We’re pleased to bring to you a guest post by Eashan Ghosh on the recent Delhi High Court decision restraining various e-commerce platforms (including Amazon, Flipkart and Snapdeal) from enabling sale of products of ‘direct selling’ companies without their consent.

Eashan has been in practice as an intellectual property advocate and consultant in New Delhi since 2011, and teaches a seminar on intellectual property law at National Law University, Delhi. Eashan writes about Indian intellectual property law, including a monthly review of Delhi High Court judgments, on his Medium page. He has written guest posts for us in the past as well (see here, here, here, here, here, here and here).

“A Sherlockian Venture”: The Delhi High Court Shuts Down (Genuine?) E-Commerce Sales Unauthorized by Trade Mark Claimants

Eashan Ghosh

A Delhi High Court ruling last week returned an interim injunction ruling in favour a group of seven claims (instituted by Amway, Oriflame and Modicare) restraining various e-commerce platforms (Amazon, Flipkart and Snapdeal among them) from permitting sellers from supplying products on those platforms unauthorized by the Claimants.

This follows on from some heavy traffic before the same Court late last year on the question of whether these e-commerce platforms can be treated as pure intermediaries in such cases.

The Court returns four findings of note. First, it finds that the Defendants are in violation of the 2016 Direct Selling Guidelines. Second, it holds that the Defendants are liable for trade mark infringement. Third, the Defendants, as e-commerce platforms, are directed to comply with due diligence requirements to sustain access to safe harbour protections under the IT Act. Finally, the Defendants’ actions are ruled to constitute tortious interference with the Claimants’ contractual relationships with their direct sellers.

This essay addresses some issues flowing from the trade mark infringement portion of the Court’s findings.

The Claim

The core of the Claimants’ case is this: it apprehends that the products sold by various sellers (one set of Defendants) are original articles manufactured by the Claimants that have been secured from the open market by unauthorized means or via leakages in the Claimants’ supply chains. These are being impaired or tampered with ahead of re-sale to consumers via various e-commerce platforms (the second set of Defendants).

They allege, further, that the products are sold on e-commerce portals under the Claimants’ original names / brands for cheaper prices, which cause financial losses to them and their direct sellers. The Claimants allege, finally, that the sales on e-commerce portals are concluded with little information on the real sellers, which make it difficult for consumers to identify them in case of grievances, leaving the reputational damage caused to be borne by the Claimants.

The former claim, in particular, opens up the question of whether a defence under Section 30 of the Trade Marks Act is tenable. The latter claim, specifically, sets up a consequence-based case for recognizing trade mark infringement by way of dilution.

I now take up both in turn.

“Direct Selling”

The Court variously refers to “direct selling” as a “unique system”, as having a “unique character and impact”, having a “unique nature”, being “unique in nature”, “unique business”, and a “unique method of distributing and selling [products]”. However, by condition, it offers no point of difference from a network of contracted authorized distributors. Direct sellers are also bound by a Code of Ethics, but this is little else but a stack of contractual conditions tacked on to the contract between the manufacturer and the distributor.

The only sticking points identified in the entire ruling are that the products sold must:

(i) be genuine,

(ii) not be tampered with at the point of sale, and

(iii) abide by some specific post-sale conditions that the seller is obligated to meet, such as a money back guarantee or refund.

In every other way, “direct sale” is understood on parallel with common sale through distributors, and to essentially exclude retail sales and e-commerce sales, but nothing else. (The Court, likely deliberately, uses the term “distributors” synonymously with direct sellers at several places.)

The Defendants’ Actions: Performative and Negative

This presents a rather blunt question about the claim: how are the Defendants getting a hold of the Claimants’ products for sale at all?

The Court’s response to this is to believe the only version that emerges from the Defendants. Their case, says the Court, is that the products “have passed through various distribution channels”, that their sellers “have represented [that the products] are genuine”, and that they have “executed contracts with [the sellers] with necessary warranties” about the genuineness of the products and the legitimacy of the proposed sales. Some other sellers, it appears to the Court, “have clearly procured the products through unauthorized channels”, since they “cannot be legitimately traced back” to the Claimants.

On the substance of the activities themselves, the Defendants’ actions appear, at the interim stage, to be both performative and negative.

On the former front, the Defendants’ e-commerce platforms offer any manner of facilitation to these second-sales. They run their own advertisements, offer their own genuineness guarantees, present endorsement via name association with the Claimants, and even have their own refund and return policies. (That they do not offer the latter for some products is, in itself, a crucial point of difference with the direct selling model).

Naturally, these may qualify as infringement if the original sale does not bear the Claimant’s consent.

On the latter front, however, sellers through the Defendants’ platforms are charged with tampering with the products (specifically, erasing identification barcodes, re-packaging and re-labelling products at warehouses owned by the platforms, and fiddling with MRP listings), and not supplying full and verifiable details of the sellers themselves.

This is supported by Commissioner reports, customer reviews, and the violation of the Defendants’ own terms of use agreements with their sellers. These infractions are decidedly blacker against the Defendants since they are prima facie actionable to some degree, even if there is doubt about trade mark law being the correct mechanism to access corrective action.

The Section 30(4) Defence

In the present instance, the Court merely commits to taking down the primary defence offered for re-sale of genuine products relied on by the Defendants here. This is embodied by the October 2012 Delhi appeals decision in Samsung v Kapil Wadhwa, which hewed a restrained exception for re-sale of genuine products outside authorized distribution channels.

This Court correctly identifies that the case before it must be tested against Section 30(4) of the Trade Marks Act, rather than Section 30(3), which had principally captured the Samsung Court’s attention.

Section 30(4) permits a Claimant to bring an action for infringement against a re-seller even if such re-sale is of a genuine product sold directly on from the Claimant’s distribution network, if the product has been changed or impaired after the first sale.

The provision recognizes that, while the Claimant may have extracted its commercial reward from the product at the point of first sale, it retains a legally protectable interest in the product if it is ultimately delivered in such a condition that would harm its value or goodwill in the market. In effect, it protects the right of an infringement Claimant to file suit purely on dilution grounds.

It may also be surmised – though authority for it in the Indian context is sketchy – that the stricture intends to benefit of consumers as well, by enabling the Claimant to weed out deficient but genuine products prior to re-sale.

Set against Section 30(4), the claim, as framed, really has no option but to succeed. Re-packaging, re-labelling, removal of barcodes, and several other instances of tampering with the integrity of the product are all acts which fit comfortably within the scope of the sole Samsung passage which interprets the words “changed or impaired” under Section 30(4).

There may have been room for a considerably more complex outcome if the focus of the Court had instead been contrasting the present case with the Samsung Court’s decision to permit the Defendants before it to carry on business simply by clarifying and prominently displaying their own post-sale conditions of service.

Nevertheless, the scale of the alleged tampering involved appears to be considerable. Combined with the conceivable difficulty of ordinary consumers being faced with what the Court calls “a Sherlockian venture” in getting to the bottom of who actually sold them a potentially compromised product, this consequence, on balance at least, points to a case in Claimants’ favour.

A pithy phrase summarizing the Court’s finding – “the purchaser re-sells the goods of the producer, and stocks and displays the goods, but does no more” – is a good rule of thumb to judge such second-sale infringement claims by.

The Nature of E-Commerce

A smaller finding, but perhaps one that may gain momentum with time, is also returned here: that the Defendants’ depiction of the Claimants’ trade marks in advertising, promotions and meta-tags is impermissible.

To allow this, says the Court, “the products have to be genuine, untampered and [the Claimant’s] consent would be required”. This very framing, though unacknowledged, is slightly at odds with the Samsung ruling (which had summarily shut down the possibility of recognizing meta-tagging as nominative fair use for Defendants selling genuine products), but it is also a necessary corollary to the finding of infringement.

Far more curious is the Court’s suggestion that the nature of e-commerce platforms itself is so unstructured such that all sales via this route may have to be treated as an exception to the exhaustion principle, simply for their capacity to impair products and dilute trade marks.

The Court does not commit to a position on this – perhaps influenced by the fact that the case for trade mark violations made out by the Claimants was rather thin on the ground – but it promises to be an issue of considerable interest going forward, perhaps as early as an appeal.

What Next?

The stakes involved in these suits should precipitate what I call “matter of course” appeals: an escalation up the judicial chain justified not solely on the merits of the impugned ruling but also dictated by the common sense of exhausting appeal on the chance that an appeals court may kill the injunction.

The wide sweep of the injunctions heightens this likelihood as well. The Defendants, by this interim decision, are required to not only take down all listings of and forsake commercial activity on Claimant products to which the Claimants have not consented, but must also supply detailed seller data on all Claimant-approved products.

Even otherwise, the construction of the injunction may be worth modifying, whether on technicalities (because compliance presents second-degree difficulties, or conflicts with other legal obligations), on sampling objections (the material presented to the Court may not be fully representative of the Defendants’ business), or for other reasons best known to the litigants.

For the moment, however, it offers a clear yardstick on which to judge such claims from a factual standpoint, even as their trade mark underpinnings appear harder to locate than they did before.

The World Intellectual Property Organisation (WIPO) was created in 1967 as an international, multi-stakeholder body to ‘encourage creativity and protect intellectual property throughout the world.’ It’s a matter of concern, therefore, when a body ostensibly meant to represent diverse interests in matters of intellectual property development chooses to develop a private, arbitrary and non-transparent ‘blacklist’ meant to target advertisement funding of websites.

WIPO’s latest proposal, known as the “Building Respect For Intellectual Property Database Project”, is described as – “a secure, access-controlled online platform, to which authorized agencies in WIPO Member States may upload lists of websites which deliberately facilitate the infringement of copyright. Legitimate players in the advertising industry are permitted as authorized users to employ the data contained in the lists to inform the placement of advertising on the Internet. By checking with the Building Respect for Intellectual Property Database (BRIP Database), advertisers can ensure that their advertising does not accidentally appear on copyright-infringing websites.”

The intention, according to WIPO, is to endorse a ‘follow the money’ approach to combat online infringement, namely, to starve funding to websites which are flagged as copyright infringing, and points to several jurisdictions where a similar approach has been followed. The WIPO points to the complex nature of the online advertisement system as a cause for infringing websites continuing to receive advertising funding, and sees this blacklist as a means to automate and streamline how advertising service providers, as well as advertisors, can effectively identify and block funding to ‘illicit’ sites, citing, among other reasons, the ‘brand dilution’ that takes place when an advertisors product ends up on an illicit website.

Schematic of the Operation of the BRIP Database. Source: WIPO

While happily endorsing the creation of a blacklist which could result in the shutdown of several websites, the WIPO proposal is startlingly silent on ensuring that legitimate websites and resources are not arbitrarily starved of funding by this automated and unverified system. Sample this paragraph where it nonchalantly washes its hands off any responsibility to ensure the authoritativeness of this list, and states that the inclusion is based on the mere suspicion of private parties –

“The operation of the BRIP Database is not based on any assertion by WIPO that any particular site has, as a matter of law, infringed copyright. Rather, the qualification for inclusion of a national list on the platform is that the list contains “sites of concern”. A site of concern is defined as “an online location which is reasonably suspected by an Authorized Contributor of deliberately infringing or facilitating the infringement of copyright and related rights, whether in its country of establishment or elsewhere”.

As for ‘Authorised Contributors’ who are allowed to submit proposals for inclusion on the list? It will be based on a secret User Agreement between the contributor and WIPO, the terms of which the proposal is silent upon. Ditto for the ‘Authorised Users’ allowed to access to the database. The proposal is silent on procedural or substantive safeguards, and there is no mention of due process or transparency requirements for the blacklist, and no manner for blacklisted websites to challenge (or even know about) their inclusion. (A similar ‘private blacklist’ has also been endorsed by India’s draft E-Commerce Policy, which we raised concerns about here.)

Two examples would indicate how absurd and inequitable this system could be in practice.

First, YouTube and similar major online platforms like Facebook, have significant amounts of infringing material, from which they also gain significant advertisement revenue. If this model were to operate equitably, it would mean that these websites in their entirety should also be blacklisted by advertisers, which all stakeholders would undoubtedly consider an absurd situation. Instead, it is likely that the blacklist would operate against smaller websites which do not have the international presence to resist the operation of such a blacklist.

This blog, for example, which to an extent relies on advertising revenue for its operations, was recently served a false copyright notice under another arbitrary and opaque scheme – the Digital Millennium Copyright Act in the USA. However, even that law provides certain redressal measures for affected parties. Following the procedure of the private system created by the WIPO BRIPS Database, we would be unable to know, let alone challenge, our arbitrary inclusion in such a blacklist, and could consequently be starved of funds.

The BRIP Database is another indication of the global trend of moving away from takedowns of specific-instances of copyright infringement which takes place through online intermediaries, towards the wholesale blocking of websites. The Delhi High Court recently endorsed similar approach through its proposal for dynamic injunctions of ‘Flagrantly Infringing Online Locations’, and courts across India have issues wholesale website blocking orders in lieu of URL or resource-specific takedown orders, an issue which we have repeatedly flagged. Over-blocking of online resources is a problem which has consistently arisen in the context of weakened protections for websites and online intermediaries, and poses immense challenges to an open internet’s vision of access to knowledge and information.

This shift subverts the common law and statutory concept of intermediary safe harbour for third party content, which protects innocent intermediaries from actions of third-party users. Further, by endorsing an ‘international’ private standard for what constitutes infringement and ‘piracy’, the WIPO is denigrating from its responsibilities of ensuring international comity by being cognizant of national copyright protections and exemptions which are specific to particular member-states of the TRIPS treaty, which provides leeway for member-states to define the contours of copyright protection granted in their jurisdiction.

Under the garb of tackling piracy, the WIPO is endorsing and facilitating a secretive, global system for removing funding from internet resources which are deemed ‘suspicious’ by private actors. The WIPO should introspect on whether this is the appropriate role for an international body meant to represent the interests of the international community as a whole.

Thematic Highlight 

Divij wrote a post on a recent proposal of the WIPO, called ‘Building Respect For Intellectual Property Database Project’, an online platform to which authorized agencies in WIPO Member States can upload lists of websites which deliberately facilitate copyright infringement. Divij focuses on several ambiguities in this proposal, such as the identities of these ‘authorised agencies’ and the authoritativeness of such a list. He concludes by stating that the WIPO seems to be endorsing a system for removing funding from internet resources which are deemed ‘suspicious’ by private actors, under the pretence of tackling piracy.

Topical Highlight

Eashan Ghosh wrote a guest post on the recent Delhi High Court decision restraining various e-commerce platforms (Defendants) from enabling sale of products of ‘direct selling’ companies (Claimants) without their consent. In his post, he focusses on the Court’s interpretation of ‘direct selling’ and notes that it is understood on parallel with common sale through distributors, and excludes retail sales and e-commerce sales. He then focusses on the Court’s reliance on Section 30(4) of the Trade Marks Act which allows for actions for infringement to be brought against a re-seller under certain conditions and concludes that the Court was correct to test the case against this provision. Lastly, he also notes that the Court observed that the Defendants’ depiction of the Claimants’ trade marks in advertising, promotions and meta-tags was impermissible and states that this may have future implications.

Other Posts

We had two more additions to our blog post series on The Sustainable Seed Innovations Project by Natalie Kopytko, a Post-Doctoral Research Associate of the University of Leeds. She wrote two stories about the achievements of innovative farmers and the challenges faces by them. Her first story revolves around Jitu Saikia, a sericulturalist who rears Muga silkworms. Her post focusses on his host plant diversity approach and how it boosts silk production. Her second story provides a glimpse into the lives of rice farmers based in Assam. In this story, she demonstrates how  traditional ecological knowledge, specifically seed selection, led to the wide range of rice varieties cultivated today.

Other Developments

Indian

Judgments

Societe Des Produits Nestle, S.A. and Another v. Kaira District Cooperative Milk Producers – Delhi High Court [July 10, 2019]

The dispute between the Parties arose on account of the Respondents’ alleged use of the mark “A+” in infringing and passing off the Appellants’ mark “a+” in relation to dairy products. The Single Judge passed an interim injunction in favour of the Appellants, whereby both the Parties were directed to maintain status quo in respect of their marks. The Appellants challenged this order of the Single Judge stating that it could apply its mark “a+” in respect of goods other than milk, thereby changing the status quo ordered to be maintained by the Single Judge. The Court partly allowed the appeal and observed that the Single Judge could not restrict the Appellants from using its mark in respect of particular goods, as the suit had been instituted by the Appellants against the Respondents, and not the other way round. Moreover, the Court noted that the Single Judge had incorrectly applied the tests of “balance of convenience” and “irreparable loss”, by not applying the same relief sought by the Appellants.

