Protection Of Plant Varieties And Farmers' Rights Act 2001 - A Critical Analysis
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Category: General Law
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PROTECTION OF PLANT VARIETIES AND FARMERS'
RIGHTS ACT 2001: A CRITICAL
ANALYSIS
Ayush Yadav, Delhi University, Law Faculty
ABSTRACT
The Protection of Plant Varieties and Farmers' Rights Act, 2001, was established in India to create a sui generis system for protecting plant varieties, balancing breeders' and farmers' rights. While the Act's intent is to safeguard both parties, it has been criticized for aligning too closely with the UPOV model, which is less suited to India's unique agricultural landscape. The Act treats traditional farming methods and commercial breeding equally, despite their vast differences in practice, knowledge, and objectives. This has raised concerns about the fairness of the registration process, which requires technical expertise and financial resources that many small-scale farmers lack. Additionally, the Act imposes restrictions on the commercial exchange of protected seeds, potentially harming the agricultural economy.
There are also issues with the burden of proof placed on farmers in cases of alleged infringement, which contradicts general legal principles. Despite these challenges, the Act does offer certain protections, such as compulsory licensing, breeders' and researchers' rights, and restrictions on sterile seed technology. Judicial pronouncements have further clarified procedures, such as the use of DNA tests in plant variety registration. However, the Act's implementation has been hindered by a lack of awareness among stakeholders. To address this, increased efforts in education and outreach are necessary. Although the Act has limitations, it remains a critical step in providing formal intellectual property rights to farmers and breeders. The need for ongoing refinement and a complementary seed policy is essential to ensure that the Act fully supports India's diverse agricultural practices.
INTRODUCTION
The Protection of Plant Varieties and Farmers' Rights Act, 2001, was enacted by the Government to adopt a sui generis system to protect plant varieties. In 2003, the Rules for the same were notified. On November 11, 2005, the “Department of Agriculture and Cooperation, Ministry of Agriculture established the Plant Varieties and Farmers' Rights” Authority to implement the Act's provisions. Before this Act, India did not have any legislation or statutes to protect the plant varieties. It has been two decades since the Act came into force, and it is necessary to study the practical implications of the Act to examine its effect on IP rights assured to the farmers specifically. The Act treats Farmer's rights at par with Breeder's rights that involve using formal breeding techniques in contrast to Farmer's age-old traditional and informal breeding practices.
This poses a threat to the nature of IP rights provided to farmers under the Act considering their competitors are technologically advanced breeders that include MNCs, private firms, and other big companies involved in the business of making available seeds of hybrid quality to overcome natural shortcomings with existing seeds and practices in general. This Act establishes a system for the adequate protection of rights of various groups such as the farmers and the breeders. The Act furthermore encourages the development and cultivation of new varieties of plants. This Act basically introduces the protection of intellectual property in agriculture.
The principal aim for the enactment of this Act was to provide a sui generis system with respect to the security of plant varieties and also to facilitate the development of the seed industry while giving protection to both the farmers and the breeders. International pressure and the changes in domestic policy led India to have its own sui generis system to protect the plant varieties. The primary issue in India is to keep a balance between the new system and the protection of the economically and socially weaker communities, especially the working-class people of rural India. CRITICISMS OF THE LEGISLATION One of the criticisms of the Act is that it was based on the UPOV model. 1 The UPOV model is 1 Sophy K. J, “Farmers’ rights under plant variety protection (PVP) legislation in India: A critical study, ROSTRUM’S LAW REVIEW, https://journal. rostrumlegal.
com/farmers-rights-under-plant-variety-protectionpvp-legislation-in-india-a-critical-study/, May 15, 2014. ” not very beneficial to a country like India. To add to this, the Act has no separate provision to protect the customary practices and the farmers' rights in India. This raised a question as to the status of the traditional techniques. Thus, the Act made the conventional farming practices considered the same as that of commercial breeding. This practice is quite questionable as the commercial breeding and customary farming practices are very different from each other. At the same time, the customary practices are formed by the knowledge and experience of farmers and have been generational practices most of the time, evolved by a co-operative effort, and are primarily observed in nature.
At the same time, commercial breeding is where all the research and development is done in labs. Therefore, it is hardly fair to keep them in the same spectrum. This Act, furthermore, does not consider the difference between traditional farming methods and commercial breeding concerning their working, concerns, and preferences. These systems do not have the same knowledge system, nor do they identify innovations in the same manner. Their rewards-giving system is also facilitated in different ways. On the one hand, where the commercial breeding industry seeks rewards in the form of financial benefits, on the other hand, the traditional farming practices do not focus on economic benefits.
