INTRODUCTION:

For thousands of years, the farmers have developed plant varieties through traditional methods like cross breeding existing varieties. They also exchange seeds and share their knowledge among each other. This system of innovation and diffusion is still in practice in most of the developing countries. However, as world population grew and requirement of crop production increased, many commercial companies found that developing plant varieties is a profitable venture and they entered into this field. These companies invest a lot into research and development of plant varieties so they also require a protection for their innovations. Therefore, a new system of developing plant varieties based on intellectual property rights (IPR), has arisen.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of World trade organization now requires all member countries to provide some form of IPR protection on plant varieties, be it a patent protection or some sui generis form of protection. The rights provided by the IPR regimes are generally exclusive and the right holder may also sometimes get monopoly, if no close substitutes are available to the protected subject matter.

IPR rights were initially meant for non-living inventions and works from authors but now their scope has been enlarged to protect living matter as well. Many countries have also adopted specific IP legislations for plant varieties protection. The IP rights for plant breeding has been justified on the assumption that the new plant varieties will be generated and farmers will get access to a diversified pool of propagating material. However, the appropriation of plant varieties under this system of protection, has drastically affected the traditional model of creation and dissemination of plant varieties, which has been the cornerstone of development of agriculture and food production for thousands of years. The impact further intensified with the use of biotechnology for the development of plant varieties and the arrival of genetically modified plants.

In many countries, the companies were given patents for plants as well as protection for plant varieties and it helped many private companies to exploit a big part of the seed market.

It has been contended that the radical changes that have been brought about by the new Intellectual property protection regime for plants and plant varieties, have failed to take into account the rights of the farmers and therefore it leans more towards the protection afforded to the breeders. Thus, it is feared that this may lead to the loss of bio diversity and eventually put at risk food security and livelihoods of farmers. Therefore, there have been calls to balance the farmers’ rights vis a vis breeders’ rights.

Genesis and Development of Plant Variety Protection:

Origin and development of Plant variety protection in USA:

Due to on farm experimentation and discoveries, a crop seed market developed in the early 20^th century. It also led to the creation of a breeder’s lobby which persuaded the government to grant Intellectual property protection to them¹. Due to lobbying and persuasion, the Congress introduced Plant Patents Act, 1930. This granted patent protection for asexually reproduced plants² but excluded tubers.

Later in 1970, the protection for sexually reproduced and tuber propagated plants was also introduced through the Plant Variety Protection Act (PVP), 1970.It is notable that till 1995, under the PVP act, the farmers were permitted to keep unlimited amount of seeds of a protected variety and to sell up to half the yield. However, a US Supreme Court decision altered the situation by holding that farmers cannot save more than the quantity of seed essential to plant on their own farms³. Afterwards through an amendment to the Plant Varieties Protection Act in 1994, the sale of protected seed by farmers was subjected to the breeder's rights. In a while, the Supreme Court in Diamond v Chakrabarty⁴ extended the protection of patents to living organisms as well. So, the current position in USA is that the plant varieties are protected under three mechanisms: Utility patents, Plant patents and under Plant Varieties Protection Act.

Origin and development of Plant variety protection in Europe:

Earlier the colonies were a major source of agricultural produce for the European Nation but with the beginning of decolonization in early twentieth century, European countries had to give up most of its colonies. This generated the requirement of professional breeders who could fill the gap created due to loss of colonies. Similar to USA, the plant breeders of Europe also demanded IPR protection for plant varieties. However, The Association Internationale pour la Protection de la PropriétéIntellectuelle (AIPPI) which was a forum for discussion for plant variety protection, wanted a system different from patent system for the protection of plants varieties⁵.

Consequently, the International Association of Plant Breeders for the Protection of Plant Varieties (ASSINSEL), lobbied for a conference to form an international regime for the protection of plant varieties. So, a conference took place in Paris in 1961, where the International Convention for the Protection of New Varieties of Plants, establishing the Union pour la Protection des ObtentionsVégétales (UPOV), was adopted.

UPOV and its Evolution:

The UPOV Convention lays down binding minimum standards of plant variety protection. It was revised in 1972, 1978 and 1991. The 1972 and 1978 versions did not significantly change the scheme of protection, but the 1991 version has brought in substantial changes. It increased and boosted the rights of breeders and on the other hand it limited the rights of farmers.

