CHAPTER – I

INTRODUCTION

1.1 Agriculture and IPR

Agriculture plays a key role in India’s economy from the point of view of
employment generation as well for its share in GDP. Agriculture engages nearly 70
per cent of the population and it is a principal contributor to India’s economic
output. It was worth Rupees 2,925 billion (US$ 61 billion) in 2002, accounting for
nearly 25% of India’s GDP (at constant prices basis 1993-94). 1 This sector is vast
in its coverage, consisting of food grains/ cereals, fruits, vegetables and several
other commercial crops like oilseeds, cotton, rubber, spices, sugar cane, jute and
tobacco. While India is a dominant producer of agricultural commodities, Indian
productivity in almost all crops is far behind the world averages. 2 There are two
main cropping seasons: generally, crops harvested from July to December are
known as Kharif crops and those harvested from January to June are Rabi crops. 3 A
recent economic survey expressed concern on the decline in the share of the
agricultural sector’s role in capital formation in GDP.

In the present era of liberalization, globalization and fast paced information

technology, intellectual property rights have emerged as a new global phenomenon.
An efficient and effective IPR regime is one which balances individual incentives
and benefits with the wider needs of the society, while, IPRs are a well established
institution in the manufacturing sector, their application to agriculture is still in a
state of evolution. The key issue in the agricultural sector is, quite simply, that some
agricultural innovations are imperfectly appropriable. This imperfect appropriability
may reduce innovators’ incentive to invest in the improvement of such crops.

1
www.hollandinindia.org/indiabusinessguide/agro01.html - _Toc62707784) accessed on
13.05.2015.
2
Ibid.,
3
Government of India, ‘Indebtedness of Farmer Households’ Report No. 498 May 2005.

1
Several forms of IPRs employed in the sector of agriculture attempts to address this
issue. Here it is relevant to mention the prevalent legal mechanisms including
patents, plant varieties protection, trademarks, trade secrecy rights and plant
breeders’ rights.

India is among the first countries in the world to have passed legislation
granting farmers’ rights in the form of the Plant Varieties Protection and Farmers’
Rights Act, 2001 (PVPFR). India’s law is unique in that it simultaneously aims to
protect both farmers’ and breeders’ rights. The Indian case assumes immense
importance due to the country’s lead in establishing a legal framework on Farmers’
Rights and also significant as the Indian Gene Centre is recognized for its native
wealth of plant genetic resources.4

The Plant Varieties Protection and Farmers’ Rights Act, 2001, establishes a
unique system by extending the concept of Plant Breeders Rights (PBRs), which is
currently applied to new varieties of plants, held by farmers, NGOs and public
sector institutions.5 The law emerged from a process that attempts to incorporate the
interests of various stakeholders, including private sector breeders, public sector
institutions, non-governmental organizations and farmers, within the property rights
framework. While the Act is based on the important principle of distributing
ownership rights in a fair and equitable manner, assigning of multiple rights could
pose several obstacles to useful utilization and exchange of resources.

This study attempts to evaluate the potential implications of India’s Plant

Varieties and Farmers’ Rights Act on stakeholder’s access to genetic resources. The
study focuses on two aspects: firstly, the scope of India’s legislation as an attempt
to satisfy various interests, and secondly, the possible implications of this process
on utilization and the flow of resources among stakeholders. As the law is
implemented recently and many aspects are subject to interpretation, the study is an

4
Anitha Ramanna, Farmers’ Rights in India - A case study, FNI Report 2006, Norway,
p.vii.
5
Anitha Ramanna, India’s Plant Varieties and Farmers’ Rights Legislation : Potential
impact on stakeholder’s access to Genetic Resources, EPTD Discussion Paper No. 96 of
2003, Washington, USA.

2
exploration of possible outcomes. The potential implications of the Indian law has
global significance, as many developing countries are in the process of evolving
similar legislations.

Innovation in the field of agriculture has been important to human

civilization since farmers first began to cultivate crops. Increasing crop yields has
long been the goal of agricultural research and development (R&D). Two recent
trends in agricultural R&D are rather important to understand the ongoing debates
concerning the scope of plant variety protection. The first is the biotechnology
revolution brought about by the advances in genetic engineering. This new
technology makes possible comparative rapid development of new plant varieties
with larger yield and disease-resistance characteristics that might substantially
relieve pressures on the world food supply. IP is often closely interlinked with
social questions, and that IP issues must be considered in their social context.

In recent years IPRs are obtained by western scientists and corporations on

traditionally used biological resources such as Neem, Turmeric and Basmati rice.
This has made people aware of the threat and injustice to biological resources and
related traditional knowledge coming under the control of private monopolies,
preventing the legitimate use of those resources by others. There is also concern that
existing IPRs fail to provide positive incentives to local and indigenous
communities to preserve and to capitalize on their traditional knowledge. It is clear
that patents are largely inappropriate to protect traditional knowledge. The assertion
of IPRs and the resulting private monopolies over biological resources and related
traditional knowledge have direct implications on the biological diversity,
agriculture, food security, the protection of traditional knowledge and the rights of
traditional communities such as farmers and forest dwellers.

The question of access and benefits sharing clearly illustrate the close links
between intellectual property protection and sustainable development. Benefit
sharing is a legitimate reward to the community albeit the country for generating
genetic diversity and associated traditional knowledge, conserving them with
sustainable use and making them available for future generations.

3
 The environmental safety concerns derived from GM products is also a
matter of consideration. Genetically Modified (GM) plants and animals pose new
threats to the conservation of biodiversity. The possibility of genetic contamination
is a new type of industrial pollution that involves the unleashing of genetically
altered living organisms into the open environment. The Cartagena Protocol on
Biosafety to the Convention on Biological Diversity (CBD) is the main international
legal instrument addressing issues related to the introduction of genetically
modified organisms.

1.1.1 IPR Laws in India

India being a member of the various international conventions and

agreements is bound to enact/amend relevant domestic laws to gear up and face the
challenges of globalization. The IPRs related laws in India are undergoing changes
in order to confirm to the stipulations in the TRIPS Agreement.

Patent Act of 1970 is one of the important milestones in the history of IPR
laws in India. The government brought amendments to the Patent Act in 1999, 2002
and 2005. The main changes brought through the amendments do not substantially
affect traditional knowledge, farmers’ rights and biodiversity. There are also few
provisions, which attempt to reduce biopiracy. For instance, the scope of an
‘invention’ has been broadened to cover all aspects of new scientific creations.
However, new uses of known substances, including the duplication of traditional
knowledge have been specifically excluded from patentability. In addition, the non-
disclosure of the source of geographical origin of a traditionally known material has
been made a basis for the challenge of a patent. The food sector in India is also
facing new challenges in the new patent regime. Different processes and products
will become patentable.

The Biological Diversity Act, 2002 was adopted following India’s

ratification of the Biodiversity Convention (CBD). It aims to conserve biodiversity,
sustainable use of biological resources and equitable sharing of benefits that arise
from their use or traditional knowledge. It mandates the setting up of institutions at
national, state and local levels, for the purpose of regulation of biological diversity.

4
For access and transfer of biodiversity data, foreigners and commercial
establishments have to take permission from the national body, while the local body
will conserve and document biodiversity and related traditional knowledge. Pre-
grant of all related IPRs has to be routed through the national body. The Act
attempts to regulate access to biodiversity for commercial purposes, to fight bio-
piracy, and recognise community rights over traditional knowledge and
biodiversity. However, it does not authorize local community, the actual owners, to
decide on granting IPRs to others or sharing benefits, since all powers are vested
with the national body. The Act having no clear position on IPRs is particularly
unfortunate, especially when IPRs on biological materials are the single most vexed
issue in the overall IPR debate today. Therefore, the legislation is not that
participatory.

