Open Access Research Article
Farmer V. Breeder In Special Reference To Plant Varieties Protection (By-Dr. Deepali Vashist)
Published Paper
Article Details
Authored By-Dr. Deepali Vashist
Abstract
In India, The Protection of Plant Varieties and Farmers’ Rights Act
(PPVFR) 2001grants different sets of intellectual property rights including
ownership, residuary and conventional rights to both, breeder as well as to
farmers. One such conventional right available to farmer in section 39(1) (d)
of the PPVFR Act is, right to save, use, exchange share
and sell seeds or plant variety including a registered plant variety except
branded plant variety. However, this right has been infringed in many
instances, including PepsiCo India. In 2016, the plant variety Registrar
granted certificate of registration to potatoes variety (FL 2027) of Pepsi Co
India. The Company filed suit against farmer for infringement though they are
immune from infringement under section 42 of the PPVFR Act.
Objective
The object of this paper is to give an account of difficulties which the
farmers are facing in accessing the rights and freedom granted under the PPVFR,
Act, 2001 with special reference to PepsiCo India lays’ Potato case. This paper
will also analyse whether the aspiration of farmers and breeders for
intellectual property rights can be fulfilled simultaneously or not? If yes,
then what are the measures which should be taken into consideration for
effective implementation of the rights of both?
Methodology
The research methodology is doctrinal. This article reviews news,
articles, legislation and cases pertaining to the balancing of rights between
breeders and farmers
Key words: farmer, breeder, breeder’s rights,
farmers’ rights, Plant variety Protection etc.
Introduction
India is one of the richest mega
plant diversity country of the world. It is reported that around forty-five
thousand five hundred and twenty-three plant species existed in India which is
almost 11.8 percent of world flora.[1]India
ranked ninth in the world in term of higher plants species. Twenty thousand
species of higher plants alone occur in India and twelve thousand species of
plants are well-known for their medicinal properties. The credit to maintain
such rich plant biodiversity goes to the two foremost stakeholder one, who is
known as breeder and another, Farmers. However, in the arena, plant and plant
genetic resources, India follows the principle of common heritage from
primitive days.
So, the idea of protecting the rights
of both the stakeholders i.e., breeders as well as farmers along with plant
variety protection is something which is completely appropriate. The idea of
giving protection to plant variety under Intellectual Property Rights regime
emerged in Indian legal system because of India’ membership in United Nation
Organisation. The World Conference held in Geneva in 1947, established the
General Agreement on Tariffs and Trade (GATT) for taking care of trade. In
1995, GATT was replaced by World Trade Organisation (WTO). It put a mandate on
its members that they need to protect all the invention by granting
intellectual property rights. Article 27.3(b) of Trade Related Aspect of
Intellectual Property gives option to member countries to protect plant
varieties by any one of the following namely-
a. Patent for Plant Varieties; or
b. An effective sui-generis i.e., its
own kind; or
c. A combination of patent and an
effective sui-generis system for protecting plant variety.[2]
Being a member of UN for compliance
of TRIPS mandate, India has enacted the protection of Plant Varieties and
Farmers’ Rights (PPVFR) Act, 2001. This is the law which grants protection to
both breeders vis-à-vis farmers. The PPVFR, 2001ensures rights to both, breeder
as well as to farmers. The Act also
grants protection to plants by categorising them in different groups.
Plant
Grouping For Protection
The PPVFR Act grants protection to
plants. It classifies Plants in four different heads namely New Plant Variety,
Essential Derived Variety (EDV), Extant Variety and Farmers’ Variety. The new
plant variety and EDV are often regarded as breeders’ variety whereas extant
variety and Farmers’ variety are considered to be farmers’ variety. In fact,
the definition clause also says that extent variety includes farmers’ variety,
which is confusing. The question arises as to what is the purpose of
categorisation if extent variety includes farmer’s variety..
A ‘New Plant Variety’ is nowhere
defined in the definition clause of the statute. However, the term ‘new’ has
been used under section 15(3) (a) of the Act which means something which is not
commercialised before filing the application for registration i.e., one year in
case if it is commercialised in India and four years if it commercializes
outside India and in case of trees and vines, the period would extend to six
years. So, the novelty is considered not from the date of filing, rather it has
been evaluated before the
date of filing.
EDV is defined in section 2(i). It is that plant variety
which is predominantly derived from some other variety and, that’s why it
retains some feature or features of initial variety. This kind of varieties can
only be developed in a scientific lab, that’s why, it can be tagged as
breeders’ variety.