It was made conditional upon countries joining the UPOV convention to have the capability to give it effect under their domestic laws⁶. Initially the accession to UPOV was slow and from developing countries, only the South Africa joined it. However, after the advent of TRIPS, which makes it mandatory for every member to have a plant variety protection regime, many more countries including many developing countries joined it. Developing countries were never involved in the creation and development of UPOV, therefore even till now a very few of them have acceded to the UPOV regime and those who have joined it are mostly who found it as an easy readymade instrument to comply with the TRIPS provision.

Plant Variety Protection in India:

India is a country where two-third of the population derives its livelihood from the agriculture and most of them are small and marginal farmers with small landholdings which provide little more than a bare subsistence for them. Therefore, India never allowed patents for seeds or plants and also did not have a plant variety protection system for decades. However, after acceding to TRIPS, India was obliged to provide either a patent protection or a sui generis system of protection for plant varieties⁷. India chose the option of a sui generis legislation instead of patent protection for plant varieties. Initially the government attempted to model the sui generis legislation on the lines of UPOV. But as UPOV is considered biased towards breeder’s rights due, the farming community protested. Then the government moved towards enacting a sui generis legislation which could balance the rights of both the farmers and the breeders and brought into existence the Plant Varieties and Farmers Rights Act.

Plant Breeders’ Rights in the Current Regime of Plant Varieties Protection:

The Plant breeders' rights provide protection to new plan and grant the breeders’ some exclusive rights over their propagating material. UPOV is the major international convention which delineates the breeders’ rights. The 1991 convention of UPOV even extended the breeders’ rights to discoveries they make regarding plant varieties⁸. Under the UPOV the following acts need authorization of breeder as regards the propagating material of the protected plant variety –

· Production or Reproduction (Multiplication);

· Conditioning for the purpose of Propagation;

· Offering for Sale;

· Selling or other Marketing;

· Exporting;

· Importing;

· Stocking for any of the above purposes mentioned in 1 to 6⁹.

The UPOV convention is joined by most of the major developed countries including USA, and many of the developing countries are on the verge of acceding to it, therefore the breeders right granted under it provide the breeders a significant and extensive protection across the world.

Breeders’ Rights in India:

Breeders can claim following rights with regards to their plant varieties-

· Right to produce;

· Right to sell;

· Right to market;

· Right to distribute;

· Right to import ;

· Right to export¹⁰

Farmer’s Rights in the Current Regime of Plant Varieties Protection

Farmers’ rights generally include the following –

· Right to share and reproduce plant material and seeds;

· Right to payment or compensation from the breeder for using the farmer’s plant variety to breed new varieties;

· Right to conserve biodiversity;

· Right to access to new agricultural technology.

The idea of Farmers’ rights was first introduced in the FAO International Undertaking on Plant Genetic resources¹¹. The resolution describes farmers’ rights as “rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources, particularly those in centers of genetic diversity. These rights are vested in the international community as trustees for present and future generations”.

The issue of Farmers’ Rights also came up in deliberations which led to the Convention on Biological Diversity (CBD). Though not directly, it recognizes farmers’ rights indirectly. Article 8(j) of CBD states that “Each contracting Party shall, as far as possible and as appropriate, subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles 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”. Later, the International Treaty on Plants and Genetic Resources for Food and Agriculture (ITPGRFA, 2001), became the first international binding treaty to recognize farmers’ rights. It came into force in 2004.

It lays down the following Farmers’ Rights –

· Right to protection of relevant traditional knowledge;

· Right to equitable share of benefits from the utilization of plant genetic resources;

· Right to participate in decision-making; right to save, exchange and sell farm-saved seeds or propagating material¹².

Farmers’ Rights in India:

Section 39 of Protection of Plant Varieties and Farmers’ Rights Act, 2001 provides following important Farmers’ rights¹³:

· Right to get registration and protection for self-bred and self-developed varieties

· Right to recognition and reward from the Gene Fund conservation and improvement of genetic resources

· Right to save, use, sow, re-sow, exchange, share or sell farm produce including seed of a protected variety

· Right to protection from overstated claims by seed companies regarding the performance of their registered varieties.

Problems in Balancing Farmer’s Rights vis a vis Breeders’ Rights:

Need for balancing:

Farmers’ rights come into conflict with plant breeders’ intellectual property rights because many farmers and their communities do not claim exclusive rights over plants and plant varieties they have cultured over time. Moreover, the plants and plant variety protection IP laws generally protect new and clearly distinguishable plant varieties, so, it becomes difficult to accommodate in them those farmers’ contributions, who use traditional informal methods to get desired characteristics in crops.

