This entry was posted on May 9, 2018.
Although it may seem remote now, there was a time before seed banks and Copyright. The hybrids that we classify today as classic varieties existed only in the world of ideas. In the same way that the marble piece contains the sculpture inside, the marijuana plants were pure varieties, indigenous to Mexico, Colombia, Afghanistan, Thailand, India… Waiting to be hybridized by the first generation of growers.
It was in the 80s when Skunk and the first commercial cannabis varieties, such as Northern Lights or Haze, began to build a reputation among producers and consumers. In the 90s, OG Kush took over the streets of California, as did Sour Diesel in New York. They became brands: the aroma, the taste, the power … The new hybrids had their own signs and a great commercial impact. Since then, the competition has only increased. In today’s legal cannabis market, the impact of strains is stronger than ever. The Internet is full of websites where varieties are cataloged, compared and sold; and a need arises for deciding what belongs to whom, and determining what is new in an industry that has been in the shadows for so long.
Virtually all industries depend on patents and Copyright. However, due to the unique legal context of cannabis, all the work done could not be registered as intellectual property. There are thousands of varieties that legally do not belong to anyone. For decades, genetics creators have watched impassively as other brands use their genetics to develop new varieties (or even to reproduce and sell them under the same trade name).
Now, that the legal situation is progressively changing and that more and more pharmaceutical companies are beginning to focus their attention on cannabis; Now big corporations see cannabis as a multi-billion dollar legal industry; and faced with this situation of helplessness, questions begin to arise:Cannabis genetics copyrights possible? And in any casewould this be positive?
Plant patents: Current situation
The current state of cannabis intellectual property protection, or rather the lack of it, is a rare historical fact. Netherlands, which already in the 70s regulated the sale of marijuana (in authorized places), granted the first patent registration for a cannabis variety in 1996; and Medisinis, a female Skunk clone who had been selected for a national medical marijuana program, was registered with the Dutch government. However, in the rest of the world little has been done to date to protect genetics.
In Spain copyright registration is unprecedented when it comes to cannabis, and the situation is one of total helplessness for growers. The point is that patents can be obtained for any new invention that involves an inventive step and is capable of industrial application. However, a patent that relates to a particular variety of a plant or to biological processes cannot be granted; which means that the varieties obtained by crossing and selection cannot be patented. The only way to protect a variety is Plant variety rights, which can be requested for new, different, homogeneous and stable varieties. But the legal situation of cannabis rules out, for the moment, any progress in this area and, be that as it may, this looks like a war that can only be fought in laboratories.
In USA the outlook is somewhat more hopeful, especially in those states where medical marijuana is legal. The theory says that copyrights can be granted to new, useful, and non-obvious varieties. This means that the strain must present some novelty that is useful compared to what already exists, for example, be highly resistant to diseases or have a high CBD content. In addition, the new variety must have been significantly restructured from the genetic point of view, so much so that it can be considered that there has been human intervention in its development. For this reason, it would be relatively easy to obtain copyright of a variety of “transgenic marijuana”, while it would be practically impossible to register the name of the varieties of marijuana that we all know as trademarks.
The first precedent was set by a laboratory in Colorado, when in 2015 the US Patent and Trademark office granted the first plant patent on cannabis. The proprietary strain featured a unique terpene profile and specific cannabinoid chemotypes. Since then, there are several applications open in the government database. The biggest problem, beyond the loopholes, is that patent applications of this type are as expensive as they are slow. Therefore, small breeders are at a clear disadvantage compared to large companies.
Cannabis Philosophy VS Corporatism
As the legal cannabis market presents itself as a multi-billion dollar industry, the intellectual value of varieties is becoming increasingly apparent. The breeders who for legal reasons had remained in a state of semi-anonymity, have seen how this new situation of partial security filled the coffers of their successors.
Obviously, when other companies start to reproduce your genetic lines without being accountable to anyone, things start to get ugly. However, the interest in protecting genetics is not purely economic. The breeders demand recognition, as well as the ability to continue working with their own lines without others obtaining legal control of their genetics.
Many are reluctant to veto and commercialize their work. Cannabis philosophy has always moved to other places. Well, every breeder is aware that to create something new he must start from at least two previous varieties; and that the varieties that we know today would not exist if the previous genetics had not been shared. At this point in the film, it is impossible to determine what is new or who owns what.
But you have to be realistic, the market is going to be regulated sooner or later and, if the breeders do not bet on patents, they leave the door open for corporate interests to override them: they will lose their intellectual property and will be excluded from the industry.
Near Future of Cannabis Copyright
It seems that the most immediate future goes through genetic documentation. In the USA there are already companies that are dedicated to it. It is the case of Phylos Bioscience, at Portalnd, a genetic laboratory working to unravel the evolutionary history of cannabis, foster a viable industry, and protect variety diversity. From a sent sample they carry out genetic identity tests, identify the plant, its sex and its characteristics; they trace its origins and show how it is related to other varieties.
This type of analysis can be very useful for both consumers and producers. For the former it is crucial to know exactly what is being bought and what is being consumed. For breeders it can become a valid way to protect your varieties, document them and make sure that no one else can patent your plants, since all the registered data become public domain. All those people who work to achieve interesting, unique or medicinally interesting varieties can genetically certify their plants, without having to enter into patent fights or veto their use to the next generations of breeders.
However much for or against we are, the immersion of large companies in the cannabis market is already a reality. On the one hand, these companies can play a very important role in the process of destigmatization of marijuana; on the other, small producers may be susceptible to being left out of the market.
Is it good for the evolution of the cannabis industry? The controversy is served. Tradition, industrial exploitation, product quality, the benefit of consumers or patients, regulation … There are many factors that must be balanced. The process is going to be tough and controversial. Meanwhile, breeders of the world, protect yourselves as best you can.
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