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Economic and Political Weekly September 1, 2001
3338
SUMAN SAHAI
On August 9, 2001 the Lok Sabha
finally passed the Plant Variety
Protection and Farmers Rights Bill.
With this has ended a long and arduous
struggle waged for the recognition of the
rights of farmers in India’s sui generis
legislation. If the Bill clears the Rajya
Sabha, India will have put in place a law
to grant plant breeders’ rights on new
varieties of seeds for the very first time.
This was necessitated by the commitments
that India made in the agreement on Trade
Related Intellectual Property Rights
(TRIPs) when it ratified the Uruguay GATT
Round in 1994. Article 27. 3 (b) which
deals with the protection of new plant
varieties, offers three options. Protection
will have to be granted by a patent, an
effective sui generis system or by a com-
bination of the two. The sui generis system
refers to the grant of plant breeders’ rights,
of what kind is not defined, except to say
that it should be effective. India ultimately
opted for the sui generis option, but not
without a determined struggle by civil
society to stop seed patents.
The bill passed by Lok Sabha recognises
the farmer not just as a cultivator but also
as a conservor of the agricultural gene pool
and a breeder who has bred several suc-
cessful varieties. The bill makes provi-
sions 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 rights of
rural communities are acknowledged as
well. The final version of the much fought
over clause on what constitutes a farmers’
right (Section 39, clause (iv)), now reads:
The farmer...shall be deemed to be entitled
to save, use, sow, exchange, share or sell
his farm produce including seed of a variety
protected under this Act in the same manner
as he was entitled before the coming into
force of this Act;
Provided that the farmer shall not be entitled
to sell branded seed of a variety protected
under this Act.
Explanation: for the purpose of clause (iii)
branded seed means any seed put in a
package or any other container and la-
belled in a manner indicating that such
seed is of a variety protected under this Act.
This formulation allows the farmer to
sell seed in the way he has always done,
with the restriction that this seed cannot
be branded with the beeder’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.
Farmer’s Right to Sell Seed
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 per cent
of the country’s annual requirement of
over 60 lakh tonnes. If the farmer were to
be denied the right to sell, it would 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. Their only
replacement, if this happens, will be the
large life science corporations since bud-
get cuts have seriously weakened the
capacity and output of the other player, the
public research institutions.
Globally, the agro-chemical giants turned
life-science corporations are emerging as
the largest seed producers in the
industrialised nations. In Europe and the
US, as also in Canada, Australia, New
Zealand, Japan and, to a lesser extent,
Korea and some Latin American countries,
seed production is now in the hands of the
Plant Variety Protection
and Farmers’ Rights Law
A long and arduous struggle for the recognition of the rights of
farmers has ended with the passing of the Plant Variety Protection
and Farmers Rights Bill by the Lok Sabha. The bill recognises the
farmer as a conserver of the agricultural gene pool and as a
breeder. It makes provision for such farmers’ varieties to be
registered. The rights of rural communities are acknowledged as
well. While the bill can be improved in some respects, the next
major step is to decide through which international platform India
will interact with other nations. At present the only such platform
is UPOV. However, India should work, with other developing
countries, to evolve an alternative to UPOV.
Commentary
Economic and Political Weekly September 1, 2001 3339
large corporations. Control over the seed
sector was established by the simple ex-
pediency of buying up all the smaller seed
companies. In India, such a strategy cannot
work because there are simply no seed
companies of any significance or size that
can be bought and that would transfer their
market share to the MNC that bought it.
In India, a strategy to control seed pro-
duction would have to rest on knocking
the farmers out of the market by some other
means. Since they are not organised in a
company that can be purchased, this can
only be done by legally taking away their
right to sell seed. If the farmer can be
stopped by law from selling seed (and by
implication, producing seed), the market
automatically becomes available to the next
alternative, the MNC. This is precisely
why the farmers’ right clause in the Indian
PVP legislation has been the subject of
such a tussle between the seed industry and
pro-farmer groups like Gene Campaign.
Weak farmers’ rights will allow seed
corporations to dominate the seed market.
Strong farmers’ rights keeps the farming
community alive and well as viable com-
petitors and an effective deterrent to a
takeover of the seed market by the corpo-
rate sector. Control over seed production
is central to self-reliance in food. The need
for this self-reliance cannot be
overemphasised. Food security is in the
forefront of national security. A nation that
does not produce its own seed and its own
food cannot be a secure nation.
Other Farmers’ Rights
Apart from the right to sell non-branded
seed of protected varieties, the rights of
farmers and local communities are pro-
tected in other ways too. There are pro-
visions 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) cannot do so
without the express permission of the
farmers involved in the conservation of
such varieties.
EDVs are those varieties which are more
or less (essentially) the same as the parent
variety except for very minor changes. The
EDV category refers to those varieties where
a single character has been changed in a
variety which otherwise remains more or
less identical to the parent variety. Most gene-
tically modified (GM) varieties are EDVs.
