Copyright of seeds ? Questionable

Bootsieb

Bootsieb

How does one copy right seeds, or combination of two existing plants?
 
I mean, specifically, a combo of chilies that you did not invent in the first place. Surely, if you admit you have used one that is known, you should have no right to a copyright, once you have distributed and sold them? Then again, once they are grown outside of your own garden, they are in essence different, due to nutrient differences , aren't they?
 
I mean, if you haven't modified the DNA at an molecular level. In essence, if you have only re-arranged it, that's all, to me , it seems!
 
When scientists want to find out where someone is from(dead or alive), they can track it down by an analysis of the nutrients in their body. Therefore, it you have a product like the Bengali tiger  chili, it changes structure anatomically surely, in another geography.
 
Surely, once it has that absorbed that new countries form of nutrients, it changes, and past F1 in new country. It can become a new product, a brand citizen of that country, with new nutrients, it is a new citizen. The chili if moved to OZ, becomes a Aussie Tiger in essence, as it has been raised by Aussie parents, on Aussie nutrients , and is no longest the same as the original form.I would suggest, that any licencing agreements, copyrights rights may hold firm only within the alleged owner's County, possibly country.
 
Though, I wonder internationally, in terms of seeds after F1. Especially, if the supplier admits they used a previously existing chili that he has no right to own a copyright on, developed from another country(s) over centuries. What have you actually created? You have only physically modified pollen(anyone can do this), replanted (not a great or new innovation knowledge or skill) and existing product/s  (2). So , if I was to use copyright seeds, then re-branded them as modified 7pot (my country- county), as grown in my country, county, what can they do?
 
I think, that it might be possible to argue this. The question for me is- How have you added value, deserve a copyright, if you just re-arranged to known products by just  simple farming????????
 
Just some thoughts
 
I don't know about all the legal stuff, but taking a seed from a pepper in Bangladesh and then growing it in Australia does not have anything to do with DNA.  The resulting plant would have just as much variability as plants started from the same seed, anywhere in the world.  Nutrient intake does not affect DNA.
 
OK let's separate this all out into its parts:
 
You can only copyright a name or logo etc.  As an example Bhut Orange Copenhagen is a name owned by a Danish seed company (not going to even try and find those weird o's with the dots on them to type the name correctly!).  You may not use this name to distribute the seeds of their cultivar (cultivated variety).
 
Plant Breeders Rights - well that's another story altogether.  Here the actual biological entity is protected i.e the plant and its characteristics.  In order to effect a PBR the breeder must show how this particulat entity (be it a hybrid or line bred) differs sufficiently from naturally occurring variation.  You cannot take a naturally occurring variation as is and receive a PBR for it.  You must have bred it and selected various traits to arrive at a previously unknown entity.  This doesn't mean that it must be a completely and utterly Frakensteinian creation.  Even traits such as consistently earlier flowering, consistently larger more regular fruit, a different growyh form etc will also suffice.  It is a hugely laborious process and must be accompanied by rigorous data comparison to actually prove it.
 
A PBR is an exclusive licence for three years.  It means that whoever owns the PBR has exclusive use of that entity for 3 years.  During that time no-one else may propagate it, use it for breeding or even sell it without the permission of the owner.  One it lapses it is free game!  Anybody and everybody may use it then.  If the original owner copyrighted the name then you may not use that - only with their permission.
 
This is why very few growers PBR chili - there is so much variation out there - with so many people growing them and chancing on unusual out-crosses and hybrids it would be very very expensive for a breeder to prove that you used their material.  With all the same things as what they were using freely floating about it would just be a stupid pointless exercise.  Let's look at the Primo and the Fatalii Jigsaw as an example.  Troy produced the Primo (7 Pot out-cross with a Naga).  Jukka crossed the Moruga Scorpion and the Naga to produce the Jigsaw.  I can do exactly the same because I have all the parent material to do so.  And so 100 000's of growers out there.  To PBR either of these would cost a fortune and then to try and defend it would be a nightmare - because your and my plants would be the same as theirs - without using their material.  If they copyright the names then I couldn't use that but I can call it what I want and distribute it.  It is only worth PBR'in something that you know that you exclusively have.  Which is why breeders are always looking for un-tapped species and very strange mutations to incorporate into their work.  As mentioned - when it comes to Capsicum - basically every possible variation is available - it levels the playing field.
 
So.  Unless it is a genuine PBR, you can use the material freely to do as you wish.  If the name is copyrighted you cant use that.  If it is neither PBR or copyrighted you are legally entitled to use the material and the name.
 
That is a different thing altogether.  It is a GMO and does not fit into the category of plant or animal hence Gentically Modified Organism.  They patent that because you can't get a PBR for it - how the hell do you breed some of those genetics into your plants?  You can't and therefore it does not qualify for Plant Breeders Rights.  You can only patent it.  So whilst it is a valid concept in terms of achieving protection for one's work, it isn't too valid in this case.
 
