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FARMERS’ RIGHTS UNDER PLANT VARIETY PROTECTION (PVP) LEGISLATION IN INDIA: A CRITICAL STUDY

Ms. Sophy K.J.* 

This study intends to analyze ‘why we need a law that concern with rights of farmers’ and whether such a protection helps in conservation of protection of plant varieties in India. Farmer is the first link in the food security especially in countries like India where 70% of population engaged in agrarian based activities. The vast majority of farmers still act as stewards and innovators of genetic diversity[1]. Recognizing and rewarding them is significant considering their vast practical knowledge in conserving and improving plant genetic resources to adapt to climate change and environmental changes. Therefore farmers’ knowledge, skill and innovation have to be protected in the parlance of Intellectual Property Rights. The study will also look into the history of evolution of concept of farmers’ rights in India till its materialization. It is highly significant to look into reasons behind adoption of a sui generis legislation in India for protection of plant varieties. Indian legislation has become a history by synchronizing both farmers’ rights and breeders’ rights in our legislation. This paved way for protection of traditional plant varieties and wild species disappearing due to inadequate protective measures. However this study is also an endeavor to point out inadequacies in the legislation in providing full proof protection to the farmers’ agricultural knowledge in India.

  1. INTRODUCTION

Farmers’ rights are very crucial in developing countries like India to ensure present and future food security where the farmers are majorly responsible for development of vast genetic diversity resources through keen observation and intelligence. The farming communities across the world have been following, since time immemorial, the practice of sharing of knowledge and resources. Sharing of seeds among farmers, for example, constitutes perhaps the most important part in these traditional agricultural practices. But unfortunately the developers of this wealth remained invisible in trade and commerce and their resources have been utilized by Private Agrarian Sector. They were not either consulted or benefited or not even informed while detraction of their centuries’ worth toil and results. With the advent of Intellectual Property Regime, ownership rights vested with the Multi-national Companies (MNCs). They deliberately used the resources of poor and uneducated farmers of developing nations for their monetary gain. The poor farmer remained poorer in this bargain and they lost their means of livelihood as they have to buy seeds at fixed prices maintained by the private companies. This sudden shift from ‘commons’ approach to ‘anti-commons’ approach has affected socio-economic political status of the farmers. This point is analyzed in ‘Conceptual Analysis of ‘Farmers’ Rights’.

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Immediately after realization of Gregor Mendel’s contribution to plant hybridization, the more technology and infrastructure convenient western nations developed commercial breeding and established monopoly on plant varieties. The debate between developed nations and developing nations reached at a turning point when Food and Agriculture Organization came up with a Commission on Plant Genetic Resources set up under Food and Agriculture Organization to study about the materialization of the concept ‘farmers’ rights. TRIPs (Trade Related Aspects of Intellectual Property) Agreement to which India is a signatory mandated minimum protection for ‘technologically developed plant varieties’[2].

  1. CONCEPTUAL ANALYSIS-FARMERS’ RIGHTS

For thousands of years, the farmers have been engaged in the process of selection and conservation of plant varieties. As a result diverse varieties of each crop plant are seen in developing nations, especially in India. Though plant varieties are developed according to climatic conditions at each place, the dissemination of seed varieties have largely contributed to increase knowledge and skill in farming. In India farmers are the source of supply of both seed and food commodities and substantial amount of these requirements are met through ‘farmer-to-farmer exchange’[3]. Thus farmer is also the breeder, conserver and distributor of not only seed but also information about agricultural practices. Therefore food security and genetic diversity completely depends upon farmers.

The scientific development of new crop varieties has started only before 100 years whereas the agriculture is there from dawn of civilization. In western countries, the ownership rights over new varieties started much prior to the establishment of UPOV in 1961. The Research and Development facilities in developed countries resulted in innovation of hybrid varieties. The Intellectual Property Regime that incentives the innovator for innovation favoured the breeder to establish and extend their activities to developing countries where public-sector and farmer oriented researches are going on. After globalization and opening up of trade barriers the Transnational Companies entered the Indian market and utilized genetically diverse natural resources for deriving their new varieties. The extraction or exploitation of developing countries’ genetic resources was largely criticized at international level. Food and Agricultural Organization appointed a Commission to study about the concept of farmers rights. The increased biodiversity misappropriation by developed nations forced to recognize and reward farmers for their centuries old practices of saving, selling, using, exchanging and propagating seed that have commercial value.

The perceptions regarding farmers’ rights can have different approaches. While formulation of rights of farmers, the first evolved is ownership rights approach[4].  The recognition and acceptance to the plant varieties that have commercial value cannot be denied IPR protection. Farmers deserve rights because they innovate, improve and develop varieties and contribute to agricultural innovations. In developing countries, there is no traditional division between breeders and farmers. Free exchange of seed between farmers helps them to accumulate knowledge about the growth and qualities of seed in different fields in different climatic conditions. Denying protection to farmers’ plant varieties is like not rewarding intellectual contribution of farmers. Therefore TRIPs which deals only with ‘technologically developed plant varieties’ would not be in compliance with philosophy of Intellectual Property Rights to incentivise the contributor of knowledge. Moreover, in the absence of protection of farmers’ knowledge we have witnessed serious issues such as drain of knowledge from farmers to private sector, monopolization of the mightier MNCs on existing varieties and exclusion of others to avail, access and distribute seeds.

