Emergence of plant variety protection in India
Manisha Singh and Pradeep Kumar Kamal of LexOrbis explain how India has adopted a unique solution to protecting the rights of plant breeders and farmers
As one of the core industries in India, agriculture requires the development of new plant varieties and better quality seeds to accelerate agricultural development. It has been internationally recognised that the contributions of plant breeders should not only be recognised but that a legal mechanism should be developed to establish and protect their rights.
The international Union for the Protection of New Varieties of Plants (UPOV), established by the International Convention for the Protection of New Varieties of Plants (UPOV Convention), was one such global effort that was concluded in 1961. UPOV was amended in 1972, 1978 and 1991. At present 75 countries have subscribed to UPOV.
Protecting plant varieties
When multinational corporations were established, it was soon realised that a form of IP protection is also required in the agricultural sector to minimise the risks and uncertainties of the investments associated with research in the sector. Therefore, Article 27.3 (b) of the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement obliges WTO members to provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.
The UPOV system is significant because it creates an alternative to patent protection. Inventions covered by patents must meet the criteria of non-obviousness, novelty and industrial application. However, under UPOV (which only extends to plant varieties), plant breeders’ rights are evaluated on a different footing, which requires the variety to be novel, distinct, uniform and stable.
As part of its obligations to comply with the provisions of the TRIPS Agreement, India was required to adopt the UPOV model or develop its own sui generis law. Thus it enacted the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV&FR Act).
India rejected the UPOV model as it failed to protect the interests and rights of the farmers, which are in some ways conflicting or at least not in harmony with the breeders’ rights that UPOV focused on.
The concept of farmers’ rights is not confined to India but has been a matter of concern even at the international level. The legal conceptualisation of farmers’ rights is globally reflected in the adoption of the International Undertaking on Plant Genetic Resources, 1983 by the Food and Agricultural Organisation.
In India, traditionally seeds are freely exchanged between farmers to foster conservation, innovation and propagation of useful seeds and plant varieties.
The plant genetic resources, which form the building blocks for continuous crop improvements by either plant breeders or farmers, are conserved or made available through the continuous contribution of the farmers as a community. However, the contributions and rights of the farmers were neither identified nor protected.
The rights of farmers are no less important and cannot be ignored or compromised compared to those of commercial plant breeders in terms of their intellectual contributions. Considering that farmers are operating in a completely different sphere of conditions than those of commercial plant breeders, they cannot be measured with the same yardstick for bringing parity in rights.
The UPOV Convention makes no mention of farmers rights and therefore only a few developing countries have adopted the UPOV Convention so far. India, being an agriculture-based country where more than 50% of the population depends on agriculture, cannot afford to compromise the farmers’ interests.
Evolution of the PPV&FR Act
The PPV&FR Act was introduced to meet the objective of providing integrated protection to both plant varieties and farmers’ rights. Although the legislation was enacted in 2001, its provisions could not come into force until the establishment of Plant Varieties and Farmers’ Rights Authority in 2005. The main objective of the PPV&FR Act is to recognise and protect the rights of farmers in respect of their contribution toward conserving, improving and making available plant genetic resources for the development of new plant varieties.
The drafting history of the PPV&FR Act demonstrates the scale of challenges involved with the TRIPS-compliant UPOV Convention. The draft bill for the PPV&FR Act, which was introduced in 1993/1994, underwent three revisions and was reintroduced in 1996, 1997 and 2001. It aimed bring some harmony between the conflicting rights of farmers and plant breeders and to equate farmers’ rights with those of breeders.
The PPV&FR Act is based on UPOV, but it includes number of provisions that are not present in UPOV. The Act recognises the role of farmers as cultivators and conservers and the contribution of traditional rural and tribal communities to the country’s agro-biodiversity by making provision for benefit sharing and compensation and protecting the traditional rights of farmers.
As well as providing the possibility for the registration of farmers’ varieties, the PPV&FR Act specifically recognises farmers’ rights and the contribution of traditional communities in identifying biological resources from which new plant varieties can be bred.
Main provisions of the Act
The Act ensures that farmers can save, use, sow, re-sow, exchange, share or sell their farm produce including seed of a variety protected under the PPV&FR Act in the same manner as they were entitled before the coming into force of the Act. The exception is that the farmer is not entitled to sell branded seed of a variety protected under the Act.
Farmers are eligible for recognition and rewards for the conservation of plant genetic resources of land races and wild relatives of economic plants. The PPV&FR Act also has provisions for compensation and penalties, benefit sharing and establishment of the gene fund.
Being derived from UPOV, the PPV&FR Act has a similar definition of the term variety, and lays down similar prerequisites for the registration of a new plant variety, namely novelty, distinctiveness, uniformity and stability.
However, the exclusion of varieties which involve any technology which is injurious to the life or health of human beings, animals or plants in the PPV&FR Act leads to a change in the scope of protection compared to that afforded by UPOV.
In addition, the PPV&FR Act provides for a shorter period of protection for plant varieties than UPOV.
The PPV&FR Act provides protection for nine years in the case of trees and vines (renewable up to 18 years); and six years in the case of other crops (renewable up to 15 years).
The UPOV however provides protection for plant varieties of all plant genera for a period of not less than 20 years from the date of the grant of the breeder’s right for all varieties except for trees and vines for which the protection period shall not be less than 25 years.
Further development needed
The PPV&FR Act is in a nascent form and provides only a broad perspective on many points.
Further development will be required to meet the different objectives of the Act, namely protecting the interests of both farmers and breeders and harmonising issues such as gloomier bearing on breeders’ rights, by permitting unrestricted commercial exploitation of the protected variety by farmers with rudimentary restriction on the use of branding of the protected variety.
Managing partner, LexOrbis
Pradeep Kumar Kamal
Associate partner, LexOrbis