Extant variety is defined in section
2(j) of the Act. The unique feature of this plant variety is that it must be
subsisted i.e., found in India. It includes all the plant variety notified by
central government in The Seed Act, 1966 or a farmers’ variety which is
developed by a farmer or any other variety which is a part of public /common
knowledge.
Whereas, the farmers’ variety is a
variety which is being developed and cultivated by farmers in their farm. The
section 2(l) defines farmers’ variety. It includes wild relatives or landraces
of a variety about which they possess a common knowledge.
The Act grants protection to all four
forms of plant varieties subject to conformity of NDUS Test. This is the basic
test which means Novelty, Distinctiveness, Uniformity and Stability.[3]Novelty
is one feature which is required to be established only in case of new variety,
whereas, the remaining three feature i.e., DUS is required in other plant
grouping like Extant Plant variety, Essential Plant Variety and Farmers’
Variety. However, the extent of DUS is different in all plant varieties like in
case of New variety, it is conducted in two similar crop seasons at two
different locations; in case of farmers’ variety, one crop season at two
different
locations; whereas in case of extant
variety, DUS conducted to check the validity of variety for registration
according to the term specified by recommendation committee; and, in case of
EDV, DUS test is the second stage of testing, whereas, the primitive test is
field test.[4]
Period Of
Protection
The period of protection provided by
the statute has been categorised on the basis of plant variety type like in
case of trees, vines and crops. The Act grants protection for eighteen years to
trees, vines and crops and, the certificate of registration is initially valid
for a term of nine years; and, in case of other crops the period of protection
is fifteen years, whereas the certificate of registration is valid for only six
years. Hence, the statute provides different term of protection for different
plant variety.
Section 24 of the PPVFR Act provides
for the total period of protection granted to a plant variety. The provision
says the period of protection starts running from different stages like in case
of extant variety, the period of protection starts from the date of
notification of genera and species whereas for any other plant variety, it will
start from the date of registration i.e. the date on which certificate has been
granted.
Different
Claimants/ Stakeholders In The Statute
Breeder is a person who breed new
plant varieties. Section 2(c)define the word ‘breeder’ as a person or group of
persons or farmer or group of farmers or any institution which has bred,
evolved or developed any variety. So, the provision recognises farmer as a
breeder. The breeder develops a variety by doing some modification i.e.,
alteration or deletion in a fully equipped lab, for developing a new plant
variety which is actually a new/modified version of some conventional or
traditional plant variety or Farmers’ variety. In-fact, the demand for
breeders’ rights has contributed in the origination of farmers’ rights. It is
an established fact that the PGR and associated knowledge has been used for
developing any new plant variety and this newly developed variety has been
regarded as breeder’s intellectual property and is deemed subject to protection
in intellectual property rights in various developed countries of
the world.
The term ‘farmer’ is defined in
section 2(k). He is a person who cultivates crops by cultivating the land
himself or under whose supervision someone else cultivates the crops or who
conserves, preserves any wild species or traditional plant variety by
conventional breeding process i.e., identification and selection of useful
plant variety. He is also known as a breeder of conventional plant variety so
he has the right to get registration over this variety.
In the process of production, the
farmer conserves conventional plant varieties which have actually become the
source/basis for developing new/breeders’ plant varieties. They are the
reservoir of the skill and knowledge related to conventional plant breeding.
In-Fact, the modern breeders use the convention plant varieties, genetic
resources and associated knowledge without recognizing and rewarding farmers
and their communities. So, farmers are entitled for group intellectual property
rights or community rights also. They claim these rights in lieu of the
contribution they made in conserving plant genetic resources.
Farmers conserved and transferred
traditional knowledge to their next generation without any expectation. They
are the one who never claim any intellectual property right. It is a fact that
“farmers’ Rights” emerged in India to contravene the intellectual property
rights of breeders. The rights are acclaimed by farmers to secure their control
over traditional plant varieties and plant genetic resources. They are under
the fear that in the absence of farmers’ rights over traditional plant variety,
breeder may exploit farmers’ plant variety without any hitch and after doing
some minor changes with the help of biotechnology and claim intellectual
property rights on the same. To overcome farmers’ fear, the legislature placed
farmers’ rights under the same statute in the country which protects breeders’
rights.
Apart from breeders and farmers,
there is one more group of people who enjoy freedom to use a registered plant
variety i.e., Researchers. They have the right to use any protected/ registered
plant variety for research and experimental purpose under section 30. So, they
are not liable for any infringement, however, if they use a registered plant
variety or plant genetic resources repeatedly for commercial production of a
new plant variety, then they have to take the consent of the owner of the
registered plant variety.
The central government and in certain
cases the state governments will be deemed to be the owner of extant variety
unless a breeder does not
establish his rights within three years of the date of notification in the
gazette.