Plant Varieties Protection and Farmers Rights (PVPFR) Act, 2001 was
enacted under the obligations set out in Article 27.3(b) of the Agreement on Trade
Related Intellectual Property Rights (TRIPS) which mandates the protection of
plant varieties either by patents or by an effective sui generis system or a
combination of both. The Indian legislation on Plant Varieties Protection (PVP) is
being perceived as a progressive legislation when compared to the PVP Acts
adopted by the other developing nations. The PVPFR Act of India, in addition to
offering protection to plant breeders in the form of plant breeders rights, also
protects the rights of the farmers to save, use, sow, re-sow, exchange, share or
sell farm produce including the seeds of any unprotected variety, with an
exemption to prevent the sale of branded seeds. This law incorporates some
principles of the Convention on Biological Diversity (CBD) like prior informed
consent and sharing of benefits with farmers. However, the Act is heavily
weighted in favour of breeders. The benefit sharing clauses in the Act are highly
convoluted.

The Geographical Indications of Goods (Registration and Protection) Act,

1999 was enacted as a sui generis system, post Basmati rice case (1997) in which
India challenged the patent granted to the American Company Rice Tec, on its

5
claim of producing basmati rice grains. 6 The Act was brought in to protect the
unauthorized use of geographical indications and the rules of origin with respect to
agricultural goods, which bear Indian names. The name, Mysore Silk has been
recently provided with protection under this Act. Thus, even domestic silk
manufacturers from any region, other than the designated one, are legally prevented
from using the protected name for their product.

The Seeds Bill, 2004 was proposed as a replacement for the existing Seeds
Act, 1966. The stated objective of the proposed law is to regulate the seed market
and ensure seeds of "quality". With the proposed changes, the seed law would be
harmonized with other seed laws around the world and ensure that the Indian seed
market is open to big business. The rationale for a new Act can be traced back to the
relatively rapid changes that are taking place in the seed sector in the past couple of
decades. These include in particular the growing role of private seed companies and
the progressive introduction of transgenic seeds. It was enacted to confirm
stipulations in the TRIPS Agreement which authorized the seed growers to get their
seeds patented and the farmers will not be allowed to exchange their seeds without
patents. The provisions of this Act are really a cause of concern.7

These legislative instruments, as a whole make up the IPR regime for the use
of biological resources and related knowledge. The government’s response through
these Acts is to harmonize IPRs and sovereign rights in the field of biological
resources.

1.2 International Conventions and Treaties on Agricultural Produce and

Patent Rights

The NICE Agreement concerning the International Classification of

Goods and Services for the Purposes of the Registration of Marks was a
multilateral international treaty, came into force on April 8, 1961, and it was

6
Rice Tec Inc. a Texas Based Company (Patent Number : 5663484) received patent for
aromatic Basmati Rice for American Government. Ultimately India won the case.
7
Vandna Shiva (2014), Sacred Seed, Global Peace Initiative of Women, Deradhun.

6
revised at Stockholm on July 14, 1967, and at Geneva on May 13, 1977 ("The
Geneva Act"). It consists of 45 clauses of which clauses 1 to 34 deal with the
goods and the remaining clauses up to 45 deal with the services in which the
provisions regarding registration of chemicals used in agriculture and allied fields
were mentioned. For the promotion and marketing of the agricultural produces,
the farmers need to register their innovation, trade name under the
Trademarks Act by following the Rules of 2002.8

The International Convention for the Protection of New Varieties of

Plants of December 2, 19619 is also called as UPOV Convention 1961. It
was an initiative of the group of European states. The Convention created a new
system for the grant of plant breeders rights10 to the adhering states under their
domestic laws. UPOV is closely associated with the WIPO (World
Intellectual Property Organisation).11

The Strasbourg Agreement concerning the International Patent

Classification 1971 was mainly introduced to redefine the administrative
processing and maintenance of files for search containing patented published
documents. Agriculture came under the Scheme A - Human Necessities,
concerning agricultural patenting.

The Agreement contained several provisions regarding the patenting of

agricultural innovations but it is not implemented in India. In some countries
even before the classification, in Nineteenth Century itself, patent laws concerning
agriculture in lieu of protecting farmers’ rights were in force. Very few provisions
were there in Indian Patent Act regarding agriculture and its allied areas
which were also blocked by the 2002 Amendment under Sec. 3(h), 3(i) and 3(j).

8
Dr. Philippe Cullet, Revision of the TRIPS Agreement concerning the Protection of
Plant Varieties, 2 Journal of World Intellectual Property (1999), p. 617.
9
Revised at Geneva on November 10, 1972 and on October 23, 1978 and on
March 19, 1991
10
U.S.A. introduced Plant Patent Right in early 1930s itself.
11
Dr. Philippe Cullet and Radhika Koluru, Plant Variety Protection and Farmers’
Rights, Towards a Broader understanding, 24 Delhi Law Review (2003), p. 41.

7
 Trade Related Aspects of Intellectual Property Rights (TRIPS)
Agreement, 1994 is an annex 1 C of the Marrakesh Agreement establishing the
World Trade Organization is concerned with the overall intellectual property
branches which provide a new phenomenon for the international registration
of produce and innovations. Regarding agricultural aspect, it is a welcome relief
for India, as the government was struggling to protect basmati rice, turmeric, neem,
tea and various agricultural produces under IPR regime.

1.3 WTO : TRIPS Agreement

The World Conference held in Havana in 1947 had established the General
Agreement on Trade and Tariffs (GATT) as a temporary body for Multilateral
Trade Negotiations (MTNs). GATT continued to be a forum for MTN’s till the end
of 1994. It completed eight rounds of negotiations during its existence.

The 1986 GATT Round, popularly known as the Uruguay Round (UR)
provided for a forum for formation of different coalitions to advance their interests,
bringing new elements into trade discussion, especially relating to agriculture. One
of the most important agreements of UR relates to the granting of Intellectual
Property Rights (IPR) on biological materials embodied in the Trade Related
Intellectual Property Rights (TRIPS) Chapter. TRIPS was an attempt to narrow
down the gaps in the way the intellectual property rights had to be protected around
the world and to bring them under common international rules. It specifically
requires member nations to grant patents on micro-organisms, non-biological and
micro-biological processes as well as an effective IPR protection for plant varieties.

The General Agreement on Trade and Tariffs (GATT), the predecessor to the
World Trade Organization (WTO)12, was started to restore world trade at the end of
the Second World War in 1945. Several rounds in GATT starting from 1948, dealt
with the quotas and duties of tradable commodities between nations. The 1986
GATT Round, popularly known as Uruguay Round, brought in new elements into
trade discussions, specially relating to agriculture. One of the most conscientious
12
Marrakesh Agreement Establishing the World Trade Organisation, Annex 1 C, LEGAL
INSTRUMENTS-RESULTS OF THE URUGUAY ROUND, Vol. 1, 331.L.M 181 (1994).

8
agreements of the UR is the one relating to granting of Intellectual Property Rights
(IPR) on biological materials embodied in the Trade Related Intellectual Property
(TRIPS)13 chapter. This is administered by the World Trade Organization and is
important because it is the first and only international treaty, which sought to
establish enforceable universal minimum standards of protection for all major
intellectual property rights. It specifically required that Intellectual Property Rights
(IPRs) are protected by law in different forms such as patents, designs trademarks,
copyright and related rights and other forms, such as geographical indications or
undisclosed information (trade secrets) etc., The TRIPS agreement recognizes the
creation of Intellectual Property Rights (IPRs) vital for the development of
mankind. IP is the property created by the human intellect, which can be
incorporated in tangible objects and reproducible in different locations.

