This article by Lionel Maurel was originally published in French on, and translated to English by Maïa Dereva.

Last month, an interesting article on Jean-Luc Danneyrolles was published (in French) on the site Reporterre. Danneyrolles is the founder of “Potager d’un curieux” (The Curious One’s Garden), a place in the Vaucluse region of France which is dedicated to the preservation and promotion of free seeds. In particular, the article explains the obstacle course this farmer had to cross in order to have his activities accepted by administrative authorities. Fortunately, he has been able to stabilize the situation more or less, but one point continues to create friction: the marketing of the seeds produced.

When Jean-Luc is asked the simple question of the right to sell all his seeds, he reverses the question. “By what right would we not have the right to produce good seeds and to market them? It is the reappropriation of this heritage that I defend. We do not have the right, we take the right” To take a right is not to steal something, he explains. “I never imagined that the police would come to arrest me because I sell my seeds. We are supported by civil society, that is to say that there are plenty of people who encourage me to continue and that is enough for me.”

Prohibition on the marketing of free seed?

As I have already had occasion to mention on SILex, seeds can be the subject of intellectual property rights in Europe through Certificates of Plant Production (VOCs) which protect varieties obtained by seed producers. Moreover, in order to legally market seeds, they must be registered in a catalog based on criteria excluding by definition old varieties, as explained in the article by Reporterre:

For the marketing of seeds or seedlings, Decree No 81-605 of 18 May 1981 requires the inclusion of varieties in the official catalog of plant species and varieties. To be registered, the varieties must undergo two tests: DHS (for “distinction, homogeneity, stability”) and VAT (for “agronomic and technological value”). First hitch, the old, peasant, terroir varieties, call them as you want, are essentially unstable. They are expressed differently according to biotopes and climatic conditions. So, they are checked by the catalog entry tests.

The varieties which respect the DHS criteria are generally “F1 hybrids” produced by the large seed companies, which yield plants with identical characteristics, whatever their environment. They also degenerate from the first reproduction, which prevents farmers and gardeners from reusing the seeds and obliges them to repurchase seeds each year from the same manufacturers. Thus, the system has been designed to mechanically privilege varieties protected by intellectual property rights, while so-called “free” seeds (those belonging to the public domain) are disadvantaged, specifically because they can not be marketed.

The regulation has, nevertheless, been relaxed somewhat at the European level since 2011, with the introduction of a list complementary to the official catalog based on criteria of less drastic homogeneity, which makes it possible to include old varieties. But this margin of maneuver remains insufficient to cover all seeds in the public domain, which means that militant peasants such as Jean-Luc Danneyroles remain largely illegal when they want to market seeds that they produce. They risk fines imposed by the repression of fraud, which can be high (even if they are rarely applied in practice). A French association called Kokopelli decided openly to brave these aberrant prohibitions, claiming as a right the possibility of marketing free seeds, to defend it before the courts. Last year it was believed that the situation would change with the Biodiversity Act, an article of which explicitly allowed non-profit associations to market seeds belonging to the public domain. However, unfortunately, the French Constitutional Council declared this part of the text to be annulled, on the very objectionable ground that it entailed a breach of equality towards commercial companies.

Ambiguous links between enclosures and commodification

What I find interesting with this story told in Reporterre, but more broadly with the issue of free seeds, is that they illustrate well the complex relationships that exist between the common goods and the market. Indeed, free seeds are considered to be a typical example of “common” resources. They have reached us through a process of transmission from generation to generation of farmers, which has led the process of selection and crossing necessary to develop the varieties and adapt them to their environment. The so-called “old”, “peasant” or “traditional” varieties are not protected by intellectual property rights: they are in the public domain and are therefore freely reproducible. That’s why they are very interesting for farmers, especially to rid themselves of their dependence on the seed industries.

Since these seeds are in the public domain, they should also be free to be sold on the market as physical objects. It is clear that this is a prerequisite for activities such as “The Vegetable Garden of a Curious One” or Kokopelli to be sustainable and develop. Even if these structures generally adopt associative forms oriented towards non-profit or limited profitability, they need a connection with the market, at least to cover the costs incurred by the production and distribution of seeds. However, this is precisely what is now theoretically prohibited by regulations, which has been organized to exclude traditional seeds from the market, notably via the registration requirements in the official catalog.

We see here that the specific enclosure that weighs on seeds consists of forced exclusion from the market, and it is somewhat counter-intuitive, in relation to the general idea that one can make of the phenomenon of common property. Historically, enclosures first hit certain lands that were collectively used by the distribution of private property rights to convert them into commodities. Landowners have been recognized in several waves of the right to enclose land that was previously the subject of customary collective rights of use. This is particularly the case in England during the 18th and 19th centuries. In France, the dismantling of the Commons took the form, in the French Revolution, of a process of “sharing the Communals”, which consisted in the sale in certain regions of these lands so that they became private properties. In both cases, enclosure takes the form of a forced inclusion in the market of goods that previously were “protected” and it can even be said that enclosure is then explicitly aimed at the commodification of the good.

In this regard, we must re-read the analyses of the historian Karl Polanyi in his book “The Great Transformation” in which he explains how “market society” has been constituted and generalized by producing three kinds of “fictitious goods”: the Land (and more generally nature), labor (human activity) and money. In his vision, it was the forced inclusion of these three essential goods in the market mechanisms that allowed the latter to “disentangle” the rest of society and become a self-regulated system that allowed the rise of capitalism.

