SOWING IPR’s AND REAPING PRIVATISATION : AN ANALYSIS OF THE SIGNIFICANCE OF FARMERS RIGHTS IN AN ERA OF PRIVATISATION OF SEEDS (BY – MEENAKSHI & ABIN P SHAJU)
AN
ANALYSIS OF THE SIGNIFICANCE OF FARMERS RIGHTS IN AN ERA OF PRIVATISATION OF
SEEDS
AUTHORED BY – MEENAKSHI & ABIN P
SHAJU
Farmers’ are an important part of the
economic, social, and political fabric of the society in developing countries[1].
India is popularly recognised as an Agrarian Economy as agriculture plays an
irreplaceable role in nurturing said economy by way of generation of employment
as well as maintenance of GDP. Hence, the diversity in structure and historical
significance of the Sector, combined with the above mentioned factors,
constitute a constant need for adequate Farmers Rights to exist.However, with
the dawn of an era of privatisation, the need for a comprehensive system of
protection has arisen as well, as it is quite evident that the
industrialisation of the agrarian sector has robbed farmers of their autonomy
over seeds. Thus, it may be stated that the extent of influence that the
private sector wieldsover the agrarian sector via employing Intellectual
Property Rights and the Legislative provisions available to combat the
exploitation of such influence forms a subject thatdemandsthorough analysis.
Farmers
Rights Equals Intellectual Property Rights?
The most striking question
one can ask with respect to the topic at hand would be whether or not certain farmers
rights, such as those mentioned above, can be viewed as intellectual property
rights. A case study was conducted on this topic by the University of Pune, in
which various scientists, academicians and farmers were asked the
aforementioned question. However, it was noted that most participants did not
provide a clear yes or no answer. Some of the respondents were of the opinion
that Farmers Rights should be viewed as IPRs as long as the presence of
innovation is evident. It was also mentioned that the aspect of conservation is
one that should be viewed in the utmost seriousness in this context. However,
contrary to this particular opinion, many respondents who participated in the
case study emphasised that IPRs are quite different from Farmers Rights. This
statement was made based on the difference in general characteristics of IPRs
and Farmers Rights. The former was placed in the category of individual rights,
whereas the latter was classified as a collective right. It was opined that the
innovation of farmers in the development and improvement of crop plant varieties
takes place at the community level over an extended period of time. Hence
confining them within the purview of IPR would be an undue influence of the
western system, thereby promoting monopoly of the private sector and market
competition.
Privatisation
Of Seeds; How Bad Is It?
The industrialisation of agriculture was a process that marked its
beginning in the 1950s and gradually developed throughout the 1960s and 1970s.
This resulted in production processes being extremely mechanised, thereby
significantly transforming agriculture from what it once was. Some among the
many factors that facilitated said transformation include specific markets that
emerged for seeds, fertilisers, animal feed, pesticides and so on, which in
turn created a system where farmers could not manage to produce their crops
autonomously. Instead, they metamorphosed into mere members of a long chain of
production.
Seeds have constantly been the very foundation of social, cultural and
productive processes that have accorded the rural population with the ability
to maintain a certain level of autonomy. However, with the development of
capitalism in the agrarian sector, laws that
grant property rights over seeds have been reinforced by other regulations that
are supposed to ensure seed quality, market transparency, prevention of
counterfeits and so on. These regulations include seed certification, marketing
and sanitary rules. By means of these regulations, it becomes mandatory, for
instance, for farmers to purchase or use only commercial seeds tailored for
industrial farming[2].
Not all small-scale farmers are ina position to take advantage of new
opportunities. Subsistence farmers innovate predominantly in response to risk,
while only those with accumulated assets, expanded production or off-farm
employment are able to ‘step out’ into commercial markets.[3]
The Monsanto case[4] may be
considered an adequate example of how privatisation of the seed industry
negatively affects farmers as mentioned above. Monsanto, which is an
agrochemical company filed a suit for infringement against a Canadian soy-bean
farmer named David for saving their seeds. The Federal Circuit held that
planting a seed containing the gene sequence constitutes infringement because
the seed contained the gene which is used in planting amounts to an
infringement act. While this is a justifiable application of Intellectual
Property Rights, the fact that More than 500 private seed companies (the
largest with a turnover of about $3 million at official exchange rates), 24 of
them with links to multinational seed companies, and many with their own hybrid
development programs are operating in India alone, according to a study by the
World Bank in 2001[5],
needs to be given due consideration. Even if seed saving could be employed, the
hybrid seeds that are sold by private corporations, do not yield well when it
comes to the second generation. This more or less compels farmers to purchase
seeds post each harvest.
