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  Farmers' Interests Recognized in Indian PBR Bill
By
Biswajit Dhar, Beena Pandey and Sachin Chaturvedi

  
Keywords:  Plant breeders' rights; Farmers' rights; India; Private industry; Seed; General Agreement on Tariffs and Trade (GATT).
Correct citation: Dhar, B., Pandey, B. and Chaturvedi, S. (1995), "Farmers' Interests Recognized in Indian PBR Bill." Biotechnology and Development Monitor, No. 23, p. 18-21.

Indian agriculture stands at a cross­roads today as the government prepares to bring forth legislation on plant breeders' rights (PBR). By introducing PBR, India would fulfil commitments made under GATT and accommodate the demands of the private seed industry. India is the first country that tries to give the concept of Farmers' rights a legal footing in PBR legislation. Despite the attempts by the Indian legislators to strike a balance between interests of farmers and private breeders, the PBR bill is challenged by both.

The aim of the proposed Plant Varieties Act (PVA) is "to protect the rights of the developers of new varieties to stimulate investment in plant breeding and to generate competitiveness in the field of research and development both in the public and private sectors with the ultimate aim of facilitating access to newly developed varieties and maximising agricultural production and productivity in the country." Further, the PVA states that "[t]he protection of farmers and researchers rights will strive to balance the need for stimulation and incentive to R&D with welfare of the farmers."
The proposed PVA clearly reflects the conflicting pressures that the Indian government has to deal with. On the one hand, there have been pressures mounted by advanced industrial countries for introducing plant variety protection in all countries, the culmination of which was the adoption of the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) under the aegis of the GATT. On the other hand there has been strong opposition by farmers against introduction of any form of intellectual property protection in the agricultural sector.
The PVA includes features of the International Union for the Protection of New Varieties of Plants (UPOV), which sets the minimum standard for PBR protection for contracting states. This UPOV convention was revised in 1991 and most contracting countries are now on their way to implementing the 1991 act into their national laws. The Indian PVA includes elements of both the revised act of 1991 and of the former act of 1978, and has introduced some new features (see table).

GATT consistency?
A major test of the PVA would be its consistency with the provisions of the agreement on TRIPs. This agreement stipulates that "members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof." At present, the only "effective"sui generis system existing for the protection of plant varieties is the PBR system as defined by the UPOV Convention. Whether the former 1978 act or the revised 1991 act, or both, will be considered "effective"is presumably subject to interpretation within the World Trade Organization. If dominant interests succeed in their attempt to get the UPOV 1991 act accepted as the sole effective sui generis system, the provisions should henceforth be examined against the provisions of UPOV 1991.
Most provisions of the Indian PVA are in line with those of the 1978 act of UPOV, while some are similar to the 1991 act. For example, the PVA also covers protection of "essentially derived varieties". This means that when a new variety is genetically too similar to a protected source variety, the marketing of the new variety still requires authorization of the breeder of that source variety. Introduction of the principle of essential derivation strengthens the protection of existing protected varieties. Even though UPOV member states are implementing the 1991 act, the question of how to determine whether or not a variety is essentially derived has not yet been resolved.
Other provisions of the PVA, however, depart from UPOV, such as those relating to Farmers' and communities' rights, and compulsory licensing.

Comparison of India's Plant Variety Act to the UPOV Acts of 1978 and 1991
 
UPOV 1978 Act UPOV 1991 Act India's Plant Variety Act
Scope of breeders' rights Production and marketing of propagating material  Production, marketing, exporting, and stocking of propagating material Production, marketing, exporting and importing of propagating of propagating material
Extent of coverage Min. 24 species 15 species All species 
Term of protection  Min. 15 years Min. 20 years 15 years 
Exception to rights Farmers' privilege in practice Farmers' privilege optional and under conditions Farmers' rights specifically recognized 
Compulsory licensing In case of public interest  (not defined)  In case of public interest(not defined) In case of public interest, defined  as reasonable availability of seeds, 
and supply of export markets 
 

Community and Farmers' rights
The adoption of a UPOV type of PBR legislation inherently puts the traditional world­wide farmer's practice of producing and exchanging seed into a different perspective. A PBR is the right granted by the state to breeders to exclude anyone from making commercial use of his variety without his/her permission. On­farm seed saving and local seed trade among farmers, therefore, would automatically become illegal when PBR legislation is adopted. However, because of political and practical reasons, UPOV member countries have usually allowed the traditional farmer's practices by considering seed saving a Farmers' privilege. Under the new UPOV 1991 act, the private seed industry has sought to reduce this privilege. Seed saving is actually forbidden, but an optional clause allows member states to exempt farmers from PBR protection under certain conditions. One of the conditions is that the "legitimate interests of the breeder", i.e. the royalty that should be paid to the breeder, are taken care of.
The implications of the new UPOV act have become most visible in the USA, where farmers had much more opportunities to trade saved seeds than European farmers. By amending the US Plant Variety Protection Act, in 1994, US Congress restricted this Farmers' privilege. US farmers are now allowed to re­plant seeds of protected varieties on their own farm, but are restricted in selling these seeds to their neighbours without permission of the breeder.
The Indian PVA goes beyond allowing the Farmers' privilege since it explicitly recognizes community and Farmers' rights by including a specific Clause on this subject (see box). The inclusion of these rights in the PVA bill resulted from the sustained, and sometimes violent, opposition by farming communities in several parts of the country against introduction of intellectual property protection (see Monitor Nos. 17 and 19). With Clause 22, India is the first country that considers supporting its private breeders through PBR legislation, without making the assumption that this is necessarily to the benefit of farmers. Support for, and rights of, farmers and farming communities is specifically provided for.
But India's pioneering role has its costs. The concept of Farmers' rights, although acknowledged by the UN Food and Agriculture Organization (FAO), suffers from the singular weakness that there is no internationally accepted instrument through which it can be exercised. Solutions are still to be found for problems such as who should be compensated, how, how much, and for what precisely.

