Rhetoric of Plant Variety Protection in India
by Jayne Kuriakose and Mayank Mishra
Cite as : (2003) PL WebJour 17
The State shall regard the raising of the level of nutrition and the standards of living of its people and improvement of public health as among its primary duties
Intellectual property rights, as the term suggests are meant to be rights to thoughts, ideas and information, especially regarding new inventions and processes. The manner in which they are sought to be realized is by enabling an inventor to exclude imitators from the market for a specified time. The stated purpose of such a right is to stimulate industrial innovation, by offering higher returns than market would normally offer. Therefore, in its practical application, the effect of IPRs is the commodification of its subject-matter. With the globalization and the increasing aperture of the market, new problems are arising in respect of protection of innovations, as the protection of new technologies is no more limited to the industrialized nations. The umbrella organization, WTO, came into existence consequent to the Uruguay Round of GATT2, thereby requiring all member nations to adopt and amend laws in consonance and conformity with the objects of the WTO. India is a member of the WTO and a signatory to the TRIPs Agreement. The signatory States are required to provide protection to a range of Intellectual Property Rights, in line with the terms of the TRIPs Agreement, including protection for Plant Varieties.
Pursuant to the obligations under the TRIPs Agreement, The Plant Variety Protection and Farmers Rights Bill was finally passed by both houses of the Indian Parliament, ending a long and arduous struggle for the recognition of the rights of farmers in Indias sui generis legislation. For the first time, India has now put in place a law to grant Plant Breeders Rights (PBRs) on new varieties of seeds.
This paper examines the Indian Plant Variety Legislation (The Protection of Plant Varieties and Farmer Rights Act, 2001, hereinafter referred to as the Act ) in a critical perspective. It discusses various aspects of protection of agricultural innovation, including access to genetic resources, and other tools for conservation and sustainable use of plant genetic resources for food and agriculture, and also emerging situations in the light of nations food security. It attempts to elaborate on the models of protection of plant variety and problem of patenting plant life. It explains the international framework (stipulations of TRIPs, UPOV etc.) for IPRs are related to biodiversity, plant variety, genetic resources, and access to these resources. Possible solutions to mitigate the drawbacks of long-term protection under the new legislation are also discussed.
What is Plant Variety
In everyday speech the term can be a synonym for type or kind. To plant breeders the term variety has more specialized meaning although even here it can be used flexibly. The term variety does not rank as a botanical phrase and therefore lacks the scientific precision which taxonomy seeks to achieve.3
Variety means a plant grouping with a single botanical taxon of the lowest known rank which can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one of the said characteristics and considered as a unit with regard to its suitability for being propagated unchanged.
Section 2(za) of the Indian Act defines variety to mean a plant grouping except micro organism within a single botanical taxon of the lowest known rank, which can be defined by the expression of the characteristics resulting from a given genotype of that plant grouping distinguished from any other plant grouping by expression of at least one of the said characteristics; and 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.
Need for protection of Plant Variety
Before the advent of modern technologies in the agricultural sector, inventions based on living organisms (like breeding of new crop varieties through hybridization, back-crossing and selection) were considered as natural and obvious discoveries that could rarely be copied and did not warrant any protection. Developments in biotechnology has changed the situation dramatically. Biotechnological inventions require substantial investments, and their processes and products can easily be copied. Such kind of plant breeding is increasingly being carried out by large multinational corporations in most developed nations and by some State-run establishments in a few developing countries. The establishments definitely look for returns on their investments to support and provide incentive for their future innovations. Intellectual Property Protection provides a way for ensuring financial revenues, and also protects novel innovations and crop material from illegal commercial duplication.
This opens floodgate of questions regarding the need of such protection in less developed countries. The third world societies indigenous people and other farming communities, had no concept of ownership rights over life forms. In particular, no law existed to grant exclusive ownership rights to traditional plant breeders for creating new plant varieties and crops.4 The third world farming communities developed and innovated new crop varieties to respond to their climate, soil and food needs, in a spirit of free exchange.