As a conserver of rich ago-biodiversity, the stewardship rights[5] should be granted to the farmers to ensure that they are prior consulted before acquisition of their variety by others. The said approach is a realization of the farmer-farmer-exchange system of seeds to conserve diversities. It has been proved that sharing and exchange practices have kept the bio-diversity of India rich and wealthy[6]. The inclusion of only ownership approach may even impede exchange system among farmers and it may result in confinement of benefits to him/her. The rights as a conservator should not curtail the farmers’ practices of continuing generation of diverse crops. There is wide criticism against criteria of ‘uniformity’ in plant variety protection whereby the production of diverse genotypes of plants is not encouraged.

The other perception is that farmers’ rights should go beyond ownership and stewardship rights and they should be provided with development right to access to resources such as technology, seeds at lower prices, low interest credit etc.[7] Legal and economic costs of establishing the system, the difficulties of legally claiming rights for farmers, and the limited returns from plant variety protection itself are some of the reasons why IPR-based Farmers’ Rights approaches are unlikely to provide significant economic returns to farmers[8]. Therefore monetary gain from royalty payments the farmers’ looks for economic support to access to new resources. There is also a view that opening up of Indian markets resulted in import of seeds and Indian agriculture varieties were underestimated and replaced in Indian fields under the influence of foreign seed companies.[9] The reasons for recent GDP decline of Indian agriculture has its roots in farmers’ inability to cop up with use of technology, lack of infrastructure and awareness about their rights. An analysis of economic changes due to assertion of farmers’ rights could be studied to rather strengthen farmers’ livelihood and agriculture growth. There is also a view that ‘anti-commons’ approach towards natural resources has resulted in underutilization of resources and in turn economic downfall[10]. The ownership over resources either by farmers or by breeders promoted the resource to keep one’s own and this affected the practice of free flow of knowledge and resources.

In general outlook, the idea of farmers’ rights denotes in simple terms the rights of farmers over their resources and knowledge. The term ‘resources and knowledge’ can have wide meaning and scope in common parlance. It may encompass a number of concerns related to all important factors of agricultural production such as land, water, seeds, traditional agricultural practices, harvest and traditional agricultural knowledge. However, the contemporary legal regime does not address all these aspects of farmers’ rights. In fact, farmers’ rights as a legal norm have defined boundaries. Broadly there are two major issues that are addressed by the concept of farmers’ rights in the contemporary legal context. They are: plant genetic resources and traditional agricultural knowledge.

2.1.North-South Conflict for conferring IPRs on Farmers

One of the problems to be discussed is the nature of Intellectual Property Rights to protect the interests of farmers. This subject matter attains wide political attention. The developing nations started commercial breeding immediately after rediscovery of Mendel’s laws of inheritance in 1900 and established commercial companies and attributed monopoly rights over their hybrid seeds[11]. Intellectual property rights (IPR) applied to seeds gives breeders an exclusive monopoly right in relation to the seed. Under patent law, that monopoly right is very strong. It will generally prevent anyone from using, selling or producing the seed without the patent holder’s permission[12]. In developing countries, farmers domesticated and facilitated the process of crop adaptation to varied eco-systems and practiced diversity farming for sustainable agriculture[13]. Therefore absolute IP (Intellectual Property) Rights on Breeders recommended by developed nations could only leave the farmer with no legal status as their traditional agricultural practices do not satisfy the originality, novelty and uniformity requirements of IP law.

An issue closely related to farmers’ rights is the recognition and protection of the plant-related knowledge, innovations and practices of indigenous and local communities[14]. It has been proved through many cases that traditional knowledge of farmers have been illegally used and later utilized for developing derivative varieties of plants and subjected to monopolization by breeder companies[15]. The non-disclosure of origin and no sharing of benefits let the farmers’ knowledge taken for granted by the MNCs. When the biopiracy issue was taken up globally, the Private Seed Companies, Monsanto and other six botech MNCs made an entry into developing nations under the slogan ‘biotechnology and poverty[16] offering quality seed like drought-tolerant, resistant to insects and weeds and able to capture nitrogen from the air. In the issue of Bt Cotton, there were wide protests against Monsanto for using ‘terminator technology’ on seeds to cause second generation sterile for reproduction. The method of farmers to collect seed from their harvests for re-sowing was deprived and their costs of farming increased as they have to pay every time to buy seed for cultivation.  Indian (domestic) Seed companies reverse engineered and after modification on the same hybrid variety produced ‘illegal Bt Cotton’ seeds[17] which were highly received by farmers considering its resistance to bollworm attack and low price compared to Monsanto. This shows that the farmers in developing nations never keeps anti-technology attitude but seed companies should take a stand considering farmers access to resources and food freedom.

