A STUDY ON THE LEGISLATIVE FRAMEWORK ON THE PLANT VARIETIES PROTECTION IN INDIA BY - DR PAULINE PRIYA
A STUDY ON THE LEGISLATIVE
FRAMEWORK ON THE PLANT VARIETIES PROTECTION IN INDIA
AUTHORED BY - DR PAULINE PRIYA
Introduction
The protection extended by
intellectual property regime is a vital player in extending protection to new
plant varieties, essentially derived varieties and extant varieties etc., Agriculture contributes to about 23% of GDP.
Agricultural sector acts as a huge source of livelihood by providing employment
to 59% of the population.82% of the farmers have small and marginal
landholdings. In the rural areas more than 70% of the households depend on
agriculture for their livelihood.[1]
Intellectual
property regime aims at rewarding the inventor for the intellectual and
creative investment by the mind of the inventor. These creations bear the
reflection of the mind of the author, inventor or creator. The Intellectual
Property system allows the inventor to make economic exploitation of their
invention to the exclusion of other persons for a definite time period. IP protection is extended to
inventions since these inventions also contribute largely to the cultural and
intellectual sphere of a community thus leading to the wellbeing of the
society.
Plant breeding and seed supply
require intellectual property protection for its growth. Selective traits such
as higher yields, drought resistance, and improved quality can be inherited by
crops only after trying and testing the same for several years. This process
requires a number of years of labour, skill and a huge investment of material
and economic resources. However when the
developed plant variety is introduced into the market is usually reproduced by
other breeders thus depriving the original breeder the opportunity to
commercially exploit the breed developed by him. Thus one of the key enabler
for the development of new plant varieties or developing the existing plant
varieties is an effective system of plant variety protection. The international
system of intellectual property protection regulates the import of foreign
varieties, export of indigenously developed varieties.[2]
Global Perspective
In the year 1883 the Paris convention[3]
first chanced the idea that agriculture must be explored as an area to which
intellectual protection can be extended. However due to the existing state of
technology at that time the IP protection for agriculture were trademarks and
indications of source.
The United States of America was the
first state to recognise the intellectual property for plant breeds through the
Plant Patent Act[4]. This
law aimed at extending protection to asexually propagated plants. This law
triggered the discussion on extending IP protection to the field of agriculture.
There were divided arguments on whether or not to extend protection to plants
or to extend sui generic protection to new plant breeds that are developed. The
debate further extended to assess whether this protection could also be given
to plants or animal varieties or essentially biological processes since pants
and animals as such are excluded from patentability.
WTO
The rapid progress of technology established
that extending IP protection to agriculture would also led to protection of farmer’s
rights and rise in the prices due to monopolisation of the agricultural
produce. Efforts to make a global sui generic
system for the protection of new varieties of plants were first initiated at
the International Convention for the Protection of New Varieties of
Plants[5] at
the behest of the international Union for the Protection of New Varieties of
Plants (UPOV). Presently 75 countries have signed the agreement.[6]
The indigenous communities and
farmers around the world had experienced severe exploitation of the plant
genetic resources that were safeguarded and developed by them. The exploitation
of the traditional knowledge that was preserved by these communities for
centuries led to the adoption of through 2 international treaties Convention of
Biological Diversity,[7]
and the Food and Agriculture Organization (FAO)[8] , International
Undertaking on Plant Genetic Resources [9]which
was later used to develop the Seed Treaty. The treaty aimed at facilitating the
mechanism for benefit sharing and access to genetic resources. The Nagoya Protocol[10]
which was adopted later further streamlined the exploitation of genetic
resources.
In the year 1995 the establishment of the WTO led to the adoption of the
TRIPS Agreement[11] which
mandated all member countries to implement a system of protecting IP in
agriculture. The international conventions, treaties, protocols regulating the
usage of biological resources encouraged a flurry of research and innovations
on a universal level.
The TRIPS Agreement first streamlined
intellectual property into the international trading system. The TRIPS
Agreement extends protection to three items related to agriculture. Articles
22-24[12]
deals with patent protection to geographical indications, Articles 70.8 and
70.9 [13]deal
with agricultural chemical products, Article 27.3 (b) [14]extends
protection to plant varieties. The TRIPS Agreement requires that member states
to provide patent protection to plant varieties either through patents or
through a sui generic system. The member states however reserve the right to
determine the scope of the rights that are granted under the sui generic
system.
