PROTECTION OF FARMERS’ RIGHTS

UNDER INTELLECTUAL PROPERTY

RIGHTS
A Dissertation Report

Submitted by
SHUBHANSHU SINGHAI
In partial fulfilment for the award of degree

Of
B.A. LL.B (H)
IN
INTELLECTUAL PROPERTY LAW

AT
AMITY LAW SCHOOL
AMITY UNIVERSITY RAJASTHAN
JAIPUR

Submitted By Supervised By
SHUBHANSHU SINGHAI MS. MUKTI JAISWAL
B.A. LL.B (HONS) ASST. PROFESSOR
2013-2018 AMITY LAW SCHOOL
A21511113051

MARCH- 2018
 AMITY LAW SCHOOL

AMITY UNIVERSITY RAJASTHAN

JAIPUR

ACKNOWLEDGMENT
The present dissertation had been to get its final shape with the help and support of my
family, faculties and friends at Amity Law School, Jaipur. My most heartfelt thanks goes to
all the folks with whom I have discussed and debated over the various aspects adjoining to
the current title of the present dissertation would have been difficult to accomplish this
research work without their support and guidance.

With immense pleasure, I express my deepest sense of gratitude to Rear Admiral H. Gupta
(Retd.), Dean at Amity Law School, Jaipur for permitting me to undertake such interesting
research work in the area of International Law. Also, I would like to sincerely acknowledge
the continuous support of my guide Asst. Prof. Ms. Mukti Jaiswal for her continuous
evaluation, comments and Asst. Prof. Mr. Nitya Nand Pandey for his insights of my work for
this dissertation.

SHUBHANSHU SINGHAI

B.A LLB (H) 10th Sem.

i
 DECLARATION

I, Shubhanshu Singhai, the author of this ‘Doctoral Thesis’, solemnly declare that, the
content of present ‘Thesis’ entitled, “PROTECTION OF FARMERS RIGHTS
UNDER INTELLECTUAL PROPERTY RIGHTS”, are original and outcome of
my independent research. To the best of my knowledge and belief no one has so far has
been awarded the degree of B.A.LLB hereto before, on the same topic.

I have completed my research work under the supervision of my guide Asst. Prof. Ms.
Mukti Jaiswal, Faculty of Law, Amity Law School, Amity University Rajasthan,
Jaipur.

PLACE: JAIPUR SHUBHANSHU SINGHAI

MARCH 2018

ii
 AMITY LAW SCHOOL

AMITY UNIVERSITY RAJASTHAN

JAIPUR

CERTIFICATE
This is to certify that the work entitled “PROTECTION OF FARMERS RIGHTS
UNDER INTELLECTUAL PROPERTY RIGHTS” is a bonafide piece of work done by
SHUBHANSHU SINGHAI (A21511113051) under my guidance and supervision for the
award of degree of Bachelor of Arts and Bachelor of Legislative Law (Honours) at Amity
University Rajasthan, Jaipur, during year 2013 – 2018. The Candidate has put in attendance
of more than 45 days with me.

To the best of my knowledge and according to her declaration belief the thesis:

1. Embodies the work of the candidate himself;

2. Has duly completed;
3. Fulfils the requirements of the ordinance relating to the Law Degree of the university;
and
4. Is upto the standard both in respect of content and language for being referred to the
examiner.

Place: Jaipur Asst. Prof. Ms. Mukti Jaiswal

March 2018 Amity Law School

Amity University Rajasthan

iii
 ACRONYMS

ABS - Access and Benefit Sharing

BDA - The Biological Diversity Act, 2002 (India)

BMC - Bio-diversity Management Committee

CBD - Convention on Biological Diversity

CED - Centre for Environmental Development

CoFAB - Convention of Farmers and Breeders

COP - Conference of the Parties

CPGR - Commission on Plant Genetic Resources

DNA - Deoxy Ribonucleic Acid

US - Distinctness, Uniformity and Stability

DUSN - Distinctiveness, Uniformity, Stability and Novelty

EDV - Essentially Derived Variety

EEC - European Economic Community

EPC - Europe Patent Convention

EU - European Union

FAO - Food and Agriculture Organization

FNI - Fridtjof Nansen Institute

FSR - Force Sensitive Register

FTAs - Free Trade Agreements

FR - Farmers’ Rights

GATT - General Agreement on Tariffs and Trade

iv
GE - Genetically Engineered

GM - Genetically Modified

GPIW - Global Peace Initiative of Women

GURT - Gene Use Restricting Technology

ICI - International Congress of Immunology

ICTSD - International Centre for Trade and Sustainable Development

IP - Intellectual Property

IPAB - Intellectual Property Appellate Board

IPRs - Intellectual Property Rights

ITPGRFA - International Treaty on Plant Genetic Resources for Food and Agriculture

IUPGR - International Undertaking on Plant Genetic Resources

JPC - Joint Parliamentary Committee

LDCs - Least Developed Countries

MFN - Most Favoured Nation

MLS - Multi-Lateral System

MNCs - Multi-National Companies

MSSRF - M.S. Swaminathan Research Foundation

MTNs - Multilateral Trade Negotiations

NBA - National Biodiversity Authority

NDUS - Novelty, Distinctiveness, Stability and Uniformity

NGF - National Gene Fund

NGOs - Non-Governmental Organisations

PBR - Plant Breeders’ Rights

v
PCT - Patent Cooperation Treaty

PGR - Plant Genetic Resources

PGRFA - Plant Genetic Resources for Food and Agriculture

PIC - Prior Informed Consent

PNPV - Positive – Negative Pressure Ventilation

PPA - Plant Patent Act

PVPFRA - Plant Varieties Protection and Farmers’ Rights Act (India)

PTC - Patent and Trade Mark Cases

PVPA - Plant Variety Protection Act

PVPFR - Plant Varieties Protection and Farmers Rights

R&D - Research and Development

RPC - Report of Patent Cases

RRs - Researcher's Rights

SAI - Seed Association of India

SAP - System Applications and Products

SBB - Science Based Business

SWOT - Strengths, Weaknesses, Opportunities and Threats

THB - Trafficking in Human Beings

TK - Traditional Knowledge

TRIPS - Trade Related Aspects of Intellectual Property Rights

UK - United Kingdom

UNDP - United Nations Development Programme

UNEP - United Nations Environmental Programme

vi
UNTS - United Nations Treaty Services

UPOV - International Union for the Protection of New Plant Varieties

US - United States

USA - United States of America

USPTO - United States Patent and Trademark Office

WIPO - World Intellectual Property Organisation

WTO - World Trade Organization

vii
 LIST OF CASES

 Cultivaust (P) Limited v. Grain Pool (P) Limited, [2005] FCAFC 223. Federal
Court of Australia
 Diamond v. Chakrabarty, 447 US. 303 (1980)
 Hoffman v. Monsanto Canada Inc., 2005 SKQB, 225
 Maharastra Hybrid Seeds Co., Ltd., v. Union of India (2013) 54 PTC 528
 Mentor Corp & another v. Hollister Inc. [1993] R.P.C. 10
 Merck & Co. Inc V. Canada (Attorney – General), 2000 Can L II 15094, Federal
Court of Appeal
 National Association of Home Builders v. Babbitt, 130 F 3d 1041 (D.C. Cir. 1997)
 Pan-American Plant Co. v. Matsui, 433 F. Supp 693 (N.D. Cal 1977).
 Society Technique Pulverisation Step v. Emson Europe Ltd & others, [1993] R.P.C.
519
 Sun World International Inc v. Registrar, Plant Breeder's Rights, (1998) 42 IPR
321
 Wind Surfing Inc. v. Tabur Marine (Great Britain) Limited, [1985] R.P.C. 60
 Yoder Brothers, Inc. v. California-Florida Plant Corp., 537 F2d 137 USPQ 264 (5th
cir.1976)

viii
 OBJETIVE OF THE STUDY

The objectives are as follows:

1. To elucidate the historical evolution of intellectual property rights on plants.

2. 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.
3. To examine the role of UPOV Convention in protecting the plant breeders and the
farmers.

ix
 STATEMENT OF PROBLEM

1. Whether the PV and FR Act, 2001 protects the rights of farmers and plant breeders or
not?
2. Whether UPOV Convention is protecting the interest of farmers or not?
3. Whether benefit sharing mechanism in the form of royalty to farmers is working
properly or not?

x
 HYPOTHESIS

Hypothesis is the tentative statement made while doing the research work or it is also called
as predictive statement made by the researcher.

1. 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.
2. UPOV Convention is protecting the interest of corporate plant breeders instead of
farmers.
3. The ‘benefit sharing’ mechanism in the form of royalty to farmers when their varieties
are used for breeding new varieties is not properly working.

xi
 RESEARCH METHODOLOGY

The method of research used is Doctrinal research. It is descriptive and analytical by nature.
The research is based on primary and secondary sources. Relevant material from primary
sources is collected from statutory provisions of the relevant legislation and court decisions.
In case of secondary sources, material is collected from scholarly commentaries, articles,
research reports, government documents etc. The research is focused predominantly on
secondary sources.

xii
 TABLE OF CONTENTS

Chapter No. Title Page

no.
Acknowledgement i

Declaration ii

Certificate iii

Acronym iv

List of Cases viii

Object of the study ix

Statement of Problem x

Hypothesis xi

Research Methodology xii

Chapter- 1 INTRODUCTION 1

1.1 Agriculture and IPR 1

1.1.1 IPR Laws in India 4

Chapter- 2 CONCEPTUAL ANALYSIS OF FARMERS’ RIGHTS AND 7

ITS GENESIS

2.1 Introduction 8

2.2 Need for the Protection of Farmers’ Rights 8

2.3 Historical Development 9

2.4 UPOV Conventions and Farmers’ Rights 11

2.5 TRIPS Agreement and its Ramifications for India 12

2.6 Plant Varieties Protection and the Intellectual Property Legal Regime 13
in India

2.7 Farmers’ Rights and Policy Making 13

xiii
2.8 Farmers’ Rights and New Seed Policy 14

Chapter – 3 PROTECTION OF FARMERS’ RIGHTS AND 16

INTERNATIONAL LEGAL FRAMEWORK

3.1 Introduction 17

3.2 Paris Convention 1883 17

3.3 UPOV Conventions – Objectives 18

3.3.1 Member of UPOV 19

3.3.2 Activities of UPOV 19

3.4 UPOV, 1961 20

3.5 UPOV 1972 Amendment Act 21

3.6 UPOV 1978 Act 22

3.6.1 Subject Matter / Requirements 22

3.6.2 Eligibility Requirements 23

3.7 UPOV Convention of 1991 26

3.7.1 The 1991 UPOV Act 26

3.7.2 Subject matter requirements 26

3.7.3 Eligibility Requirements 27

3.8 The Trade Related Aspects of Intellectual Property Rights 30

Agreement (TRIPS) 1994

3.9 TRIPS as a Spur to Plant Varieties Protection 32

3.10 Plant Varieties Protection under TRIPS 32

3.11 Convention on Biological Diversity 35

3.12 TRIPS and Convention on Biological Diversity 36

Chapter- 4 AN INTRODUCTION TO PLANT VARIETIES PROTECTION 38

AND FARMERS’ RIGHTS ACT, 2001

4.1 Introduction 39

xiv
 4.1.1 Intellectual Property Rights in Plant Varieties 39

4.2 TRIPS Agreement and Plant Varieties Protection 40

4.3 Justification for Protection 41

4.4 The Genesis of the Indian Legislation 42

4.4.1 Background for the enactment of PVP Legislation 42

4.4.2 History of PVP Legislation 44

4.5 Objectives of the Act 46

4.6 Conceptual Definitions 47

4.7 Coverage of Varieties 50

4.8 Conditions for Protection 51

4.9 Authorities under the PVP FR Act 53

4.10 Plant Varieties Registry 55

4.11 Registration of Plant Varieties 55

4.12 Effect of Registration 59

4.13 Non-Registrable Varieties 61

4.14 Rights of breeders 63

4.15 Farmers’ Right 63

4.16 Farmers’ Right Similar to Commercial Breeders Right 64

4.17 Right to Seed 65

4.18 Researchers’ Rights 65

4.19 Benefit Sharing 65

4.20 Compulsory Licensing 66

Chapter- 5 RIGHTS OF FARMERS UNDER THE PLANT VARIETY 72

PROTECTION AND FARMERS’ RIGHTS ACT, 2001 AND
INTELLECTUAL PROPERTY RIGHTS

Introduction
5.1 73

xv
5.2 Farmers' Rights 74

5.3 Evolution of Farmers’ Rights 75

5.4 Food and Agriculture Organization (FAO) and Farmers’ Rights 78

5.5 Farmer – Definition 80

5.6 Deficiency in the Farmers' Rights Concept 82

5.7 The Emergence of Farmers’ Rights in India 84

5.8 PVPFR Bill 1999 and Farmers’ Rights 86

5.9 Farmers’ Right under the PVP and FR Act 2001 87

5.10 Protection of Interests of Farmers 89

5.11 India's Protection of Plant Varieties and Farmers' Rights Act 90

5.12 The Nine Rights of Farmers 91

5.12.1 Right on Seeds 91

5.12.2 Right to Register Traditional Varieties 92

5.12.3 Right for Reward and Recognition 92

5.12.4 Right for Benefit Sharing 93

5.12.5 Right to get Compensation 94

5.12.6 Protection against Bad Seed 95

5.12.7 Farmers' Right to receive Compensation for Undisclosed use of 95

Traditional Varieties

5.12.8 Farmers' Right for the Seeds of Registered Varieties 96

5.12.9 Farmers' Right for Receiving Free Services 96

5.12.10 Farmers' Right for Protection Against Innocent Infringement 97
5.13 Importance of Farmers' Right to Sell Seed 97
5.14 Other kinds of Farmers' Rights in the 2001 Act 98
5.15 Clauses that Need Amendment 99
5.16 Position of Farmers’ Rights in Asian Countries 101