For example Bt cotton is a cotton variety iden-
tical to its parent except for the single dif-
ference of containing a bacterial gene from
the Bacillus thuringensis. So also Bt corn.
Any person or governmental or non-
governmental agency is entitled to register
a community’s claim and have it duly
recorded at a notified centre. This inter-
vention enables the registration of farmer
varieties as sources of germplasm, even if
the people themselves cannot do this them-
selves due to illiteracy or lack of aware-
ness. If the claim on behalf of the com-
munity is found to be genuine, a procedure
is initiated for benefit sharing so that a
share of profits made from the new variety
goes, on behalf of the communities, into
a National Gene Fund.
Other details supportive of the rights of
farmers are the explicit and detailed dis-
closure requirements in the passport data
required at the time of applying for a
breeders certificate. Passport data refers to
the data submitted about the parentage of
the new variety. In this case it includes
details like name and location of any
farmers’ varieties used. If any conceal-
ment is detected in the passport data, the
breeders certificate stands to be cancelled.
Breeders will have to submit an affidavit
that their variety does not contain a Gene
Use Restricting Technology (GURT) or
terminator technology.
Clauses that Need Amendment
Benefit-sharing: Despite its good inten-
tions of protecting the interests of the
farming community, the bill is likely to
create problems in implementation because
certain concepts like the National Gene
Fund are confused and very poorly, even
incompletely, written [Section 46 (2) d].
The Gene Fund should be the recipient of
all revenues payable to the farming com-
munities under various heads. This money
should be collectively, rather than indi-
vidually, accessed by farming communities.
Exceptions can be made where individuals
are clearly identified as breeders of spe-
cific varieties. The use of the money should
not be restricted to conservation or for
maintaining ex situ collections. That would
mean that the revenue generated from the
use of farmer varieties would partly be
used to maintain the National Gene Bank
in Delhi. This would be blatantly unfair.
The money earned by the farming commu-
nity should be theirs to spend as they wish
and not be frittered away to meet the
expenses incurred by committees or to
maintain national facilitieswhich are the
nation’s responsibility.
The method proposed for fixing and
realising benefit sharing is a messy, con-
voluted exercise that could only have been
dreamed up by a bunch of babus. The share
of benefits payable to farmers will, among
other things, be calculated on the basis of
the commercial utility of the variety and
be recoverable as an arrear of land revenue
by the district magistrate within whose
local limits of jurisdiction the breeder liable
for such benefit sharing resides. So if
Monsanto is the registered breeder of a
new variety, will it be the district magis-
trate of St Louis, Missouri, US, who will
recover benefits for the farmers? The
headquarters, and therefore the place of
residence of Monsanto, the breeder, hap-
pens to be St Louis. This nonsensical
condition needs serious revision. Possibly
the least problematic approach to fixing
benefit sharing would be a system of lump
sum payments, based for example on
volume of seed sale.
Protection against bad seed: In provid-
ing a liability clause in the section on
farmers’ rights, the farmer in principle is
protected against the supply of spurious
and/or bad quality seed. However, the
clause is weakly framed, leaving too much
to the discretion of the authority. Compa-
nies selling poor quality seeds with tall
claims have been the cause of several crop
failures leading to irrecoverable losses for
the farmer, sometimes with the tragic
consequence of farmers committing sui-
cide. The bill states that if the seed sup-
plied does not perform as has been prom-
ised by the breeder/company, the farmers
shall have the right to claim compensation.
Compensation should be specified and
should be large enough to be a deterrent.
If it is proven that the breeder has made
false claims and the farmer has suffered
a crop failure, then compensation should
be awarded amounting to at least twice the
projected harvest value of the crop. In
addition, a jail term should be provided
if the breeder repeats the offence of selling
bad quality, non-performing seeds.
Protection against innocent infringe-
ment: The legislation has also attempted
to address a concern voiced by several
quarters, that when the new system of plant
breeders’ rights is imposed for the first
time, there may be unknowing infringe-
ment of breeders’ rights. Section 43 speci-
fies (somewhat fuzzily) that the farmer
cannot be prosecuted for infringement of
rights specified in the Act if he can prove
in court that he was unaware of the ex-
istence of such a right. This well intended
point is badly made. Nothing is said about
what would constitute a violation of breed-
ers’ right. This becomes specially critical
since the Act would allow the farmer to
sell generic seed of the variety protected
by breeders’ right. And what would con-
stitute proof in a court of law that the
farmer was unaware of the existence of
Economic and Political Weekly September 1, 2001
3340
such a right? In all likelihood this will boil
down to a ‘your word against mine’ situ-
ation and be very difficult to prove.