Legislative Framework regarding protection of Plant varieties in India
India has
enacted several legal instruments in response to its international obligations
under various treaties and conventions. These include the Seeds Act,[15]
The Patents Act[16] and its
subsequent amendments; the Geographical Indications of Goods Act[17],
and the Biological Diversity Act, 2002[18].
Seeds Act[19]: Enacted
to ensure the availability of good quality seeds to farmers following the
introduction of high-yielding varieties in the 1960s, the Seeds Act established
a framework for seed certification and quality control. The Act also provides
for the formation of advisory bodies, seed certification agencies, seed testing
laboratories, and regulatory mechanisms for seed distribution.
Patents Act[20] : This
Act, first implemented under British rule, has undergone several amendments to
comply with the WTO’s TRIPS Agreement. These amendments introduced a
TRIPS-consistent patent regime, including provisions for product patents in
pharmaceuticals and other fields, while excluding plants, animals, and
traditional knowledge from patentability.
Geographical
Indications of Goods Act[21]: Enacted
to provide registration and protection for geographical indications, this Act
is administered by the Controller General of Patents, Designs, and Trade Marks.
It aims to protect the names of products that have a specific geographical
origin and possess qualities or a reputation due to that origin.
Biological
Diversity Act[22]: In
response to the Convention on Biological Diversity, the Act regulates access to
biological resources and associated traditional knowledge to ensure equitable
benefit-sharing. It also supports conservation efforts and the protection of
traditional knowledge, with the National Biodiversity Authority overseeing its
implementation.
Protection of Plant Varieties in India
In the Indian context it was
understood that protection of plant varieties is imperative since agriculture
was a significant contributor to the nation’s economy. Therefore the need was
felt to have a balanced approach to protect the interests of the farming
community. This led to the enactment of the plant varieties and farmers rights
protection Act[23]. This
Act has several unique features as it assimilates the provisions of UPOV, CBD[24]
and several other distinctive features of its own.
The Act establishes the Protection of
plant varieties and farmers rights an authority which under the Ministry of
Agriculture besides the Chairperson, the Authority has 15 members, notified by
the Government of India to cater to the following major objectives of the Act:
a) To establish an effective system for
protection of plant varieties and rights of farmers and plant breeders.
b) To acknowledge and protect the
breeders who play a significant role in developing new plant varieties
c) To catalyse the investment and
research in the field of agriculture.
d) To promote the growth of the seed
industry so that high quality of seed resource is available to the farmer. To
maintain a national register of new plant breeds developed.
e) Registration of Plant Varieties Section
29(2) of the Act[25]
provides for the registration of eligible species. The guidelines laid down by
the authority specify the Distinctiveness, Uniformity and Stability which must
be met by the plant varieties.
The registration of new plant
varieties must be accompanied by registration fee. The fee varies based on
whether the registration is based for new or essential or extant plant varieties.
However fees is not required for a plant variety that has been developed by a
farmer. The National Register[28]
which is maintained by the Authority acts as an authentication of the rights
granted to the applicants. The certificate of registration issued by the
Authority will be valid for a period of 9 years in case of trees and vines. On
submission of application the registration will be extended for a period of not
more than 18 years.[29]
National Gene Bank and Field Gene Bank
The Act makes it mandatory to
maintain the seed samples and propagating material for plant varieties which
are protected under this Act. This helps in contesting issues pertaining to
patent protection of these varieties. Seed samples are maintained by the
National gene bank[30] .The
Authority has also opened a “National Register of Plant Varieties” having all
details of the registered plant varieties and kept at the Headquarters of the
Authority at New Delhi.
Rights Provided under the Act
Breeders, or their successors, agents, or licensees, hold exclusive
rights under the Act to produce, sell, market, distribute, import, or export a
registered variety. A breeder can authorize others to handle these activities
for the registered variety. During the period between the filing of an
application and the Authority's decision, breeders are provisionally protected
against any unauthorized actions by third parties. Enforcement of breeders'
rights can be pursued by filing an infringement suit concerning the registered
variety. Remedies may include the discovery of documents, preservation of the
infringing variety, and attachment of the infringer's property. However, these
rights do not extend to farmers who save, exchange, or use part of the seed
from the first crop of plants they have grown for sowing on their farms to
produce subsequent crops. Plant breeders are also restricted from exercising
their rights when protected varieties are used as initial sources for
developing new plant varieties.