xvi
Chapter- 6 CONCLUSIONS AND SUGGESTIONS 104

6.1 Introduction 105

6.1.1 IPR and Protection of Farmers’ Interests 105

6.1.2 The Urgency of Genetic Conservation and Indigenous Rights 106

6.2 Summary of Findings 107

6.2.1 UPOV and Farmers’ Rights 109

6.3 UPOV Convention and Farmers’ Privilege 111

6.3.1 Inadequacies of the Legislation - PVP and FR Act, 2001 112

6.3.2 Right to claim Compensation 115

6.3.3 Protection for innocent infringement 115

6.3.4 Biological Diversity Act, 2002 116

6.4 Suggestions and Recommendations 118

6.4.1 Farmers’ Rights 119

6.4.2 Breeders’ Rights 120

BIBLIOGRAPHY 126

xvii
 CHAPTER: 1

INTRODUCTION

1
 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. 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. 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. 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.

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.1

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

1
Anitha Ramanna, Farmers’ Rights in India - A case study, FNI Report 2006, Norway, p.vii.

2
varieties of plants, held by farmers, NGOs and public sector institutions. 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 exploration of possible outcomes. The potential implications of
the Indian law have 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

3
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.

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, 1970:

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
nondisclosure 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:

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

4
purpose of regulation of biological diversity. 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 biopiracy, 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:

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:

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

5
granted to the American Company Rice Tec, on its claim of producing basmati rice grains.2
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.

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.

2
Rice Tec Inc. a Texas Based Company (Patent Number : 5663484) received patent for aromatic Basmati Rice
for American Government. Ultimately India won the case.
6
 CHAPTER: 2

CONCEPTUAL ANALYSIS OF FARMERS’ RIGHT AND ITS GENESIS

7
 2.1 Introduction:

Agriculture is a way of life for the third world farmers and its transformation to the industrial
process can affect their very survival. The present advances have resulted in a situation where
agriculture has shifted from land to the laboratory. While assessing the advantages of plant
breeding, the disadvantages have also to be considered and safeguards have to be
incorporated adequately in order to avoid these problems.

2.2 Need for the Protection of Farmers’ Rights

One of the most important challenges that mankind must face in the coming years is to feed
the entire world population. Land area available for agriculture will decrease in many regions
because of urbanization and industrialization. So it is necessary to at least double the current
level of agricultural production. It will be very difficult to achieve this level of production
through an increase of land area in cultivation. The only solution therefore is to increase
productivity per unit area.

Today, plant improvement is an important sector of activity based on the exploitation of

existing genetic diversity. Appropriate technologies developed from the results of the
research base are also being utilized. This permits the continuous development of new and
better performing varieties that are adapted to the current needs of the world. Plant
biotechnology seeks to address the issues posed by the concern for food security, pests,
improved productivity and quality. Breeders have benefited from the developments in
biotechnology.

Genetic modification is an important tool for breeders to develop new varieties of plants.
Genetic modification can be explained as the process by which genes are introduced into
organisms in a different way than that found in nature. It is increasingly becoming an
important new tool for breeders in their quest to improve plant varieties. Before the advent of
genetic engineering, new plant varieties were obtained by traditional breeding methods like
selecting and crossing plants having improved traits. Today the scenario has changed and the
methods of classical breeding have been replaced to a certain extent by genetic engineering.

Intellectual property system has been termed as one of the cornerstones of modern economic
policy. Intellectual property deals with creations of human intellect. The protection of

8
intellectual property rights enables countries to participate in international trade. Intellectual
property rights have acquired increased prominence at both national and international level.
The system of intellectual property protection is intended to strike a balance between the
rights of the holders and the public at large. Effective intellectual property rights recognize
and encourage the work of plant innovators. They create incentives for investment in research
and development.

2.3 Historical Development

The Paris Convention of 1883 was the first multilateral agreement for harmonizing IP laws.3
It extended protection to industrial property, which was recognized and applied to
agricultural and extractive industries as well as to manufactured or natural products.4 The
next fifty years witnessed various attempts by different countries in Europe to extend IP
protection to the field of agriculture. These involved recognition to the seeds and seedlings,
introduction of a register for newly bred plants and setting up of a Seed Association as well
as a Seed Control Committee.5 However, the first attempt to recognize the intellectual
property right (IPR) of a plant breeder was the enactment of the Plant Patent Act by USA in
1930 (ref.5). This Act aimed at protecting asexually propagated plants by patents. However,
this enactment also fuelled debate regarding the type of IPR protection to be extended to
agriculture. Two divergent views emerged; one was to extend patent protection to plants
while the other was to extend the sui generis protection, recognizing plant breeder’s right.

In the early part of the 20th Century, in the United States and European countries,
agriculture became less important economically and governments started to progressively
reduce their involvement in activities related to the development and supply of seeds to
farmers. This led to the development of more significant private sector seed industries.
However, its expansion was curtailed by the nature of seeds which can, once purchased, often
be reused for several generations by farmers. This led to the call for a legal protection of plant
varieties. There were several obstacles to the introduction of patents for plant varieties,
3
WIPO : Intellectual Property Handbook : Policy, Law and Use http://www.wipo.int/ export/sites/www/about-
ip/en/iprm/pdf/ch5.pdf#paris
4
Paris Convention, Article 1 (3), Industrial property shall be understood in the broadest sense and shall apply
not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all
manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters,
beer, flowers and flour.
5
Dhar Biswajit, Suit generis systems for plant variety protection, http://homepages. 3-c.coop/tansey/pdfs/sg-
coll.pdf
9
firstly, from factors opposed in principle to the introduction of patents on life forms.
Secondly, there was opposition to what was perceived as the progressive privatization of
seeds which had been traditionally exchanged by farmers. Thirdly, there was significant
opposition from advocates of the patent system who saw a new 'plant variety' as more like an
improvement of an existing product of nature than as a scientific invention. The combination
of this led to the development of a hybrid form of intellectual property rights known as "plant
breeders’ rights" which received recognition in 1961 in the UPOV Convention, revised first
in 1978 and strengthened later in 1991.6

European countries instituted separate plant variety protection laws, as patent

law was considered to be unsuitable for this purpose. In 1941 and 1953 respectively
the Netherland and Germany granted limited protection to breeders to exclusively
market the seeds of protected varieties.7

Luther Burbank, the American Breeder of 800 new cultivars died in 1926 but, with the help
of his wife, the Plant Patent Act (PPA) was passed in 1930.8 The US was the first country to
institute IP protection for plant varieties in 19309 covered only plants produced asexually. By
the 1960's, some European countries enacted plant breeders rights laws. It was demonstrated
that sexually reproduced varieties were uniform and stable enough to be included in these
laws. During the 1960's several attempts were made to enact similar protection in the United
States, but these efforts were unsuccessful. However, laws covering both sexually and
asexually propagated plants were passed in the United Nations on Dec. 24, 1970.

6
Rangheka, D., 2000. Intellectual property rights in Agriculture : An Analysis of the Economic Impact of
Plant Breeders’ Rights.
7
Jayashree Watal, Intellectual Property Rights, Oxford University Press, p. 137.
8
http://en.Wikipedia.Org/wiki/plant-breeding
9
Jayashree Watal, Ibid., p. 136.
10
 2.4 UPOV Conventions and Farmers’ Rights

The extension of the IP protection to agriculture also raised a few concerns. One such
concern was that farmers in developing countries have traditionally enjoyed the right to save,
share, exchange and sell the farm produce as well as seeds and the monopoly extended to
plant breeders by granting IPR on plant varieties may take away the traditional rights of
farmers. Also, monopoly in agricultural products could also raise the prices of such
commodities. Above all, the contribution of farmers in the conservation and preservation of
varieties was considered important for further plant breeding. To address this, two options
were considered relevant:

(i) protecting the interests or the privilege of farmers to save and repeatedly use for
sowing their farm saved seeds of protected varieties as an exception to the plant breeder's
right, and

(ii) Protecting the right of farmers in terms of getting equitable share of benefits
derived from the use of plant genetic resources conserved and preserved by them.

The first approach is reflected in the UPOV Act, the European nations' effort towards
securing the plant breeders' right, while the second approach is reflected in the Food and
Agriculture Organization (FAO), International Undertaking on Plant Genetic Resources,
which was renegotiated and adopted as the International Treaty on Plant Genetic Resources
for Food and Agriculture.

In 1961, five European countries agreed to provide sui generis IP protection to plant
varieties and formed the International Union for the Protection of New Varieties of Plants
(UPOV) which provided for the rights of plant breeders and prohibited two or more types of
protection to a particular plant species. Article 5 of UPOV Act, 1961 provides for the
protection of the interests of the farmers as against those of plant breeders.10 The act of
farmers to save a part of their farm produce as seeds for the next crop season and to exchange
seeds with other farmers were not considered 'commercial marketing' under Article 5(1).
Therefore, such acts were kept out of the scope of plant breeder's right as farmers' privilege.

10
Later, USA extended plant variety protection by enacting the 1970 Plant Variety Protection Act (PVPA).
Advances in breeding technology provided the momentum for the PVPA. It provided protection to sexual
reproduction in plants, including seed germination. The protection has two major exemptions, namely, seed
saving by farmers and use for research purposes. Under PVPA brown bag exemption, farmers could continue to
save, replant and resell protected seeds to other farmers. However, these exemptions were later on diluted
by several judicial decisions.
11
However, the farmers' rights as such were not recognized under the UPOV Act. The UPOV
Acts underwent three amendments in 1972, 1978 and in 1991. There are at present two main
Acts of 1978 and 1991 which govern parties to the Convention.11

The 1978 amendment of UPOV Act left the provision of farmers' privilege unaltered.
However, it provided for restricting the plant breeders' right on the ground of public interest
to prevent adverse effect of the monopoly.12 This provision indirectly addressed the right of
farmer to the adequate availability of seeds. This aspect is also present in the UPOV Act,
1991.

The third amendment of UPOV Act, in 1991, made the farmers' privilege optional to
the member countries. This provision allows farmers to use product of the harvest of the
protected variety, which they may obtain by planting on their own holdings, for further
propagating purposes.13 However, the Convention required that the farmers' privilege be
regulated 'within reasonable limits and subject to safeguarding of the legitimate interests of
the breeder.

2.5 TRIPS Agreement and its Ramifications for India

In 1994, the GATT revision was adopted with the conclusion of the Uruguay Round
of negotiations. During the Uruguay Round, intellectual property was discussed as a trade
issue in GATT for the first time. The TRIPS Agreement was formed as a result of the
initiative of United States who considered that without a strong intellectual property
protection their scientific knowledge will be infringed. The developing countries have been
utilizing the technology and by a method of reverse engineering they were pirating the
knowledge of the developed countries. The GATT requires all WTO members must adopt
intellectual property legislation that conforms to the TRIPS provisions.

Specifically, all signatories must

 Provide patent coverage for micro-organism

 Have some form of intellectual property legislation to cover plants.

11
http://www.upov.int.en/publications/conventions/1961/w_up611_htm#_5
12
The countries, which joined UPOV before 1991, could opt to be governed by the 1978 Act but countries
joining now shall be governed by the UPOV Act, 1991.
13
http://www.grain.org/briefings/?id=1
12
 2.6 Plant Varieties Protection and the Intellectual Property Legal Regime in India

The importance given to the protection and sustainable management of plant varieties
is linked to the fact that they constitute the basis for humankind’s food needs.

Plant varieties have traditionally been developed and nurtured by a variety of factors.
Small-holding farmers have often played the most crucial role in conserving and
enhancing agro-bio-diversity. They have, for instance, developed crop varieties
specifically suited to their diverse local environments. In recent times, the
development of new varieties has been undertaken on a larger scale and has become a
major industrial activity.

