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PLANT PROTECTION BOON OR BANE
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PLANT PROTECTION BOON OR BANE
AUTHORED BY
- SIDDHARTH BHATTACHARYYA
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.”
The purpose of this article is to
outline the rights and benefits that Indian farmers have with regard to their
creative plant varieties and the ways in which they can safeguard their
intellectual property under the UPOV Act.
India has a long history of
agriculture, using traditional farming techniques. Farmers have long been the
foundation of the country's agricultural system. We frequently hear about and
witness farmers from the village's interior developing new plant and fruit
kinds, or they may even preserve some of their older varieties that are unknown
to outsiders.
What we are unaware of, though, is
that these plant varieties can also be considered the intellectual property of
a single farmer or a community. As such, they can be protected by IP law,
giving them the exclusive right to use both new and old varieties for a set
amount of time.
India is a signatory to the TRIPS
Agreement, and in 2001 it adopted the Protection of Plant Variety and Farmers
Rights Act (UPOV) in order to comply with Article 27(3)(b) of the agreement.
The primary goals of the act were to:
1.
safeguard
the rights of farmers engaged in the breeding of new plant varieties;
2.
preserve
wild species or traditional varieties; and
3.
enhance
the value of such wild species or traditional varieties by selecting and
identifying their valuable attributes.
Benefits and rights granted to
farmers under the UPOV Act
Farmers and the community who engage
in the development and breeding of new or expanded plant varieties, as well as
the preservation and protection of historic plant varieties, are granted
certain specific rights and advantages under the UPOV legislation. We must
first comprehend how and why these rights were created in order to comprehend
these rights and their advantages.
Members of the local communities that
are involved in maintaining the variety and incorporating it into their daily
lives are aware of the numerous health and therapeutic advantages that many
new, traditional varieties and wild races in our nation offer. However, the
issue of bioprospecting began to surface as a result of globalization and
communities' increased exposure to the outside world. This led to researchers
and corporate institutions misusing the knowledge of the farmers and the
community for their own gain and excluding them from any form of profit sharing
or royalties.
In order to protect the rights of
farmers and the community, prevent the theft of plant origins, and ensure that
farmers receive a just reward for their efforts, the government created a class
of land known as Farmers Variety.
This class gives farmers the ability to commercially exploit their innovation
and traditionally preserved variety while also granting them the right to
protect their innovation.
A plant variety must pass all four of the requirements listed below in order for a
farmer to be eligible to protect it under the UPOV Act:
·
Novel
·
Distinctiveness: A variety is considered distinct if
it possesses even a single crucial feature that sets it apart from other
recognized varieties that are currently in use around the globe.
·
Uniformity: A variety is considered uniform if, even
after continuous propagation, it exhibits a significant degree of uniformity in
its key characteristics.
·
Stability: Something is deemed stable when its
fundamental characteristics hold true even after repeated propagation
According to the UPOV statute,
farmers are entitled to the following benefits and rights:
1) The ability to file for their new
variety.
2) Gain recognition and benefits for protecting
wild diversity.
3) Farmers will receive payments in the event
that an EDV malfunctions.
A new plant variety that
is derived from an initial variety is known as an Essentially Derived Variety
(EDV), and it can be identified from the initial variety by having some of its
basic traits, but it also has some new qualities of its own. If someone is
interested in deriving or using an EDV that was generated with the assistance
of farmer variety, they must obtain permission from the farmers or the
community involved in the production, preservation, and development of that
variety
4) The right to receive payment for your
contributions.
The villagers in India
have the right to a share of the profits made from the commercial exploitation
of a plant variety that has been registered under this act if they are farmers,
a community, an organization of farmers, or a village and they have
significantly contributed to the development of the plant variety's evolution.
The legislature has enacted a number
of legislation to safeguard farmers' rights and encourage increased plant variety
preservation, innovation, and breeding. Additionally, efforts are undertaken to
ensure that farmers who have contributed to the development of a new variety
receive a fair share and to shield farmers from the abuse of large corporations
or research institutes. As most farmers in the nation lack formal education and
would not be able or willing to go through the laborious process of
registration and various paper works, it is concerning that most of the
processes, such as tenure, royalties, and registration, are the same for both
farmers variety and a normal variety. To encourage more farmers to take the
effort to register and conserve different kinds, a simple and less
time-consuming procedure for doing so needs to be implemented.