Hindustan Unilever Limited v. Vijay Vishwakarma – Calcutta High Court [July 10, 2019]

The Court granted a decree of interim injunction restraining the Defendant from infringing and passing off the Plaintiff’s mark “SURF EXCEL”, and copyright in its packet by using an identical mark and packet for selling detergent. The Court noted that the Defendant’s product was sold in a colourable and deceptive imitation of the Plaintiff’s mark and label which gave rise to a prima facie case against it.

Mankind Pharma Limited v. Lee Pharmaceuticals of Lee House – Delhi High Court [July 12, 2019]

The Court granted a decree of permanent injunction restraining the Defendant from infringing the Plaintiff’s copyright in its website “www.mankindpharma.com”, by using identical material on its website “www.leepharmaceuticals.in” in respect of medicinal drugs. Additionally, the Court restrained the Defendant from passing of its business as being affiliated to that of the Plaintiff.

Xerox Corporation and Another v. P.K. Khansaheb and Another – Delhi High Court [July 12, 2019]

The dispute between the Parties arose on account of the Defendants’ alleged infringement and passing off of the Plaintiff’s mark “XEROX” by using a deceptively similar mark “ZEROX” in its tagline for a mango candy “KACHE AAM KA ZEROX”. An interim order was passed in the Plaintiff’s favour in 2014, wherein the Court restrained the Defendant from using the mark “ZEROX” in its advertisement.  Subsequently in the latest hearing, the Defendant stated that it had no intention to re-telecast its advertisement containing the tagline “KACHE AAM KA ZEROX”. Accordingly, the Court directed the Defendants to not re-launch the impugned television commercial with the word “ZEROX” or with any other similar or identical mark. Furthermore, the Court ordered the Defendants to withdraw the oppositions filed against the Plaintiff’s mark.

Dish TV India Limited v. Prasar Bharti – Delhi High Court [July 16, 2019]

The Court granted a decree of interim injunction restraining the Defendant from infringing and passing off the Plaintiff’s mark “DISHTV” by using the mark “DD FREE DISH” in respect of Direct To Home (“DTH”) services. The Court noted at the onset that the word “DISH” found in the Plaintiff’s mark was not generic in nature, as it had been registered since 16 years without any objection. Moreover, the Court noted that “DISH” or “DISH antenna” in itself were not essential for DTH services, and hence could not be considered generic marks. The Court while deciding on the grant of interim injunction held that the mere use of the word “DD” could possibly give an impression to consumers that Doordarshan was associated with the Plaintiff. Accordingly, the Court granted the interim injunction holding that irreparable injury and balance of convenience were implicit in the case.

News

• DPIIT issues preliminary norms for GI logo and tagline use
• Like Darjeeling Tea, ‘Indori Poha’ May Soon Get Geographical Indication Tag, Global Recognition
• Copyright Protection Given To Films Is At Par With That Accorded To Literary Works: Delhi HC
  
• Innoviti sues Pine Labs, accuses it of infringing patent on UPI payments
• Delhi HC asks patent infringer to deposit 54 crore

International

• Facebook was granted a patent to silo group posts
• South African Creatives Grapple Over Copyright Amendment Bill
• Major CASE Act Copyright Legislation Passed by Senate Judiciary Committee
• Dailymotion to pay Mediaset €5.5m for copyright infringement
• Katy Perry Testifies in ‘Dark Horse’ Copyright Trial

In the next (four-part) post in the ongoing blog post series on The Sustainable Seed Innovations Project), Prof. Gregory Radick provides an overview of the educationally focused “second prong” of the position paper’s three-prong approach. He discusses the need to redesign elements of agricultural training to ensure a better fit with the goal of greater sustainability, looking in particular at how his historical research into the organization of knowledge in two areas — Mendelian genetics and intellectual property — has opened up new options.

The Sustainable Seed Innovations Project : Prong 2 – Re-Designing Education for Agricultural Students and their Teachers (Part I)

Prof. Gregory Radick

We now turn to consider the following question: What sort of education can best support a transition from the current scenario where farmers are mainly technology takers to one where they are the makers of innovations, above all in connection with seeds and sustainability?

At this preliminary stage, raising awareness of the need for a new kind of training should take priority over settling on the exact content of this training.  Nevertheless, even now it is possible, in an indicative way, to sketch out reforms in a couple of areas where improvements are not only needed but, thanks to recent research from within the project team, straightforwardly made.

In what follows we shall, for ease, write about farmers themselves as the recipients of the envisaged training.  Given illiteracy rates among many Indian small farmers, however, it is more realistic, for the foreseeable future, to suppose that the training is instead for agricultural education service officers and agricultural university students, who can then go on to disseminate appropriately tailored versions of it to the farmers themselves.

i) From a “genes for traits” to a “genes, environments and variability” understanding of heredity

 After presenting the now-standard way of doing things pedagogically, we will describe a recent alternative, then consider how the values acquired in the introductory genetics classroom might translate into farming practice.

“Genes for traits” genetics teaching: Consider a widely used university-level genetics textbook, iGenetics: A Mendelian Approach, by Peter Russell.  Early on, students are introduced to Gregor Mendel, “founder of the science of genetics,” and his famous experiments hybridizing pea varieties. Such a starting point is a global commonplace, at every level where genetics is taught, and has been, to varying degrees, for over a century.^[1] Students go on to learn about Mendel’s discoveries of dominance and recessiveness, segregation, etc: discoveries made thanks to his purifying his varietal stocks before crossing them, thus revealing regularities that escaped previous investigators.  When, for example, purple-flowering and white-flowering stocks were crossed, all the hybrids had purple flowers, showing purpleness to be dominant over whiteness. And when those hybrids self-fertilized, their offspring showed not just purple but also white flowers, in the ratio 3 to 1.  Then the students get to see for themselves how wonderfully well explained this pattern is on Mendel’s simple hypothesis that there are just two kinds of underlying factor, one for purpleness and one for whiteness.^[2]

Russell’s textbook itself comes in two varieties. There is iGenetics: A Molecular Approach as well as iGenetics: A Mendelian Approach.^[3]  But both books have the same chapters, just in a different order.  In the Molecular Approach book, as soon as whole organisms come up, we are back with Mendel and his pea hybrids.  That is what an intellectual monoculture looks like.

What is the problem? Judged on its own terms, there is no problem at all with this pedagogy. On the contrary, it works amazingly well. If you want to experience how good science teaching can be when it is at its best, take a well-taught introductory genetics course. A century of honing has made this pedagogy exceptionally effective at inducting good students – the ones who want to do well, who really work at the questions at the back of each chapter in order to master the techniques of reasoning – into the science of heredity under Mendelism, and to do it so comprehensively that they lose more or less any appetite or ability they might have had to think critically about what they are being taught.

But there are worries. A recent survey of college and university teachers of introductory genetics across the United States revealed that they were uniformly concerned that, in the actual delivery of their courses, gene-environment interactions come across to students as a low-emphasis, low-priority topic.  From the perspective of these teachers, it would not be at all surprising if, despite their good intentions and best efforts, what their students remember after the course is the long-outdated “genes for traits” notion emphasized at the start-with-Mendel beginning.[4] Part of what makes the standard beginning so permanently attractive is that it is so simple. To understand why a flower has the color it does, you need to pay attention only to the combination and recombination of flower-color genes, themselves attractively binary, for-purpleness or for-whiteness. Nothing else matters. Environments, from the genomic to the physiological to the physico-chemical, never get mentioned.  Nor is there any interesting variability in the outward characters or “phenotypes.” There is just purpleness and whiteness.

It appears, then, that a misleadingly deterministic picture of how genes work is being instilled through standard genetics pedagogy and its organization around Mendelian hybrids and concepts associated with them. That is problematic in itself, so far as we want students to emerge from teaching with something approximating our own best scientific understanding of how heredity works. It may also be problematic in its implications.  We shall refer to implications for agricultural practice below.  For now, and more briefly, consider the implications for decisions taken in the context of human health and illness. Increasingly people are acquiring information about their own genetic constitutions.^[5] If teaching conditions them to want to ask only whether or not they have the “genes for” certain diseases, say, and not to want to ask in addition about how differences in genetic background may matter, or differences in wider environments, then that incuriosity may lead them to make poor choices, leading to worse outcomes. That is one way in which a persistently Mendelian organization for genetic knowledge can hold us back from reaping maximal human benefit from recent advances in what is increasingly known as “post-genomics.”[6] Another is the potential it creates for strengthening a psychological attitude of essentialism: for thinking that people, like peas, come in genetically defined types, some born with a greater capacity for worldly success than others, with well-known consequences for social inequality.[7]

Literature Cited

Donovan, Brian.  “Playing with Fire? The Impact of the Hidden Curriculum in School Genetics on Essentialist Conceptions of Race.” Journal of Research in Science Teaching 51 (2014): 462– 496.

Kitcher, Philip.  The Lives to Come: The Genetic Revolution and Human Possibilities. Allen Lane (1996).

Kronfeldner, Maria E.  “Genetic Determinism and the Innate-Acquired Distinction in Medicine.”  Medicine Studies 1 (2009): 167‒81.

Jamieson, Annie and Radick, Gregory.  2013.  “Putting Mendel in His Place: How Curriculum Reform in Genetics and Counterfactual History of Science Can Work Together.”  In Kostas Kampourakis, ed., The Philosophy of Biology: A Companion for Educators.  Springer (2018), pp. 577‒95.

Mordor Intelligence. “Genetic Testing Market – Growth, Trends and Forecast (2019-2024).” (2018). https://www.mordorintelligence.com/industry-reports/global-genetic-testing-market-industry.

Russell, Peter J. Igenetics: A Mendelian Approach. Benjamin-Cummings Publishing Company (2006).

[1] Jamieson and Radick, (2013).

[2] On Mendel’s explanation, all the hybrids are purple because when purple-making factors from the purple-flowering plants meet white-making factors from the white-flowering plants, purpleness is dominant.  Only when white-making factors meet a white-making factors – as will happen, by the rules of probability, in a quarter of hybrids’ offspring, given the segregation of white-making and purple-making factors into separate gametes – will the resulting plant produce white flowers.

[3] Russell, (2006).

[4] We are grateful to Michelle K. Smith for sharing the results of this not-yet-published survey, conducted in connection with ongoing research by her, Brian Donovan and PI Radick.

[5] Mordor Intelligence, (2018).

[6] Kitcher, (1996), esp. ch. 11; Kronfeldner, (2009).

[7] Donovan, (2014).

Prong 2 – Re-Designing Education for Agricultural Students and their Teachers (Part II)

Prof. Gregory Radick

“Genes, environments, and variability” genetics teaching:

There is, fortunately, another way. For some while, PI Radick, as a historian of science, has been re-examining the debate that broke out over Mendel’s experiments after the 1900 rediscovery of his paper on them.^[1] The debate was most intense between the Cambridge-based William Bateson, who did more than anyone to promote Mendel’s work as the foundation for a new, experimental, quantitative science of heredity,^[2] and the Oxford-based W. F. R. Weldon, who, before his untimely death in 1906, went further than anyone in developing a serious biological critique of early Mendelism.^[3] To Weldon, Mendelism represented a backwards step for biology, at a moment when the most impressive work coming out of experimental embryological laboratories in Germany and elsewhere at that moment was reinforcing a lesson that thoughtful biologists already regarded as well established: that, from organs to organisms, the characters that are manifest, expressed, visible depend fundamentally on what is interacting with what. Change the nature of the interaction, and you can change the character.  Dominance is not, as with elementary Mendelism, an absolute property of a character, but is relative to conditions, and can be variable as conditions alter. In Weldon’s view, the needed science of heredity was one that gave due prominence to the influence of surrounding conditions on the effect of a bit of chromosome on a body, rather than marginalizing it as a (slightly annoying) complication.

Did this debate matter? Perhaps something like a determinist “genes for traits” notion was inevitable, if not in 1900 in Europe, then sooner or later somewhere or other. But then again, perhaps if Weldon’s interactionist emphasis had been more successful than it was – had he lived long enough to finish his book about it, had he acquired acolytes who sought to extend and defend it (Bateson attracted brilliant ones), and so on – we might now have introductory genetics textbooks that look different from the likes of iGenetics, helping to create students with different ideas about how heredity works, who go out into the wide world and think differently, choose differently, act differently…

To test this second possibility in a preliminary way, Radick and colleagues ran a pilot-scale teaching experiment, for which they developed teaching materials designed as if they had come from a “counterfactual” past in which genetics had become Weldonian rather than Mendelian.^[4] In this experimental curriculum, students were not launched on the study of genes with a look at what now appear to be wholly unrepresentative systems, e.g. crossings with artificially purified pea varieties.  Instead the students were taught from the beginning, and throughout, that genes always have the effects they do against particular genetic backgrounds and within a given range of environments, with “environments” glossed as expansively as possible. For these students, the first, exemplary case for thinking about genes was in relation to the condition of a human heart, where genes, themselves of diverse kinds with diverse interactions, are just one of a large range of heterogeneous elements in the causal mix. And when these students did meet Mendelian patterns, they encountered them not as the Truth around which to hang everything else, but as a special case, interesting precisely because so unusual. Rather than being taken for granted as what heredity looks like when environments do not interfere, Mendelian patterns should excite curiosity about the special circumstances under which they can come about.[5]

Both before and after teaching, students on the Weldonian course were assessed as to their levels of “genetic determinism.” The same was done with students taking a traditional start-with-Mendel introductory course in genetics. What Radick and colleagues found was that, in line with their predictions, students on the Mendelian course were just as deterministic about genes at the end of teaching as at the beginning – there was even some evidence of increased determinism – whereas students on the Weldonian course were less deterministic about genes at the end of teaching.[6]

In sum: a Mendelian curriculum is no longer the only option when it comes to introductory genetics teaching.  The Weldonian curriculum shows promise as a curriculum that, in better alignment with 21^st-century understandings, helps students grasp gene action as always taking place in a context, with results that in consequence can be hugely variable.

Literature Cited

Bateson, Beatrice, ed., William Bateson, Naturalist  (1928).

Bateson, William, and Gregor Mendel. Mendel’s Principles of Heredity. Courier Corporation (2013).

Charnley, Berris, and Gregory Radick. “Plant Breeding and Intellectual Property before and after the Rise of Mendelism: The Case of Britain.” Max Planck Institute for the History of Science Pre-print Series  (2008): 51-55.

Darden, Lindley. “William Bateson and the Promise of Mendelism.” Journal of the History of Biology 10, no. 1 (1977): 87-106.

Farrall, Lyndsay A. “Controversy and Conflict in Science: A Case Study—the English Biometric School and Mendel’s Laws.” Social Studies of Science 5, no. 3 (1975): 269-301.

Froggatt, P, and NC Nevin. “The Llaw of Ancestral Heredity’and the Mendelian-Ancestrian Controversy in England, 1889-1906.” Journal of Medical Genetics 8, no. 1 (1971): 1.

Olby, Robert. “William Bateson’s Introduction of Mendelism to England: A Reassessment.” British Journal for the History of Science 20, no. 4 (1987): 399-420.

Radick, Gregory.  “Other Histories, Other Biologies.”  Philosophy, Biology and Life, ed. A. O’Hear.  Cambridge University Press (2005): 21‒47.

Radick, Gregory.  “Beyond the ‘Mendel-Fisher Controversy’: Worries about Fraudulent Data Should Give Way to Broader Critiques of Mendel’s Legacy.”  Science 350 (9 Oct. 2015): 159‒60.

Radick, Gregory. “Presidential Address: Experimenting with the Scientific Past.” British Journal for the History of Science 49, no. 2 (2016): 153-72.

[1] Radick, (2005); Charnley and Radick, (2008).

[2] Olby, (1987); Bateson and Mendel, (2013); Bateson, (1928); Darden, (1977).

[3] Froggatt and Nevin, (1971); Farrall, (1975); Radick, (2015).

[4] Radick, (2016).

[5] The Weldonian curriculum can be sampled at https://arts.leeds.ac.uk/geneticspedagogiesproject/gpp-lectures/

[6] Jamieson and Radick, (2017).

Please click here to view Part I of this four-part post.

Prong 2 – Re-Designing Education for Agricultural Students and their Teachers (Part III)

Prof. Gregory Radick

How values acquired in the genetics classroom might translate to farming practice

Near the beginning of this position paper we gestured briefly toward some links between Mendelian genetics, with its distinctive emphasis on hybrid seeds, and post-Green-Revolution high-yield, industrially farmed, chemically saturated agriculture.  With the two genetics pedagogies in view, we can now pursue a further question: What, exactly, might the affinities be between a start-with-Mendelism, “genes for traits” training in genetics and “farming-as-spraying” industrial agriculture?  Or, to put the same question from the opposite direction, what, exactly, might the affinities be between a more Weldonian, interactionist, “genes, environments and variability” training in genetics and the more sustainable style of agriculture envisaged in this position paper?

