Open Access Research Article
A CRITICAL ANALYSIS OF FARMERS RIGHTS IN INDIA
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Article Details
A CRITICAL
ANALYSIS OF FARMERS RIGHTS IN INDIA
AUTHORED BY - KAUSTUBH MURKUTE
Roll no: 94
LL.M 1st
P.E.
SOCIETY’S
MODERN LAW
COLLEGE
GANESHKHIND,
UNIVERSITY CIRCLE, PUNE
DEPARTMENT
OF L.L.M 2023-2024
Abstract:
This
research focuses on the Protection of Plant Varieties and Farmers Rights
Act, 2001 (PPVFRA), a unique method of protection
under the intellectual property framework that
protects farmers' interests in plant varieties they generate. India was
the first country to implement a
system to protect farmers interests, which has received global recognition.
This research aims to interpret
PPVFRA provisions and identify weaknesses in the act. The report concludes with recommendations for
legislators to improve the functioning of the act to promote farmer
security and sustainability of the country's bio resources.
Key Words:
PPVFRA, Plant breeding, farmers rights, sui generis system of protection, short comings of the act.
Introduction:
Intellectual Property (IP) is an idea
that was created to protect the rights of intellectual property. And people
are the only creatures
who would ever be interested in buying properties or goods. To satisfy that kind of human
need and to encourage research and development, lawmakers have started
to recognize the creations of minds through
a concept called "intellectual
property rights." These rights give the person who created something
ownership over that creation and allow
them to use it without anyone
else's permission.[1]
Since time immemorial, Indians have
worshipped specific trees (neem, banyan, etc.), animals (cow, elephant), birds, and reptiles, often equating them with
gods and praying to them. According
to the jurisprudential natural law approach, the relationship between nature
and humans cannot be denied. Now,
this human behaviour, passed down from generation to generation, can be linked to resource conservation and the
preservation of the country's biological diversity. However, over time and as the country
evolved, it began
to lose its natural resources in order to cope with a rapidly changing world.
India has more than 42,000 different
folk landraces, and 95% of them are now in danger of going extinct. Since the 1960s, India's biodiversity has been
declining. This is because of the rise of foreign and national seed industries and their hybrid
varieties, which put Indian species
at risk and threatened the natural balance of the environment.
Government lawmakers were created to protect farmers'
interests and keep plant types alive. However,
there were some gaps in the laws that weren't
filled, which meant
that farmers continued to suffer. So, this study
looks at the problems
farmers are having because the act doesn't
go far enough and how to make agriculture grow in a way that is sustainable.[2]
INTERNATIONAL TREATIES ON PROTECTION OF FARMERS RIGHTS
Intellectual property rights should be protected to encourage invention, innovation, and research, to reward hard work, to value creativity, and to help the economy
grow and develop.
These are the most important reasons why intellectual property rights
should be protected and promoted.
It could be said that IP had more credibility now that the country is moving
toward economic growth.
IP has changed in different
ways in each country. So, international agreements and treaties have grown so that there is less uncertainty about
who gets an IP right
and so that the process is the same in all countries. In the late 1800s,
it became clear that plant breeders
and farmers needed to be protected in the same way that performers, creators, inventors, innovators, and producers are protected by copyright,
patents, and trademarks.
The
key agreements established at international level that paved way for the rigid
base to sui generis system of protection for farmers’
rights in India include-
· International Union for Protection of New Varieties of Plants (UPOV)
· International Treaty
on Plant Genetic
Resources for Food and Agriculture (ITPGFRA)
· International Union for Protection of New Varieties of
Plants (UPOV)
The
International Union for the Protection of New Varieties of Plants, or UPOV
(French: Union Internationale pour la protection des obtentions vegetables),
was established in 1961 to protect new plant varieties and the rights that come
with them for farmers through the intellectual property system. It was later
revised in 1972, 1978, and 1991. The agreement focuses on the need and importance
of protecting novel plant kinds while also conserving current ones. Plant
breeding rights have been codified into the intellectual property system to
benefit society.[4]
· International Treaty on Plant Genetic Resources for
Food and Agriculture (ITPGFRA)
The
International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGFRA)
plays a big part in our lives.
