Protection of Plant Varieties and Farmers’ Right Act

– A Critical Analysis

Project Assignment

PG Diploma in Patents Law

Submitted by

Dr R. Kalpana Sastry

I.D. No. Plh84_03 2003-04.

NALSAR Proximate Education NALSAR University of Law, Hyderabad

http://www.nalsarpro.org

Contents

Topic

Page no

Acronyms i

Chapter I Introduction 1

Chapter II Research Methodology 2

Chapter III Intellectual Property Rights Regime 3

� What is sui generis system?

4

Chapter IV Parallel Treaties relating to PVP

� International Union for the Protection of New Varieties of Plants 5

� Convention on Biological Diversity and the Conference of the

Parties on Intellectual Property

8

� Food and Agriculture Organization and International Treaty on

Plant Genetic Resources for Food and Agriculture

11

Chapter V The Protection and Plant varieties and Farmer’s Rights Act 2001

� Background

13

� Genesis

14

� Objectives

14

� Some Important Definitions

15

� Salient Features of the Act

17

Chapter VI Conclusion

27

Bibliography

30

i

Acronyms

CGFRA Commission on Genetic Resources for Food and Agriculture

CGIAR Consultative Group on International Agricultural Research

CBD Convention on Biological Diversity

CPGR Commission on Plant Genetic Resources

DUS Distinct, Uniform Stability

EDVs Essentially Derived Varieties

FAO Food and Agriculture Organization

GATT General Agreement on Trade and Tariffs

GMO Genetically Modified Organisms

GOI

Government of India

IPGRT International Plant Genetic Resources Treaty

IP Intellectual Property

IPR Intellectual Property Rights

ICAR Indian Council of Agricultural Research

IUPGR International Undertaking on Plant Genetic Resources

IU International Undertaking on Plant Genetic Resources

JPC Joint Parliament Committee

MTA Material Transfer Agreement

NGOs Non Government Organizations

PBR Plant Breeder’s Rights

PIC Prior Informed Consent

PIL Public Interest Litigation

PPVFR Protection of Plant Varieties and Farmers’ Rights

PGRFA Plant Genetic Resources for Food and Agriculture

PVP Plant Variety Protection

RCV Reference Collection of Varieties

ii

TRIPS Trade Related Intellectual Property Rights

UPOV Union Internationale pour la protection des obletrious vigetales

UR Uruguay Round

WTO World Trade Organization

1

Protection of Plant Varieties and Farmers’ Right Act-A Critical Analysis

Chapter I

Introduction

One of the major impacts of General Agreement of Trade and Tariffs (GATT)

after 1995 has been the need to harmonize National Laws dealing with Intellectual

Property Rights. Knowledge is now being used as an economic tool in trading. In such

an atmosphere where agriculture is also a trade issue, protection of plant varieties by

legal enactments, becomes a necessity and mandatory. However, in an agrarian

economy like in the Indian context, enactment of laws in compliance with the standards

set by WTO is becoming increasingly complex especially when consideration of the

stake holders and food security concerns have to be taken. Global IPR regime as with

international law is in a state of continuous evolution. Institutions, fora and several

processes at international, regional and national levels influence this continual

development.

The recent enactment of Government of India on “Protection of Plant Varieties

and Farmers Right Act” (PPVFR Act) is a result of intense discussion across the country

on different platforms. The Act emerged from a process that attempted to incorporate the

interests of various stakeholders including private sector breeders, public sector

institutions, NGOs and farmers within property rights framework. The present paper

deals with the need of this Act, the background scenario, other parallel treaties at

international level and the final embodifying legislation. Inspite of the intense

discussions prior to the enactment, several fears are still being voiced in many quarters

This paper attempts to point out some of the concerns and provide suggestions for

overcoming them.

2

Chapter II

Research Methodology

This assignment is a critical analysis of PPVFR Act. It is aimed at providing the

perspective on the need for such a unique act and the rights provided for the

beneficiaries. The research methodology adopted is of a descriptive – analytical

method. The data has been collected from primary and secondary sources, which

include Internet sources bulletin, books, research publications, the Act itself and data

collected from personal interviews with the plant breeders and progressive farmers.

Knowledge gained by participation in several seminars, meetings, listening to academic

talks in several platforms involving policy makers, lawyers, scientists and NGOs has also

been used while analyzing. The paper includes introduction, and the need for sui generis

system for India.

Parallel methods of plant variety protection in the UPOV, the Agenda of

International Plant Genetic Resources Treaty, and Convention on Biodiversity have been

reviewed. Against this backdrop the Act has been put forth along with objectives, its

genesis, definition of crucial terms as recognized by the Act and detailed discussion and

critical analysis of the various sections.

3

Chapter III

Intellectual Property Rights Regime

The General Agreement on Trade and Tariffs (GATT), the predecessor to the

World Trade Organization (WTO) 1, was started to restore world trade after the end of

the Second World War in 1945. Several rounds in GATT starting from 1948, dealt with

the quotas and duties of tradable commodities between nations. The 1986 GATT Round,

popularly known as Uruguay Round (UR), brought in new elements into trade

discussions, specially relating to agriculture. One of the most conscientious agreements

of the UR is the one relating to granting of Intellectual Property Rights (IPR) on biological

materials embodied in the Trade-related intellectual Property (TRIPS) 2 chapter. This is

administered by the World Trade Organization and is important because it is the first and

only international treaty, which seeks to establish enforceable universal minimum

standards of protection for all major intellectual property rights. It specifically requires

that Intellectual Property Rights (IPR) are protected by law in different forms – industrial

property rights, such as patents, designs or trade marks, copyright and related rights,

and other forms, such as geographical indications or undisclosed information (trade

secrets). The TRIPS agreement recognizes the creation of Intellectual Property Rights

(IP) as essential for the development of mankind. IP is the property created by the

human intellect, which can be incorporated in tangible objects and reproducible in

different locations.

Thus, IP confers legal ownership to the person or a business of a discovery or

an invention attached to a particular product or process, which prohibits others from

unauthorized use. While this agreement had specified minimum standards with

reference to Berne and Paris conventions it notably made no such specifications on any

1Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C,LEGAL

INSTRUMENTS-RESULTS OF THE URAGUAY ROUND vol. 1, 33 I.L.M 181 (1994) 2Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr.15, 1994,

Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C,LEGAL

INSTRUMENTS-RESULTS OF THE URAGUAY ROUND vol. 1, 33 I.L.M 181 (1994)

4

minimum standards for plant varieties. Article 273 of the TRIPs Agreement states that all

qualifying inventions in all fields of technology, whether products or processes, shall be

eligible for patents. Further countries may decide, as per this Agreement, not to patent

within their territories plants and animals, and essentially biological processes for their

production. Nevertheless, they will be obliged to patent microorganims, and non-

biological as well as microbiological processes. Also, where patent shall not be provided

for plants, it will be obligatory as per the TRIPs Article 27.3 (b)4 to provide for the

protection of plant varieties by a patent or by an effective sui generis system or by

combination thereof.