We shall proceed by addressing the latter form of the question. Our answer to it, in brief, is that a farmer taught well within a Weldonian curriculum has a better shot than a Mendelism-trained farmer at acquiring the following three, sustainability-promoting cognitive attitudes or biases:

i) No indifference to the role of the environment in bringing about phenotypic effects

ii) No presumption in favour of hybrid seeds

iii) No presumption against a variety whose attractive character is region-specific

Let us consider each in turn:

i) No indifference to the role of the environment in bringing about phenotypic effects. Imagine our farmer in an Agricultural Extension classroom where, from the start and throughout, it is hammered home that a bit of chromosome has its effect on a body in a context, under conditions – and that is always the case – it is never not the case – and if it seems that you can forget about the conditions, that is because environments have become standardized.^[1] Indeed, one perspective on post-Green-Revolution agriculture sees it as an agriculture which seeks to adapt local environment to globally distributed seeds, with the adaptation taking place thought the use of machinery, pesticides, herbicides, fungicides, intensive irrigation, etc. Farmers are never invited to see what they are doing in that way;^[2] rather, they are invited to see the seeds they buy as genetically superior, full stop, and to see all the accessories that are needed to bring out that superiority as merely damping down whatever might inhibit the full realization of that superiority. By contrast, a Weldonian farmer would be alert to how profoundly dependent the marketed seeds are on re-engineered surroundings, and so be better positioned to compare and contrast the environmental toll of using those seeds as against that of using local seeds already adapted to local conditions.^[3]

ii) No presumption in favour of the superiority of hybrid seeds. The vocabulary of “F1 hybrids” was introduced by Bateson, as a way of labelling the offspring of an initial cross: the first “filial” generation.^[4] When two lineages are crossed, sometimes the character of the hybrid will resemble one parent or the other, as with Mendel’s peas. But as Mendel knew, there are also crossings where the hybrid character is unlike either parent but is instead distinctive, sometimes even attractively so. It had been a perennial frustration for farmers and breeders and horticulturalists that such hybrids tended not to “breed true” but instead to have offspring with a mix of the characters. As Bateson was the first to point out, Mendelian principles explained that “breaking-up” of the hybrid character, and even, via segregation, explained why the resulting characters included the parental characters and came in the proportions they did.

Hybrids, and above all hybrid corn, went on to become the great emblem of the power of Mendelian genetics to deliver impressive results agriculturally. Hybrids and the Green Revolution went hand in hand. Hybrid seeds were what was offered as salvation in Mexico, India and elsewhere; hybrid seeds were what came to be taken for granted as the only way to get yields up high enough to stave off starvation.^[5] Yet for decades, the geneticist Richard Lewontin has been arguing – another instance of counterfactual history of genetics – that there was no inevitability here. We might well have had corn as high-yielding as the hybrid corn that Nikita Kruschev famously came to admire, yet produced through open pollination and selection.  But it was not in the financial interests of anyone selling the corn to produce the seeds by those means.  The early promoters of hybridization were entirely plain-speaking about the fact that, from the breeder’s point of view, the great advantage of using hybridization is that farmers need to come back to the market – and so to the breeder – year on year if they want to plant those seeds. With non-hybrid seeds, the breeder loses all control after that first sale. With hybrid seeds, control is maintained.[6]

iii) No presumption against a variety whose attractive character is region-specific. Recall the story of the farmer Jitul from Assam, who matches different plants with different parts of the life cycles of silk worms. By conserving geographically highly-delimited varieties of the plants on which his silk worms grow, he has been able to optimize the production process. He is, in the old expression, doing well by doing good: creating a market niche for a unique product in a way which maintains otherwise threatened biodiversity. And the fact that the plants mainly thrive in just a few valleys in Assam does not count against those plants, reducing their value. On the contrary, here is a marvellous example of someone working with gene-environment interactions rather than fighting them.

Literature Cited

Bateson, Beatrice. William Bateson, Naturalist  (1928).

Charnley, Berris, and Gregory Radick. “Intellectual Property, Plant Breeding and the Making of Mendelian Genetics.” Studies in History and Philosophy of Science Part A 44, no. 2 (2013): 222-33.

Conway, Gordon R, and Edward B Barbier. After the Green Revolution: Sustainable Agriculture for Development. Routledge (2013).

Jain, Hari Krishan. Green Revolution: History, Impact and Future. The Green Revolution History (2010).

Lewontin, Richard C. The Doctrine of DNA: Biology as Ideology. London: Penguin (1991).

Pingali, Prabhu L. “Green Revolution: Impacts, Limits, and the Path Ahead.” Proceedings of the National Academy of Sciences 109, no. 31 (2012): 12302-08.

Sebby, Kathryn. “The Green Revolution of the 1960’s and Its Impact on Small Farmers in India.” (2010).

[1] Jain, (2010).

[2] Conway and Barbier, (2013).

[3] Charnley and Radick, (2013).

[4] Bateson, (1928).

[5] Sebby, (2010); Pingali, (2012).

[6] Lewontin (1991), ch. 3.

Please click here and here to view Parts I and II of this four-part post. 

Prong 2 – Re-Designing Education for Agricultural Students and their Teachers (Part IV)

Prof. Gregory Radick

Of course, training in genetics is just once facet of farmer education, and training for a more sustainable future will require coordinated changes across the curriculum.[1] As a second, shorter example – but one that will lead us towards Prong 3 of this position paper – considers how farmers might usefully be taught to think in fresh ways about their innovations as their property.

From an “IP-narrow” to an “IP-broad” understanding of the ownership of innovation

Until recently, for farmer education, there would have seemed no point devoting any classroom time to intellectual property – “IP” for short.  IP meant patents, plant variety protection certificates, and other legal instruments by which innovators acquired the state-sanctioned right to prevent other people from profiting from the innovations.  In the world of seeds, such instruments were the province of the so-called “formal sector”: the firms and associated laboratories that were in the business of bringing new seeds to market.  So, for those concerned to incentivize innovation with seeds, a choice seemed to be faced.  Either one could pay attention to the incentivizing role of IP, in which case, automatically, one was excluding farmer-level innovation in favour of the formal-sector firms.  Or one could concentrate on farmer-level innovation in the informal sector, where the seed savers and sharers, individual and collective, operated independently (but not in isolation) from the formal sector, and independently (as well as in isolation) from the legal world of IP.  After all, the kinds of “open-source”, genetically and phenotypically non-uniform seeds in which the seed savers and sharers dealt simply were not the sort of seeds that could satisfy the criteria for even the lowest levels of legal protection.[2] Any concern with innovation in this sector would have to concentrate on other kinds of incentive, most obviously those to do with the enhanced status that comes with being known as an innovator.

But there is another and potentially more fruitful way to look at the situation, in line again with Radick’s research in the history and philosophy of science. Yes, patents, plant variety certificates and so on are one form of IP.  Let us call that form “IP in a narrow sense,” or “IP-narrow.”  But the ownership of knowledge can take other forms: “IP in a broad sense,” or “IP-broad.”  And in the sciences, as long ago recognized by the sociologist Robert Merton, public crediting as an innovator, and the status flowing from it, is the major incentivizing form of IP.  To be hailed by the community as the discoverer of a new species or law of nature, with one’s name appended to it forever more, is the goal for the ambitious, who, in exchange for the promise of a fair deal, willingly share their discoveries with the community as soon as possible. In Merton’s view, this credit-distribution mechanism was absolutely crucial to the ceaseless innovation that has been Western science’s trademark since the seventeenth century.^[3]

A second form of broad IP identified by Radick are what he has called “productivity claims”, asserted on behalf of a body of knowledge.  From early days, Mendelian genetics was promoted as the intellectual key to future success in plant and animal breeding.  So successful were Mendelism’s partisans that it was and remains difficult to tease apart the reality from the PR when it comes to what breeders, and the rest of us, actually owe to Mendelism.[4]  As we have seen, in the case of twentieth-century American seed firms, and the scientists who served them, seeds created through hybridization were attractive in the first instance because, in the absence of patent protection for novel varieties, hybrid seeds ensured future profits for the breeders.  And once breeders began concentrating on hybrid varieties, innovative activity in the sector increasingly clustered around hybrid seeds, which duly improved.^[5] In due course, unprecedentedly high-yield varieties were developed. But the notion that they could only have been developed that way is groundless.  It is commercial bluster that became Cold War propaganda.[6]

Returning now to farmer education for a more sustainable future: if we ask, “How, if at all, can IP arrangements be used to incentivize farmer-level innovations in plant breeding in India, in a way that not only strengthens the traditional culture of seed sharing and exchange but promotes the wider goals of sustainable agriculture?”, where before the answer would have to be “it cannot be done!”, now we can say: “consider IP broad as well as IP narrow!”  For farmers to understand the systematic crediting of their innovative activity with indigenous seeds not as a kind of ego-boosting bonus, but as an essential part of putting Indian agriculture on a more sustainable basis, will be empowering for them, giving them a greater stake in the system and its good management than they would have merely as individual beneficiaries, even of the monetized, Digital-Ledger-Technology-run version of the system to be described in the next part of this position paper.  Likewise, it can only empower farmers to know something of the history of how hybrid seeds came to seem so irresistible, and to see it as a history in which different forms of IP were interacting.  It will help them resist talk of how, by failing to embrace hybrid seeds, they are dropouts from scientific and technical modernity.  At the same time, it will embolden them to see the value in developing their own productivity claims, in support of the particular seeds they work with, and more generally in support of Traditional Ecological Knowledge (TEK).

To summarize: as with genetics education, so with an education in IP: recent research has opened new possibilities for giving farmers as sustainable seed innovators intellectual tools more fit for purpose than what was available previously.

Literature Cited

Charnley, Berris, and Gregory Radick. “Intellectual Property, Plant Breeding and the Making of Mendelian Genetics.” Studies in History and Philosophy of Science Part A 44, no. 2 (2013): 222-33.

Gupta, P. K.   “Teaching Genetics in India: Problems and Possible Solutions.”  Indian Journal of Genetics and Plant Breeding 79 Supp. (2019): 326‒39.

MacLeod, Christine, and Gregory Radick. “Claiming Ownership in the Technosciences: Patents, Priority and Productivity.” Studies in History and Philosophy of Science Part A 44, no. 2 (2013): 188-201.

Perkins, John H.  Geopolitics and the Green Revoolution: Wheat, Genes, and the Cold War.  Oxford University Press, 1997.

Radick, Gregory.  “The Professor and the Pea: Lives and Afterlives of William Bateson’s Campaign for the Utility of Mendelism.”  Studies in History and Philosophy of Science Part A 44, no. 2 (2013): 280‒91.

[1] On room for improvement in the way genetics is taught in India generally, see Gupta, (2019).

[2] In the section of this position paper on “Legal and Ethical Issues in the Current System,” Co-I Kochupillai discusses an attempt within Indian law to recognize the work done by farmers in developing new varieties.  But the retention of the DUS criteria (Distinctness, Uniformity and Stability) means that it is often difficult for farmers’ indigenous seed innovations to get the offered protection.  Even more problematically, the criteria are contrary to the embracing of genetic variability as a major asset for sustainable agriculture.

[3] MacLeod and Radick, (2013).

[4] Charnley and Radick, (2013); Radick, (2013).

[5] Lewontin, (1991).

[6] Perkins, (1997).

Please click here, here and here to view Parts I, II, III  of this four-part post. 

Prong 3 of the Sustainable Seed Innovations Project comes while India is looking to adopt various blockchain solutions (including blockchain based payment systems) on the one hand, and debating a ban on cryptocurrencies on the other. This three-part blog post (the next in the ongoing blog post series on The Sustainable Seed Innovations Project) provides readers an easy to understand overview of the key beneficial features of blockchain technology, how the potential use cases of blockchain technology go well beyond the financial services sector, and, most importantly, how this technology is highly promising for the cause of promoting and incentivizing sustainable seed innovations.

Prong 3: Re-thinking Incentive Structures

Blockchain/DLT Supported Incentives for Sustainable Seed Innovations? (Part I)

Mrinalini Kochupillai

As discussed by Greg Radick in Prong 2, the move from IP-Narrow, which focuses only on pigeon holes of existing intellectual property rights and ‘priority claims’, it is necessary to make a shift towards IP-Broad systems that respect ‘productivity claims.’ In a broad sense, productivity claims are a kind of ‘right to attribution.’ Within existing intellectual property rights regimes, however, only copyright law (within its ‘moral rights’ framework) recognizes and protects the right to attribution. Within patents and plant breeders’ rights regimes, such a system does not exist – these regimes operate on a ‘first come’ basis. Other legislations, notably the CBD, the Nagoya Protocol and the Seed Treaty, have attempted to establish systems that recognize and reward a type of “productivity claim”, particularly of communities that have contributed their PGRs for further downstream research and development. However, as is seen in the context of global attempts to mandate access and benefit sharing regimes vis-à-vis access and use of PGRs under these regulations, protecting the right to attribution, and thereby recognizing and rewarding productivity claims, has not been easy in practice. In fact, the system has met with little, if any, success. In this section, we look at the key features of an emerging technological solution, namely Digital Ledger Technologies (DLT), and a more recently evolved version of DLTs, namely, blockchain, to see if technology can assist in implementing the letter and spirit of well-meaning international treaties such as the CBD and the Seed Treaty. Forthcoming blog posts (and Section III of the Position Paper) will then look at what changes are needed in existing legal regimes to ensure smooth roll out of the three prongs, to further strengthen the technological systems and to ensure that these are themselves subject to optimal legal regulation and ethical codes to avoid any misuse.

However, research has shown that farmer-custodians of agrobiodiversity have little incentive to continue using, cultivating and improving landraces, locally suited indigenous/traditional seeds or planting materials and farmers’ varieties (and thereby conserving the PGRs therein), especially when faced with the option of cultivating formally improved, high yielding varieties.[1] This situation is exacerbated as farmers are unable to secure a regular market and good price for their varieties, in part, because farmers’ varieties are inappropriate candidates for protection under existing intellectual property protection regimes, especially in their current narrow/formal construction (as discussed in Prong 2 above).[2]

The culture of sharing prevalent among farmers,[3] coupled with their inability to monitor the chain of transfer of ownership as well as the specific end use(s) to which their varieties are put (e.g. simple consumption or downstream research), also currently act as barriers preventing the emergence of robust and profitable marketplaces that support sustainable use and monetization of PGRs,[4] especially for the benefit of small and marginal farmers, that are by far, especially, but not exclusively in countries like India, the sole or primary custodians, generators and in situ improvers of PGRs.[5] While several regulations in India (and globally), notably the Biodiversity Act, 2000 as well as the Protection of Plant Varieties and Farmers Rights Act, 2001 seek to secure benefits for farmers via ‘benefit sharing’ mechanisms, according to research, the number of cases of benefit sharing have been low to non-existent.[6] These regulations, have, in short, been unable to facilitate the tracing and/or honest and comprehensive documentation of uses to which farmers’ PGRs have been put. It has been challenging, to say the least, to implement access and benefit sharing (ABS) systems, including those established under the CBD, the Seed Treaty, as well as under various national laws that implement its letter and spirit.[7]

Accordingly, in addition to recommending large scale (re)education, the SSI 1.0 expert working groups made several observations and recommendations highlighting the relevance of the traceability of any and all indigenous seeds to source. It is relevant to note here that unlike proprietary seeds that can be recognized by unique, uniform features that are registered in the Plant Variety Register, the inherent variability of traditional/indigenous seeds, which is also their greatest asset, lead them to display varying phenotypic characteristics in each growing season,[8] and in every different location they are cultivated in,[9] making it difficult to recognize their true origin. While these seeds may be, broadly speaking, more easily identifiable by their unique nutritional or other features when grown in specific regions and soils, they will inevitably change their appearance, which is the currently the most important (and the quickest) means through which infringements of plant breeders rights are recognized.[10] Absence of any means of tracking/tracing farmers’ indigenous seeds to source, leads, again, to lack of any means of ensuring monetary benefits for those who are originators and preservers/improvers of indigenous seeds in various/diverse locations. This, again, systematically removes all monetary incentives for (small) farmers to engage with in situ agrobiodiversity conservation, improvement and dissemination. In the following sub-section, we look at how an emerging technology may be able to assist in overcoming problems of trust, traceability and lack of incentives that currently prevent optimal and sustainable seed innovations by and for the benefit of small farmers.

Parts II and III of this three part blog post discuss how key features of DLT/Blockchain technology can potentially help overcome each of the above identified hurdles.

[1] Kochupillai, (2016); Goeschl and Swanson, (2003).

[2] Kochupillai, (2016); Salazar, Louwaars, and Visser, (2007); Correa, (2000); MacLeod and Radick, (2013).

[3] McGuire and Sperling, (2016).

[4] Kochupillai, (2019a).

[5] Ruiz and Vernooy, (2012); De Boef et al., (2013); Bisht, Mehta, and Bhandari, (2007).