Rights Of Farmers
And Breeders
The Act grants certain rights to
breeders of registered plant variety. The rights of breeder can further be
transferred to breeders’ successor, agent or licensee. The breeder of a
registered plant variety is entitled to produce, sell, market, distribute,
import and export the registered plant variety. They are the one who actually
control the production and commercialization of plant varieties, so they are
the owner of a registered plant variety. They have the right to prosecute an infringer
i.e. a user who uses a plant variety without the consent of breeder or; who is
not a breeder of a variety registered under this Act or a registered agent or a
registered licensee of that variety, sells, exports, imports or produces such
variety without the permission of its breeder or registered licensee, as the
case may be.[5]
Farmers are claiming rights in this
statute for the investment they made in the name of labour, time and energy in
maintaining and conserving traditional plant varieties and for preserving plant
genetic resources (PGR), whereas, breeder claim protection for innovating new
plant variety by using PGR.[6]
So, they both have their justification for claiming rights/protection. However,
since the very inception of use and application of biotechnology, farmers were
overstepped by the tech-savvy breeders because of the inability of the farmers
in accessing technology and information. For protecting the right and interest
of farmers, the statute grants certain rights and freedoms to farmers.
The Intellectual Property Rights of
farmers are specified in chapter 6 of the PPVFR Act from section 39 to 47. Section 39 (1) (i)
to (iv) provides mainly four rights to farmer namely:
(i)
A
farmer has a right to register his “new plant” variety as a breeder if he has
bred or developed a new plant variety;
The
intent behind granting this right to the farmer is to get and enjoy benefit of
intellectual property on their innovation in the form of a plant variety. [7]
(ii)
enables farmers to register his conventional/
traditional plant variety as a farmers’ variety if he is able to prove that the
genetic material or parental material used in developing plant variety has been
acquired lawfully.
(iii)
Right to be recognised and rewarded for
conserving genetic resources and land relatives of plants.
(iv)
farmer has the right to save, use, exchange,
share and sell his farm produce including seed of a protected variety. This is
the conventional right which is available to the farmer. However, he shall not
be entitled to sell branded seed of a variety protected under the Act.
Sub-section (2) of section 39 empowers farmers to claim compensation in
case he suffers any loss because of the poor quality of seeds supplied by a
breeder.
Section 40 of the Act puts a mandate upon the breeder to disclose the
use of genetic material of some traditional plant variety which he used in
developing any plant variety, which is conserved by a farmer or by any tribal
community.[8]
Farmers can also claim this right as a collective or as a Communities’ rights
provided under section 41. This provision also states that if a breeder
knowingly conceals such information, then on this ground, registration can be
rejected.
Section 42 provides immunity to farmer from infringement. This provision
says-
“The right established under this Act shall
not be deemed to be infringed by a farmer”
It
connotes that the court will not take any court proceeding against farmer for
infringement under section 64 by virtue of protection given to the farmer in
section 42 if he is able to prove that he is not aware about the registration
and existence of breeder’s rights over that plant variety. So, the burden lies
upon the farmer to prove the fact that he is not aware about such right.
The provision also says in sub-section (ii) of section 42 that the court
would not grant any relief against farmer if he is charged for infringement in
section 64. In-fact, the provision also states the court would not take
cognizance under section 65 against farmer for committing infringement.
Therefore, the court would not grant any relief to the farmers. So, if a
complaint is filed against a farmer for breaching breeder’s rights under the
Act, then he would not get any relief. The object of giving this right to
farmer is to enable the farmer to maintain unrestricted access of farmer over
seed.
Section 43 says about Prior Authorisation of farmers in case if farmers’
variety use as a parent variety in the development of an Essential Derived
Variety. It says if a breeder of an Essential Derived Variety which is a
derived variety of some farmers’ variety, cannot be used /exploit by any breeder
for any of the purposes given in section 28 i.e. for producing, selling,
marketing, distributing, importing and exporting such variety.
Section 44 gives immunity to farmer or village community from paying any
fee in any proceeding, be it before a judicial authority or an administrative
agency. The explanation of section 44 describes the ‘fees’ as any payment made
for inspection of any document or for obtaining a copy of any decision or
order, payment that are required to be made for variety registration, test fee
of NDUS, and any other fees required to be paid for services rendered by PPVFR
Authority specified in the provision.[9]
Section 45 provides for establishment of “National Gene Fund” by the
Central Government.
Section 45 is divided in two sub-sections. Sub-section (1) gives an account of
all measures which can contribute in NGF. The Gene Fund shall be credited by
the following amount, namely, amount of benefit sharing received, amount of
annual fees payable to the authority under section 35 and compensation claimed
under section 41.