  1. HISTORY OF POLICY MAKING IN INDIA

India’s policy on Plant Variety Protection witnessed major changes by adoption of New Seed Policy of 1988 to allow large Indian and multinational (MNC) companies to invest in the production of hybrid seeds and agricultural biotechnology.[18] This allowed import of seeds and collaboration in agriculture research with foreign companies. Thus subsidiaries of foreign multinationals found a strong root in India and formed Seed Association of India (SAI) by 1985. A conference conducted by SAI became a breakthrough framing legislation for protection of plant varieties. Several NGO’s and farmer groups voiced against sole grant of rights to breeders and demanded to consider the agriculture environment as a special case and utilize the flexibility provided by TRIPs. The first draft of the Bill was formulated in 1993/94 that received wide criticism for conforming to UPOV by granting rights to plant breeders. Also this draft was criticized for not having incorporated ownership rights perception under farmers’ rights. The first bill provided consideration to public sector by allowing rights over ‘extant variety’ by registration. This draft contained clauses on community rights to benefits out of use of their genetic material and farmers’ rights to save, use, exchange, share and sell propagating material of seed except sale of branded seed. But there was no concept of farmers’ ownership rights through registration. Considering strong protest from both NGOs and industry, the Ministry of Agriculture prepared second draft in 1996 and a third one in 1997. The third draft contained Farmers’ Rights in the title but it was again criticized by NGOs pointing that benefit sharing was vague under the bill, there were no farmer’s representatives in the Authority, and there was no system for registering farmers’ varieties. The fourth draft was introduced in Parliament in 1999 which was sent to a Joint Parliamentary Committee to redraft the bill considering opinions of NGOs, industry, scientists and farmers. The final and fourth version of the bill was introduced in 2001 and became law. The Act found new chapter on registration of farmers’ varieties and detailed provision on farmers’ rights. NGOs accepted the bill as it provided for a mechanism for granting protection for farmers’ varieties on par with breeders’ varieties[19].

India is one of the few countries having specific legal provisions addressing farmers’ rights. The concept of farmers’ rights has become an explicit part of Indian legal system through the Protection of Plant Varieties and Farmers’ Rights Act, 2001. While this can be considered as a landmark as a beginning, farmers’ rights provision under the Act has invited several critique both from a conceptual and implementation point of view. In this back ground, this essay seeks to explain the nature and scope of farmers’ rights in India and further captures and key critique relevant for further meaningful development of the concept.

  1. SALIENT FEATURES OF THE ACT

By considering farmers’ rights as a kind of Intellectual Property through Indian legislation, it is a safe platform for Indian farmers’ to enforce their rights globally. For decades, India did not allow patents on seeds or plants and had no system of protection for plant varieties[20]. India’s legislation for protection of Plant Varieties known as ‘Protection of Plant Varieties and Farmers Rights Act, 2001’ chose sui generis option as provided in TRIPs. India is one of the few countries having specific legal provisions addressing farmers’ rights. Since farmers’ rights are primarily the concern of developing countries, an analysis of farmers’ rights regime in India has particular relevance.

The significant part of this legislation is Chapter VI that enunciates ‘Farmers’ Rights’. The PVP Act tends to recognize and protect farmers’ practices. It is provided in the Act that farmers have the right to ‘save, use, sow, resow, exchange, share or sell’ farm produce including seed of a protected variety in the same manner as they were entitled prior to the PVP Act. This indicates insertion of the concept of stewardship (conservatorship) rights. A farmer who is engaged in the conservation of genetic resources and its improvement through selection and preservation is entitled to rights to reward under this Act. However, farmers are not entitled to sell the seed of a variety protected under the Act[21]. This means, out of the bundle of rights provided to protect farmers’ practices; the right to sell cannot be invoked in the case of seeds of a variety protected under the Act.

The rights such as right to register new variety and farmers’ variety treat the farmer at par with breeder. Registration procedures are applicable to farmers as well. However, the application for registration of farmers’ varieties does not require documents such as affidavit to the effect that the variety does not contain any gene or gene sequence involving terminator technology, complete passport data of the parental lines from which the variety has been derived and statement describing briefly the characteristics of novelty, distinctiveness, uniformity and stability[22].

The concept of reward for farmer’s contribution to the development of a commercial variety could be seen as a part of a general design of benefit sharing under the PVP Act. The beneficiaries are farmers who contributed to the development of germplasm. He transfer of germplasm for commercial use entitles them for reward in monetary form.  The amount to be paid in the course of benefit sharing is to be determined by considering the extent and nature of the use of genetic material of the claimant in the development of a new variety and the commercial utility and market demand for a new variety[23].