[6] Tsioumani, (2018); Venkataraman and Latha, (2008); Brahmi, Saxena, and Dhillon, (2004); Ramanna and Smale, (2004); McManis, (2012).

[7] Welch, Shin, and Long, (2013); Aravanopoulos, (2011); Kamau, Fedder, and Winter, (2010).

[8] Girard and Frison, (2018); Berg and Raaijmakers, (2018).

[9] Louette, Charrier, and Berthaud, (1997); Serpolay et al., (2011); Ceccarelli, (1996).

[10] Jondle, Hill, and Sanny, (2015).

 Prong 3: Re-thinking Incentive Structures

Blockchain/DLT Supported Incentives for Sustainable Seed Innovations? (Part II)

Mrinalini Kochupillai

(i) Digital Ledger Technologies/Blockchain: A Brief Introduction

Blockchain technology, a special version of the more generic ‘digital ledger technologies’ (DLTs), came into being around 10 years ago with Satoshi Nakomoto’s white paper on Bitcoin.[1] More recently, these technologies have been in the media, not only because of ongoing efforts of the Indian government to ban cryptocurrencies, but also because several supporters of these technologies claimed early on that they hold at least the potential of resolving “virtually every human problem in existence”[2], notably problems associated with trust (or the lack of it!). While a lot of what is associated with blockchain is labelled as ‘hype’, blockchain based applications and platforms have emerged and are continuing to emerge rapidly, and are being embraced, not only by companies, but are also increasingly gaining acceptance by national governments who are choosing to permit blockchain based businesses, while covering them under existing[3] or new regulations.[4] Various corporations and governments worldwide have also embraced several blockchain based business models and usecases ranging from supply chain management,[5] land registry management to voting systems[6] and e-governance.[7]

While its usecases in agriculture mostly revolve around supply chain management (“from farm to fork”),[8] a recent paper[9], discusses a new conceptual understanding of these technologies, under which they can be used as a means of promoting and incentivizing research and in situ innovation with agrobiodiversity. As discussed elsewhere, in situ conservation is a pre-requisite to in situ sustainable seed innovations (especially by farmers/informal sector)[10]. This technology, especially when combined with Artificial Intelligence (AI) applications, can also help small farmers like Jitul Saikia (See Box 2), farmers engaged with seed storage using traditional as well as locally adapted traditional (and sustainable) means (See Box 1), as well as farmers and farmer communities engaged with preserving and improving in situ, rare and highly nutritious seeds like Sona Moti (See Box 3). When traded with the assistance of these technologies, small farmers can sell or share (individually or collectively) their indigenous/traditional seeds in “digital marketplaces”, better assured of traceability and ‘benefit sharing’. These technologies can also help monetize the sharing of know-how associated with the cultivation of these in unique local conditions.[11]

These technologies hold significant promise although they are, relatively speaking, in a nascent stage of development. The following sub-section attempts to describe, in the simplest terms possible, the features of these technical solutions, particularly of Blockchain/DLTs that make them promising for the purpose of promoting and incentivizing Sustainable Seed Innovations, especially by farmers. Part 2 of the Position Paper (coming soon!), also discusses how these technologies can also be used to incentivize and raise funds for research on and with PGRs in a way that enhances farmers’ incomes. It also highlights the legal and ethical issues that need to be addressed in order to ensure that the technology leads to equitable and desirable outcomes, rather than inequitable, and illegal ones.

(ii) Digital Ledger Technologies/Blockchain: Overview of Key Features Relevant for incentivizing Sustainable Seed Innovations

Blockchain technology or DLTs are technologies that can be understood and explained in many ways, at various levels of abstraction. For our current purposes, it is useful to think of blockchain/DLT as a technology that permits secure data collection, arrangement, storage and transfer in an immutable or change sensitive manner (so called ‘immutable record keeping’).[12] The data typically entered into a blockchain is often data about transactions – i.e., who gave what to who, when, where, in what quantity etc. This feature, namely, immutable record keeping, is one of the central and most important features of the technology for our purposes, namely, the purpose of promoting sustainable seed innovation. The technology permits the traceability of the source of any transacted good (e.g. seeds), to its origin.[13] It can perhaps already be stated, however, that because, originally, blockchain was a technology designed primarily for digital (transactional) data, its use for tracing physical transfer of goods has to be accompanied with a plethora of other technologies and safeguarding measures, including, for example, tamper proof packaging, IoT devices, and in case of seeds, technologies such as biomarker technologies.

Beyond the ‘immutable’ record keeping feature, a second valuable feature of DLT or Blockchain, is its ‘distributed’ (as opposed to ‘centralized’) structure.[14] This means that because data stored on a blockchain is in digital (and not physical) form, blockchain creates a systems where multiple copies of the data can be simultaneously stored (and the transaction history automatically updated, albeit, currently with some time lag) on various computers in different parts of the globe (each computer that has a copy of the full transaction history, is called a ‘node’).[15] This distributed structure ensures that no one ‘node’ can tamper with the data or transaction history without changing the record in all other nodes. The larger the number of nodes in a blockchain ecosystem, therefore, the more difficult it is to tamper with (change) transaction history. This feature makes the network much more trustworthy than any current ‘centralized’ third party intermediary. For this reason, blockchain technology is said to eliminate the problem of (lack of) trust that disincentivizes certain types of transactions.

In addition to the above two features (i.e. immutable record keeping and distributed/multiple digital ledger copies), an additional feature that can optionally be added to any blockchain system, is the feature of so called “smart contracts”. It is noteworthy here that ‘smart contracts’ are neither ‘smart’ nor truly ‘contracts.’ They are, essentially, self-executing software, i.e., software that automatically triggers a series of digital occurrences/happenings as soon as a pre-determined set of conditions is fulfilled.[16] Thus, for example, a blockchain software could (soon) be so coded as to make sure that as soon as a bar or QR code on a package of seeds is scanned by a specific system at a specific location (e.g. the buyer’s premises), a transfer of payment is automatically made from account A to account B. Although this system is extremely complicated, it has been successfully deployed to ensure payments to specific parties as soon as certain conditions are fulfilled, without the need for a third-party intermediary (such as a bank).[17] The system, or the code underlying the system, then replaces the “trusted third party intermediary”, reduces transaction costs, delays and a host of other problems, including problems that may be result of corruption or breakdown of one of the nodes/computers in the system.

[1] Nakamoto, (2008).

[2] Walch, (2019).

[3] Allen, (2018); Partz, (2019).

[4] Zmudzinski, (2019); vom Brocke et al., (2018).

[5] Agrawal, Sharma, and Kumar, (2018); Casado-Vara, (2018); Perboli, Musso, and Rosano, (2018); Queiroza, (2019).

[6] Ayed, (2017); Hanifatunnisa and Rahardjo; Aste, Tasca, and Di Matteo, (2017).

[7] Zago, (2018); Partz, (2019); Zuckerman, (2018).

[8] Lin et al; Lin, (2017); Leng et al., (2018); Tian, 2016;

[9] Kochupillai, (2019a).

[10] Kochupillai, 2016

[11] Kochupillai, (2019b).

[12] Drescher, (2017).

[13] Kim, (2018); Tian, “An Agri-Food Supply Chain Traceability System for China Based on Rfid & Blockchain Technology.”; Queiroza, (2019).

[14] Dorri et al., (2017); Ølnes, Ubacht, and Janssen, (2017).

[15] Zyskind and Nathan; Puthal et al., (2018).

[16] Iansiti and Lakhani, (2017); Law, (2017); Kim, (2018).

[17] Nofer et al., (2017).

Please click here to view Part I of this three part post.

Prong 3: Re-thinking Incentive Structures

Blockchain/DLT Supported Incentives for Sustainable Seed Innovations? (Part III)

Mrinalini Kochupillai

iii) Blockchain/DLT and In Situ Innovations with Agrobiodiversity

As discussed in above, three major hurdles that need to be overcome in order to facilitate sustainable seed innovations (especially by small farmers) as well as monetization of sustainable seed  innovations for the benefit of small farmers and their rural communities are: (i) the issue of traceability: the origin of indigenous seeds is rather difficult to trace to source, in part because such seeds often don’t have one common or popular name with which they are known across a nation or region, and in part because the phenotypic characteristics of such seeds are very likely to change with every new season or every new region or condition (climate, soil) in which they are cultivated; (ii) the issue of trust: lack of trust among farmers as well as national governments, that persons or institutions that take ‘samples’ of the seeds will indeed share benefits with farmers, results in farmers’ growing unwillingness to share seeds (or know-how associated with their cultivation) with scientists, as well as national governments’ adoption of incredibly strict bureaucratic hurdles for any party that seeks to access (agro)biodiversity from within their territories; and (iii) the general lack of monetary incentives to cultivate using indigenous seeds (as discussed above).[1] Adding to this lack of monetary incentives, is the lack of adequate education/know how among several farmers on how cultivating indigenous seeds using TEK based farming systems can help maximize environmental and economic gains of farmers (see Prongs 1 and Prong 2); currently, because of the systematic ‘education’ of farmers solely in support of ‘conventional farming’ since the Green Revolution, farmers see economic gains only in high yields promised by “improved/proprietary” varieties.

These hurdles not only lead to sub-optimal in situ innovation with and conservation of agrobiodiversity, but also disincentivize R&D with agrobiodiversity, and/or honest access and use practices.[2] In both instances, the loser is the farmer – (i) sub-optimal incentives and know-how (education) on why and how to cultivate crops using indigenous seeds and TEK based farming systems (that also support agrobiodiversity conservation and improvement), leads to dependence on capital intensive farming that, over time, can lead to severe soil degradation[3] and also progressive economic indebtedness of farmers,[4]  and (ii) lack of research on and with agrobiodiversity or lack of honest disclosure of source of researched agrobiodiversity, prevents farmers from getting monetary benefits in the form of royalties or ‘benefit sharing,’ leading to further lack of incentives to continue cultivating indigenous seeds. It is also likely that lack of trust and competition among farmers will disincentivize farmer to farmer sharing of indigenous seeds, to the detriment of beneficial spread and region-specific evolution of agrobiodiversity, as well as the erosion of cultures of seed sharing.[5]

The features of blockchain/DLT technology discussed above, can help overcome the issues of lack of trust and traceability (see Annex 3 and Annex 4 for examples of how this can potentially be done[6]). However, to provide stronger economic incentives for agrobiodiversity conservations and associated research and in situ sustainable seed innovations, it is necessary also to link blockchain technologies, not only with automated payment systems, but also automated (monetary) reward systems.

In this context, it is necessary, at the outset, to distinguish digital currencies from cryptocurrencies (commonly linked with blockchain). Currencies, including digital currencies, are essentially a medium of storing and trading ‘value’.[7] In fact, digital currencies are already very much in use in several (or even most) parts of the globe. These digital currencies exist in two forms: in the form of digital payment systems (such as credit cards), and in the form of digital reward points (such as airline mileage points, grocery and other marketplace purchase points or customer loyalty points, all of which are examples of digital currencies that are then used to purchase other products or services, e.g. upgrades on airlines). Cryptocurrencies are not yet in widespread use, but across the globe, several countries have either already embraced them, or are in the process of so doing.[8] This is so from a legal as well as technological perspective – Switzerland, for example, is very active is developing and adopting legislation supporting cryptocurrencies. Corporations such as Facebook  (albeit under severe legal/regulatory scrutiny and mistrust) recently launched their own cryptocurrency (or ‘virtual money ‘) based payment system backed (apparently/allegedly) by blockchain technology and the US dollar (to prevent problems of volatility that cause a significant part of the public and regulatory discomfort with the technology).[9]

Leaving aside the uncomfortable topic of cryptocurrencies, it is worth investigating whether blockchain facilitated mechanisms to incentivize research and in situ innovation with agrobiodiversity can be linked with a simpler (non-cryptographic and low energy consuming) automated point granting systems similar to the “carbon points” system that can support what is commonly known as “carbon trading” or “emission trading .” Such points can then be used to get real cash from one or more of several possible sources, such as:

• established funds like the ‘Gene Fund’ or the ‘Biodiversity Fund’ under various Indian laws,
• from a fund maintained through the collection of a possible ‘biodiversity tax’ from sellers of non eco-friendly (uniform) seeds;
• or, from exchanging points for money from industries that would want to acquire biodiversity points to avoid paying the biodiversity tax. In other words, systems can be put into place that require seed, fertilizer and chemical pesticide industries to pay a biodiversity tax, unless they can show legitimate acquisition of “biodiversity points” from research institutions and farmers engaged in research and in situ innovation with agrobiodiversity. Industries looking to move to more sustainable business models can eventually also become partners (nodes) within any blockchain ecosystem created for incentivizing sustainable seed innovations.

The cash collected from any of the above sources in return for biodiversity points, can then be put to various uses by those who encash them. For example, farmer communities that obtain points in the system, can use the cash obtained from exchanging them, for rural community development or to support pension payments for aging farmers etc. Researchers or the scientific community that gets such points can use the cash obtained from their exchange, for further research supporting the cause of sustainable seed innovations. The points-based rewards system can thus support the institutionalization of productivity claims (see the blog post on Prong 2).

It is necessary to explain here that a smart contract facilitated payment-based system (e.g. a one-time payment or an automatic payment of royalty to originators of seed innovations, namely small farmers) must also be supported by a point-based rewards system, because the point-based rewards system creates incentives for downstream users and researchers to use rather than avoid the blockchain facilitated system. The point-based reward system would do so in two ways: (i) by ensuring that points collected can be exchanged for cash from one (or more) of the above suggested sources, and (ii) by permitting the specific contribution of each farmer/farmer community and research institutions to be immutably recorded and known to the rest of the world. Therefore, if any research and innovation with PGRs is done ‘outside’ the system (e.g. through illegally acquired PGRs), neither the farmer contributor of the PGRs, nor the downstream researchers (whether these be other farmers or scientists) will get point-based rewards for value addition.[10] Here, is it noteworthy that while blockchain supports anonymization of users if so designed, systems can also be designed that facilitate (limited or conditional) disclosure of identities of contributing parties, if they so desire, or in case of need (e.g. for purposes of legal enforcement, facilitation of payments/encashment and/or correction of technical glitches).

It is perhaps relevant to note here that in order for the world (including, especially, the small and marginal farmers of the world) to truly benefit from cryptocurrencies or even from a (biodiversity) point based incentive mechanisms facilitated by blockchain technology, it is necessary to re-think and re-understand the meaning of the term ‘value’.[11] Blockchain is called the internet of value. Yet, the meaning of ‘value’ is not only broad and context driven, but is also very subjective.[12] Indeed, it has been rightly said that “something has value primarily because people believe it has value.” Blockchain as a broader technology (beyond bitcoin) permits the capture, store, release and trading of value like never before.[13] With this understanding, actively engaging with and using this technology under appropriately designed regulations and ethics codes, to create applications and infrastructure focused on incentivizing sustainable seed innovations, and creating new markets for agrobiodiversity and plant genetic resources may therefore lead to very promising results, enhancing environmental health, small farmer incomes, as well as national GDP.

It is perhaps relevant to note here that in order for the world (including, especially, the small and marginal farmers of the world) to truly benefit from cryptocurrencies or even from (biodiversity) point based incentive mechanisms facilitated by blockchain technology, it is necessary to re-think and re-understand the meaning of the term ‘value’.[14] Blockchain is called the internet of value. Yet, the meaning of ‘value’ is not only broad and context driven, but is also very subjective.[15] Indeed, and it has been rightly said that “something has value primarily because people believe it has value.” However, blockchain as a broader technology (beyond bitcoin) permits the capture, store, release and trading of value like never before.[16] With this understanding, actively engaging with and using this technology under appropriately designed regulations and ethics codes, to create applications and infrastructure focused on incentivizing sustainable seed innovations, and creating new markets for agrobiodiversity and plant genetic resources may therefore lead to very promising results, enhancing environmental health, small farmer incomes, as well as national GDP. Preliminary frameworks recommending the means in which this technology can be deployed for promoting sustainable seed innovations have been described in this article here, and under Annex 3 and Annex 4 of the forthcoming Position Paper.

[1] See Section II of the Position Paper above. Also see Kochupillai, (2018); (2016).

[2] DeLonge, Miles, and Carlisle, (2016).

[3] Zhang et al., (2007); Lal and Stewart, (1990); Oldeman, Hakkeling, and Sombroek, (2017); Bhattacharyya et al., (2015).

[4] Dudley, (2000); Glover and Kusterer, (2016).

[5] Research has shown that in regions where improved/uniform seeds become the norm, the culture of seed sharing and seed exchange starts to become less prominent, perhaps because ‘uniform’ (HYV and hybrid) seeds need to be purchased afresh from the market each season and do not give desired yields in subsequent generations of cultivation (F2 onwards). See Kochupillai, (2016)., pp. 208-212 and pp. 50-63.