Approaches:

There can be three approaches to protect farmers’ rights–

· Putting traditional practices of farmers such as saving seeds or informally exchanging seeds, as an exception to the IPRs.

· Allowing farmers themselves to claim IPRs in plant varieties, they cultivate through their traditional methods.

· Recognition of farmers’ rights outside the IPR system, via benefit sharing mechanisms such as rewarding farmers for contributing to plant genetic diversity.

The UPOV uses the first approach by putting some exceptions to the breeders’ rights. The 1978 Convention of UPOV allows farmers to save seeds of protected varieties for use in the next season and also to exchange it with other farmers. However, the 1991 version of UPOV, restricted the above rights and requires compensation from the farmer for the use of farm-saved seeds and farmers' rights are confined only to save seeds for replantation on their own holdings¹⁴. On the other hand, ITPGRFA, puts a great focus on the above-mentioned third approach. The UPOV, particularly the 1991 version, focuses primarily and majorly on the breeders’ right while caring little for the rights of the farmers. So, to balance the rights of farmers’, The ITPGRFA, which has a separate chapter on could be used. However, there are some fundamental difficulties which appear while trying to doing so. UPOV convention and ITPGRFA are both international treaties with no hierarchy. However, the real implementation of the rights of plant breeders and farmers takes place within the national jurisdiction of the countries. In respect of ITPGRFA, the states have discretion as regards how to implement farmers’ rights in their national law. But in case of UPOV, the plant variety protection law of a nation is reviewed and approved before granting of membership. Therefore, the national laws of countries willing to join must confirm to UPOV provisions. In case of Ghana, whose draft plant breeders’ act was not found to be compliant with UPOV 91 the UPOV Secretariat suggested deletions and additions to conform the draft to UPOV. So due to this inflexibility in UPOV mechanism, realization of farmers’ right under ITPGRFA becomes difficult if a country wants to adopt both UPOV and ITPGRFA.

Realization of Farmers’ Rights under other sui generis models: India’s case:

As already discussed in the introduction, the TRIPS require members to grant a sui generis protection in the absence of patent protection to the plant varieties. India’s sui generis legislation is the Protection of Plant Varieties and Farmers’ Rights Act, 2001. India is an agricultural country and a big part of its population is dependent upon the agriculture sector, which consists mostly of small and marginal farmers. So, it is imperative upon India to balance the farmers’ rights with the breeders’ rights. Therefore, India’s PVP legislation has in detail delineated the rights of the farmers. It also adopts all the approaches mentioned above in this chapter for the realization of the farmers’ rights and is termed as a progressive legislation. However, it has its own limitations in protecting the farmers’ rights. For example - It has picked up directly from UPOV, the criteria of distinctiveness, uniformity and stability¹⁵ to get the plant variety protections. There are doubts if the Indian farmers’ varieties would be able to meet these criteria, which were designed exclusively for commercial breeders. Further it provides protection not only to the new varieties but also to the essentially derived varieties. There is already uncertainty and confusion in international sphere regarding the scope of the protection to essentially derived varieties¹⁶. Therefore, giving protection to is may bring uncertainty regarding the farmers’ rights.

Plant Patents, Bio-Piracy and Farmers’ Rights:

The previous discussion was with respect to farmers’ rights under the plant variety protection laws. However, in countries like USA, where the plant varieties are also protected under the Patent act, the thing that jeopardizes farmers’ rights the most is patents on plants and bio piracy. Bio piracy is the unethical appropriation or commercial exploitation of biological materials, by obtaining patents that restrict its future, without paying fair compensation to the community from which it originates. The exploitation through bio-piracy many times involve products which the local populations had been using for thousands of years. This exploitation can involve obtaining patents on products that were discovered by traditional people thousands of years ago, yet patent inspectors granted patent applications anyway. For example, a US citizen got a patent for ayahuasca, a plant used by people from amazon basin for centuries. The Amazonian leaders later got the patent revoked but got the patent invalidated but granting of patent by the Patent Office of a well-known plant itself shows that the patenting process for plants is susceptible to misuse. It can be used to appropriate plants and plants varieties which the farmers have been using for many years.

