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Plant breeders rights
International Obligations & Domestic Legislations
Conflicts And Its Resolution
The concept of Intellectual Property was originally not extended to include plant variety management. The rationale behind this exclusion can be attributed to a delicate balance that intellectual property strives to maintain, giving due importance to the necessity of ensuring public access to a common knowledge pool. After all, the agricultural sector was indispensable for meeting food requirements and permitting exclusive rights for individual appropriation was an untenable proposition. This, however, began to change late into the 20th century with the relatively decreasing economical interest in the agriculture sector in developed countries, paving the path for growth of the private sector. The changing circumstances called for legislation to protect the interests of the private sector. The law needed to keep pace with this transition to ensure that sufficient incentive, in the form of legal protection of plant varieties, could be provided to promote innovation. (Cullet, 2005, pp 226-227)
With this change, came resistance. Permitting patenting of plant varieties would introduce patents on life forms. Was that desirable? Moreover, this concept was inconsistent with the traditional practice of exchange of seeds between farmers. (Cullet, 2005, pp 226-227)
IPR, in the form of Patents and Plant Breeders' Rights, were evolved to protect agricultural inventions. Plant Breeders' rights were particularly designed to protect new varieties of plants, thus enabling the plant breeders to protect their interests and allowing a monopoly on commercial exploitation of their invention for an ascertained time-period. Still, developing countries, like India, with their weak IPR management posed some concerns for these interests - for instance India still does not recognize patents on life forms or plant breeders' rights. But a change has been put in motion with the implementation of Article 27 of the TRIPS agreement which demands that developing countries adequately protect the rights of plant breeders either through Patents or Plant Breeders' Rights. It allows the developing countries to adopt a sui generis system to suit their needs. (Alam, 2004, pp 123-126)
The clear north-south divide on this issue is made more visible in light of the existing international agreement that covers Plant Breeders' Rights, UPOV, which has no developing countries members on-board. As a result, in effect the agreement tends to the socio-economic interests of industrialized countries where farmers are no more a part of the larger population. Transposing this proposition to a country like India, where a considerable bulk of the population is engaged and dependent in the agricultural sector and where farmers have a control over plant breeding and seed supply becomes practical unfeasible. (Shiva, 1996, pp 1628-1630)
Domestically, the Indian legislation which takes up the issue of Plant Breeders' Rights is the Protection of Plant Varieties and Farmers' Rights Act, which was passed by the parliament in 2001 after a decade long process of drafting and re-drafting due to the criticisms of people's organizations, in particular those representing the farmers, as the bill had failed to articulate farmers' rights as ownership rights. (Seshia, 2002, pp 2741-42). Their argument was simple - farmers in the process of growing crops come across new varieties of seeds which prove to be beneficial for their output. Therefore it was only logical that the Act should focus on protecting the interests of the farmer and his role as a breeder innovating diverse varieties. No doubt, such rights of the farmers would be curtailed by the implementation of Intellectual Property Rights in the field of agriculture.
With this foundation in place, this paper shall look into and argue against the belief that creation of private wealth is the only incentive for innovating or generating knowledge, especially in the field of plant variety management. In doing so, this paper shall agree with the proposition that greed is not a ‘fundamental fact of human nature' but a dominant tendency in societies that reward it. As a corollary, it shall look into the conflicts associated with the granting of exclusive rights in plant variety management.
Innovations in the field of seeds and plant breeding, whether in formal or informal systems, have primarily been guided by the larger human good. IPRs, on the other hand, favour monopolies with which come the risks of wiping out farmers' rights to save and exchange seeds and restricted breeders' rights to access protected varieties for further breeding. It is believed that the enforcement of a strict IPR regime, in say India, would only make the condition of the already hapless farmers worse by interfering with the centuries old process of ‘innovation for common benefit'. (Shiva, 1996, pp 1625-29)
Ip Protection & Plant Breeders' Rights: Changing Global Scenario
Over the next four decades, the world population is set to cross the 8.5 billion mark. To feed this population, we must triple our agricultural output. We need breakthroughs - in plant variety management, pest control methods, post harvest management and preservation.
