Monthly Archives: February 2010

Challenges for Tanzanian seed sector

As part of our ongoing market development support for ICRISAT’s seed sector mission in Africa, over the last week I met with public and private sector actors in the Tanzanian seed sector.  Building a viable private sector presents a number of challenges and the situation is quite complex. This is intended only as an overview. After 30 years in power, Julius Nyere’s socialist regime collapsed in 1997, and the market-driven economy is still in the process of evolution.  Under the socialists there was no private seed sector.  A parastatal seed company – Tanseed – had a monopoly on seed production and distribution in Tanzania.

The remains of the old structures can be seen in ASA – the Agricultural Seed Agency – a government agency which promotes itself as “The Source of High Quality Agricultural Seeds”.  ASA’s mission is:

To produce, process and market sufficient high quality agricultural seeds for the local and international farming communities by using modern management and appropriate technologies to enhance food security.

ASA is the sole source of public variety foundation seed.   There are failures, and our interviews revealed that:

  • ASA’s foundation seed production is unable to meet demand;
  • ASA’s certified seed production and marketing (which, according to ASA, is intended only to address orphan crops which are of no interest to the private sector) competes with the private sector;
  • As a result of financial constraints, there is only limited public sector breeding in Tanzania, and no maintenance breeding; this has resulted in the loss of a number of valuable public lines.
  • Foundation seed produced by ASA for both the public and private sector is of poor quality, which does not bode well for the future food security and economic development of Tanzania.
ASA farm in Arusha

From left to right: Paul Nandila (Workshop Manager), Bob Shuma (Executive Director, TASTA) and Zawadieli Mrinji (ASA farm manager) examining maize foundation seed at the ASA farm in Arusha

Bob Shuma
Bob Shuma with ASA maize foundation seed; true to type on left, defective on right.

Bob Shuma, Executive Director of TASTA (Tanzanian Seed Trade Assn.) estimates that only 15% of seed planted in Tanzania is certified.

With a land area of 947,000 sq. km. and four quite different farming ecologies few roads are suitable for trucking. Of the 79,000 km of roadways, less than 7,000 km are paved.[1] This exacerbates an already fragile distribution chain for certified seed by increasing retail prices to the point at which many farmers cannot afford to buy.  Conventional financing is not an option; with a banking sector that is risk averse, does not understand farming, and with interest rates in the 20%-25% range, even a medium sized and profitable regional company such as East Africa Seed finances expansion from retained earnings.

Drought is yet another factor and explains why the private sector has been unable to meet demand from farmers for certified seed, and is one factor in ASA’s inability to meet private sector demand for foundation seed.  The government is now investing in the installation of irrigation systems for the ASA seed farms, and this should enable an increase in output. All of the seed companies interviewed seemed highly aware of the need to establish and maintain a strong brand identity to distinguish themselves from competitors who, for the most part, are selling identical product (foundation seed provided by ASA and AVRDC is available to all buyers). The options for developing unique branding strategies are, however, limited and the common focus is on quality and reliability.  The disparity between supply and demand – no seed company has been able to satisfy demand – explains why marketing is not a critical issue for the private seed sector. Bob Shuma observes that:

When Tanzania’s seed laboratory is finally accredited to ISTA and OECD it will stimulate the availability of new varieties, new crops and new lines and export opportunities will open up; unfortunately budgetary restraints have slowed this process.  With all of these constraints, what will attract local investors and entrepreneurs to invest in private sector seed activity?  And how can farmers access improved technologies?  These are challenges to be addressed by Tanzania, its partners and by the development community.

Many thanks to Bob Shuma for his invaluable assistance on this trip, and to TASTA and Wageningen International for their support.

Post written by Peter Bloch, consultant to CAS-IP


[1] CIA Factbook; this data is at least five years old and paved roadway has probably increased by 20%.

Copyright infringement and filtering

A recent IPKat blog on the latest judgment of Sabam v Scarlet made me realise how complex the matter is and how easy to give misleading and inaccurate analysis can be. The case on which the European Court of Justice will give its assessment discusses whether it is legally and technically possible to require an Internet Service Provider (“ISP”) to filter and monitor internet users by checking what files they share via peer-to-peer, in particular files which are somehow identified as being unauthorised.

In deciding whether ISPs should be obliged to have filters, the Court needs to weigh a series of elements, including the protection of  data and freedom of rights. The problem with filters is that the ISP may have to collect and analyse IP addresses which, especially if static, may enable the website operator to see the IP address users’ personal data. This could identify him/her, and thus, if disclosed, breach the data protection requirements of the Data Protection Act. Therefore, this is a clear legal impediment to ISPs even if they wanted to monitor users’ internet traffic.

