Book review: Karine E. Peschard. 2022. Seed Activism: Patent Politics and Litigation in the Global South

Seed Activism makes an important contribution to debates surrounding intellectual property rights (IPR), farmers’ rights and genetically modified (GM) crops by delving into the implementation of international and national policies on the ground in India and Brazil. In this skilfully researched book, the author analyses the legal battles led by nongovernmental organisations (NGOs), farmer’s lobbies and other actors against the IPR regime on biotech seeds. The author’s main argument is that the legal contests in Brazil and India, taken together, destabilise the dominant paradigm by questioning the legitimacy of the Trade- Related Aspects of Intellectual Property Rights (TRIPS) Agreement and challenging the corporate agriculture food regime. This, she argues, is pointing towards a ‘new common sense’ (p. 3) on the patentability of plant-related inventions. The work is unique in several aspects: first, the author examines law from the lens of anthropology, focusing on law in action and the effect of legal processes on people’s lives; and, second, the cases examined here deviate from the current literature that has largely focused on judgements in the United States and Canada. The book is concise and easily readable which is a real feat considering the complex nature of these issues.

The author’s main findings revolve around the way the corporate sector is engaging in a new business model where licensing and royalty fees are collected from farmers separately from the payments for seeds themselves. This new model, the author asserts, has enabled Monsanto and other companies to set up a private intellectual property (IP) regime (p. 41), bypassing the regulations established in India and Brazil to ensure farmers’ rights to save seeds. Utilising the case study and interview methods, the book highlights three cases: Roundup Ready (RR) soybean in Brazil and GM cotton (Bt cotton) and eggplant (Bt brinjal) in India.

The book begins with a fascinating personal anecdote of the author witnessing a ceremony in 2004 in a small town in Brazil, where farmers wearing chains, carrying bags of seeds and marching, threw off their chains in front of the watching crowd. The staging vividly depicted the issues that would be the focus of her research for the following 15 years as well as of this book.

Chapter 1 provides an overview of the extension of IPR to plants worldwide and the ways in which Brazil and India attempted to implement the controversial Article 27.3(b) of the TRIPS Agreement. The author’s contention is that although both India and Brazil did establish mechanisms for farmers’ rights, they did not adequately utilise the flexibility provided in the TRIPS Agreement, such as restrictions on the patentability of microorganisms or measures to ensure that private agreements could not override farmers’ rights (p. 96).

In Chapter 2, the author traces the class action suit in Brazil in the case of RR soybean brought against Monsanto by cooperative farmers’ unions that resulted in a series of contradictory court judgements and, ultimately, the Supreme Court ruling in favour of Monsanto in 2019. She describes the lack of transparency on the patent regarding RR soybean, a ‘black box’ (p. 51) which, due to the legal battles, was unlocked and led to important information coming to light.

Chapter 3 focuses on the Bt cotton case in India where Monsanto utilised licensing agreements with seed companies to enforce their IPR and on the legal challenge against Monsanto that ultimately led to the ruling that Monsanto must reduce royalties in various states. She also describes the mysterious way in which even though a patent on Bt cotton did not exist in India, there was a tacit agreement between Indian policymakers and Monsanto to act as if it did.

Chapter 4 outlines the attempt to launch the first GM food crop in India, Bt brinjal, and the controversy that ultimately resulted in a moratorium on its introduction. It also led to the first national case of biopiracy in the courts in India when an NGO filed a lawsuit alleging that Monsanto had not sought the regulatory approval required to access local varieties of brinjal. These cases had mixed results and the issues remained inconclusive due to contradictory judgements, postponements on rulings or out-of-court settlements. However, they did challenge the prevailing judgements in the United States and Canada where Monsanto had won almost every IP case. This, the author proposes, is leading to a new legal common sense, one that could bring a better balance between IPR and the rights of farmers.

The author’s analysis and conclusions are the focus of Chapter 5. The author points out that rare alliances (such as those between large rural producers and small farmers or leftist and fundamental forces) emerged in these legal battles and that there was no clear-cut division between the actions of public and private sectors. She also raises an interesting point about the way food and seed sovereignty activists have preferred to focus on non-legal avenues rather than join these legal battles. In the appendix, the author briefly describes two important developments related to Bt brinjal in India: India’s use of ad hoc agreements rather than international agreements, and the result of farmers finding out about the use of a local variety to develop Bt brinjal that led them to secure a geographical indication (GI) on the variety in India.

The book could have benefitted by situating these legal cases within larger theoretical frameworks such as judicial activism (Lal and Jha 1999; Sharma et al. 2021) or the strategic use of ideas with regard to IP (Sell and Prakash 2004). This would have not only led to richer analysis but also provided more ground for comparisons between the two countries and between various actors, particularly on how issues are framed. Greater elaboration of the ‘new common sense’ would have provided more answers on the way forward as well as greater insights on the larger question she raises regarding the real potential of legal activism. Overall, however, the work makes a significant and unique contribution through extensive fieldwork and interviews that provide rich data on a topic riddled by controversy and hyperbole.