遺伝子組換え作物をめぐる生命特許と農民特権 (2) : シュマイザー事件」最高裁判決を受けて

In the 1990s, genetically modified (GM) crops have rapidly gained cropping area and market share. As a result, GM crops contaminated non-GM traditional crops through pollination and other natural phenomena. In addition, the governments in the USA and Canada have concluded that GM crops can be patentable as long as they can be approved as inventions with novelty and usefulness. In the meanwhile, the “farmers' privilege" provided in the UPOV (The International Union for the Protection of New Varieties of Plants) conventions have traditionally granted farmers the right to save and replant the seeds obtained from their own property. The patent protection for GM seeds prohibits farmers from saving and replanting them without permission from the developer even if the GM crops voluntarily grow on the farmers' land. The main focus of this paper is on the protection of farmers' privilege from the ‘gene contamination' which causes the voluntary growth of GM seeds. This paper considers the fact that the patent protection for GM seeds developed by bio-multinationals has restricted farmers' privileges. It refers to the final decision by the Supreme Court of Canada for the lawsuit in which Monsanto Co. sued Mr. Schmeiser, a Canadian farmer, against his illegal utilization of the patented GM canola. In this decision, the Supreme Court concluded that Mr. Schmeiser infringed on the patent rights held by Monsanto. Nevertheless, it did not require Mr. Schmeiser to pay any compensation for his saving and replanting the voluntarily grown GM seeds for the sale of its harvest (canola) since he made no use of the ‘utility' of the GM seed, i.e., herbicide (Roundup) tolerance. The conclusion is that the spreading scope of patentability to plants will diminish the ‘public domain' of seed resources where farmers can freely save and replant them under the farmers' privilege. Hardin's ‘tragedy of commons' argues that the absence of property rights for common-pool resources will lead to their over-utilizati