The Open-Source Seed Licence
The Open-Source Seed Licence
Privatisation: a threat for seed diversity
Traditionally, seed is a commons. However, more and more seeds are being privatised based on patenting and plant-variety protection. Only a few international companies hold control over the global seed market. With their breeding programmes, they are promoting a largely uniform agriculture with only a few crops and varieties spread over large areas. They are limiting free access to breeding materials through interlectual property rights. This reduces plant diversity and increases the dependence of our agriculture and our lives on a narrow and increasingly powerful corporate sector.
Open-source: for software and now for seed
Until now, it has not been possible to protect seed legally as a common good. If breeders forego plant-variety protection and grant unrestricted access to their varieties, there is a danger that these can be converted into a private good by other breeders. In other words: commons could be created but not protected from private appropriation. The open-source seed licence is a way to prevent patents and variety protection for good. The open-source rules were first defined for computer software, which led to the development of Creative Commons Licences, and are now being applied to seed.
Copyleft: a viral obligation
The seed licence permits use of the seed for all purposes: to multiply it, to pass it on and to use it for further breeding. Any enhancements that have been made to the seeds are subject to the same rights. The licensee is not permitted to restrict usage by any means (e.g. through patents or variety protection). This obligation is viral and is sometimes called “copyleft” because not only the licensed seed itself but all enhancements to it are included. With the first licensing, a chain of contracts is started, which in principle is endless. Licensees become licensors, who pass on the seed with the same licence. In doing so, the licence gives long-term protection to a public good that can no longer be converted into a private good.
The 3 open-source rules
There are no licensing fees and the licence for open-source seed allows almost everything:
- Anyone may use open-source seed, grow it, propagate it and develop it further through breeding. In addition, the seed and any further developments of it may be sold, exchanged or given away within the framework of existing laws.
- No one is allowed to privatise the seed and its further developments; patent and plant-variety protection are thus excluded.
- Each recipient transfers the same rights and obligations to future users of the seed and its further developments.
Open-source licence agreement
You can download the licence text in full length as pdf or take a look here:
Open source licence for seeds
By acquiring and using the seeds purchased under the terms and conditions of this licence agreement you, as the Licensee, accept the provisions of this licence agreement. The purpose of these provisions is the free use of seeds. The Licensor is the natural or legal person who hands over these seeds to you. The Beneficiary of the licence agreement is AGRECOL e.V., a registered association.
In order to achieve the objective of free use, enhancement, cultivation, dissemination and propagation of seeds, without there being a monopoly taken advantage of by individuals, any use of the seeds is only permissible in accordance with these licensing provisions. As a Licensee, you undertake to limit the use of these seeds or the propagation of them and enhancements vis-à-vis third parties exclusively to the manner stipulated in this licence. You will in particular refrain from making any claim to plant variety rights, patent rights or any other statutorily possible exclusivity rights of the seeds or their propagation and enhancements.
Simultaneously, the licensing provisions oblige you, in turn, to subject any seeds or enhancements of the seeds obtained from the present seeds to these licensing provisions, and only to pass them on to third parties on these conditions (“copyleft”). Should you infringe the obligations arising from this licence agreement, you will forfeit your rights of use of the seeds or any seeds or enhancements obtained therefrom. In addition, the Beneficiary shall, in such cases, be entitled to require you to cease and desist and make a payment, as stipulated in this agreement (agreement to the benefit of third parties).
1. The following definitions apply to this licence:
1.1. Seeds. Seeds, within the meaning of this agreement, shall mean, dormant generative reproductive organs, such as seeds, fruits, pseudo-fruits, fruit clusters or parts thereof, as well as any vegetative plant organs from which whole plants can be generated – by whatever method –, as well as pollen, and all informational components therein, which have in each case been placed on the market underthe terms and conditions contained in this licence or has been obtained from such seeds through propagation or has been enhanced.
1.2. Propagation shall mean any type of reproduction, i.e. the new or further generation of seeds. Propagation shall also include technical methods of extracting genetic information for the purpose of generating seeds with certain characteristics, including any methods that are unknown today.