In practice, plant varieties are identified through their seeds which constitute a main
focus of interest for all actors involved in their management. While seeds have
traditionally been freely exchanged among all types of breeders, there have been moves
towards restricting the flows of knowledge. This has been accompanied by the
development of forms of legal protection of this knowledge.

The history of the evolution of India's sui generis plant variety protection can be
traced back to 1999 when the plant variety bill was introduced in Dec. 1999 with a view
to start the Parliamentary process before the TRIPS implementation deadline of 1st Jan.
2001. This draft was not at all comprehensive and was on the whole largely a plant
breeder’s right legislation. After a number of hearings in 2000, the Parliamentary
Committee ended up substantially rewriting the bill and introducing an important
chapter on farmers’ rights.14

2.7 Farmers’ Rights and Policy Making

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 resources. 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 in these traditional
agricultural practices. With the advent of intellectual property regime, ownership rights were

14
http://www.Scipub.org/fulltext/ajeba/ajeba14303-312.pdfaccessed
13
vested with the Multi National Companies (MNCs). They deliberately used the resources of
poor and uneducated farmers of developing nations for their monetary gain. The poor farmer
remained poorer in this bargain and they lost their means of livelihood as they had to buy
seeds at fixed prices maintained by the private companies.

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 are 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 increase knowledge and skill in farming. In India farmers are the source of supply of both
seed and food commodities and substantial amount of these requirements are met through
‘farmer-to-farmer exchange’.15 Thus the farmer is also the breeder, conserver and distributor
of not only seeds but also information about agricultural practices. Therefore food security
and genetic diversity completely depend upon farmers.

2.8 Farmers’ Rights and New Seed Policy

India's policy on plant variety protection witnessed major changes by adoption of

New Seed Policy of 1988 to allow large Indian and Multi-National Companies (MNC) to
invest in the production of hybrid seeds and agricultural biotechnology.16 This allowed
import of seeds and collaboration in agriculture research with foreign companies. Thus
subsidiaries of foreign multinationals found a strong root in India and formed Seed
Association of India (SAI) by 1985. A conference conducted by SAI became a breakthrough
in framing legislation for protection of plant varieties. Several NGO's and farmers’ groups
voiced against sole grant of rights to breeders and demanded to consider the agriculture
environment as a special case and utilize the flexibility provided by TRIPS.

The first draft of the Bill of the Plant Variety Protection was formulated in 1993/94
that received wide criticism for conforming to UPOV by granting rights to plant breeders.
Also this draft was criticized for not having incorporated ownership rights perception under
farmers' rights. The first bill provided consideration to public sector by allowing rights over

15
Anitha Ramanna, India’s Plant Variety and Farmers’ Rights Legislation: Potential Impact on Stakeholder
Access to Genetic Resources, EPTD Discussion Paper No. 96, Environment and Production Technology
Division International Food Policy Research Institute.
16
Niranjan C. Rao, Plant Variety Protection and Plant Biotechnology Patents : Options for India, Allied
Publishers Ltd., New Delhi, 1990
14
'extant variety' by registration. This draft contained clauses on community rights to benefits
out of use of their genetic material and farmers' rights to save, use, exchange, share and sell
propagating material of seed except sale of branded seed. But there was no concept of
farmers' ownership rights through registration. Considering strong protest from both NGOs
and industry, the Ministry of Agriculture prepared a second draft in 1996 and a third one in
1997. The third draft contained Farmers' Rights in the title but it was again criticized by
NGOs pointing out that benefit sharing was vague under the bill, there were no farmer's
representatives in the Authority, and there was no system for registering farmers' varieties.
The fourth draft was introduced in Parliament in 1999 which was sent to a joint parliamentary
committee to redraft the bill considering opinions of NGOs, industry, scientists and farmers.
The final and fourth version of the bill was introduced in 2001 and became law. The Act
found new chapter on registration of farmers' varieties and detailed provision on farmers'
rights. NGOs accepted the bill as it provided for a mechanism for granting protection for
farmers' varieties on par with breeders' varieties.

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 legal system
through the Protection of Plant Varieties and Farmers' Rights Act, 2001.

15
 CHAPTER- 3

PROTECTION OF FARMERS’ RIGHTS AND INTERNATIONAL

LEGAL FRAME WORK

16
 3.1 Introduction

International Conventions and agreements on intellectual property provide a flexible platform

in which the issues concerning legal protection for plant varieties were addressed by the
various stake-holders and individual States. Any suppression or weakening the protection of
plant varieties would have a negative impact on the private enterprises in this sector. Plant
genetic resources are important for food and agriculture. Plant genetic resources are the raw
material indispensable for crop genetic improvement. Genetic improvement can be achieved
by means of farmers' selection, classical plant breeding or modern biotechnologies.
Therefore it is essential that both the farmers as well as the Plant breeders should be protected
for such genetic improvements.

3.2 Paris Convention 1883

The Paris Convention, 1883 was the first attempt to address the issues of intellectual
property protection at international level. The foundation for international patent protection
was created in the late nineteenth century at various Congresses in Vienna and elsewhere,
culminating in the Paris Convention of 1883 that provided inventors with a rational base for
international patent protection. The Paris Convention was the starting point for a
consideration of any intellectual property rights in the world. While addressing the
intellectual property issues surrounding plant varieties it should be borne in mind that the
attempt should not limit the accessibility of the plant varieties for further innovation and
development.

17
 3.3 UPOV Conventions - Objectives

The International Union for the Protection of New Plant Varieties, known as
UPOV is an inter-governmental organisation with headquarters in Geneva. The acronym
UPOV is derived from the French name of the organization, “Union Internationale pour la
Protection des Obtentions Vegetables.” The purpose of the UPOV Convention is to ensure
that the member States of the Union acknowledge the achievements of breeders of new plant
varieties, by making available to them an exclusive property right, based on a set of uniform
and clearly defined principles. UPOV Convention establishes international rules of system
under which countries grant intellectual property rights to individuals or entities that develop
new varieties of plants.” To be eligible for protection, varieties have to be:

(i) Distinct from existing, commonly known varieties,

(ii) Sufficiently uniform,

(iii) Stable and

(iv) New in the sense that they must not have been commercialized prior to certain
dates established by reference to the date of the application for protection.

The various UPOV Conventions provided international legal framework for granting
of plant breeders' rights. These rights are a key element in encouraging breeders to pursue
and enhance their research for improved varieties. These improved varieties are with benefits
such as higher yield, quality and better resistance to pests and diseases. Protection of
intellectual property rights facilitates such a return by providing a legal basis to prevent under
well-defined conditions, unauthorized exploitation of plant varieties by others. The UPOV
Convention provides a legal basis for the protection of new plant varieties.

The objective of UPOV is to provide and promote an effective system of plant variety
protection, with the aim of encouraging the development of new varieties of plants, for the
benefit of society. As of October 13, 2017, UPOV had 75 members.17 Still more States have
initiated the procedure according to the UPOV Convention for assistance in the
development of laws. The object of plant breeding is to produce genetic structures that are
new, distinct, uniform and stable. All members of UPOV Convention enjoy the same level of
protection. Enhancing international harmonization is an indispensable tool for the protection

17
http://www.upov.int/members/en/
18
of new plant varieties, for international trade and for the transfer of technology. Most of the
plant variety legislations around the world are based on the UPOV Acts.

3.3.1 Member of UPOV

By becoming a member of UPOV, a State or an inter-governmental organization signals its

intention to protect plant breeders on the basis of principles that have gained worldwide
recognition and support. It offers its own plant breeders the possibility of obtaining
protection in the territories of other members and provides an incentive to foreign
breeders to invest in plant breeding and the release of new varieties on its own
territory.

It has the opportunity through membership of UPOV to share in and benefit from the
combined experience of the members and to contribute to the worldwide promotion of
plant breeding. A constant effort of intergovernmental cooperation is necessary to
accomplish such aim and this requires the support of a specialized Secretariat.

3.3.2 Activities of UPOV

The main activities of UPOV are concerned with promoting international harmonization and
cooperation, mainly between its members, and with assisting countries and certain
organizations in the introduction of the UPOV system of plant variety protection.

The fact that the UPOV Convention defines the basic concepts of plant variety
protection, indicates to a great degree of harmony in those laws and in the practical
operation of the protection systems. Such harmony is enhanced firstly, through specific
activities undertaken within UPOV leading to recommendations and model agreements
and forms and, secondly, through the fact that UPOV serves as a forum to exchange
views and share experiences.

The most intense cooperation between members concerns the examination of plant varieties.
It is based on arrangements whereby one member accepts the test results produced by
others as the basis for its decision on the grant of a breeder’s right. Through such
arrangements, members are able to minimize the cost of operating their protection
systems and breeders are able to obtain protection in several territories at relatively
low cost.

19
The UPOV members and the UPOV Secretariat maintains, contact with the provided legal,
administrative and technical assistance to the governments of a growing number of
States expressing interest in the work of the Union and in the idea of plant variety
protection. Regular contacts are also maintained with many intergovernmental and
international non-governmental organizations.

3.4 UPOV, 1961

UPOV is an intergovernmental organization with headquarters in Geneva (Switzerland).

UPOV was established by the International Convention for the Protection of New Varieties
of Plants on December 2, 1961 by a diplomatic conference held in Paris. The Convention was
ratified by the U.K., the Netherlands and Germany. The UPOV Convention was revised in
1972, 1978 and 1991. The objective of the Convention is the protection of new varieties of
plants by an intellectual property right.

The UPOV Convention provides an effective sui generis system for plant variety protection.
The scope of protection under the UPOV Convention has been carefully defined to provide
an incentive for breeders to develop new varieties of plants beneficial for both farmers and
consumers. A key feature of the UPOV system is that protected varieties, as a most important
plant genetic resource, may be freely used by the worldwide community of breeders for
further breeding. Plant breeders' rights thereby help to enhance sustainable agriculture,
productivity, income, international trade and economic development in general.

The contracting parties to the Convention are the members of the Union and the Union has
legal personality. Any State which has not signed this Convention and any intergovernmental
organization can become party to this Convention by depositing an instrument of accession to
this Convention.

The 1961 UPOV is the first international attempt in the field of protection of new varieties of
plants. The Convention has been reached after appreciating the importance attached to the
protection of new varieties of plants not only for the development of agriculture in their
territory but also for safeguarding the interests of breeders. UPOV felt that these interests
should be protected to which very many States rightly attach importance and are keen on
resolving each of them in accordance with uniform and clearly defined principles.

20
The Convention requires Contracting Parties to take such measures as are necessary for its
implementation. The members should:

“(i) provide for appropriate legal remedies for the effective enforcement of breeders' rights;

(ii) Maintain an authority entrusted with the task of granting breeders rights or entrust the
said task to an authority maintained by another Contracting Party;

(iii) Ensure that the public is informed through the regular publication of information
concerning

 applications for and grants of breeders' rights, and

 Proposed and approved denominations.”18

The importance of UPOV Convention is evident from its preamble. The preamble of the 1961
Convention states:

"Convinced of the importance attaching to the protection of new varieties of plants

not only for the development of agriculture in their territory but also for safeguarding the
interests of breeders,

Conscious of the special problems arising from the recognition and protection of the
right of the creator in this field and particularly of the limitations that the requirements of the
public interest may impose on the free exercise of such a right,

Deeming it highly desirable that these problems to which very many States rightly
attach importance should be resolved by each of them in accordance with uniform and clearly
defined principles"19

3.5 UPOV 1972 Amendment Act

The 1961 UPOV had been acceded only by six member countries and has been amended in
1972. The reason for Amendment was stated in the Additional Act of November 10, 1972
as follows :

18
UPOV 1961, Art. 30 - Implementation of the Convention on the Domestic Level; Special Agreements on the
Joint Utilization of Examination Services]
19
UPOV 1961, Preamble.
21
The system of contributions of member States of the Union provided for by that
Convention does not allow for sufficient differentiation among the member States of the
Union as to the share in the total of the contributions that should be allotted to each of
them, Considering further that it is desirable to amend the provisions of that Convention on
the contributions of member States of the Union and, in the event of arrears in the payment
of such contributions, on the right to vote.

3.6 UPOV 1978 Act

Realizing the significance of the 1961 UPOV in the international arena of protection of new
varieties of plants and the rights of breeders, it was revised in 1978 with added features. The
1978 Act provides for the grant of either a special title of protection or a patent for a new
plant variety [Art. 2(1)].20

The 1978 UPOV Act adopts most of the international IPR obligations set out in Part I above,
including a definition of the applicable subject matter and protected material, eligibility
requirements, exclusive rights, national treatment, reciprocity, terms of protection and
exceptions and limitations to exclusive rights. It does not, however, contain any provisions on
Most Favoured Nation (MFN) treatment or enforcement.