Suggestions for balancing farmer’s rights vis a vis breeders’ rights:

· The developing countries who are not a party to either UPOV 1978 or 1991 should may adopt an alternate sui generis system for plant variety protection which will give them more flexibility in implementing farmers’ rights.

· The developing countries who are party to UPOV under the 1978 Act of the UPOV Convention, may not join UPOV 1991 so as to get enough policy space to implement the farmers’ rights under ITPGRFA.

· Developing countries may develop a sui generis regional framework of common standards suitable to their specific requirements for protecting the farmers’ rights.

· Developing countries should first evaluate the effects of plant variety protection laws on all stakeholders and their broader implications for their agricultural and food sectors and then decide on the approach to be adopted.

· Developing countries may adopt a legislation similar to that enacted by India¹⁷ which well protects farmers’ traditional customary rights.

· UPOV members while developing further rules may take into consideration the diverse agricultural conditions of developing countries and allow such countries more flexibility in framing their national plant variety protection laws.

· Governments should take appropriate measures as regards equitable sharing of benefits arising out of use of plant and genetic resources.

· Government’s should ensure participation of farmers in preparation of laws for plant varieties protection.

· To counter bio-piracy governments should create a database of traditional plant and plant varieties and should share the database with the patent offices of other countries. India’s Traditional Knowledge Digital Library is a notable example.

CONCLUSION:

As TRIPS makes it mandatory for all the members to provide some kind of IPR protection for plants and plant’s varieties, therefore it is imperative for all members to adopt some system of protection. Currently there are three types of systems under which plants and plant varieties can get protection. One is the plant patent system, the other is the UPOV system and the third one is a sui generis innovative system as adopted by India. The agricultural conditions of developed countries are different from those of developing counties, therefore different systems have different rights regime. While the patent and the UPOV lean towards the rights of commercial breeders’ the sui generis system of developing counties like India tries to balance the farmers’ rights with the breeders’ rights. However, many developing countries due to pressure from the developed countries or for convenience are adopting the UPOV type protection for the plant varieties. This is making the farmers of these countries vulnerable to loss of livelihoods and it may also lead to depletion of biodiversity.

The TRIPS does not make it mandatory for any country to adopt UPOV or patent protection only. It allows countries to form their own innovative sui generis legislations to provide protection to plant varieties suiting their local conditions. Therefore, there is a need for governments, especially those of developing countries, to strike a balance between farmers’ rights and breeders’ rights while forming their laws for the protection of plant varieties.

REFERENCE:

1. Cary Fowler, “The Plant Patent Act Of 1930’: A sociological history of its creation”, p. 624

2. Asexually reproduced plants are produced from one parent without any exchange of genetic information between two parents, which happens in the case of sexual reproduction. So, the off springs are clones of parent. The plants obtained by seeds are sexually reproduced.

3. Asgrow Seed Co. v. Winterboer 513 U.S. 179 (1995)

4. 447 US. 303, 309, 206 U.S.PQ. 193 (1980)

5. “AIPPI was not in favor of patenting plant varieties “on the grounds that doing so would stretch basic patent law concepts like inventiveness to the point of undermining the credibility of the patent system” (G.Dutfield, Intellectual Property Rights and the Life Science Industries, Ashgate, 2003, p.186)”.

6. 1991 Act of UPOV, Art 30(2)

7. TRIPS Agreement, Art. 27(3)(b)

8. UPOV 1991, Art. I(iv)

9. UPOV 1991, Art 14

10. Protection of Plant Varieties and Farmers’ Rights Act, 2001, Sec. 28

11. Twenty-fifth session of the FAO conference- Rome, 1989, Resolution 5/89

12. International Treaty on Plants and Genetic Resources for Food and Agriculture, 2001, Article 9

13. Protection of Plant Varieties and Farmers’ Rights Act, 2001, Section 39.

14. UPOV 1991 Act of Convention, Article 15

15. Protection of Plant Varieties and Farmers’ Rights Act, 2001, Sec. 15(2)

16. Protection of Plant Varieties and Farmers’ Rights Act, 2001, Sec. 23

17. Protection of Plant Varieties and Farmers’ Rights Act, 2001, allow farmers to freely save, use, exchange and sell farm-saved seeds except under the brand names of the protected varieties.

Received on 14.06.2019 Modified on 10.08.2019

Int. J. Rev. and Res. Social Sci. 2019; 7(4): 741-745.

DOI: 10.5958/2454-2687.2019.00050.9