fruit is worth eating. Now, if the US and UK were doing the best for their citizens, they’d be beefing up their plant research stations instead of starving them for cash as they do. Presumably discoveries made by national public labs would be available to the public because the public has already paid for them through taxes. It takes work, know-how, and dedication to breed plants and I don’t see why those who do it shouldn’t be paid for it. Just not in perpetuity.
I’ll second that Spidra.
I had not really thought about patented plants until I read this thread a while back, and it bothered me, ever so.
I don’t know what things are like elsewhere, but here there is a kind of informal tradition of sharing plants with your friends. When I moved in to my house a bit over ten years ago, and showed an interest in turning the gravel and concrete in to a garden, a couple of my neighbours came over with some plant divisions, seedlings from their lawns and a few propagated bits and bobs. I still have some of them and their offspring growing in my patch now.
I have a tiny garden, and it is hard keeping colour and interest in it, as any plant growing in it has to work twice as hard to look good all the time. I love flowers, scent and colour, so you’d think that I would be crying out for hybrids, but I don’t.
Sure, I have a lot of plants that I have bought from garden centres over the years, but I also have a lot of friend plants, and I like sharing them. God forbid that we end up with gene police over here. There is something fundamentally good about sharing something that grows, a necessary thread of humanity in an increasingly inhuman world.
There is something wrong about patenting a living growing part of nature, in my opinion, if that patent makes it illegal for people to share it amongst themselves not for profit. Even if you’re responsible for mixing up the genes a bit, you’re not responsible for the base mechanisms that make it grow, reproduce and propagate.
Having heard the story of a Monsanto Canada Inc. v. Schmeiser where Monsanto sued a farmer because their GM seeds blew from his neighbor’s yard into his, and won… I’m really disgusted. Plus, they have apparently put people in jail for years for saving the seeds of plants they bought.
Spidra, I both agree and disagree with you. I absolutely think you’re right about people recouping their investment. I’m not sure that that should mean that people shouldn’t be able to share cuttings as long as they don’t ask for payment. I really don’t think that you shouldn’t be allowed to save seed. The line’s pretty blurry.
On the other hand, I don’t have as much of a problem with pharmaceutical companies, because they create a man-made chemical product, though it may come from natural ingredients. There’s something about the plant being alive that to my mind means that a company really shouldn’t be able to totally claim it.
Even so I don’t like this copy right but I think is fair enough to have just certain level of ‘’Propagation right’’ protect over certain period, like u are allow to propagation the plant as long as is for non commercial which mean u allow to grown them again for youself or friends.
But then for commercially are not allow the propagation the plant after it first come in the market maybe set a time frame like 20 year or 5 year..depend tree may long period, flower can be short period coz they do put a lots of effort and should get something in return.
wow.ill have to watch what i buy now. i dont like the idea of spending my money,time, n work to grow somthing i cant save seeds from. thats what we gardeners do lol.
found this link if it helps. im getting lost in the google world now.lol