Plant Variety Protection and Farmer’s Rights Act: An Overview

Introduction

It was Friedrich Nietzsche who had famously said, “Everyone who enjoys thinks that the principal thing to the tree is the fruit, but in point of fact, the principal thing to it is the seed. Herein lies the difference between them that create and those that enjoy.”

India is a land of farmers, as the majority of the population in the country sustains on farming as an occupation. A seed is the fundamental unit of plant life, and this natural law has guided the occupation of farming for several decades. The farmers in India have sown seeds, harvested crops, and saved part of those harvest seeds for future use or trading with their neighbours. With the development in science and the coming of Genetically Modified (“GM”) plants, the productivity and quality of agricultural production has increased tremendously. This development, despite all its benefits, has drastically changed the legal framework of cultivation; by making seed harvesting for patented seeds an intellectual property violation. Patent laws have made it possible for a few people to have exclusive rights on some seeds and plant lives, and have raised the question as to whether the living organisms that have been genetically altered would qualify for patenting or not? If the patenting of plants is allowed in India, it can be disastrous for the farmers as they would have to pay heavy royalties on their farming produce.

The Indian legal position on this matter is extremely ambiguous and depends highly on the interpretation of the Supreme Court. While Section 3 of the Patents Act [1970] does not intend to allow patenting of the plants, a few loopholes in its interpretation has allowed some companies to get patents on the method of producing these plants. In an attempt to address this ambiguity, this article would explore the realm of patentability of plants and seeds in India. It would look at the international mandate by the World Trade Organization (”WTO”), the Indian law’s position, and the consequences of the same.

In order to provide for the establishment of an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants it has been considered necessary to recognize and to protect the rights of the farmers in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties. The Govt. of India enacted “The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001” adopting sui generis system. Indian legislation is not only in conformity with International Union for the Protection of New Varieties of Plants (UPOV), 1978, but also have sufficient provisions to protect the interests of public sector breeding institutions and the farmers. The legislation recognizes the contributions of both commercial plant breeders and farmers in plant breeding activity and also provides to implement TRIPs in a way that supports the specific socio-economic interests of all the stakeholders including private, public sectors and research institutions, as well as resource-constrained farmers.

Context: Document referred by PepsiCo India is being reviewed by Protection of Plant Varieties and Farmers Rights Authority (PPV&FRA)

The ongoing case at the PPV&FRA revolves around PepsiCo’s FL-2027 variety of potatoes, which it grows through a collaborative farmers programme, wherein the company sells seeds to 12,000 farmers and has an exclusive contract to buy back their produce to make its chips.

The company introduced the variety to India in 2009 and registered it under the PPV&FR Act in 2016.

The FAQ document under the act states that “only small and marginal farmers involved in subsistence farming” are eligible to claim rights under the Protection of Plant Varieties and Farmers Rights (PPV&FR) Act, 2001.

The company has cited the FAQ document to justify dragging more than nine farmers to court in 2018 for growing and selling its registered variety.

The Plant Variety Protection and Farmers Rights Act (PPVFRA) [2001]

The PPVFRA [2001] is a sui generis system, that provides exclusive rights to both farmers and commercial plant breeders of the registered variety. It stimulates investment, accelerates agricultural development, and provides an incentive for research and development of various seed varieties; in turn, developing the seed industry. The owner of the protected variety under the PPVFRA has the right to produce, market, sell, distribute, export, and import the registered variety. The act is India’s attempt to successfully comply with Article 27(3)(b) of the TRIPS agreement.

The Protection of Plant Varieties and Farmers’ Rights Act, 2001:

To establish an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants.

Breeders will have exclusive rights to produce, sell, market, distribute, import or export the protected variety.

Researcher can use any of the registered variety under the Act for conducting experiments or research.