Blocking of websites is even more problematic, for example if you go to www.anonymizer.com and download the software, the ISP “sees” nothing. Likewise, if you go to Google DNS and route your connections via their DNS server, the ISP sees nothing. Therefore, the difficulties that an ISP has in relation to “filtering” are also of a technical nature, rather than just legal and ethical (copyright protection v rights to privacy).

Joe McNamee, Advocate to European Digital Rights, rightly summarized the issue

“the bottom line is that, if you are happy to ban encryption and happy for Internet access providers to check the contents of all of your communications (whenever the technology is available to do this) and happy to pay for the capital outlay to achieve this… then filtering may be possible (expensively) some day in the not too distant future. Otherwise, you’re opposed to filtering – unless you’re happy with filtering that doesn’t actually work. That’s really all there is to the issue. Things only get complicated when you start explaining why this is the case”.

This debate comes at an interesting time when Google (and US) are battling China’s ongoing monitoring and censoring regime, exposing the topic to the complexities of legal/technical/political and moral issues. Interesting!

Post written by Francesca Re Manning, consultant to CAS-IP

Intermediaries’ role in online copyright enforcement; a study

Article on the Media Law Prof Blog earlier this month linking to a paper entitled “Global Trends in Online Copyright Enforcement: a Non-Neutral Role for Network Intermediaries?”.  This is a topic we have pondered on once or twice on the CAS-IP blog, specifically regarding the changing rules of engagement against online piracy.  This paper, written by Jeremy de Beer and Christopher D. Clemmer is an extensive look at the issues, pressures for change, and the action-reaction of shifts in policy in a number of jurisdictions. Implications are complicated, and the environment is ever changing. The paper ends by saying:

“Whether or not intermediaries should ultimately play a more active preventative role in online copyright enforcement remains an open question. That question can be answered in an intelligent manner only if lawmakers and policymakers are informed about its broader context and implications. This article has demonstrated that a major policy shift in the global governance of online intermediaries is taking place with little or no deliberate consideration of the substantive matter, the reasons why such a shift may be happening, or even full realization that the shift is occurring at all.”

Senegalese President claims “intellectual rights” in 50m sculpture

President Abdoulaye Wade is claiming “intellectual rights” on a $27 million sculpture which will shortly be unveiled in Dakkar.

http://allafrica.com/stories/200911160012.html

Wade has said that:

“The bronze sculpture, depicting a family rising from a volcano…symbolizes Africa’s renaissance…”

According to the BBC, Wade plans to pocket 35% of any tourist revenues because he owns the IP rights.  The 50m high statue was designed and built by Koreans.

Corruption is widespread in Africa, but this may be the first time that IP has been involved in what appears to be an outright scam!

Post written by Peter Bloch, consultant to CAS-IP

Is the Google books saga nearing its end?! The DoJ, the forthcoming fairness hearing and the chances of settlement…

The much awaited Google Books settlement may be more difficult to achieve due to the recent (February 4, 2010) DoJ filing which reaffirms legal concerns.

It’s been six years now since the GBS (Google Book Search) project was launched in 2004. The fairness hearing before judge Chin scheduled for Feb 18th could yield further surprises, following the most recent DoJ filing which is still critical of the project.

The original class action lawsuit was submitted by the Authors Guild in 2005 on the grounds of copyright infringement by Google, who was accused of having created and made available digital copies of copyrighted works without seeking rights holders’ permission. The outcome of the litigation is eagerly awaited by those (mostly library community and publishers) who are interested in pursuing mass digitization projects or who envisage Google as a viable commercial partner. The settlement is expected to clarify legal status of digitized (or to be digitized collections) and the potential application of the fair use doctrine; and to shed light on the controversial issue of the “orphan works” (a category of works whose authors cannot be located after a diligent search).

In October 2008, Google and the Author’s Guild entered a complex agreement which, among other things, created a scheme (Books Rights Registry) enabling Google to compensate the rights holders for displaying parts of their books covered by copyright. Under the same settlement, there was established a highly criticized opt-out mechanism (with deadline) ,to be used by the rightsholders who didn’t wish to be part to the settlement.

In September 2009, the DoJ first stepped in to comment on the agreement. Whilst labeling it as “one of the most far-reaching class actions statements of which the United States is aware ”, it criticized severely this “ambitious undertaking” and urged the court to reject the deal. According to the DoJ, the settlement violated the Federal rule of Civil procedure 23, the copyright law and the antitrust law. The main accusations to Google was its effort to “implement a forward-looking business arrangement”, by establishing Google’s dominant position in the digitization market, mainly thorough exploitation of the “orphan works”. Also, concerns were raised with regards to the class action mechanism (as disciplined by the Rule 23): the DoJ affirmed that the named class representatives did not represent adequately the absent class members (i.e. unknown rightholders of the orphan works). The DoJ suggested the following modifications to the agreement be made to address the existing concerns:

imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and providing a mechanism by which Google’s competitors can gain comparable access” (http://www.justice.gov/opa/pr/2010/February/10-opa-128.html).