3.6.1 Subject Matter / Requirements

i. Limited Number of Protected Genera or Species: Not all plant varieties need to
be protected under the 1978 Act. Rather, article 4 provides that member states are to
progressively extend protection to an increasing number of genera or species. They should
begin with five, on the date the treaty enters into force for that state and ending with twenty-
four within eight years. In addition, member states are free to limit the Act’s application
within a particular genus or species to varieties with a particular manner of reproduction or
multiplication, or a certain end-use.

ii. Preclusion of Dual Protection with Breeder’s Right and Patent: The 1978 Act
permits its signatories to protect the plant varieties either with a distinct breeder’s right or

20
UPOV 1978 Act, Art. 2(1) deals with Forms of Protection (1) Each member State of the Union may
recognise the right of the breeder provided for in this Convention by the grant either of a special title of
protection or of a patent. Nevertheless, a member State of the Union whose national law admits of protection
under both these forms may provide only one of them for one and the same botanical genus or species.
22
with a patent. However, article 2(1) precludes member states from granting both forms of
protection "for one and the same botanical genus or species."

iii. Protection of Discovered Varieties: Although the 1978 Act focuses on plant
varieties created through classical breeding methods, it is generally accepted that, the treaty
requires member states to protect varieties which have been discovered. This has been
inferred from article 6 1(a) which indicates that a protected variety may result from a natural
source of initial variation.

3.6.2. Eligibility Requirements

Assuming that a plant variety falls within a protected genera or species, it is eligible for
protection under the 1978 Act only if it is:

(1) New,

(2) Distinct from existing or commonly known varieties,

(3) Homogenous or uniform and

(4) Stable.

(Art. 6)21 When a variety fulfils these four criteria, it is listed in a national register or
catalogue which publicly discloses that the variety is protected.

21
Art. 6 of the 1978 UPOV Act, deals with Conditions Required for Protection
(1) The breeder shall benefit from the protection provided for in this Convention when the
following conditions are satisfied:
(a) Whatever may be the origin, artificial or natural, of the initial variation from which it has resulted,
the variety must be clearly distinguishable by one or more important characteristics from any other
variety whose existence is a matter of common knowledge at the time when protection is applied for.
Common knowledge may be established by reference to various factors such as: cultivation or
marketing already in progress, entry in an official register of varieties already made or in the course of
being made, inclusion in a reference collection, or precise description in a publication. The
characteristics which permit a variety to be defined and distinguished must be capable of precise
recognition and description.
(b) At the date on which the application for protection in a member State of the Union is filed, the
variety

23
 1. Novelty

A new variety in which a breeder seeks protection must not have been sold on the market
for more than a specified period of years prior to the date of application for protection. The
1978 Act specifies the maximum number of years during which such pre-application sales
have occurred, with different periods of time set for different types of plants as well as for
sales within the territory of the applicant state versus the territory of other states. (Art.
6(1)(b))

2. Distinctiveness

The 1978 Act states that a protectable plant variety must be "clearly distinguishable in one or
more important characteristics from any other variety whose existence is a matter of common
knowledge at the time when protection is applied for." (Art. 6(1)(a)). Although the treaty
itself does not further define distinctness, the Guidelines for the Conduct of Tests for
Distinctness, Homogeneity and Stability (UPOV Guidelines) use both qualitative and
quantitative plant characteristics, including such visible attributes as leaf shape, stem length
and color, to determine if the difference between varieties is "clear and consistent." The

(i) must not—or, where the law of that State so provides, must not for longer than one year—
have been offered for sale or marketed, with the agreement of the breeder, in the territory of
that State, and
(ii) not have been offered for sale or marketed, with the agreement of the breeder, in the
territory of any other State for longer than six years in the case of vines, forest trees, fruit trees
and ornamental trees, including, in each case, their rootstocks, or for longer than four years in
the case of all other plants. Trials of the variety not involving offering for sale or marketing
shall not affect the right to protection. The fact that the variety has become a matter of
common knowledge in ways other than through offering for sale or marketing shall also not
affect the right of the breeder to protection.
(c) The variety must be sufficiently homogeneous, having regard to the particular features of its sexual
reproduction or vegetative propagation.
(d) The variety must be stable in its essential characteristics, that is to say, it must remain true to its
description after repeated reproduction or propagation or, where the breeder has defined a particular
cycle of reproduction or multiplication, at the end of each cycle.
(e) The variety shall be given a denomination as provided in Article 13.
(2) Provided that the breeder shall have complied with the formalities provided for by the national law of the
member State of the Union in which the application for protection was filed, including the payment of fees, the
grant of protection may not be made subject to conditions other than those set forth above.

24
concept of distinctness is critical to determine the scope of a breeder’s right in plants that are
closely related but not identical to a protected variety.22

3. Homogeneity

Under the 1978 UPOV Act, a variety has to be "sufficiently homogeneous, having regard
to the particular features of its sexual reproduction or vegetative propagation." (Art. 6(1)(c)).
The UPOV guidelines further clarify that to be considered homogeneous, the variation shown
by a variety must be "as limited as necessary to permit accurate description and assessment of
distinctness and to ensure stability." The homogeneity requirement has been criticized by
commentators as discouraging variability in plant varieties that are often useful for sound
agricultural practices and as denying protection to breeders of cultivated landraces that
exhibit diversity traits.

4. Stability

The stability requirement is a temporal one, requiring the breeder to show that the
essential characteristics of its variety are homogeneous or uniform over time, even after
repeated reproduction or propagation. (Art. 6(1)(d)) In practice, what has been shown to be
homogeneous is usually considered to be stable as well. For this reason, the stability
requirement has engendered the same sort of critiques as the uniformity requirement in its
preclusion of protection for cultivated landraces and other traditional plant varieties.

5. Protected Material

The 1978 Act requires its signatories to protect a variety’s reproductive or vegetative
propagating material. The Act does not require protection of harvested material, with the
exception of ornamental plants that are used for commercial propagating purposes. (Art.
5(1))23.

22
The concept “distinctness” has been explained in UPOV Act, 1991.
23
Art 5 (1) - Rights Protected; Scope of Protection
(1) The effect of the right granted to the breeder is that his prior authorisation shall be required for
- the production for purposes of commercial marketing
- the offering for sale
- the marketing
of the reproductive or vegetative propagating material, as such, of the variety. Vegetative propagating material
shall be deemed to include whole plants. The right of the breeder shall extend to ornamental plants or parts

25
 3.7 UPOV Convention of 1991

The developments in the field of science and technology led to the evolution of much
advancement in the agricultural arena thereby giving rise to enormous new plant varieties.
The boom in the biotechnological realm gave rise to many new plant varieties, which in terms
of the investment pooled demanded protection. In the wake of these developments, the
UPOV was further amended in 1991, thus making it a credible one.

3.7.1 The 1991 UPOV Act

The limited scope of the 1978 Act led a number of member states of the UPOV to adopt a
revised Act in 1991 with enhanced rights of plant breeders. The 1991 Act entered into force
on April 24, 1998.

3.7.2 Subject matter requirements

i. Phased-in Protection of All Genera or Species: Unlike its predecessor, the 1991 Act
requires the states to protect at least fifteen plant genera or species upon ratifying or acceding
to the Act, and to extend protection to all plant varieties within ten years. (Art. 3(2))152 It
also contains a definition of plant "variety" as a "plant grouping within a single botanical
taxon of the lowest known rank" which can be "defined by the expression of the
characteristics resulting from a given genotype or combination of genotypes; distinguished
from any other plant grouping by the expression of at least one of the said characteristics; and
considered as a unit with regard to its suitability for being propagated unchanged." (Art.
1(vi)) No definition of "variety" appears in the 1978 Act, which indicates that member states
to earlier treaty have greater discretion in defining the characteristics of plant groupings that
qualify for protection.

ii. Dual Protection with Breeders’ Right and Patent Permitted: In response to
demands from breeders in industrialized counties, the 1991 Act removed the 1978 Act’s ban
on dual protection and now permits member states to protect the same plant variety with both
a breeders’ right and a patent.

iii. Protection of Discovered Varieties: The 1991 Act makes explicit the 1978 Act’s
implicit requirement that discovered varieties to be protected. It does so through article

thereof normally marketed for purposes other than propagation when they are used commercially as propagating
material in the production of ornamental plants or cut flowers.

26
1(iv)’s definition of a "breeder" as including a "person who breed, or discovered and
developed, a variety."

3.7.3 Eligibility Requirements

The four eligibility requirements that must be demonstrated to merit protection for a
specific variety viz., - novelty, distinctness, uniformity and stability - are preserved in the
1991 Act, subject to only minor changes in scope and wording. (arts. 7-9).154 Thus, the 1991
Act has received the same criticism as the 1978 Act for its encouraging of genetic
standardization and its inability to protect more diverse plant varieties, traditional varieties or
cultivated landraces.

27
 Main Features of UPOV 1978 Act and UPOV 1991 Act

Subject UPOV Act, 1978 UPOV Act, 1991

Minimum scope of coverage.
Eligibility Requirements.
Increasing number of genera Increasing number of genera
or species required to be or species required to be
protected, from five at time of protected, from 15 at time of
accession, to 24 eight years accession, to all genera and
later. species 10 years later (5 years
for member states of earlier
UPOV Act).
Novelty, distinctness, Novelty, distinctness,
uniformity and stability uniformity and stability.

Minimum exclusive rights in Production for purposes of Production or reproduction;

propagating material. commercial marketing; conditioning for the purposes
offering for sale; marketing; of propagation; offering for
repeated use for the sale; selling or other
commercial production of marketing; exporting;
another variety. importing or stocking for any
of these purposes.
Minimum exclusive rights in No such obligation, except for Same acts as above if
harvested material. ornamental plants used for harvested material obtained
commercial propagating through unauthorized use of
purposes. propagating material and if
breeder had no reasonable
opportunity to exercise his or
her right in relation to the
propagating material
Prohibition on dual protection Yes, for same botanical genus No
with patent. or species.

Breeders’ exemption. Mandatory. Breeders free to Permissive, but breeding and

se protected variety to develop exploitation of new variety
a new variety. "essentially derived" from

28
 earlier variety require right
holder’s authorization

Farmers’ privilege Implicitly allowed under the Allowed at the option of the
definition of minimum member state within
exclusive rights. reasonable limits and subject
to safeguarding the legitimate
interests of the right holder.
Minimum term of protection 18 years for grapevines and 25 years for grapevines and
trees; 15 years for all other trees; 20 years for all other
plants plants.

29
3.8 The Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) 1994

The Trade Related aspects of Intellectual Property Rights Agreement (TRIPS) was
established as part of the General Agreement on Tariffs and Trade (GATT). The TRIPS
Agreement is one of the most important commercial treatises in modern history. It will
revolutionize the treatment of intellectual property in the signatory countries. The Agreement
was negotiated in order to reduce distortions and impediments to international trade. Part I of
the Agreement sets out general provisions and basic principle, notably a national-treatment
commitment under which the nationals of other parties must be given treatment no less
favourable than that accorded to a party's own national with regard to the protection of
intellectual property. It also contains a most-favoured-nation clause, a novelty in an
international intellectual property agreement, under which any advantage a party gives to the
nationals of another country must be extended immediately and unconditionally to the
nationals of all other parties, even if such treatment is more favourable than that which it
gives to its own nationals.

TRIPS radically altered the role of international trade law in promoting and enforcing
intellectual property protection around the globe. Under the TRIPS Agreement all member
countries must bring their national IPR laws into conformity with certain provisions of the
new Agreement. TRIPS is an international agreement that requires member countries to
provide strong intellectual property protection in their domestic law. The recent
developments in the field of biotechnology and plant breeding has led to wide spread piracy
of resources from the developing countries. Intellectual property protection provided by
countries varied and this disparity was an occasion for the developing countries to pirate the
technological developments of the developed countries. The developed countries under the
leadership of United States wanted to have a strong system for the protection of the new
technologies. Hence the issue of intellectual property protection and also protection for plant
varieties was addressed in the Uruguay Round of General Agreement on Tariffs and Trade.
The TRIPS Agreement covers all areas of intellectual property and also establishes minimum
standards of protection. The Agreement requires member states to provide patent protection
in all areas of technology. The Agreement also outlines those inventions which the Member-
states may exclude from patentability.

TRIPS Agreement 1994 provides that members may exclude essentially biological
processes for the production of plants or animals other than non-biological and

30
microbiological processes.24 However, the Agreement states that members shall provide for
the protection of plant varieties either by patents or by an effective sui generis system or by
any combination thereof. Considerable flexibility is left to the members of the Agreement to
adopt the system of protection suited to them. At the time of adoption of the TRIPS
Agreement, most of the developed countries had systems for protection of plant varieties and
most of them had adhered to the UPOV Convention.