[6] (2019a).

[7] Yermack, (2015); Allee, (2008).

[8] Peters, Panayi, and Chapelle, (2015); Bucko, Palová, and Vejacka; ŞANLISOY and ÇİLOĞLU.

[9] Naughton, (2019); Dillet, (2019).

[10] For a more detailed explanation of how blockchain can incentivize value creation and value addition to agrobiodiversity, see Kochupillai, (2019a).

[11] Ibid.

[12] Ibid.

[13] Kochupillai, (2019a).

[14] Ibid.

[15] Ibid.

[16] Kochupillai, (2019a).

Please click here and here to view Part I and Part II of this three part post.

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In the following two part post in the ongoing blog post series on The Sustainable Seed Innovations Project, Julia Köninger (Technical University Munich) investigated research funds that flow into different farming approaches. The post shows that most fundings currently flow into high-input farming neglecting the sustainability of these practices. It emphasizes the consequent dearth of research for low-input farming and shows the urge to adapt research funds in order to close current knowledge gaps.

Research Funding for Sustainable Agriculture: A Non-Sustainable State of Affairs (Part I)

Julia Köninger[1]

A wide gap exists in research funds flowing into the different methods of farming. The gap is closely linked with the goals of each of these farming methods and more directly related to the external inputs needed to reach these goals. This article starts with an introduction of the different approaches followed by an investigation of the gaps in funding.

– Conventional Farming aims to optimise nature in order to increase yields whereby synthetic fertilisers (chemical and mineral) boost soil fertility and production efficiency, pesticides and herbicides counteract unpleasant distractions on the fields. A conventional farmer purchases seeds, fodder, livestock growth hormones, antibiotics and medicated feeds externally[2] and due to the amount of external inputs, conventional farming is also known as high-input farming.[3]

– Not only do conventional methods depend on external inputs, organic farming does as well. The difference between both farming methods: organic farming follows “a more holistic idea about the relationship among soil, plants and, human society” [4] and inputs are of an organic origin only and originate preferably from the farm localities (e.g. manure). In order to meet the increasing demand for organic food,[5] the number of organic farms has increased. Especially in countries where the organic sector is expanding rapidly (e.g. UK, Germany, France, US) the organic market generates high turnovers[6] which contributes to an expanding average farm size of organic farms.[7] In these countries, correlating with the size of organic farms, the number of specialized farms and monocultures has increased,[8] so that often local inputs no longer meet the needs of the farm calling for an increase of external organic inputs (e.g. copper, manure). This intensification is also referred to as “conventionalization” of organic agriculture[9] and correlates with a higher dependency on external inputs, higher expenses and less socially embedded communities creating doubts about the method’s sustainability.[10]

– Recent studies show agroecological farming systems achieve all three pillars of sustainability – economically, ecologically and socially.[11] These methods have been shown in some instances to outperform chemically grown crops with a more efficient and healthier approach for the ecosystem, the farmer and the rural community.[12] Agroecological farming systems are closer to traditional farming systems and focus on local inputs only (see Prong 1). They also benefit from synergies in socio-economic systems (e.g. sharing). From an ecological perspective, these methods have been shown by modern scientific research[13] to boost ecosystem services and consequently also biodiversity and natural resistance to (a) biotic stresses, e.g. resistance to pests, and climatic change, making the methods especially valuable in facing future agricultural challenges. Due to the importance of local characteristics, a generalisation of practices is not possible – there is not one recipe that works for all farm(er)s (as discussed in Prong 1).[14]

Global studies analyzing public and private research funding on different agriculture methods found that only around 1-5% of the budget for research on food and farming research is spent on research for organic methods.[15] For Europe, the Research Institute of Organic Agriculture (FIBL) estimated the annual spending of the European Union on organic food and farming systems at only 3-11% of the total agriculture budget between 1998 and 2013. Despite an increasing budget, the share for organic research decreased from 11.6% (2002-2007) to 7% (2007-2013).[16] In the years after 2013, the growing demand and importance of organic farming has led, in Europe, to a slight increase in the amount of research funding, and consequently research, on organic farming.[17] However, there is still a wide gap between organic and conventional research funding.[18] It must be noted here, however, that from a global perspective, there is no comprehensive information or statistics available.

Comparing private with public spending, the inputs for the farming methods make the correlation between private research funds and conventional farming, perhaps quite obvious. Surprisingly, also for organic farming, private investments lead over public investments. However, instead of corporates, farmers themselves generate most knowledge in organic farming and spend resources for this knowledge.[19] In the context of global public research, the major share of public research funds flow into projects fostering conventional, industrial methods such as biotechnology, “associated with scientific prestige and corporate investments, but sometimes with dubious goals and questionable impacts”.[20]

One of the major challenges is, that studies on organic farming often apply the same research methods and goals as conventional farming, namely aiming for efficiency, and productivity through yield optimization.[21] These research goals neglected sustainability as the base of organic farming and do not equally focus on the social, economic and ecologic perspective of farming. Although both agroecology and genetic engineering came up (or were “rediscovered”) around the same time, the latter has developed into a specialized science, while the former has received only marginal attention, rarely being covered by science.[22] This is despite the fact that some studies confirm agroecology’s links to future benefits and sustainability.[23] A study in the US investigated projects that were registered in 2014 at the USDA Current Research Information System (CRIS) database with a focus on sustainable agriculture, including agroecology. Of all registered research within agriculture (including all types of agriculture):

• 18-36% of studies analysed reduced, more efficient inputs
• 24% of studies analysed more sustainable inputs & practices
• 15% of studies investigated ecological principles
• 14% the social dimension of agroecology.[24]

Within the USDA, very little funding (4%) flowed into studies that focused on a more holistic, integrated approach (e.g. by combining the social and ecological principles). Only 1% of the funding was invested in integrated crop-livestock systems and less than 1% of the funding flowed into agroforestry. De Longe et al. emphasized with the study, that research does not target solutions, but rather focus on the mitigation of negative ecological and social consequences of the existing system (e.g. impact on health and the prevention of health issues).

[1] The author thanks Dr. Mrinalini Kochupillai and Dr. Natalie Kopytko for their comments and suggestions for this blog post.

[2] Liebman et al., (2008).

[3] Mäder et al., (2000).

[4] Reganold and Wachter, (2016).

[5] FIBL, (2016); Soil Organic Association, (2019); Organic Trade Association, (2019); Luttikholt, (2019).

[6] Willer, Rohwedder, and Wynen, (2009).

[7] Ikerd, (2000).

[8] Tittonell, (2014).

[9] Seidel, Heckelei, and Lakner, (2019).

[10] Kremen, Iles, and Bacon, (2012); Goldberger, (2011); Guthman, (2014).

[11] Garibaldi et al., (2017).

[12] Hatt et al., (2016); Wezel et al., (2018).

[13] Faucon, Houben, and Lambers, (2017); Gianinazzi et al., (2010).

[14] Wezel et al., (2014); Wezel et al., (2018).

[15] It needs to be noted that these numbers are difficult to measure since research cannot always be contributed to one or the other farming method. De Ponti, Rijk, and Van Ittersum, (2012); Ponisio et al., (2015); Beintema et al., (2012); Tittonell, (2014).

[16] Including FP 5,6 and 7; See Baret et al., (2015), 6.

[17] Willer and Lernoud, (2017); Niggli, Willer, and Baker, (2016).

[18] Willer and Lernoud, (2017).

[19] Tittonell, (2014).

[20] Jacobsen et al., (2013); Scientific American, (2009); Tittonell, (2014).

[21] Watson, Walker, and Stockdale, (2008).

[22] Vanloqueren and Baret, (2009).

[23] Wezel et al., (2018); Altieri, (2002); (2009); Altieri, Funes-Monzote, and Petersen, (2012); Altieri et al., (2015); Bonaudo et al., (2014); Hatt et al., (2016); Khadse et al., (2018); Kremen, Iles, and Bacon, (2012); Niggli, (2015); Parmentier, (2014); Perfecto and Vandermeer, (2010).

[24] DeLonge, Miles, and Carlisle, (2016).

Research Funding for Sustainable Agriculture: A Non-Sustainable State of Affairs (Part II)

Julia Köninger[1]

Consequences of the Sub-Optimal Research Funding Going into Sustainable Agricultural Systems

 The gap in research fund creates a gap in scientific knowledge.^[1] Studies have shown, that a major knowledge gap exists especially vis-à-vis the quantification of costs of agricultural production systems, from their environmental, social and health perspective.[2] Further research is needed in the area of eco-functional intensification of agriculture,[3] and also, research on ecosystem services such as plant systems that benefit or harm each other (allelopathic plants).^[4]

With the inevitable climate challenges we face, it is surprising that there is a dearth of research on scaled-down future projections of climate change and the impacts on agriculture. Such research is necessary to optimize adoption strategies.^[5] This knowledge gap leads to a gap in educational curriculums, starting a vicious cycle that prevent future scholars and researcher from studying more integrated, holistic ways of farming (See also Prong 2).

Due to this missing research and research funding along with widely varying perceptions of agroecology, a widely accepted definition of agroecology has not yet been developed, and discordant viewpoints prevent the further application and usage of the approach, for example, at a governmental level.[6] Politics, institutional activities and innovation mostly focus on research priorities. Accordingly, agroecology is currently barely integrated in political activities e.g. in subsidy schemes.^[7] In addition to a knowledge gap, a gap of research funding results in sub-optimal crop and livestock breeding in organic (traditional) farming.[8] As a result, organic farmers are forced to use conventional seed varieties with wide-reaching impacts on yields and plant health because these seeds are not genetically diverse and often not suited for cultivation without chemical inputs.[9]

Less Inputs, Less Research?

The imbalanced research funds reveal a correlation between inputs and the amount of conducted research creating a focus on short-term input efficiencies in the current system. Consequently it is mostly conventional, output oriented research that is funded, which creates a technical regime.[10] Moreover, this regime locks out agroecological and traditional farming methods, especially since they have been shown to reduce input dependency and therefore related research is unlikely to be supported by the private sector.[11] The current investments for big data emphasizes that technical regime, since studies around big data mostly focus on yields and conventional farming.[12] While the technology could possibly benefit all farming systems, there is currently not much multi-stakeholder and multi-disciplinary research happening (e.g. research engaging not just scientists, but also social scientists, governments, extension services, farmers etc.). This must be seen very critically,[13] and immediate steps need to be taken globally to correct these inequities in research funding, not only for the sake of small farmers, but also for the sake of soil and environmental health and sustainability.

There is an urgent need for research in agroecology that is independent of external inputs.[14] To bring research in agriculture towards a more sustainable state of affairs, it must shift to a focus on long-term thinking instead of immediate yield optimization that results in unmanageable negative externalities (soil depletion, decreasing soil microorganisms, depleting water resources, pollution of water resources).[15] Long-term commitment of funds are needed to support this kind of research.[16] For example, the German Agricultural Research Alliance (DAFA) recommends questioning the usually funded project duration of 3-years. According to the DAFA, longer research funds should be supported by the Federal Government. A longer time frame and research extent is needed in order to conduct complex agroecological research that involves many different ecosystem interactions.[17] Especially in Asian countries there is a lack of such long-term funded research programs.[18]

In addition to a different time frame, there is also need for new research funding mechanisms and approaches in order to find groundbreaking new ideas, and also to revive and bring to the mainstream thus far ignored traditional farming methods that are declared by international instruments such as the CBD, as centrally relevant for the protection of biodiversity. Moreover, these ideas and solutions are only realizable if research grant systems also target outside-the-box ideas and studies outside a classical linear approach to research-supported innovations.[19]

Future research requires inter- and transdisciplinary cooperation and a research practice network that enables co-learning between different parties involved (stakeholders and multi-disciplinary research teams).[20] To reach the needed comprehensive research findings, farmers need to be actively involved and be considered as co-researchers and co-facilitators of knowledge.[21] It is mandatory to adapt research funds in order to meet these goals, and also current structures at universities and funding schemes must be questioned and verified to determine whether they are still the right tools to reach sustainability goals and future needs.[22]

[1] Ratnadass et al., (2012).

[2] Niggli, Willer, and Baker, (2016).

[3] Tittonell, (2014).

[4] Niggli, (2015).

[5] Zulu, 2017; Lipper et al., (2014).

[6] Sanderson Bellamy and Ioris, (2017).

[7] Wezel et al., (2018).

[8] De Ponti, Rijk, and Van Ittersum, (2012); Ponisio et al., (2015).

[9] van Bueren et al., (2011); Döring et al., (2012).

[10] Vanloqueren and Baret, (2009).

[11] DeLonge, Miles, and Carlisle, (2016).

[12] Wolfert et al., (2017); Bronson and Knezevic, (2016).

[13] Bronson and Knezevic, (2016).

[14] Hatt et al., (2016).

[15] Zulu, “Existing Research and Knowledge on Impacts of Climate Variability and Change on Agriculture and Communities in Malawi.”

[16] Tittonell, (2014).

[17] Vanloqueren and Baret, (2009).

[18] Niggli, Willer, and Baker, (2016).

[19] Hamm et al., (2017).

[20] Niggli, Willer, and Baker, (2016).

[21] Niggli, (2015).

[22] Dulloo, Hunter, and Borelli, (2010); Watson, Walker, and Stockdale, (2008).

Please click here to view Part I of this two part post.

Red okra, seed collected from tribal area. Photo credit: Darlapudi Ravi.

In the next post in the ongoing blog post series on The Sustainable Seed Innovations Project, Natalie Kopytko, Post-Doctoral Research Associate at University of Leeds shares stories of farmers using traditional methods to store seeds.

Laying the Foundation for Innovation

Natalie Kopytko

A foundation seed is the ‘pure seed stocks grown by or under the supervision of a public agency for use in the production of registered and certified seed’. When it comes to ‘informal’ farmer-level innovation, foundation seed(s) take on completely different meanings. For instance, one of the many traditional methods of storing seeds includes protecting them within the foundation and walls of homes. Moreover, the ability to store seeds from one year to the next provides the foundation necessary to support future innovations.

In this story, Darlapudi Ravi from Andhra Pradesh (centre of top photo), Sameer Zanjurne from Maharashtra and Ranjit Singh Bath from Punjab share their knowledge of traditional techniques for storing seeds. Moreover, their knowledge of seed-saving exhibits their quest for information, experimentation, and ultimately a journey of learning. Ravi through visits to tribal areas in many states, Ranjit by adopting a method from the south of India, and Sameer through his combination of multiple ‘non-conventional’ farming techniques.

A Variety of Ways to Store Varieties

Seed storage varies according to crop and region. In Assam, as shown by Soren Bora, farmers store rice still protected in the husk of the plant. In Punjab, one method involves burning camphor to create an anaerobic environment. The anaerobic conditions within a well-sealed container then protect the seeds from any pests. Along with this technique, Ranjit Singh Bath adopted a method he learned from south India for storing pulses. The method involves adding approximately one foot of sand on top of the pulses stored in a container or alternating layers of seed and sand. The scientific rational for the sand-mixture method: the sand particles kill insects by acting as an abrasive agent against the insect, and the sand acts as a barrier between seeds and insects. An assessment of traditional methods of pulse storage (including the sand-mixture method) found them to be inexpensive and eco-friendly, while maintaining high germination, low insect infestation, and low moisture content.

In terms of moisture content, a cucumber certainly contains a lot of moisture, so how does one store the seeds of a cucumber?  Sameer tells us about how he stores three varieties of cucumber on the walls of one of his farm’s out-houses. His grandfather built the walls using a special soil that forms under the trampled paths of cattle by compacting and mixing layers of cow dung and soil. To store the cucumber seed, simply cut the cucumber, throw the seeds against the wall and let the soil absorb the moisture. The cucumber seed stays attached to the wall until next season’s sowing period. Sameer went on to explain that the thick walls keep the house cool in the summer and warm in the colder months creating ideal conditions for both human inhabitants and seed storage. Traditionally, many varieties of seeds were stored in the walls and foundations or in large holes dug underneath the homes.

Ravi’s method of seed storage: bamboo baskets sealed with cow dung. Photo credit: Darlapudi Ravi.

The method of storing underground, in part, inspired the seed-saving method developed by Ravi.  In Orissa’s tribal areas, he observed seeds stored by digging large holes in front of the houses. The seeds were placed in the holes with paddy grass, then cow dung, and finally mud.  As Ravi states, his method, “protects the desi seed in desi style, since the power of cow dung is greater than the power of chemicals.” He begins by treating the seed in cow urine and drying the seeds in the shade prior to storage. Ravi lines bamboo containers with cow dung, on top of the seeds he adds a layer of grass, then a layer of neem leaves and finally seals the container with cow dung. The grass layer absorbs moisture, while the neem leaves act as a natural insecticide. The use of neem to protect seeds from insects is widely known and practiced, while the other aspects of Ravi’s method come from his many visits to tribal areas.