The model of protection envisaged in the TRIPs Agreement, fails to give due recognition to interests of the indigenous farmers in the developing countries, as it is modelled to serve the purposes of the developed world economies. This has further widened the North-South divide in the WTO. The UNDP Human Development Report5 aptly summarizes the western viewpoint by stating that technology is created in response to market pressure not for needs of the poor people who have little purchasing power. The report also states that policy and not charity is needed to build technological capacities in the developing countries. It is clear from these statements that technology innovators in the developed nations of the west are not interested in developing technology for public benefit of the poor and the needy, but are increasingly interested in tightening the implementation of TRIPs (IPRs) in all fields of technology, including agriculture.
The International Legal Framework
The concept of ownership of plant varieties emerged for the first time in 1960s. A few industrialized countries set up an agreement amongst themselves known as the Union for the Protection of New Varieties of Plants (UPOV) in 1961. States which became members were required to grant ownership rights over modified varieties of plants to the commercial breeders. The 1991 revision of UPOV6 further strengthens the interests of the industrial agriculturalists, it sanctions double protection (PBRs and regular patents) to all plant species and extends rights of protected varieties to harvested material. The right of farmers to save seeds for their own use is severely restricted.
Now the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) under the World Trade Organization (WTO) obliges all its members to provide for the protection of plant varieties either by patents or by an effective sui generis system or a combination of both.7 Thereby making ownership of plant varieties mandatory, globally. The most important Article of the TRIPs agreement with respect to agricultural innovations is Article 27, which defines patentable subject-matter and possible exclusions from patentability. The obligation at present is limited to micro-organisms and plant varieties, that is to say that WTO member States now have a discretion not to allow for IPR protection of plants and animals, save for micro-organisms, plant varieties, non-biological and microbiological processes. The text of Article 27.3(b) is the result of the attempt by certain northern countries and the biotechnology lobby to impose private, monopolistic rights over biological resources. The obligations under Article 27.3(b) can be broken down into three components8 viz.:
* A country MAY exclude from patentability plants, animals and essentially biological processes for the production of plants and animals;
* A country MUST allow patents for micro-organisms and non-biological and microbiological processes for the production of plants or animals; and
* A country MUST provide protection for plant varieties, either by patents or by an effective sui generis system or a combination thereof.
Article 27.3(b) represents a major development in IPR law; since it blurs the distinction between inventions, which are patentable under traditional patent law, and discoveries, which are not.9 The majority of the developing countries, during the TRIPs negotiations, objected to the notion of the patentability of biological resources. Developing countries are concerned that the control of the nature and distribution of new life forms by transnational corporations (TNCs) may affect their food security and development prospects. There are major economic, environmental and ethical concerns about life patenting, such as its negative impact on consumer rights, biodiversity conservation, environmental protection, indigenous rights, scientific and academic freedom, and ultimately, economic development of many developing countries dependent on new technologies.10
The fact that some form of protection is mandated under Article 27(3)(b) means that the question is more of whose protection and whose monopoly. Since every State has the liberty to arrive at its own provisions for sui generis system to deal with plant varieties, it provides space to develop upon measures that could take the form of rewards and subsidies to farmers to follow agricultural practices to enhance agricultural diversity; but be based on free exchange of seeds with no exclusive monopolies.11 On the other hand, UPOV has been trying to sell itself as the best solution for Governments to fulfil their TRIPs obligations in Asia.12 The UPOV Convention gives exclusive patent-like protection to corporate plant breeders. This means that companies like Monsanto and Novartis are allowed to extract fees from farmers and other breeders who want to use new seeds. The UPOV option was not suitable for India. It only protects the interests of the formal seed sector, ignoring the interests and rights of millions of farmers who have been breeding and developing seeds for thousands of years. A sui generis law modelled on UPOV would have accelerated the process of genetic erosion in India. Thanks to the determined effort of various NGOs, scientists, and civil society groups that the national legislators enacted a legislation which has a credible farmer and community rights component to offset the adverse effect of monopolistic rights like Plant Breeder Rights (PBRs).
Objects, Features and Analysis of the Protection of Plant Varieties and Farmer Rights Act, 2001
The Indian Plant Variety Bill titled Protection of Plant Varieties and Farmers Right Bill, was passed by the Lok Sabha on 9th August, 2001 is now an Act. This is the first piece of legislation in the world which recognizes the phenomenal contribution of the farm families in conserving biodiversity and developing the new plant varieties. India has purposefully opted for a sui generis system of protection of plant varieties instead of patents in order to recognize contribution of farmers and tribal communities in conserving agro-biodiversity over centuries.
