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Why Open-Source in Cannabis Genetics Doesn't Work - And How to Fix It
Legal Recourse is the Essential Stick to Accompany the Open-Source Carrot
Dale Hunt access_time 15 min read

OPEN SOURCE WITHOUT ANY RECOURSE AGAINST VIOLATORS IS JUST AN HONOR SYSTEM

Don’t Kill the Messenger – But Please Read His Blog!

We have all heard of open source and are aware of how well it seems to work in the software industry.  And many of us have heard discussions of how desirable it would be to have a workable open-source system in Cannabis breeding.  I hate being the bearer of bad news, but a workable open-source system in Cannabis breeding (or any plant breeding), at least one that is in any meaningful way analogous to open-source software, isn’t possible under current laws in most places.

Before you decide to kill this messenger, I do have a proposal for a solution.  It’s not a particularly modest proposal but I think it’s an important one and should be pursued.  To state it differently, I am IN FAVOR of having open source as an option for Cannabis breeders, but we can’t get there from here unless some major changes in the intellectual property system happen first.  So let’s explore those changes, why they are necessary, and how to make them happen.

Open Source vs Public Domain – Not the Same Thing

Open-source systems were created in the software community in order to facilitate sharing, research, understanding and further development of software with fewer restrictions than those governing typical commercial software. However, it is important to understand the difference between an open-source system and an absolutely free-use or public-domain system. In open source the software source code is shared widely but with conditions. In contrast, in a free use or public domain approach the source code of the software would be dedicated to the public – expressly put into the public domain – such that the originator would retain no rights of any sort to control who used the source code, or for what purpose, or under what conditions. Even though open source is associated with broad access and sharing, it still carries conditions. Typically the condition is that software incorporating open source code must itself be made available under the same terms for others to use, study, and build upon.

The motivation behind an open source approach to Cannabis breeding (or any plant breeding) is that the rich genetic diversity available from different sources, different plant breeders, different collections of exotic or rare genetics, ideally would be shared with others. This would be so that they could use their access to this great source of genetic diversity in developing new cultivars as well as simply to preserve biodiversity and improve the overall gene pool of cannabis cultivars developed by plant breeders. So why not just create a free use/public domain system? Because, at least among some participants, there is a reluctance to hand over their special, rare genetic material in the form of seeds or clones for others to use if the recipient would not be willing to share with the community on similar terms. Typically, participants in an open source system are embracing a non-commercial or less commercial approach to breeding and do not want that “community value” to be siphoned off to parties with different values and different goals.  They want to restrict access to this precious genetic material only to those who are willing to respect the community and play by the same rules. Obviously, if someone is committed to a fully open sharing of genetic material, they are always free to do that by placing their material into the public domain and letting it scatter as it will. But I don’t think that’s usually what people mean when they talk about open source cannabis genetics.

Software is Different – It Has Automatic Copyright Protection

But first some background so we can fully appreciate the problem:  when someone writes code for software, that code is automatically protected by copyright the moment it is written.  There is nothing the writer needs to do for that copyright protection to exist other than to write the code.  It’s the same for this blog post.  As soon as I write it, it has copyright protection.  Done.  Easy.  Automatic.

Of course, if I want to have full leverage to enforce my rights as a copyright owner or be in the best position to get revenue from giving someone a license under my rights as a copyright owner, there are some additional steps I need to take.  So there still exists a formal, government-based system to “perfecting” or documenting copyrights, but the law of copyrights in most of the world is that they exist upon creation of any written work having a modicum of creativity and skill.

This makes an open-source system for software easy to create and enforce.  Simplifying (because this IS a blog and because open-source software systems are not my area of expertise), an open-source system is an agreement among participants who are willing to abide by the agreement.  In simplest terms, it’s a group deal that says “anyone who promises to only use this code in an approved way, and not to use it in a disapproved way, is free to use the code in developing their own software.”  Users who abide by those conditions are in compliance and all is well.  Those who go outside those conditions and use the code in ways that are not licensed under the open-source agreement are committing copyright infringement and are at risk of being sued, shut down, and liable for money damages.

Legal Recourse is the Essential Stick to Accompany the Open-Source Carrot

Why is this so easy and why does it work so well?  Precisely because the code is already (automatically) covered by copyright.  So going outside the agreement is plain and simple copyright infringement.  The point is that the copyright protection provides recourse against those who don’t play by the rules.

The contrast with plant genetics is clear: there is no automatic protection for plant breeders that would cover their rights in a clone or a seed they originated.  The only way to get that kind of protection is to apply for IP rights in the form of a plant patent, a utility patent, a USDA PVP certificate, or analogous rights Plant Breeder’s Rights (PBR) in other countries, almost all of which arise from the International Union for the Protection of New Varieties of Plants (UPOV).*

*In case you are curious about the acronym UPOV, it’s based on the name of the convention in French.  For more on the UPOV system, click here or here.

Alternatives to an Honor System

In the absence of any enforceable rights against people who don’t play by the rules, an open-source system for Cannabis genetics is nothing more than an honor system.  There is a lot to like about honor systems but we all see the problem—the dishonorable who refuse to play by the rules.  In open-source software they are called copyright infringers and can be sued.  In open-source Cannabis genetics, they are called sunzabitches and can only be disliked.  Do you see the contrast between the two systems, and the inherent problem?

I can only think of three solutions to this.  Unfortunately, they are all hard.

  1. Obtain IP protection for everything that is going to be part of the open-source system.
  2. Very strictly control access to the Cannabis genetics only to those who agree to the rules of the system.
  3. Change the law of plant breeding so that any unique genetic selection has some level of automatic protection upon creation.