Seeking and Sharing the Seeds of Knowledge

Ravi seeks knowledge from tribal farmers because they have generations of experience farming without chemicals. Moreover, the tribal areas occur in hilly areas with poorer soil conditions and rely on rain-fed agriculture. He first became interested in traditional farming techniques through observation of tribal farms near his native home in Andhra Pradesh, but eventually he travelled to tribal areas throughout Chhattisgarh, Assam, Maharashtra, Telagana, Karnataka and, as previously mentioned, Orissa. After a few visits, he built up enough trust with the tribal farmers that they shared their knowledge with him. As he explains, “tribal areas give knowledge in a traditional way, so my knowledge and tribal knowledge is the same”.

In addition to gaining knowledge about traditional seed storage from tribal farmers, Ravi also collects many varieties of seeds. On his farm he currently has 30 varieties of traditional paddy, 10 medicinal plants, 10 varieties of millets, and many varieties of vegetables seeds. For example, he has a red variety of okra and a gourd that provides multiple fruits from one stem. He shares seeds only with farmers who follow natural farming, following the traditional method of giving 10 kg and then collecting 20 kg in return the next season. With respect to knowledge-sharing, Ravi also works on international projects and expresses a  desire to learn from as well as teach people in other countries.

Rather than visiting tribal areas, Sameer speaks of having many gurus including Sri Sri Ravi Shankar and David Hogg. He combines three types of chemical free agricultural, biodynamic, natural farming and Homa/Vedic by selecting the practices from each that suit his current situation and needs. He speaks of needing to share this knowledge to make it available for future generations. His father passed away when he was a child, but he learned about his father’s farming practices from the community. Therefore, he trains farmers in the multiple-techniques that he has learned to ensure the practices continue into the future.

These chemical-free techniques of cultivation all depend on using seeds of traditional varieties. In other words, Desi seeds provide the foundation. These farmers demonstrate just how much knowledge can be built upon this foundation.

Image from here

We’re pleased to bring to you a guest post by Simrat Kaur, wherein she analyses the impact of mandating automatic filtering of copyright infringing content by internet intermediaries. Simrat is a New Delhi based IP lawyer. She pursued her undergraduate law course from Rajiv Gandhi National University of Law, Punjab and masters law course from National University of Singapore. After having worked with leading Indian law firms (Anand & Anand and Luthra & Luthra Law Offices), she is currently practicing under the banner “The Endretta”.

The Idea Of Mandatory Automated Filters: Bringing About A Rapid Discourse Shift From Intermediary Immunity To Intermediary Responsibility

Simrat Kaur

A couple of months back, Europe took a policy leap on intermediary liability when it gave life to the controversial Article 13 (now Article 17) of the EU Copyright Directive which, as a natural consequence of the language adopted, makes automatic filtering mandatory for intermediaries. It found place in the final text despite sharp criticism from various sectors, tech in particular (the battle is still not over, though – as per a recent update on the official twitter account of Chancellery of Prime Minister of Poland, a complaint has been filed by Poland against the Directive, before CJEU). While world was eyeing at the developments in Europe, India too proposed a similar provision in the form of Rule 3(9) of the Draft Intermediary Amendment Rules, 2018. Just like in Europe, it received a fragmented response from the stakeholders. Tech sector opposed it but content creators including Indian Music Industry welcomed the proposal. While the debate was unfolding, Telecom and IT minister Ravi Shankar Prasad was quick to mention, immediately after he assumed office; that notifying intermediary guidelines is one of his top priorities, leaving us with the question –  Will Rule 3(9) see the light of the day??

It is being argued  that the rule will lead to general surveillance and have a chilling effect on free speech. Multiple other concerns are also being raised against the idea of mandatory automated tools. An attempt has been made here, to discuss the most relevant ones:

Lack of Contextual Understanding

Inadequacy of AI and other automatic filters to understand context is the primary argument on the basis of which the proposal is being opposed. Opponents argue – How will these filters understand if a statement is defamatory or not? How will they differentiate between war footage uploaded by terrorist organisations and the same footage used by human rights activists for study and awareness programmes?

Above concerns are, indeed, valid. When we humans, too tend to be context insensitive, sometimes (semantic noise in human communication is a common problem – we often focus on meaning/interpretation of words rather than context and end up giving, or, falling prey to misunderstandings); it’s hard to rely on automatic tools for contextual understanding. But does that mean we should drop the provision? Can’t we adopt a sector specific approach? Since available technology is not quite fit for many context based issues which require assessment by humans, we can look at selective and restrictive application of the provision in relation to such unlawful content which could be easily spotted by filters. Music copyright infringement is one such area. Available technology can efficiently spot music infringing works (at least verbatim unauthorised copies, if not transformative ones) and block them. This is because, analogous copyrighted content is available with the platforms and the filtering technology just needs to match all the content being uploaded against the same.

Fair Use

There is a counter argument being advanced against the use of filters for music infringing works too – fair use. It is said that meta-tagging; hashing and content fingerprinting are all limited in their capacity to determine fair use and hence suffer from ‘false positives’ (erroneously filtering lawful content). A video used in news reporting / for education purposes could be removed by the filters as the same can’t be assessed without human intervention. In the Myspace judgment, Delhi High Court, too advocated against the idea of running filters to filter copyright infringing works on the ground that it may “snuff out creativity” and violate the right of “fair use”. But there is a pressing need to reassess this approach, particularly in light of the fact that intermediaries are showing active involvement in the distribution of uploaded content by optimising its presentation and promoting it (it shows that their role is no more technical and passive). If they are earning from content, they should shoulder the responsibility to root out infringements. Possible over-removal of legitimate content should not be available as an excuse. Also, since copyright is the rule and fair use is an exception; plethora of advantages of filters in reducing piracy shouldn’t be overlooked owing to collateral damage that those may entail, by over removal in some fair use cases. Intermediaries should put in place efficient counter notice mechanisms and human moderators to take care of erroneous removals. Moreover, the leading content recognition technology company Audible Magic claims that “positive identification rates exceed 99% with false positive rates of less than 10⁶”. From this, it appears that adverse impact is anyway disproportionate.

Competition Concerns

Second argument is related to competition – it is argued that mandatory filtering will consolidate power and stifle competition as start ups and micro enterprises won’t be able to afford the technology. This will strengthen the monopoly of incumbents and act as a barrier to new entrants. But, can’t we address this by exempting start ups from the obligation? Companies which are less than 3-5 years old and have less than 10 lakh users per month, could be subjected to lighter obligations. Moreover, as per the impact assessment report of EU Commission on the modernisation of EU Copyright Rules, “a small scale online service provider with a relatively low number of monthly transactions can obtain such services for €900 a month”. Prima facie, it does not seem to be very unreasonable, even if it is for audio files only (pricing details of Audiomagic is available here https://www.audiblemagic.com/compliance-service/#pricing ) Also, once the law makes filtering mandatory, commercial fingerprinting and filtering technology will be in great demand. More companies will jump into this space, giving tough competition to current players i.e. Audible Magic and Vobile, which will in turn help in lowering the prices.

Lack of Control Over the Content

As far as the complaints of intermediaries like Amazon Web Services which do not even have access to their customers’ data are concerned, the same could be taken care of by doing away with the subject neutrality of the law and exempting such intermediaries from the obligation.

Conclusion

Given the above, rather than deleting Rule 3(9), customising it to strike the right balance between competing interests, is advisable. If platforms, particularly those which are, in a way, actively communicating the content to public and are earning billions as a result, must ensure that those who create that content are fairly remunerated. The regime of notice and takedown appears to be dysfunctional now; particularly in the manner it is practiced for high volume areas like music copyright. Given the large number of uploads, it becomes very costly and practically impossible for right-holders to report each infringement to platforms and request for the take down. One of Indian Music Industry (IMI)’s reports says that “95.7% of takedown notices issued by IFPI are for repeat content i.e., when we issue a notice, it is taken down and pops up again”.  For instance, a couple of years ago, One Direction’s “Drag Me Down” was reported to have reappeared for more than 2,700 times on YouTube following the first notice. Further, the value gap figures being released by IFPI(International Federation of the Phonographic Industry) every year; make it evident that we need something over and above ‘notice and take down’, to save the interests of creators. Though argument of value gap is rejected by many on the basis of lack of independent empirical evidence, however, strong voices coming from within the music industry and the relative low growth of music creation / distribution businesses in the last decade, do not fail to create a strong presumption that the problem is very much real. In his open letter to European Parliament, Paul McCartney said “Unfortunately, the value gap jeopardizes the music ecosystem. We need an Internet that is fair and sustainable for all. But today some User Upload Content Platforms refuse to compensate artists and all music creators fairly for their work, while they exploit it for their own profit. The value gap is that gulf between the value these platforms derive from music and the value they pay creators.” These facts and figures support the argument that ‘notice and take down’ should be replaced with ‘notice and stay down’ and for that, practically speaking, filtering is essential. If intermediaries are still not obligated to take a bit of enforcement responsibility by implementing filters; digital piracy will remain an intractable reality and the value gap will persist. Though a lot of work needs to be done in other areas too (for instance working and role of the collective rights management organisations), in order to have more money flow to music industry, nevertheless requiring user upload platforms to deploy automatic content recognition technologies is a step in the right direction to strike the necessary balance and close the value gap. It will certainly help copyright societies and artists to negotiate competitive license terms with user upload platforms. Currently these platforms see no incentive to draw fair terms, because the content to be licensed is already available on their platforms (users upload it, anyway) and they tangentially benefit from infringing content through advertising or increased traffic. As regards the users, in the long run, it will be beneficial for them too. They will have access to more content. This is because, more the rights of content creators are protected, more will they be incentivised to innovate and create more content.

Image from here

We’re pleased to bring to you another guest post on the recent Delhi High Court decision in Amway & Ors. v. 1MG Technologies & Ors. by our Fellowship applicant, Arushi Gupta. Arushi is a 2nd year student at Maharashtra National Law University, Mumbai. This is her fourth submission for the Fellowship.

Eashan Ghosh’s guest post on the same decision, published last week, can be viewed here.

Through the Looking Glass: Alice and the Wonders of the ‘Liability of Online Marketplaces’ in the Delhi HC

Arushi Gupta

“With Great Power Comes Great Responsibility”. On 8^th July, 2019, the Delhi High Court embellished its landmark decision with these words. For Justice Pratibha M. Singh, these words were not fallow lands but watered by the wisdom in her decision.

The approach of the law towards intermediary liability is pertinent since only one other judgment has extensively dealt with it— Christian Louboutin SAS v Nakul Bajaj and Ors, also delivered by Justice Pratibha M. Singh. Thus, the present decision becomes interesting since the Indian jurisprudence on intermediary liability may be credited to a lone rider.

In the decision of 8^th July, 2019 (“Amway decision”), a batch of seven suits with overlapping issues was heard together. The Plaintiffs comprised Amway, Modicare and Oriflame. The Plaintiffs had instituted suits against the Defendants for violation of Direct Selling Guidelines, trademark infringement under Section 29 of the Trade Marks Act, 1999 and tortious interference with contractual relations. The Defendants comprised sellers; some were authorized distributors and others were third parties who had acquired goods through unauthorized channels, and e-commerce websites—Flipkart, Amazon, Snapdeal and 1MG. With respect to trademark infringement and intermediary liability, the Defendants raised a twin-fold defense:

1. The “use” of the trademark was protected under Section 30(3). It relates to the doctrine of natural exhaustion. Both raised this defense.
2. The actions of intermediaries fall under the safe harbor of Section 79 of the IT Act 2000.

The Plaintiffs prayed for a perpetual and mandatory injunction. However, this decision was limited to a suit for temporary injunction. Thus, the Amway decision, at present, is an interim relief.

The Plaintiffs sell their goods through a unique distribution channel, which is called a “Direct Sellers Contract”. Under this, authorized sellers distribute, promote and sell the goods. They have to comply with a strict standard called the “Code of Ethics” wherein one of the conditions is that the sellers must not sell goods on e-commerce platforms or to retailers. Apart from direct sellers, the Plaintiffs sell their goods online through their websites. Thus, the sale of products on e-commerce websites is a flagrant violation of law and the contract.

To this effect, the Court framed four legal issues:

1. Whether the Direct Selling Guidelines, 2016 are valid and binding on the Defendants and if so, to what extent?
2. Whether the sale of the Plaintiffs‟ products on e-commerce platforms violates the Plaintiffs‟ trademark rights or constitutes misrepresentation, passing off and results in dilution and tarnishes the goodwill and reputation of the Plaintiffs‟ brand?
3. Whether the e-commerce platforms are “intermediaries” and are entitled to the protection of the safe harbor provision under Section 79 of the Information Technology Act and the Intermediary Guidelines of 2011?
4. Whether e-commerce platforms such as Amazon, Snapdeal, Flipkart, 1MG, and Healthkart are guilty of tortious interference with the contractual relationship of the Plaintiffs with their distributors/direct sellers?

In this post, I would restrict my attention to Issue II and Issue III. To understand Issue II and Issue III, the Court bifurcated the judgment in the following fashion. I would follow the same:

1. Whether the actions of the intermediaries fall under Section 29 of the Trade Marks Act, as a “seller” under the provisions of the Act?
2. Whether the defense of “doctrine of first sale”, under the Section 30 of the Trade Marks Act, is available to the seller and the intermediaries?
3. Whether the actions of the intermediaries, in relation to the infringing activities of the sellers, fall under the safe harbor provisions of Section 79 of the IT Act?

Whether the Actions of the Intermediaries Fall Under Section 29 of the Trade Marks Act, As A “Seller” under the Provisions of the Act?

First, I am not dealing with an analysis of the activities of the sellers to fall under Section 29. For fairly obvious reasons, these actions fall under Section 29 since unauthorized use of a mark is violative of the rights of the proprietor. There is an express prohibition on sale on e-commerce websites. The goods were also tampered with. Further, the use took unfair advantage of the mark. Rather, it is the actions of the intermediaries that merit discussion, as it is (largely) uncharted territory.

Second, the Court contemplated whether the actions of e-commerce websites amount to “use” under Section 2(2)((c)) and “infringing use” under Section 29 by undertaking a detailed discussion on the span of its activities.

On the position of liability of e-commerce platforms and the doctrine of exhaustion, the Court held, “A perusal of Section 29 shows that while it is perfectly permissible for the seller of a product to use a trademark to signify the source of the products – if the products are genuine, it cannot at the same time, indulge in any conduct which would result in taking unfair advantage of the distinctive character of the mark. Further, if the use by the seller is detrimental to the reputation of the mark, the mark is stated to be infringed. Use of a mark in meta-tags or in advertising without the consent of the proprietor is also violative of trademark rights of the owner. Section 29(6) is categorical that if a person uses a mark or affixes the mark on the packaging, puts the product in the market or stocks them or offers them for sale or even uses the mark in advertising, it would constitute infringement. To be able to use the mark for purposes such as packaging, offering for sale, selling, use in advertising, etc., consent of the proprietor would be required.

Section 29(8) also makes it clear that if any advertising of a mark takes unfair advantage of the mark or is detrimental to its distinctive character even without a sale-taking place, there is infringement. While Section 30(3) could come to the aid of a person who wishes to sell the goods in the market or otherwise deal in them, if the products are genuine, the same does not mean that there can be unhindered and unbridled use of the mark in the form of affixation on the packaging, exposing the products for sale, offering the goods for sale, using in advertising, especially when there is a grave apprehension that the products are being impaired and their condition is being changed. Thus, changes in warranties, refund/return policies, changes in packaging, removal of codes of the products, and any other conduct that causes damage to the reputation of the mark and is likely to undermine the quality of the mark would constitute ̳impairment.”

The Court held that in the following situations, the responsibility of the selling of the goods would fall squarely on platforms: (1) advertisements, (2) offers of sale, (3) meta-tags, and (4) promotions. For instance, under the program “Fulfillment by Amazon”, Amazon is “consummating the sale on behalf of its sellers”. Lastly, offline, platforms provide logistical support, warehouses, cataloguing services, etc. Thus, the Court held that the “use” squarely falls within Section 2(2)((c)).

The aforementioned is crucial. The Court has identified key activities undertaken by the platforms, which make it a seller under the Act.

Whether the Defense of “Doctrine Of First Sale”, under Section 30 of The Trade Marks Act, is Available to the Seller and the Intermediaries?

Section 30 (3) Where the goods bearing a registered trade mark are lawfully acquired by a person, the sale of the goods in the market or otherwise dealing in those goods by that person or by a person claiming under or through him is not infringement of a trade by reason only of—

(a) the registered trade mark having been assigned by the registered proprietor to some other person, after the acquisition of those goods; or

(b) the goods having been put on the market under the registered trade mark by the proprietor or with his consent.

