Assignment of Intellectual property rights on-

Rights of breeders and Farmers in PPVFRA and UPOV

Submitted to: Submitted by

Dr. Chandrika Kamlesh Manwani

(Assistant Professor of Law) B.B.A.LL.B. (8th Semester)

1120181951

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

GHANDAL, SHIMLA, P.O. SHAKRAH, SUB-TEHSIL DHAMI

DISTRICT SHIMLA, HIMACHAL PRADESH-171014

Ph. 0177-2779802, 0177-2779803, Fax: 0177-2779802

Website:http://hpnlu.ac.in!

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 DECLARATION

The work embodied in this Assignment titled “Rights of breeders and Farmers in PPVFRA and
UPOV has been done by me and not submitted elsewhere for the award of any other degree/
certificate. All ideas and references have been duly acknowledged.

Kamlesh Manwani

B.B.A.LL.B. 8th Semester

(Batch 2018-23)

(1120181951)

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Abstract

The assignment encapsulates the position of Farmer’s and breeder’s rights in the legislation
concerning Protection of Plant Varieties and Farmer’s Rights Act, 2001. India had to choose
between following the UPOV model or drafting its own legislative proposal. India rejected the
UPOV model because the rights of farmers were not protected, and instead the focus was solely on
the rights of breeders. The paper takes a step forward in arguing that farmers' rights are valued
differently than breeders' rights, especially in a country like India. It is necessary to comprehend the
history of the PPVFRA Act, including its flaws and how it surmounted key roadblocks.Farmers'
rights under the intellectual property regime should be protected because, while they may lack in-
depth scientific understanding of Plant Genetic Resources, they do recognise the critical importance
of Plant Genetic Resources in the agricultural field because variability is a potential factor that
cannot be overlooked. Furthermore, traditional knowledge acquired by farmers over time in terms
of plant variety selection, improvement, and long-term use should be regarded on par with
intellectual inputs, as this is unquestionably a colossal benefit from the farming community. The
article addresses the key legislative roadblocks and offers suggestions about how to overcome them.

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 Problem profile

1. Understanding meaning and nature of farmers rights.

2. Protection
3. Rights
4. Registration

Research methodology

Research methodology used is secondary data method. Existing data is summarized and collected to
increase the overall effectiveness of research. Author had gone through articles, research papers,
internet and websites. All the data are already in existence which are combine to this.

RESEARCH OBJECTIVE:-
To study and critically analyse the Rights of breeders and Farmers in PPVFRA and UPOV.

Research question and objectives.

1. What are various rights

2. Why are they protected
3. What are various provisions
4. What is UPOV convention

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Introduction

It is critical to spend time thinking about farmer rights and how they relate to intellectual property
rights. It is critical to offer some insight on the social construction of farmers' rights to plant genetic
resource development. It is critical to understand that plant genetic resources provide the foundation
for continuing agricultural improvement. At the same time, it is crucial to remember that while
farmers lack the necessary scientific information, they contribute significantly to agricultural
genetic diversity through their local insight and knowledge.

The level of autonomy exhibited by farmers in terms of seed selection, saving, and maintenance for
demonstrating in his journey of whole agronomic transformation of plant species into crops and
selection of the same requires higher recognition. A realistic method is necessary for the appraisal of
plant genetic resources, which, if developed by farmers, may contribute to revenue on a big scale.

There is a flaw in evaluating Intellectual Property Rights in relation to farmers' rights since it does
not take into account the intellectual efforts that go into creating and improving variability. Consider
a situation in which it has been recognised that patents, or more specifically, plant breeders' rights,
are being drawn inexorably into commercial games. This ignores the contribution made by farmers,
which finally creates a crucial foundation for the formation of farmers' rights.

The Protection of Plant Variety and Framers’ Rights Act, 2001

The Protection of Plant Variety and Farmers' Rights Act, 2001 (PPVFR Act) was passed by the
Indian Parliament in order to provide an effective system for protecting plant variations, farmers'
and plant breeders' rights, and encouraging the development and cultivation of novel plant varieties.
On October 30, 2001, the President of India gave his assent to this measure.1

Plant breeders, researchers, and farmers who discover new or existing plant varieties are granted
intellectual property rights under the PPV&FR Act of 2001. The PPV & FR Act, 2001 grants a dual
Intellectual Property Right: one for the variety and the other for the denomination issued to it by the
breeder. Only the registration of a plant variety confers the rights given under this Act, which are
heritable and assignable. Either new or existing Essentially Derived Varieties (EDV) can be