Until the Uruguay Round, IPRs were not considered to be part of the
international trade policy agenda. However after the adoption of WTO, the
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) has
brought IPRs in to the center of debates in the era of globalization. The TRIPS
Agreement brings basis level harmonization in the intellectual property laws all
over the world and is a powerful legal binding agreement because of the strong
enforcement capability backings of it. Defying countries can face trade sanctions.
As a result, new significant developments are taking place at the international,
regional and bilateral levels that build us and strengthen the minimum TRIPS
standards through the progressive harmonization of policies along the standards of
technologically advanced countries. The challenges ahead in designing and
implementing IPRs policy at the national and international level are considerable,
especially more visible in the case of developing countries.

Several other international instruments broadly address issues related to

biodiversity management. The international treaty on Plant Genetic Resources for
Food and Agriculture (PGRFA Treaty) is significant as it provides that plant genetic

13
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr.15, 1994,
Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C, Legal
Instruments – Results of the Uruguay Round, Vol. 1, 331.L.M 181 (1994).

9
resources are a “common heritage” of human kind and calls all countries to share
their genetic resources with the rest of the world. It also addresses the question of
farmer’s rights. The International convention for Protection of New Varieties of
Plants (UPOV convention) 1991 is significant for providing a legal mechanism for
the protection of plant varieties developed by commercial plant breeders through the
introduction of ‘Plant Breeders’ Rights’ (PBRs), which are a hybrid form of IPRs
giving the seed-industry similar incentives to those offered by patents without
establishing a complete monopoly.

The international treaties constitute a necessary background to understand

the role played by the TRIPS in shaping domestic policies for biodiversity
management. The TRIPS Agreement establishes the principle that patents should
be available in all fields of technology. Some general exceptions to patentability are
permitted in particular to protect human health or the environment. The member
states must also offer legal protection for plant varieties, either through patents or
through an alternative property rights mechanism (Sui generis protection).14

Thus, IP confers legal ownership to the person or a business or a discovery

or an invention attached to a particular product or process, which prohibits others
from its unauthorized use. While this agreement had specified minimum standards
with reference to Berne and Paris Conventions, it notably made no such
specifications or any minimum standards for plant varieties. Article 27 15 of the
TRIPs Agreement states that all qualifying inventions in all fields of technology,
whether products or processes, shall be eligible for patents. Further, countries may
decide, as per this Agreement, not to patent within their territories plants and
animals, and essentially biological processes in production. Nevertheless, they will
be obliged to patent micro-organism, and non-biological as well as microbiological
processes. Also, where patent shall not be provided for plants, it will be obligatory

14
Art 27(3), TRIPS Agreement 1994.
15
TRIPS Agreement Art 27, Sec. 5, states that "patents shall be available for any invention,
whether product or process, in all fields of technology provided that they are new, involve
an inventive step, and are capable of industrial application".

10
as per the TRIPS Article 27.3 (b) to provide for the protection of plant varieties by a
patent or by an effective sui generis system or by combination thereof.

Member States to the TRIPS agreement are not obliged to provide for patent
protection for plants and animals. However, they have to implement some form of
intellectual property protection for plant varieties. This can be provided either by
providing for patent protection for plant varieties, or by implementing an effective
sui generis system or by any combination thereof. In general, developing countries
can make a choice amongst the following policy options:

 To make provisions for the patent protection of plant varieties.

 To join the International Union for the Protection of New Varieties of
Plants (UPOV) in either of both variants (UPOV 61 or 91).
 To provide for comparable Plant Variety Protection (PVP) without
formally joining the UPOV Convention.
 To devise a sui generis system which is better designed to suit national
interests and to take into account the protection demands of informal
and local communities.

1.4 Plant Variety Protection

The issue of Plant Varieties Protection (PVP) is significant and can

be understood in two ways. Firstly, in the narrow sense where protection
of plant variety is important to provide incentive to commercial breeders
for developing new plant varieties. Secondly, in the broader sense where
Plant Varieties Protection (PVP) has direct linkages with the rights of the farmers
who have traditionally been breeding plant varieties as per their local
conditions, accessibility to Plant Genetic Resources (PGR) and concerns related to
food security.

Thus, with respect to the protection of plant varieties, TRIPS is very clear
that plants and animals may be excluded from patentability. The choice is left to
member countries to protect plant varieties either by patent or by an effective sui
generis system or by combination of both.

11
 India is bound by all the provisions of TRIPS Agreement, which oblige the
country to enact/amend relevant domestic laws. Further, with such shifts in legal
provisions and also national policies, increased private participation in agricultural
R&D and far more public-private relationships, including both competition and
cooperation in relevant areas, are imminent. Several legislative and institutional
adjustments are being made in the country to gear up and face the challenges of
globalization. These include enactment of new legislations on Protection of Plant
Varieties and Farmers’ Rights Act, 2001 and Geographical Indications of Goods
(Registration and Protection) Act, 1999, and Amendments of Patents Act 1970, in
1999, 2002 and 2005. The Biological Diversity Act, 2002 and Seeds bill in 2004, is
also receiving attention. Effective implementation of IPRs related legislations in
place and those in the offing is expected to have significant impact on the course of
agricultural R&D in the country.

Therefore, it is considered important to identify and develop various national

policy options for addressing the emerging areas of IPRs in agriculture including
the access to various protected technologies to the Indian farmers, entrepreneurs and
users. In the days to come, IPRs are likely to dominate the agricultural scenario
irrespective of whether the technology in question is conventional or modern.

Plant Breeders’ Rights (PBR) are called "farmers’ privilege" in many

countries. This right, however, is merely an exemption from a right granted to the
plant breeder. This kind of exemption is in force in different degrees in various -
UPOV member countries. But after the last amendment in 1991, such exemptions
were made subject to the breeder's consent. Countries that have since joined UPOV
have to comply with standards of 1991, whereas those who joined earlier are bound
by the less stringent version of 1978.

Plant varieties play an important role in human affairs. 16 Success or failure in

producing foodstuffs is a life or death matter for large part of the world's population.
For many nations, where agriculture is a less significant component of economic

16
Geoff Tansey, Trade, Intellectual Property, Food and Biodiversity, A Discussion Paper,
Quaker Peace and Service London (1999).

12
activity, there remains intense interest in maintaining farm communities and
promoting food security. Disputes concerning agricultural subsidies remain at the
heart of the World Trade Organization agenda. Although the protection afforded to
plant varieties as a matter of right, intellectual property law does not receive the
level of public attention accorded to pharmaceutical patents or copyrights in music,
the direction of public interest should not obscure the fundamental importance of
intellectual property rights in plant varieties.

In India, the farming community is the largest seed producer, fulfilling

about 87 per cent of the country's annual requirement of over six million
tones. Denying farmers, their right to sell would not only lead to a substantial
loss of income for them but also displace the farmer as a major seed provider in
the country. Farmers' weak rights in the legislation will allow seed corporations
to dominate the seed market. Control over seed production is vital to food
security.

Plant Variety Protection (PVP) is a patent like system that allows the
owner/innovator to prohibit specific unauthorized uses of his or her invention.
European nations were the first countries to leverage PVPs as an incentive
mechanism for agricultural innovation under the auspices of the International
Convention for the Protection of New Varieties of Plants UPOV, (established in
1961 and revised in 1972, 1978 and 1991).

As a signatory to WTO, India adopted its own sui generis system in the form
of Protection of Plant Varieties and Farmers’ Rights Act, 2001.