The other right provided is right to claim compensation. The right to claim compensation to village or local community is granted for their contribution to the evolution of a variety registered under the Act. An important feature of this right is that it is a group right or a community right. Consequently, the principle of locus standi is diluted in putting claim for compensation. This means the right holding village or local community need not necessarily lodge claim for compensation. The PVP Act permits any person, group of persons or any governmental or non-governmental organisations to file the claim on behalf of the right holding community[24]. This is particularly relevant in the case of farmers given the probable incapacity of farmers in various matters related to lodging claim for compensation before the appropriate authority such as satisfying the technical requirements and follow up of registration of new varieties.

The right to claim compensation is available to farmers in another situation also, that is, if they purchase a registered variety. In case a registered variety has been sold to farmers, the breeder of such variety has a duty to disclose the expected performance of the variety under given conditions. If the variety fails to perform as per the disclosure, concerned farmers can claim compensation from the breeder[25].

The other favourable factor is protection in the case of innocent infringement. It is a positive protection for poor, illiterate farmer who has alleged to have infringed the rights of others being unaware of such rights. There are fee exemptions during registration and litigation proceedings before the authority, registrar or the tribunal or the High Court under the Act[26].

The institutional mechanisms for protection of farmers rights are Protection of Plant Varieties and Farmers’ Rights Authority (hereafter ‘the Authority’)[27] and the Gene Fund[28]. It is explicitly mentioned in the Act that the general function of the Authority includes the protection of the rights of farmers[29] and to ensure that the seeds of varieties registered under the Act are available at reasonable price and reasonable quantity[30]. Gene fund regulates financial matters such as compensation and benefit sharing.

There are public interest provisions like compulsory licensing, non-registration of varieties that affect public order and morality and are injurious to human, animal, plant life and health[31]. To safeguard adverse effects of modern technology, Explanation of Section 29 (3) of the Act prohibits registration of any variety which contains genetic use restriction technology (GURT) which is otherwise known as ‘terminator technology’ that makes the next generation sterile for reproduction.

  1. INADEQUACIES OF THE LEGISLATION

An umbrella criticism that the Act faced was that the legislation was drafted in line with model adopted in UPOV[32] and there are no express provisions in the law to protect the customary rights of the farming community in India[33]. There is a wide concern with the Act that it treats farmers at par with commercial breeders. That means centuries old agricultural practices are given the same status as that of commercial breeding. There is difference between the two as breeding is an activity based on research and development happens inside multinational labs whereas farmers’ knowledge is a team effort developed through keen observation and manual calculation in open nature. Further the registration procedure included under the Act demands both farmer and breeder to satisfy the criteria of novelty, distinctiveness, uniformity and stability to qualify for protection[34]. So a farmer is obliged to prove his variety scientifically for protection under the Act.

The PVP Act has received mixed comments and responses in the context of farmers’ rights from the academics and thinkers regarding its normative and pragmatic value. While some hails it as a landmark being the first of its kind across the world, some others critique it as incapable of producing any significant outcome for farmers[35].

The appreciation of the PVP Act, mainly, is based on the fact that farmers’ rights have been incorporated as a separate chapter recognising some of the core rights of farmers. Whereas the critique is mainly based on the fact that the PVP Act treats farmers at par with modern commercial breeders. This approach does not take into consideration the essential difference in working, preferences and concerns between modern commercial breeding and the traditionally farming system. These two systems rely on and promote different knowledge systems and identify innovations differently and reward inventors in different ways[36]. This could be explained with two points.

First, the modern commercial breeding industry seeks rewards mainly in the form of financial benefits, whereas the established farming practices do not concentrate exclusively on financial incentives. Second, knowledge produced through farming practices cannot easily be attributed to a single farmer or a group of farmers. To put it another way, farmers’ knowledge is often less individualistic than scientific knowledge produced in the laboratory[37].

It could be seen that the PVP Act does not consider this essential difference. The procedure prescribed under the Act for registration of farmers’ variety could be taken as a best example to establish this gap. Even though the PVP Act does not require farmers to comply with all conditions prescribed under the Act, farmers need to produce a declaration as to the lawful procurement of genetic material or parental material to register a farmers’ variety. It has been argued that this requirement does seem to be unrealistic given the farming practices followed traditionally in this country[38].

It has also been argued that the equal treatment of farmers and commercial breeders under the PVP Act with regard to the registration of new varieties would do little good to farmers. Because, various conditions required to be followed in the registration of a new variety requires technical expertise. Given the social and economical conditions of majority of farmers in India, this provision would have little effect when it comes to implementation[39].

The socio-economic condition of farmers will also be a matter which likely to affect the benefit sharing mechanism envisaged under the PVP Act. The PVP Act requires farmers to be vigilant and make application before the authority situated most likely far away from their place. To counter this implication, the PVP Act presupposes that non-governmental organisations would take care of this matter. However, this does not seem to be sufficient, especially given the fact that the socially and economically under privileged farmers will have to fight against big corporates having huge financial and human resources[40].