Researchers are permitted to use any registered variety under this
Act for experiments or research. This includes using a variety as a starting
point for creating new varieties. However, the breeder's authorization is
required if the registered variety is repeatedly used as a parental line for
commercial production of a newly developed variety.
The Act grants comprehensive rights to farmers in line with the FAO
International Undertaking on Farmers’ Rights and related CBD Articles on
biodiversity conservation and benefit-sharing. This provision is distinct from
the UPOV framework, which treats farmers' rights as privileges rather than
inherent rights, unlike breeders' rights. Farmers' rights are recognized as
positive rights, acknowledging their past, present, and future contributions to
conserving, improving, and making Plant Genetic Resources (PGR) available,
particularly in centers of origin/diversity. The Act allows farmers to register
their varieties without paying fees and ensures they benefit from sharing if
their material is used to develop new varieties. Farmers are entitled to save,
use, sow, re-sow, exchange, share, or sell their farm produce, including seeds
of a protected variety, as they could before the Act, provided they do not sell
branded seeds.
This provision compensates villagers or local communities for their
significant role in the development of a registered variety. Claims for
compensation can be filed on behalf of these communities by any person, group,
or organization. After verifying the claim and allowing the breeder to raise objections,
the Authority may order compensation to be paid, subject to limits set by the
Central Government. The breeder may be directed to deposit this compensation
into the Gene Fund, with arrears treated as land revenue.
The Act
outlines provisions for benefit sharing in relation to registered varieties
under two main scenarios. First, specifically concerning Essentially Derived
Varieties [37], and
second, allowing village or local communities to claim benefits for their
contributions to the development of a registered variety under Section 41. For
an EDV, any Indian citizen, group of citizens, firm, or organization, whether
governmental or non-governmental, can claim a share of the benefits from commercialization
within six months of the registration certificate's publication on behalf of
any village or local community. The Authority assesses the validity of the
claims and determines the amount to be paid based on two criteria: (a) the
extent and nature of the claimant's use of genetic material in developing the
variety and (b) the commercial utility and market demand for the variety. If
any benefit-sharing amount is determined, the breeder must deposit it into the
National Gene Fund.
In the
second scenario, any individual or group, including firms and organizations,
can claim compensation on behalf of a village or local community for their
contribution to the development of any variety registered under the Act. The
applicant must provide detailed information about the parental lines and the
geographical location in India from where the genetic material was sourced,
including the contribution of any farmer, community, or organization involved
in the development of the variety. If the claim is justified after
investigation, and after giving the breeder an opportunity to object and be
heard, the Authority will determine the compensation, which the breeder must
then deposit into the National Gene Fund[38].
The
Authority is also responsible for ensuring the availability of seeds from
registered varieties to farmers, including the provision for compulsory
licensing. According to Section 47 of the Act, after three years from the
registration date, anyone can appeal for a compulsory license on the grounds of
inadequate seed supply or unreasonably high prices from the breeder. The
Authority will hear both parties and may, in the public interest, order the
breeder to grant a license to a third party upon payment of a fee. The duration
of a compulsory license can vary, but it will not exceed the period of
protection. The Authority can also set terms and conditions, modify, or revoke
the compulsory license as needed.
National Gene Fund
The
Central Government established the National Gene Fund, which is funded through
benefit-sharing payments from breeders of registered varieties or essentially
derived varieties, annual royalties from breeders, compensation deposited[39],
and contributions from national and international organizations. The Gene Fund
is used to support conservation and sustainable use of genetic resources,
including in-situ and ex-situ collections, and to strengthen Panchayat
capabilities in conservation efforts. It also funds benefit-sharing schemes[40].
The
Central Government is responsible for creating schemes that address
registration, processing, enforcement of claims, and the utilization of
benefit-sharing funds for the breeding, discovery, and development of
varieties. The funds are also used to support and reward farmers and farming
communities, particularly those in agro-biodiversity hotspots, for their
conservation efforts[41].