But enacting legislation is one
thing; putting it into practice is quite another. As we can see, many farmers
in India lack awareness of the rights and advantages that come with their
innovations and output; in fact, the vast majority of farmers and village
dwellers are illiterate. In this instance, the corporate sector has several
opportunity to defraud and abuse the rights of farmers. The farmer needs to be
made aware of their rights, how to use and safeguard their intellectual
property, and how to do all of these things. In a similar vein, the government
must oversee agreements that farmers and breeders have mutually reached and
ensure that they have been fairly compensated for their contributions and have
not been tricked into accepting less than what is fair to them.
Section 3(p) of the Indian Patent
Act, 1970 prohibits the protection of traditional knowledge under Indian patent
laws.
2005 Amendment
The goal of the 2005 Patents
(Amendment) Act was to defend the rights of indigenous people. It requires
patent applicants to reveal where the biological resources used in their ideas
came from. The patent office may decline to award the patent if the information
relates to traditional knowledge (TK). India switched over from process patent
to product patent.
The 2005 Amendment states that the
following situations may result in a patent being revoked or a patent
application being denied:
·
If it turns out that the patent was obtained by giving
incorrect and misleading information concerning the origin of the biological
resources covered by the invention, the patent may also be revoked.
·
The patent would not be be granted if it was only a
compilation of many TK-related features.
If the patent can be considered
anticipated given the knowledge that the indigenous populations possess.
The Act
of 2001 Protecting Plant Varieties and Farmers'
Rights
(PPVFR)
The protection of plant breeders'
rights over newly created varieties, as well as farmers' rights to register new
varieties and conserve, breed, use, trade, share, and sell plant varieties they
have created, improved, and preserved over multiple generations, is the main
focus of the PPVFR Act 2001 and the PPVFR Rules 2003. As an alternative
"sui generis" system that safeguards farmers' rights to formal
inventions made by plant breeders, as well as their informal knowledge systems
and traditional plant varieties, the Act represents a departure from the UPOV Model
of 1991. This Act's key provisions, are
those that deal with protecting farmers' interests. The procedures suggest
paying local communities or sharing benefits when farmers contribute to the
development of new varieties.
2023 Modification
In 2023, the Biological Diversity
(Amendment) Bill, 2021, was approved. The Amendment made it clear that the
National Biodiversity Authority Panel (NBA) consent must be obtained
prior to the IPR being granted, not during the application process.
Additionally, the Amendment exempted those with traditional knowledge from
notifying the State Biodiversity Boards in advance of using biological
resources.
Why is the protection of plant
varieties necessary?
Breeding successfully needs a high
level of expertise and understanding. Large-scale breeding also necessitates a
substantial land investment, specialized machinery (such as greenhouses, growth
chambers, and laboratories), and knowledgeable, scientific workers.
A successful plant variety requires a
considerable time to grow (10 to 15 years for many plant species). However, not
all novel plant varieties are a commercial success, and even in cases where the
varieties demonstrate notable advancements, shifts in market demands may make a
profit unlikely. Because of this, it's important to weigh the advantages
against the high initial investment return. However, the general outcome of
plant breeding is the availability of varieties that are better for society in
terms of yield and quality.
Long-term, consistent breeding
efforts are only beneficial if there is a possibility that the investment may
be repaid.
Simultaneously, once a novel
variation is made available, others can frequently replicate it with ease. As a
result, the original breeder is denied a just chance to recoup their investment.
Therefore, it is essential to establish an efficient system of plant variety
protection that promotes the creation of novel plant varieties for the benefit
of both breeders and society as a whole.
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.
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 On January 1, 1995, India joined the World Trade Organization.
It had to abide by the Trade Related
Aspects of the Intellectual Property Systems (TRIPS) agreement in order to
remain a member. "Adequate standards and principles concerning the
availability, scope and use of intellectual property rights and effective means
for the enforcement of these rights" are mandated under TRIPS for member
nations.