Thus, with respect to the protection of plant varieties, TRIPS is very clear that

plants and animals may be excluded from patentability. The choice is left to member

countries to protect plant varieties either by patent or by an effective sui generis system

or by combination of both these IPR systems.

What is sui generis?

Sui generis 5 is Latin word meaning unique or special leaving the sui generis

system open to interpretation. Sui generis offers a unique type of IPR, which is different

from the classical IPR like patents. All sui generis models for PVP that are tailored to the

specific needs and circumstances of the countries are legally recognized systems. Plant

varieties constitute the principal means of production and growth in agricultural

productivity. It is also recognized that the specific needs and circumstances of

agriculture in each country vary. This is especially significantly different in developed and

developing countries. Therefore it is obvious that PVP in each country needs a specific

sui generis system.

3 TRIPS Agreement art 27, sec 5, states that” patents shall be available for any

inventions, whether product or process, in all fields of technology provided that they are new,

involve an inventive step, and are capable of industrial application”. 4 TRIPS Agreement art 27.3 (b), states that “Members may exclude from patentability

plants and animals other than microorganisms, and essentially biological processes for

production of plants and animals other than non-biological processes”. However, it obliges

member countries “to provide for the protection of plant varieties either by patents or by an

effective sui generis system or by any combination thereof. ” 5 Latin for ‘unique’ or ‘of its own kind’

5

Chapter IV

Parallel International Treaties relating to PVP

The Protection and Plant Varieties and Farmer’s Rights Act, 2001(PPVFR Act) of

India has been enacted after consideration of several international systems. Useful

features from many international treaties have also been borrowed or modified in the

Act. A brief resume of some of the features of such parallel agreements considered by

the makers of the Indian Act is presented below.

International Union for the Protection of New Varieties of Plants

It was during the early part of the twentieth century that the potential benefit of

systematic plant breeding to society and the lack of an effective protection and reward

system was first felt which led to the formation of the Inter -governmental International

Union for the Protection of New Varieties of Plants, commonly known as UPOV(based

on its initials in French - Union Internationale pour la protection des oblentions vigetales)

with mostly developed countries as member states, after an International convention in

Paris in 1961. The convention has undergone revisions in 1972, 1978 and 1991 and

has as on today 53-member states6. The purpose of the UPOV convention is to ensure

Plant Breeder’s Right (PBR) by making available to them an exclusive property right on

New Plant Varieties in order to provide incentive to the development of agriculture and to

safeguard the interests of plant breeders. It provides a framework for intellectual

property protection of plant varieties. To be eligible for protection, varieties have to be (i)

distinct from existing commonly known varieties (ii) sufficiently uniform i.e. remain true to

description after repeated reproduction (iii) stable and new in the sense that they must

not have been commercialized. These characteristics are often referred as DUS

characters.

Under the UPOV’78, a new plant variety produced by a breeder could only be

produced and marketed by him. The plant breeder right (PBR) gives to the breeder, a

monopoly via marketing right sale of seed. (Article 14). But the system allowed two

important exemptions. One, the breeder’s exemption, which allowed other plant

breeders to use the protected variety for breeding purposes and the other one was that

of the farmer’s rights. The farmers were allowed to use the seeds from their harvest to

plant the next crop, even if the seed was protected by the PBR.

6UPOV has 38 member states of which 29 are parties to 1978 Act and 8 are parties to the 1991 Act; See http://www.upov.int/en/about/members/index.htm

6

The breeder’s exemption was almost done away with in the UPOV’91 making

way for royalty payments to the PBR holder from the breeders if their new variety bears

some resemblance to the protected variety even if the new variety has been bred for

different characters. Besides, farmers cannot use farm-saved seeds from protected

varieties, without paying compensation. The methods of compensation are being

currently discussed in various fora in Europe and the issue is a bone of contention

between farmers and breeders. (Article 15). 7

According to both versions of the UPOV convention, the breeder’s right may be

subject to two exceptions: the “breeders’ exemption” and the “farmers’ privileges”.

These exceptions are analyzed below.

The right of breeders both to use protected varieties as an initial source of

variation for the creation of new varieties and to market these varieties without

authorization from the original breeder (the “breeders’ exemption”) is upheld in both the

1978 and 1991 versions. One difference is that the 1991 version states that the original

breeder’s right extends also to varieties, which are essentially derived from the protected

one. The idea here is that breeders should not be able to acquire protection too easily

for minor modifications of extant varieties. This provision is also intended to ensure that

patent rights and PBRs operate in a harmonious fashion.

There is no reference in the 1978 version to the right of farmers to re-sow seed

harvested from protected varieties for their own use (often referred to as “farmers’

privilege”). Thus, countries that are members of the 1978 Convention are free, but not

obliged, to uphold the farmers’ privilege. In this respect, the 1991 version is more

specific.

Whereas the scope of the breeder’s right includes production or reproduction,

governments can use their discretion in deciding whether to uphold the farmers’

privilege. Article 15 provides for an optional exception that allows parties “within

reasonable limits and subject to the safeguarding of the legitimate interests of the

breeder, [to] restrict the breeder’s right in relation to any variety in order to permit

farmers to use for propagating purposes, on their own holdings, the product of the

harvest which they have obtained by planting, on their own holdings, the protected

variety or an essentially derived variety 7.

7ACT of 1991 “International Convention for the protection of new varieties of plants (of

Dec.2,1961;as revised at Geneva on Nov.10,1972,on Oct.23,1978 and March 19,1991 ”.

7

In effect, this means that parties to UPOV 1991 can continue to uphold the farmers’

privilege as long as their national PBR system provides for it. If the national PBR

legislation of UPOV 1991 parties is silent about farmers’ privilege, this presumably

means there is no such privilege and that farmers cannot re-sow harvested seed even

on their own farms. A comparison of provisions of the two vis-a-vis provisions in TRIPS

is tabulated in table 1.

Table 1: Comparison of provisions in UPOV 78,UPOV 91 and TRIPS

Provision UPOV 1978 Act UPOV 1991 Act Patent Law

Protection coverage As many plant genera and species ‘as possible’. Minimum of 5 on joining and of 24 after 8 years

Minimum of 5 on joining. 10 years later, must protect all plant genera and species

Inventions

Requirement Novelty (variety must not have been commercialized)

Distinctness

Sufficient Uniformity having regard to the particular features of variety’s propagation Stability

Novelty (variety must not have been commercialized)

Distinctness

Sufficient Uniformity having regard to the particular features of variety’s propagation Stability

Novelty (Invention must not have been published)

Non-obviousness

(inventiveness)

Industrial applicability

(usefulness)

Protection term Minimum 15 years (18 years for trees and vines)

Minimum 20 years (25 years for trees and vines)

Minimum 20 years

(TRIPS)

Protection scope Production for commercial purposes and offering for sale and marketing of propagating material of the variety

Commercial transactions with propagating material. Harvested material protected only if produced from propagating material without breeder’s permission and if breeder had no reasonable chance to exploit his right over it.