(4) Sub-section (3) shall not apply where there exists legitimate reasons for the proprietor to oppose further dealings in the goods in particular, where the condition of the goods, has been changed or impaired after they have been put on the market.

First, the decision discusses the meaning of “put on the market”. The Court referred to Kerly’s, which states it as, “released into the market by an act of sale” and the ECJ in Peak Holding v. Axolin-Elinor, which held “A sale which allows the trade mark proprietor to realize the economic value of his trade mark exhausts the exclusive rights conferred…” In light of these broad principles, the Court concluded that the goods were “put on the market” when they entered the Direct Selling Market.

Second, the Court settled the plea of the Defendants regarding the defense of first sale. It held that the defense does not apply. The acts of the Defendants squarely fall within the exception of Section 30(4). Thus, the Court held, “The sale on e-commerce platforms of the Plaintiffs‟ products would be infringement of the Plaintiffs‟ trademark rights as the Defendants are also using the Plaintiffs‟ trademarks, their trade names for promotion of the products, sale of products, display of products, and advertising of the products in a manner that is detrimental to the distinctive character and reputation of the Plaintiffs’ marks.”

Whether the Actions of the Intermediaries, In Relation to the Infringing Activities of the Sellers, Fall Under the Safe Harbor Provisions of Section 79 of the IT Act?

This part of the decision is (naturally) problematic. First, conceptually, after platforms have been constituted as “user” of the trademarks and primarily liable under Section 29, only actions that serve to make them secondarily liable, i.e., for the acts of the sellers, must be assessed. For this purpose, it has to be ascertained whether they are active or passive platforms. If it is an active platform, it cannot enjoy safe harbor.

Second, the Court itself recognized that the nature of the intermediary must be factually assessed. It did not provide a factor test. To my mind, it was inclined to recognize online marketplaces as “active” intermediaries.

Third, since this is an interim order, the Court left the determination of the nature of the intermediary for adjudication at trial. Rather, it conclusively ascertained the requirements for an intermediary to enjoy safe harbor.

The Court held that to get protection under safe harbor, the intermediary must abide by the “due diligence efforts” delineated in the Act, Rules and its own policy. This is the “bare minimum” that the platform must do.

Intermediary Liability: Clarity on the Law Till Now  

This decision follows Christian Louboutin—extensively covered on the blog, here and here. While Louboutin laid the (shaky) foundation, Amway (shakily) builds. I would refrain from criticism, since this is but only an interim order. Rather, I would attempt to summarize the legal position till now.

In Louboutin, the Court had held that the intermediaries must comply with “due diligence” efforts as laid down in the statute as well as its own policies. These must not be “paper policies” and have to be implemented in order to qualify for safe harbor protection. The Court continues to subscribe to this view. However, till now, it has not offered insight on the meaning of “due diligence” but seemingly held the view that compliance with the statute is necessary but not sufficient.

Unlike in Louboutin, the Court made no reference to “conspiring, aiding, abetting or inducing” the unlawful act, as contemplated under Section 79(3)(b). For now, this leaves a void.

Lastly, once again, the Court leaves the problematic discussion of “actual knowledge” alone. In line with Shreya Singhal v. UOI (“Shreya Singhal”), knowledge means a Court order. However, in MySpace v Super Cassettes (“Myspace”), the Delhi High Court had held that Shreya Singhal is limited to Article 19(2). It buttressed its position by relying on the view of the Division Bench in Kent RO Systems Ltd. v. Amit Kotak. In Amway, the Court relied on the ratio of Myspace.

While determining the liability of the platforms under Section 29(6), the Court made a damning statement, “Amazon is specifically using the Plaintiffs‟ mark Amway in advertising, without actual knowledge that the said products being sold on its platform are genuine or not and whether they are tampered with or not.”

This is a misstep. Let’s wait and see if Alice wades through the IP landscape and finds us a solution, after all.

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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).

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

Mrinalini Kochupillai

Disengage Benefit Sharing for PGR Access from Downstream IPR Protection

In the context of the Seed Treaty (and the Indian PPV & FR Act, 2001), it is necessary to re-think the current legal provisions that mandate benefit sharing only if the downstream research with PGRs is protected by intellectual property rights.[1] It may be possible to justify this current limitation if we start with the outdated scientific understanding that the Mendellian “genes for traits” (and associated management of soil and water so as to keep them as uniform as possible) approach is the only way to accomplish food (and nutritional) security (See Prong 2).[2] In other words, under this older scientific understanding, it was (and in several pockets, it is still believed) that uniform varieties are better and more necessary for food security than heterogenous, non-uniform varieties.[3] If this is the understanding we start with, the rationale behind granting a share of benefits to farmer-contributors of PGRs only if downstream improved seeds are protected by PGRs, seems to be as follows: in exchange for contributing PGRs, farmer-contributors of PGRs (eventually) get access to “improved” seeds that are not protected by IPRs, and this is “benefit sharing” enough, because (at least hypothetically speaking), farmers can then save seeds from season to season and save costs associated with buying proprietary seeds from the market each season, or can compensate for seed costs by getting much higher yields (and therefore, higher profits) than they could with indigenous heterogenous seeds.

However, there are other facts, backed by growing scientific and empirical research, to be considered, namely: (i) “improved” seeds do not work well in marginal environments, not least because breeders rarely focus their research in resource poor areas.[4] More specifically, they do not work well without external (chemical) inputs that stabilize the environment in which they are cultivated;[5] (ii) “improved” seeds that are “uniform” and rely on chemical inputs for their performance, have a negative impact on the environment and are not sustainable in the long run;[6] and (iii) cultivation with “improved” seeds that rely on chemical inputs is not economically profitable for farmers (especially small and marginal farmers, who often incur heavy debt to acquire these inputs),[7] and (iv) “improved”/uniform seeds lead to erosion of socio-cultural diversity associated with locally relevant crops and food.[8] The benefits obtained by small farmer contributors of PGRs even in cases where the “improved”, uniform seeds are not protected by IPRs, is not commensurate with the economic benefits derived by corporations or research institutions that utilize these PGRs.[9] In fact, the “exchange”, if any, in these circumstances is a bad deal for farmers and the environment alike.

On the other side of the spectrum, indigenous seeds do not (and are not engineered to) perform well in the presence of chemical fertilizers and pesticides. A farmland that adopts “uniform” seeds and “uniform” soils treated with chemical fertilizers and pesticides, is therefore likely to show reducing/diminishing yields when attempting (to go back to) using indigenous, heterogenous seeds.[10] Accordingly, once farmers have “converted” to conventional farming using uniform, “improved” varieties, they need monetary resources and economic incentives to go back to sustainable farming methods. These monetary incentives and resources are necessary for small farmers (especially at the start) because heterogenous seeds need heterogenous soils, i.e., soils that are rich in microbial diversity, as well as other biotic diversity that offers much needed ecosystem services,[11] and reconversion of “conventional”/chemically treated farms, back to natural/organic farms requires several months or longer. In the interim period, farmers will still have to face low quality and/or quantity of harvest, and will therefore need insurance coverage or other subsidies/compensations.

Farmer custodians of agrobiodiversity are not just stakeholders, but indispensable partners for the long-term continuation of formal innovations by the public and private sector seed, fertilizer and pesticide industry. Ethics, equity, economics as well as common sense, therefore, dictates that farmer-contributors of PGRs get royalties in addition to significant initial (bulk) payments for sharing their PGRs. As discussed in more detail in the following section (forthcoming in Section IV of the Position Paper), by incentivizing in situ agrobiodiversity conservation and improvement through adequately long-term benefit sharing with small farmers. such that both on soil (crop/seed) and in soil (beneficial microbial) diversity is protected and enhanced, the research community as well as the private sector (breeders and corporations) would also benefit in the long run[12]. How and why this is the case, will be discussed in Section IV of the forthcoming position paper.

Accordingly, it is necessary to re-think current laws limiting benefit sharing for PGR access only to cases where the downstream varieties (resulting from the use of PGRs), are protected by IPRs[13] or are utilized in a hybridization program.[14]

Benefit Sharing for Access to Soil Microbial Diversity from TEK Based Farming Systems

Looking beyond seeds, towards whole sustainable systems of agriculture (see Prong 1), it is noteworthy that for long term food and nutritional security, incentives and monetary benefits must be secured not only for farmers cultivating locally relevant indigenous (heterogenous) seeds. Incentives and monetary benefits must also accrue to (i) those (farmers/communities) who generate and share knowledge and information about how best to cultivate such seeds in specific local conditions, in the presence of specific types of biotic and abiotic stresses, to get best results (including yields, quality etc. See for example, Box 2: Jitul’s Story), and (ii) those who generate and share knowledge/information about how to optimize microbial populations within specific soil types and vis-à-vis specific crops.[15]

In the context of in soil microbial diversity also, the principles and spirit of the CBD and the Nagoya Protocol can perhaps be better accomplished with the help of DLT/Blockchain based solutions, coupled with AI/Machine learning solutions. The scientific understanding of the relevance of in soil microbial diversity (rhizobial bacteria[16] microbiomes[17] and holobionts[18]) and their interaction with plant roots and root bacteria has evolved considerably in recent years.[19] Accordingly, it is not just the commercial potential of PGRs that is growing, but also the commercial potential of soil microbial communities that can be used to create crop specific microbial rather than chemical fertilizers.[20]

In fact, soil microbial populations that get optimized with TEK based farming systems (see Prong 1) are unique to each location and to each crop.[21] Soil systems that are linked to TEK based farming systems are therefore like goldmines, provided systems are put into place that allow their value to be appropriately captured and benefits derived are equitably transferred to farmers and farming communities.[22] Blockchain/DLTs, (together with AI applications) can facilitate secure and ‘controllable’ data sharing by farmer-generators of this information/data, while ensuring fair, inclusive and equitable economic benefits for those sharing data[23] (In this context, look out for Section IV and Annex 3 in the forthcoming position paper).

If this information/data/know-how, once shared, were to generate monetary benefits for farmers contributing it, an equitable, sustainable and mutually beneficial system can be created. As of now, as discussed above, attracted to the ‘high yield’ promise, farmers abandon ‘high value’ cultivation[24] choices that are better for the environment and also better for their own long-term socio-economic prosperity.[25] India should therefore closely consider supporting the move to bring ‘digital sequence information’ associated with biodiversity originating in India, within the scope of the Nagoya Protocol.[26] At the same time, however, it must also be borne in mind that if this move is made without the parallel adoption of concrete means (such as DLT/Blockchain based solutions) that support the legitimate and traceable transfer of such digital information, it may lead to slowing down of globally beneficial research[27] or lead to increase in illegal/inequitable transfers of information.

• Plant Variety Protection and Farmers’ Sustainable Innovations with Agrobiodiversity

As discussed above, farmers’ indigenous/heterogeneous seeds are not appropriate candidates for protection under existing intellectual property protection regimes (especially plant variety protection regimes), even when these are selected and improved in specific local conditions. Their inherent genetic variability makes them non-uniform and this non-uniformity is their greatest asset. Yet, this genetic variability makes them ineligible for plant variety protection certificates that require applicants to ensure that their plant varieties fulfill the so called DUS requirement. Under the DUS requirement, the variety that is seeking registration must be ‘Distinctive’, i.e., it must be distinctive from other varieties, must be ‘Uniform’ and must be ‘Stable’.

In other words, PVP regimes leave little room for indigenous varieties that are by their very nature variable and non-uniform, to be considered for PVP protection. More importantly, even if they were to be registered, indigenous/heterogenous seeds would not enjoy any meaningful protection as it would be difficult to detect infringement based on any declared phenotypic characteristics, as the phenotype of such heterogenous/indigenous seeds would vary from location to location and depending on soil health, biotic and abiotic conditions.[28]

With intellectual property protection regimes being designed to protect and incentivize R&D in uniform varieties, and governmental policies recommending frequent seed replacement via market purchase of such seeds,[29] economic incentives, again, shift away from cultivation of non-uniform, indigenous seeds using farming systems that promote seed and soil health and diversity.[30]  Again, therefore, in order to rebalance the incentives landscape[31], an equitable transfer of monetary benefits (in the form of initial bulk payments as well as% of profits/royalty payments) must be ensured in each instance of PGR (or soil microbial diversity) transfer.

In the absence of underlying statutory provisions mandating such royalty payments, PGRs shared by any farmer or community must be seen as a transfer of know-how/knowledge or as a transfer of data (and not as a transfer of ‘materials’[32]). Further, such transfers must always be done under written contracts, where under, the royalties must be payable for the ‘term of the contract.’ Current intellectual property and PVP laws that do not grant IP rights to indigenous/heterogenous materials might need to be amended to require such royalty payments (or ‘terms of contract’) to last for at least as many years as IP protection over a corresponding ‘improved’/uniform variety would have lasted if it were applied for and granted.

Of course, one might argue that this written contract-based transfer is already what is required under biodiversity protection and PVP laws.[33] However, as the implementation of such laws is problematic (as discussed above), and meaningful IP protection does not exist for indigenous/heterogenous materials, again, a blockchain/DLT solution may be necessary and useful in facilitating automated contractual agreements and payments of micro-royalties through deployment of ‘smart contracts.’[34] The adoption of such automated mechanisms must be supported by necessary amendments to  the PVP and Biodiversity protection laws.

Further, it is noteworthy here that negative externalities and market failures resulting from the increasingly widespread adoption of formally improved seeds[35] that comprise primarily of uniform varieties, are currently not accounted for in the price of these seeds and planting materials. Accordingly, the imposition of a kind of a ‘Piguvian Tax’ (previously referred to in Prong 3 as a possible “biodiversity tax”) on “uniform” seeds should be considered on priority by the Government of India.[36] As discussed under Prong 3, the money collected through such a taxation scheme can then go to those who get automated token/award points for conducting research on/with agrobiodiversity/PGRs, and with such research enhancing the ‘value’ of the PGRs and the agrobiodiversity in which they are contained.[37]

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

[2] Charnley and Radick, (2013); Jamieson and Radick, (2017); (2013); Radick, (2016); (2016).

[3] Sperling and Cooper, (2004); Blakeney, (2009).

[4] Skinner, (2001); Pal, Tripp, and Louwaars, (2007).

[5] Azadi and Ho, (2010); Krimsky and Wrubel, (1996); Wiseman and Hopkins, (2001); Jacobsen et al., (2013).

[6] Wiseman and Hopkins, (2001).

[7] Jacobsen et al., (2013); Patra et al., (2016).

[8] Ellen and Platten, (2011); Vià, (2012); Bèye and Wopereis, (2014).

[9] Narloch, Drucker, and Pascual, (2011); Boyce, (2006).

[10] While further research is needed to confirm this, anecdotal evidence from farmer interviews and observations made during empirical research, suggests such trends. See Kochupillai, 2016 at pp.87

[11] García‐Palacios, Maestre, and Gallardo, (2011); Benton, Vickery, and Wilson, (2003).

[12] See also, Kochupillai (2016) pp. 9-13.

[13] Ho, (2010); Food and Agriculture Organization of the United Nations, (2019)

[14] Plant Variety Authority India (2019)

[15] Dawoe et al., (2012); Barrios et al., (2006); Chaparro et al., (2012). Also, expert inputs provided by Prof. Gary Bending, University of Warwick, Tele conference dated 11 July 2019.

[16] Lindström et al., (2010); Prashar, Kapoor, and Sachdeva, (2014); Bever, Broadhurst, and Thrall, (2013); Berendsen, Pieterse, and Bakker, (2012).

[17] Van Der Heijden, Bardgett, and Van Straalen, (2008); Vandenkoornhuyse et al., (2015).

[18] Andreote and e Silva, (2017); Cernava et al., (2017).

[19] Jha and Saraf, (2015); Velmourougane, Prasanna, and Saxena, (2017).

[20] Hilton et al., (2018); Thompson et al., (2016); Elias et al., (2017).

[21] Bokulich et al., (2016); Sbabou et al., (2016).

[22] To understand the concept of ‘capturing’ value in soil and seed diversity, see Kochupillai, (2019a).

[23] Swan, (2015); Maru et al.

[24] Kochupillai, (2019).

[25]  Shiva, (2016); Kyeyune and Turner, (2016).

[26] Kupferschmidt (2018) – (Biologists raise alarm over changes to biopiracy rules)

[27] Ibid.

[28] Mitchell, Johnston, and Bassel, (2016); Engl, (2019).

[29] Kochupillai, (2016); Food and Agriculture Organization of the United Nations, (2018); Gildemacher et al., (2009); Thomas‐Sharma et al., (2016).

[30] Bishaw et al., (2019).

[31] Kochupillai, (2016),  145-47.