Infringement and Penalty
An infringement occurs when someone violates the rights of a
registered breeder by using the registered variety or denomination without the
breeder's consent. Remedies for such infringement include the discovery of
relevant documents, preservation of the infringing variety, or the attachment
of the infringer’s property. However, if a farmer can prove that they were
unaware of the existence of the breeder's rights at the time of the
infringement, their actions will not be considered a violation under the Act.
Additionally, the Act imposes penalties, including imprisonment and fines, for
offenses such as using a false denomination, selling varieties with a false
denomination, or falsely claiming that an unregistered variety is registered.
Conclusion
Intellectual
Property Rights (IPR) are globally recognized and have gained importance in
both developed and developing countries. The push for stronger IPR protection
has intensified with changes in the global technology landscape. The WTO’s
TRIPS Agreement has provided a framework for the global protection of IPR,
including plant variety protection, which has become an essential tool in
developed countries. However, developing countries face unique challenges in
designing IPR systems that balance the interests of formal sector breeders and
traditional farming communities. Despite initial resistance, many developing
countries have accepted the TRIPS Agreement and are revising their IPR laws to
reflect their specific needs and conditions. India, for example, has adopted a
sui generis system for plant variety protection.
[2]Lence, Sergio & Hayes, Dermot
& Alston, Julian & Smith, J.. “Intellectual property in plant breeding:
Comparing different levels and forms of protection”, European Review of
Agricultural Economics, 2015.
[3] Paris Convention for the Protection of Industrial
Property, 1883
[4] The
Plant Patent Act ,1930, 35 U.S.C. 161
[7] Convention
on Biological Diversity, 1992
[8] Food and Agriculture Organization of the United
Nations , 2001
[9] The International Treaty on Plant Genetic
Resources for Food and Agriculture, 2004
[10] The Nagoya Protocol on Access to
Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from
their Utilization to the Convention on Biological Diversity, 2014
[11] The Agreement on Trade-related
Aspects of Intellectual Property Rights, 1999 (1869 UNTS 299)
[12] Articles 22-24 of The Agreement on
Trade-related Aspects of Intellectual Property Rights, 1999 (1869 UNTS 299)
[13] Articles 70.8 and 70.9 of The Agreement on
Trade-related Aspects of Intellectual Property Rights, 1999 (1869 UNTS 299)
[14] Article 27.3 (b) of The Agreement on
Trade-related Aspects of Intellectual Property Rights, 1999 (1869 UNTS 299)
[15] The
Seeds Act, 1966, Act No. 54 of 1966
[16] The
Patents Act, 1970, Act No. 39 of 1970.
[17] The
Geographical Indications of Goods (Registration and Protection) Act, 1999, Act
No. 48 of 1999
[18] The
Biological Diversity Act, Act No. 18 of 2003
[19] Supra note 15
[20] Supra note 16
[21] Supra note 17
[22] Supra note 7
[23] The Protection of Plant Variety and Farmers Right
Act, 53 of 2001
[24] Supra note 7
[25]
Section 29(2),The Protection of Plant Variety and Farmers Right
Act, 2001
[28] Section 13, The Protection
of Plant Variety and Farmers Right Act, 2001
[30] Section 27, The Protection
of Plant Variety and Farmers Right Act, 2001
[31] Section 38, The Protection
of Plant Variety and Farmers Right Act, 2001
[32] Section 30 , The Protection
of Plant Variety and Farmers Right Act, 2001
[33] Section 39, The Protection
of Plant Variety and Farmers Right Act, 2001
[34] Section 41, The Protection
of Plant Variety and Farmers Right Act, 2001
[35] Section 26, The Protection
of Plant Variety and Farmers Right Act, 2001
[36] Section 47, The Protection
of Plant Variety and Farmers Right Act, 2001
[37] Section 26, The Protection of Plant
Variety and Farmers Right Act, 2001
[38] Section 45 , The Protection
of Plant Variety and Farmers Right Act, 2001
[39] Section 41, The Protection
of Plant Variety and Farmers Right Act, 2001
[40] Section 46 , The Protection
of Plant Variety and Farmers Right Act, 2001
[41] Section 41,45, The Protection
of Plant Variety and Farmers Right Act, 2001