1.3. Placing on the market: The offering, keeping in stock for distribution, keeping for sale, and any handing over of seeds to another party.
1.4. Enhancements shall mean culture or breeding of new plants, in regard to which these seeds have, under this licence agreement, been involved, at at least one point, in the course of the development – regardless of whether such enhancements concern varieties, populations or other plant groupings or individual plants or parts of plants.
1.5. The copyleft principle obliges all future plant growers to grant users of their enhancements the same rights as those that they have enjoyed themselves.
1.6. Licensor: The previous owner of the seeds, who is rightfully handing them over to the Licensee under the terms of this License, conferring the rights of use of the seeds according to Article 3.
1.7. Licensee: Anyone who takes possession of or utilises the seeds in accordance with these licensing provisions.
1.8. Beneficiary: AGRECOL e.V., Hauptstr. 15, 88379 Guggenhausen
2. Conclusion of the agreement
(1) With these licensing provisions, the Licensor declares vis-à-vis everyone that she or he is making an offer to conclude a licence agreement on the granting of rights of the use of the seeds in accordance with the following provisions. The agreement shall materialise once the Licensee acquires the seeds, or otherwise obtains them with the consent of the prior owner, however at the latest once he or she opens the package of seeds. The declaration of acceptance does not need to be received by the Licensor.
(2) Upon concluding the licence agreement, the Licensor hereby assigns his or her rights arising from the licence agreement, in particular the cease and desist rights and compensation rights for damage in accordance with Article 6, to the Beneficiary.
(3) This licence agreement is to be understood as a contract under civil law. It shall, be deemed to have been accepted as being legally mandatory by all Parties, from the moment of acquiring the seeds or opening the packet, once the Licensee begins to make use of the seeds, even if the Licensee contests the terms and conditions of the licence agreement.
3. Scope of the licence rights
(1) Upon the materialisation of the licence agreement, the Licensee will be granted the right to use all the seeds, as he or she has received them, under the terms and conditions of this licence.
(2) The seeds may be used for any purpose, and by anyone who accepts the terms and conditions of this licence, in particular also for enhancement.
(3) The Licensee may pass on the seeds to others, propagate them, enhance them and disseminate propagated or enhanced seeds, however only on the condition that he or she provides a copy of the licence agreement to all other parties to whom he or she disseminates such seeds, which will also legally bind any third parties to this licence agreement, and provides the Beneficiary, with evidence of having done so, upon request. This legal binding of said parties may be carried out in writing or verbally, or by way of an implicit declaration of consent on the part of such third party. Enhancements are, after being disseminated, to be regarded as “seeds” within the meaning of this licence.
(4) The copyleft principle obliges the Licensee to impose the same rights and obligations on the future owners of the seeds, any seeds propagated from the latter or enhancements of the seeds as he or she personally acquired and assumed. Any limitation of the rights in the seeds vis-à-vis third parties going beyond that, in particular any limitation based on statutorily granted special protective rights (plant variety rights, patent rights, trademark rights, copyrights, etc.) is prohibited and illegitimate.
4. Plant material index
(1) The Beneficiary may provide its own plant material index, in which all groupings of seeds (identified according to characterization criteria) and their enhancements are included. Any enhancements undertaken by the Licensee have to be provided to the Beneficiary in the form of a viable and propagatable seed sample for incorporation into the plant material index.
(2) The plant material index will be published by the Beneficiary on its website once it has been prepared.
(3) The use of any varieties and enhancements that are included in this plant material index may not be limited in any way other than through the provisions of this licence agreement.
(4) The origin and properties of the material will be published by the Beneficiary in the plant material index, and can be reviewed there at any time.
5. Rights of third parties and governmental prohibitions
Should the Licensee be obliged to deviate from these licensing provisions, based on rights of third parties or governmental prohibitions, in whole or in part, when utilising the seeds, he or she may only use the seeds and propagations thereof for personal, non-commercial purposes.
