Table of Contents
Abstract
India has been introduced to Intellectual Property Rights (IPR) from the time of the British rule. However, IPR laws were gradient internationally which caused trade tariffs to sky rocket and hindered the process of globalization. Developing countries such as India were forced to use a protectionist form of economy to protect local innovations and pave their growth. Developing countries, furthermore, could not bear the cost of Research and Development (R&D) which created stagnancy in the field of innovation and technology.
To tackle this problem, the World Trade Organisation formulated the The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which lays down minimum standards to be followed by countries while formulating their IPR. TRIPS allows a patentee holder to commercialise their innovation and raise funds for further R&D. It also designed a platform through which information can be easily accessible and patented products were allowed further research.
However, critics have raised concern worldwide regarding some of the principles laid down in this agreement. It was criticized for being inclined towards advancing developed countries on the expense of the developing nations. Developing nations protested that the legal standards of IPR set by the agreement were too high for their countries and evidence further showed that weak IPR protection was required in developing countries to stimulate development and poverty alleviation. India falling within the parameters of a ‘developing nation’ and also being a member of the TRIPS agreement is at a high risk of being exploited. According to the Food and Agriculture Organisation (FAO) of the UN in India, 70% of the Indian rural population still depends on agriculture as a primary mode of livelihood; hence it is very important for the government to formulate farmer friendly IPR policies.
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Article 27(b) of the TRIPS agreement states that all member states are required to protect plant variety through patents or a ‘sui generis’ system. However it failed to specify what a ‘sui generis’ system is and left it open to interpretation. India formulated the Protection of Plant Variety and Farmer Rights Act, 2001 (PPV&FR) as its sui generis system of IPR. This also gave birth to international conventions such as the Union of the Protection of New Varieties of Plants Convention (UPOV Convention) which was designed to promote genetically uniform industrial agriculture and was in compliance with WTO’s agenda of trade maximisation. However, the convention provides a monopoly of rights to breeders and excludes the farmers.
On May 31, 2002 the Indian Cabinet approved the decision of the government to seek accession to the UPOV, however, India emphasises that it is not a member of UPOV and states that it is under no legal obligation to do so. In this paper we are going to analyze the conflict between UPOV and implementation of farmer rights in its member states furthermore, we will be looking into the impact of implementation of Seed Bill in India, under the light of the same. The research method applied is literature reviewing. Related laws, regulations, journals and publications of international organizations provide the data and information used in this paper.
Introduction
We understand that most plants grow only in a specific geographical location and are climate specific. For a plant to be able to adapt in conditions not habitual to it, farmers need to select a hybrid plant which is capable of cultivation in a different geographic setting from within the species which is known as ‘plant variety’. Through the TRIPS Agreement, 1951, protection of plant variety was mandatory upon all the member states, through a patent procedure or a sui generis system. However, the agreement did not lay down specific guidelines that needed to be followed by developing and developed nations. The only condition stipulated was that all developed member states must create laws in accordance with the agreement by 1996 whereas, developing member states had to by 2000-20005.
With leisure of interpretation, the developed countries framed laws to empower breeder rights and strengthen plant variety governance. On the other hand developing nations wanted to frame laws in a manner to defend both breeder and farmer rights while also strengthening indigenous trade and market structure. Since, the
The developed nations created a UPOV (Union for the Protection of New Varieties of Plants) system of plant variety protection that came into being with the adoption of the International Convention for the Protection of New Varieties of Plants by a Diplomatic Conference in Paris on December 2, 1961. The UPOV Convention provides the basis for members to encourage plant breeding by granting breeders of new plant varieties an intellectual property right: the breeder’s right. under this convention the breeder gets full commercial control over the reproductive material.
This means that farmers growing PVP varieties are prohibited from selling the seeds they harvest from the crop, and, increasingly in many UPOV member countries, from saving and exchanging seeds on a non-commercial basis. It also means that farmers pay royalties on every purchase of seeds. Furthermore, only licensed growers can multiply the variety for sale. Under the terms of the 1978 Act, UPOV makes two exceptions to the commercial monopoly. Farmers are allowed to save seed for their own use and breeders are allowed to freely use PVP varieties to develop newer ones. These exemptions are restricted in the 1991 Act.
The UPOV convention was amended three times, 1972, 1978 and 1991. In his paper, Mr. Ruby bridges the three papers He states that while the 1961 convention set a criteria for a plant to be considered of a different variety, the latter laid down provisions to protect varieties that did not meet this criteria. He also points out that while the 1991 Convention strictly applies protection for all genera and species, the 1961/1972 Convention is centred on protecting the genera and species provided in ‘the list annexed to the Convention”. He furthermore shows the development of the convention by showing how the 1961/72 & 78 conventions only stated provisions protecting breeder rights, the 1991 convention outlined exemptions to breeder rights. Lastly, he states how all conventions required domination has a mandatory requisite for the grant of breeder rights. The UPOV78 provides for more balance between breeder and producer rights whereas UPOV91 is more breeder centric and exempts “farmer privileges”.
Although many conventions such as the Convention of Biological Diversity, 1992 (which promotes sustainable development) and The International Treaty on Plant Genetic Resources for Food and Agriculture,(also known as ITPGRFA, International Seed Treaty or Plant Treaty ) are in contravention of the UPOV convention, the UPOV convention has 72 member states. In my opinion, this is due to the heavy competition that is created on the international platform that gives importance to patents for securing investments. Although the TRIPS agreement does not mandate the UPOV convention, it promotes and encourages the same to achieve highest trade benefits and R&D investments.