Making, using, selling patented product; using patented process

8

Breeders’ exemption

Yes Yes. Essentially derived varieties can only be marketed with the agreement of the breeder

No

Farmers’ privilege Minimum scope of protection allows a farmer’s privilege

Each member State can define a farmer’s privilege suitable for its conditions

No

Prohibition of double protection

Any species eligible for PBR protection cannot be patented

The Act is silent on this question; countries may choose to exclude plant varieties from patent protection

Many countries exclude plant varieties as such, from patent protection

Source: Original table van Wijk et al, p 8, updated by UPOV Secretariat; As cited in: Making Indian Agriculture more knowledge intensive and Competitive: The Case Of Intellectual Property Rights At: http://www.sristi.org/papers/C1.htm

The Convention on Biological Diversity and the Conference of the Parties and Intellectual Property

The CBD, which entered into force in 19938, has three objectives, “the

conservation of biological diversity, and the sustainable use of its components and the

fair and equitable sharing of the benefits arising out of the utilization of genetic

resources. Intellectual property rights, and particularly patents, are considered to be

most relevant to the third of these objectives, that of fair and equitable benefit sharing.

The TRIPs Agreement, concluded after the entry into force of the CBD, does not require

the establishment of any mechanisms to ensure fair and equitable benefit sharing with

States and the holders of traditional knowledge.

The most important parts of the Convention here are Articles 15 and 8 (j). Article

15(Access to genetic resources) recognizes the sovereign rights of States over their

natural resources, and their authority to determine access to genetic resources, and that

access, where granted, shall be on mutually agreed terms and subject to prior informed

consent of the provider party. Article 8 (j) requires parties to “respect, preserve and

maintain knowledge, innovations and practices of indigenous and local communities

8175 countries have ratified the proposal at RIO “Earth Summit” of 1992 as on 15 January 1999

(including the European Community) by the end of 1993

9

embodying traditional life-styles relevant for the conservation and sustainable use of

biological diversity and promote their wider application with the approval and

involvement of the holders of such knowledge, innovations and practices and encourage

the equitable sharing of the benefits arising from the utilization of such knowledge,

innovations and practices.

Since there is no reference in the TRIPs Agreement to the CBD requirement of

prior informed consent (PIC) or encouragement of benefit sharing, developed countries

that provide for the patenting of genetic resources usually grant such patents without

examining the origin of the genetic material, the existence of prior informed consent on

the part of indigenous communities, or whether the patentee is committed to sharing the

commercial benefits with the provider of the genetic material. In addition, IPRs may

inhibit, due to their exclusiveness, “appropriate access” to genetic resources, which is

one of the CBD’s objectives.9 Therefore, the question of how to interpret the relationship

between the TRIPs Agreement and the CBD has been the source of considerable

controversy in the TRIPs Council.

In the CBD, intellectual property is explicitly referred to only in the context of

technology transfer, which is supposed to be one of the main kinds of benefit for provider

countries to receive10. Article 16 on access to and transfer of technology requires

Parties to the Convention to undertake to provide and / or facilitate access and transfer

of technologies to other parties under fair and most favourable terms. The only

technology specifically referred to is biotechnology, but Article 16 is concerned with any

technologies “that are relevant to the conservation and sustainable use of biological

diversity or make use of genetic resources and do not cause significant damage to the

environment”. Recognizing that technologies are sometimes subject to patents and other

IPRs, access to such technologies must be “on terms which recognize and are

consistent with the adequate and effective protection of intellectual property rights”.

Clearly this is nothing for the life science industries to feel too concerned about. Indeed,

the clause beginning “adequate and effective protection” was specifically added to

establish a link with the draft TRIPs Agreement, which also used this language, as did

the final version.

Article 16.5 is a little more controversial, requiring the Parties to cooperate to

9 refer article 1 of CBD; Sourced from http://www.biodiv.org/convention/articles.asp 10 Ibid

10

ensure that patents and other IPRs “are supportive of and do not run counter to” the

CBD’s objectives. This reflects the profound disagreement during the negotiations

between those who believed that IPRs conflict with the CBD’s objectives and others that

saw no contradiction.

To review implementation of the CBD, the Conference of the Parties (composed

of all contracting parties) meets periodically (usually biannually). IPRs are most

frequently discussed in deliberations on such topics as access to genetic resources,

benefit sharing, and the knowledge innovations and practices of indigenous and local

communities, and not so much with regard to transfer of technology. At the Sixth

Meeting of the Conference of the Parties11, which took place in The Hague in May 2002,

the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable sharing of

the Benefits Arising out of their Utilization were officially adopted. The guidelines, which

are used when developing and drafting legislative, administrative or policy measures on

access and benefit sharing (ABS) and contracts, have a number of provisions relating to

IPRs. They suggest to Parties with genetic resource users under their jurisdiction to

consider adopting “measures to encourage the disclosure of the country of origin of the

genetic resources and of the origin of traditional knowledge, innovations and practices of

indigenous and local communities in applications for intellectual property rights. As a

means of implementing the CBD provision that benefit sharing be upon mutually agreed

terms, two elements to be considered as guiding parameters in contracts and as basic

requirements for mutually agreed terms are that “provision for the use of intellectual

property rights include joint research, obligation to implement rights on inventions

obtained and to provide licenses by common content”, and “the possibility of joint

ownership of intellectual property rights according to the degree of contribution”.12

11Convention on Biodiversity 2002 Conference of parties to convention on biodiversity

UNEP/CBD/COP/6/20 dated 27 May,2002 72 pages http://www.biodiv.org/doc/meetings/cop/cop-

06/official/cop-06-20-part1-en.pdf 12 COP Decision VI/ 24 Available at: http://www.biodiv.org/decisions/

11

The Food and Agriculture Organization (FAO) and the International Treaty on Plant Genetic

Resources for Food and Agriculture

During the 1980s the FAO became the principle battleground of what came to be

known as “the seed wars”13. The main bone of contention was that the developed

countries were allegedly abusing the free exchange principle. The main criticisms were,

first, that most of the world base-crop collections were held in the developed world even

though most of the accessions had come from the developing world. Second, while folk

varieties were treated as being the common heritage of humankind, plant breeders in the

developed countries were securing IPR protection for their own varieties.