The Agreement requires members to provide protection to a plant variety. There is a clear
distinction between the terms "plant" and "plant variety". A plant variety can be considered
as a modification of a natural plant which belongs to the plant kingdom. The Agreement also
excludes inventions which is necessary to protect "ordre public or morality, including to
protect human or plant life or health or to avoid serious prejudice to the environment..."25
The term ordre public which has been borrowed from the French law means protection of
public security and physical integrity of the public as part of the society. Though this includes
Environmental issues as well it is narrower than the concept of public order.

Although the UPOV Acts have provided IPR protection for plant varieties for more than
forty years, their significance has recently been overshadowed by a different intellectual
property treaty, i.e., the Agreement on Trade-Related Aspects of Intellectual Property Rights
(the "TRIPS Agreement") adopted in 1994. TRIPS is the first and only IPR treaty that seeks
to establish universal, minimum standards of protection across the major fields of intellectual
property including patents, copyrights, trademarks, industrial designs, integrated circuits and
trade secrets. Although the TRIPS Agreement devotes only minimal attention to plant
breeders’ rights or plant varieties protection and does not even mention the UPOV Acts, its
adoption has done more to encourage the legal protection of plant varieties than any other
international agreement.
24
TRIPS Agreement, Art. 27 3(b) - Patentable Subject Matter : 3(b) plants and animals other than micro-
organisms, and essentially biological processes for the production of plants or animals other than non-biological
and microbiological processes. However, Members shall provide for the protection of plant varieties either by
patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph
shall be reviewed four years after the date of entry into force of the WTO Agreement.
25
Ibid., Art. 27(2) - Patentable Subject Matter: 2. Members may exclude from patentability inventions, the
prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or
morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the
environment, provided that such exclusion is not made merely because the exploitation is prohibited by their
law.

31
 3.9 TRIPS as a Spur to Plant Varieties Protection

TRIPS influence on plant variety protection stems from the following sources:

(1) its link to other international trade agreements;

(2) its widespread adherence by states in both the industrialized and developing world;
(3) its novel enforcement, review and dispute settlement provisions;
(4) the requirement in TRIPS article 27.3(b) that its signatories must provide protection
for plant varieties "either by patents or by an effective sui generis system or by any
combination thereof.

3.10 Plant Varieties Protection under TRIPS

The TRIPS Agreement 1994 mandates its signatories to provide patent protection for
any inventions in all fields of technology, provided that the inventions are "new, involve an
inventive step and are capable of industrial application." (Art. 27(1)) However, with regard to
plant-related inventions, TRIPS permits members to exclude from patentability altogether
"plants," "essentially biological processes for the production of plants" and "plant varieties."
(Art. 27.3(b)) Thus, the TRIPS Agreement would permit WTO Members to decline to protect
plant varieties with a patent.

TRIPS expanded the scope of patentability to cover life forms. Under Article 27.3(b)
of TRIPS Agreement, members of the World Trade Organisation (WTO) may exclude from
patentability of plants and animals other than micro-organisms and essentially biological
processes for the production of plants or animals other than non-biological and micro-
organism and essentially biological and microbiological processes. However, members shall
provide for protection of plant varieties either by patents or by an effective sui generis
protection or both. This pronunciation extends IPR protection to advances made in plant
genetic engineering and plant biotechnology. Art. 27.3(b)193 forces countries to change
patent law to introduce patents for life forms and introduce legislation of plant variety
protection. The Article 27.3(b) TRIPS Agreement is of great concern to the agriculture sector
generally and farmers specifically. The first part of the Article addresses the patenting of life.
However, the words other than ‘micro-organism’ and plants and animals produced by 'non-
biological' and ‘micro-biological’ processes make patenting of micro-organism and
genetically engineered plants and animals compulsory. Since micro-organism are living
32
organism, making their patenting compulsory it is the beginning of a journey down what has
been called the slippery slope that leads to the patenting of all lives.

Plant Variety Protection Under UPOV 1978 Act, UPOV 1991 Act and TRIPS-
Compatible Patent Laws – A Comparison

Subject Breeders’ Rights in Breeders’ Rights in TRIPS- Compatible

UPOV Act, 1978 UPOV Act, 1991 Patent Laws
Eligibility for Plant varieties that are Plant varieties that are Plant varieties, plants,
protection novel, distinctive, novel, distinctive, seeds and enabling
uniform and stable. uniform and stable. technologies that are
novel, involve an
inventive step and are
capable of industrial
application.
Minimum Production for Production or Making the patented
exclusive rights in purposes of reproduction; product, using the
propagating commercial conditioning for the patented process or
material marketing; offering purposes of using, offering for sale,
for propagation; offering selling or importing for
sale; marketing; for sale; selling or other those purposes the
repeated use for the marketing; exporting; patented product or the
commercial importing or stocking product obtained by the
production of another for any of these patented process
variety. purposes.
Minimum No such obligation, Same acts as above if Making the patented
exclusive rights in except for ornamental harvested material product, using the
harvested material plants used for obtained through patented process or
commercial unauthorized use of using, offering for sale,
propagating purposes. propagating material selling or importing for
and if breeder had no those purposes the

33
 reasonable opportunity patented product or the
to exercise his or her product obtained by the
right in relation to the patented process
propagating material.
Breeders’ Mandatory. Breeders Permissive. But Generally not
exemption free to use protected breeding and recognized, although
variety to develop a exploitation of variety compatibility with
new variety. "essentially derived" TRIPS not yet tested.
from an earlier variety
require the right
holder’s authorization.
Farmers’ privilege Implicitly allowed Permissive within Generally not
under the definition of reasonable limits and recognized, although
minimum exclusive subject to safeguarding compatibility with
rights. the legitimate interests TRIPs not yet tested.
of the right holder.
Additional None specified. Acts done privately and Research and
exceptions to for non-commercial experimentation. All
exclusive rights purposes, acts done for exemptions must
experimental purposes. comply with three-part
test of TRIPS Article
30.
Minimum term of 18 years for trees and 25 years for trees and 20 years from date the
protection grapevines; 15 years grapevines; 20 years for patent application is
for all other plants. all other plants. filed.

34
 3.11 Convention on Biological Diversity

The Convention on Biological Diversity (CBD) of 1992 was adopted at Rio de-
Janeiro on 5th June, 1992 under the auspices of the U.N. Conference on Environment and
development for conservation of biological diversity at international level. The contracting
parties to the Convention had recognized the importance of biological diversity. The Rio
Declaration on Environment and Development, 1992 had accepted the principle that the
States have sovereign rights to exploit their own resources.26 The Declaration also
recognized the role of indigenous people and their communities in the environmental
development and management. The Declaration requires that the States should recognize and
duly support their identity, culture and interests."27

The Convention gives emphasis on the conservation of biological diversity. The

Convention specifies that access to genetic resources has to be determined by the national
governments subject to their national legislation. Each contracting party shall develop and
carry out scientific research based on genetic resources with the co-operation of other
contracting parties. The benefits arising from the commercial utilization of genetic resources
shall be shared upon mutually agreed terms between contracting parties.

As a measure of distributing the benefits, the Convention requires Contracting Parties

to provide for the effective participation in biotechnological research activities by those
Contracting Parties, especially developing countries, which provide the genetic resources for
such research, and where feasible in such Contracting Parties.230 Convention on Biological
Diversity requires signatories to protect and promote the rights of communities, farmers and
indigenous people. These are in respect to their biological resources and knowledge systems
as well as benefit-sharing. It was asserted that intellectual property rights should not conflict
ith the objectives of the Convention on Biological Diversity. Intellectual property laws of
most countries are inadequate for benefit-sharing and defending the rights of the indigenous
community. One of the key features of the Convention on Biological Diversity is the
embodiment of the equitable sharing of benefits.28

26
Rio Declaration on Environment and Development 1992, Principle 2.
27
Ibid., Principle 22.
28
National Association of Home Builders v. Babbitt, 130 F 3d.1041 (D.C. Cir.1997)

35
 Access and benefit sharing system aims to promote scientific and technological
knowledge from plant and animal sources, while at the same time recognizing the
contributions and rights of those who cultivate and preserve these resources, or have come to
understand their uses.

3.12 TRIPS and Convention on Biological Diversity

There has been much debate surrounding the issue as to whether there is any conflict
between the provisions of the TRIPS Agreement and the Convention on Biological Diversity
(CBD).

Many countries take different views as to whether there is an actual conflict between
the two. Countries like United States argue that implementation of the TRIPS Agreement is
supportive of measures that would implement the obligations of the CBD most effectively.

They also consider that the TRIPS Agreement and the Convention on Biological
Diversity have different, non-conflicting objectives and purposes and deal with different
subject-matter.

The proponents of the view that there is an inherent conflict between the TRIPS
Agreement and the Convention on Biological Diversity argue that TRIPS Agreement
primarily intends to recognize the intellectual property interests and does not consider
national sovereignty over plant genetic resources. The Agreement does not provide for
benefit-sharing or disclosure of the country of origin. The expanding patent protection
covering claims to indigenous knowledge like the protection on neem, turmeric, ayahuasca is
also against the principles of the Convention on Biological Diversity. The Agreement does
not address issues like access to biological diversity, benefit-sharing and the interests of the
traditional community.

However, the importance of both the prevention of bio-piracy and misappropriation of

genetic resources and traditional knowledge, as well as the promotion of a balanced patent
system that benefits patent applicants and the public interest should be recognized.

The Convention on Biological Diversity has, while considering the implications of

intellectual property rights, specifically provided that "The Contracting Parties, recognizing
that patents and other intellectual property rights may have an influence on the

36
implementation of this Convention, shall cooperate in this regard subject to national
legislation and international law in order to ensure that such rights are supportive of and do
not run counter to its objectives.”29

The TRIPS Agreement and the CBD should be implemented in a mutually supportive
and consistent manner. The green biotechnology30 can be better developed only by proper
protection at international level.

29
CBD, Art. 16.5.
30
Green biotechnology encompasses a wide range of techniques that consist of culturing plant tissues and/or
organs, followed by the multiplication of the relevant plants with desirable characteristics. Genetically identical
plantlets are thus available for distribution all the year round. It also includes the transformation of plants, crop
species and varieties through genetic engineering techniques, leading to what are known as genetically modified
crops.

37
 CHAPTER- 4

AN INTRODUCTION TO PLANT VARIETIES PROTETION AND

FARMERS’ RIGHTS ACT, 2001

38
 4.1 Introduction

4.1.1 Intellectual Property Rights in Plant Varieties

The policy of granting intellectual property rights (IPRs) to plant varieties is based
principally on an instrumentalist or utilitarian approach to IPRs. This is true both for patents
and plant breeders' rights. Legal protection for the products of human intellectual effort is
granted not because of a moral commitment to compensate creators or innovators, but rather
because the products they create enrich a society's culture and knowledge and thus increase
its welfare. The grant of IPRs in plant varieties intends to provide adequate incentives for
creators and inventors to invest intellectual capital and thereby create plant varieties that
could lead to the development of high yield variety seeds leading to greater productivity.

The ultimate policy objective of granting legal protection is for the enhancement of
social welfare, through access to the ideas and information contained in their products. Legal
protection in the form of intellectual property rights is largely to ensure that breeders receive
adequate remuneration when they market the propagating material of those improved
varieties.

IPRs in plant varieties thus provide some assurance to breeders that they will be able
to recoup the risks and costs of a value-added innovation that is based upon underlying
biological resources. This benefits farmers, consumers and researchers in many more
jurisdictions. It is argued that strengthened intellectual property rights would increase the
flow of technology and products from the developing countries and would provide new
incentives for local research and innovation. What contributed to the emergence of property
rights in plant varieties was the need to exploit the potential for commercial benefits in this
area. The scope of patentable subject matter expanded, slowly and incrementally until it
covered plants.

In India plant breeding was confined to the public sector. This was adopted keeping in
mind the food security of Indian population. It did yield good results by way of green
revolution and increase in development of new crop varieties. There was also no demand for
IPR protection since the research activity was confined to public sector. Till recently
agriculture was not treated as an industrial activity. This scenario got changed in late 1980s,

39
when foreign seed corporations were allowed to enter Indian market, and this development
gave rise to demands for IPR protection.

Plant varieties are a part of world's biological resources. Scientific efforts are being
made to upgrade the quality of existing varieties by way of making them hybrid, by crossing
different varieties to develop novel strains. Today, with the advent of biotechnology and
genetic engineering, the value of the genetic pool of a country has assumed enormous value
and even a single gene of a variety is capable of changing the fate of a nation’s economy.
The production of successful varieties is highly desirable as it increases yields, resistance to
pests and disease and the number and diversity of varieties.