[32] Mostly, PGRs are transferred under ‚Material Transfer Agreements‘ and, as discussed above, there is no requirement to share benefits unless the downstream creations are protected by IPRs. However, it is currently very difficult to trace the exact use to which any material transferred under such agreements was put, not least because most countries do not mandate disclosure of origin of PGRs under patent or PVP laws.  Le Buanec, (2005).

[33] Morin and Orsini, (2014); Barton and Siebeck, (1994).

[34] Vercellone et al., (2018); O’Shields, (2017); Law, (2017).

[35] Kochupillai, (2016),  219-29; (2018).

[36] Kochupillai, (2016),  243-44. Schuster et al., (2018).

[37] Kochupillai, (2019a).

Please click here to view Part I of this four-part post.

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

Mrinalini Kochupillai

(iii) Seed Certification, Safety and Efficacy: Re-distributing responsibilities and rewards

India’s Seeds Bill[1] that has been pending since 2004, aims to establish certain systems that can facilitate the emergence of regional, national as well as international markets for indigenous/heterogenous seeds. For example, the mandatory seed certification requirement can help farmers and farmer groups get their varieties quality tested and also help them get a brand/denomination for their locally unique seeds.[2] However, this mandatory seed registration requirement has been opposed by farmers and farmer groups because it can create a heavy bureaucratic and financial burden on them. Accordingly, the pending Seeds Bill, based on the recommendations of the last Standing Committee Report,[3] while seeking to make varietal registration mandatory, still excludes farmers’ varieties from mandatory registration and certification.[4]

Permitting farmer level (collective) branding of indigenous (local) seeds

However, the Bill then also bans farmers from selling branded seeds; farmer to farmer seed sales and exchanges can only take place in brown bags devoid of brands or other means of recognizing their source.[5] This mandate counters the ideal of traceability and also prevents the emergence of robust and profitable markets for heterogenous/indigenous seeds. It is also contrary to the recommendations of farmers and their representatives in the SSI 1.0 working groups, which recommended that all indigenous seeds get a unique name/brand, inter alia, to facilitate traceability to their source (see Annex 2 in the forthcoming position paper or the SSI 1.0 summary), and helping other farmers recognize trustworthy indigenous seed suppliers from among other farmers in the village or region.

Here again, therefore, to tackle the problem of affordability and feasibility of registration, while still giving farmers and farmers’ association the right to (collectively) brand and sell their seeds if they so desire, DLT/Blockchain solutions can be extremely beneficial. Such solutions support decentralization of the registration process, while also giving incentives to any/all persons with the requisite know-how to add ‘value’ to the chain of transactions and the underlying product, by conducting necessary tests and reporting/uploading the results on to the blockchain/Digital Ledger.[6] As discussed in Prong 3 (and in Annex 3 of the forthcoming Position Paper), such entities can be government agencies or private sector companies that are ‘nodes’ on blockchain architecture. Once they add ‘value’ to the indigenous seeds by conducting necessary tests on them to determine safety, quality etc., they can automatically be awarded tokens/points by the DLT/blockchain/smart contract system. These tokens/points can be exchanged for cash from the funds collected via the biodiversity tax, or from the Gene fund/biodiversity funds, or by trading on the open market (similar to carbon/emissions trading). In fact, blockchain applications are already being used to facilitate carbon trading.[7] It is noteworthy here that blockchain architectures adopted for providing these solutions need not trade in cryptocurrencies. Moreover, they also need not (and must not) be 100% private; governmental participation through all relevant and currently existing governmental authorities is mandatory to ensure a smooth, sustainable and legally accountable system.

In fact, the Seeds Bill, 2004 “requires every person in the value chain to keep track of the preceding person, so that a faulty lot can be withdrawn.[8]” In such situations, to eliminate any chance of corruption or human error, and also to increase accountability, DLT/Blockchain technologies are not only useful, but may be necessary to ensure meaningful and accurate traceability. At the same time, it is necessary for any established system to be first tested at a very small scale and then slowly expanded if pilot projects are found to be successful.

Re-thinking ‘uniformity’ and ‘genetic purity’ requirements under planned Seeds Act

It is also necessary that the registration requirement under any enacted law does not mandate standards of safety and efficacy (such as genetic purity) that are no more considered valuable in all circumstances, and especially not in marginal environments that do not utilize chemical inputs.[9] For example, to the extent that the Seeds Bill mandates “genetic and physical purity” of seeds and specific prescribed ‘limits of variability’, it is worth looking into emerging scientific evidence that recommends using genetically diverse seeds (rather than uniform varieties) for sustainable agriculture.[10] In this context, it is also relevant to note the provisions of the new EU Regulation on Organic Production and Labelling of Organic Products, adopted in 2018 (the new EU Organic Regulations or the EU Regulation). The EU Regulation permits and encourages, inter alia, the use in and marketing for organic agriculture of “plant reproductive material of organic heterogenous material.” Such heterogenous materials do not need to fulfil the registration and certification requirements under various EU laws.[11]

The EU Regulation clarifies that ‘heterogenous materials’, unlike current proprietary seeds, need not be uniform or stable, and notes based on “Research in the Union on plant reproductive material that does not fulfil the variety definition… that there could be benefits of using such diverse material… to reduce the spread of diseases, to improve resilience and to increase biodiversity.” Accordingly, the regulation removes the legal bar on marketing of “heterogenous materials” and encourages its sale for organic agriculture, thus clearing the way for more expansive use of indigenous varieties. As was stated elsewhere, “Once the delegated acts under the EU regulation are formulated, they will support the creation of markets, especially markets and marketplaces facilitating trade of heterogenous seeds, including by small farmers who are currently the most active in maintaining and improving such seeds in situ. Indeed, multimillion-Euro research and innovation projects being invited and funded by the EU already aim to make this diversity a more integral part of farming in Europe. And here they are talking only of the diversity within Europe.[12]”

Needless to say, a market for ‘uniform’, non-variable varieties can continue to exist. What is necessary, however, is to permit, in parallel, ‘True Labels’ that declare the fact of heterogeneity and variability, together with the specific benefits and characteristics the cultivation of such seeds brings to farmers and the environment. Supported by digital traceability, distributed (rather than centralized) certification systems, and smart-contract based micro-payments and biodiversity token/points awards, the parallel emergence of a market for heterogenous materials can be facilitated, especially for use in organic or traditional agriculture, and for both environmental and economic benefits for small farmers. This would permit the emergence of healthy and diversified markets for heterogenous/indigenous seeds, managed by small farmers with the help of various ‘nodes’ in the DLT/Blockchain solution. Such facilitating solutions would encourage small farmers and farmer communities to become entrepreneurs, supporting the overall growth of the Indian agricultural economy, while also helping India become a world leader in providing indigenous, heterogenous seeds of high quality, adaptable to very diverse small farm conditions, to farmers all over the world.

[1] PRS India, (2004)

[2] Ranjan, (2009); Pal, Tripp, and Louwaars, (2007).

[3] Parliamentary Research Service India, (2004).

[4] Pal, Tripp, and Louwaars, (2007),  233; Peschard, (2014).

[5] Trademarks and brands support source recognition, which helps customers distinguish between good and bad sources. This helps customers choose which source to rely on for good quality products/services or for goods and services that meet their unique needs. Murdoch, Marsden, and Banks, (2000); Moschini, Menapace, and Pick, (2008).

[6] Kochupillai, (2019a); Kazan, Tan, and Lim; Zamani and Giaglis, (2018).

[7] Chokshi et al., 2018; ; Fu, Shu, and Liu, (2018); Khaqqi et al., (2018).

[8] Parliamentary Research Service India, (2004).

[9] Altieri and Nicholls, (2012),  42; Jovovic and Kratovalieva, (2015).

[10] See also discussion under Prong 1; Gruber, (2017); Thrupp, (2000); Esquinas-Alcázar, (2005); Jacobsen et al., (2013).

[11] European Parliament and the Council, (2018); Schmidt, (2019); Turpin, (2018); Fuss et al., (2018); Feher et al., (2019).

[12] Kochupillai, (2019); Wezel et al., (2018).

Please click here to view Part I and Part II of this four-part post.

Rolling out DLT/Blockchain Based Solutions for Sustainable Seed Innovations: Ethical Issues to be Considered

Mrinalini Kochupillai

As discussed in Prong 3, blockchains/DLTs are essentially platforms that help manage data, and when designed and governed using appropriate models, can help solve problems of trust, traceability and equitable data collection, storage and use. Blockchain/DLT can also support and facilitate payments (including royalty payments) of equitable compensation to those sharing their data. Blockchains can be public or private (or a combination of public and private), based on the type of architecture and governance model they adopt. Appropriately designed models can empower data providers to collectively track, control and monetize the usage of their contributed data and assets.

In particular (and summarizing Prong 3), such systems can help by (i) maintaining an immutable record of transactions/transfers of agrobiodiversity from farmers to various categories of end users; (ii) collecting data about the agrobiodiversity transferred, such as unique cultivation methods, special characteristics etc.; (iii) securing/protecting the data through the deployment of technologies such as multi-level hashing and encryption, thereby also helping ensure that the contributors and transformers of data can retain control over who can use the data, how and when it can be viewed or accessed; (iv) structuring the data to be used in the AI solution in a manageable form, and (v) facilitating automatic transfer of monetary benefits for the contributors of data, especially from their use in diverse applications, thereby effectively incentivizing continuous cultivation and engagement with agrobiodiversity.

Data managed by blockchain/DLTs, can be connected to machine-learning based AI applications to be used by farmers and researchers in search of solutions to area-specific (i.e. disciplinary or geographic area-specific) problems. What types of data can be so stored and managed by blockchains and how these can be then transformed for usage by AI solutions, needs further multi-disciplinary research from technical standpoints. For the purposes of this Position Paper and this section, we focus on ethical issues that any technical solution and legal regulation linked with such technical solutions, must bear in mind.

Ethics, Big Data & Blockchain

(Big) Data is increasingly considered a tradeable commodity, the transfer/sharing of which needs to be regulated to facilitate its beneficial use in various emerging technological applications, the most prominent of which are AI/machine learning applications.[1] With growing economic & political relevance of data, several major ethical issues linked to its use are also surfacing. Platforms that adequately address these issues are indispensable to the meaningful & widespread adoption of (AI) applications that rely on data to design solutions for any specific sector/usecase. As discussed above, DLTs/Blockchain can potentially help address several of these ethical issues, including issues of (i) trust and privacy; (ii) secure and “controllable” data sharing; (iii) fair, inclusive and equitable economic benefits for those sharing data, and (iv) traceability (for purposes ranging from economic benefit sharing to liability determination). Yet, any blockchain/DLT solution that is adopted, can lead to additional or new problems, unless it incorporates “ethics-by-design”, i.e. it incorporates a design/architecture that takes not just existing legal and regulatory regimes into account, but also takes into account ethical concerns that are commonly linked to technological or automated solution. Some of the key ethical issues that any blockchain based solution/platform, as well as any law or policy seeking to regulate it, must bear in mind, include:

a) Trust and privacy: While AI+blockchain/DLT solutions can help address issues of trust (as discussed in Prong 3), they might also create new issues of trust, including trustworthiness of codes governing smart contracts and trustworthiness of persons and institutions running nodes on a blockchain. At the same time, privacy (and security) of those participating in the system, are a concern particularly in rural set ups where enforcement of law and order can be challenging, especially in situations where emerging technologies are viewed as likely to (at least partially) disrupt existing socio-economic power structures.

b) Fairness, bias and inclusion: As discussed in Prong 3, it is envisaged that AI+Blockchain can help overcome barriers inadvertently created by current regulatory thickets. However, as code and machine learning based systems have their own limitations and can result in the development of new types of unintended biases and exclusions, checks and balances need to be built into any AI+blockchain system aiming to equitably promote research and in situ innovation in agrobiodiversity by all stakeholders (farmers, researchers and breeders). Further, empirical research is needed to identify what is considered ‘fair and inclusive’ by contributors (farming communities), vis-à-vis the use of agrobiodiversity by downstream players and fair remuneration/royalty for accessing the same. Questions such as the period of time for which royalty must be payable following a transfer of PGRs, the % of royalty, the means by which this royalty is to be utilized (e.g. will it be only for individual farmers or for farmer communities, and the funds can therefore be used for community development), are all questions that relate to the ethical issues of fairness, bias and inclusion. Inclusion vis-à-vis such technologies is also a matter of making sure that equitable access to hardware (smart phones) and internet is available to small farmers, not just in specific regions of India, but across all regions. This would need, for example, the focus of subsidies to shift or re-distributed to cover not just fertilizer subsidies, but subsidies for acquiring the necessary hardware and internet access.

c) Transparency (including explainability) and traceability: Transparency vis-à-vis sources from which data is collected and the end uses to which it is put, is crucial to building trust in the system and ensuring its long-term usability. While blockchain/DLT solutions enhance transparency and traceability to source vis-à-vis digital data, they are only starting to be appended to AI and IoT devices to permit traceability also of physical goods.[2] In case of seeds and soil microbial diversity, which are sourced with the aim of further transformations, in order to make the traceability meaningful, they would need to be combined with biomarkers (or similar) technologies. Ethical and multi-disciplinary issues linked to such technological combinations will need to be investigated.

d) Governance, regulation & sustainability: With AI & blockchain technology replacing human actors, it would be necessary to ensure smooth interaction between existing governance structures & regulations on the one hand, and emerging AI/blockchain based technological solutions on the other, to ensure a sustainable and seamless transition that maintains and secures meaningful and continuing interaction between human and autonomous actors. In this situation, one of the key questions that would emerge would be: What kinds of organizational and leadership models/structures can support synergistic interactions between human actors (in current regulatory regimes), and autonomous actors (codes) in planned AI+blockchain applications to enhance trust, promote equitable benefit sharing and ensuring responsible decision making? From a more practical standpoint, it would also be necessary to determine which government agencies, NGOs and private players would need to be ‘nodes’ in the blockchan and whether public permissioned / public permission less (or other) architectures would be better suited to enhance trust and secure privacy in the AI+blockchain facilitated system adopted for the purpose of promoting sustainable seed innovations? With the emergence of “code” based governance, it is also necessary to see how issues of liability would be reconciled. Finally, in a country as diverse as India, fair and inclusive DLT/blockchain governance models must take cultural diversity, equity, and practical usability into account, supporting the development of ethical business models for the benefit of farmers, researchers and the environment.

Of course, the benefit of any distributed DLT or Blockchain technology increases with the number of players (nodes) and contributors (users); the greater the number of nodes, i.e. those who are engaged in contributing or testing seeds, soils, cultivation methods etc. on a blockchain, the higher the chances that any user of the system will be able to get an accurate view of the quality of the products being offered via the blockchain facilitated marketplace. In order to ensure that the system is not overtaken by vested interests also, a large number of players (farmers, researchers, end consumers, government bodies etc.) must be a part of the blockchain network.[3]

Annex 3 in the forthcoming position paper, suggests a very preliminary outline for a blockchain/AI based framework to promote sustainable seed innovations. However, extensive multi-disciplinary research and multi-stakeholder consultations are needed to build up to a complete workable architecture before it can be rolled out. What must be underscored, however, is that emerging technologies such as Artificial Intelligence and Blockchain can and should be given adequate research as well as policy level/regulatory attention. Also, to the extent that these technologies aim to bring benefit to the poorest and most marginalized segments of society[4] and hold the potential to incentivize research and innovation in thus far neglected areas,[5] it may be more beneficial to invest in researching these technologies thoroughly and deploy them under comprehensive legal and ethical rules, rather than rejecting or limiting their potential scope of application and utility.

It is noteworthy in this context that while blockchain technology can support private ordering and self-governance by the blockchain ecosystem, in fields as sensitive and important as agriculture, blockchain codes and codes governing smart contracts should ideally not be privately ordered. However, semi-private ordering of codes, after consulting farmers, NGOs, scientists and government agencies would likely be more beneficial. This can entail the creation of ethical codes via multi-disciplinary research engaging all stakeholders in consultations; or self-regulation by farmers supported by broad legislative guidelines and regulatory check posts (e.g. mandatory government body or ‘watch dog’ nodes in any blockchain architecture created for promoting sustainable seed innovations).

[1] Russell, Dewey, and Tegmark, (2015); Fatima and Pasha, (2017); Jordan and Mitchell, (2015).

[2] Kamath, (2018); Imeri and Khadraoui; Agrawal, Sharma, and Kumar, (2018); Lin et al., (2018); Xu et al., (2019).

[3] For further details, including a better explanation of why multiple players make a blockchain/DLT solution better, please see Annex 4 below

[4] Kalkanci, Rahmani, and Toktay, (2018); Thomason et al., (2018); Bartoletti et al.

[5] Kochupillai, (2019a); Hericko; Ribitzky et al., (2018); Beck and Müller-Bloch, (2017); Iansiti and Lakhani, (2017).

Please click here to view Part I, Part II and Part III of this four-part post.