In 1983, the FAO Commission on Plant Genetic Resources (CPGR) was created

to provide a forum where governments could meet for discussion, and monitor the non-

binding agreement known as the “International Undertaking on Plant Genetic

Resources”(the Undertaking), whose objectives were “to ensure the safe conservation

and promote the unrestricted availability and sustainable utilization of plant genetic

resources for present and future generations, by providing a flexible framework for

sharing the benefits and burdens”. Its basic premise is that ‘genetic resources are the

heritage of the mankind’ and should be freely exchanged between nations. In 1993, the

CPGR (Resolution 93/ 1) called for the Undertaking to be revised in harmony with the

CBD. To this end, the Commission, now called the Commission on Genetic Resources

for Food and Agriculture (CGRFA), held a series of negotiations to revise the

International Undertaking (IU). Protracted discussions progressed, albeit slowly, at

several extraordinary sessions of the CGRFA, and at a series of contact group meetings

convened by the Chair of the CGRFA. These negotiations were finally concluded in

November 2001, when a text for the revised undertaking was adopted and then

converted into a legally binding treaty. The treaty was finalized in November 2001 and

will come into effect after the 40th signatory country has ratified it. So far 31 countries,

including India have committed to the treaty. The protection of plant varieties and

farmers rights act of India includes within it all the major provisions of this treaty14.

13Refer: UNCTAD-ICTSP Project no INT/OT/IBH on “IPRs and Sustainable Development” Policy

http://www.ictsd.org/pubs/ictsd_series/iprs/PP/PP_3CH_02.pdf 14 As per Article 28,Treaty enters into force 90 days after deposit of the fortieth instrument of

ratification, acceptance, approval or accession. http://www.fao.org/legal/TREATIES/033s-e.htm

12

The treaty seeks to protect the material in the gene banks and the crops in the

farmers fields from being directly patented and encourages countries to protect farmers’

rights. Under this treaty the FAO and the 11 CGIAR centres will hold genetic resources

under trust. National rights, plant breeders’ rights and farmers’ rights over genetic

resources are recognized. IP provisions are implemented through Material Transfer

Agreements (MTAs) and the recipients of germplasm must agree not to seek ownership

or claim any rights over it or related information. Listed genetic material will be freely

exchanged among nations that are contracting parties without the requirement of a MTA.

In response to the developed countries’ insistence on excluding IPR – protected

plant varieties from application of the common heritage principle, the “Farmers’ Rights”

concept was included in the Undertaking from 198915. In this context, it should be noted

that the term “Farmers’ Rights” has to be distinguished from “farmers’ privilege”. The

latter is a clearly defined (cf.Art.15 (2) UPOV 1991) exception to the breeders’ exclusive

right, “Farmers’ Rights” is not an IPR as such, but it is frequently suggested as a

principle that could be implemented as a compensation of benefit-sharing mechanism.

Officially “Farmers’ Rights” is an attempt to acknowledge, “the contribution farmers have

made to the conservation and development of plant genetic resources, which constitute

the basis of plant production throughout the world.”16

15CPGR Resolution 5/89 defines farmers’ rights Available at http://www.fao.org/ag/cgrfa/IU.htm 16 Refer Halewood, M. Indigenous and local knowledge in International Law: a preface to sui

generis intellectual property protection. McGill Law Journal 44:953-996, 1999.

13

Chapter V

The Protection and Plant Varieties and Farmer’s Rights Act 2001

The existing Indian Patent Act, 1970 excluded agriculture and horticultural

methods of production from patentability. In order to be compliant with the TRIPS

agreement, the Government of India has adopted the sui generis system for protection

of plant varieties. This was developed with an intention of integrating the rights of

breeders, farmers and village communities, and taking care of the concerns for equitable

sharing of benefits. The national government after much deliberation with all enacted this

unique legislation. ”This is the first time anywhere in the world the rights of farmers and

breeders are given concurrent recognition.” (M.S.Swaminathan, 2001)17. A number of

provisions and concepts contained in the TRIPS, UPOV, the IU and CBD constitute key

elements in this legislation. As touchstones of the Indian Act, these elements connect

global agreements and national law making process. Thus sui generis option to

construct legislation from TRIPs helped to establish PBR based on UPOV model,

concept of farmers’ rights from IU and benefit sharing from CBD. The Act does not

import the concepts per se but translates these through drafting and assembling, and

configures it to be a unique legislation. The Act ensures that the farmers shall be able to

raise their own seeds and retain them even to distribute in exchange, among the village

community as per the existing tradition. The researchers shall be able to produce new

varieties from the protected varieties. The Act also includes for setting up of a Plant

Varieties and Farmers’ Rights Protection Authority, National Community Gene Fund,

Compulsory Licensing and Protection of Public Interest Appellate Board among others. .

It offers flexibility with regard to protected genera / species, level and period of

protection, when compared to other similar legislations existing or being formulated in

different countries. The Act covers all categories of plants, except micro-organisms.

The genera and species of the varieties for protection shall be notified through a gazette,

after the appropriate rules and by-laws are framed for the enforcement of the Act.

17Swaminathan.M.S.2001 September 15,2001 “Down to Earth” Pages 48 to 50

14

Genesis

The process of drafting the PPVFR took more than 10 years. Starting in late

1980’s, the first draft was produced by 1993 by Ministry of Agriculture, nodal Ministry

throughout the development of the Bill. Three drafts followed in 1997,1999 and

2000,although the last two were introduced in the Parliament. Based on the UPOV

model, the penultimate draft was introduced in Lok Sabha on December 12, 1999, and

later referred to 30-member Joint Parliamentary Committee (JPC) of both the Houses

under the Chairmanship of Sri Sahib Singh Verma, for redrafting the Bill. This was due to

inadequate provisions to protect the interests of the farmers, registration of extinct

varieties and tribunals for speedy settlement of disputes etc. The JPC redrafted the Bill,

thus incorporating a chapter on farmer’s rights, as per the IU, which is a unique feature.

The original Bill authorized only the High Court to hear appeal against order of decisions

of the authority or register. The new Bill recommended constitution of a Tribunal for the

purpose. (GOI, 2001). 18 It also incorporated changes in the provisions for plant varieties

and farmer’s rights authority, registration of plant varieties, benefit sharing and

infringement etc. Both the Houses of the Parliament have passed the PPVFR Bill in

August 2001 after a long and arduous struggle for the recognition of the rights of the

farmers. 19

Objectives

The objectives of the Act are as follows:

i. To provide for the establishment of an effective system for protection of plant

varieties

ii. To provide for the rights of farmers and plant breeders.

iii. To stimulate investment for research and development and to facilitate growth

of the seed industry.

iv. To ensure availability of high quality seeds and planting materials of improved

varieties to farmers

18 Government of India 2001.The Protection of plant varieties and Farmers’ Rights Act 2001.Act

No.52 of 2001 New Delhi: Akalank Publications. 19 Seshia,S. 2002. Plant variety protection and farmers’ rights: Law-Making and the cultivation of

varietal control. Economic and Political Weekly, July 6,2002

15

The printed version of the Act is published in the Newsletter of Seed Association

of India20. The Act has 11 chapters and is divided in 97 clauses. The first chapter has

title, and the definitions used in context of the Act. The last chapter is on

miscellaneous clauses The other nine chapters deal with PPVER authority,

registration of plant varieties, duration and effect of registration and benefit sharing,

surrender and revocation of certificate, farmer’s rights, compulsory license, plant

varieties protection appellate tribunal, finance, accounts, audit, infringement, offences

and penalties, etc

Some Important definitions

Some of the important definitions in the context of the Act are placed below along

with some of the concerns raised while interpretation of these definitions.