Regarding the procedural and administrative aspects, there could be three major critique of the PVP Act. First, the PVP Act envisages that the revenue generated from the use of farmers’ variety is to be maintained by the Gene Fund and part of this money will be used for the administrative expenses of the Gene Fund. Being this a responsibility of the government, it could be argued that the whole amount should be used for the benefit of farmers. Second, the PVP Act provides for compensation to farmers from commercial breeders if the seeds purchased by farmers failed to yield as declared by the breeder. Regarding the quantum of compensation, the PVP Act gives complete discretion to the Authority. In this scenario, it could be suggested that there should be some guidelines as to the quantum of compensation such as ‘it should be at least twice the projected harvest value of the crop’[41] . Third, the PVP Act provides protection to farmers from innocent infringement of breeders’ rights. Here the critical point is that the burden of proof lies on farmers. It is for the farmers to prove that the infringement was ‘innocent’. This could be considered as a deviation from the general principle that the duty to prove lies on the person who alleges the violation of rights. Moreover, the PVP Act does not provide any particular reason for this deviation.

Another major critique of farmers’ rights as provided under the PVP Act is related to the classic property rights of farmers. Section 39 of the Act provides that farmers are not allowed to indulge in commercial exchange of seeds of a variety protected under the Act. As per the classical property concept, a farmer has absolute control over the seeds purchased by him. Therefore, the right to exchange such seeds, whether in a commercial or non-commercial manner, could be considered as inevitably emanating from the classic property right concept. This right has been curtailed or restricted by the PVP Act. Moreover, it is a fact that majority of seed requirement in India is met by farmer-to-farmer exchange[42]. It could be, therefore, argued that the PVP Act does not provide sufficient reason for restricting this classic property right and its implications upon agricultural economy do not seem to have considered adequately.[43]

Broadly, the major reason for these seemingly unrealistic normative and procedural manifestations could be attributed to the fact that the PVP Act was originally designed for the registration of new variety bred by modern corporate breeders. Farmers’ rights were included subsequently at the instance of the Joint Parliamentary Committee without changing the rest of the provisions of the framework[44]. Therefore, inconsistencies and contradictions are very likely both at the conceptual and procedural level. Hence, it could be suggested that there should be separate norms and procedures for the protection of farmers’ rights and for the registration of farmers’ variety[45].

Further, the presence of the Biodiversity Act makes the legal and institutional framework addressing farmers’ rights in India multiple and complex in nature. This complexity is particularly apparent in the case of access and benefit sharing. A brief comparative analysis of two statutes could reveal that there is overlapping and differences between these two statutes. This might lead to obscurity at the level of implementation and realisation of farmers’ rights also. Most importantly, there are three issues relevant to farmers’ rights in this regard.

First, it is most likely that access to plant genetic resources will be regulated under the Biodiversity Act in accordance with mutually agreed terms with the participation of all stake holders.[46] This reveals an unclear scenario where a person or corporation intends to develop a new plant variety by using a plant genetic resource(s) in India should seek prior permission from the National Biodiversity Authority in consultation with farmers and local communities and the consequent new plant variety will be registered under the PVP Act. Since, the PVP Act also contains norms regarding benefit sharing, it is most likely that farmers have to apply afresh before the Protection of Plant Varieties and Farmers’ Rights Authority for benefit sharing. Here the critical question is the relevance and legal validity of terms and conditions entered into as part of approval by the National Biodiversity Authority regarding benefit sharing when a farmer or a farming community approach the Protection of Plant Variety and Farmers’ Rights Authority for benefit sharing. Another problem arise in this context is the presence of more than one forum to address single issue.

Second issue is related to the difference in the scope of benefits. It is already noted that the PVP Act envisages only monetary benefits. Whereas the Biodiversity Act enlists a number of benefits other than monetary compensation. This raises a number of questions such as whether farmers can approach two different statutory authorities to claim benefits related to a single issue and whether the registered owner of the plant variety under the PVP Act can be held liable to share benefits under the Biodiversity Act on the basis of the instrument of prior approval?

Third issue is related to the difference in the ways in which monetary benefit is to be dispensed. The PVP Act does not provide any direct rights in this regard by providing that monetary compensation is to be deposited in the Gene Fund. At the same time, the Biodiversity Act, to some extent, recognises the right of the claimers to receive monetary compensation directly. Here again the question comes whether farmers can choose the forum to claim monetary compensation? Even if this is possible at a theoretical level, it may be very difficult to happen in practice given the socio-economic condition of most of the farmers in India.

A probable solution to these overlapping and conflicting regimes is an effective co-ordination between two statutory frameworks. This could be facilitated by a new regulation or guideline on access and benefit sharing by the central government by incorporating all relevant norms such as prior informed consent, mutually agreed terms and an expanded list of benefits. The impediment of socio-economic conditions of farmers and local communities could be addressed by envisaging a pro-active role for statutory bodies to ensure that relevant norms are followed in meaning and spirit. In fact the Biodiversity Act already follows this approach by entrusting the duty on the Biodiversity Authority to ensure mutually agreed terms between the user, local communities and claimers.

