The licence protects seed, not varieties.

It is a material-transfer agreement that confers use rights together with the material. When the material is transferred, a contract is entered into that ensures the mutual rights and duties concerning such material, as well as all future developments of that material, in perpetuity. The contract also implicitly refers to the genetic information contained within the material.

The term “variety”, however, denotes something immaterial and cannot be subject to a material transfer agreement. The open-source licence differs fundamentally from plant-variety protection. Rights to a variety – i.e. something immaterial – can be held only by someone with intellectual property rights in this variety. Such rights in a variety may be granted by the State, but a variety (which is immaterial) can be marketed only as seed (which is material).

Independently from this, breeders may also register open-source licensed varieties in Germany under the provisions of the Seed Marketing Act. Seed that is registered as a variety in the catalogue of the German Federal Office of Plant Varieties can then be marketed as such.

The licence – a contract under civil law
The open-source licence that we developed is a “sui generis contract” and falls under the General Business Terms and Conditions of German Civil Law (BGB). This can be regarded as general terms of service because it is stipulated by a single party, is not individually negotiated and is intended for use in multiple transactions. A basic feature of the open-source licence is that the user receives, free of charge, a simple use right on the condition that he or she makes available for public use, under the same conditions, any development or enhancement to the seed that he or she may have made.

Disclosure of the licence
The licence is a civil contract. Such contracts may be made verbally, in writing or implicitly through actions. If you want to sell, give away or exchange seeds under the open-source licence, you must – unambiguously – disclose the licence conditions of the transfer. Paragraph § 305 II BGB (German Civil Code) states that the licensor (the issuer of the general terms of service) must expressly point out to the other party (the licensee) the terms and conditions of the licence and provide the possibility for the licensee to read these terms and conditions carefully in order to reasonably comprehend them. In addition, the licensee must agree to their validity.

This means that any transfer is valid only if the licensee is fully aware of the terms and conditions of the licence. For this purpose, an abridged version with reference to the full-text version online is sufficient.

For professional traders, who for instance sell seeds in small quantities in supermarkets or garden centres, it means that an abridged version of the open-source licence must be printed on the packaging of the seeds with reference to the online full-text version. In the case of individuals (farmers etc.), the licensors must ensure that a copy of the licence accompanies the materials being transferred; they must explicitly inform the recipient (the licensee) of the materials about the terms and conditions of the open-source licence.

The licence is legally enforceable. An infringement occurs when open-source material is used for the development of a variety that is to be covered by a patent or plant-variety protection.

Infringements can be proven by:

• an inspection and analysis of the documentation on the pedigree and the breeding process of the new variety; since 2016 a detailed documentation for every breeding process is mandatory;
• a comparison of phenotypes and other varietal characteristics.

Such a proof of infringement can be fairly simple in some cases and quite elaborate in others, but generally, licence violations can be proven and prosecuted in court.

But we are not Big Brother. We consider it a common task and the responsibility of all users to ensure that open source remains open source, as unpunished licence violation could have negative repercussions for everyone. Our idea is also to initiate a social process in which everyone is responsible and everyone takes part in sharing observations.

A breach in the chain of contracts arises if the licensor does not inform the licensee of the licence terms or if the licensee ignores them. However, such a breach of contract comes into effect only if the variety in question or its further developments are subjected to private property rights (e.g. patent or plant-variety protection). If, after a breach of contract, open-source seed is used only for private cultivation, a breach of contract is legally relatively unproblematic for other users of the common good. 

The validity of the license remains unaffected
A breach in the chain of contracts is legally protected by the following mechanism: If a licensee breaches the contract, the rights of use derived from the licence agreement expire immediately. And you cannot legally transfer rights you do not possess. Thus, any transfer of the seed to third parties is no longer legally possible.

If an unlawful transfer subsequently takes place, the recipient of this seed may be prosecuted if, for example, he or she puts a variety that is protected by a patent or plant-variety right on the market. This also applies if the recipient was not aware of the licence conditions at the time of acquiring the seed. This is where the Nagoya Protocol [Verlinkung] helps us, because – under its regulations – the user of genetic resources must be able to document and prove that he or she has lawfully acquired the genetic resource and concluded agreements on benefit sharing. The Nagoya Compliance Documentation created by the user must state whether and what specific restrictions and conditions apply.