1 https://en.wikipedia.org/wiki/
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 registered under this Act.Farmers have the right to save, use, sow, re-sow, exchange, or sell their
farm produce in an unbranded way, including seed of a registered variety. Farmers' varieties are
eligible for registration, and they are not required to pay any fees in any procedures brought under
this Act. Field crops are protected for 15 years, trees and vines for 18 years, and notified varieties
are protected for 15 years from the date of notice under Section 5 of the Seeds Act, 1966. Every
year, an annual fee must be paid to retain registration, and a renewal cost must be paid to extend the
registration period. Farmers can seek compensation if a registered variety fails to perform as
promised under certain conditions.The exclusive right to produce, sell, market, distribute, import,
and export the variety is granted under this Act. Breeders' rights are enforced by civil and criminal
remedies, as well as rules relating to benefit sharing and compulsory licencing in the event that a
registered variety is not made available to the public at a reasonable price. Village or rural
communities are also compensated if a registered variety was established utilising a variety to
whose evolution the village or local community contributed significantly. The PPV&FR Rules,
2003, give the procedural specifics and modes of implementation for this Act. In this post, we'll go
over some of the Act's most essential legal sections as well as several case studies.

Rights under the Act2

1. Breeders' Rights: The protected variety will be produced, sold, marketed, distributed,
imported, and exported exclusively by breeders. Breeders can appoint agents/licensees and
pursue civil remedies if their rights are violated.
2. Researchers' Rights: Under the Act, researchers can perform experiments or research using
any of the registered varieties. This includes using a variety as an initial source of variation
for the development of another variety, but recurring use requires the registered breeder's
consent.
3. Farmers' Rights
◦ A farmer who has evolved or developed a new variety is entitled for registration and
protection in like manner as a breeder of a variety;
◦ Farmers variety can also be registered as an extant variety;

2https://www.bioversityinternational.org/ leadmin/user_upload/online_library/publications/pdfs/
Community_biodiversity_management/6.3.farmers_rights_protection_India.pdf
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fi

 ◦ A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce
including seed of a variety protected under the PPV&FR Act, 2001 in the same
manner as he was entitled before the coming into force of this Act provided farmer
shall not be entitled to sell branded seed of a variety protected under the PPV&FR
Act, 2001;
◦ Farmers are eligible for recognition and rewards for the conservation of Plant
Genetic Resources of land races and wild relatives of economic plants;
◦ There is also a provision for compensation to the farmers for non-performance of
variety under Section 39 (2) of the Act, 2001 and
◦ Farmer shall not be liable to pay any fee in any proceeding before the Authority or
Registrar or the Tribunal or the High Court under the Act.

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 Registration of the varieties

The Act allows a variety to be registered if it fundamentally meets the criteria of distinctiveness,
uniformity, and stability (DUS). For the purpose of variety registration, the Central Government
releases notifications in official gazettes specifying the genera and species. The Central Government
has so far notified 157 crop species for registration purposes.

Fees for registration3

Application for registration of plant varieties should be accompanied with the fee of registration
prescribed by the Authority. Fee for registration for different types of variety is as under:

S.N Fees for

Types of Variety
o Registration
1 Extant Variety notified under section 5 of the Rs 2000/-
Seeds Act, 1966

2 New Variety/Essentially Derived Variety • Individual Rs.

(EDV)/ Extant Variety about 7000/-
which there is common knowledge (VCK) • Educational
Rs.10000/-
• Commercial Rs.50
000/-

3 Farmers Varieties No Fee

The Registration of a variety is renewable subject to payment of annual and renewal fee as notified
in the Plant Variety Journal of India of the Authority and Gazette of India dated 15.06.2015.

3https://vikaspedia.in/agriculture/policies-and-schemes/crops-related/protection-of-plant-
varieties-and-rights-of-farmers/protection-of-plant-varieties-and-farmers-rights-act-2001
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Farmers’ rights and IPR

The IPR on Plant Varieties is based on the premise of giving acknowledgment to human innovation
through the selection of a method, with or without recombination, or any other process that is
innovative and distinct from pre-existing varieties. It is important to highlight that non-biological
innovations, such as crop types, are not totally created; rather, they are disseminated through natural
processes. As a result, it may be claimed that there are two components to the production of a new
plant variety: first, the usage of pre-existing varieties, and second, the knowledge required to pick a
new variety either by recombination without recombination or other means. From a long-term
viewpoint, the latter simply represents more accumulated intellectual contributions from
generations of farming communities throughout time. Farmers' rights are complicated by the fact
that they lack identity and institutional backing, which distinguishes them from commercial plant
breeders. However, this should not imply that their intellectual contributions are less important or
recognised than those of commercial plant breeders. While it is critical to recognise that Intellectual
Property Rights on plant varieties have been upheld, the demand on the other hand for free access to
varieties developed by farmers without the payment of royalties applicable to protected varieties
and Intellectual Property rights can essentially be viewed as a double standard in terms of rights.
Furthermore, by departing from the conventional and limited rights farmers possessed over seeds,
the conferment of some exclusive rights over the seed of propagation material of an intellectual
property protected variety opens the way for a turning point. The patent-protected variety restriction
on seed is stringent, with nearly no flexibility for farmers and only little freedom for the three days,
depending on the nature of the jurisdiction.4

https://vikaspedia.in/agriculture/policies-and-schemes/crops-related/protection-of-plant-varieties-
and-rights-of-farmers/protection-of-plant-varieties-and-farmers-rights-act-2001
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Farmers right 5