6. Lapse of the rights upon infringing the licensing provisions
(1) Should the Licensee infringe these licensing provisions, his or her rights of use of the seeds or their enhancements will lapse immediately. A claim may in particular be made against the Licensee by the Beneficiary, to ceasing and desisting from disseminating the seeds, propagating the seeds or enhancing the seeds as well as to compensate damages.
(2) The expiry of the rights of use in accordance with paragraph 1 shall not have any influence upon the rights of other users, as long as the latter do not infringe the licensing provisions themselves.
7. Applicable law, place of jurisdiction, any other provisions
(1) These licensing provisions shall be subject to German Law.
(2) Should one of the above clauses transpire to be invalid, it shall not affect the validity of the remainder of these licensing provisions.
(3) Should the Licensee be a trader, legal person under public law or special public law funds, the place of jurisdiction shall be Berlin.
(4) The Beneficiary shall be entitled to assign his or her rights arising from this agreement in writing to third parties at any time.
(5) Should one of the provisions of this licence agreement be or become invalid, ineffective or unenforceable, this shall not affect the validity of the remaining licensing provisions. Rather, the provision concerned shall be replaced by a valid and effective provision which comes closest to the economic intention of the contracting parties, in particular the objectives of the licence agreement laid down in the recitals.
In order to be able to provide anyone with the rights to freely use the seeds in accordance with these licensing provisions, every time the seeds are passed on the following or a substantially equivalent reference to the applicability of this licence and its source is to be displayed clearly and attached.
Open source licence for seeds – text for the package:
Seeds with the same rights and obligations for all
By acquiring or opening the packet of these plant seeds you accept, by way of an agreement, the provisions of a licence agreement where no costs shall be incurred to you. You especially undertake not to limit the use of these seeds and their enhancements, for instance by making a claim to plant variety rights or patent rights on the seeds’ components. You shall pass on the seeds, and propagations obtained therefrom, to third parties only on the terms and conditions of this licence. You will find the exact licensing provisions at www.opensourceseeds.org/licence. If you do not wish to accept these provisions, you need to refrain from acquiring and using these seeds.
Kotschi, J. and Rapf, K. (2016): Liberating seeds with an Open Source Seed (OSS) Licence. Working Paper. AGRECOL. Guggenhausen.
Distribution of open-source seeds
If you pass on open-source seed, you need to inform the recipient about the open-source licence and its rights and obligations. This means that you must provide a copy of the licence agreement or its summary together with the seed. Depending on the type and quantity of the material, there are several simple options.
Acknowledgement of the licence can be given orally or in writing. The recipient’s signature on the licence agreement is the best way to prove that the person accepts the terms of the licence. We recommend to add this information sheet when shipping large quantities of seed.
In the case of smaller quantities, you need to print this short text on the seed packet. With acknowledgment of this text, the contract is concluded.
Seeds with the same rights and obligations for all
By acquiring or opening the packet of these plant seeds you accept, by way of an agreement, the provisions of a licence agreement where no costs shall be incurred to you. You especially undertake not to limit the use of these seeds and their enhancements, for instance by making a claim to plant variety rights or patent rights on the seeds’ components. You shall pass on the seeds, and propagations obtained therefrom, to third parties only on the terms and conditions of this licence. You will find the exact licensing provisions at www.opensourceseeds.org/licence. If you do not wish to accept these provisions, you need to refrain from acquiring and using these seeds
Also if you sell seedlings, you are obliged to inform the buyer about the licence agreement, as new seed can be obtained from the fruits. Simply attach the printed short text to the pot of the seedling, for example, on a plant marker.
Explanations about the licence
1. Legal explanations
The licence protects seed, not varieties.
It is a material-transfer agreement that confers use rights together with the material. When the material is transferred, a contract is entered into that ensures the mutual rights and duties concerning such material, as well as all future developments of that material, in perpetuity. The contract also implicitly refers to the genetic information contained within the material.
The term “variety”, however, denotes something immaterial and cannot be subject to a material transfer agreement. The open-source licence differs fundamentally from plant-variety protection. Rights to a variety – i.e. something immaterial – can be held only by someone with intellectual property rights in this variety. Such rights in a variety may be granted by the State, but a variety (which is immaterial) can be marketed only as seed (which is material).