This international treaty
was made at an FAO meeting in November 2001, and it went into effect in 2004. The final goal of this treaty is to recognize the farmers who feed the hungry people of the world. It's very important to understand
Article 9 of the treaty in order
to understand what it means. It says:
·
The need for sustainable diversity
in food cultivation.
When this international treaty was made, it was meant to help and protect
the rights of unrecognized farmers,
mostly in poor countries or countries whose economies depend on farming.
The agreement's goals are as follows:
· To conserve
and improve traditional varieties,
· Recognise the rights of farmers over plant genetic
resources,
· Provide farmers
the share of benefits/ profit
accrued from the usage of farmers’ variety,
· Provide enormous
and exclusive right to farmers
in saving, exchanging, sharing or using
the seeds from their farm production and
·
To encourage the participation of farmers in conserving and promoting plant genetic resources.
·
Trade Related Aspects
of Intellectual
Property Rights (TRIPS)
The TRIPS agreement
under the WTO is often regarded as the most important for the harmonisation of
the intellectual property system, and it is also known as the comprehensive
multilateral agreement on intellectual property. It went into force on January
1, 1995. Article 27 of TRIPS emphasises the scope of farmers' rights. Under
Article 27.3(b) of TRIPS, the agreement on Trade Related Aspects of
Intellectual Property Rights recommends that member countries protect the
rights of farmers and plant breeders by either adopting a sui generis system or
a patent system of protection with separate provisions for farmer protection
and plant variety propagation. The sui generis system of protection (in the
context of PPVFRA) can be characterized as a separate system of protection that
provides or establishes a new system of law under intellectual property for the
protection of plant varieties and farmers' rights rather than adopting
protection through other IP regimes. Thus, India adopted a sui generis method
for preserving farmers' rights, which resulted in the study of farmers' rights
and the protection of plant varieties under a separate system known as the
Protection of Plant Varieties and Farmers Rights Act, 2001.[6]
The TRIPS
agreement is a group of three or more countries
that work together
to make IP rules more similar. All kinds of IP are covered by the deal. In terms
of farmers' rights,
TRIPS offered a separate system to protect plant breeders and also
pushed for better ways for farmers to trade. One of the main reasons
why agricultural trade has grown in emerging
countries like India is because
of TRIPS. Since trade and India's GDP growth are both getting better, it is important
to give agricultural goods incentives and lower taxes. A big part of it was played by TRIPS. Article
27 is enough to back up that claim when
it comes to protecting plant
varieties and supporting farmers' rights.
From
the above analysis of international agreement and conventions with regard to farmers’
rights and protection of plant varieties, the UPOV is the model
law that can be adopted
by the member countries when they are opting for providing sui generis system
of protection to farmers. And TRIPS is an agreement that suggests to have a sui generis
system of protection, considering the farmers’ interest. India, by
complying with the above discussed
conventions adopted PPVFRA. This research is to understand the significance of India’s adoption of sui
generis system for protection of plant varieties and farmers’ rights and further to analyse the lacunae that lie
as a constraint to the objective of achieving or restoring the plant diversity
thereby recognising the importance
of conservers of those resources and ensuring protection and promotion to both
the plant varieties along
with its conservers.
THE SCOPE OF FARMERS
RIGHTS IN INDIA
UNDER PPVFRA, 2001
With regard to the protection of farmers, this research provides more
insight into the legislative framework
of the Protection of Plant Varieties and Farmers' Rights
Act (PPVFRA). In order to determine the differences in provisions that exist between
the international agreement UPOV and PPVFRA, the analysis of
PPVFRA would be conducted. During the process
of analysing the PPVFRA, it is
possible to observe the numerous attempts that
legislators have made in order to provide farmers with a greater degree
of protection. In the context of this
particular matter (the protection of plant types and farmers), Indian
legislation adopted a law that made the protection of farmers and the farmers
themselves the primary
focus of the legislation. Because
of the significance that is placed on farmers, which
has been lacking
even in the worldwide convention, the PPVFRA is, in fact, one of the best pieces of legislation that
was developed by the legislators of our country.