Sub-section (2) of
section 45 states that the Gene Fund can be used for paying benefit sharing,
expenditure made in conservation of genetic resources.
Judicial
Pronouncement
Recently, in PepsiCo. India v.
Potatoes Farmers, the rights of farmers were attacked. In April 2019, PepsiCo
filed patent infringement suit against nine farmers of Gujarat for cultivating
their potato varieties FL 2027. The Company accused farmers for infringing its
statutory right given in section 64 and 65 under PPVFR Act and, claimed Rs.
1.05 crore from each farmer. The company contended that they had been illegally
producing and selling the potato variety (FL 2027). The City Civil Court at
Ahmedabad granted ex-parte ad-interim injunction for restraining farmers from
producing and selling the potatoes variety without considering the fact that
seeds of said potato variety can be found with farmers because of conventional
farming
practice i.e., exchange and share of
seeds.[10]
In-fact, section 39(1) (iv) recognises this conventional right of farmer. It
says farmers have the right to save, use, exchange, share and sell seeds or PGR
of a plant variety including a registered plant variety except branded plant
variety under this Act, in the same manner as he was entitled before coming
into force of this Act. Apart from this, section 42 provides protection to the
farmers from infringement. It grants immunities to the farmer from infringement
if he proves ignorance of the existence of the right at the time of
infringement.
The legislative intent behind these
provisions is to protect the conventional right of farmers in respect of seeds.
These rights have been given to the farmers to safeguard the position of farmer
as a conserver of plant biodiversity. They have been subjected to lot of
exploitation from time immemorial because of their poor economic and
educational backgrounds. They are ill-informed and untrained. So, these two
rights safeguarded the farmers in this case also.
Later, on 10th May 2019,
the PepsiCo. India Withdrew the suit against farmers. Thereafter, in June 2019,
an application for revocation of registration certificate was filed by Kavitha
Kuruganti, Convenor of the Alliance for sustainable and Holistic Agriculture on
several grounds like the adverse impact of registered variety on the livelihood
of farmers, incorrect information provided by PepsiCo. and alleging that the
grant of certificate is not in public interest. This triggered a reaction from
farmers, NGO’s and political parties. In this case, the company’s registration
has been revoked by the Protection of Plant Varieties and Farmers Rights’
Authority on the ground specified in section 34
i.e., the certificate of registration had been issued on incorrect
information, the certificate had been granted to a person not eligible for
protection, that the breeder did not provide sufficient material as required
for registration and, the grant of certificate of registration was not in the
public interest as several farmers have been put to hardship including the
looming possibility of paying hefty amount in the form of compensation.[11]
Apart from PepsiCo.,in M/s
International Flower Auction Bangalore Ltd. v. M/s. Moerheim Roses&
Trading India Pvt. Ltd., the PPVFR Authority passed an order for revocation of
registration certificate.
Conclusion
& Suggestions
It can be said that the PPVFR Act is
an attempt to protect the Intellectual Property rights of farmers. However,
there is still need to do lot in this regard, like need to make aware farmers about
the existence of this law and the rights available to them and how they can
access technology vis-à-vis genetically modified seeds and other resources etc.
There is a need to sensitize breeders turned companies that they are able to
develop new plant varieties only because of the farmers’ efforts in conserving
plant genetic resources. So, farmers are their companions which have to be
supported by them.
In Pepsi Co India, the PPVFR
Authority has passed an order for revocation of registration Certificate.On
December 3, 2021, the Protection of Plant Varieties and Farmers’ Rights
Authority revoked the registration certificate of PepsiCo India for protecting
the interest and rights of farmers. This order has been taken as a historical
victory for ensuring rights to the farmers provided under the Protection of
Plant Varieties and Farmers’ Rights Act (PPVFR) 2001. The PPVFR Authority
revoked the certificate of registration on the ground that certificate of
registration had been based on incorrect information, the certificate had been
granted to a person not eligible for protection, that the breeder did not
provide sufficient material as required for registration and, the grant of
certificate of registration was not in the public interest specified under
section 34. The said decision of the authority sets an example that the freedom
and rights given to the farmers under the statute are actually backed by law.
The judgment of the PPVFR Authority in PepsiCo India case is significant and
turns to be a milestone in the history of Plant variety protection and Farmers’
rights provided under the PPVFR Act.
One another step which can be adopted to curb such an
issue between the farmers and breeder is by bringing a legislative change in
the PPVFR Act i.e., there should be an amendment which should establish a
proper relationship between pate
Article Information
Farmer V. Breeder In Special Reference To Plant Varieties Protection (By-Dr. Deepali Vashist)
Authors: Dr. Deepali Vashist
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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