4.2 TRIPS Agreement and Plant Varieties Protection

It is clear from Article 27(3)(b) of the TRIPS Agreement that a country like India has three
options with reference to protecting plant varieties. The first one is to treat new plant varieties
as inventions and is to develop an "effective" sui generis law for the protection of plant
varieties. The TRIPS has not laid down any guidelines for the sui generis law. The liberal
norms in the 1978 version of UPOV were revised in 1991 and the norms were tightened in
favor of the breeders. It is however argued that the protection based on the norms laid down
in UPOV, 1991 is similar to that of patent protection, for reasons such as the criteria for
protection, procedure for registration, nature of rights of the breeders, substantial watering
down of the exemption given to the researchers and farmers etc. It is relevant to note here that
since the word "effective" sui generis is used in TRIPS,31 it is apprehended that countries like
India are bound to follow UPOV, 1991 for providing plant varieties protection. The third
option is to have a law that is a combination of "patent and sui generis" for which there is no
model available in the world.

The Plant Varieties Protection and Farmers’ Rights Act, 2001 is an outcome of the
pressure of the foreign players in the Indian market using WTC as an effective tool. This is
evident from the fact that the Act is structured keeping in mind the UPOV, 1991 even though
India is not bound to follow the same.32

31
Harpal Kaur Khehra, Patents and Sui generis System for Protection of Plant Varieties: A Threat to Food
Security and Health Care, M.D.U. Research Law Journal, Vol. 8, No. 1 – 2, January 2004, p. 126.
32
UPOV Report on the Impact of Plant Variety Protection (2005), published by UPOV.
40
 4.3 Justification for Protection

After the Second World War and beyond, there was a large-scale destruction of
agricultural crops in Europe, which raised a demand for increased agricultural yields. This led
to technological development in the field of agriculture. In the process, the inventors and the
people possessing indigenous or traditional knowledge wanted to protect their interests. Legal
steps were hence taken to protect the rights of inventors, breeders and indigenous knowledge
holders.

Research and development were conducted in the fields of crops, manure, pesticides
etc. and new improved varieties were made by genetic techniques like hybridization. Many
efforts were being taken by nations to protect varieties found within their jurisdiction. State
funded agricultural research institutes had also come up. Large-scale investment in the field
of agriculture prompted protection for the products developed. While the breeding of new
varieties involved high pooling of intellectual and financial resources, once a variety is made
available to the public, the chances of easy duplication were far alarming. This has paved the
way for protection of existing varieties and patenting or registering of new or novel varieties
developed out of genetic engineering. It was deemed to be equitable to confer on plant
breeders the opportunity of a fair reward for their work, effort and investment in breeding and
to grant them protection against unauthorized exploitation. Incentives were thought to be
given to the plant breeders to produce improved varieties of a wide selection of plant species
to the benefit of farmers, growers and private gardeners.

The first statute providing patent protection for plants was the U.S. Plant Patents Act
in 1930. But this Act restricted patent protection to asexually reproduced plants. However,
the non-industrial nature of plant breeding in the earlier times made it apt to keep it outside
the realm of patent protection. There were also technical issues for the plant varieties to
confirm with the patent law requirements. This led to the evolution of a sui generis system
addressed to the particular characteristics of the plant varieties and the needs of breeders,
rowers and traders.

41
 4.4 The Genesis of the Indian Legislation

In India, agricultural research including the development of new plant varieties was largely
been the concern of the government and public sector institutions. Earlier, India did not have
any legislation to protect the plant varieties and, in fact, no immediate need was felt.
However, after India became signatory to the Trade Related Aspects of Intellectual Property
Rights Agreement (TRIPS) in 1994, such a legislation was necessitated. Article 27.3 (b) of
this agreement requires the member countries to provide for protection of plant varieties
either by a patent or by an effective sui generis system or by any combination thereof. Thus,
the member countries had the choice to frame legislations suiting their own system and India
exercised this option. The existing Indian Patent Act, 1970 excluded agriculture and
horticultural methods of production from patentability. 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. It offers
flexibility with regard to protected general species, level and period of protection, when
compared to other similar legislations existing or being formulated in different countries.33
The Act covers all categories of plants, except micro-organisms. The genera and species of
the varieties for protection are notified through a gazette, after the appropriate rules and by-
laws are framed for the enforcement of the Act.

4.4.1 Background for the enactment of PVP Legislation

A series of policy changes occurred during the late 1980s and early 1990s to facilitate
the development of breeding programmes in the private sector, shift the relative magnitude of
public and private sector plant breeding, and ultimately help alter the climate of opinion on
PBRs. Prior to the late 1980s, plant breeding in India was largely the preserve of the public
sector. In 1986 the public sector began to provide private seed companies with breeder seed,
which enabled the latter to establish their own germplasm collections.34 In 1987 the
Industrial Policy was modified to allow large Indian and multinational (MNC) companies to

33
Ravi Shanker, A.S., Kochhar, Archak, S. and Gautam, P.L., Plant Variety Protection: Lessons from cross-
country perspective. Policy Brief No. 11. National Centre for Agricultural Economics and Policy Research
(ICAR), New Delhi, 2000.
34
Shiva Vandana and Crompton, 1998, “Monopoly and Monoculture-trends in Indian Seed Industry”,
Economic and Political Weekly, 18th April, 1998, 141-147
42
invest in the production of hybrid seeds and agricultural biotechnology.35 Liberalisation in
the industrial sector was followed in 1988 by liberalisation in the seeds sector, through the
New Seed Policy. This policy allowed the import of coarse cereals, oilseeds and pulses for a
period of two years by companies collaborating in seed production with foreign firms. The
policy obliged the foreign collaborators to provide parental-line seeds to Indian companies
within this two-year window. In this sense, the New Seed Policy further encouraged the
development of germplasm lines in the private sector for a limited range of crops. Of broader
significance was the programme of economic liberalisation that India undertook in 1991.

This policy shift was to further facilitate the development of breeding programmes in
the private sector. It loosened restrictions on the activities of foreign firms and multinationals
by abolishing licensing in the seeds sector, giving automatic approval to foreign technology
agreements, and to Indian subsidiaries with up to 51 percent foreign equity. The introduction
of these policies facilitated the growth of the private sector plant breeding. This growth was
constituted by the emergence of large Indian companies; increased collaboration between
Indian and foreign companies; and the entrance of subsidiaries of MNCs in the Indian
market.

Concomitant with the growth of private industry in India through liberalisation, was a
global trend toward consolidation of agro-chemical and seed companies among large firms.
During 1980s, for example, major international agrochemical companies (such as Monsanto,
Unilever, and ICI) established plant breeding programmes in an effort to integrate the
development of agricultural technology into their operations.36 Industry concentration in
India has been affected by mergers and acquisitions that have occurred internationally.

The Seed Association of India (SAI) is one of the major seed industry associations,
and represents medium to large foreign and domestic firms. An important aspect of its
mandate is to cultivate links with the Ministry of Agriculture and the public sector. To this
end, it has established itself as an industry representative within policy networks by securing
seats on a number of government committees. Its presence in these committees offers it
privileged access to policymakers and, therefore, a base from which to influence policy.

35
Plant Varieties Protection and Plant Biotechnology Patents : Options for India, Allied Publishers Ltd., New
Delhi, 1997, p. 54
36
Biswahut Dhar and Sachin Chaturvedi, Introducing Plant Breeders’ Rights in India, A Critical Evaluation of
the Proposed legislation, The Journal of World Intellectual Property, Volume 1, Issue 2, March 1998, p. 247
43
 Indian legislation conforms quite closely to international agreements, in other ways
departs substantially from them. For example, India went in for UPOV style Plant Breeders’
Rights, but it did not simply cut and paste UPOV provisions into its own legislation. In
particular, while UPOV accords PBRs only to varieties that are novel, or new, the Indian Bill
also makes extant or existing varieties eligible for protection.

4.4.2 History of PVP Legislation

India is a member of the International Treaty on Plant Genetic Resources for Food
and Agriculture by the Food and Agricultural Organisation. Being a signatory of the TRIPS
Agreement, India is obliged to confirm to the provisions regarding the protection of plant
varieties. Accordingly, plant varieties have to be given protection either by a sui generis
system or by patent system or by a combination of both (Art. 27(3) of the TRIPS Agreement).

The process of drafting the Protection of Plant Varieties and Farmers' Rights Bill
lasted for more than 10 years and generated a considerable amount of public debate and
controversy. The first initiatives taken to develop Indian legislation on PVP occurred in the
late 1980s. The first draft of the Bill was produced in 1993 by the Ministry of Agriculture.
Three drafts have since followed, in 1997, 1999, and 2000, although only the latter two were
introduced in Parliament. The ultimate draft was tabled in the Lok Sabha in December 1999,
and referred to a Joint Parliamentary Committee (JPC). From January to August 2000 the
JPC held public consultations on the Bill at various locations throughout India and
subsequently tabled its Report, along with a revised draft, in the Lok Sabha on 25 August
2000. After almost a decade of development, the Bill was passed by the Parliament in August
2001.

Throughout its long history, the Bill has engaged a range of stakeholders in its
development. In so far as the Bill endeavours to introduce a system of plant breeders' rights
and operationalise farmers' rights it is of interest to various groups, including: public sector
researchers, farmers' rights campaigners, private industry, and inter-governmental
organisations.281 Although the Bill has provoked considerable public debate, several
stakeholders including farmers themselves, as well as their organisations and unions, and
small Indian seed companies were absent for reasons best known to them.

This Act provides for three rights – the Plant Breeders’ Rights (PBR), the farmers’
rights (FRs) and the Researchers’ Rights (RRs). The process of granting sui generis right or

44
the PBRs is called registration. It is the outcome of twin pressures on the Government – one
set from the world system to introduce intellectual property protection to recognize
commercial plant breeders’ contribution in the development of new varieties, which was
reinforced by the emerging private seed industry in India, and the other from farming
communities opposed to the introduction of any form of IPRs in the agricultural sector.
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 their asset. 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 FAO definition of farmers’ rights, in addition to the right
on seeds, includes the right to participate in decision making regarding fair and equitable
sharing of benefits from the use of plant genetic resources. The farmers’ rights in the PVPFR
Act includes the right on 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 (RRs) 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 PBRs 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.
Varieties possessing ‘terminator-like technology’ are prohibited for registration. Genetically
modified plant varieties will be registered only after its clearance for bio-safety.37

Indian PVPFR Act is attempting to strike a balance between the private right
contained in the PBRs and the public right contained in the Farmers’ Rights and Researchers’
Rights. This kind of balancing intellectual property rights on innovations based on biological
material is the heart of the sui generis legislation on plant variety in the Indian context.

37
Jayne Kuria Kose and Mayark Mishra, Rhetoric of Plant Variety Protection in India, (2003), PL. web.jour.
17.
45
 4.5 Objectives of the Act

The PVPFR Act 2001 aims to establish “an effective system for the protection of plant
varieties, the rights of farmers and plant breeders, to encourage the development of new
varieties of plants,” on line with Article 27.3 (b) of TRIPS.

The additional period of 5 years was given in areas where there were no product
patent protection at the time of entering into force of the Agreement. As far as India is
concerned we are not providing product patent protection for any biotech products. So we are
entitled to enjoy the additional period before providing protection for any biotech products be
it through patent or a sui generis law. Considering our domestic problems we should have
delayed the enactment of the law atleast till the review process is over.38

The objectives of the Act are as follows:

i. protection of the rights of farmers for their contribution made at any time in
conserving, improving and making available plant genetic resources for the
development of new plant varieties,
ii. Protection of PBRs to stimulate investment for research and development, both in
the public and private sector, for the development of new plant varieties, and
iii. Giving effect to Article 27.3 (b) of the TRIPS Agreement on PVP.
iv. To provide for the establishment of an effective system for protection of plant
varieties.
v. To provide for the rights of farmers and plant breeders.
vi. To stimulate investment for research and development and to facilitate growth of
the seed industry. vii. To ensure availability of high quality seeds and planting
materials of improved varieties to farmers.

The Act contains 11 Chapters and is divided into 97 clauses. The first chapter contains title
and the definitions used in context of the Act. The last chapter is on miscellaneous clauses.
The other nine chapters deal with PVPFR authority, registration of plant varieties, duration
and effect of registration and benefit sharing, surrender and revocation of certificate, farmers’
rights, compulsory licence, plant varieties protection appellate tribunal, finance, accounts,

38
See Gopalakrishnan, N.S., "Protection of Plant Varieties and Farmer's Rights in India - A Critique", at
http://www.iprlawindia.org.
46
audit, infringement, offences and penalties, etc. varieties protection appellate tribunal,
finance, accounts, audit, infringement, offences and penalties, etc.