The monopoly of privatised entities in
this particular sector is problematic due to multiple reasons as elaborated by
the IAASTD (International Assessment of Agricultural Knowledge, Science and
Technology For Development). Firstly, it has been stated that the monopoly of power
leads to the concentration of research and development being invested into only
a small number of seed varieties. This would directly result in the second
reason as provided by the IAASTD, namely, concentrated market control preventing
other firms from entering the seed economy. Such concentration of market
control is considered detrimental to the sector as other firms which may be
able to offer alternative products and more sustainable business models are
prevented from entering. Moreover, the competition stifling effects of a dominated
marketplace may lead to massive hikes in seed prices, as illustrated in the
case of cotton seeds in the United States. Since the introduction of genetic
modification of organisms the prices for cotton seeds in the United States have
risen approximately three to four fold. Substantial increases in the price for
cotton seeds subsequent to the above mentioned hike can also be seen in several
developing countries[6].
An advantage that is evident in the
Indian legal system, with regard to such privatisation is that the Protection
of Plant Varieties and Farmers Rights Act, 2001, has included a seed saving
exemption. Similarly, The US Plant Varieties Protection rights provide ‘save
seed’ exemptions under which farmers are allowed to grow protected varieties to
save the resulting seed foruse on the farm and also to sell such seeds for
purposes other than reproductive purposes without paying any licensing fees[7]. Such
provisions need to be employed adequately and be developed in order to ensure
that farmers are not exploited.
The
Legislative Framework; An Overview
In India the contribution of
Agriculture in terms of livelihood and as a source of employment is
significant. Therefore, it is absolutely necessary to thoroughly understand and
protect farmers’ rights. Exploitative practices employed by private entities in
the name of Intellectual Property Rights such as the issue at hand concerning
the privatisation of seeds may be combated by exercising such rights that have
been warranted byLegislations such as The Protection of Plant Varieties and
Farmers Rights Act, The National Biodiversity Act, The Geographical Indications
of Goods (Registration and Protection) Act and The Seeds Act.
The Protection of Plant Varieties and
Farmers Rights Act (hereinafter referred to as PPVFR)[8]
is the most significant legislation that has been implemented in the nation
with respect to Farmers’ Rights. Although the Act was introduced in order to
satisfy the demands of the seed industry, which was pushing for breeders
rights, it came to be the primary law for the purpose of protection of farmers
rights as well.Prior to the introduction of Intellectual Property Rights
into agriculture, it was extremely common practice for farmers to retain seeds
to use for the next round of cultivation, or even share or exchange the same.
These practices were governed by the principle of free exchange (common heritage).
This principle was built on the ideology that the major food crops are not
under the ownership of a specific entity. Instead, they were thought to be a
part of genetic resources governed by human heritage. However, the downside to
this was that there was no system of compensation or benefit sharing, thereby
negatively impacting breeders as they could not acquire plant variety
protection.
The Rights of Plant Breeders in India
were first advocated for by The Seed Association of India. This movement garnered
strength with the conclusion of the TRIPs agreement and thus, the government
commenced the process of drafting an adequate legislation for the same.
However, it was only post five revisions that a legislation that incorporated
both farmers and plant breeders rights could be formulated. Subsequent
to such revisions, nine rights were established in favour of the farmers of the
country with regard to selecting, saving and maintaining seeds. The first among
the same would be the Right to Seed[9].
This provision actively aims at attempting to secure the rights of farmers to
use, save, sell or exchange seeds as they did prior to the implementation of
the PPVFR Act. The conservation of this right was one of the most significant
demands put forward concerning the topic. However, according to the provision,
the right is only preserved conditionally and the farmer is not entitled to
sell seeds in a packaged form that is labeled with a registered name. Similar
to the right to seed, the Right to Register Varieties has also been warranted
via the PPVFR. This is similar to the rights granted to commercial breeders to
seek IPR over varieties that farmers develop. The criteria for the accordance
of IPR for the same is similar as well, namely, the presence of factors such as
stability, uniformity and distinctness. This is a unique right warranted by the
Indian legal system and provides exclusivity with respect to the production and
marketing of the registered variety of seed. Subsequently, we can see that the
legislation also warrants rights apropos of Reward, Recognition and Benefit
Sharing. These provisions have paved the way for the establishment of the
National Gene Fund, which in turn rewards farmers that facilitate the
conservation of varietal development of plants. The fund is maintained through
the payment deposited by breeders under the title of ‘benefit sharing’, a claim
of which may be submitted by a person
or group of persons, a firm or a governmental or non-governmental organization.