Farmer: Definition

A farmer who has evolved or developed a new variety is treated as breeder of a variety

A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under the PPV&FR Act, 2001 in the same manner as he was entitled before the coming into force of this Act provided farmer shall not be entitled to sell branded seed of a variety protected under the PPV&FR Act, 2001;

Farmers shall not be liable to pay any fee in any proceeding

Objectives of the Plant Varieties and Farmers’ Rights Act, 2001

• To establish an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants.
• To recognize and protect the rights of farmers in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties.
• To accelerate agricultural development in the country, protect plant breeders’ rights; stimulate investment for research and development both in public & private sector for the development new of plant varieties.
• Facilitate the growth of seed industry in the country which will ensure the availability of high quality seeds and planting material to the farmers.

The World Trade Organization and the TRIPS Agreement

On 1st January 1995, India became a member of the WTO. This membership made it important for India to comply with the trade related aspects of the Intellectual Property Systems (“TRIPS”) agreement [here]. Part 2, Section 5 of the agreement deals with patents. As per Article 27(1) of the same, the member countries are mandated to grant product and process patents for all the inventions, if they fulfil the patentability criteria. However, Article 27(2) allows for countries to exclude those inventions, whose commercial exploitation would be dangerous to public order and morality, including plant life.

Most importantly, Article 27(3)(b) of the agreement allows members countries to exclude from patentability, “plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes” [TRIPS]. However, the agreement does mandate for the member countries to protect the plant varieties by either giving out patents, creating a sui generis system, or a combination of both. These are the various provisions that India had to abide by in the context of the patentability of plants. We would now explore the various amendments made by India to comply with the same.

India’s Position on Plant Patentability

There were several steps taken by the Indian legislature before 2005 to make India TRIPS compliant. This was majorly done in two parts. Firstly, by amending The Patents Act [1970]; and secondly, by passing of sui generis laws like The Plant Variety Protection and Farmers Rights Act (PPVFRA) [2001]. We would look at both of these in greater detail.

The Amendments in the Patents Act [1970]

To make the Indian laws TRIPS compliant, The Patents Act [1970] was amended three times; in 1999, 2002, and 2005. Section 3 of the Patents Act [1970] mentions what would not be counted as an invention within the meaning of the act. Prior to 2002, Section 3(i) of the act included the process of treatment of plants to increase their economic value. However, the amendment in 2002 omitted the word “or plants” from Section 3(i) of the act [here]. Hence, processes on plants that increase their economic value were now patentable under the act. The 2002 amendment had also added section 3(j) in the act. This section states that “plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals” [Section 3(j)].

However, since GM plants could not be technically considered as ‘essentially biological’, this loophole was used to get patents on various GM plants [Tabasum Wani, 2008]. Hence, prior to 2002, there was a clear position that plants cannot be patented under the Indian act, as section 3(i) would not allow the same. However, the amendment in 2002 has made an established position completely ambiguous, as plants are now omitted from Section 3(i); and whether Section 3(j) would include GM seeds is yet to be interpreted. We would look at the problems with seed regulations in greater detail at a later point in the paper.

Rights under the Plant Varieties and Farmers’ Rights Act, 2001

Breeders’ Rights :

Breeders will have exclusive rights to produce, sell, market, distribute, import or export the protected variety. Breeder can appoint agent/ licensee and may exercise for civil remedy in case of infringement of rights.

Researchers’ Rights :

Researcher can use any of the registered variety under the Act for conducting experiment or research. This includes the use of a variety as an initial source of variety for the purpose of developing another variety but repeated use needs prior permission of the registered breeder.

Farmers’ Rights

• A farmer who has evolved or developed a new variety is entitled for registration and protection in like manner as a breeder of a variety;
• Farmers variety can also be registered as an extant variety;
• A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under the PPV&FR Act, 2001 in the same manner as he was entitled before the coming into force of this Act provided farmer shall not be entitled to sell branded seed of a variety protected under the PPV&FR Act, 2001;
• Farmers are eligible for recognition and rewards for the conservation of Plant Genetic Resources of land races and wild relatives of economic plants;
• There is also a provision for compensation to the farmers for non-performance of variety under Section 39 (2) of the Act, 2001 and
• Farmer shall not be liable to pay any fee in any proceeding before the Authority or Registrar or the Tribunal or the High Court under the Act.