1. Right 1: Access to seed [Section 39(1)(iv)]

2. Right 2: Bene t sharing [Section 26]

3. Right 3: Compensation [Section 39(2)]

4. Right 4: Reasonable seed price [Section 47]

5. Right 5: Farmers’ recognition and reward for contributing to conservation [Section 39(i)
(iii) & Section 45(2)(C)]

6. Right 6: Registration of farmers’ varieties [Section 39(1)(iii)]

7. Right 7: Prior authorization for the commercialization of essentially derived varieties

[Section 28 (6)]

8. Right 8: Exemption from registration fees for farmers [Section 44]

9. Right 9: Farmer protection from innocent infringement [Section 42]


5https://vikaspedia.in/agriculture/policies-and-schemes/crops-related/protection-of-plant-
varieties-and-rights-of-farmers/farmers2019-rights-in-the-ppv-fr-act-2001
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The UPOV Convention: Not aligned with Farmer’s rights6

The fundamental characterization of Plant Genetic Resources as humanity's heritage obscures the
fact that they are also a significant strategic natural resource, highlighting the importance of
biotechnology development in most developing countries, which is mostly distributed in a non-
uniform manner.

It is clear that a number of poor countries, including India, have vigorously disputed the discourse
of common heritage, particularly during the CBD negotiations. The IU has issued various
resolutions or agreed interpretations that qualify the basic concept of free exchange in order to
address the issue of proprietary claims involving plant genetic resources. Due acknowledgment is
given to plant breeders through this channel, just as they are stated in the UPOV agreement, and the
PVP is thus admitted into the IU framework.

In this context, it is important to highlight that, while IU recognises plant breeders' rights, it also
advances the concept of farmers' rights, which was originally defined in the resolution as farmers'
benefit in conserving, sustainably maintaining, and increasing PGRs. These rights have been
granted to the international community in the form of trustees, with the goal of ensuring that
farmers receive full benefits and support for the contributions they have made. The farmers' rights
resolution is notable in that it acknowledges the contributions made by farmers and works hard to
offer a forum for them to claim the aforementioned advantages from the use of their land.

Benefit sharing

One of the most significant components of farmers' rights is benefit sharing. Section 26 allows for
benefit sharing, and claims can be lodged by Indian citizens, businesses, or non-governmental
organisations (NGOs) based in India. The sum will be deposited in the Gene Fund based on the
extent and character of the claimant's use of genetic material in the production of the variety, as well
as the commercial utility and demand in the market of the variety breeder. The claimant will get the
sum deposited from the National Gene Fund. The contents of the certificate are also published in
the PVJI by the Authority in order to invite requests for benefits sharing.

6 https://www.upov.int/portal/index.html.en
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Benefit Sharing as a Case Study 7

Jeevani's case study is a must-read for anyone interested in learning about benefit sharing. Jeevani
is a medicinal herb, and four patent applications have been filed in this regard. The technique was
licenced to Arya Vaidya Pharmacy Ltd., and a trust was established to realise the commercial
benefits. The goal was that if local populations didn't protect this rich biodiversity, scientists
wouldn't be able to experiment with it and come up with such a medical medicine.

Appellate Tribunal for Plant Varieties Protection

There is a temporary clause that states that the Intellectual Property Appellate Board (IPAB) shall
exercise PVPAT jurisdiction until the PVPAT is created. As a result, a Technical Member was
appointed to the Plant Varieties Protection Appellate Tribunal (PVPAT). All Registrar of Authority
orders or decisions dealing to variety registration, as well as orders or decisions relating to
registration as an agent or licensee, can be appealed to the Tribunal. In addition, all Authority orders
or decisions relating to benefit sharing, revocation of obligatory licences, and compensation
payments can be challenged to the Tribunal. The PVPAT's decisions can be appealed to the High
Court. The appeal will be decided by the Tribunal.

7 https://passel2.unl.edu/view/lesson/f798630b33e5/2
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REFERENCES

1. https://en.wikipedia.org/wiki/

2. https://www.bioversityinternational.org/fileadmin/user_upload/online_library/
publications/pdfs/Community_biodiversity_management/
6.3.farmers_rights_protection_India.pdf

3. https://vikaspedia.in/agriculture/policies-and-schemes/crops-related/protection-
of-plant-varieties-and-rights-of-farmers/protection-of-plant-varieties-and-
farmers-rights-act-2001

4. https://vikaspedia.in/agriculture/policies-and-schemes/crops-related/protection-
of-plant-varieties-and-rights-of-farmers/protection-of-plant-varieties-and-
farmers-rights-act-2001

5. https://www.upov.int/portal/index.html.en

6. https://passel2.unl.edu/view/lesson/f798630b33e5/2

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