A breach in the chain of contracts can be repaired
A breach can be repaired directly by the recipient who obtained the seed unlawfully, by acting from the beginning of possession as if the licence agreement had been validly concluded. (§6 (2) Licence text).

It is often argued that it would be impossible to finance plant breeding with an open-source licence and without royalties from plant-variety protection or patents on seed. This argument can be refuted in several ways. Seen historically, most agricultural seeds were developed without a compulsory levy. In the Global South, most plant breeding does not follow a business model based on royalties and, even in countries in the Global North, there are private breeding companies that do not rely financially on exclusive IPRs.

Commonly owned seeds are a benefit for society as a whole
Another aspect may be even more important. Common-property seeds are more than just inputs in agricultural production. Their use benefits society as a whole in that they are essential for maintaining biodiversity, cultural landscapes, ecosystem system services as well as the capacity to adapt to climate change. These services are less and less provided by the business model currently followed by the private seed sector. If the plant breeding leads to benefits for society as a whole, then not only farmers and direct users should be helping to share the breeding costs. Processors, traders and consumers – the entire value chain – and also the State should contribute. Plant breeding that aims to create a commons is a non-profit rather than a profit-making economic activity; it must be clearly distinguished from seed production, which has indeed an economic character. 

Many organic cereal and vegetable breeders in Europe finance their breeding activities partly through “variety development contributions” that are negotiated between breeders, seed producers and farmers. Some charge a small levy on traded items or raise funds from government programmes and donors. The funds generated in this way for plant breeding are still small but they are growing from year to year. More information can be found in the paper “Who pays for seeds?”.

The open-source licence protects seed as a commons and offers an alternative to privatisation and market concentration of the seed sector. We are often asked if the licence can also protect against genetic engineering. Our answer is “Yes” and we argue as follows.

Genetic engineering – a set of changing technologies
“Genetic engineering (GE) in plant breeding” includes several different technologies, and new ones are continuously emerging. What is regarded as GE therefore cannot be precisely defined and regulated by law once and for all. Only some of the technologies fall under the GE law and, according to the decision of the European Court of Justice, now the much-discussed methods of CRISPR-Cas. Another obstacle to legal regulation is the fact that the GE methods developed today are striving for absence of residues, which means they are no longer detectable, so that legal prosecution in case of suspected non-compliance could be evaded. To some extent, this is already happening.

Open-source – a contract for perpetuity
The open-source licence prevents privatisation as it prohibits seed from being placed under exclusive intellectual property rights such as patents and plant-variety protection. However, the licence does not prohibit the use of certain plant-breeding techniques, be they genetically engineered, classically bred or created by a method unknown today – and this for good reason. As the methods of GE are constantly changing and being further developed, a licence that “prohibits genetic engineering” would have to be constantly adapted. But this would not make any sense because – with its copyleft principle, i.e. the transfer of seed-licensing terms to subsequent generations of seed – the licence is designed for perpetuity. With this mechanism, the licence creates a lasting commons and cannot be changed every time a new method of GE is put on the market.

Open-source – an indirect lever of protection 
Nevertheless, the licence does protect against GE. All GE processes, including CRISPR-Cas, are time-consuming and require comparatively high investments in plant breeding. It is repeatedly claimed that the new methods are very easy to handle and therefore very cost-effective but, to our knowledge, this assumption is wrong. Should it be possible to combine individual desired traits through genome editing, classical plant breeding would then have to follow in order to create a high-performing new variety. Plant breeding therefore remains a lengthy process. In addition, high costs for approval and compliance will be necessary for market introduction, in the range of two to three million Euro. Economically, such expenditures can be justified only in conjunction with patenting, which is excluded by the open-source licence.

Open-source prevents what the community does not support
As long as a majority of the general public rejects the use of GE in plant breeding and is not prepared to provide public funds for this type of plant breeding and the necessary approval procedures, there will be no development of non-proprietary open-source GE varieties. Moreover, this would not be an efficient use of funds, as the high costs of gaining approval of a single GE variety could be used for the classical breeding of about one hundred varieties useful for agriculture. 

Thus, the open-source licence does not prohibit GE de jure but it does prevent it de facto. We regard the licence as a good protective mechanism and are not aware of an equally valid alternative.