To address the DoJ’s criticisms listed above, the parties came up with an amended settlement agreement, which was preliminarily approved by the Court on November 19, 2009. The amended settlement appears to have made significant progress so far as the “orphan works” and the anti-competitive behavior issues are concerned. It is proposed that a “fiduciary” be created to represent effectively the rightsholders who cannot be located, and that part of the revenue gained from the orphans work be split between further activities to locate unknown rightsholders and grants to the “literacy-based charities”. Also, the provisions that would give Google the status of the “most favored nation” are being eliminated.

So far so good!  But, yet again, the DoJ steps in at the last minute ahead of the fairness hearing and points its finger at what is considered to be most problematic issue.  Though recognizing the overall progress made by the parties in making the settlement healthier, the DoJ reaffirms that the settlement:

“suffers from the same core problem as the original agreement: it is an attempt to use the class-action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation.”

The orphan works is, again, the most targeted issue and further limitations are suggested in order to address it, namely:  1) shortening the period of exploitation of the orphan works, and 2) increasing the waiting period between when an orphan work is entered in the database and when it is made publicly available. More generally, the legal scope of the agreement is restricted to the books printed in the US.  Please check this link for the extended version of the filing http://graphics8.nytimes.com/packages/pdf/technology/20100205_googlebooks.pdf.

A final question: why do we need GSB? Or rather who will benefit from it? In its earlier filing (September 2009, mentioned above), the DoJ recognized the settlement would “breath new life” into currently off-public  books, by widening up new research opportunities”,  by making accessible millions of books through institutional subscription and by clarifying (thanks to the creation of the Books Rights Register) the copyright status of out-of-print books.  Also, it is expected that printed-disabled categories would greatly benefit from the settlement, as indicated by the strong support demonstrated by US National Federal of the Blind.

To sum up, it seems that should the amended settlement come to fruition, it would bring huge social value in terms of widening access to knowledge. So, good luck for February 18th!

Post written by Irina Curca of CAS-IP

Of groundnuts, watersheds and technology transfer

This week I spent three days on a farm owned by Nigel and Janey Leakey near Nakuru in Kenya’s Rift Valley.  They run a small company (Leldet) that grows and distributes certified seed, and the recent droughts led them to the conclusion that if they did not irrigate they would not be able to expand.  You can read about them at:

http://www.agra-alliance.org/content/story/detail/1035 (the last story on the page)

The topography of their farm and the surrounding land suggested that a small scale watershed management project might enable them – and the s/h farmers surrounding their farm – to store runoff for irrigation in the dry season.  With the support of ICRISAT, Sefia Jetha, an agronomy Masters candidate from HEPH-Condorcet University, is in the process of conducting a watershed study using techniques that were developed and used with great success in India. 

This followed on the heels of my visit to Malawi, where small seed growers had expressed concern as to how they would shell certified groundnut seed (this must be done with care, as broken seed will not germinate).  In all probability a mechanical groundnut sheller provided by ICRISAT and developed in India will be deployed.

And the WASA team has been working closely with several Indian seed companies to evaluate hybrids developed in India in collaboration with national agricultural research systems and local seed companies. If these prove successful, they can be released and then commercialized across the region as a result of the regional variety release system approved by ECOWAS.

Technology transfer between India and Africa is a happening thing, especially in the agricultural sector;  these are just three of many examples, and yesterday I heard about an upcoming forum on the subject:

EMRC Announces Inaugural Africa-India Economic Mission

EMRC promotes the development of Africa’s agricultural sector with Africa-India exchange .

http://www.africanexecutive.com/modules/magazine/articles.php?article=4953&magazine=265

The Economic Mission aims to foster partnerships between Africa and India in the sectors of Agricultural Research, Soil and Water Conservation and Management, Biofuels, Fresh Produce Management, Knowledge Parks, Seed Value Chain and Equipment.  

Post written by Peter Bloch, consultant to CAS-IP

“Patents and Vegetable Crop Diversity”

There was a Patently-O post that came out during the New Year holiday period (thanks VHA for sending the link to me).  The title of the post was “Patents and Vegetable Crop Diversity” and included a paper of the same name published in November 2009.  The authors (Paul Heald & Susannah Chapman) open the paper saying:

“the data presented … strongly suggest that the intellectual property system (including the Plant Patent Act, the Plant Variety Protection Act, and utility patents…) plays an insignificant role in vegetable crop diversity, with the possible exception of corn”

Patently-O highlighted the following findings of the study:

  • “Only 3.8% of varieties available in 2004 were ever subject to protection under patent law or the Plant Variety Protection Act (PVPA);
  • More than 16% of all vegetable varieties that have ever been patented were commercially available in 2004; and
  • In 2004, approximately 4.5% of protected, or once protected, varieties consisted of inventions that were at least twenty years old.”

