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Who owns the eggplant? by Latha Jishnu

As agriculture universities transform local varieties into genetically modified Bt brinjal, questions of ownership arise.

Indians call it the brinjal. Other countries know it as the eggplant or aubergine. It is widely used the world over and every cuisine from the Chinese to the African has an encyclopaedia of recipes that establishes its popularity as a vegetable of daily use. And no vegetable has hogged the headlines as much as the brinjal in recent years — ever since Mahyco, the Indian partner of the biotech giant Monsanto, began its experiments to turn this commonly used vegetable into the genetically modified Bt brinjal. In recent months, it has seldom been out of the news in this country because of the controversy surrounding questionable procedures for testing and approval, and a high-profile case in the Supreme Court.

Almost forgotten in this tumult is the work of several public institutions, primarily the Tamil Nadu Agricultural University (TNAU) in Coimbatore and the University of Agricultural Sciences (UAS), Dharwad, in genetically modifying the open pollinated varieties (OPV) of brinjal whereas Mahyco is focused on doing it with hybrids. Of course, both institutions have been working with Mahyco on the project in what is described as a public private partnership (PPP), spearheaded by Cornell University of the US as the ABSPII project. Funding for the project comes from the Ford Foundation and USAID.

Since an expert committee set up by the Genetic Engineering Approval Committee has recommended that the regulator should consider approving all the Bt brinjal hybrids and varieties containing Mahyco’s Bt technology, it raises some vital questions that have been swept under the carpet. These are questions related to ownership of the varieties, technology fees and terms of release, issues that have received scant attention in the hype generated by the “free” transfer of the technology to the public institutions.

The Bt cry1Ac gene technology was sublicensed to these universities and other public institutions in Bangladesh and the Philippines among others on a pro bono basis, but several concerns remain to be addressed.

Who really owns the nearly dozen OPVs that the two agriculture universities have used in the Bt experiments? What would be the nature of intellectual property rights (IPRs) that the developers would enjoy given that the technology is owned by Mahyco — a company in which Monsanto has a 26 per cent stake — and how soon would the universities be allowed to release their seeds? These are critical issues that need to be answered since only a quarter of the nation’s brinjal farmers are known to be using hybrid seeds. There is a simple reason for that: OPVs, produced by natural pollination, allow farmers to reuse their seeds unlike with hybrids where cultivators need to go back to the companies every planting time for expensive proprietary seed.

A copy of the Material Transfer Agreement signed between TNAU and Monsanto in March 2005 reveals some interesting facts. The university says it has supplied to Mahyco “eggplant germplasm developed by, owned, controlled and/or licensed-in by TNAU”. But can the university claim ownership of the original germplasm which would have come from the farming community? Was their permission sought and granted when such an agreement was being drawn up? And would the benefits, if any, be shared with this community when commercialisation takes place?

Agriculture experts also question if TNAU can claim to own and control this germplasm when no legislation allows it as of now. Did the university register these OPVs? Farmers’ lobbies say if this is indeed the case, then it should show proof of how and when control and ownership were obtained from the donors/breeders for the germplasm of the essentially-derived varieties as they are termed otherwise, and also if it would amount to a serious violation of farmers’ rights.

Equally significant is the compact between the university and Mahyco which is aimed at developing and delivering “pro-poor varieties of insect- tolerant Bt eggplant to facilitate technology access to resource-constrained farmers”. Pro-poor varieties of Bt eggplant? That’s an intriguing term but what is germane here is the fact TNAU can only deliver the “products” (Bt varieties) to farmers by a further agreement with the company.

The restrictions on the university are many: TNAU cannot backcross the Bt gene into any other germplasm apart from the four selected varieties; it cannot further develop transgenic eggplants with “products” it derives from the partnership nor can it do any breeding work with these products. On the other hand, Mahyco has reserved for itself “certain rights to the use of the Bt gene”.

It’s good to remember the overarching philosophy of ABSPII. The project document states that “to safeguard the licensor’s interests, specific strategies for the stewardship and monitoring of the technology by the licencees was addressed and formulated early in the sublicensing programme”. So while references to pro-poor varieties sounds impressive, it’s important to remember that IPRs extract a price — from the licensees, sub-licensees and the customer.

So the question of who owns the products is as important as the question of who owns the germplasm. We are waiting for TNAU to clear the air.