Variety

A plant grouping except microorganisms within a single botanical taxon of the lowest

known rank, which can be

(i) defined by the expression of the characteristics resulting from a given

genotype of a plant grouping;

(ii) distinguished from any other plant grouping by expression of at least one

of the said characteristics; and

(iii) considered as a unit with regard to its suitability for being propagated,

which remains unchanged after such propagation and includes

propagating material of such variety, extant variety, transgenic variety,

farmers’ variety and essentially derived variety.

Extant variety

A variety available in India, which is

(i) notified under section 5 of Seeds Act, 1966, or

(ii) farmers’ variety, or

(iii) a variety about which there is common knowledge, or

(iv) any other variety which is in public domain.

20 The Protection of Plant Varieties and Farmers’ Rights Bill 2001.Seed Association of India

Newsletter.2001 Vol.15.pp1-35

16

Essentially derived variety

A variety shall be said to be essentially derived when it :

(i) is predominantly derived from such initial variety, or from a variety that

itself is predominantly derived from such initial variety, while retaining the

expression of the essential characteristics that result from the genotype or

combination of genotypes of such initial variety ;

(ii) is clearly distinguishable from such initial variety, and

(iii) conforms (excepting for the differences which result from the act of

derivation) to such initial variety in the expression of the essential

characteristics that result from the genotype or combination of genotypes

of such initial variety.

Farmer

Any person to

a. cultivates crops by cultivating the land himself, or

b. cultivates crops by directly supervising the cultivation of land through any

other person, or

a. conserves and preserves, severally or jointly, with any person any wild

species or traditional varieties, or adds value to such wild species or

traditional varieties through selection and identification of their useful

properties.

Farmers’ variety

A variety which

(i) has been traditionally cultivated and evolved by the farmers in their fields, or

(ii) is a wild relative or land race of a variety about which the farmers possess

common knowledge.

Concerns: The protection of new varieties is based on the UPOV model, which several

institutions (private, public or universities) can use to their advantage. The concept of

EDV has been taken from UPOV, 1991 with a slight modification. This can be used to

protect modified varieties or to initial varieties used in breeding programs. This can be

used by NGOs too if they are embarking on breeding programs. However it is the extant

varieties and farmers’ varieties, which may need some intervention. Protection of extant

variety is indeed a new feature not found anywhere in the world. But specifications for

extant varieties on DUS criteria need to be made. While several public institutions can

17

register, it remains to be seen how many farmers can use this feature. Confusion on

criteria for registering farmers’ varieties exists and whether DUS is required for these

varieties persists. The PPVFR Authority needs to clarify this. A farmer who has bred or

developed a new variety shall be entitled for registration and any other protection as a

breeder. Since the definition of an extant variety according to section 2 (j) includes a

farmers’ variety also, which may be landrace or a wild relative about which farmers

possess common knowledge, the uniformity criteria in case of registration of these

varieties is difficult to ascertain. Such consideration may have to be included in the DUS

guidelines for testing of these particular types of varieties. Further, there could be

innumerable farmers’ varieties (landraces for registration and their data are scattered

and sometimes overlapping). A technical questionnaire to bring out unique characters

and area of adaptability could be developed initially to document these varieties. The

time-frame to be provided for documentation of information relevant for registration of

extant varieties (farmers’ varieties or released varieties) under Section 15 (2) may be

restricted to three years.

Salient features of the Act

Some of the features embodified in the Act (Table 2) are placed for discussion.

Concerns, which impede its implementation, have also been raised. These are put forth

with an intention that initial bottlenecks of implementing of this unique Act should not

hamper policy makers, scientists, legal authorites, NGOs and farmers from pursuing its

ideals and concerted efforts are made to set the process in motion.

Table 2 Salient features of the Indian sui generis PVP Act

The PPV & FR Act, 2001 provides an optimum balance between :

� Breeder’s right and farmers’ right � IPR and right on genetic resources

used to develop a variety, where applicable

provides protection to � New varieties � Extant varieties, including farmers’

varieties, and the varieties of common knowledge

� Essentially derived varieties

Does not provide protection to � Plant variety that carries genetic use

restriction technology (GURT), ‘terminator gene’

Examination procedure based on � Novelty, in commercial sense � DUS testing � Distinct nomenclature

Examination procedure for farmer’ varieties

� Novelty not essential for extant / farmer varieties or varieties of common

18

knowledge � Procedure for the farmers’ varieties

possibly less rigorous � Distinct nomenclature is equally

important Benefit sharing from a commercialized protected variety

� Any citizen / group of citizens of India / governmental organizations / NGO / firm formed or established in India shall have the right to make such a claim

� National Authority to assess and determine claim

� Compensation may be in any form – material or non-material

National Gene Fund � To credit inter alia benefit shared under

the Act � To use the fund supporting

conservation at local community level � To use the fund for facilitating

sustainable use of genetic resources

Compulsory license provided for when � Breeder / institution / licensee causes

its non-supply or short supply of planting material of the variety

� Charges prohibitively high prices for such planting material

Plant Variety Tribunal � To expedite disposal of related legal

disputes

Source: Sudhir Kochhar, Intellectual Property protection in plant varieties. Invention Intelligence.

Nov.-Dec. 2003. 254 to 267 pages

Authority

The Central Government shall establish an Authority to be known as the Protection of

Plant Varieties and Farmers’ Rights Authority. It shall consist of a chairperson and

fifteen members as representatives of different concerned ministries and departments,

seed industry, farmers’ organizations, tribal communities and state-level women’s

organization, etc.

Concerns: Creating new bureaucratic organization to regulate rights in areas that were

in public domain for long and also in tandem with new boards (like the proposed Bio-

diversity boards) may lead to new, legal delays. As a first step towards implementation

of the Act, the Government shall have to notify the crops in order to establish the system

of listing of plant varieties for the purpose of registration. The criteria for selecting the

crops could be the crops on which we are dependent for food and nutritional security,

including major cereals, pulses, oilseeds, and vegetables and fruits crops. Thus a clear

policy on access to germplasm in certain crops especially which affect livelihoods

concerns need to be defined urgently. Crop species important for India in the world

trade, species of Indian origin, crops where India could benefit from introduction of new

germplasm and foreign investment, could be the other priorities for consideration.

19

Eligibility

For a variety to be eligible for registration it must conform to the criteria of novelty,

distinctiveness, uniformity and stability (NDUS), as described below (Section 15 (1)- (3).

For the purposes of the Act, a new variety shall be deemed to be :

(a) Novel, if, at the date of filing of the application for registration for protection, the

propagating or harvested material of such a variety has not been sold or

otherwise disposed of by or with the consent of its breeder or his successor for

the purposes of exploitation or such variety

(i) in India, earlier than one year,

(ii) or outside India, in the case of trees or vines earlier than six years, or,

in any other case, earlier than four years, before the date of filing such

applications.