  1. FUTURE CHALLENGES TO THE LEGISLATION

India’s Plant Variety Protection Legislation should be capable to scrutinize the private seed companies acquiring protection over India. Free Trade Agreements open the doors to these MNCs to establish their roots in developed countries. Industrialized countries, particularly the US, are now seeking to get even better conditions for the realisation of far-reaching exclusive claims over living materials to safeguard the commercial interest of their biotechnology industry through FTAs with developing countries like India and African nations[47]. The FTAs demand the trade partners with the US to conform their plant variety legislation to the UPOV standards wherein breeders’ rights are protected. Bharatiya Kisan Union, the South Indian Coordination Committee of Farmers’ Movements (SICCFM) like organizations are in the forefront of protests against EU-India FTA, Japan-India FTA and India-ASEAN FTA.FTAs demand more import of agriculture commodities to India and for adoption of stringent north IPR norms that will shrink the rights of farmers. The study indicates that in EU-India FTA, EU has a clear advantage in the export of dairy products, fruits and vegetables, seeds, cereals, edible oil, cereal preparations, spices, confectionary, nuts and cashew nut and cocoa products[48]. Therefore the Act should contain a provision to the extent that any trade agreement with foreign nations adversely affects the varieties protected and produced by the Indian farmers and their livelihood.

In the changed scenario of technological advancement and enhanced food production, the Seed Bill, 2004 is now under discussion to replace Seed Act, 1966. Section 2.7 of the Bill defines the term dealer as a “person who carries on the business of buying and selling, exporting, or importing seed, and includes an agent of a dealer”. This definition treats farmers as traders[49]. The proposed Seed Bill also introduces mandatory registration for all seeds for sale[50]. Thus the farmers will be hounded to run about for registration if they grow and exchange seeds. Section 43 though grants resembling rights those granted under Section 39 of PPV&FR Act, 2001, the restrictions that branded seeds cannot be sold and the seed has to be in conformity with minimum limit of germination, physical purity and genetic purity imposes additional conditions on farmers shoulders. And reluctantly, the Seed Bill again gives an idea of ‘forum shopping’ in case of seed failure in the field to claim compensation under the Consumer Protection Act whereas under Act, 2001 the remedial body is PVP authority.

  1. CONCLUSION

The present legislation to protect plant varieties introduced an ‘anticommons’ approach in the case of genetic bio-diversities in India. Though the Act provides ownership rights to both farmers and breeders, the MNCs have stronger say while poor farmers would struggle to assert their legal claim. Considering the socially, economically and educationally weak situations of the local and tribal communities, without explicit provisions to protect customary agricultural practices and their varieties, the Act would fail to implement one of its objectives to protect the interest of traditional farming communities and farmers. In reality, the inclusion ‘Farmers’ Rights’ would remain as a decorative title in the Act.

In the case of benefit sharing, the process should be clearly laid down and case-by-case negotiation must be held as the value of each plant variety varies according to its commercial viability. There is healthy collaboration for research between public sector and farmers. So if the law could provide incentives for sharing of knowledge that would promote research and innovation. At the same time the farmers must have access to information about the technology used in hybridization. Express Research Exemption has to be provided to farmers also. Along with this to strengthen the small and marginal farmers, they should be provided with access to infrastructure and interest reductions in credit and other developmental accessories. Farmers must be assisted with advisors during negotiation process of access and benefit sharing. For farmers and village communities, awareness generation and information empowerment is a must through vernacular press, radio, television and the Internet[51].  To ascertain the ownership rights of farmers the village/grass root level democratic institutions should cooperate and if possible notify the varieties belong to each farmer in the Panchayat.

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Government of India, REPORT OF THE JOINT COMMITTEE ON THE PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS BILL, 1999, 2000

Government of India, THE PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS ACT, 2001, Act No. 52 of 2001 New Delhi: Akalank Publications, 2001

M.S. Swaminathan Research Foundation (1994b). BREEDERS’ AND FARMERS’ RIGHTS: AN INTERDISCIPLINARY DIALOGUE (1994). Background Papers. Madras, MSSRF, Centre for Research on Sustainable Agricultural and Rural Development.

PPV&FR Act, 2001

The Seed Act, 1966

The Seed Bill, 2004

TRIPs Agreement, 1995

Shalini Bhutani and Kanchi Kohli  PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS ACT, 2001 JUST LEAVE THE SEED ALONE, Hindu Business Line (Chennai), 12 March 2004

FARMERS’ PRIVILEGE UNDER ATTACK, GRAIN, June 2003, URL:https://www.grain.org/briefings/?id=121

M. Smale et al., BENEFITS FROM GIVING AND RECEIVING GENETIC RESOURCES: THE CASE OF WHEAT, Plant Genetic Resources Newsletter, 127, 2001

TROUBLE IN THE RICE BOWL, Seedling, April 2003, URL:- https://www.grain.org/seedling/?id=235

* Working as Research Associate at National Law University, Delhi

[1] Regine Anderson, PROTECTING FARMERS’ RIGHTS IN THE GLOBAL IPR REGIME: CHALLENGES AND OPTIONS, Trade Insights, 2007, Vol 3, No 2, pp. 30-32.