It was extensively spoken by the countries
that are located
all over the world. In light of the fact that
UPOV is an international legislation that takes into account all of the countries, it has
established rules that are favourable to breeders in general. Nevertheless, developing nations like as India,
who are also countries that are
dependent on agriculture and farmers, are unable to immediately implement the
UPOV clause since those rules would not place a enough priority
on providing protection to farmers.[7] Another significant part of this study
is to examine the acknowledgment granted to farmers under this act. The farming
community is one of the causes for preserving natural
equilibrium. Though
agriculture contributes significantly to the Indian economy's revenue
production, and farmers are the
donors of germplasm and makers of commercial varieties, there has been no specific legislative structure in place
for numerous years to protect and ensure farmers' and breeders' rights. Thus, the PPVFRA is an accomplishment of
Indian legislators. Sui generis legislation
for farmer and plant variety preservation was made possible in India as a
result of the signing of two
agreements, to which India was a signatory.
The
UPOV, one of the notable international instruments that emphasised protection
of plant genetic resources and also
paved the way for protecting farmers rights. Whereas the TRIPS is an international agreement that assisted
in harmonising the IP laws thereby insisted member countries to adopt separate legislation for the protection of
farmers and plant varieties since those
are excluded under the patents act. In concurrence with international
legislation UPOV, India adopted
a separate system
of protection to farmers called
PPVFRA in which
it guarantees rights over various varieties
of plant breeding.
To know more about the plant variety
technicalities, it is essential to understand certain definitions
provided under the act which has been discussed as follows:
·
The term plant variety has been defined under
sec.2(za) which explains variety as grouping of plants in a given genotype. And
that variety includes propagating material of such variety, extant variety,
transgenic variety, farmers’ variety and essentially derived variety.[8]
·
Farmers variety is the traditional variety cultivated
by farmers or it is a variety of landrace in which farmers possess the common
knowledge.
·
Extant variety -it includes other such varieties like
farmers’ variety, varieties under common knowledge, varieties in public domain
and varieties mentioned under sec.5 of seeds act.
·
The varieties that are significantly derived from
initial plant varieties are called essentially derived varieties, though the
derived varieties are distinguishable from initial varieties, it would exhibit
the essential characteristics.
The act has
recognised wide varieties of plants and provided for its registration. Further
the following are key points with regard to PPVFRA’s initiation towards
protecting rights of farmers and plant varieties. The following points would
help to understand more about the enhanced protection under the act.
·
Recognition to Farmers
as Custodians, Users or Breeders
of Particular Variety
·
Access to the seed
·
Right to have sharing of benefit
·
Getting compensation
·
Getting seeds at reasonable price
·
Registration of farmers’
varieties
·
Right to commercialise the essentially derived
variety
·
Registration fee exemption to farmers
·
Right to have protection to farmers for making accidental infringement (being an innocent infringer)
The comprehensive incorporation of many plant kinds and the
acknowledgment of farmers across broad
categories are indicative of the critical
necessity of this legislation in our
nation. Undoubtedly, the Plant
Variety Protection and Research Act (PPVFRA) has facilitated enhanced
accessibility to diverse
plant varieties, hence stimulating breeders to innovate and cultivate
novel types. The primary aim of the act is to safeguard the rights of farmers
in relation to their involvement in
the preservation of plant genetic resources and the production of new varieties, while also aiming to
enhance research and development in both the public and private sectors. However, as previously said, despite the
legislation being carefully crafted to safeguard the interests of farmers, its implementation is falling behind.
Consequently, there is a need for clearer understanding of specific
provisions of the act, which will be
thoroughly examined in this research. This study analyses the goals and operations of the PPV&FR Act in
relation to the historical and present condition of Indian agriculture. The analysis initially
examines the challenges encountered by farmers that the law aims to address, and subsequently conducts a statistical
analysis of the patterns in plant variety
application under the Act to ascertain its effectiveness in achieving PPVFRA's objective.
