The Sustainable Seed Innovations Project: Supporting a Smooth Implementation of the Three-Pronged Approach to Sustainable Seed Innovation – Legal & Ethical Issues (Part I)

In the next four part post in the ongoing series on The Sustainable Seed Innovations Project, Dr. Mrinalini Kochupillai, co-investigator, Sustainable Seed Innovations 2.0 Project and corresponding author of the forthcoming SSI 2.0 Position Paper for the Government of India, identifies key legal hurdles that currently prevent sustainable seed innovations in India. The post also discusses how blockchain/DLT, coupled with AI/Machine learning applications can potentially help overcome these hurdles. The fourth part of this blog post also highlights certain ethical issues that might arise when rolling out technological solutions based on blockchain/DLT/AI. The post recommends that these ethical issues be thoroughly researched from multi-disciplinary as well as multi-stakeholder perspectives, in order to ensure that the prescribed solution does not lead to new problems. The necessity to neither roll out nor reject a promising technology that is at its nascent stages of development is also highlighted.

Supporting a Smooth Implementation of the Three-Pronged Approach to Sustainable Seed Innovation: Legal & Ethical Issues (Part I)

Mrinalini Kochupillai

There is little doubt that all existing legal rules and regulatory frameworks operating in the sphere of agriculture, whether it be seed quality related laws, laws protecting intellectual property, or those preventing unauthorized access and use of (agro)biodiversity, are all established with the best of intentions. In fact, unlike in several other spheres of human activity, these laws were also passed based on the dominant scientific understanding prevalent at the time the law was passed. With science rapidly changing its mind about what kind of agriculture is truly sustainable (from an economic, socio-cultural, environmental and a continuing innovation perspective), laws and policies governing/managing agriculture and associated seed related innovations must also be revisited. This segment of the position paper gives an overview of some of the major legal regulations that have an impact on sustainable seed innovations, makes recommendations for amendments to these law where necessary, and discusses how (re)education (Prong 2) and modern technologies such as DLT/Blockchain (Prong 3) can support existing laws to bring about a smooth transition towards sustainable seed innovations. This section also highlights key ethical issues that need to be borne in mind while implementing solutions based on these technologies.

(i) (Agro)Biodiversity Access and Benefit Sharing: Re-assessing and re-organizing regulatory check-posts

The most important international instruments in the field of conservation and sustainable use of (agro)biodiversity are the Convention on Biological Diversity (CBD) (together with the Nagoya Protocol), and, in relation to seed diversity, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA, also called the “Seed Treaty”).[1] Both instruments seek to promote ex situ as well as in situ conservation of (agro)biodiversity, while also highlighting the importance of establishing equitable access and benefit sharing mechanisms. As discussed in Prong 3, hurdles associated with lack of incentives (to continue in situ cultivation and innovation with agrobiodiversity) on the one hand, and lack of trust, transparency and traceability vis-à-vis the acquisition and use of PGRs on the other, lead country level regulations implementing these international treaties and protocols, to introduce several bureaucratic checkposts with two very well-meaning goals in mind: (i) the prevention of biopiracy, and (ii) ensuring that equitable benefits are shared with communities who share their PGRs and associated know-how.[2] What we witness, however, is that despite these bureaucratic check-posts, little to no benefit sharing activity is ongoing.[3]

According to experts, the contributions to the Gene Fund established under the PPV&FR Act, as well as funds collected by the Biodiversity Authority, are negligible if not non-existent.[4] It is necessary to look carefully into the reasons for this and to determine whether these check-posts might be acting as hindrances rather than as means of facilitating beneficial exchange. Essentially, any check-post established under the biodiversity law and/or the PPV&FR Act must:

(i) Ensure that no biodiversity (PGRs) leaves the possession of those who are contributing it, without the consent of the contributors, payment of a proper price (commensurate with the intended end use) and guarantee of traceability of downstream uses and sharing of benefits resulting from such use; and

(ii) It must also ensure that those who are seeking PGRs in return for fair benefit sharing, do not get disinterested or disillusioned by excessive red tape.

Within Indian as well as international legal frameworks associated with the protection of (agro)biodiversity and benefit sharing, several amendments may be necessary to make the current check-posts more mutually beneficial for contributors and users of PGRs.  Discussing each of these in detail is beyond the scope of this position paper. However, it is recommended that to the extent the check-posts under existing regulations (such as under the Biodiversity Act and the PPV&FR Act) have failed to create atmospheres of trust and facilitate mutually beneficial transfers and exchanges of biodiversity and associated genetic resource,[5] it is worth exploring DLT/Blockchain technologies (as discussed in Prong 3) that are created with the aim of resolving problems of lack of trust via automation and via shift of trust into the hands of those that are more trusted by local/rural communities. This would incentivize mutually beneficial transfers of agrobiodiversity and PGRs contained therein. However, the manner in which these technologies are structured, needs careful consideration and must be backed by ethical codes as well as concrete regulation. These are discussed in the last sub-section of this four-part post.

Before the DLT/Blockchain based solutions are implemented, some key amendments to international legal instruments and corresponding national laws are recommended. This is done in Part II of this four part blog post.

[1] Robinson, (2014).

[2] Prip and Rosendal, (2015); Kamau, Fedder, and Winter, (2010).

[3] Dutfield, (2002); Tsioumani, (2018).

[4] Patnaik, Jongerden, and Ruivenkamp, (2018).

[5] Chen, (2019); Baker, Jayadev, and Stiglitz, (2017).

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