Exemption from fees: Further protecting
farmers from the new set of provisions
being put in place, the bill stipulates that
if farmers wish to examine documents and
papers or receive copies of rules and
decisions made by the various authorities,
they will be exempt from paying any fees.
Such fees would be payable by all other
people wanting to examine documents and
receive copies of decisions from the
National Authority, the Registrar, the
Tribunal and various other committees.
Breeders’ Rights
Breeders’ rights over the varieties they
have developed are fully protected by the
bill. On registration, the breeder has com-
plete rights of commercialisation for the
registered variety either in his/her own
person or through anyone he designates.
These unequivocal rights include the right
to produce, sell, market, distribute, import
or export a variety, in short, full control
over production and commercialisation.
The strong protection granted to a plant
breeder over his/ her variety is seen in the
section dealing with infringement of breed-
ers’ rights where punishment in the form
of substantial fines and jail terms have
been prescribed for those who infringe the
rights of the registered breeder. The breeder
has to disclose the source of parental
varieties used in the breeding of the new
variety. When farmer varieties or land races
are used, this is to be accompanied by pay-
ment of a certain sum as ‘royalty’, under
the benefit sharing clause. The breeder
also has to sign an affidavit that the variety
does not contain any sequences that will
restrict gene expression and induce steril-
ity (the so-called terminator technology).
Penalties for infringing breeders’ rights:
Violation of a breeders’ rights 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. The registered name or
denomination naturally cannot be used by
any one other than the breeder. The use
of the same or similar name in any way,
by action or even suggestion, will consti-
tute a violation and will be punishable. 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. In any prosecution for falsely
using a denomination, the burden of proof is
reversed and it is incumbent on the alleged
violator to prove that the consent of the
breeder was obtained. This is designed to
protect a breeder from unfair competition
by other commercial breeders.
The grounds constituting violation are
laid out in such elaborate detail, listing the
smallest acts that can be construed as infringe-
ment in a way that the hold of the breeder
over his variety is very strong indeed. Unless
the alleged violator proves that he acted in
innocence, without the intention to defraud,
jail terms and penalties are stiff. Penalties
are prescribed for applying false denomi-
nation and for selling varieties to which false
denomination is applied.
The bill is very clear on penalties to be
imposed if a person falsely uses a denomi-
nation or misrepresents the address of the
breeder during trading. Penalties in this case
can range from Rs 50,000 to Rs 10 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
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Economic and Political Weekly September 1, 2001 3341
selling, offering for sale or merely in the
possession of a registered variety belonging
to someone else, the punishment is some-
what worse. The penalty remains the same,
between Rs 50,000 and Rs 10 lakh but the
jail term applicable will not be less than six
months, going up to two years. If the offence
is repeated, the minimum jail term pre-
scribed is one year, extending to three years
and the fine starting at Rs 1 lakh, can go
up to Rs 20 lakh. With deterrents like this
in place, the legitimate rights of the breeder
are adequately protected.
The bill has provisions for researchers’
rights which allow scientists and breeders
to have free access to registered varieties
for research. Specifically, the bill spells
out that any one doing research can use
any variety registered by the plant breeder
for conducting experiments. The regis-
tered variety can also be used for the purpose
of creating other, new varieties. That means
that the registered breeder cannot stop other
breeders from using his/her variety to breed
new crop varieties. This flexibility is
however curtailed in one case, when the
registered variety needs to be used repeat-
edly as a parental line for commercial
production of another variety. In that case,
new breeders will need the authorisation
of the breeder whose variety they want to
use repeatedly.
Apart from the rather fulsome attention
paid to farmers’ rights, the bill includes
public interest clauses, like exclusion of cer-
tain varieties from protection and the grant
of compulsory licensing. To secure public
interest, certain varieties may not be regis-
tered if it is felt that prevention of commer-
cial 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 bill provides for the granting of
compulsory licence to a party other than
the holder of the breeders’ certificate if it
is shown that the reasonable requirements
of the public 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 author-
ity to grant a compulsory licence under
certain terms and conditions including the
payment of a reasonable licence fee. The
authority shall determine the duration of
the compulsory licence granted but in any
case the licence cannot exceed the total
remaining period of the protection of that
variety. Compulsory licence however will
not be awarded if the breeder can demon-
strate reasonable grounds for his inability
to produce the seed.
Needed Correctives
There is much that can be improved in
the bill. It has areas of concern which need
to be revisited, like the special treatment
given to EDVs, which will often be GM
varieties. The creation of a separate track for
their clearance raises questions. Why should
there be a separate track if there is no covert
intention of pushing through varieties which
may be the subject of opposition? In the
interests of transparency, EDVs should be
dealt with in the same way as other conven-
tionally bred varieties, providing the same
opportunities for their examination and
opposition as has been provided for the
registration of other varieties.