The present study makes a sincere attempt to analyze the food situation in
India through times and also the various provisions of the sui generis legislation,
PVPFR Act, 2001 and as to how this Act can help maintain an intelligent balance
between the rights of the farmers and the breeders. Ensuring of farmers’ rights
through this Act can guarantee livelihood opportunities to the farmers and in turn
help in attaining food security for a country like India which is predominantly
dependent on an agrarian economy.

13
1.5 Sui Generis Legislation

Art 27.3(b) of TRIPS, which deals with the protection of new plant varieties,
offered three options. According to TRIPS, Plant Protection will have to be granted
by –

1. a patent right or
2. an effective ‘sui generis’ system or
3. by a combination of patent and sui generis.

To comply with the TRIPS provision India decided to opt for a sui generis
system of protection for plant varieties.

In August 2001, Indian Parliament enacted the Plant Varieties Protection and
Farmers' Rights Act. This is the "sui generis" (of its own kind) legislation of India,
defining intellectual property rights (IPRs) according to Indian standards rather than
adopting a model from elsewhere in the world. Before the Act was passed, there
was a long and heated debate. As a WTO member, India had to comply with
TRIPS, the agreement on Trade Related Intellectual Property Rights. Among other
things, TRIPS applies to Plant Varieties Protection (PVP).

Plant varieties and micro-organisms are the two life forms allowed for IP
protection in India, although the level of protection in these two forms vastly varies.
In the case of plant varieties, TRIPS provide an option to member countries for
protecting them by patents, or by an effective sui generis system or by a
combination of patent and sui generis system. India chose not to give patent to
plants and chose to protect plant variety by the sui generis system. The Latin words
sui generis mean "self generated". Sui generis system is a kind of IP protection
different from patent and allowing flexibility to the protection suiting to the socio-
economic conditions of the countries. The PVP and FR Act, 2001 is the second
Indian IPR legislation having major impact on agriculture. It can also assume a
wider scope to cover those aspects of IP system embodying the community, farmers'
and indigenous peoples' rights, which are not protectable under the patent system.
Sui generis system grants an exclusive right to the innovator of a plant variety for

14
producing, processing, stocking, commercializing, importing or exporting the
propagating material of the protected variety.

1.6 Plant Varieties Protection and Farmers’ Rights Act, 2001

In compliance with the requirement under TRIPS, India developed its own
sui generis system of law to protect plant variety. This law is the Protection of Plant
Varieties and Farmers' Rights Act, 2001 (PVPFR Act).

The PVPFR Act 2001 came into existence to provide for the establishment
of an effective system for the protection of plant varieties, the rights of farmers and
plant breeders and to encourage the development of new varieties of plants.

It has been considered necessary to recognize and protect the right of the
farmers in respect of their contribution made at any time in conserving, improving
and making available plant genetic resources for the development of new plant
varieties. To accelerate agricultural development, it was felt necessary to protect
plant breeders’ rights to stimulate investment for research and development of new
plant varieties. Such protection is likely to facilitate the growth of seed industry
which will ensure the availability of high quality seeds and planting material to the
farmers. The innovative Indian legislation has opened up interesting possibilities for
developing and regulating breeders’ and farmers’ rights. So that, both are
acknowledged and protected simultaneously.

PVPFR Act deals with the protection of IPR for plant varieties by the
process of registration. The various varieties which are covered under this Act are –
new varieties, extant varieties, farmers’ varieties and breeders’ varieties. The
Act provides for the registration of new varieties of plants by their breeders,
provided they fulfill the criteria of novelty, distinctiveness, uniformity and stability.
The breeders’ rights protection would include the exclusive right to produce, sell,
market, distribute, import or export the variety or its propagating material and to
license other persons to do the same.

This Act is proactive and farmer friendly. It recognizes the farmer not just as
a cultivator but also as a conserver of the agricultural gene pool and as a breeder

15
who has bred several successful varieties. The Act makes provisions for such
farmer’s varieties to be registered with the help of NGO’s so that they are protected
against being scavenged by formal sector breeders. Section 39 (iv) of PVPFR Act
confers various rights on the farmers, like right to sow, re-sow, exchange, share or
sell his farm produce including seed of a variety protected under this Act. But the
farmers are prohibited from selling seeds that are branded, packed and labeled
indicating that the seeds are protected under PVPFR Act. In this way both the
farmers’ and breeders’ rights are protected.

The Act provides protection to farmers' seeds but it is only possible when
farmers' varieties are registered with the help of NGOs. This provision is to ensure
protection against people such as corporate breeders. This provision though could
provide the necessary protection and also could help in facilitating the access and
benefit sharing mechanism as foreseen in the Convention on Biological Diversity,
has its own inherent weaknesses and will pose practical problems in
implementation. Given the nature of knowledge related to plants, both in the wild
and for domestic varieties, it is well understood that such knowledge lies in the
public domain and is not restricted usually to a single individual. Such knowledge
sometimes is spread over large geographical regions where such bio-resources are
found and sometimes such knowledge even crosses national borders regionally
especially if the same ethnic communities reside in the adjacent countries and the
agro-ecological region is also the same. People share and exchange seeds
sometimes with communities in neighboring villages. If a breeder or a scientist
uses farmers' variety to breed new varieties, the question arises as from whom the
permission will be sought? and how will the benefits be shared? The very basic
concern that arises with the issue of registering of the seed is to how will the
farmers collect and document data for this purpose.

The government in enacting this law felt that plant varieties protection
accorded to commercial plant breeders leads to increased food production, greater
food security and the development of new varieties by spurring investments in this
sector by protecting the IPRs. But, the reality is that the commercial seed sector is
essentially engaged in the research on hybrid technology in a few commercial crops

16
such as the maize, canola, sunflower, etc. The food production is still largely in the
hands of the small farmers who use farm saved seeds.17

This Act provides for three rights viz., the Protection of Breeder’s Rights
(PBR), the Farmers’ Rights (FRs) and the Researcher's Rights (RRs). The process
of granting sui generis right or the PBR is called registration. Legislations on seed
rights will have wide implications in a country like India, where majority of its
people depend on agriculture for food, economic and livelihood security and these
farmers are predominantly small and marginal in scale.. Such law also will have
implications in countries like India, where farmers for thousands of years have been
contributing to the generation of rich genetic diversity in many crops and its
conservation. This important role of farmers, which has high significance to the
present and future national and global food security, is inseparable from their right
on seeds - the right to save, sow, exchange, share and sell seeds.

The Farmers’ Rights in the PVPFR Act includes the right to seeds, the right
to equitable benefit sharing, the right to register farmers' varieties, the right for
reward and recognition for conservation and improvement of plant genetic
resources, the right for compensation when a registered variety does not perform to
the promised level, etc. Researchers’ Rights refer to the free and unrestricted right
to researchers in accessing any plant material including the varieties registered
under this Act for the purpose of research, including breeding new varieties. Also
commercialization of such varieties bred by using a registered variety does not
require prior approval from the PBR-holder of the registered variety or payment of
royalty. This right is important to promote research leading to the development of
more and more superior varieties, which would benefit farmers and promote the
cause of national agriculture.

1.7 Protection of Farmers’ Rights

Farmers’ rights are very crucial in developing countries like India to ensure
present and future food security where the farmers are mainly responsible for
development of vast genetic diversity of resources through keen observation and
17
No Patents on Seeds: A Handbook for Activists, Navdanya, 2005, New Delhi.

17
intelligence. The farming communities across the world have been following, since
time immemorial, the practice of sharing of knowledge and resources. Sharing of
seeds among farmers, for example, constitutes perhaps the most important part of
these traditional agricultural practices 18. But unfortunately the developers of this
wealth remained invisible in trade and commerce and their resources were exploited
by the private agrarian sector.