Provided that a trial of a new variety that has not been sold or otherwise disposed off

shall not affect the right to protection.

Provided further that the fact that on the date of filing the application for registration, the

propagating or harvested material of such variety has become a matter of common

knowledge, other than through the aforesaid manner shall not affect the criteria of

novelty for such variety.

(a) Distinct, if it is clearly distinguishable by at least one essential characteristic

form any other variety whose existence is a matter of common knowledge in

any country at the time of filing of the application.

(b) Uniform, if subject to the variation that may be expected from the particular

features of its propagation, it is sufficiently uniform in its essential

characteristics.

(c) Stable, if its essential characteristics remain unchanged after repeated

propagation or, in the case of a particular cycle of propagation, at the end of

each such cycle.

The variety will be subjected to such distinctiveness, uniformity and stability tests as

shall be prescribed.

Application form

Every application for registration will have to be accompanied with the following

information (Section 18 (a-h);

(a) denomination assigned to such variety by the applicant;

20

(b) an affidavit sworn by the by the applicant that such variety does not

contain any gene or gene sequence involving terminator technology.

(c) the application should be in such form as may be specified by regulations;

(d) a complete passport data of the parental lines from which the variety has

been derived along with the geographical location in India from where the genetic

material has been taken and all such information relating to the contribution, if

any, of any farmer, village community, institution or organization in breeding,

evolving or developing the variety;

(e) a statement containing a brief description of the variety, bringing out its

characteristics of novelty, distinctiveness, uniformity and stability as required for

registration;

(f) such fees as may be prescribed;

(g) contain a declaration that the genetic material or parental material

acquired for breeding, evolving or developing the variety has been lawfully

acquired; and

(h) such other particulars as may be prescribed.

The conditions stated above (a-h), shall not apply in respect of application for

registration of farmers’ varieties.

Concerns: It would be meaningful if the ‘specified period’ (15(2)) and ownership issues

of extant varieties are clarified. DUS criteria for all crops (open or self) need to be

characterized. The position on varietal names already existing, which have used

geographical locations (now not allowed by the Act) needs to be verified. Pusa Ruby,

Pusa basmati are names already registered for varieties. What would be new strategy

for these? Defining the amount of Passport data, information on hybrids parental lines

are yet other gray areas, which may be areas for litigations. The Authority may also have

to decide about the minimum passport data required to be submitted with the

application. Many germplasm accessions used for the development of new varieties,

even when accessed from gene banks / breeders collection may not have full recorded

passport data. In such a case, acknowledging the source of parental material may be

considered sufficient. Further, information regarding parental lines as required under

section 19 (e), needs to be restricted to immediate parents. The term parental line is

ambiguous here since all the varieties developed by traditional methods may be having

21

many parental lines. It could be appropriate to include information on immediate

parents, specifically in case of hybrids only.

Period of protection

The certificate of registration issued under section 24 or sub-section 98 of section 23

shall be valid for nine years in the case of trees and vines and six years in the case of

other crops, and may be reviewed and renewed for the remaining period on payment of

such fees as may be fixed by the rules made on this behalf subject to the conditions that

the total period of validity shall not exceed.

(i) in the case of trees and vines, eighteen years from the date of registration

of the variety;

(ii) in the case of extant varieties, fifteen years from the date of the notification of that variety by the Central Government under Section 5 of the Seed Act, 1996, and

(iii) in the other case, fifteen years from the date of registration of the variety.

Payment of annual fee

The Authority may, with the prior approval of the Central Government, by

notification in the Official Gazette, impose a fee to be paid annually, by every breeder or

a variety, agent and licensee thereof registered under this Act determined on the basis

of benefit or royalty gained by such breeder, agent or licensee, as the case may be, in

respect of the variety, for the retention of their registration under this Act [(Section 35

(1)].

Breeders’ rights

The certificate or registration for a variety issued under this Act shall confer an exclusive

right on the breeder or his successor or his agent or licensee, to produce, sell, market,

distribute, import or export of the variety [Section 28 (1)].

Researchers’ right

The researchers have been provided access to protected varieties for bona fide

research purposes [Section 30]. This Section states, Nothing contained in this Act shall

prevent (a) the use of any variety registered under this Act by any person using such

variety for conducting experiments or research; and (b) the use of a variety by any

person as an initial source of a variety for the purpose of creating other varieties

provided that the authorization of the breeder of a registered variety is required where

the repeated use of such variety as a parental line is necessary for commercial

production of such other newly developed variety.

22

Farmers’ rights

The farmers’ rights of the Act define the privilege of farmers and their right to protect

varieties developed or conserved by them [Chapter VI]. Farmers can save, use, sow,

resow, exchange, share and sell farm produce of a protected variety except sale under a

commercial marketing arrangement (branded seeds) [Section 39 (1), (i) – iv)]. Further,

the farmers have also been provided protection of innocent infringement when, at the

time of infringement, a farmer is not aware of the existence of breeder rights [Section 42

(1)].A farmer who is engaged in the conservation of genetic resources of landraces and

wild relatives of economic plants and their improvement through selection and

preservation, shall be entitled in the prescribed manner for recognition and reward from

the Gene Fund, provided the material so selected and preserved has been used as

donor of genes in varieties registrable under the Act.The expected performance of a

variety is to be disclosed to the farmers at the time of sale of seed / propagating

material. A farmer or a group of farmers of an organization of farmers can claim

compensation according to the Act, if a variety or the propagating material fails to give

the expected performance under given conditions, as claimed by the breeder of the

variety.

Communities’ rights

The rights of the communities as defined provide for compensation for the contribution of

communities in the evolution of new varieties in quantum to be determined by the

PPVFR Authority [Section 41 (1)].

Registration of essentially derived varieties

The breeder of the essentially derived variety shall have the same rights as the plant

breeder of other new varieties, which include production, selling, marketing and

distribution, including export and import of the variety. The other eligibility criteria for

award of registration are also the same as for new variety registration under the Act

[Section 23 (1), (6)].

Compulsory license

The authority can grant compulsory license, in case of any complaints about the

availability of the seeds of any registered variety to public at a reasonable price. The

license can be granted to any person interested to take up such activities after the expiry

of a period of three years from the date of issue of certificate of registration to undertake

production, distribution and sale of the seed or other propagating material of the variety

[Section 47 (1)].

23

Benefit sharing

Sharing of benefits accruing to a breeder from a variety developed from

indigenously derived plant genetic resources has also been provided [Section 26(1)].

The authority may invite claims of benefit sharing of any variety registered under the

Act, and shall determine the quantum of such award after ascertaining the extent and

nature of the benefit claim, after providing an opportunity to be heard, to both the plant

breeder and the claimer. Benefit sharing upholds the principles of equity, rewarding the

farmer-conservers in recognition of their profound role in preserving the agrobiodiversity

and associated traditional knowledge as well as the PBR right holders. Benefit sharing

from the profits accrued from the commercial use of biodiversity is a new concept with

little or no functional models across the world.