4.6 Conceptual Definitions

Some of the important definitions in the context of the Act include the following:

4.6.1 ‘Variety’ Sec. 2 (za) means

A plant grouping except micro-organisms within a single botanical taxon of the lowest
known rank, which can be –

i. defined by the expression of the characteristics resulting from a given genotype of

a plant of that plant grouping;
ii. distinguished from any other plant grouping by expression of atleast 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. (Sec. 2 (za) )

4.6.2 Extant Variety (Sec. 2(j) )

A variety available in India which is –

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

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

4.6.3 Essentially Derived Variety (Sec. 2(i) )

A variety shall be said to be essentially derived 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 result from the genotype or combination of
genotypes of such initial variety;

47
 ii. is clearly distinguishable from such initial variety, and
iii. conforms (excepting 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 genotypes of such initial variety.

4.6.4 Farmer (Sec. 2(k))

Any person who –

i. cultivates crops by cultivating the land himself, or

ii. cultivates crops by directly supervising the cultivation of land through any other
person, or
iii. conserves and preserves, severally or jointly, with any 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.

4.6.5 Farmers' Variety (Sec. 2 (l))

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 of a variety about which the farmers possess
common knowledge;

Farmers’ varieties are cultivated and evolved by the farmers using traditional methods
in their fields, about which they have knowledge. Traditionally cultivated and evolved
varieties of farmers or the wild relative or land race of a variety of which the farmers have
common knowledge is considered as Farmers’ Variety.39

4.6.6 Protection of Variety under the Act

A variety shall be entitled to registration, provided the genera or species is specified in the
Official Gazette or is an extant variety or a farmers’ variety and that the applicant complies
with the formalities provided by the law and also that the applicant pays the required fees.

Thus the Act makes clear that an application for registration can be made only in
respect of three kinds of varieties –

39
Sec. 2 (l)
48
 (i) A variety whose genera or species is specified in the Official Gazette under
Section 29(2);
(ii) An extant variety;
(iii) Farmers’ variety.40

The term variety has been defined in the Act to include a plant grouping other than a
micro-organism within a single botanical taxon of the lowest known rank which can be –

1. defined by the expression of the characteristics resulting from a given genotype of

that plant grouping;
2. distinguished from any other plant grouping by expression of at least one of the said
characteristics; and
3. considered as a unit with regard to its suitability for being propagated, which remains
unchanged after such propagation.

While granting protection the variety is tested to determine whether the new variety is
distinctive in its characteristics and is sufficiently homogenous and stable. The Section has
defined the term "variety" broadly by including the propagating material of such variety,
extant variety, transgenic variety, farmers’ variety and essentially derived variety.41 The
definition of the term "variety" in the Indian Act is almost akin to the provisions of the
UPOV Convention.42 The inclusion of extant variety43 and farmer's variety helps to protect
varieties that do not fully meet the requirement of novelty.

The Registrar shall register every extant variety within three years from the date of its
notification under the Act subject to the criteria of distinctiveness, uniformity and stability.44

Varieties have been generally considered to be the result of the breeding process.
They are the result of the processes of selection and crossing, including modern techniques

40
Ibid.,
41
Sec. 2 (i)
42
UPOV 1991, Art. 1 (vi) - (iv) “breeder” means
• the person who bred, or discovered and developed, a variety,
• the person who is the employer of the aforementioned person or who has commissioned the latter’s
work, where the laws of the relevant Contracting Party so provide, or
• the successor in title of the first or second aforementioned person, as the case may be;
43
Sec. 2(j)
44
PVPFR Rules, Rule 24 – Registration of extant plat varieties under sub-section (2) of Section 15 – (1) The
Registrar shall register every extant variety within three years from the date of its notification under the Act,
with respect to the genera and species eligible for registration subject to conformity to the criteria of
distinctiveness, uniformity and stability as laid down under the regulations.
Provided that the Registrar may, for reasons to be recorded in writing, register an extant variety after
the expiry of the said period of three years.
49
such as cell fusion which do not occur under natural conditions. This seemed self-evident so
long as breeding was the only way to obtain new plants.45

The definition of the term variety can be illustrated by the decisions of the various
Courts. In Yoder Brothers, Inc. v. California-Florida Plant Corp.46, several definitions of
the term variety was offered. Mr. Duffett, Yoder's head breeder, defined a variety as:

"a group of individual plants which, on the basis of observation by skilled

floriculturists and according to reasonable commercial tolerances, display identical
characteristics under similar environments."

The definition of the term variety in Pan-American Plant Co. v. Matsui,47 also throws
light on the concept of variety. According to the decision:

"a variety of chrysanthemum plant is a group of plants which exhibit similar essential
characteristics and which are distinguishable from other groups of plants by the presence of
significant differences with respect to one or more such characteristics."

The Federal Circuit Court in 1995 held that "variety" encompasses a single plant, the
plant shown and described in the specification of the plant patent.48

4.7 Coverage of Varieties

Sections 14, 23 and 29 of the Act specify the range of plant varieties that can be
protected. Section 14 lists three classes of varieties:

(a) new varieties,

(b) extant varieties, and
(c) farmers’ varieties.

For new varieties, the genera and the species, which can be registered under the PVPFR Act,
will be notified subsequently by the Central Government. This implies that the Indian
Government will restrict the number of genera and species protectable under the Act to an, as
yet, unspecified number. Once notified, no genera or species would be deleted from the

45
Transgenic Plant I Novartis II, G1/98, OJ EPO [2000] 111.
46
537 F.2d 137, 193 USPQ 264 (5th Cir. 1976).
47
433 F. Supp 693 (N.D. Cal 1977)
48
Lmazio Nursery v. Dania Greenhouse, 63 F.3d 1560 (Fed. Cir. 1995).
50
notified list except in public interest. Extant varieties have been defined using four
benchmarks:

(a) varieties that have been notified under the Seeds Act, 1966,
(b) farmer’s varieties and
(c) varieties about which there is common knowledge or
(d) any other variety that is in the public domain.

Farmers’ varieties, however, have been defined as:

(a) varieties that have been traditionally cultivated and evolved by farmers in their fields
and
(b) a wild relative or landrace of a variety about which farmers possess common
knowledge.

Section 14 thus provides opportunities to all the stakeholders in plant breeding, in the main,
farmers and commercial plant breeders, to seek protection for the plant varieties that they
develop. Breeders can exercise their rights over any variety that is essentially derived from
the protected variety.

4.8 Conditions for Protection

Section 15 specifies the characteristics of the varieties that qualify for protection,
distinctiveness, uniformity and stability. Thus, the legislation has followed the principles set
by the UPOV Convention and each characteristic has been defined as therein. Under section
29(3) of Indian PVPFR Act, 2001

“Notwithstanding anything contained in sub-section (2) and sub-sections (1) and (2)
of section 15, no variety of any genera or species which involves any technology which is
injurious to the life or health of human beings, animals or plants shall be registered under this
Act”.

According to the provisions of the Plant Varieties Protection and Farmer’s Rights Act, a new
variety shall be registered subject to satisfying the requirements of novelty, distinctiveness,

51
uniformity and stability.49 For new varieties, the genera and species which can be registered
under the Act, except farmer's variety and extant variety will be notified by the Central
Government.50

The concept of novelty in patent law is different from that in plant variety protection.
The condition of novelty is met under patent law if there has been no disclosure to the public
of the invention prior to the filing of the application. But under the plant variety protection,
condition of novelty is used in a commercial sense. The requirement of novelty is satisfied if
at the date of filing of the application for registration for protection, the propagating or
harvested material of such variety has not been sold or disposed of with the consent of the
breeder for the purpose of exploitation of such variety.51 Propagating material has been
defined in the Act as any plant or its component or part thereof including an intended seed or
seed which is capable of, or suitable for, regeneration into a plant.52 Seed is a type of living
embryo or propagule capable of regeneration and giving rise to a plant which is true to such
type.53 Thus, propagating material in relation to a plant of a particular plant variety
relevantly means any part or product from which another plant with the same essential
characteristics as that variety can be produced.

The distinction between propagating material and harvested material has been clearly
brought out in a decision of the Australian Court.54 In certain cases propagating material and
harvested material can be different like the case of grapes, apricots etc. But the making
49
PVPFR Act, S. 15(1) - A new variety shall be registered under this Act if it conforms to the criteria of
novelty, distinctiveness, uniformity and stability.
50
Ibid., S. 29(2) - The Central Government shall, by notification in the Official Gazette, specify the genera or
species for the purposes of registration of varieties other than extant varieties and farmers’ varieties under this
Act.
51
Ibid., S. 15(3)(a) - (3) For the purposes of sub-sections (1) and (2), as the case may be, a new variety shall be
deemed to be –
(a) novel, if, at the date of filing of the application for registration for protection, the propagating or
harvested material of such variety has not been sold or otherwise disposed of by or with the consent of
its breeder or his successor for the purposes of exploitation of such variety –
(i) in India, earlier than one year; or
(ii) outside India, in the case of trees or vines earlier than six years, or in any other case,
earlier than four years.
Before the date of filing such application :
Provided that a trial of a new variety which has not been sold or otherwise disposed of shall not affect
the right to protection :
Provided further that the fact that on the date of filing the application for registration, the propagating
or harvested material of such variety has become a matter of common knowledge other than through the
aforesaid manner shall not effect the criteria of novelty for such variety;
52
Ibid., S. 2 (r) - “propagating material” means any plant or its component or part thereof including an intended
seed or seed which is capable or, or suitable for, regeneration into a plant;
53
Ibid., Sec. 2(x) - “seed” means a type of living embryo or propagule capable of regeneration and giving rise to
a plant which is true to such type;
54
Cultivaust Pry Limited v. Grain Pool Pry Limited, '[2005] FCAFC 223, Federal Court of Australia.
52
available of such variety in India within a period of one year will not render the variety novel.
A distinction has been made in the case of making available the variety outside India. The
period of one year has been extended to a period of six years in the case of trees or vines and
in all other cases the limitation is four years.55 Trial of a new variety which has not been sold
or disposed of cannot be considered as affecting the right of protection. The fact that the
propagating or harvested material of such variety has become a matter of common knowledge
other than through sale or disposal with the consent of the breeder as required by Section
15(3) shall not be considered as making the variety novel. The requirement of novelty is not
required in the case of an extant variety.56 The fact that our plant variety protection system
has drawn extensively from the provisions of the UPOV Convention is evident from the
requirements of novelty, distinctiveness, uniformity and stability in the Convention. The
requirement of novelty in our Act is a near to exact reproduction of the provisions of the
UPOV Convention.57

4.9 Authorities under the PVP FR Act

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.58 For the purposes
of this Act, Plant Varieties Protection and Farmers' Rights Authority has been established.
The Authority consists of a chairperson and fifteen members. The chairperson shall be a
person of outstanding caliber and eminence especially in the field of plant varietal research,
or agricultural development. The members shall also be appointed by the Central
Government according to the requirements laid down under the Act.59 The chairperson
appoints a standing committee consisting of five members one of whom shall be a member
who is a representative from a farmers' organization, to advise the Authority on all issues

55
PVPFR Act, S. 15(3)(a) - (a) novel, if, at the date of filing of the application for registration for protection, the
propagating or harvested material of such variety has not been sold or otherwise disposed of by or with the
consent of its breeder or his successor for the purposes of exploitation of such variety –
(i) in India, earlier than one year; or
(ii) outside India, in the case of trees or vines earlier than six years, or in any other case, earlier than
four years.
56
Ibid., S. 15(2) - Notwithstanding anything contained in sub-section (1), an extant variety shall be registered
under this Act within a specified period if it conforms to such criteria of distinctiveness, uniformity and stability
as shall be specified under the regulations.
57
UPOV 1991, Art. 6 reads, “(1) The variety shall be deemed to be new if, at the date of filing of the application
for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of
to others, by or with the consent of the breeder, for purposes of exploitation of the variety ... "
58
PVPFR Act. S. 3 - Plant Varieties Protection and Farmers’ Rights Authority
59
PVPFR Act, S. 3(5)(b)
53
including farmers' rights. The chairperson shall preside the meetings of the Authority. All
questions coming before the Authority shall be decided by a majority of the votes of the
members of the Authority. If a member is in any way directly or indirectly concerned or
interested in a matter to be decided at the meeting, he shall disclose the nature of his concern
and shall not attend the meeting. The acts done or proceedings of the Authority shall not be
considered as invalid by reason of any vacancy or defect in the constitution of the Authority
or any defect in the appointment of the person acting as the Chairperson or a member of the
Authority or any irregularity in the procedure of the Authority not affecting the merits of the
case. The Authority has the power to appoint committees, officers and other employees for
the efficient discharge of its duties and functions. The Authority shall function to promote the
encouragement for the development of new varieties of plants and to protect the rights of the
farmers and breeders.60 The Authority shall advise the Central Government for specifying
and notifying the genera and species for registration of new plant varieties other than extant
varieties and farmers' varieties.61 The Authority is also vested with the function of
developing DUS test and other test criteria and conduct such tests for characterization of each
variety of crop species notified by the Central Government.62 Orders and decisions of the
Authority shall be authenticated by the signature of the chairperson or any other member
authorized in that behalf. The Authority or Registrar shall have all the powers of a civil court
for the purpose of receiving evidence, administering oaths, enforcing the attendance of
witnesses, compelling the discovery and production of documents and issuing commissions
for the examination of witnesses.63 The Authority shall also have the power to order
reasonable cost. The order of the Authority shall be executable as a decree of the Civil Court.