The authority, which will oversee imple-
mentation, is wretchedly bureaucratic,
packed with ex officio holders of transient
posts who, experience shows, bring little
knowledge and even less interest. What is
needed in place of this babu pyramid is
an abundance of independent experts and
stakeholders and NGOs. Another clause in
need of serious improvement is the one
that provides compensation to farmers if
the seed provided by a breeder fails to
perform. The intention is there to protect
the farmer’s interest but the clause is far
too casually, even sloppily worded. There
is too much reliance on the authority’s
discretion and not enough firm guidelines.
Some ball park figure should be men-
tioned, say, compensation should amount
to twice the value of the failed harvest.
The text of the bill needs a language
overhaul. For one it is shoddily written.
In some places the language is so poor and
ambiguous that it could even lead to legal
disputes. Once the bill clears the Rajya
Sabha, it will be important to frame ap-
propriate rules that are clearly articulated
and designed to enable the implementation
of the specific goals of the bill. Attention
will have to be paid in detail. This is a task
requiring specific knowledge and would
be most successfully undertaken in con-
sultation with independent experts having
some experience in the field.
What Next?
Once we have enacted a plant variety
protection and farmers’ rights law, the
next step will be to decide through which
international platform India will interact
with other nations. At present the only
international platform is the International
Union for the Protection of New Varieties
of Plants (UPOV), a western platform
regulating plant breeders’ rights for the
industrial nations. UPOV is controlled by
the life science corporations. No develop-
ing country is a member and neither should
India become one.
UPOV is an inter-governmental organis-
ation with headquarters in Geneva. It is
based on the International Convention for
the Protection of New Varieties of Plants.
The convention was signed in 1961. It was
revised in 1972 and 1978. The convention
was further revised in 1991 to strengthen
the protection offered to the breeder and
dilute the exemptions granted to the farmer
for planting back seed. The conditions of
UPOV 1991 do not allow the farmer to save
seed unless individual governments with
the consent of the breeder, allow limited
exceptions. UPOV 1991 also introduces
patents by allowing dual protection. This
means new seed varieties can be protected
both by a patent and a plant breeders’ rights.
Gene Campaign opposes India joining
UPOV because UPOV does not address our
needs and because its working is totally alien
to the conditions of agriculture prevailing
in the countries of the south. We believe that
developing countries must create their own
platform which will grant, apart from breed-
ers’ rights, also farmers’ rights, and be geared
to work towards food and nutritional secu-
rity in our countries. There is no concept
of farmers’ rights in the UPOV system,
rights are granted only to the breeder which
in today’s context are the seed companies.
UPOV laws are formulated by countries
which are industrial, not agricultural econo-
mies. These countries do not have the large
numbers of small and marginal farmers
like we do. Almost all agricultural research
and plant breeding in India is financed
with public money unlike UPOV members
where private capital finances plant breed-
ing. In Europe and the US agriculture is
a commercial activity. For the majority of
Indian farmers however, it is a livelihood.
Alternative to UPOV
Gene Campaign along with Centre for
Environment and Agriculture Develop-
ment, has drafted an alternative treaty to
UPOV to provide a forum for developing
countries to implement their farmers’ and
breeders’ rights. This treaty s called the Con-
vention of Farmers and Breeders, CoFaB
for short. CoFaB has an agenda that is
appropriate for developing countries. It
reflects their strengths and their vulner-
abilities and it seeks to secure their inter-
ests in agriculture and fulfil the food and
nutritional security goals of their people.
Unlike the provisions of the UPOV, the
CoFaB treaty seeks to fulfil the following
goals:
– Provide reliable, good quality seeds to
the small and large farmer.
Economic and Political Weekly September 1, 2001
3342
– Maintain genetic diversity in the field.
– Provide for breeders of new varieties to
have protection for their varieties in the
market, without prejudice to public interest.
– Acknowledge the enormous contribu-
tion of farmers to the identification, main-
tenance and refinement of germplasm.
– Acknowledge the role of farmers as
creators of land races and traditional va-
rieties which form the foundation of agri-
culture and modern plant breeding.
– Emphasise that the countries of the trop-
ics are germplasm owning countries and the
primary source of agricultural varieties.
– Develop a system wherein farmers and
breeders have recognition and rights ac-
cruing from their respective contribution
to the creation of new varieties.
The UNDP Human Development Report
1999 describes CoFaB as a strong and
coordinated international proposal which
offers developing countries a far better
alternative to European legislation, by fo-
cusing on the need to protect farmers’ in-
terests and food and nutritional security
goals. Gene Campaign’s purpose in drafting
an alternative to UPOV was to provide the
basis for a discussion on what kind of non-
UPOV platform developing countries should
have. Once there is a comprehensive analy-
sis and critique and a consensus emerges
among developing countries, it will not take
long to come up with a minimum opera-
tional framework with which to start. EPW