Concerns: While the philosophy behind this concept is salutary, creation of a system for

equitable sharing of benefit among all stakeholders down to the grass root level in a

manner to stimulate the process of conservation is indeed difficult to put in place. Benefit

is to be granted on the basis of either affirmation made by the breeder that certain

varieties were used as parental lines to breed the candidate variety or, in the absence of

such affirmation, an unequivocal evidence to establish the use of specific varieties as the

parental lines, and that one or more of such parental lines are owned by an individual or

group or institution. Determination of claimant parties for benefit sharing becomes

complex when a given gene combination incorporated into a candidate variety is already

available in a few derived varieties with few of them, including the original donor variety,

are owned by different individuals or groups or institutions. Such situations are more

common in plant breeding, which makes it always not easy to pin down either a specific

gene or agronomic attribute to a singular exclusive varietal source at a given point of

time except in the case of transgenics, which are readily distinguishable for their unique

well tagged gene(s).

National Gene Fund

The National Gene Fund to be constituted under the Act shall be credited thereto:

(a) The benefit sharing from the breeder.

(b) The annual fee payable to the authority by way of royalties.

(c) By the compensation provided to the communities as defined under Section 41 (1).

(d) Contribution from any national and international organization and other sources.

The fund will be applied for disbursing shares to benefit claimers, either

individuals or organization, and for compensation to village communities. The fund will

24

also be used for supporting conservation and sustainable use of genetic resources,

including in situ and ex situ collection and for strengthening the capabilities of the

panchayat in carrying out such conservation and sustainable use [Section (45)].

Institutional structures for effective implementation

Functions of the Authority

The PPVFR authority proposed to be established under the Act has a crucial role to play

for effective implementation of the Act. The duty of the Authority is to promote by such

measures as it may think fit, the encouragement for the development of new varieties of

plants and to protect the rights of the farmers and breeders [Section 8 (1)]. In particular,

the authority is to provide measures for:

(a) The registration of extant and new plant varieties subject to such terms and

conditions and in the manner as may be prescribed.

(b) Developing characterization and documentation of varieties registered under this

Act.

(c) Documentation, indexing and cataloguing of farmers’ varieties.

(d) Compulsory cataloguing facilities for all varieties of plants.

(e) Ensuring that seeds of the varieties registered under this Act are available to the

farmers and providing for compulsory licensing of such varieties, if the breeder of

such varieties or any other person entitled to produce such variety under this Act

does not arrange for production and sale of seed in the manner as may be

prescribed.

(f) Collecting statistics with regard to plant varieties, including the contribution of

any person at any time in the evolution or development of any plant variety, in

India or in any other country, for compilation and publication.

(g) Ensuring the maintenance of the Register of plant varieties.

The Authority has the responsibility to provide for all the activities mentioned through

appropriate institutional structures.

Concerns: The effective implementation of the Act hinges on the DUS testing and the

Authority should ensure trust, transparency, accountability and efficiency for carrying out

such tests. Suitable farm and other infrastructure facilities for DUS testing, including

seed storage facilities need to be created. It is advisable to carry out DUS testing in at

least two locations in each major-agro climatic region relevant to the crop for at least two

successful years. Such an evaluation procedure would create acceptance when

followed for all types of varieties among all the stakeholders.It is imperative to define

25

essential and additional characters for DUS testing (morphological, biochemical and

molecular characters), and identification of possible reference varieties for each crop

species. The scope for using UPOV guidelines on DUS testing, available for various

crops as possible templates for formulation of DUS guidelines that may suit specific

requirements in harmony with our legislation may also be considered. In order to test

the novelty, a database of the existing varieties may have to be developed with effective

linkages with other such database available internationally. It would be difficult to

ascertain uniformity criteria for composites, synthetics, multilines and multiparent

hybrids. Such consideration may have to be included in the DUS guidelines for testing

of these particular types of varieties. Existing facilities in the national system for solving

litigations can be done with strong institutional linkages.

Storage of reference samples

The storage of ‘reference samples’ is an important component of this Act. It requires

enough and appropriate storage infrastructure. The Authority would, therefore, have to

create appropriate infrastructure for providing storage facilities at selected locations in

the country. Since the storage of vegetatively propagated materials requires specialized

techniques and competence, scientific personnel need to be trained accordingly and

specific centers would have to be identified and equipped for this purpose.

The fee structure

The fee for registration and other processes as well as annual fee should be reasonably

determined keeping in view the possible commercial value of the crop, the national

interests, and the desirability of generating enough resources for financial autonomy of

the Authority. Section 19 of the Act requires a breeder to submit a quantity of seeds

along with ‘parental lines’ according to the standards specified by the regulations. Also,

the seeds deposited are to be conserved and regenerated if necessary for DUS testing

for maintenance. A separate fee may be assigned for conservation and regeneration,

besides a testing fee.

Claim for compensation: A farmer/farmer’s organization [Section 39 (2)] can claim

compensation if a variety fails to give the expected performance under given conditions.

Such a claim may have to be paid by the breeder as directed by the Authority after

giving due hearing to both the parties, namely the farmer and the breeder. Since the

variety is to be tested for DUS by the Authority at the time of registration, and if the

performance of the variety is not found to be as claimed by the breeder, the Authority

can deal with claims of failure of performance and could decide about such claims

26

independently, instead of the courts. Section 42 regarding protection to farmers for

innocent infringement is also clear as to how to define innocent infringement. Such a

clause may not stand in the court of law in view of the other laws where ignorance is not

a reason to have protection from legal obligations.

Concerns: The expected performance of a variety is promised by its breeder under

defined crop production conditions including seed and other inputs, production

management schedule, soil and whether requirements. It could be difficult to match

these defined requirements always. Moreover, a realization of an under performance

may dawn in only at the terminal stage in the case of an annual crop, wherein it could be

difficult to establish that all defined production conditions had been followed. This

provision, however, shall protect farmers from spurious seeds or planting material with

tall production claims, particularly in the case of orchard crops.

Lawfully acquired parental material

Section 81 (j) regarding information to be submitted along with an application, requires

the applicant to certify that the genetic or parental material used for breeding the variety

has been lawfully acquired. Such declaration would be difficult in cases where the

passport information relating to the material has not been recorded.

Further, it would not always be possible for a breeder to get information relating to the

contribution of a farmer, village community, etc. since there may not be an authentic

source of such information. Such information, if not available, may be left to the

Authority to decide, which can invite claims later through media / public notices, etc.

.

27

Chapter VI

Conclusion

Thus the PPVFR Bill engaged the attention of a range of stakeholders in its

development. It endeavors to introduce a system of Plant Breeders’ Rights and

operationalize Farmers’ Rights enabling all stakeholders including public sector

researchers, Farmers’ rights campaigners, private industry, inter- governmental

organizations and farmers themselves to achieve gains. With expansion in liberalized

trade and financial flows to developing countries, there several paradigms coming in

agricultural research and trading circles. The nation has to keep pace with these

developments to gain the deserved competitive advantage and therefore make new

enactments for legal process to follow. Since the Act is based on grant of rights in a fair

and equitable manner to multiple claimants, there could several obstacles in initial phase

itself. A properly structured system is necessary to avoid ‘tragedy of anticommons”21.

