Author Topic: Open source and UPOV?  (Read 154 times)

Ocimum

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Open source and UPOV?
« on: 2019-01-31, 04:14:27 AM »
Hi everyone,
I am struggling with the legal boundaries, and have one question:

Can a variety be pledged open source, and still get protected or royalties via UPOV?

In other words, can everyone sell seeds of an open source variety?
And are there differences in this between OSS and OSSI?

Thanks if someone can help me on this


Nicollas

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Re: Open source and UPOV?
« Reply #1 on: 2019-02-01, 05:34:16 AM »
Quote
Can a variety be pledged open source, and still get protected or royalties via UPOV?

In other words, can everyone sell seeds of an open source variety?

These two sentences are not equivalent.


Ocimum

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Re: Open source and UPOV?
« Reply #2 on: 2019-02-01, 06:54:29 AM »
Why not?

If person X 8) develops a variety, pledges it open source, can person Y  :-* reproduce said variety and sell the seeds?

OR

Can X 8) still get the variety protected by UPOV while keeping it open source?

gratefulseedsaver

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Re: Open source and UPOV?
« Reply #3 on: 2019-02-02, 07:45:48 AM »
To me the term ‘Open Source’ means ‘patent-free’ and/or ‘unpatentable’. Why would you want both types? Just curious.
"It’s Not What You Look At That Matters, It’s What You See...Freedom Disappears Under The Dominance Of A Bad Habit...It Is Not The Land That Is Broken, But Our Relationship To Land"

B. Copping

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Re: Open source and UPOV?
« Reply #4 on: 2019-02-02, 11:15:39 PM »
I am no expert, (but you can see that this is not stopping me from posting. :) ).

I am thinking that OSSI and UPOV offer different *types* of varietal protection.
Depending on philosophical inclinations, or pragmatic realities, an individual may prefer one type over another.

OSSI seems, as an organization, to be more comparable to a specific Linux distribution (which uses a specific licencing model).

OSSoftware can be released under the GPL without being in a Linux distribution.
If your OSSoftware is released as part of a Linux distro. there will be the advantage of the distro’s promotion, quality control, and branding.

From what I can see, OSSI is operating in a manner comparable to a Linux distribution.
I’m not sure that the pledge is directly comparable to the GPL though.
Whether OSSI and UPOV are compatble: I’m skeptical.

Perhaps someone who has a better grasp of the legalities will chime in.
I am, of course, no expert; but I hope that I have been able to help a bit.

Carol Deppe

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Re: Open source and UPOV?
« Reply #5 on: 2019-02-03, 12:28:39 AM »
When you OSSI-Pledge a variety you have given up the right to patent it, PVP it, or put any other restriction on it, including those used in other countries. If you have patented, PVPed, or put some other country's plant breeder's rights IP on your variety, this precludes your OSSI-Pledging it. No, it is not possible to OSSI-Pledge a variety and also have IP on it.

Yes, anyone may grow and sell seed of an OSSI-Pledged variety, and do not need permission from the breeder, nor need pay the breeder anything. If you want to be able to control  your variety after it's release, you don't  OSSI-Pledge it. However, a number of companies do pay a voluntary benefit share to freelance breeders where they produce the seed themselves instead of buying it from the breeder wholesale. For example, four different seed companies grow and sell OSSI-Pledged varieties of mine and pay me a voluntary benefit share of some sort as part of their policy of supporting work of freelance plant breeders. At some point I'll start a separate thread and summarize what companies are supporting freelance breeders in this way.

It's also the case that even though others can grow and sell your Pledged variety and pay you nothing, it doesn't mean anyone will buy it from them if you, the breeder, are selling it wholesale. OSSI associated seed companies usually prefer to buy wholesale from the breeder where that is an option, willingly paying a premium price, understanding that they are getting the truest version of the breeder's vision and are supporting the breeder's further work.

Contracts can be used in producing seed of Pledged varieties, but only certain kinds of contracts. OSSI allows all contracts with all terms as long as no restrictions extend to third parties. So, for example, I often contract with a grower and buy the entire crop, and the grower has no right to sell that variety to others. I couldn't even do plant breeding without such contracts since I don't own a farm. However, if I contracted with a big retail seed company to grow and sell the seed of one of my OSSI varieties, we can have various terms, but no terms or restrictions that would extend to the seed company's customers other than the standard one of passing the Pledge along with the seed.




Ocimum

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Re: Open source and UPOV?
« Reply #6 on: 2019-02-03, 02:43:27 AM »
Thanks a lot for the replies, especially Carol Deppe

Therefore the folloging drawing should be correct, even if not complete for readability reasons.

UPOV varieties may end up in new bred OS varieties, patented varieties as well as soon as the patents expire. The MTA Material Transfer Agreements differ, I just took the "worst case scenario".