Visit this link to read or download the paper.  Also included in the post was a link to a previous paper from the same authors suggesting “vegetable crop diversity increased in the past century”.   I wanted to highlight the summary from that paper which can be read or downloaded HERE:

“The primary argument for maintaining crop diversity is based on the need to maintain a safety net of genetic diversity, to have a broad supply of genes available to breeders who can create more productive, weather-hardy, insect resistant, fungus resistant, and better-tasting crops. We hope our findings stimulate a discussion about the proper measure for that diversity. If the meaning of diversity is linked to the survival of ancient varieties, then the lessons of the twentieth century are grim. If it refers instead to the multiplicity of present choices available to breeders, then the story is more hopeful. Perhaps the most accurate measure of diversity would be found in a comparative DNA analysis of equal random samples of old and new varieties, work that remains to be done.“

(On a lighter note; I couldn’t help smiling reading the comments on the blog post.  Most of them were left 1st January, and it seems those commenting might have had just one too many during the festive period…  However for the record I soberly agree with them that Patently-O is a great blog!)

Africa as a dumping ground for counterfeit goods

I made a reference to black market Kiwi shoe polish in a previous post.

The current issue of the BBC magazine Focus on Africa contains a cover story, Copycats Go for the Kill:

“…recent research by ICF (International Climate Facility) found that in the East African Community $500 million in revenues from unpaid taxes was lost to counterfeit goods…”

The article cites cases of counterfeit toothpaste bearing the Unilever brand and suggests that 30% of medicines on sale are fake.  And a 2009 UN report revealed that:

“Revenues gained from 45 million counterfeit anti-malarial medicines were worth $438 million, greater than the GDP of Guinea-Bissau.”

One of the objectives of the ICF is to “secure property rights” throughout Africa, and I suspect that the definition of this goal has now been broadened to include IP.

Addressing the observation that Africa has become a dumping ground for counterfeit goods will require a general crackdown on corruption, new legislation and the strengthening of IPRs.  So this is a problem that will not be resolved without political will.

Post written by Peter Bloch, consultant to CAS-IP

Open Data Commons; new draft attribution licence for data/databases

This item was posted on Peter Suber’s blog a couple of weeks back requesting futher circulation.  It points to draft text for a “Open Data Commons Attribution License (ODC-By)

The draft licence is still open for comments. http://www.opendatacommons.org/licenses/by/

According to the Peter Suber blog the work on this licence is addressing the need for:

“.. an open license for data/databases that provides for attribution but does not impose share-alike requirements. …”

The Open Data Commons website has some FAQs about why data licences are important.  They say:

“…licensing and definitions are important even though they are only a small part of the overall picture. If we get them wrong they will keep on getting in the way of everything else. If we get them right we can stop worrying about them and focus our full energies on other things.”

Nicely put!  Further on they explain:

“…you do need this legal stuff. Whether one likes it or not there are a whole bunch of jurisdictions in the world where there are IP rights in data(bases). Thus if you want your data to be open, even if that means public domain, you need to apply a license (or something very like a license).

For licence text already available visit http://www.opendatacommons.org/licenses/

Vanishing online content; a copyright issue?

A recent post on “Techdirt” opens an interesting discussion.  The article reminds us yet again that internet is challenging the way copyright operates.  There can be a struggle dealing with literary works contained in a static medium such as a newspaper when that same material is available online — and this can be at odds with capitalising on the power of the internet when disseminating and retaining information.

The techdirt article uses the example of a page on The Guardian website where under the title of a historical item the following words appear:

“this article has been removed as our copyright has expired.”

The beauty of the web is that unlike a traditional medium you don’t have to rely only on today’s headline to bring in readers.  The archives can receive traffic as easily as the day’s headline.  And its bad form to post something, circulate the link and then remove that content.  This can lead future recipients of the link to find the content no longer exists. 

In fact, a useful method to adopt when quoting a web link in a publication is to include “last viewed on [insert date]” to cover this eventuality.  (This practice also has other uses such as ensuring that one could refer to the terms of use at the date of access should a dispute arise about this issue. This is because one copyright work could be subjected to different licensing terms by the owner of that work. )

As content providers we need to be sure of what we have before posting.  In a public sector environment such as ours we are encouraged to share and make all materials available to all.  Whilst law suits are an unlikely for us there are other responsibilities to consider, such as confidentiality, attribution, timing or simply common courtesy.  Far better to double check an author is happy for their work to be shared, than to post without permission and risk causing offence – whatever the copyright situation.  WARNING: Bad IP practice can lead to bad public relations!

(Thanks to Guat Hong Teh for her input to this post)