This paper has attempted to voice some of operational problems with an intention to

overcome them and to let the Act get enforced in its true element. The Act does not

transgress the traditional rights of farmers and recognizes the historic contribution of

generations of farmers in a biodiversity rich country like India for preserving, protecting

and enriching this biodiversity, a legacy of profound value to the modern crop

improvement efforts. However, if the enforcement is not in true senses there are fears

that some of the provisions of this Act are of more academic significance than of legal

acceptability from the point of their implementation.

It is appropriate to mention recent development when Government of India

applied on May 31,2002 to the UPOV for accession to UPOV. Several NGOs have

opposed this move indicating that this step is detrimental to interests of farmers.22

However, the Agriculture Ministry of the Government of India makes it a point to mention

that India has applied to join the 1978 UPOV Convention, not 1991 version.

21Heller,M. and Eisenberg,R.1998 Can patents deter innovation? The anticommons in biomedical research. Science 280 Taken from EPTD Discussion Paper No. 96 Indian’s plant variety and farmers’ rights legislation: Potential Impact on stakeholder access to genetic resources by Anitha Ramanna. January 2003. Environment and Production Technology Division International Food Policy Research Institute 2033 K Street, N.W. Washington, D.C. 20006 U.S.A. Available at: http://www.ifpri.org/divs/eptd/dp/papers/eptdp96.pdf

22 Suman Sahai,2003 .In: Status of Rights of Farmers and Plant Breeders in Asia (Ujjwal Kumar and Suman Sahai, eds.,, New Delhi. Akhil Chandra Associates, 2003). Pages 59 to 66

28

In this context, it is feared that a ‘soft landing’ into UPOV via the 1978

Convention is only temporary in nature. Article 37(3) of the UPOV 1991 Convention

clearly states that after December 11, 1995 all countries, including developing countries,

which wish to join UPOV must accede to the 1991 Convention. Yet India has been

allowed to join the 1978 Convention. The obvious benefit to UPOV in bending their own

regulations (Article 39(3) UPOV 1991) is seen that in encouraging India, a large

developing country with major public and private plant breeding country with major public

and private plant breeding sectors, to join, other Asian countries will follow suit rather

than try and introduce their own sui generis legislation.23 Only three Asian countries

have acceded to UPOV. In order to join UPOV India will need to submit its recently

adopted law, to the UPOV Council. The Council will have to assess whether the law is

complaint with the UPOV Convention or requires amendment. The provisions relating to

breeders’ rights are, by and large, similar to that recognized by UPOV. What will be

interesting is the reaction of UPOV to other areas of the Act. Most observers, as well as

Indian government officials, expect UPOV to recommend changes to the law if India

wants to push through with joining the Union. It seems likely that the main area of

contention will be the issue of farmers’ rights.The 1991 revision of the UPOV Convention

has further restricted the scope even of exemptions to farmers that can be granted under

national law and the trend is for further restrictions. Any legislation must be ‘within

reasonable limits and safeguarding the legitimate interest of the breeder’ (Article 15.2

UPOV 1991 Convention). The term ‘legitimate interests of the breeder’ has been widely

interpreted to mean compensation or remuneration to the breeder if the farmer even

saves seed from his harvest, to plant the next crop.24

Against this new turn, NGOs like Gene Campaign have now filed writ petition in

form of a Public Interest Litigation (PIL) in the Delhi High Court on October 1,2002 to

block government decision to join the UPOV. It prayed to the court that decision is

unconstitutional being violative of PPVFR Act, 2001 as well as Articles 14,21,38,47 and

48-A of the Constitution of India. The Court accepted the PIL and asked Government to

file a reply. The matter is sub judice at present. The PIL is listed for argument in mid of

March 2004.25

23Adcock,M. 2002 TheHindu, 20 July 2002 24Adcock,M. 2003 In: Status of Rights of Farmers and Plant Breeders in Asia (Ujjwal Kumar and

Suman Sahai, eds, New Delhi. Akhil Chandra Associates, 2003). Pages 67to69 25Personal communication through email from genecamp@vsnl.com

29

At the outset, this paper has endeavored to explore the background for a need

for protecting plant varieties in an agrarian country like India. The genesis of the

legislation, its features along with a discussion on some of parallel treaties at

international level was put forth. The evolution of this Act through multi-fora discussions

across sections of society leading to final enactment of this and unique Act was brought

out. Analysis of the processes and mechanisms indicated the multiple ways in which all

the stakeholders, policy makers have attempted to integrate their needs into the Act.

Indeed, the Indian Act has been fructified to ‘balance’ the rights of breeders with farmers.

However, analysis also brought some of major concerns which may impede its

functioning. For the successful enforcement the teething troubles at present need to be

solved in the right earnest urgently if India has to become compliant with needs of

TRIPS agreement. All concerned in the developed and developing countries are

watching with great interest and its success will certainly pave the way for a new era in

plant variety protection at the global level.

30

Bibliography

1. Agriculture and Intellectual Property Rights: Economic, Institutional and Implementations / Issues in biotechnology. (V. Santani ello et al eds. CAB 1980, University Press, India, 2003)

2. Dhar,B and Chaturvedi,S Introducing plant breeders’ rights in India-a critical evaluation of the proposed legislation. Journal of World Intellectual Property, 1998. 1(2), pp 245-262

3. EPTD Discussion Paper No. 96 Indian’s plant variety and farmers’ rights legislation: Potential Impact on stakeholder access to genetic resources by Anitha Ramanna. January 2003. Environment and Production Technology Division International Food Policy Research Institute 2033 K Street, N.W. Washington, D.C. 20006 U.S.A.At: http://www.ifpri.org/divs/eptd/dp/papers/eptdp96.pdf

4. Graham Dutfield, Intellectual Property Rights, Trade and Biodiversity: The Case of Seeds and Plant Varieties. 1999 At www.mtnforum.org/resources/library/dutfg00a.htm

5. ICTSD and UNCTAD Intellectual Property Rights: Implications for Development UNCTAD-ICTSD Project on Intellectual Property Rights and Sustainable Development Policy Discussion Paper 2003 At:http://www.iprsonline.org/unctadictsd/projectoutputs.htm#policy

6. Seed Association of India, Newsletter.The Protection of Plant Varieties and Farmers Rights Bill, 2001 Vol 15. pp 1-35.

7. Status of Rights of Farmers and Plant Breeders in Asia (Ujjwal Kumar and Suman Sahai, eds. New Delhi. Akhil Chandra Associates, 2003).

8. Prabhudha Ganguli, Intellectual Property Rights: Unleashing the Knowledge Economy, Tata McGraw-Hill Publishing Co., New Delhi, 2001