Prior to TRIPS, India’s patent system
had been regulated by the Patents Act of 1970 (Patents Act). To begin making
India’s law consistent with TRIPS, the Patents Act was amended in 1999 and 2002
along with further modifications in 2005 in order to become fully TRIPS
compliant.
Thus, by comparing both the TRIPS
agreement and the Indian law we find that the Indian law in Section 3 (i), by
the amendment of 2002, omitted the word “or plants” from the purview of Section
3 and with it methods of agriculture was also excluded from patentability in
the Indian Patent Act to ensure that the seed, which is the first link in the food chain, was held as a common property resource
in the public domain.
This amendment was a bolt from the
blue for the Indian Farmers on their inalienable right to save, exchange and
improve upon the seed. Thus, patents can now be granted for a process for
treatment of plants, a GM seed which renders them free of disease or increases
their economic value.
Section 3(j) was included as a new
section in the 2002 amendment act. The creation or multiplication of
genetically modified plants may be considered an innovation under this
provision However, "plants and animals in whole or any part thereof,
seeds, varieties and species, and essentially biological processes for
production or propagation of plants and animals" are not included in this
clause as inventions Patents on genetically modified organisms (GMOs) are
permitted and this loophole, which is disguised as a scientific breakthrough,
thus opens the door for the patenting of transgenic plants.
The right of farmers to control
resources including genetically modified genes and traits is implied by patent
protection. The basic underpinnings of agriculture will be compromised by this.
For instance, a biotechnology
business called Sengene has been given a patent in the United States for
a sunflower cultivation that has an extremely high oleic acid concentration.
Not only the genes causing the trait—high oleic acid, for example—was the
subject of the claim.
Sungene has sent out notice to other
sunflower breeders that any variety developed that has a high oleic acid
content will be deemed to be in violation of its patent.
It follows that a person who obtains
a patent on a feature of a seed, other than the genes that produce the seed,
not only owns the seed itself but also the entire plant.
Conclusion:
The question of why product patents
on seeds were required through an amendment to the Patent Act arises in light
of the fact that there is already a clear law protecting plant variations in
the form of the Protection of Plant variations and Farmers' Rights Act, 2001.
It causes confusion because it is unclear which protections the seeds of
genetically modified crops will receive. Should they be protected as a plant
variety or should they be patented?
Because the biotech sector is
upending long-standing conventions, questions about who actually owns seeds
will continue to arise, including those pertaining to the patenting of living
forms and seed monopolies. The W.T.O. and the Indian parliament will need to
address these, and a particular process that balances the interests of
corporations and farmers alike needs to be sorted out. The patent dispute is
far from ended; conventional types are now being pursued even more vehemently
than the Green Revolution did.
The government stated that there is
no scientific proof that genetically-modified crops would harm soil, human
health, and the environment," in response to questions raised in the Rajya
Sabha regarding the contentious decision by the Genetic Engineering Appraisal
Committee (GEAC) in 2016 to approve experimental field trials of 12 GM crops in
order to gather biosafety data. Twelve crops—cotton, rice, castor, wheat,
maize, groundnut, potato, sorghum, brinjal, mustard, sugarcane, and
chickpea—are prepared for field testing.
In light of the above depressing and
bleak scenario surrounding genetically modified crops in our agricultural
sector, the government should proceed cautiously, carefully considering the
arguments put forth by the various stakeholders. This will ensure that the national
interest is given top priority, restoring the vulnerability of native varieties
to genetic contamination by these novel types, and maintaining our position as
the world's most powerful economy in terms of import-export trade.
References:
1. ISAAA 2013 Annual Report Executive
Summary, Global Status of Commercialized Biotech/GMCrops: 2013 ISAAA Brief
46-2013, Retrieved 6 August 2014.
2. Paroda, Raj (Secretary) Biosafety
Regulations of Asia-Pacific Countries FAO, APCoAB, APAARI, 2008. Retrieved 2
September 2012.
Article Information
PLANT PROTECTION BOON OR BANE
Authors: SIDDHARTH BHATTACHARYYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/10
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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