LACUNAE UNDER THE ACT AND ITS ADVERSE EFFECT OVER FARMERS
The act (PPVFRA) is known for giving farmers more rights than
international law (UPOV), but there
is a loophole in the form of unclear language in the provisions that makes the act's wider reach seem narrower. To
reach the goals of this act, it is very important for lawmakers to make sure that certain sections are clear. So, the
goal of this study is to clear up any confusion about the act that has been talked about so far.[9]
·
Varieties Protected Under the Act- In Dispute
It is clear that the farmer's variety has received more registration over
the years. But to whom was that
registration granted: farmers or private seed industries? There is an issue. The various kinds were introduced
by the legislation to assist farmers' interests, but in practice, private breeders and seed industries are
abusing the immunity offered to farmers
by exploiting the ambiguities left unanswered by the legislation. According to a study report, the three kinds stated in sec.2(za)
of the act receive the most applications, which include:
·
Farmers variety
·
Extant variety and
·
New variety
Furthermore, the report
states that in the last two years (2018 and 2019), 3074 certificates have been
issued, 1290 of which are for varieties notified under Section 5 of the Seeds
Act and varieties of common knowledge
(VCK) under the category of extant variety
under Section 2
(j)
of the PPVFRA, 2001. Though it is satisfying to know that more types of plants
are being identified, the majority of which are registered by private seed corporations such as-
•
Monsanto India Limited
has registered 6 varieties,
•
Nuziveedu Seed Limited
has highest record
of registration to 86 varieties and
•
Kaveri Seed Company
has 27 varieties registered under VCK.
·
Technicalities in Registration
People who make private seeds take advantage of the fact that farmers
don't know much about the filing process
and other legal details that go along with it. It's easy to see why farmers
are having a hard time getting their crops registered—even the people in
charge of this act aren't sure what
the differences are between the different types and how to register them. Farmers
cannot meet all these requirements and provide the additional information required by the act, so they must pay lawyers,
researchers, scientists, or people who know the registration process for help. Farmers with low incomes
can hire experts? Further, farmers who register wild varieties and land race varieties struggle to provide the
necessary information to the registering body.
These requirements contribute to farmers' low variety registration rates. The term
"farmers" in Sec. 2 (k) of the act refers to a group of farmers or
individuals working together to
identify traditional plant types or their valuable features. Farmers can
register in organizations under the
act. The act's officials don't encourage farmer registration because it's more difficult than individual registration. This led farmers
to register their varieties individually, leaving the group's
variety unregistered. The difference between
farmers' variants and existent types necessitates clear law
for non-hostile registration. Private seed firms utilize registration technicalities and obscure statute
clauses to undermine
farmers' rights to recognition and rights over their varieties.[10]
·
The Extant
Variety and DUS Standard
The act's provision sets DUS guidelines that are in line with an
international agreement (UPOV). This
can be used to judge the new breeds. But the act doesn't make it clear what the connection is between the DUS standard and
the filing of existing varieties. According to
research, only 330 of the 370 VCK-existing varieties are registered by
private seed industries. This clearly
shows that farmers
aren't getting enough
chances to be listed under those varieties. For this reason, the farmers' community needs those unclear
parts to be made clearer and the application process to be made easier so that
the act's goals can be met.[11]
·
Disparity among the breeders
The
term clearly indicates that breeders can also be a group or community of
farmers. However, as previously
noted, individual farmers are more encouraged during the registration procedure than groups of farmers. Furthermore, given the complexities of registration, the word breeder is always dominated by private
seed makers or other public entities rather than farmers.[12]
·
Issues in the Grant of Right to Farmers
In comparison to international agreements or conventions like UPOV,
ITPGRFA or FAO, the PPVFRA has
granted enough recognition and rights to farmers. The act under sec.39 provides for farmers rights. Though the
rights are provided, it doesn’t reach the farmers’ community to promote their interests. Even the rights given to
them are used as a tool by the private breeders
to exploit them. One such example is the lays potato case (series of cases filed by
different farmers against PepsiCo), widely spoken across the country. Herein
the farmers were made to harvest
potatoes under contract farming, later that became as a trap to them. Under Sec.39(1)(iv) of the act, the
farmers are restricted from dealing with branded seeds still they are allowed to save, use or share
the farm produce. This being the situation, the innocent farmers mostly get their contracts through local dealers are
having the least possibilities of knowing
the provisions of the act and the manipulative terms of contract made by the
private seed manufacturers. One such
circumstances is this case, therein the private breeders taking advantage
of farmers situation
made farmers to agree for contracts over the varieties
unregistered. Later getting registration for those varieties (FL 2027)
and making the farmer to fall prey
for the corporate play. Further imposing exorbitant fine over poor farmers, is
the extreme situation that farmers in
our country face. When a farmer produces new variety and seeks protection
under the act has to comply with-
i •
Registration formalities and ii • Statutory
fee.