Exclusion from the market as an enclosure

From the foregoing, one may have the impression that enclosure is thus intimately linked to “commodification”. Moreover, many of the social struggles carried out on behalf of the Commons demand that certain goods be excluded from the market or subject to a specific regulation which protects them from the most destructive excesses. This is the case, for example, for the fighting on water, in particular in Italy, which has gone through opposition to the privatization of water management by large companies.

Nevertheless, the case of seeds shows us that the issue of enclosures is much more complex. In order to grasp what happens to the seeds, we must understand them in two different ways: in their immaterial dimension, through the plant varieties that the seeds express and in their material dimension, through the physical objects that are the seeds produced by the peasants. Old plant varieties do not (and have never) been subject to intellectual property rights, unlike the F1 hybrids produced by the seed industry. As such, these varieties are actually ‘de-marketed’, in the sense that they can not, as such, be subject to exclusivity subject to authorization and transaction. But the seeds produced by the peasants constitute rival physical objects, which are the object of property rights and can be legitimately sold on the market. Except that the legislation on seeds has been organized to prevent these seeds from entering the market and being able to be marketed, unlike proprietary varieties. The enclosure of the common good which constitutes traditional seeds, therefore, does not have the same nature as that which has struck land or water: it consists of a forced exclusion from the market.

Indeed, it could be said that free seeds are subjected to a double process of enclosure, both working in opposite directions. It is known that some large companies like Bayer or Monsanto are working to file abusive patents on some of the characteristics of old plants, such as natural resistance to diseases. They do this to reserve rights over the “immaterial dimension” of plants, by creating new GMO varieties in which they will inject the genes carrying these particular traits. In such cases, they use an intellectual property right to induce a forced entry into the market on an element which previously belonged to the public domain and was freely usable. One of the best known examples of this phenomenon known as “biopiracy” has, for example, concerned a patent filed by a Dutch company on an aphid resistance of a lettuce, allowing it to levy a toll on all producers’ seeds for these salad greens.

Enclosure may therefore consist of forced entry into the market and is often the effect of the enforcement of intellectual property rights. Another example which could be cited in this sense is that of scientific articles. The vast majority of these products are produced by researchers employed by public universities. They are collected by private publishers through the transfer of copyright granted by the same researchers at the time of publication. They then resold at very high prices to universities. They are then obliged to buy back with public money what had originally been financed by public funds (salaries of researchers). To use Polanyi’s vocabulary, we are here in a caricature of “fictitious goods”, created by the artificial application of intellectual property rights on goods in order to forcefully include them in a market.

But conversely, there are also intangible goods which undergo, like seeds, phenomena of enclosure by forced exclusion from the market. If one takes for example the case of free software, one knows for example the problem of tied selling (sometimes also called “forced sale”) which means that one can not generally buy computers without proprietary software pre-installed, which conditions users to the use of protected software to the detriment of free software. Last year the Court of Justice of the European Union refused to consider that the tying of PCs and proprietary operating systems constituted an unfair commercial practice. The seed analogy is not perfect, but there is a link as long as the problem of tied selling prevents free software from reaching the consumer under the same conditions as proprietary software. The machinery market would be important for their distribution and adoption by the greatest number. In the end, the consumer is deprived in both cases of the choice of being able to opt for a free solution, radically with regard to the seeds and relatively for the software.

For a complex approach to the links between Commons and the market

To be able to grasp the phenomenon of enclosures in its complexity is, in my opinion, important, in particular to avoid misunderstandings on the question of the Commons. It is sometimes said that the Commons constitute a “third way between the market and the state”, but this way of presenting things is rather misleading. It would be better to say that the Commons, with the State and the market, constitute a way for humans to take charge of resources. These three poles can, depending on the moment in history, have more or less importance (today we are going through a period of overwhelming dominance of the mechanisms of the self-regulated market, resulting in a marginalization of the Commons and a weakening of the State). But the Commons are always articulated to the State and the market: they never constitute a completely autonomous sphere. In particular, they may need market opportunities to exist and weigh significantly in social relationships. This is clearly illustrated by the example of free seeds.

Of course, there are also cases where we have to fight for a “de-commodification” of certain goods and many struggles for the recovery of the Commons go through this confrontation with the market to “snatch” from the essential resources. But there are also cases where, on the contrary, it will be necessary to fight for the right to have resources joining the market to be traded. At first glance this may sound confusing, but it seems crucial to keep this in mind so as not to sink into a romanticism that would lead us to believe that the goal is to “get out of the economy”, as one can sometimes read … There is also a struggle to lead “in the economy”, as Karl Polanyi rightly said, in order to “re-integrate” this sphere within the processes of social regulation and in particular in the logics of reciprocity.

That is what Jean-Luc Danneyroles expresses in his own way at the end of the article by Reporterre, referring to the question of barter and the commons. One senses at the same time his reluctance to consider the seeds as goods “like the others” and his need to connect yet to a market:

Quietly, in his open kitchen, at the time of the coffee, as almost every day, Jean-Luc receives the visit. A curious one looking for Roman chamomile for skin care. Jean-Luc gives him advice, names of plants and methods of cultivation. She will leave with her sachets of seeds, in exchange for soap and toothpaste that she has made. Jean-Luc always has a little trouble with getting paid. “The ideal is barter, I like the idea of common goods, which one does not pay for what belongs to nature. Utopian, yes, but feet on the ground. “Every work deserves salary,” he knows, and his seeds are his means of living.

Photos used by permission, Éric Besatti/Reporterre



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