The strongest argument in support of IPRs being made applicable to plant varieties is the perception that the potential for profit generation will lure greater participation for breeding. (Watal, 2003)
This idea was first toyed with in developed countries and was soon set to sweep the developing world with the signing of the TRIPS agreement which compels member countries to modify their IPR regimes to provide for a minimum level of IPR protection, whether through patents or sui generic systems, for living forms used in agriculture to meet an undefined standard of ‘effectiveness'.
The Union for the Protection of New Varieties of Plants, 1978 (UPOV) established the most widespread standard for ‘effective' IPR protection at the time of TRIPS negotiations. It was considered to be a model for developing countries to frame their legislation containing provisions for the freedom of other breeders to use the protected variety as starting material for breeding further varieties without any requirement for an authorization and any payment of royalty, also known as breeders' exemption. (Alam, 2004, p. 125)
However, UPOV was revised in 1991 to limit this breeders' exemption and now requires that the breeder and researcher pay a royalty to use the protected varieties to breed other varieties. It introduced the concept of “essentially derived varieties” defined in Article 14.5 of the UPOV which restricts the marketing of a newly developed variety if it is genetically similar to a protected source variety. As a dramatic shift from the 1978 Convention which barred plant varieties from being patented, the 1991 Convention facilitated a combination of Plant Breeders' Rights and Patents.
Although developing countries are under no compulsion to model their sui generic systems on UPOV, it is the only international model available on Plant Breeders' Rights. Given the ambiguity over the interpretation of “effective” in Article 27 , TRIPS, then 1978 version of UPOV is preferred by most developing countries. This is evidenced by the fact that thirteen developing countries who are members of UPOV are bound by the 1978 version. (Shiva, 1996, 1628-29)
UPOV 1991 has faced heavy criticism for being unsuitable for adoption by developing countries because it gives excessive control over plant varieties. It gives much greater control to breeders and is suitable only for developed countries where plant breeding is primarily undertaken for commercial purposes. It is insensitive to the needs and the realities of the developing world. Even its criterion for eligibility is biased in favour of organized breeding. It overlooks sustainable use of resources or the protection of the interests of traditional knowledge holders.
In the light of these circumstances, the developing countries afflicted with these concerns must come together to devise a system formally recognizing Plant Breeders' Rights while addressing the rights of the farmers and other associated concerns since Article 27 leaves room for such a sui generic system.
Plant Breeders' Rights Vis-À-Vis Farmers Rights
The Protection Of Plant Varieties & Farmer's Rights Bill, 2001
For years, India resisted a patent regime for seeds or plants and protecting plant varieties and instead expressed its belief in the concept of common heritage of mankind - that agricultural resources were to be freely used and shared by all. The changing global scenario, the rapid developments in the protection of genetically developed plant varieties and the consequent need to protect traditional knowledge required that a domestic legislation be enacted and a mechanism put in place to establish an effective system for protecting plant varieties and making available plant genetic resources for the development of the new plant varieties. (Sahai, 1994, pp 1573-74)
The belief that such protection could boost the growth of the seed industry and ensure availability of high quality seeds and planting material led to the enactment of the protection of plant varieties and farmers' rights act, which signalled India's intention not to ratify the UPOV Convention. The law did not come into existence without debate and controversy; it took nearly ten years for the Act to be passed.
The highlights of this Act are:
Breeders can claim IPR, provided their varieties are novel, distinct, uniform and stable.
This IPR comes as a Plant Breeders' Right - an exclusive right to produce, sell, market, distribute, import or export the variety.
Scope of this right include:
Term of 18 years (trees and vines) and 15 years (extant varieties & other fields).
Allows usage of variety for conducting research - Breeders' exemption .
Discourages protection where contrary to public health.
No protection for any genera or species involving genetic use restriction and terminator technology.
Provision for Farmers' Rights : Farmer can save, use, sow, resow, exchange, share or sell his farm produce including seeds of protected variety in the same manner as before, except ‘branded seed'.
Therefore, the Act recognizes the farmer as more than just a cultivator - a conserver of the agricultural gene pool and a breeder. The Farmers' varieties are to be registered with the help of NGOs to protect his interests.