Again, the conventional practices and the knowledge related to them cannot be credited to a single farmer or a single group of Farmer whereas the commercial breeding and the knowledge obtained is individualistic. 2 The Act does not consider such differences and prescribes the same procedure for the registration of farmers' variety produced via each of these two methods under the Act. Though traditional farming methods are not required to comply with all the conditions that modern commercial breeding has to comply with to register, the farmers must submit a declaration. The declaration submitted has to be produced to prove that the genetic material or the parental material procured by the farmers is all done in a lawful method.
It was argued by many saying this was an unnecessary step as most of the farming methods are traditional, and they may not have any proof for the procurement of any material. 3 Along with this, some of the conditions for registering a new variety that has to be fulfilled need technical expertise. Looking at the socio-economic condition of farmers in India, most would not be able to fulfill such situations, 2 Philippe Cullet, “Revision Of The Trips Agreement Concerning The Protection Of Plant Varieties”, 2(4), J. World Intellect. Prop 617-656, (1999).
3 “Prof. N. S. Gopalakrishnan, Protection Of Farmers’ Right In India: Need For Legislative Changes, Cochin University Law Review, pp. 105-116, 2001 which make the registration even more challenging for traditional farmers, making one think that the Act does not do much good to them for the protection of their variety. 4 When the new variety is used commercially, the revenue generated has to be maintained by the Gene Fund, and, thus, a part of such money is to be used for the maintenance of the Gene Fund. The care should be the responsibility of the Government, and the whole amount should be used for the welfare of the farmers. One of the major critiques of the Act is that when a farmer is accused of an innocent infringement of the rights of the breeders, the Farmer has to prove that the violation was clear.
However, in the general principle of law, as followed in India, the person the burden of proof is on the accuser, and such a provision of the Act violates the general principles in India. In 2011, for effective registration, two models of registration were suggested by the experts. They were registration by an individual and registered by or on behalf of the farming community by using panchayat-based systems or through registered societies. 5 The problem that arises here is that there has been no explicit explanation as to what is community hers in this case under the Act. At present, Swatantra Sainik Jaivik Krishak Samiti and Rishi Parashar Jaivik Krishi Sodh Samiti are the two farmers' communities that have been granted registration. 6 Also, registration of a new plant variety costs a hefty amount of money.
Apart from the registration fees and more statutory fees, the farmers also have to pay a DUS7 test fee which can cost up to rupees 2 lakhs. Moreover, the farmers have to pay an annual fee plus 0. 2 percent of the revenue generated by the sale of the seeds and 1 percent of royalty received in the previous year from the sale of the seeds of the protected variety. Looking at the economic conditions of farmers in India, such fee structure hampers the registration and, thus, the varieties developed by small farmers do not receive the protections under the Act. Section 39 of the Protection of Plant Varieties and Farmers' Rights Act 2001 provides that when a plant variety is protected under this Act, the farmers cannot commercially exchange the seeds
4 Phillippe Cullet, Farmers’ Rights In Peril, Frontline, 1 April 2000.
5 Kaye Lushington, The Registration of Plant Varieties by Farmers in India
A Status Report, 2(1), Review of Agragarian Studies, available at http://ras.org.in/the_registration_of_plant_varieties_by_farmers_in_india. 2012”.
6 Ibid.
7 Distinctiveness, Uniformity, and Stability
of such variety. However, one can commercially or non-commercially use the property owned by them, curtailed by this Act. Again, the seed requirement in India is majorly met by the exchange between farmers, and as per such Act, this restriction ultimately hurts the agricultural economy, and such a restriction does not have any explanation. Under section 39 (1)(iv) of the Act, the rights to utilize farm produce include seeds, but it does not have branded seeds. This means that when a seed is given to the farmers for cultivation, there is a hence that they may not return to the registered Farmer for more seeds but save those seeds for the next season. Therefore, for the registered Farmer, the economic incentive is very low. Therefore, it is imperative to create an incentive via providing formal IP rights to the registered farmers and to promote traditional breeding practices.
8 POSITIVE POSITION OF THE LEGISLATION The legislation has many loopholes, but one cannot deny that the objective of the Act was not to put the farmers on the losing side. The Act protecting all types of farmers such as breeders, seed producers, conservers, and even the consumers makes it a unique act compared with the acts of different countries on the same subject. This Act protects farmers, breeders, and researchers and provides for the equity concerns in the same legislation. 9 Apart from the loopholes, the Act has various beneficial provisions. Under Section 3 of the Act, an authority for protecting plant varieties and farmers' rights shall be established by the Central Government. The Act bestows the Authority with the duty to promote and encourage the development of new plant varieties. Also, the Authority must protect the rights of the farmers and the breeders.