For thousands of years, the farmers were engaged in the process of selection
and conservation of plant varieties. As a result, diverse varieties of each crop plant
were seen in developing nations, especially in India. Though plant varieties were
developed according to climatic conditions at each place, the dissemination of seed
varieties had largely contributed to enrichment of knowledge and skill in farming.
In India farmers are the source of supply of both seeds and food commodities and
substantial amount of these requirements are met through ‘farmer-to-farmer
exchange’.19 Thus farmer is also the breeder, conserver and distributor of not only
the seed but also spreading information about agricultural practices. Therefore on
all counts the responsibility for food security and genetic diversity completely
depends upon the farmers.

In developing countries, there is no traditional division between breeders and

farmers. Free exchange of seeds between farmers helps them to accumulate
knowledge about the growth and qualities of seed in different fields in different
climatic conditions. Denying protection to farmers’ plant varieties is like not
rewarding intellectual contribution of farmers. Therefore TRIPS which deal only
with ‘technologically developed plant varieties’ would not be in compliance with
the philosophy of intellectual property rights to incentivize the contributor of
knowledge. Moreover, in the absence of protection of farmers’ knowledge we have
witnessed serious issues such as drain of knowledge from farmers to private sector,
18
Sophy K.J., Farmers’ Rights under Plant Variety Protection Legislation in India : A Critical
Study, (http://rostrumlegal.com/r dt. 2.8.2015).
19
Anitha Ramanna, India’s Plant Varieties and Farmers Rights Legislation : Potential Impact
on Stakeholder Access to Genetic Resources, EPTD Discussion Paper No. 96, Environment
and Protection Technology Division, International Food Policy Research Institute, January
2003.

18
monopolization by the mightier MNCs on existing varieties and exclusion of others
to avail, access and distribute seeds.

1.8 Definition of Farmers’ Rights

The international treaty does, however, not define Farmers’ Rights. A

working definition developed by the Farmers’ Rights Project is as follows:

“Farmers’ rights consist of the customary rights of farmers to save, use,

exchange and sell farm-saved seed and propagating material, their rights to be
recognized, rewarded and supported for their contribution to the global pool of
genetic resources as well as to the development of commercial varieties of plants,
and to participate in decision making on issues related to crop genetic resources”.

Farmers’ rights are a precondition for the maintenance of crop genetic

diversity, which is the basis of all food and agriculture production in the world.
Basically, realizing farmers’ rights means enabling farmers to maintain and develop
crop genetic resources as they have done since the dawn of agriculture and
recognizing and rewarding them for this indispensable contribution to the global
pool of genetic resources.

Plant genetic diversity is probably more important for farming than any other
environmental factor and for the maintenance of this diversity, farmers’ rights are
crucial for ensuring present and future food security in the country.

The idea of farmers’ rights denotes in simple terms the rights of farmers over
their resources and knowledge. In fact, discussion on farmers’ rights as a legal
norm involves two major issues and they are : plant genetic resources and
traditional agricultural knowledge.

India is one of the few countries having specific legal provisions addressing
farmers’ rights. The concept of farmers’ rights has become an explicit part of Indian
Intellectual Property Regime through the Plant Varieties Protection and Farmers’
Rights Act, 2001. While this can be considered as a landmark legislation, farmers’
rights provision under the Act has invited several criticisms both from a conceptual
and implementation point of view. In this background, this study seeks to explain

19
the nature and scope of farmers’ rights in India and further captures meaningful
development of the concept.

1.8.1 Other Features of the 2001 Act

By considering farmers’ rights as a kind of intellectual property through

Indian legislation, it has provided a safe platform for farmers’ to enforce their rights
globally. India is one of the few countries having specific legal provisions
addressing farmers’ rights. Since farmers’ rights are primarily the concern of
developing countries, an analysis of farmers’ rights regime in India has particular
relevance.

It is provided in the Act that farmers have the right to ‘save, use,
sow, re-sow, exchange, share or sell farm produce including seed of a
protected variety in the same manner as they were entitled prior to the PVP
Act.

The institutional mechanism for protection of farmers rights is Protection of

Plant Varieties and Farmers’ Rights Authority 20 (hereafter ‘the Authority’) and the
Gene Fund.21 It is explicitly mentioned in the Act that the general function of the
Authority includes the protection of the rights of farmers 22 and to ensure that the
seeds of varieties registered under the Act are available at reasonable prices and in
reasonable quantities.23 Gene fund regulates financial matters such as compensation
and benefit sharing.

20
The PVP & FR Act, 2001, Section 3 : The Central Government shall, by notification in the
Official Gazette, establish an Authority to be known as the Plant Varieties Protection and
Farmers’ Rights Authority for the purposes of this Act.
21
Ibid., Section 43 : The Central Government shall constitute a Fund to be called the National
Gene Fund.
22
Ibid., Section 8 : It shall be the duty of the Authority to promote, by such measures as it
things fit, the encouragement for the development of new varieties of plants and to protect
the rights of the farmers and breeders.
23
Ibid., Section 47 says that ‘compulsory license’ may be granted by the Authority when the
propagating material or seed is not available to the public at reasonable price and quantity.

20
1.9 Background of the Study

As required by the TRIPS agreement, to protect the new varieties and also
the extant and derived varieties and in turn protecting the interest of the breeders,
farmers and the village communities, India adopted the sui generis system and
enacted the Protection of Plant Varieties and Farmers’ Rights Act, 2001 as the
existing Indian Patents Act, 1970 excluded agriculture and horticultural methods of
production from patentability.

Article 27(3)(b) of TRIPS excludes plants from patent protection. So there

has been a pressing need to decide about what sort of intellectual property
protection should be given to plant innovation and why. Deciding on this issue
became urgent in the light of the obligation imposed by Article 27.3 of the TRIPS
Agreement on all WTO member countries to provide for the protection of plant
varieties either by patents or by an "effective sui generis system" or by any
combination of the two.

By providing an incentive to breeders, plant variety protection encourages

investment and effort into plant breeding. IPRs provide an incentive for private
research and development into new breeding techniques, thereby reducing the need
for government funding to subsidize these activities.

1.10 Significance of the Study

Before the advent of modern technologies in the agricultural sector,

inventions based on living organisms (like breeding of new crop varieties through
hybridization, back-crossing and selection) were considered as natural and obvious
discoveries that could rarely be copied and did not warrant any protection.
Developments in biotechnology have changed the situation dramatically.
Biotechnological inventions require substantial investments, and their processes and
products can easily be copied. Such kind of plant breeding is increasingly being
carried out by large multinational corporations of third most under developed
nations and by some state-run establishments in a few developing countries. The
establishments definitely look for returns on their investments to support and

21
provide incentives for their future innovations. Intellectual property protection
provides a way for ensuring financial revenues, and also protects novel innovations
and crop material from illegal commercial duplication.

This opens a floodgate of questions regarding the need for such protection
in less developed countries. The third world societies, indigenous people and other
farming communities, had no concept of ownership rights over life forms. In
particular, no law existed to grant exclusive ownership rights to traditional plant
breeders for creating new plant varieties and crops. The third world farming
communities developed and innovated new crop varieties to respond to their
climate, soil and food needs, in a spirit of free exchange.

The model of protection envisaged in the TRIPS Agreement, fails to

give due recognition to the interests of the indigenous farmers in the
developing countries, as it is modeled to serve the purposes of the developed
world / economies. This has further widened the North-South divide in the
WTO.

