TRIPS Downhill: India's Plant Variety Protection System and Implications for Small Farmers

Abstract

The Indian government was obliged to extend private property rights to plant varieties under the World Trade Organisation's Trade Related Intellectual Property Rights (TRIPS) Agreement. This paper analyses the implications of India's TRIPS-induced Protection of Plant Varieties and Farmers Rights (PPVFRs) Act for small producers. The Indian Act gives formal recognition to farmers' rights and upholds the principle of benefit sharing. This notwithstanding, it is argued that it will be very difficult for small farmers to benefit from the legislation since the Act is designed to protect the rights of parties that are able to prove that they are innovators in agriculture. The extension of private property rights to plant varieties will lead to higher seed prices and could lead to further erosion of genetic diversity in the country, negatively impacting farmers. Importantly, the Indian government's decision to accede to the International Union for the Protection of New Plant Varieties Convention (UPOV), coupled with the provisions of the 2004 National Seed Bill, severely compromise the farmers' rights provisions in the PPVFRs Act, putting into question the Indian government's commitment to protecting farmers' rights.

Key Words:

• TRIPS
• India
• plant variety protection
• farmers' rights
• UPOV

Notes

The 1978 amendments were primarily to facilitate the accession of the USA and, therefore, offered a much wider scope of protection for plant varieties.

Dutfield (2002: 189) observes that removing the bar on double protection was primarily to ensure that the USA remained UPOV compliant since plant varieties in the USA are protected both by utility patents and by PBRs. According to Helfer (2002), several developed countries, including the USA, Japan, Australia, New Zealand, Sweden and the UK, have used the 1991 UPOV provision to allow plant breeders to obtain patent protection for new plant varieties.

Section 15.3(b) of the Indian Act states that a variety is distinct, “if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application.” Section 15.3(c) states that a variety is “uniform, if subject to the variation that may be expected from the particular features of its propagation it is sufficiently uniform in its essential characteristics.” In terms of stability, the Act (Section 15.2d) states that a variety is “stable if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.”

Also, in terms of the origin of the variety, the Act requires that every application except a farmer's variety, has tocontain a complete passport data of the parental lines from which the variety has been derived along with the geographical location in India from where the genetic material has been taken and all such information relating to the contribution, if any, of any farmer, village community, institution or organization in breeding, evolving or developing the variety.

See Chapter 6 of the PPVFRs Act for more details on farmers' rights. Also note that Chapter 7 of the Act covers the compulsory licensing (CL) provision. According to Section 47.1 of the Act, three years after a variety is officially registered, any person can apply for a compulsory licence through the PPVFRs Authority “alleging that the reasonable requirements of the public for seed or other propagating material of the variety have not been satisfied or that the seed or other propagating material of the variety is not available to the public at a reasonable price.” Public interest in the Act is protected under Section 29.1 which stipulates “no registration of a variety shall be made under this Act in cases where prevention of commercial exploitation of such variety is necessary to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment.” This provision is stronger than the “public interest” provision in the UPOV Convention.