Independently from this, breeders may also register open-source licensed varieties in Germany under the provisions of the Seed Marketing Act. Seed that is registered as a variety in the catalogue of the German Federal Office of Plant Varieties can then be marketed as such.
The licence – a contract under civil law
The open-source licence that we developed is a “sui generis contract” and falls under the General Business Terms and Conditions of German Civil Law (BGB). This can be regarded as general terms of service because it is stipulated by a single party, is not individually negotiated and is intended for use in multiple transactions. A basic feature of the open-source licence is that the user receives, free of charge, a simple use right on the condition that he or she makes available for public use, under the same conditions, any development or enhancement to the seed that he or she may have made.
Disclosure of the licence
The licence is a civil contract. Such contracts may be made verbally, in writing or implicitly through actions. If you want to sell, give away or exchange seeds under the open-source licence, you must – unambiguously – disclose the licence conditions of the transfer. Paragraph § 305 II BGB (German Civil Code) states that the licensor (the issuer of the general terms of service) must expressly point out to the other party (the licensee) the terms and conditions of the licence and provide the possibility for the licensee to read these terms and conditions carefully in order to reasonably comprehend them. In addition, the licensee must agree to their validity.
This means that any transfer is valid only if the licensee is fully aware of the terms and conditions of the licence. For this purpose, an abridged version with reference to the full-text version online is sufficient.
For professional traders, who for instance sell seeds in small quantities in supermarkets or garden centres, it means that an abridged version of the open-source licence must be printed on the packaging of the seeds with reference to the online full-text version. In the case of individuals (farmers etc.), the licensors must ensure that a copy of the licence accompanies the materials being transferred; they must explicitly inform the recipient (the licensee) of the materials about the terms and conditions of the open-source licence.
The licence is legally enforceable. An infringement occurs when open-source material is used for the development of a variety that is to be covered by a patent or plant-variety protection.
Infringements can be proven by:
- an inspection and analysis of the documentation on the pedigree and the breeding process of the new variety; since 2016 a detailed documentation for every breeding process is mandatory;
- a comparison of phenotypes and other varietal characteristics.
Such a proof of infringement can be fairly simple in some cases and quite elaborate in others, but generally, licence violations can be proven and prosecuted in court.
But we are not Big Brother. We consider it a common task and the responsibility of all users to ensure that open source remains open source, as unpunished licence violation could have negative repercussions for everyone. Our idea is also to initiate a social process in which everyone is responsible and everyone takes part in sharing observations.
A breach in the chain of contracts arises if the licensor does not inform the licensee of the licence terms or if the licensee ignores them. However, such a breach of contract comes into effect only if the variety in question or its further developments are subjected to private property rights (e.g. patent or plant-variety protection). If, after a breach of contract, open-source seed is used only for private cultivation, a breach of contract is legally relatively unproblematic for other users of the common good.
The validity of the license remains unaffected
A breach in the chain of contracts is legally protected by the following mechanism: If a licensee breaches the contract, the rights of use derived from the licence agreement expire immediately. And you cannot legally transfer rights you do not possess. Thus, any transfer of the seed to third parties is no longer legally possible.
If an unlawful transfer subsequently takes place, the recipient of this seed may be prosecuted if, for example, he or she puts a variety that is protected by a patent or plant-variety right on the market. This also applies if the recipient was not aware of the licence conditions at the time of acquiring the seed. This is where the Nagoya Protocol [Verlinkung] helps us, because – under its regulations – the user of genetic resources must be able to document and prove that he or she has lawfully acquired the genetic resource and concluded agreements on benefit sharing. The Nagoya Compliance Documentation created by the user must state whether and what specific restrictions and conditions apply.
A breach in the chain of contracts can be repaired
A breach can be repaired directly by the recipient who obtained the seed unlawfully, by acting from the beginning of possession as if the licence agreement had been validly concluded. (§6 (2) Licence text).