Clause 22: community rights and farmers' rights

"(I) In recognition of the contribution made by rural communities with sustained perseverance in the development, on-farm innovations, enrichment and conservation of plant genetic resources, the Authority may, when deemed appropriate, require the breeder seeking protection under this Act, to provide for rewards and/or compensation to such communities or clusters, integrating considerations of equity and ethics such that rural communities may have a stake in and continue their efforts at preservation and improvement of land-races in the interests of intra and inter-specific variability amongst plants. 
(II) The farmers rights for the purpose of this Act mean the rights arising from the past, present and expected future contributions of farmers in ensuring conservation, improvement and availability of plant genetic resources, particularly in the centres of origin or diversity through a continuous engagement in an on-farm evolution of variations within varieties. For their above said contributions, the farmers are entitled to full benefits and support in the continuation of their contribution. It is the purpose of this Act to balance the protection of plant variety rights with need: 
(a) to foster the direct participation of the farmers and scientists in programmes and actions aimed at conservation and use of plant genetic resources; 
(b) to promote exchange of plant genetic resources as also related information on technologies; 
(c) to avoid excessive or un-controlled collection of germ plasm by an individual; 
(d) to bring recognition to the rights and needs of farmers who manage wild and cultivated plant genetic resources; 
(e) to facilitate compensation to farmers for their contribution to conservation and development of plant genetic resources; 
(f) to promote conservation and use of plant genetic resources consistent with the requirements of environment, local traditions and culture; 
(g) to avoid situations whereby benefits derived from the plant genetic resources by farmers are undermined. 
(III) For the purpose of achieving the objective as stated in sub-section (I), it is provided that additional rights to dispose of his farm produce as he chooses which includes his right to save use, exchange, share and sell propagating material of seed from seed obtained or descended from seed obtained of protected variety except sale of branded seed/propagating material with the denomination of varieties as in clause 17 for commercial purposes. 
(IV) The farmers will be entitled to suitable compensation from the breeder of protected variety and/or dealer in the event of failure in the stated performance of seed/propagating material of protected variety. 
(V) There shall be no sale within or outside the country of seed/propagating material of protected variety, that is not duly certified by an official Seed Certification Agency located in Union of India. 
(VI) The commercial sale and marketing of all branded seed shall be made through dealers registered with the concerned state authorities. 
(VII) There shall be no sale of such varieties of seed/ propagating material as are not registered with the Authority." 

Cited from the proposed PVA, India

Compulsory licensing
At the point of compulsory licensing the Indian PVA substantially deviates from provisions in UPOV. In the UPOV acts, the rights of the breeder are ensured in the sense that the state is not allowed to restrict the breeder from exercising his/her right, except in case of public interest, for example, when the produce of a crop is absent in the country and the PBR holder's seed supply of the cultivar to the public is not reasonable in quantity or price. When the breeder is forced to license out his variety, he/she must receive equitable remuneration.
The UPOV 1991 provisions on compulsory licensing are, however, very ambiguous, since it does not further define 'public interest'. It is therefore likely that any international assessment of the Indian PVA provisions on compulsory licensing will be based on the more precise, but very narrow, definition of grounds for compulsory licensing of the TRIPs agreement.
The provisions in the proposed PVA relating to compulsory licensing give "over­riding priority" to public interest vis­a­vis breeders' interest. It is proposed that the granting of compulsory licences should be authorized for reasons mentioned above, but also when "there is an overseas market for sale of seed, plant or reproductive material of the protected variety and the same is not being met by the breeder of the protected variety", or when the exploitation of a protected variety has been refused to a person or organization or when the breeder has included unreasonable conditions in the licence contract. The bill does not speak of remunerating the breeder. Obviously, these provisions in the proposed PVA offer the Indian government much more room for manoeuvre in deciding to grant compulsory licences, than do the provisions of UPOV or TRIPs.

Opposition by seed industry
The PVA bill has already led to strong protests on the part of the private seed industry in India. Principal opposition to the bill has come from the Seed Association of India (SAI). The SAI has made submissions seeking extensive changes in the proposed legislation in order to establish a pre­eminent position for the commercial breeder.
The most significant of the suggestions made by the SAI relates to the truncating of researchers' rights and an almost complete removal of the Farmers' rights. SAI proposed that access of researchers to propagating material should become possible only with the consent of the breeder, while, in the view of SAI, the very purpose of plant variety protection would be defeated if farmers start selling seeds of a protected variety. The seed association has also stated that compulsory licensing should only be resorted to in case of defined public interest, and with suitable compensation for the breeder.
Additionally, the SAI has suggested that storage of planting material should be protected. Elaborating on this point, SAI proposes that the stocking of the varieties provided in the draft legislation should be permitted only with the consent of breeders. It further indicates that stocks should be used only as reference material and for no other purpose.
Biswajit Dhar*/Beena Pandey*/Sachin Chaturvedi *

*RIS, 40­B Lodhi Estate, New Delhi 110 003, India. Phone (+91) 11 4617 136; Fax (+91) 11 4628 068.

Sources
FAO (1989), Interpretation of the International Undertaking on Plant Genetic Resources. Rome: FAO.

Hope Shand (1994), "US Congress Restricts Farmers' Rights." Seedling, October 1994.

UPOV (1992), Records of the Diplomatic Conference for the Revision of International Convention for the Protection of New Varieties of Plants. Geneva: UPOV.



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