The Right to Information and Compensation
for Crop Failure[10]and
the Right to Compensation for Undisclosed Use of Traditional Varieties as
provided under the PPVFR are extremely significant when considering the extent
of protection that they guarantee exclusively to farmers. The former requires
breeders to provide information regarding the expected performance of their
respective registered variety and if such crops fail to perform or grant an
adequate yield, then the farmers can claim compensation under said provision.
Similarly, the latter stipulates that in cases where it is established that the
concerned breeder has not divulged the source of varieties that belong to a
particular community, then compensation would be granted through the National
Gene Fund.
The Right to
Availability of Registered Materialemploys the IPR’s that are in the possession
of breeders in favour of farmers by stipulating that such breeders are to provide ample supply of seeds or
material of the concerned plant variety to the public at a reasonable and fair
price. Moreover, if post three years of registration of said variety, the
breeder fails to accomplish the same, any person can apply to the Authority for
a “compulsory licence”. Compulsory licenses possess the power to revoke the
exclusive right granted to the breeder and enable third parties to produce,
sell or distribute theregistered variety. Moreover, the Right to Free Services
and the Right to Protection from Legal Infringement in case of Lack of
Awareness take into account the possible deficit in cognizance among farmers in
relation to aspects of law and ensure thatthey are not held liable for the
same. These provisions also focus on imparting information to people employed
in the agrarian sector to maximise their awareness of the rights that are
available to them.
The National Biodiversity Act[11]
(NBA) is largely based on the Convention on Biological Diversity and has its
nucleus at regulating access to genetic resources in India. It focuses on
guaranteeing safe and fair use of the same as well. The primary intention of
the legislation revolves around establishing the nation’s sovereign right over
its genetic resources by establishing administrative regulations for
foreigners, as well as Indians, to access the same. The NBA has implemented
several provisions for the purpose of preserving and protecting the knowledge
of local communities. A method for warranting such protection includes the
registration of local knowledge. Moreover, the NBA actively combats bio-piracy
by way of the establishment of Biodiversity Authorities at the National and
State levels.
With respect to the topic at hand, it
may be stated that the Geographical Indications of Goods (Registration and
Protection) Act[12]
aims to provide protection for agricultural goods originating from a specific
region or territory. Although the Act does not deal specifically with farmers,
the impact it exerts on farmers in terms of protection that can be granted for
agricultural commodities is evident. It can be employed to protect the rights
of farmers and it may also restrict the access of farmers to the protected
goods depending on its mode of implementation. Benefit Sharing is a significant
aspect of this legislation as well. A real-life example of such an agreement of
benefit sharing would be the one that was entered into by the Tropical Botanic
Garden and Research Institute with a tribal nomadic community in Kerala known
as the Kanis. It revolved around a plant with medicinal properties that was
discovered by the Kanis and was used by a company under a transfer agreement
with the TBGRI to manufacture a drug that had anti-stress properties. Fifty
percent of the license fee and fifty percent of the royalties obtained with
regard to the drug were agreed to be received by the tribal community as per
the benefit-sharing agreement.
The Seeds Act of 1966[13]
may be analysed as well and this particular legislation was implemented for the
regulation of seed quality with regard to sales that occur in the nation and
matters that are associated with the same. Various organisations such as The
Central Seed Committee[14],
The Central and State Seed Laboratories[15]
and Certification Agencies[16]have
been established under the Act in order to ensure that its stipulations are
adequately carried out. This ensures the protection of farmers from being
exploited in such matters.
Conclusion
The conclusion that a
certain amount of security should be warranted to the farming community via
IPRs without compromising traditional values and practices, is an obvious one.
The most fundamental reason behind granting IPR on plant varieties would be the
undeniable innovation in developing a new variety that is distinct from
pre-existing ones through selection that may or may not involve recombination.
Unlike the innovations that are made in many non-biological domains, life forms
such as crop varieties are not completely invented, but are always created from
pre-existing life forms and propagated by natural processes. Thus, the creation
of a new variety has two components: the use of pre-existing varieties and the
knowledge required to select a new variety by recombining the pre-existing ones
or by other processes[17].
The protection granted by
Intellectual Property Rights with regard to the subject at hand creates a
deviation from the traditional rights that farmers enjoyed in an unrestricted
fashion. Hence, the practices that have been currently implemented require
careful navigation in order to ensure that ample rights over seeds and plant
varieties are granted to the farming community and excess privatisation is
avoided.An apt example of the samewould be the seed saving exemption[18] that
has been warranted by the PPVFRA. As mentioned above, similarities may be drawn
between said provision and The US Plant Varieties Protection Rights which
provides a ‘save seed’ exemption.
Therefore, in conclusion, such
provisions and practices need to be employed adequately and be developed
sustainably in order to ensure that farmers are not exploited and are granted
the autonomy that every farmer should ideally be able to exercise.