[2] Dr. Philippe Cullet and Radhika Koluru, PLANT VARIETY PROTECTION AND FARMERS RIGHTS: TOWARDS A BROAD UNDERSTANDING, 24 Delhi Law Review 2002 (2003), p.41

[3] Anitha Ramanna, INDIA’S PLANT VARIETY AND FARMERS. RIGHTS LEGISLATION: POTENTIAL IMPACT ON STAKEHOLDER ACCESS TO GENETIC RESOURCES, EPTD Discussion Paper No. 96, Environment and Production Technology Division International Food Policy Research Institute, January 2003

[4] Dr. Philippe Cullet and Radhika Koluru, PLANT VARIETY PROTECTION AND FARMERS’ RIGHTS:TOWARDS A BROADER UNDERSTANDING, 24 Delhi Law Review 2002 (2003), p. 41

[5] To maintain and preserve the genetic bio-diversity

[6] S. Bala Ravi, MANUAL ON FARMER’S RIGHTS, MSSRF, 2004

[7] Dr. Anitha Ramanna, FARMERS’ RIGHTS IN INDIA: A CASE STUDY, Farmers’ Rights Project, FNI report 6/2006, The Fridtjof Nansen Institute 2006

[8] ibid

[9]Renuka Mahadevan, PRODUCTIVITY GROWTH IN INDIAN AGRICULTURE: THE ROLE OF GLOBALIZATION AND ECONOMIC REFORM, Asia-Pacific Development Journal, Vol. 10, No. 2, December 2003

[10]J. Buchanan and Y. Yoon, SYMMETRIC TRAGEDIES: COMMONS AND ANTICOMMONS, Journal of Law and Economics, XLII, April, 2000.

[11] Supra at 7

[12] FARMERS’ PRIVILEGE UNDER ATTACK, GRAIN, June 2003, URL:https://www.grain.org/briefings/?id=121

[13]Andrew Mushita, FARMERS RIGHTS AND AGRICULTURAL BIODIVERSITY: WHAT RIGHTS DO FARMERS HAVE IN TERMS OF THEIR PLANTING MATERIALS, COMMUNITY TECHNOLOGY DEVELOPMENT TRUST (CTDT), Zimbabwe

[14] T. Cottier and M. Panizzon. LEGAL PERSPECTIVES ON TRADITIONAL KNOWLEDGE: THE CASE FOR INTELLECTUAL PROPERTY PROTECTION, Journal of International Economic Law, 2004, pp. 371–399.

[15] US patent on Indian variety basmati rice, Australian claim to Iranian and Indian Chickpea variety, US claim on Malaysian variety ‘Tongkat Ali’, University of Massachusettes patent on Philippine Yew tree, US claim over Thailand variety jasmine Rice etc.

[16] Dr. Anitha Ramanna, INDIA’S POLICY ON GENETICALLY MODIFIED CROPS, Asia Research Centre Working Paper 15, 2006

[17] Case was registered against Navbharat Seeds India Ltd. by Monsanto India against deriving a new variety out of Monsanto produced Bt Cotton seeds

[18]Niranjan C. Rao, PLANT VARIETY PROTECTION AND PLANT BIOTECHNOLOGY PATENTS: OPTIONS FOR INDIA, Allied Publishers Ltd., New Delhi 1990

[19] Supra at 3

[20]Dr. Anitha Ramanna, INDIA’S POLICY ON IPRS AND AGRICULTURE: RELEVANCE OF FAO’S NEW INTERNATIONAL TREATY, Economic and Political Weekly, Vol. 36, No. 51 (Dec. 22-28, 2001), pp. 4689-4692, URL:- https://www.jstor.org/stable/4411493

[21]The Protection of Plant Varieties and Farmers Rights (PPV&FR) Act, 2001, Sec. 39 (1) (iv) : A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into

force of this Act :

P r o vided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.

Explanation : For the purposes of clause (iv), “branded seed” means any seed put in a package or any other container and labeled in a manner indicating that such seed is of a variety protected under this Act.

[22] The PPV & FR Act, 2001, Section 18 (1) (i) says that the particulars such as affidavit, filled form, passport data of parental line, brief description of the material and declaration regarding its lawful acquisition is not required for registration of farmers’ variety.

[23] The PPV & FR Act, 2001, Section 26 (5) : While disposing of the claim to benefit sharing, the Authority shall explicitly indicate in its order the amount of the benefit sharing, if any, for which the claimant shall be entitled and shall take into consideration the following matters, namely :-

 (a) the extant and nature of the use of genetic material of the claimant in the development of the variety relating to which the benefit sharing has been claimed.

( b) the commercial utility and demand in the market of the variety relating to which the benefit sharing has been claimed.