Impact of the UPOV Regime in Developing States
The UPOV standards of IPR work in developed countries because most of the seed producers are multinational companies, who through the process of merging and acquiring smaller companies have monopolized seed production and distribution. However, this process cannot be followed in developing nations because there are no small scale companies. The seed production is dominated by the farmers and the only way to monopolize it would be through eliminating their rights completely.
It has been seen that strong IP exporter countries set high standards of IPR to protect their material, however, weaker IP importer countries do not have such stringent laws in place and are denied the opportunity of trade, enter into treaties and receive investments. To overcome this gap, weaker IP countries implement laws in accordance with international conventions in haste and such was the case with Chile.
David James Jefferson, in his paper ‘Development, farmers’ right, and the Ley Monsanto: the Struggle over the ratification of the UPOV 91 in Chile’ explains in detail why Chile’s decision to become a signatory of the UPOV91 Convention was criticized by the country.
In his paper, he says, Chile was already a signatory to the UPOV78 Convention, however when it entered into free trade this was brought to question. Firstly, in 2004 and 2003, respectively both the US and European Union demanded that the national laws of Chile be in compliance with the TRIPS Agreement. After that, in 2009 when Chile tried to enter into a FTA with Japan, it required that both parties be signatory to the UPOV91 Convention. When Chile did not comply with this, the USA and Japan threatened to terminate the FTAs. The then president Mechelle Bachelet introduced a bill in the Congress in January 2009, but due to heavy criticism was not passed. The bill was introduced for a second time in May the same year and received accent from the Congress and two years later the senate passed it as the ‘Protection of Breeder Law’
The Law 19.342 stated that the right of breeders shall not be deemed violated by any use made by a farmer, on his own farm, of the harvest from properly acquired reproductive material. On no about, however, may such material be advertised or transferred by any legal title as seed. It allows farmers to save and use harvested material under certain quantities (not exceed the original acquired amount) on their own holding and sell to the third parties for only final use or consumption purpose. But, the traditional grain dealer model in Chile is not included in this exemption because grain dealers are not belonging to the final use group or consumption group.
David James spoke about how Chile broke into mayhem of protests and was recorded in over 15 cities. The law faced a great deal of pushback from both the rural population who stated that this would take over their indigenous practices while restricting ownership and retention over seed and the senate. The law gave rise to a series of political turmoil with ripples extending into the next 3 years.
China, a developing country who is a signatory to the UPOV78 has been receiving international pressure to formulate national laws compatible with the UPOV91 Convention. However, the Chinese government has stated that they are undergoing a transitional phase and would not want to take any decisions hastefully and wind up in a situation like Chile. China has made it clear that despite being a signatory, they will formulate laws keeping in mind the practical and cultural knowledge the farmers bring to the production of material. Following that, in 2015, China introduced a Seed Law, compatible with the standards set by UPOV91 Convention while also being locally gradient.
Shiyu Gu, a student of Wageningen University and Research Centre published an article, drawing the comparison between the Chinese Seed Act and the UPOV91 while also highlighting how China has secured farmer rights. It draws comparison between Article 29 of the UPOV91 Convention and Article 19 of the Chinese Seed Act, stating that while the UPOV91 restricts farmers from holding and use/sale of seeds, Article 19 of the Seed Act does not restrict sale of seeds by farmers only for commercial purpose. He further goes to state that the Chinese Seed Law has no special catalogue prescribed under ‘farmer privileges’. While this may seem to be in the interest of securing farmer rights, the Shareholders in the Chinese seed sector have seriously criticized this exemption. It is in the best interest of the Shareholders that a new variety of plant be protected. If a special catalogue is not prescribed, farmers may be under the impression that there are no restrictions on their privileges. Furthermore, the Seed Act does not define and classify farmers.
The Author goes to compare the situation of China with that of Chile and says half a billion people in China depend on agriculture as their primary livelihood and moreover, the need of farmers for the production of food cannot be ignored (especially in developing countries). He says that when Chile implemented the PVP standards set by the international community, it cut out the small sector-holders completely leading to stagnancy in production and annihilation of farmer rights.
Lastly, He says that China should classify farmers into distinguished categories and set royalty to be paid accordingly.
Kenya is another developing country forced to comply with the UPOV91 standards. Kenya thrives on small-scale production and distribution of seeds. Sub-Saharan Kenya constitutes up to 80% of the farms in Africa and 90% of the food produce and the farm saved seed amount to of the seed requirement and hence it is very important for Kenya to protect its farmer’s privileges.
The paper written by Tom Kabu and AngelaMutema talks about the implementation of international obligations in Kenya. The co-authors start by saying that the international obligations which are determined to uplift breeder rights, pose as a threat to the citizens of Kenya because breeders do not form a coherent whole. Kenya was baited into ratifying the UPOV61 Convention through the idea of commercializing the private sector and thus being able to provide better resources for its citizens. However, gradually the UPOV Convention was amended and the balance between breeder and farmer rights became completely lopsided. The UPOV91 Convention completely eliminated the farmer privileges. Moreover, through the 2010 Constitution of Kenya, the international conventions shall be enforceable even if there are no similar regional laws .
The direct implementation of the UPOV91 Convention takes away the right of farmers to seed sharing which is essential in achieving food security and economic prosperity in developing countries. It also increases the price of seeds making access to them difficult.
The authors have cited treaties and conventions such as The International Undertaking on Plant Genetic Resources,1983, The 1992 Convention on Biological Diversity and the The 2001 International Treaty on Plant Genetic Resources for Food and Agriculture which try to promote sustainable development and sovereignty of state over natural resources. However, these international conventions do not have binding power and act only as a ‘soft law’.