2. Financing open-source licensed varieties
It is often argued that it would be impossible to finance plant breeding with an open-source licence and without royalties from plant-variety protection or patents on seed. This argument can be refuted in several ways. Seen historically, most agricultural seeds were developed without a compulsory levy. In the Global South, most plant breeding does not follow a business model based on royalties and, even in countries in the Global North, there are private breeding companies that do not rely financially on exclusive IPRs.
Commonly owned seeds are a benefit for society as a whole
Another aspect may be even more important. Common-property seeds are more than just inputs in agricultural production. Their use benefits society as a whole in that they are essential for maintaining biodiversity, cultural landscapes, ecosystem system services as well as the capacity to adapt to climate change. These services are less and less provided by the business model currently followed by the private seed sector. If the plant breeding leads to benefits for society as a whole, then not only farmers and direct users should be helping to share the breeding costs. Processors, traders and consumers – the entire value chain – and also the State should contribute. Plant breeding that aims to create a commons is a non-profit rather than a profit-making economic activity; it must be clearly distinguished from seed production, which has indeed an economic character.
Many organic cereal and vegetable breeders in Europe finance their breeding activities partly through “variety development contributions” that are negotiated between breeders, seed producers and farmers. Some charge a small levy on traded items or raise funds from government programmes and donors. The funds generated in this way for plant breeding are still small but they are growing from year to year. More information can be found in the paper “Who pays for seeds?”.
3. Open-Source and genetic engineering
The open-source licence protects seed as a commons and offers an alternative to privatisation and market concentration of the seed sector. We are often asked if the licence can also protect against genetic engineering. Our answer is “Yes” and we argue as follows.
Genetic engineering – a set of changing technologies
“Genetic engineering (GE) in plant breeding” includes several different technologies, and new ones are continuously emerging. What is regarded as GE therefore cannot be precisely defined and regulated by law once and for all. Only some of the technologies fall under the GE law and, according to the decision of the European Court of Justice, now the much-discussed methods of CRISPR-Cas. Another obstacle to legal regulation is the fact that the GE methods developed today are striving for absence of residues, which means they are no longer detectable, so that legal prosecution in case of suspected non-compliance could be evaded. To some extent, this is already happening.
Open-source – a contract for perpetuity
The open-source licence prevents privatisation as it prohibits seed from being placed under exclusive intellectual property rights such as patents and plant-variety protection. However, the licence does not prohibit the use of certain plant-breeding techniques, be they genetically engineered, classically bred or created by a method unknown today – and this for good reason. As the methods of GE are constantly changing and being further developed, a licence that “prohibits genetic engineering” would have to be constantly adapted. But this would not make any sense because – with its copyleft principle, i.e. the transfer of seed-licensing terms to subsequent generations of seed – the licence is designed for perpetuity. With this mechanism, the licence creates a lasting commons and cannot be changed every time a new method of GE is put on the market.
Open-source – an indirect lever of protection
Nevertheless, the licence does protect against GE. All GE processes, including CRISPR-Cas, are time-consuming and require comparatively high investments in plant breeding. It is repeatedly claimed that the new methods are very easy to handle and therefore very cost-effective but, to our knowledge, this assumption is wrong. Should it be possible to combine individual desired traits through genome editing, classical plant breeding would then have to follow in order to create a high-performing new variety. Plant breeding therefore remains a lengthy process. In addition, high costs for approval and compliance will be necessary for market introduction, in the range of two to three million Euro. Economically, such expenditures can be justified only in conjunction with patenting, which is excluded by the open-source licence.
Open-source prevents what the community does not support
As long as a majority of the general public rejects the use of GE in plant breeding and is not prepared to provide public funds for this type of plant breeding and the necessary approval procedures, there will be no development of non-proprietary open-source GE varieties. Moreover, this would not be an efficient use of funds, as the high costs of gaining approval of a single GE variety could be used for the classical breeding of about one hundred varieties useful for agriculture.
Thus, the open-source licence does not prohibit GE de jure but it does prevent it de facto. We regard the licence as a good protective mechanism and are not aware of an equally valid alternative.