The farmer is restricted from selling branded seed (any seed put in a package or other container and labelled indicating that such seed is of a variety protected under the Act), allowing him to sell other seed like he traditionally has, but protecting the breeders' interests as well. This strikes a fine balance between these two often conflicting rights.
The concept of Benefit Sharing is to be implemented through the National Gene Fund. Farmers who provide material used in varieties registered would be given recognition and rewarded through this Fund.
It imbibes the principle of Compulsory License in the event that the variety is not available to the public at a reasonable price after three years of registration, securing the objectives of ensuring competition and access to essential services at reasonable prices keeping individual interests subservient to public interest.
Researchers' Rights : Researchers can use protected varieties for conducting experiments. The protected variety can be used as an initial source of variety for the purpose of creating other varieties.
Essentially Derived Variety : The Indian legislation covers the protection of essentially derived varieties and restricts the marketing of a newly developed variety if it is genetically similar to a protected source variety without. authorization from the breeder. (Dhar & others, 1995, pp 19-21)
Establishment of the National Protection of Plant Variety and Farmers' Rights Authority as the apex body following the UPOV model for registration.
This legislation, not unlike the related international developments at the time, must also be seen in the backdrop of political and economic considerations under which it emerged. Along with the rest of the world, India was also witnessing a shift from public to private sector in the seed industry. This powerful seed industry lobby, comprising mostly of transnational giants, is believed to have had some influence in pushing for a regime enabling Plant Breeders' Rights.
The provisions of the Act are riddled with some apparent flaws. The Act could have been drafted in a manner more privy to practical realities, but instead the procedural compliance to the provisions seems a bit far fetched. Moving on to substantive deficiencies, the definition of “Essentially Derived Varieties” as under Section 2 (i) is almost a verbatim reproduction of Article 14.5 of the UPOV Convention which has been at the forefront of debate and controversy. The Act also remains silent on the issue of availability of the sophisticated technical capacity required to effectively address this question.
Section 43 of the Act extends protection to farmers by shielding them from prosecution for infringement of the breeders' rights wherever they can prove that they were unaware of the existence of such a right. This well intended, but badly drafted, provision overlooks to define what constitutes a violation of the breeders' right. For instance, a farmer could sell a generic seed of a protected variety and still take the benefit of this section. On the other hand, what constitutes sufficient proof that the farmer was unaware of the existence of such a right is also left undetermined.
Taking full stock of this Act, it can be concluded that there is much left to be desired and a considerable room for improvement. Useful suggestions that have emerged out of debate over the Act include treating Essentially Derived Varieties at par with conventionally bred varieties to provide the same opportunities for examination and opposition as provided for registration of other varieties in order to enhance transparency. Also, the authority entrusted to overlook the implementation aspects is often accused of exhibiting little interest and being plagued with bureaucracy. These issues, amongst others, need to be addressed if the objectives of the Act are to be secured and to lessen the hardship of the breeders and the farmers.
Notwithstanding these shortfalls, the legislation has been hailed as a step in the right direction and lauded for being ‘progressive' and suitable for a developing country like India. It emerges as a champion for the cause of farmers' rights; balancing the rights of well defined breeders with those of the farmers within the framework of TRIPS. Its deviations from the provisions of UPOV have been welcomed by the supporters of farmers' rights. With this law in place, interesting avenues have opened for the development and regulation of breeders' and farmers' rights giving due acknowledgment and protection to both.
The Seeds Bill, 2004
The Seeds Bill, 2004, which has been tabled in the Rajya Sabha, deals with the registration and certification of seeds and mandates the selling of only registered seeds. Therefore, more than what the Bill seeks to regulate, the issue is about what the bill does not regulate, i.e. unregistered seeds. It also restricts the farmers from selling certain seeds which may not conform to prescribed minimum standards. In effect, the Bill disables farmers from using a brand name and entering seed trade, favouring the giants in the seed industry. It is practically difficult for farmers to register their seeds because of the procedural aspects of registration and the farmers' breeding criteria which are much broader than what the Bill could possibly seek to permit.