[24] The PPV & FR Act, 2001, Section 41 (1): Any person or group of persons (whether actively engaged in farming or not) or any governmental or nongovernmental organization may, on behalf of any village or local community in India, file in any centre notified, with the previous approval of the Central Government, by the Authority, in the Official Gazette, any claim attributable to the contribution of the people of that village or local community, as the case may be, in the evolution or any variety for the purpose of staking a claim on behalf of such village or local community.

[25]The PPV & FR Act, 2001, Section 39 (2): (2) Where any propagating material of a variety registered under this Act has been sold to a farmer or a group of farmers of any organization of farmers, the breeder of such variety shall disclose to the farmer or the group of farmers or the organization of farmers, as the case may be, the expected performance under given conditions, and if such propagating material fails to provide such performance under such given conditions, the farmer or the group of farmers or the organization of farmers, as the case may be, may claim compensation in the prescribed manner before the Authority and the Authority, after giving notice to the breeder of the variety and after providing him an opportunity to file opposition in the and after providing him an opportunity to file opposition in the prescribed manner and after hearing the parties, may direct the breeder of the variety to pay such compensation as it deems fit, to the farmer or the group of farmers or the organization of farmers, as the case may be.

[26] The PPV & FR Act, 2001, Section 44: A farmer or group of farmers or village community shall not be liable to pay any fees in any proceeding before the Authority or Registrar or the Tribunal or the High Court under this Act or the rules made thereunder.

[27]The PPV & FR Act, 2001, Section 3: The Central Government shall, by notification in the Official Gazette, establish an Authority to be known as the Protection of Plant Varieties and Farmers’ Rights Authority for the purposes of this Act.

[28] The PPV & FR Act, 2001, Section 43: The Central Government shall constitute a Fund to be called the National Gene Fund.

[29]The PPV & FR Act, 2001, Section 8:  It shall be the duty of the Authority to promote, by such measures as it thinks fit, the encouragement for the development of new varieties of plants and to protect the rights of the farmers and breeders.

[30] The PPV & FR Act, 2001, Section 47 says that ‘compulsory license’ may be granted by the authority when the propagating material or seed is not available to the public at reasonable price and quantity.

[31] The PPV&FR Act, 2001 Section 29 (1): No registration of a variety shall be made under this Act in cases where prevention of commercial exploitation of such variety is necessary to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment.

[32] Prof. N.S. Gopalakrishnan, PROTECTION OF FARMERS’ RIGHT IN INDIA: NEED FOR LEGISLATIVE CHANGES, Cochin University Law review, 2001, pp.105-116

[33] Vandana Shiva, Protection of Plant Varieties in India, 1996; Usha Menon, “Trips Negotiation and Indian Agriculture”, JSCI IND RES, Vol 52 (1993), p.296

[34] Section 19

[35] Supra at 32

[36] Philippe Cullet,REVISION OF THE TRIPS AGREEMENT CONCERNING THE PROTECTION OF PLANT VARIETIES, The Journal of World Intellectual Property (1999), 2 (4): 617-656.

[37] Ibid

[38] Supra at 32

[39] Philippe Cullet, FARMERS’ RIGHTS IN PERIL, Frontline, 1 April 2000

[40] Supra at 32

[41]Suman Sahai, PLANT VARIETY PROTECTION AND FARMERS’ RIGHTS LAW, Economic and Political Weekly, 36 (35):3338-3342.

[42] Niranjan Rao, INDIAN SEED SYSTEM AND PLANT VARIETY PROTECTION, Economic and Political Weekly, 2004, 39(8): 845-852.

[43] The classic property rights concept and its significance in the case of farmers’ rights have been discussed in detail in the fourth chapter.

[44] Biswajit Dhar and Sachin Chaturvedi, INTRODUCING PLANT BREEDERS’ RIGHTS IN INDIA: A CRITICAL EVALUATION OF THE PROPOSED LEGISLATION, Journal of World Intellectual Property, 2005, 1 (2): 245 – 262.

[45] Supra at 32

[46] It is to be noted that this provision shares the norms provided under the FAO Treaty which envisages right to participation as an important content of farmers’ rights.

[47]Jakkrit Kuanpoth, NEGOTIATIONS TOWARD A FREE TRADE AREA: US DEMANDS FOR GREATER IPR PRIVILEGES, URL:- www.grain.org/rights/?id=28

[48] Roopam Singh and Ranja Sengupta, THE EU INDIA FTA IN AGRICULTURE AND LIKELY IMPACT ON INDIAN WOMEN, Centad, Paper-III,December, 2009

[49] Ashok B. Sharma, DRAFT OF SEED BILL MAY BE DELAYED, Financial Express, 11 April 2005

[50] Section 13.1 of the Seed Bill, 2004

[51]Pratibha Brahmi, Sanjeev Saxena and B. S. Dhillon, THE PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS ACT OF INDIA,CURRENT SCIENCE, VOL. 86, NO. 3, 10 FEBRUARY 2004, p. 396

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