Both the requirements prescribed under the act are not farmer friendly. The
conditional requirements provided
under the act exempts certain mandates for registration of farmers’ variety; still farmers suffer due to
technicalities in the process that is making them search for expert’s assistance. Though section 18 of
the act relieves farmers from producing DUS test reports. As provided
earlier, the registration form has that lacuna which asks farmers
to provide all the technical details. If the farmer
produced a new variety by means of traditional/informal method of breeding, the end results
of the DUS test would
give difficulties to prove the viability of the variety produced. This test,
requirement under registration form and the farmers cannot work together in reality. Apart from
this, the act prescribes fee exemption for farmers under section 44 of the act. But that protects
farmers from paying for any proceedings in the court or tribunal
with regard to the disputes
arising in grant of registration, not for any other payments. Thus,
a farmer or group of farmers whoever
is seeking registration under the act has to pay that nominal value of
amount prescribed under the statute for
processing the registration.
The registration formalities and the requirement of statutory fee to famers
can be reduced. The formal
IP protection for informal method
of breeding is not found appreciated for many reasons
that include-
·
Not providing sufficient incentive to farmers,
·
Dispute with regard
to sharing of benefits,
·
Not promoting the means of traditional breeding,
·
Not ensuring sustainable development and
·
Lack of harmony
in conservation.
In the case of Prabhat Agri Biotech Ltd.,
and another Vs. Registrar of Plant Varieties and others, the main issue is with respect to powers
given to the authorities under PPVFRA and whether those powers given
are in concurrence with constitutional provisions or not since powers
given to them are not guided. That is giving
exclusive powers to authorities without
limitations might infringe
the rights of benefit seekers
under the act. Considering the same, the court has allowed the appeal by stating that this provision would be not in concurrence with rule of law principle provided under the Indian Constitution.[13]
CONCLUSION AND SUGGESTIONS
Undoubtedly, the act made resources more accessible to farmers. Our plant
variety preservation and farmer
rights laws were advanced to benefit private breeders and farmers. Farmers benefit from containing plant
variations since they can easily access plant genetic resources or other breeders' varieties. After this measure,
Indian farmers seem to have gained greater
recognition and are prospering greatly. Statistics reveal no difference in
plant resource availability or farmer importance in our
country.
Farmers can access additional plant kinds thanks to enclosure. The
problem is that private seed
industries are taking advantage of the act's benefits. Since farmers are
unaware of most legislative
mechanisms, private breeders with the help of authorities under the act are invading the benefits granted to farmers.
According to the graph above, farmers have filed few applications for existent VCK, which is derived, and
authorities are rejecting them for informal
breeding and failing to meet DUS criteria. Because of this, private breeders
have registered most common knowledge
varieties, preventing farmers from registering with their community. To remedy this problem,
farmers should be educated and the act should be made more flexible.
The
legislators should add a provision in the act to form a committee to educate
farmers about PPVFRA and its
benefits. The committee can also help farmers with registration technicalities if they have trouble. If
created under the statute, farmers could seek help from this group without paying expensive registration fees. These
authorities can also raise awareness
among farmers to generate more kinds, encouraging them to conserve genetic resources and evolve new ones. The act is
unclear about distinguishing farmers' varieties as existing and registering them. Legislators should identify this
confusion and create cohesion. The
time limit for plant variety and farmer rights protection has failed. For
cultivation, producers would share
their seeds or new varieties with other farms or community members. Since there is no monopoly, the normal
time limit set in intellectual property rights to curtail monopoly does not apply
to farmer variety protection. To conclude, legislators must clarify provisions and improve
protection of plant varieties and farmers while maintaining sustainability in agriculture by bringing
back traditional methods for preserving plant
varieties in conjunction with modern breeding techniques.