So to further elucidate on Bootsie's conundrum:  if I acquired some of Fatalii's creation - let's say Gourmet Aji Fantasy which as stated on thier website "This variety is available only from fataliiseeds.net. The first-ever chili pepper ever developed and even plant-patented in Finland by Fatalii. Not available for commercial growers."  Now what is important here is "in Finland" - not the rest of the world!  So he has a national version of a PBR - in Finland!  Not the rest of the world.  I can therefore acquire material from him and grow it here in South Africa, change the name so as not to infringe on his copyright (implied through use on his website - legally he owns that name because he has used it exclusively and also the combination of names - besides I would want "my" product to be seen as different to his).  And there is diddly squat he can do about it.  Even though he says it is not available to commercial growers he has not protected it from commercial growers by seeking a worldwide PBR.
 
So, theoretically, you can include the name, and say "not" or Ozzie- then name!

Spicegeist said:
I don't know about all the legal stuff, but taking a seed from a pepper in Bangladesh and then growing it in Australia does not have anything to do with DNA.  The resulting plant would have just as much variability as plants started from the same seed, anywhere in the world.  Nutrient intake does not affect DNA.
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U misunderstand. I think you have to read again mate. The DNA is not the issue. And, if it was so, then surely the Naga, Bhut, 7 pot originating countries would own the DNA profile, then be entitled to say half of the profits, if this was true.

Namely, if the item was announced as the "-----", branded as the " --------" b4 copyright, thus marketed so, and common knowledge before copyrighting, would that affect the rights?????
 
RobStar said:
As an example Bhut Orange Copenhagen is a name owned by a Danish seed company (not going to even try and find those weird o's with the dots on them to type the name correctly!). 
Click to expand...
 
A little off topic here, but if you hold down the Alt key while typing 148 on your numeric keypad, it will give you the dotted O... like this ö ...... alt 153 for capital Ö
 
Bootsieb said:
So, theoretically, you can include the name, and say "not" or Ozzie- then name!

U misunderstand. I think you have to read again mate. The DNA is not the issue. And, if it was so, then surely the Naga, Bhut, 7 pot originating countries would own the DNA profile, then be entitled to say half of the profits, if this was true.

Namely, if the item was announced as the "-----", branded as the " --------" b4 copyright, thus marketed so, and common knowledge before copyrighting, would that affect the rights?????
Click to expand...
 
Well, I don't see why a particular government should own the rights to anything particular farmers have developed... the current government of India did not exist when Capsicum was introduced into the subcontinent, so why should it "own" it now?  The current government of Korea also did not exist when Capsicum was introduced there, why should these governments receive any financial benefit from these peppers?  Perhaps the Portuguese should be given $ for introducing it?  It's kind of silly really.
 
Again, I don't like the idea of one person/corporation/nation state claiming "ownership" over genetic material which is in flux.  Every time new seed is created, genes get scrambled.  Maybe I could understand the argument for "owning" hybrid F1 seed, but beyond that, it doesn't make any sense.
 
A separate issue, which might be what you're getting at, is the legal use of names like Red Savina.  As far as I understand, this has to do with a name used for marketing purposes only.  Like Bubba's Bad Ass Pepper.... I could trademark that, but it would just refer to someone using that name, not owning DNA or genes.
 
The Hot Pepper said:
 
That's a trademark, just to clarify.
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Thanks Pookie!  You are correct.
 
Back to the "ownership" issue.  What is also being alluded to here is the ownership of commercially valuable biological material in terms of the Convention on Biodiversity - in particular "biopiracy".  Basically: there is a biological entity in a country and it has major use commercially - the Convention lays down rules for its use - this has been developed into legislation by the Convention's signatory countries.  An example - the predatory wasps that are indigenous to the Western Cape (South Africa) - they attack citrus scale - obviously everybody that grows citrus wants these because it reduces input costs to produce citrus.  BUT now you cant just go and get some - oh no.  If you want it you have to enter into a licence agreement with the agent appointed by the government of SA and sign a contract detailing how much technology and skills trasnfer there will be plus job creation, profit-sharing etc.  This is to prevent bioprospecting and biopiracy.
 
Anyway.  Safe to say - Spicegeist is correct - Capsicum is so well established that no-one can claim ownership of it.  Therefore the present material in cultivation is exempt. BUT...........say someone finds a new variation - mega cold tolerant or gigantic fruits - say something that isn't present in material that is circulated now.  And it was found in Peru - then to utilise this material commercially the proponent must sign an agreement with the responsible authority/agent appointed by the Peruvian Government (usually a parastal - in the case of South Africa it is the South African National Biodiversity Institute SANBI).
 
So carry on.  Nothing to be concerned about at present.  Most names are appended to denote it as being something different (even if it isn't) and a way to make some bucks.
 
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