Moreover, the Act provides for compulsory licensing under section
8. As per section 8 (2) (f), the Authority has to ensure that mandatory licensing is provided on
such protected varieties of such breeders who do not produce or sell the seeds in the prescribed manner. The Protection of Plant Varieties and Farmers' Rights Act, 2001, establishes a comprehensive framework for the registration and protection of plant varieties in India. A key feature of the 8 Bijaylaxmi Rathore, “India: Challenges in Plant Variety Protection in India”, MONDAQ, (March 27, 2021), https://www. mondaq. com/india/patent/1048568/challenges-in-plant-variety-protection-in-india. 9 Sarthak Gupta, “Important provisions regarding the Protection of Plant Varieties and Farmers Rights Act, 2001”, IPLEADERS, https://www. google. com/amp/s/blog. ipleaders. in/important-provisions-regarding-protectionplant-varieties-farmers-rights-act-2001/amp/ Act is the creation of a National Register of Plant Varieties at the registry's head office.
This register contains detailed information about each registered plant variety, including the breeder's details and the specific rights associated with that variety. This system provides breeders with documented evidence that is crucial in enforcing their rights, particularly in legal disputes. The availability of such detailed records in the National Register ensures that breeders can easily invoke their rights if infringed, thereby strengthening the protection of intellectual property in agriculture. Section 15 of the Act outlines the conditions that must be met for a new plant variety to be registered. One of the critical requirements is that the plant variety must be novel, meaning it has not been previously registered. This novelty requirement ensures that each registered variety is unique, preventing the re-registration of simple mutations of existing varieties.
This stipulation not only safeguards the originality of plant varieties but also encourages ongoing research and development in the field of plant breeding. However, the registration process can be challenging for small-scale farmers. The Act's conditions for registration require technical knowledge and resources that many farmers may not possess. Despite this, these conditions are necessary to maintain the integrity of the registry and to prevent the registration of substandard or frivolous varieties. By setting a high bar for registration, the Act promotes the development of high-quality plant varieties that can contribute to agricultural innovation and sustainability. Overall, the National Register and the conditions for registration under Section 15 play a vital role in protecting breeders' rights while encouraging the development of new and innovative plant varieties in India.
The Act also provides for a series of rights to every kind of Farmer, which was not given before. They can be classified as:
1 Breeders' Rights
The exclusive right to produce, market, sell, distribute, import, or export a protected variety is given to the breeders under this Act. In case of the infringement of the rights, the breeders may exercise civil remedy and appoint an agent/ licensee.
2 Researchers' Rights
The right to use any protected variety for research or an experiment is also provided under the Act. The right also includes the use of a variety for producing a new variety. However, when the protected variety is used repeatedly, it has to be done with the prior permission of the registered Breeder.
3 Farmers' Rights
A farmer under the Act has several rights. When a farmer develops a new variety, after its registration, a farmer will have the same rights over the protected variety as that of a breeder of a protected variety. The farmers can utilize their farm produce, including seeds, the way they have been using them before the Act came into force. The Act does not encroach upon the pre-established rights of the farmers. Also, the Act provides for compensation to the farmers for nonperformance of the variety under section 39 (2) of the Act, and any proceeding before the Registrar or Authority or Courts or Tribunals, the farmers are not liable to pay for any fee. India prohibits breeders from using sterile seed technology. While registering, the breeders must submit an affidavit that their variety does not contain GURT10 or terminator technology.
Terminator technology means that genetically modified crops and their seeds are made sterile. That means the seed of such genetically modified crops will not be able to germinate. JUDICIAL PRONOUNCEMENT Emergent genetics India (P) Ltd. versus Shailendra Shivam11 The Seed Act 1966 has an inadequate framework for the seed commercials sold. Hence, the quality of such seeds is unregulated in India. Since there has been a change in India's seed and farming sector, a new regulation for the regulation was needed. The PPVFRA may be one such regulation as it regulates seed quality prominently. In this case, the Court held that forever, the farmers in India have been producing seeds locally. Also, agriculture is the livelihood for a large portion of the population. In India, 75% of the seeds for agriculture are produced by the peasants and farmers themselves.
The Act provides the farmers the right to use, save, exchange, share, sell, and sow or re-sow the farm produce. The farm produce over which the farmers have been bestowed such rights also includes seeds.