Let’s analyze the pros and cons of each option:

  1. Obtain IP protection for everything that is going to be part of the open-source system.

One major problem with this is that is seems to run counter to the reason many people want open-source in the first place.  They want to keep things simple and many of them are not big fans of IP protection, at least as they think of it.  Typically they don’t have any major objections to IP in the form of copyrights, but they see plant IP as something different.

Also, there’s no avoiding the fact it’s quite a process to jump through all the hoops of obtaining IP protection for plant genetics.  That’s true even if you are working with someone (like me) who does this all the time and has for decades.  It’s still necessary to prepare an application, file it, pay a filing fee, wait a while, maybe do some more work to get it allowed, maybe also make a deposit of seeds or tissue, and pay an issue fee.**  So it’s complicated—vastly more complicated than it is with software.

**This is a simplified summary of the various hoops.  They don’t all apply in every system.  But at least three from the list are unavoidable in any system.

Why would it be necessary to get IP protection for everything in the system?  Because you need some kind of legal recourse against those who refuse to play by the rules.  In software it’s straight-up copyright infringement.  In this scenario it would be straight-up infringement of a patent or a PVP or PBR certificate.  Otherwise, again, you’re just using an honor system, when the problem is the behavior of the dishonorable.

  1. Very strictly control access to the Cannabis genetics only to those who agree to the rules of the system.

In this approach, the only people who ever could get their hands on a clone or a seed in an open-source system would be people who had already agreed, in a legally-binding way, to abide by those rules.  To be very clear, that legally-binding agreement would be some form of a group contract.  So anyone who made such a legally-binding commitment and then didn’t end up abiding by the rules would be in breach of contract.  There would be legal recourse against them.

The problem with this approach is security.  You’re really just creating a different kind of honor system, one that would be nearly impossible to trace, govern, or enforce if it grew beyond two or three members.  In this case the honor system is what people do with the genetic material they get access to.  What if they are careless with it and it gets out to a third party who never agreed to abide by the group contract?  You can’t be in breach of a contract to which you’re not a party.  So there may be some recourse against the careless member of the group, but there’s zero recourse against anyone who didn’t sign that contract.

This means that the system is only as good as the carefulness and security of the system.  Imagine how hard that would be to control.  It seems pretty much impossible.  And this is exactly why people end up seeking IP protection.  It gives you recourse against people with whom you never made an agreement – even against people you never heard of until you learned they were infringing your IP rights.  That’s usually the exact kind of recourse you need and can’t otherwise get.

  1. Change the law of plant breeding so that any unique genetic selection has some level of automatic protection upon creation.

OK, so we don’t like the problems with the first two options.  Let’s just change the law worldwide!

Notwithstanding how hard it would be to change the law in the US and across the world, this approach would make everything after that directly analogous to the open-source software system.  So there’s something to like about this.  The hardest work is done up-front and once per country, instead of once per plant variety (under approach #1) or instead of constantly (constant perfect security under approach #2).

My Dad is Such a Pain, LOL

I hear the murmurs—every single seed is, technically, a unique genetic combination.  It makes no sense to protect every single seed ever created.  Here’s my answer: you’re overthinking it.  Just because there is automatic protection for every single seed, that doesn’t mean you’re going to do anything with or about that protection for all of them.  It’s just a starting point that enables you to do what you want with the ones you care about.

To illustrate, I would guess that almost every text message my teenagers send has copyright protection.  OK, not texts that lack any originality, so we can exclude “lol” “wyd?” or “my dad is such a pain” (I’m guessing that’s not ORIGINAL to my kids).  But everything anyone writes that has any originality to it is technically protected by copyright.  Does anyone choose to do anything with or about all those copyrights? Of course not.  That’s not the point.  The point is that the valuable ones (like this blog!) have automatic protection without jumping through hoops, paying fees, and waiting for the protection to be granted.  So anything WORTH putting into an open-source system brings with it the recourse against those who won’t play by the rules of the system.  And recourse is essential to a meaningful, workable open-source system.

International Conventions Work

So all we need to do is change the law worldwide.  Don’t be discouraged—it happened with copyrights.  For a long time there was no copyright protection without registration.  That eventually became a problem—an international wrong that needed to be righted—and something called the Berne Convention was established.  177 of the world’s 195 countries are currently members.  The US finally joined the Berne Convention in 1988, only 102 years after its original establishment in 1886.  But better late than never, right?

How does an international convention get established?  By identifying a problem, promoting a conversation, and taking action.  This can happen with government action or with enough attention from non-governmental organizations (NGOs) that are sufficiently committed to change.  So consider this one of the first steps in a journey of a thousand miles.  But, with enough people understanding the problem and motivated to find a solution, that journey need not be a slow one.

Meaningful Next Steps

  1. If you can think of an alternative to the three hard solutions I have discussed here, please bring it to my attention in the comments or email me at DHunt@PlantAndPlanet.com. I don’t pretend to have all the answers.  I’m just a lawyer with some experience who writes a blog.  So please suggest some alternatives if you can think of some.  (Respectful dialogue is always preferable but if this blog made you upset and that motivates you, bring your passion and I’ll do my best to take the arrows.)
  2. If you think a change to the system of plant IP is worth some of your effort and energy, let’s translate this into more than just a blog. Make a comment or send an email indicating your interest and we will start with a group call and identify some genuine next steps.
  3. If you feel strongly enough about this, you can certainly forward this post to others and ask them to join the movement. I’m pretty sure the Berne Convention in 1886 started with a blog post and some texts and emails—maybe an Instagram rant.  If it worked for them, it can work for us.
  4. Maybe you’re aware of another group that is already on this. Please make me/us aware and we can join forces.

Let’s start something.

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