There are four major objectives of the Act viz.
To recognize and protect the rights of farmers for their contribution made in conserving, improving and making plant genetic resources available for development of new varieties.
To protect plant breeders rights, to stimulate investment for research and development, both in public and private sector, for the development of new plant varieties.
To facilitate the growth of seed industry in the country, to ensure the availability of high quality seeds and planting material to farmers.
To give effect to Article 27.3(b) in Part II of the TRIPs Agreement.
The striking feature of the Act is that it protects the interests of farmers and other farming communities by granting rights and not by providing exemptions. Ever since the drafting of the Bill began, the demand has been for a farmers right that would allow the farming community to retain the same control over seed production and the use they always had as against the Plant Back Rights13. In addition as part of farmers rights, the payment for use of farmer varieties and their informed consent along with a provision for compensation if the poor quality spurious seeds led to crop failure were necessary to provide adequate protection to farmers. Also, to make certain that the farmer does not get displaced by the new companies as a seed producer; the key element was to ensure that the farmer retained the right to sell seeds to other farmers.14 This right to sell seeds was crucial to maintaining the livelihood basis of the farming community and Indias self reliance in agriculture. This clause15, now in the Act was most fiercely resisted and till now was the major bone of contention. This formulation allows the farmer to sell seeds in a way he has always done, with the restriction that this seed cannot be branded with breeders registered name. In this way both farmers and breeders are protected. The breeder is rewarded for his innovation by having the control over the commercial market but without being able to threaten the farmers ability to independently engage in his livelihood, and supporting the livelihood of other farmers.
The pivotal importance of farmer having the right to sell (not save or exchange, but sell) seed has to be seen in the context of seed production in India. A strategy to control seed production would have to rest on knocking the farmers out of the market by legal means. If the farmer can be stopped from selling seed (and by implication producing seed), the market automatically looks up to the next alternative, the large seed companies. Weak farmer rights would allow the seed corporations to dominate the seed market, on the other hand strong farmer rights keeps the farming community alive and allow them to exist as a viable competitor to the seed corporations.
Apart from the right to sell non-branded seeds of protected varieties, the rights of farmers and local communities are protected in other ways too. There are provisions for acknowledging the role of rural communities as contributors of land races and farmer varieties in the breeding of new plant varieties. Breeders wanting to use farmer varieties for creating essentially derived varieties (EDVs) cannot do so without the express permission of the farmers involved in the conservation of such varieties. The Act also enables the registration of farmer varieties even if the farmer themselves cannot do so, due to lack of awareness or illiteracy as any one is entitled to top register a communities claim.16
Sharing of benefits accrued from protected varieties to a plant breeder is one of the features of the Act.17 In case of a voluntary declaration by a breeder or an establishment of the fact that a given variety was developed using indigenously derived genetic resources from public institutions, NGOs, private breeders, tribal communities, villages a part of the commercial proceeds from such variety shall be required to be paid as the benefit share.18 Such benefit share is to be deposited in the National Gene Fund (NGF).19 The Act carves out certain exceptions for purposes of scientific research. Free access to protected varieties for bona fide research use, including development of new variety using the protected varieties as initial varieties. Provided such development does not involve repeated crosses of a protected variety.20
The Act also provides for efficacious rights to the plant breeders. Strong protection is accorded to plant breeders; infringement might result in severe punishment in the form of substantial fines and jail terms.21 Moreover, violation of breeder rights can be construed at several levels. It not only applies to the variety but also its packaging. Infringement will be established if the packaging is same or similar. It will also invite a passing off action. Breeder rights have been strengthened to the extent that in case of mere suspicion the onus of proving innocence is placed on the alleged violator. This is somewhat excessive, as in normal course the law requires the accuser to furnish proof and so it must remain in this case too.
The Act includes public interest clauses, like exclusion of certain varieties from protection22 and grant of compulsory licenses23.
The Indian Farmers Perspective
The Indian farmers are a highly heterogeneous group in terms of land holdings and income level and hence are not likely to benefit from the Act in identical terms. The farming community can be broadly classified into three categories viz. marginal, small and medium and large farmers, on the basis of land holdings and income level.