10 Genetic Use Restriction Technology
11 47 PTC 494 (Del)
The Court further observed that when any registered material is sold, the Breeder must disclose the fact to the Farmer under this Act. This is done so that the farmers can predict the performance and claim compensation in case of failure to provide the same. The Court held that the Act provides a decent regulatory framework for seeds that the Seed Acts could not offer. The Court further adds that the Act also does not provide for the patent of the seeds, which is beneficial for small farmers as if such a patent were provided, all the big firms and corporations would file for a patent, and the livelihoods of the farmers would be negatively affected. Thus, the Act protects the integrity of agriculture. Pioneer Overseas Corporation versus Chairperson, Protection of Plant Varieties and Farmers' Rights and Ors and Pioneer Overseas Corporation versus Union of India and Ors.
Order dated July 1, 2019 In this case, the Delhi High Court passed a landmark judgment. The High Court held, in agreement with the Petitioner, that in exceptional circumstances, including for the determination of the rightful owner of the protected plant variety, special tests such as DNA tests can be conducted. This is considered a significant judgment as the Delhi High Court removed the sole dependency on the DUS tests. As per the Plant Variety Authority, DNA tests were conducted only after the DUS tests failed. This is their interpretation of section 19 of the Act read with Rule 29(2). This interpretation was held to be full of errors by the Delhi High Court in this judgment. The Court, in this judgment, has clarified a procedure to be followed for the registration of a variety. This procedure is given for the Plant Variety Authority to follow.
Accordingly, the Delhi High Court provided for the following steps to be followed:
1. As per section 19, the Authority has to conduct a DNA test before accepting the
application for the plant variety registration. Then, and only after that can it be advertised under section 20 of the Act.
2. Also, the Court said that the DUS tests are not binding, and any objector can
question such tests. This means that even if the variety fulfills the DUS test, it can still be challenged.
3. Also, when the applicant does not file counter statements to the Opposition in the
statutory time, nor it pleads for extension, the application would be deemed to be abandoned.
CONCLUSION
A complex legal structure and framework are provided by the Protection of Plant Varieties and Farmers' Rights 2001 for farmers' rights and the registration of the plant varieties. While many features of this Act are beneficial, some features and provisions of this Act negatively affect the farmers and, thus, the agriculture. Moreover, the Act does not provide for many essential regulations. Although the Act has theoretically made the farmers' varieties most important, the same level of protection as intended is not offered practically. One of the rights which the farmers' get under this Act is that a piece of preliminary information has to be provided to the owner of the registered variety.
When a new variety is created via an already registered variety while seeking protection of intellectual rights, the proof that the owner of the original variant has consented to this has to be shown. However, other than this, the Act does not provide for any other instance where prior informed consent is to be needed. One of the major problems which is an obstacle in the protection of plant varieties and the implementation of this Act is lack of awareness. Therefore, there is a need to create awareness among the farmers and breeders, scientists, researchers, village communities, and the private seed sector. All the organizations involved in developing new varieties must have the Act among them circulated, whether directly or indirectly.
For farmers and the village communities, the awareness regarding the Act's provisions must be announced through mass public media such as radio, television, the Internet, and the vernacular press. Moreover, it may be more accessible to aware of the persons required about the Act by establishing a Standing Committee for the purpose. Also, resource centers should be set to ensure that the farmers get their rights as bestowed upon them by the Act. 12 The Protection of Plant Variety and Farmers Rights Act, 2001 has not yet gained momentum in India. Though a separate statute, it is still evolving, with courts putting their takes in different cases concerning the statute. However, it is a kind in terms of statutes providing formal rights 12 “Brahmi, Pratibha & Saxena, Sanjeev & Dhillon, Baldev. (2004). The Protection of Plant Varieties and Farmers’ Rights Act of India. Current Science 86.
to farmers without jeopardizing their self-reliance. 13 The fact that India did not accept the UPOV model and made a sui generis system for the protection of plant varieties is a commendable action. The implementation of the Act is not very effective, and awareness has to be created so that the farmers and other persons enjoy their rights under this Act. With the advent of rapid privatization, the mere acknowledgment of the importance of traditional farming methods would not save the same. The legislature has to actively work to fix the loopholes of the Act and simultaneously to frame a seed policy under a separate statute to strengthen the Act further. So many provisions in the Act are ambiguous, and there is a discord between the rights of the farmers and the breeders. The Act has a long list of limitations, but applications for the registration of plant varieties are continuing.
In 2012-13, a total number of 1,359 applications were filed to register the farmers' varieties. Additionally, the concerns regarding the protection of farmers' rights and their protected manner remain unresolved. It is hoped that the legislation does not hamper the traditional cultural practices of agriculture.
13 S. Mulage, Plant Variety Protection in India
An Alternative to Patents, LEGAL SERVICE INDIA, http://www.legalservicesindia.com/article/1393/Plant-VAriety-Protection-In-India-An-Alternative-To- Patents.html”.