The UNDP Human Development Report24 summarizes the Western

viewpoint by stating that "technology is created in response to market pressure - not
for needs of the poor people who have little purchasing power". The Report also
states that "policy and not charity" is needed "to build technological capacities in
the developing countries". It is clear from these statements that technology
innovators in the developed nations of the West are not interested in developing
technology for public benefit of the poor and the needy, but are increasingly
interested in tightening the implementation of TRIPS (IPRs) in all fields of
technology, including agriculture.

Farmer is the first link in the food security especially in countries like
India where 70 per cent of the population are engaged in agrarian based activities.25

24
Human Development Report, Oxford University Press, 2001, pp. 2-3.
25
Ms. Sophy, K.J., Farmers’ Rights under Plant Variety Protection (PVP) Legislation in
India : A Critical Study, (http://rostrumlegal.com/r dt. 2.8.2015).

22
The vast majority of farmers still act as innovators of genetic diversity.26
Considering their vast practical knowledge in conserving and improving plant
genetic resources to adapt to climate changes and environmental changes, farmers’
knowledge, skill and innovation have to be protected in the parlance of Intellectual
Property Rights.

The International Treaty on Plant Genetic Resources for Food and

Agriculture, recognizes the enormous contributions made by farmers worldwide in
conserving and developing crop genetic resources and it provides for measures to
protect and promote these rights.

Hence it is intended through this study to examine and analyze the rights of
farmers and how far protection of their rights helps in conservation of plant varieties
under the PVPFR Act 2001.

1.11 Objectives

 To elucidate the historical evolution of intellectual property rights

on plants.
 To clearly indicate that UPOV Convention is protecting the interest
of corporate plant breeders and not the farmers.
 To examine how far the PVPFR Act recognizes and protects the
rights of farmers in respect of their contribution made in conserving
and improving plant genetic resources for the development of new
plant varieties.
 To protect plant breeders’ right and to stimulate investments both
in public and private sector for the accelerated agricultural
development.
 To protect farmers' rights and plant breeders' rights and to
accelerate development in the country.

26
Regine Anderson, Protecting Famers’ Rights in the Global IPR Regime : Challenges and
Options, Trade Insights, 2007, Vol. 3, No. 2, pp. 30-32.

23
1.12 Scope

1. Study on how TRIPS makes it mandatory for WTO member countries to

patent some categories of life forms and living processes.

2. Study on how TRIPS and IPRs favour private persons or companies and
modern technology and do not give much importance to the crucial role that
Traditional Knowledge (TK) plays or the legitimate rights of farmers, indigenous
people and local communities who have contributed to knowledge and innovations
in the sustainable use of biological resources.

3. There is growing evidence of misappropriation of traditional knowledge

and the rights of farmers and local communities by the corporations and
private research institutions that have been patenting genetic material and
knowledge relating to their use. TRIPS has helped to facilitate and accelerate this
trend.

4. There is fear among NGOs, farmers and indigenous people’s

organizations that allowing genetic material to be subjected to IPRs would increase
the global control of the few corporations over seeds and crops, then increasing
farmer’s dependence on companies for farm inputs and also reducing biodiversity as
fewer varieties (some of which may also be genetically modified) take the place of
diverse traditional varieties.

1.13 Hypotheses

 The fear as envisaged in the PVP and FR Act 2001 lies in the
fact that farmers are not allowed to sell branded seeds as such
seed is of a variety protected under the Act.
 The 'benefit sharing' mechanism in the form of royalty to farmers
when their varieties are used for breeding new varieties is not
properly working. .
 The protection of farmers against failure of registered varieties or
the provisions related to corporate liability in the PVP and FR
Act, 2001, are weak and will not act as a deterrent measure.

24
  The proposed seed law (Seed Bill 2004) does not provide any
protection to the farmer against the risks from untested and
hazardous seeds.
 UPOV Convention is protecting the interest of corporate plant
breeders instead of farmers.

1.14 Review of Literature

Vandana Shiva27 has clearly emphasized the need for plant variety
protection with special reference to Plant Varieties Protection and Farmers’ Rights
Act, 2001.

Elizabeth Verkey has traced out the international efforts in protecting

plant varieties by incorporating the UPOV Convention, TRIPS Agreement and
the Convention on Biological diversity. The UPOV convention aims to ensure
a harmonized International system for the protection of plant varieties and
encourage the development of new varieties of plants. The convention also
provides for an international legal framework for the granting of plant
breeders’ rights which is a key element in encouraging breeders.28 The author
emphasised the need for a separate law to protect plant varieties in India.

Suman Sahai has analysed the concept of plant varieties and farmers’
rights in a detailed manner.29

The Indian legislation was the first in the world to grant formal
rights to farmers in a way that their self-reliance is not jeopardized. What is
significant and positive about this legislation was that it charted its own
course, deviating from the norms set by the Union for the Protection of New
27
Vandana Shiva, CED Documentation prepared for Bangalore Seminar on Women, Ecology
and Health, 1991 and Sacred Seed, (2014) Global Peace Initiative of Women (GPIW)
Editor, Deradhun.
28
Elizabeth Verkey, ‘Law of Plant Varieties Protection’ 2007, Eastern Book Company,
Lucknow, pp. 171, 197, 204.
29
Suman Sahai, 2003, India’s Plant Variety Protection and Farmers’ Rights Act, 2001,
Current Science Vol. 84, No. 3, Feb. 2003, p. 407.

25
Plant Varieties (UPOV). UPOV is at present the only platform for developed
countries which is modulated to protect the interests of agriculture in industrial
countries. It does not even have the notion of farmers’ rights. The innovative
Indian legislation has opened up interesting possibilities for developing a
developing country platform for regulating breeders’ and farmers’ rights so that
both, not just one, are acknowledged and protected. The salient features of the
new law are described in this article.

In fact the Indian legislation succeeds in balancing the rights of

Breeders and Farmers and exploits the flexibility granted in TRIPS, in an
intelligent manner. There are clauses to protect the rights of researchers and
provisions to protect the public interest.

Gopalakrishnan, N.S., in his article titled ‘Protection of Farmer’s

Rights in India : Need for Legislative Changes’ has critically analysed the
Farmers’ Right in detail.30 He had indicated that it is now mandatory that
members of the WTO must introduce legal measures either in the form of
patent or an “effective” sui generis law or a combination of both to protect
plant varieties.31 There was stiff resistance from many developing countries
including India and farmer’s groups against the introduction of such a
provision in the TRIPS Agreement.32 The concern for providing food security
to the people of the country forced many nations to keep plant varieties out
of IPR protection. The diverse pattern of agriculture, the traditional methods
of breeding and farming followed in the developing countries resulted in the
generation of many customary rights to the farmers.

30
N.S. Gopalakrishnan, An “Effective” Sui Generis Law to protect plant varieties and
Farmer’s Right in India – A critique, Journal of World Intellectual Property,
January, 2001.
31
See, Art. 27(3)(b) TRIPS Agreement 1994. See also R.S. Crespi, “Patents and Plant
Variety Rights : Is there any Interface Problem?”, (1992) 2 LIC. 168.
32
See Terence P. Stewart (Ed.), The GATT Uruguay Round – A Negotiating History (1986
– 1994) Vol. IV : The End Game (Part) I, Kluwer Law, (1999), pp. 50-533.

2
 Swaminathan , M.S., has endorsed the protection of plant varieties by
sui generis law.33

Access to good seeds of appropriate varieties is an effective method

of bridging the technology divide among farmers. Hence, he had suggested
that there is a need for the effective and integrated implementation of the
following three Acts :

- Protection of Plant Varieties and Farmers’ Rights Act, 2001.

- Biodiversity Act (yet to be approved by the Parliament)
- Seed Act (the revised Seed Act is now under consideration of the
Parliament).