While the farmer may still be able to sell harvested registered seeds, with the effect of PPVFR Act, 2001, if the registered seed happens to be a protected variety, the restrictions on the farmers become even more stringent. The Bill stands out when compared to the PPVFR Act because while registration is voluntary under the Act, it is sought to be made mandatory under the Bill.
The position of the Bill on registration is still a little ambiguous. If it allows registration only for the party who develops the variety, it confers exclusive marketing rights. Plant Breeders' Rights, through this, are empowered to over-reach some critical provisions of the 2001 Act which grant farmers' rights. On the other hand, if allowed for multiple parties, it confers exclusive non-marketing rights, paving the way for a free-for-all trade on any variety, including farmers' rights. Another area of conflict may arise in the case of hybrid varieties where the pedigree remains undisclosed as the Bill may lead to the establishment of a commercial monopoly without acquiring the plant breeders' rights.
Relevance With Respect To South Asian Countries
The seed industry, estimated at over $30 billion within North America, Europe and Japan alone, is set to conquer markets in the developing world once intellectual property over plant genetic research is secured through the implementation of TRIPS. This poses an obvious concern for developing countries which seek to protect and promote their own plan breeding and plant genetic diversity along with the rights of the local communities. (Shiva, 1996, pp 1626-1629)
The issue of plant breeders' rights and its conflict with farmers' rights marks a divide of interests within the group of developing countries. Developing countries have been reluctant to join the UPOV (only Japan, South Korea and China are members), which is dominated by developed countries. The contrasting positions of India and China are evidence of these differential interests.
For China, biotechnology is expected to provide a domestic production boost and an advantage for exports. With this realization, China has become a global leader in plant biotechnology with expansive research underway on plant species and genes. IPR protection afforded to genetically developed varieties has had a positive impact on China's economy.
This is not the case with India, which provides an interesting opportunity for a case-study on the clash between the demands of a global IPR regime and domestic sovereignty over resources. The entry of private sector players in the field of seed management is a recent development in India. However, by no means can the role of the farmers be dismissed as insignificant in breeding and selection of varieties. India is not a member of any of the UPOV Conventions and has a sui generic system wherein farmers are the main contributors to the conservation and refinement of germplasm, much unlike industrialized countries which are far ahead in the use of biotechnology for plant breeding. (Sahai, 1994, p 1573)
Thus far, the focus of our IPRs has not been what was envisaged by the UPOV Conventions where primacy is given to the breeders. After all, with the importance placed on agriculture in our economy, it is not in India's interest to put unreasonable restrictions on the rights of the farmers to sow seeds. Therefore, the State has been interventionist and the public sector continues to play a significant role irrespective of the growing influence of the private sector. (Sahai, 1996)
In the search for an effective alternative to UPOV, a model statute was drafted by the combined efforts of OAU and CoFAB, with a candid admission that developing countries needed to focus on protecting farmers' rights and that the food and nutritional goals of the people could not be considered any inferior to breeders' rights. A variety of issues which developing countries are familiar with found place in this model. These included the supply of quality seeds to farmers, acknowledging the role of the farmers as creators of breeds, maintenance and refinement of germplasm and assistance to breeders to gain protection for their varieties.
India has emerged as a frontrunner voicing the concerns of the developing countries, and must take the initiative as a leader in negotiations over the TRIPS provisions to work towards a more unbiased trading system. This can be only be done by bringing to the fore the inequitable bargaining powers within the decision making forums and by taking a consistent and collective stand to address these concerns. Protecting biodiversity and genetic resources in the developing world is amongst the priority issue.
Domestically, our approach needs to be inclusive of different stakeholders in the equation and incentive must be given to them - stimulating foreign investment to boost the potential for biotechnological innovation and assuring small farmers of their ability to be able to sustain their livelihood and protect their knowledge and resources - through legislation.
Progress needs to be made to institutionalize the efforts to harmonize environmental and social impacts with plant variety management and strategies developed to support the breeding of varieties for resource-poor croppers. India has lagged behind in development of biotechnology and eco-friendly products (biofertilizers, biopesticides, etc) and needs to put in more research and development in these fields in a manner which complements the traditional methods.
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