Implementation of the Plant Varieties and Farmers’ Rights Act, 2001

To implement the provisions of the Act the Department of Agriculture, Cooperation and Farmers Welfare, Ministry of Agriculture and Farmers Welfare established the Protection of Plant Varieties and Farmers’ Rights Authority on 11″ November, 2005. The Chairperson is the Chief Executive of the Authority. Besides the Chairperson, the Authority has 15 members, as notified by the Government of India (GOI). Eight of them are ex-officio members representing various Departments/ Ministries, three from SAUs and the State Governments, one representative each for farmers, tribal organization, seed industry and women organization associated with agricultural activities are nominated by the Central Government. The Registrar General is the ex-officio Member Secretary of the Authority.

General Functions of the Authority

• Registration of new plant varieties, essentially derived varieties (EDV), extant varieties;
• Developing DUS (Distinctiveness, Uniformity and Stability) test guidelines for new plant species;
• Developing characterization and documentation of varieties registered;
• Compulsory cataloging facilities for all variety of plants;
• Documentation, indexing and cataloguing of farmers’ varieties;
• Recognizing and rewarding farmers, community of farmers, particularly tribal and rural community engaged in conservation and improvement;
• Preservation of plant genetic resources of economic plants and their wild relatives;
• Maintenance of the National Register of Plant Varieties and
• Maintenance of National Gene Bank.

As we now understand the seed regulations in India, we would analyse the problems arising from these regulations.

The Problem with the Indian Seed Regulation

The fundamental problem begins, with the deletion of the word “or plants” from Section 3(i) of the Patents Act [1970]. This deletion implies that the process or method of modification of a plant can now be counted as an invention, and can hence be patented. The inclusion of Section 3(j) in the act is not a solution to the problem, as GM plants are not technically considered as ‘essentially biological’, excluding them from the operation of the section. The amendments in the patent laws have slowly jeopardized the food security in India in four major ways.

First, the laws have allowed agriculture to be monopolized by binding them in patents, and excluding farmers from cultivating them. Second, even if the farmers do wish to cultivate them, they have to pay heavy royalties, which in turn increases the cost of food. Third, GM plants make gene pollution inevitable [Vandana Shiva, 2005]; and fourth, Indian regulations have failed to ensure protection to the farmers in cases of seed failures. For example, the maize seed failure had cost more than 1000 crores to the farmers in 2004, while the failure of BT cotton had cost more than a billion dollars to the Indian farmers annually [Vandana Shiva, 2005]. Hence, whether plants can be patented or not, entirely depends on the interpretation of Section 3(j) of the act by the apex court. This is the Monsanto’s BT gene controversy. Let us look at this controversy in greater detail..

Conclusion

The exact position of the Indian laws regarding the patentability of plant seeds is still ambiguous today. It all depends on the judicial interpretation of various provisions that have been amended in the Indian laws to comply with the TRIPS agreement. However, one thing that isn’t ambiguous, is the hardship that the Indian farmers would face if the patenting of plant seeds is granted in India. The major argument extended towards the support of patentability of plant seeds, is that it would increase the privatization of agricultural research as private companies would be able to secure their research investments by protecting their interests through patents. However, the PPVFRA does fulfil this requirement by protecting the interest of both farmers and commercial plant breeders; making the argument inconsequential.

Humans are not the creator of plant life, and a group of individuals should not have the right to dictate it. The current scenario best describes Mr. Nietzsche’s quote, and the difference between ‘them that create’ and ‘them that enjoy’. If the companies are allowed to patent their fruits, the farmers would one day run out of seeds to sow, resulting in a legal famine; and not a natural one.

Author Details: Ayushman Sharma [Student, Amity Law School Jaipur]