He has opined that the provisions of the Act cannot be implemented

effectively, unless there is a major effort in awareness generation and
information empowerment.

He has emphasised thus in order to ensure that the farmer-breeders and

conservers secure the recognition and reward provided under the Act, there is
need for resource centres for farmers’ rights.

Philippe Cullet has examined the issues of PVP and enforcement of

rights of plant breeders in the plant variety protection regime. The author had
highlighted various other issues involved in Plant Breeders’ Rights even though
Plant Varieties Protection Act, 2001 was adopted.34

The introduction of plant variety protection in India has significant

implications since seed was traditionally been supplied overwhelmingly by farmers
themselves and by the public sector, with the private sector playing a marginal role
until recently in most crops. From a legal perspective, the protection of plant

33
M.S. Swaminathan, The Protection of Plant Varieties and Farmers’ Rights Act : From
Legislation to Implementation, Journal of Intellectual Property Rights, Vol. 7, July 2002,
pp. 324-329.
34
Philippe Cullet, ‘Plant Variety Protection : Plant Breeder’s Rights and Sui Generis
Systems’ Economic and Political Weekly, August 6, 2005, p. 3607.

2
varieties remains an issue which is far from settled even though the Protection of
Plant Varieties and Farmers' Rights Act was adopted in 2001 in compliance with
TRIPS obligations. This was due to a number of reasons: Firstly, plant variety
protection is an issue which goes beyond giving incentives to the private sector. In
fact, while the TRIPS agreement is the direct trigger for the introduction of plant
variety protection, it is not the only relevant treaty. The Biodiversity Convention
and the International Treaty on Plant Genetic Resources for Food and Agriculture
(PGRFA Treaty) were also of major importance in this regard. Secondly, while
plant variety protection is directly related to innovation in the field of agriculture, it
must also be understood in the broader context which includes conservation of
biological resources. Thirdly, plant variety protection is opposed to the idea that
agricultural management should be based on the sharing of knowledge and
resources. However, in the context of the widespread ratification of TRIPS and the
increasingly tenuous nature of farmers' hold over their resources and knowledge, it
is necessary to go beyond criticism and understand the additional requirements of
the current international legal system with respect to the needs of farmers and more
broadly of food security for all individuals.

Bala Ravi, S.,35 has also stated that “effectiveness of sui generis system
of plant variety protection has become contentious in the absence of its
definition in Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Agreement. India legislated the sui generis law, the Plant Varieties Protection
and Farmers’ Rights Act in 2001 and notified its rules in 2003. The
effectiveness of the legislation depends on the clarity and scope of its legal
provisions, associated rules and regulations. The manner in which these are
implemented also contributes to the effectiveness. An examination of this Act and
its rules by applying certain de minimis requirements essential to ensure
effectiveness of an IPR system, concludes that the Act is effective in design
and scope”.

35
Bala Ravi, S., “Effectiveness of Indian Sui generis Law on Plant Variety Protection and its
Potential to Attract Private Investment in Crop Improvement”, JIPR, Vol. 9, Nov. 2004,
pp. 533-534.

2
 The author has examined the potential of this legislation in spurring
private investment in Indian plant breeding, strengthening seed industry and
making available quality seeds to farmers for achieving all round agricultural
development. The Act may facilitate enhanced private investment in selected
crops and seed supply systems, while strengthening of public research is
imperative to achieve balanced agricultural growth and access of technology to
farmers at competitive cost.

Kirit K., Patel has examined the impact of liberal IPR policies on agro-
biodiversity in two local communities, one tribal and one non-tribal, in two tribal
villages, Dhabudi and Sarjumi in Dahod district of Gujarat. 36 He found that the
claims of new IPR policies related to farmers rights legislation to increase crop
varieties, encourage farmers, breeders and promotion of farm conservation were
overstated. He came to the conclusion that agro-biodiversity is no longer an asset
but is becoming a liability for farmers’ as their farms become smaller and leveled,
as inequality within the community increased, as majority of farmers had migrated
to distant labour markets for longer than just the lean season. He had also found that
policies continue undermining the role of local seed systems and public sector
institutions in the development and dissemination of new crop variety.

Mara Nielle Bird : The role of non-state actors reviewed the policy
framework related to transgenic crops in three developing countries examined the
role of countries viz. Argentina, Brazil and India during the period 1996-2002 in
IPR domain.37 He had found that intellectual property rights figured as an important
parameter in policy formation, bio-safety, food safety, consumer choice and public
research being other influencing areas. NGO strategies became the key factor in
case of India in policy formulation process.

36
Patel, K.K. (2008), Cultivating diversity on farm : Agro-diversity in a tribal region of
Western India (Doctoral dissertation). Available from Dissertations and Theses database.
(UMI No. NR41733).
37
Bird, M.N. (2006), Policies for genetically modified crops in developing countries : The
role of non-state actors (Doctoral dissertation). Available from Dissertations and Theses
database. (UMI No. 3257681)

2
 Prasad Vijay Kumar has analysed India's enactment of Copyright Act, its
conformity to TRIPS agreement for copyright protection, and development of
software industry in India.38

Pia Law, examined the effects of India's signing the TRIPS agreement on
the antibiotic sector of the pharmaceutical industry in India. 39 His analyses of seven
selective antibiotics showed that strengthening the patent regime does not
necessarily lead to higher prices, which rather depends on the market structure and
elasticity in user demand.

Xiangxiang Ye investigated the relationship between the Plant Breeders’

Rights (PBR) on wheat yields and found that no significant effect on overall wheat
yield.40 Among three individual wheat varieties viz. Durum, Hard Red Spring and
Prairie Spring, the empirical evidence showed a positive impact of PBR Act on
wheat yield of Durum variety in Alberta during 1999 to 2003.

Regmi Srijana,41 had concluded that the protection of IP rights is not the
sole purpose of TRIPS. Its objective as mentioned in Article 7 reads 'the protection
and enforcement of intellectual property rights should contribute to the promotion
of technological innovation and to the transfer and dissemination of technology, to
the mutual advantage of producers and users of technological knowledge and in a
manner conducive to social and economic welfare, and to a balance of rights and
obligations.' He has stated , that the objectives of TRIPS, as reflected in Article 7,
do not include the protection of IPRs, but rather see the protection of IPRs as a
means to achieve the goals mentioned in the article such as promotion of

38
Vijay Kumar, P. (2001), “Thou shall not steal” : ‘An Analysis of the GATT TRIPS
copyright provisions and software piracy in India’ (Master’s thesis). Available from
Dissertations and Theses database. (UMI No. MQ 63383)
39
Law, Pia. (1999), TRIPS and the pharmaceutical industry in India : – ‘A case study of the
antibiotic sector’ (Doctoral dissertation). Available from Dissertations and Theses
database. (UMI No. 9948226).
40
Ye, X. (2007), The impact of the Plant Breeders’ Rights Act on wheat productivity :
Evidence from Western Canada (Doctoral dissertation). Available from Dissertations and
Theses database.
41
http://papers.ssrn.com

3
technological innovation and the transfer and dissemination of technology. The
principles of the agreement as enshrined in Article 8 allow the member states to
take measures necessary to protect public health and nutrition and needed to prevent
the abuse of intellectual property rights by right-holders. The article attempts to
establish that compulsory licensing is actually permitted under the TRIPS
Agreement and that the argument that such licensing run counter to the basic patent
theory does not hold true.

Plahe Jagjit Kaur,42 has indicated that the Indian government was obliged
to extend private property rights to plant varieties under the World Trade
Organization's Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Agreement. He has also analysed the implications of India's TRIPS- induced Plant
Varieties Protection and Farmers’ Rights (PVPFRs) Act for small producers. The
Indian Act gives formal recognition to farmers' rights and upholds the principle of
benefit sharing. Notwithstanding this, 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 PVPFRs Act, putting into question the Indian
government's commitment to protect farmers' rights.