India has a large population of tribals most of who depend on agro-forestry. These tribal and marginal farmers, who are extremely poor and have small or no land holdings of their own, rarely adopt modern method of cultivation. Only in exceptional cases such farmers have been found to use improved varieties, therefore they are not likely to benefit from any growth in the plant breeding industry. On the contrary if they continue to remain unaware of farmer rights, they stand to lose from unauthorized use of their land races and other germplasm.24 Small and medium farmers who lack resources and necessary technical awareness to use modern farming methods are highly vulnerable to the risk of high input farming. This class of farmers can benefit immensely provided they are made aware about the gains and risks of modern farming and ways to minimize the latter. The large farmers, who are financially secure, are well aware of the new technology and are willing to pay for it. Such farmers clearly stand to gain from the commercial protection of plant varieties.25
The Perspective of the Seed Industry
Domestic seed sales in India are still very low and the seed industry in principle stands to gain tremendously from the Act, which is likely to boost seed sales. However the strong farmer rights component in the Act limits the profit from development and sale of pure line varieties. For these reasons the private sector plant breeder will concentrate on the highly remunerative hybrid seed sector while the onus of developing varieties of pure lines for high input and marginal areas will fall upon the public sector and the farmers. Major plant breeding in India is done by the Indian Council of Agricultural Research (ICAR). In last decade however the productivity levels have slowed to 1.5 %26. If the food security has to be maintained at ecological sustainable manner, judicious application of modern biotechnological tools for plant breeding will have to be explored. The inherent problem with agricultural biotechnology is that its methods and products are increasingly being patented and licensed to the private seed companies. Patenting of each incremental improvement in a crop means successive layers of IPR accumulate such that the germplasm is highly IP encumbered. Another important fact is that, since agricultural biotechnology is dominated by few, transnational companies (TNCs) form the developed world, which own many important IPRs in this field, it would lead to concentration of power in the hands of the few.27
The Indian farmer deserves protection because of his enormous contribution to the biodiversity conservation. The protection under the Act is directly proportional to the contribution of the farmers in conservation of land races and development of plant varieties. Any such legislation is bound to encounter limitations in its implementation. This is more so in the case of the Indian peasantry who are numerically enormous, less literate and less resourceful than other sections of the society. It is of utmost importance in this context, that scientists, lawyers, NGOs and other informed sections of the society take on the responsibility of generating the required awareness among farmers.
The Act is likely to boost plant breeding activity especially in the private sector resulting in the increased choice of germplasm. However, all farmers will not benefit equally because the private seed companies will concentrate on hybrid seed production and high input farming. Small and medium farmers will have to depend upon seeds and technology generated by the public sector plant breeder. The small and medium farmers suffer from the paucity of capital and more importantly lack of awareness. The public sector plant breeding institutions and the domestic seed sector suffers from the poor access to protected technology largely in the hands of large multinational seed companies.
The solutions have to address all the categories of the farmers and should include the following:
Increase public sector expenditure in biotechnology and plant breeding methods and ensure that the fruits of modern plant breeding are pro-poor. The public sector should work towards becoming technically equipped and competent in man power development and education to benefit from the new tools of biotechnology.
Make State-run extensive services much more aggressive in imparting benefits of technology to farmers, more importantly, educate them about harms of its excessive use. Small and medium farmers should be equipped to exercise their choice over adoption of new technology. Integrated pest and nutrient management technologies need to be vigorously popularized among small farmers.
Farmers have to be assisted in in situ biodiversity conservation if the clause of benefit sharing in the Act is to be implemented as a reality.
In the international arena, India needs to decide through which international platform it will interact with other nations. It would not be a very good idea to join the UPOV system which is practically inimical to the needs of developing nations. It does not even have the notion of farmers rights. A draft treaty has been prepared by an NGO called Gene Campaign, along with the Centre for Agricultural and Scientific Development. This alternative is named as CoFaB28 The CoFaB treaty seeks to provide reliable good quality seeds to small and large farmers; maintain genetic diversity in the field and provide for breeders of new varieties to have protection for their varieties in the market, without prejudice to public interest; acknowledges the role of farmers as creators of land races and traditional varieties which form the foundation of modern plant breeding. The UNDP Human Development Report (1999) has described CoFaB as a strong and coordinated international proposal which offers developing countries far better alternative to the UPOV, by focusing on the need to protect farmer interest, food and nutritional security goals. Once consensus emerges amongst the developing nation, this would be a good framework for international interactions.