References
1. See Vandana
Shiva, "The Plunder
of Agriculture in India," 10 Alternatives 623 (1983), available at https://www.jstor.org/stable/10.2307/40643860. Last seen on 31/03/2024
2.
International Union for Protection of New Varieties of
Plants (UPOV), available at https://www.upov.int/. Last seen
on 31/03/2024
3. For more information on the International Union for the Protection of New Varieties of Plants (UPOV),
see the official UPOV website: https://www.upov.int/en/about/upov. Last seen
on 31/03/2024
4. For more
information on the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGFRA), see the official
Food and Agriculture Organization (FAO) website:
https://www.fao.org/plant-treaty/overview/en/. Last seen on 31/03/2024
5. Protection
of Plant Varieties and Farmers' Rights Act (PPVFRA), 2001, No. 53, Acts of Parliament,
2001 (India).
6. Jayashree Watal, Intellectual Property Rights in Indian Agriculture, ICRIER (July 1998.
7.
Mrinalini Kochipillai- “The PPV& FR act-2001: Historical
and Implementation incentives.
8. Srividhya Ragavan & Jamie M. O'Shields, Has India Addressed
Its Farmers' Woes? A Story
of Plant Protection Issues,
Geo. Int'l Envtl. L.Rev.20:97 (2007).
9. Elizebeth
Verkey, “Law of plant varieties protection”, Eastern Book Company, 8th March,2007.
10. Barton,
John H and Peter Berger, “Patenting Agriculture” Issues in Science and Technology, (4th ed. 2001).
11. Pankhuri
Agarwal, the ‘Farmers’ Rights’ Law Lays the IPR Trap, Spicyip (April 21, 2019).
[1]
Anil Gupta &
Ronald R. Reichman, "Intellectual Property Rights for Plant Biotechnology:
International Agreements and National Laws," 4 Int'l J. Biotech. 669
(2002), available at https://www.researchgate.net/publication/286755545_Intellectual_Property_Rights_for_Plant_Biotechnology_I
nternational_Agreements_and_National_Laws.
Last seen on 31/03/2024
[2]
See Vandana Shiva,
"The Plunder of Agriculture in India," 10 Alternatives 623 (1983),
available at https://www.jstor.org/stable/10.2307/40643860.
Last seen on 31/03/2024
[3] International Union for Protection
of New Varieties of Plants (UPOV), available at https://www.upov.int/.
Last seen on 31/03/2024
[4] For more information on the
International Union for the Protection of New Varieties of Plants (UPOV), see
the official UPOV website: https://www.upov.int/en/about/upov.
Last seen on 31/03/2024
[5]
For more information
on the International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGFRA), see the official Food and Agriculture Organization (FAO) website: https://www.fao.org/plant-
treaty/overview/en/. Last
seen on 31/03/2024
[6]
World Trade
Organization. (n.d.). Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS). Retrieved from https://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm.
Last seen on 01/04/2024
[7]
Protection of Plant
Varieties and Farmers' Rights Act (PPVFRA), 2001, No. 53, Acts of Parliament,
2001 (India)
[8]
Jayashree Watal,
Intellectual Property Rights in Indian Agriculture, ICRIER (July 1998).
[9]
Mrinalini Kochipillai-
“The PPV& FR act-2001: Historical and Implementation incentives”.
[10] Srividhya Ragavan & Jamie M.
O'Shields, Has India Addressed Its Farmers' Woes? A Story of Plant Protection
Issues, Geo. Int'l Envtl. L.Rev.20:97 (2007).
[11]
Elizebeth Verkey, “Law
of plant varieties protection”, Eastern Book Company, 8th March,2007.
[12]
Barton, John H and
Peter Berger, “Patenting Agriculture” Issues in Science and Technology, (4th
ed. 2001).
[13]
Pankhuri Agarwal, the
‘Farmers’ Rights’ Law Lays the IPR Trap, Spicyip (April 21, 2019).
Article Information
A CRITICAL ANALYSIS OF FARMERS RIGHTS IN INDIA
Authors: KAUSTUBH MURKUTE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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