Blakeney Michael, points out that the legal protection of intellectual

property (IP) has allowed private persons and enterprises to assert exclusive rights
in relation to certain agricultural innovations. Whether through the protection of
breeding innovations under plant variety rights protection laws or through the
patenting of genes and gene fragments, the increasing involvement of IPRs in
agriculture has affected a shift of agricultural research from public to private
institutions? He has examined the changes in the international IP landscape which
42
Journal of Contemporary Asia, 41 (1) (2011) 75-98.

3
has facilitated these developments and looked at the impacts of modern IP
developments upon agricultural research and farmers. It concluded with a
consideration of IP liability issues arising from the development of GM agriculture.

Finetti Claudia,43 has opined that Traditional knowledge is a very broad

definition which embraces technical concepts about a local environment, wherein
the said knowledge is derived from the long-standing traditions and practices of
certain regional, indigenous, or local communities. These technical concepts, which
are intrinsically connected with the spiritual meanings and beliefs of the
communities which had developed them, are the way indigenous people have in
order to survive in the surrounding environment. The increasing awareness of the
importance of this kind of knowledge brought about the necessity of the definition,
classification and legal protection of traditional knowledge. As a consequence, after
giving a brief overview of the main legal basis developed in the attempt at the
protection of traditional knowledge, he has dealt with the problems associated with
the codification in registers and databases, and gives some remarks about the
Indian, Korean and Chinese traditional knowledge databases.

Taking into account the above review of literature, the study analyses
the Plant Varieties Protection and Farmers’ Rights Act, 2001. The unexplored
issues which were not found out in the earlier researches are also examined in
the study.

1.15 Research Methodology

The study is doctrinal in nature. The relevant materials were collected from
primary and secondary sources. Materials and information were collected from
various central enactments, international treaties and conventions, legal and other
sources like published works, law journals, national journals, and websites on the
relevant topics. An attempt is made to analyze the intellectual property rights in the
context of protection of farmers’ rights by taking into consideration of the relevant
intellectual property rights and legal regime in India on the subject. An attempt is
made to provide valuable insight into the various dimensions of the complex area of

4
World Patent Information, 33 (1) (2011), pp. 58-

3
IPRs in the fields of traditional knowledge and protection of overall farmers’ rights.
For this purpose, several Law libraries in the State were visited and accessed
books in the M.S. Swaminathan Research Foundation Library, Chennai, as well as
in the Indian Law Institute, New Delhi.

1.16 Limitations

The protection of plant varieties, farmers’ rights and breeders’ rights

were already discussed in this study in detail but still the research work goes
in- depth relating to The Plant Varieties Protection and Farmers’ Rights Act,
2001 and the relevant legislations dealing with farmers’ rights attempting to
get new insights. The study also analyses the prevailing position in India and
makes a comparison with other countries like USA and UK for the betterment
and improvement of farmers’ rights in India. The study also examines various
Indian judicial decisions on the 2001 Act and its attitude.

An attempt has been made to analyze the intellectual property rights in

the context of PVP Act, by referring to the relevant International law and
legal regime in India on the topic. The researcher also has made an attempt
to procure valuable insight into the various dimensions of the complex area
of IPRs in the field of agriculture, traditional knowledge and farmers’ rights.

1.17 Operational Definitions

Section 2 (i) : "essentially derived variety” 44, in respect of a variety (the

initial variety), shall be said to be essentially derived from such initial variety when
it -

i. is predominantly derived from such initial variety, or from a variety

that itself is predominantly derived from such initial variety, while
retaining the expression of the essential characteristics that results
from the genotype or combination of genotypes of such initial
variety;

44
Section 2 (i) of The Plant Varieties Protection and Farmers’ Rights Act, 2001.

3
 ii. is clearly distinguishable from such initial variety and
iii. conforms (except for the differences which result from the act of
derivation) to such initial variety in the expression of the essential
characteristics that result from the genotype or combination of
genotype of such initial variety.

Section 2 (j) : "extant variety"45 means a variety available in India which is –

(i) notified under section 5 of the Seeds Act, 1966; or

(ii) farmers’ variety; or
(iii) a variety about which there is common knowledge; or
(iv) any other variety which is in public domain.

Sec. 2(k) “farmer” means any person who –

(i) cultivates crops by cultivating the land himself; or

(ii) cultivates crops by directly supervising the cultivation or land
through any other person; or
(iii) conserves and preserves, severally or jointly, with any other person
any wild species or traditional varieties or adds value to such wild
species or traditional varieties through selection and identification of
their useful properties.

Section 2 (l) "farmers' variety"46 means a variety which –

(i) has been traditionally cultivated and evolved by the farmers in their
fields; or
(ii) is a wild relative or land race or a variety about which the farmers
possess the common knowledge;

Section 2 (za) "variety"47 denotes a plant grouping except micro-organism within a

single botanical taxon of the lowest known rank, which can be -

45
Section 2 (j) of The Plant Varieties Protection and Farmers’ Rights Act, 2001.
46
Section 2 (i) of The Plant Varieties Protection and Farmers’ Rights Act, 2001.
47
Section 2 (za) of The Plant Varieties Protection and Farmers’ Rights Act, 2001.

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 i. defined by the expression of the characteristics resulting from a given
genotype of that plant grouping;
ii. distinguished from any other plant grouping by expression of at least
one of the said characteristics; and
iii. considered as a unit with regard to its suitability for being propagated,
which remains unchanged after such propagation, and includes
propagating material of such variety, extant variety, transgenic
variety, farmers' variety and essentially derived variety.

1.18 Chapter Scheme

The present research work titled ‘A Study on the Protection of Farmers’

Rights under the Indian Intellectual Property Regime’ has been divided into
Seven Chapters.

Chapter – I : ‘Introduction’ articulates the importance and significance of

the study, its aim and objectives. The chapter also introduces a conceptual
background. It also describes the research methodology.

Chapter - II : ‘Conceptual Analysis of Farmers’ Rights and its Genesis’,

describes the concept of intellectual property rights and existing legal
framework at the international level and in India relevant to Protection of
Plant varieties and Farmers’ Rights.

Chapter – III : ‘Protection of Farmers’ Rights and International Legal

Framework’ deals with the various International Conventions and Treaties
which confer rights on farmers by protecting plant varieties.

Chapter – IV : ‘Plant Varieties Protection Act, 2001 and India’s

Response to Farmers’ Rights’ - examines the provisions of the Act and its
salient features. The sui generis system for protection of plant varieties was
developed integrating the rights of breeders, farmers and village communities
and taking care of the concerns for equitable sharing of benefits. The Act
covers all categories of plants, except micro organisms. The Act empowers
the Central Government to establish an Authority known as the Protection of

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Plant Varieties and Farmers’ Rights Authority. The Act confers rights and
privileges to farmers and their right to protect varieties developed or
conserved by them.

Chapter – V : ‘Farmers’ Rights under Intellectual Property Regime

and PVP and FR Act, 2001’ - deals with the various farmers’ rights under
the Intellectual Property Regime.

Chapter – VI : ‘Protection of Farmers’ Rights in select Asian

Countries’ – The chapter examines the prevalent legislations in those countries,
where the rights of Farmers are protected.

Chapter – VII : Conclusion and Suggestions – This chapter summarises the

entire research work. The chapter gives a valuable insight into the complex area
of farmers’ rights under the PVP and FR Act, 2001. Based on the findings,
valuable recommendations and suggestions are made.