One of the most controversial agreements that resulted from the Uruguay Round of trade talks (GATT, preceding WTO) is that relating to the granting of Intellectual Property Rights on biological materials through the Trade Related Intellectual Property Rights (TRIPS) system. Under TRIPS member nations are required to grant patents on microorganisms, non/biological and microbiological processes as well as effective IPR protection for plant varieties. TRIPS provides a choice for protecting plant varieties. Members may choose from patents or a sui generis system (particular to the nation) or a combination of the two.
Most developing countries including India have decided not to have patents for plant varieties and have instead chosen the sui generis option. The sui generis system (translating roughly into self generating) means any system a country decides on, provided it grants effective Plant Breeders Rights. TRIPS does not specify what kind of Breeders Rights and it does not say what else a member state can put in its law, apart from Breeders Rights. In short, TRIPS is a flexible system leaving a lot to the discretion of members. As a response to the TRIPS agreement, India has started enacting a series of domestic laws to implement the commitments it has made. The Protection of Plant Variety and Farmers, Rights Act, 2001, is the Indian sui generis legislation.
Hailed as a progressive, pro/developing country legislation, this law provides for well-defined Breeders Rights as well as strong and proactive Farmers Rights. Its intent is the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants. The Act recognises the necessity of protecting the rights of farmers in respect of their contribution made in conserving, improving and making available plant genetic resources for the development of new plant varieties. In addition, there are clauses to protect the rights of researchers as well as the public interest. The Indian legislation is the first in the world to grant formal rights to farmers in a way that their self-reliance is not jeopardized.
On registration of a particular variety, the plant breeder has rights of commercialization for the registered variety either in his/her own person or through a designated person. These rights include the right to produce, sell, market, distribute, import or export a variety, in short, full control over formal marketing. Violation of the breeder's right can be construed at several levels. It applies to the variety itself as also to its packaging. Infringement will be established if the packaging is the same or even similar, such that the package could appear to be that of the Breeder. Legally, a similar looking package will be considered "Passing Off" and so actionable. Any one other than the breeder can not use the registered name or denomination. The use of the same or similar name in any way, by action or even suggestion, will constitute a violation and will be punishable. Penalties are prescribed for applying false denomination and for selling varieties to which false denomination is applied .
The breeders rights have been strengthened to the extent that if there is mere suspicion of violation or infringement, the onus of proving innocence is placed on the alleged violator. This is somewhat excessive and needs to be toned down. The normal course in law is for the accuser to furnish proof for the accusation and so it must remain in this case too. Penalties can range from Rs. 50,000 to Rs. ten lakh as well as a jail term ranging from three months to two years, depending on the severity of the damage caused. If the violator is actually selling , offering for sale or merely in the possession of a registered variety belonging to someone else, the punishment is somewhat worse. Repeat-offenders face more severe sentencing and penalties.
Protecting breeders rights ensures that there is sufficient incentive for the seed industry to invest. At the same time, it is important to recognize that IPR (Intellectual Property Rights) protection alone does not necessarily deliver a successful product. To be bought, a particular variety must decisively provide an advantage. Otherwise, it will fool the farmers for a few seasons and then fail.
An IPR system in a country should not grant such strong rights to breeders that farmers suffer and their livelihoods are threatened. On the other hand, the breeders innovation should be rewarded so that they continue to breed useful varieties to benefit agricultural and food security.
The Act recognises the farmer not just as a cultivator but also as a conserver of the agricultural gene pool and a breeder who has bred several successful varieties. There are provisions for such farmers' varieties to be registered with the help of NGOs so that they are protected against being scavenged by formal sector breeders. The law allows the farmer to sell seed in the way he has always done, with the restriction that this seed can not be branded with the Breeder's registered name. In this way, both farmers and breeders rights are protected. The breeder is rewarded for his innovation by having control of the commercial market place 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 the farmer having the right to sell (not save, not exchange, but sell) seed has to be seen in the context of seed production in India. In India, the farming community is the largest seed producer, providing about 87% of the country's annual requirement of over 60 lakh tons. If the farmer were to be denied the right to sell, it would not only result in a substantial loss of income for him but far more importantly, such a step would displace the farming community as the country's major seed provider. Legal sanction for farmers rights keeps the farming community alive and well as viable competitors and an effective deterrent to the take over of the seed market by the corporate sector. Control over seed production is central to food security which is in the forefront of national security.
Apart from the right to sell non-branded seed 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 landraces and farmer varieties in the breeding of new plant varieties . Breeders wanting to use farmers varieties for creating Essentially Derived Varieties (EDVs) can not do so without the express permission of the farmers involved in the conservation of such varieties. Any one is entitled to register a community's claim and have it duly recorded at a notified center. This intervention enables the registration of farmer varieties even if the farmers themselves cannot do this due to illiteracy or lack of awareness. If the claim on behalf of the community is found to be genuine, a procedure is initiated for benefit sharing so that a share of profits made from the use of a farmer variety in a new variety goes into a National Gene Fund.
Despite its good intentions of protecting the interests of the farming community, the formulation of this particular section is likely to create problems in implementation because the drafting is poor. The Gene Fund should be the recipient of all revenues payable to the farming community under various heads. Farming communities should collectively, rather than individually, access this money, except in clear cases where an identifiable farmer's variety has been used. Farmers should have the right to decide how this money that they have earned will be spent. The use of the money should not be restricted to conservation or for maintaining ex situ collections.
The method for fixing and realising benefit sharing should be made simpler and easier to implement. One approach to fixing benefit sharing could be a system of lump-sum payments, based for example on (projected) volume of seed sale.
Protection Against Bad Seed
In providing a liability clause in the section on Farmers Rights, the farmer in principle is protected against the supply of spurious and/ or poor quality seed leading to crop failures. But at present there is too much left to the discretion of the Plant Variety Authority which will fix the compensation. This could lead to arbitrary decisions and should be amended. (Sahai, 2001 a,b)
Rights Of Researchers
All IPR systems must strike a balance between the monopoly granted to the IPR holder, in this case the plant breeder, and the benefits to society, in this case the farmers and consumers. Since nobody concerned with public interest would want plant breeding to shift into just a few hands, it is important to maintain competition and vitality in the plant breeding sector. That is why freedom and rights for other researchers to use all genetic material, including IPR protected material, is important. The Bill has provisions for researchers rights which allows scientists and breeders to have free access to registered varieties for research. The registered variety can also be used for the purpose of creating other, new varieties. The breeder can not stop other breeders from using his/her variety to breed new crop varieties except when the registered variety needs to be used repeatedly as a parental line. In that case authorisation is required.
There is however some difference of opinion. Some view that the Indian law actually grants very restricted rights to researchers because of the acknowledgment of Essentially Derived Varieties, EDV. It is felt that all kinds of research will become subject to the breeders authorization if a protected variety is used for research. In the Indian Act, the Breeders authorization is needed for making EDVs.
Protection Of Public Interest
The PPV legislation includes public interest clauses, like exclusion of certain varieties from protection and the grant of Compulsory Licensing. To secure public interest, certain varieties may not be registered if it is felt that prevention of commercial exploitation of such variety is necessary to "protect order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment".
The Act also provides for the granting of compulsory license to a party other than the holder of the Breeders certificate if it is shown that the reasonable requirements for seeds have not been satisfied or that the seed of the variety is not available to the public at a reasonable price. The breeder is entitled to file an opposition but should the charge be valid, the breeder may be ordered by the Authority to grant a compulsory license under certain terms and conditions including the payment of a reasonable license fee. Compulsory License however will not be awarded if the Breeder can demonstrate reasonable grounds for his inability to produce the seed.