60
PVPFR Act, S. 8(2)
61
PVPFR Rules, R. 22(1) – The Authority shall advise the Central Government in relation to the provisions
contained in sub-section (2) of Section 29 for specifying and notifying the genera and species for the purposes
of registration of new plant varieties other than extant varieties and farmers’ varieties.
62
Ibid., R. 22(3) – The Authority shall develop DUS test and other test criteria and conduct such tests for
characterisation of each variety of crop species notified by the Central Government.
63
PVPFR Act, S. 11 - In all proceedings under this Act before the Authority or the Registrar,
(a) the Authority or the Registrar, as the case may be, shall have all the powers of a civil court for the
purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling
the discovery and production of documents and issuing commissions for the examination of witnesses;
(b) the Authority or the Registrar may, subject to any rule made in this behalf under this Act, make such
orders as to costs as it considers reasonable and any such order shall be executable as a decree of a civil
court.
54
 4.10 Plant Varieties Registry

The Central Government shall establish a registry known as the Plant Varieties Registry for
the purpose of the Act. The head office of the Registry shall be the located at the head office
of the Authority. The Authority shall appoint a Registrar General of Plant Varieties. The
Authority shall also appoint such number of Registrars for registration of plant varieties who
shall be under the superintendence and direction of the Registrar General. A National
Register of Plant Varieties shall be kept in the head office of the Registry. The names of all
the registered plant varieties with the names and addresses of the respective breeders, the
rights of the breeders in respect of the registered varieties, the particulars of the denomination
of each registered variety, its seed or other propagating material along with the specification
of the salient features shall be entered in the Register.

All proceedings before the Authority or Registrar relating to registration of variety,

compulsory licensing, registration of agent shall be deemed to be judicial proceedings.64
Legal proceedings shall not lie against the Chairperson, or members; or the Registrar or any
person acting in good faith.65 Civil courts shall not have jurisdiction in respect of any matter
which the Authority or the Registrar or the Tribunal is empowered under the Act to
determine.66 Members and other employees of the Authority shall be deemed to be public
servants. The provisions of the legislation shall have overriding effect on all other laws for
the time being in force.

4.11 Registration of Plant Varieties

A variety is protected under the Act, only when it is registered.67 The benefits of the
Act are extended only to the persons who register the variety. In Maharashtra Hybrid Seeds
Co. Ltd., vs. Union of India, (2011)68 the S.C. has observed that ‘the whole concept of the
law of patents, as also of the Act, is that the registration applicant, who claims to have

64
PVPFR Act, S. 87
65
Ibid., S. 88
66
Ibid., S. 89
67
Ibid., S.14 deals with Application for Registration of any Variety. Any person specified in section 16 may
make an application to the Registrar for registration of any variety –
(a) of such genera and species as specified under subsection (2) of section 29; or
(b) which is an extant variety; or
(a) c) which is a farmers’ variety.
68
SCC Online Del. 5125; AIR 2012 Del. 87; (2012) 191 DLT 129.
55
developed a new invention or a new plant variety, may get the same registered so as to claim
statutory protection for the period provided under the law. Under the act, this protection is
granted for the period prescribed by Section 24 (6) read with Section 28 of the Act.
However, this right /protection is coupled with the obligation that the applicant should make
a complete disclosure of his claimed invention / development of plant variety in all its detail,
so that at the end of the period of statutory protection the invention / developed plant variety
may be produced by any person.

Applications for registration of varieties can be made by the breeder of the variety, his
successor, or assignee, any farmer or group of farmers.69 Every application shall be made in
writing and signed by the applicant and delivered to the Registrar or the Authority at its
office. All affidavits required to be filed under the Plant Varieties Protection and Farmers'
Rights Rules shall be dated and signed at the foot and shall contain a statement that the facts
and matters stated therein are true to the best of the knowledge, information and belief of the
person making the affidavit. Where an application for registration is made by the successor or
assignee of the breeder, he shall furnish proof to that effect at the time of application or
within six months of making such application.70 Each application should assign a single and
distinct denomination of the variety to which the registration is being sought.71 There must
also be a statement describing all the details of the variety that brings out its characteristics of
registering the variety. The applicant shall also make available such quantity of seed as is
required for testing to evaluate whether it satisfies the standards specified. The Authority
shall conduct DUS testing which shall be field and multi location based for at least two crop
seasons.72 DUS testing should be done at a minimum of two locations. When DUS testing
fails to establish the requirement of distinctness, special tests shall be conducted by the
Authority.73 Special tests shall be laboratory based. DUS test is required for all varieties
except essentially derived varieties. Essentially derived varieties may be tested on a case-to-

69
Ibid., S.16(1)(d) says, ‘any farmer or group of farmers or community of farmers claiming to be the breeder of
the variety
70
Ibid., Rule 27(1) – Where an application for registration is made by the successor or assignee of the breeder
under sub-section (3) of Section 18, he shall furnish documentary proof, at the time of making such application
or within six months of making such an application, as to the right to make such an application for registration
71
PVPFR Act, S. 17(1) deals with compulsory variety denomination.
(1) Every applicant shall assign a single and distinct denomination to a variety with respect to
which he is seeking registration under this Act in accordance with the regulations.
72
PVPFR, Rules 29(1)(a) – describes the manner and method for conducting test under Sec. 19 of the Act.
73
Ibid., Rules 29(1)(b) – lays down that the special tests shall be conducted only when DUS testing fails to
establish the requirements of distinctiveness.
56
case basis. The samples of seeds or propagates and the parental lines submitted for testing
shall be deposited at the National Gene Bank.

The applicant must also declare that the parental materials acquired for breeding the
variety has been lawfully acquired. He must also provide a complete passport data of the
parental lines along with the geographical location in India from where the genetic material
has been taken including contribution made by the local communities if any in the evolution
of that variety. Farmers' varieties can be registered without stating any of these conditions in
his application.74 An applicant for protection has to assign a single and distinct denomination
to the variety.75 Denomination of a variety or its propagating material means the
denomination expressed by means of letters or a combination of letters and figures written in
any language.76 A denomination assigned to a variety shall not be registered as a trademark
under the Trade Marks Act, 1999.

The Registrar on receipt of the application can either accept it, require it to be
amended or rejected.77 On acceptance of the application for registration, the Registrar shall
advertise such application calling for objections from the persons interested in the matter.78
The advertisement shall mention the place where a specimen of the variety may be inspected.
The advertisement shall include:

1. name, passport data and source of parental line or initial variety used to develop the
variety in respect of which an application for registration has been made;
2. description of the variety bringing out its character profile as specified under the DUS
test Schedule;
3. essential characteristics conferring distinctiveness to the variety;
4. important agronomic and commercial attributes of the variety;
5. photographs or drawings, if any, of the variety submitted by the applicant; and
6. claim, if any, on the variety.

74
Ibid., S. 18(1) Proviso.
75
Ibid., S. 17
76
PVPFR Act. S. 2(g) - “denomination”, in relation to a variety or its propagating material or essentially derived
variety or its propagating material, means the denomination of such variety or its propagating material or
essentially derived variety or its propagating material, as the case may be expressed by means of letters or a
combination of letters and figures written in any language;
77
Ibid., S.20
78
Ibid., S.21 – deals with the Advertisement of application explaining the specification of variety for
Registration. Such Advertisement shall be made by the Registrar in the manner specified in form 01 of the Third
Schedule.
57
 An application shall not be rejected by the Registrar without giving a reasonable
opportunity to the applicant to present his case. Any person can, within three months from
the date of the advertisement, give in writing a notice of opposition to the registration.
Opposition to the registration can be made on the grounds:

1. that the person opposing the application is entitled to the breeder’s right as against the
applicant; or
2. that the variety is not registrable under this Act; or
3. that the grant of certificate of registration may not be in public interest;
4. that the variety may have adverse effect on the environment.360
The notice of opposition shall be sent to the applicant within three months
from the last date of filing of the opposition. The applicant is required to file his
counter-statement within two months. The copy of the counter-statement shall be
served on the person giving notice of opposition within thirty days of its receipt. All
evidence upon which the opponent relies shall be submitted in duplicate to the
Registrar with a copy to the applicant within one month from the date of the counter
statement of the applicant. Any evidence on which the applicant relies shall be
submitted in duplicate with a copy to the opponent within thirty days from the date of
receipt of the opponent's evidence. The Registrar shall decide whether registration is
to be permitted after giving an opportunity of being heard.79 The time schedule
provided shall not be extended and failure to comply in time shall result in forfeiture
of the opportunity granted.
When an application for registration of a variety other than an essentially
derived variety has been accepted and on registration of the variety, the Registrar shall
issue to the applicant a certificate of registration.80 Where, registration of a variety is
not completed within 12 months from the date of application, due to default on the
part of the applicant, the application will be considered as abandoned after giving
notice to the applicant. The breeder of a variety is required to deposit such quantity of
the seeds or propagating material including parental line seeds of the registered
variety in the National Gene Bank.81

79
PVPFR Act, S. 21(7) – The Registrar shall, after hearing the parties, if so required, and considering the
evidence, decide whether and subject to what conditions or limitations, if any, the registration is to be permitted
and may take into account a ground of objection whether relied upon by the opponent or not.
80
Ibid., S. 24 – deals with the Issue of Certificate of Registration.
81
Ibid., S. 27
58
 The Act has provisions for registration of essentially derived varieties and also
gives rights similar to the breeder of a variety as provided in Section 28 of the Act. 82
An application for registration of an essentially derived variety shall be accompanied
by –
1. an affidavit sworn by the applicant stating that such a variety does not contain any
gene or gene sequence involving terminator technology;
2. a statement giving details of the brief description of the characteristics of the
variety to substantiate novelty, distinctiveness, uniformity and stability; and
3. the details of parental material used.

Where an essentially derived variety is derived from a farmers’ variety, the authorization
shall be given only after obtaining consent from the farmers or the group of farmers or
community who have made contribution in the preservation and development of the variety.83
The authorization by the breeder of the initial variety to the variety of the essentially derived
variety shall be subject to the terms and conditions mutually agreed by them. The Protection
of Plant Varieties and Farmers Rights authority shall on receipt of an application for
registration of a variety as an essentially derived variety determine by conducting such tests
and procedures prescribed under the Act as to whether the variety is a variety derived from
the initial variety.84 The Authority when satisfied that the variety is an essentially derived
variety shall direct the Registrar to register the variety as an essentially derived variety.

4.12 Effect of Registration

A certificate of registration confers on the breeder or his assignee an exclusive right to

produce, sell, market, distribute, import or export the variety.85 On sale of a registered
variety, there is an implied warranty that the denomination is a genuine denomination and is
not falsely applied.86 The owner of an extant variety shall be the Central Government unless
the breeder establishes his right or in case of an extant variety notified under Section 5 of the
Act, the State Government will be the owner of the right. The Act also confers on the breeder
to authorize any person to produce, sell, market, distribute or deal with the variety registered

82
Ibid., S. 23 – deals with the Issue of Certificate of Registration.
83
PVPFR Act, S. 43
84
Ibid., S. 23
85
Ibid., S. 28
86
Ibid., S. 79
59
under the Act. But the registered agent is not entitled to transfer such right. The agent or
licensee is also entitled to call upon the breeder or his successor to take proceedings to
prevent infringement. If the breeder or his successor refuses to take action, the licensee or his
agent shall institute proceedings making the breeder or his successor as a defendant.87 The
certificate of registration confers breeder’s rights which are valid for a period of nine years in
the case of trees and vines and six years in the case of other crops. After this period, the
certificate can be renewed for a further period till eighteen years in the case of trees and vines
from the date of registration of the variety and in the case of extant variety for a period of
fifteen years from the date of notification and in all other cases for fifteen years from the date
of registration.88

The Registrar can vary any condition or restriction on receipt of an application by the
registered breeder of the variety or his successor. The certificate can also be cancelled by the
Registrar on application by the registered breeder.

The breeder of a variety registered under the Act may after giving notice, surrender
his certificate of registration.89 On receipt of the notice, the Registrar shall notify every
registered agent or licensee relating to such certificate. The agents or licensees are entitled to
file their opposition and the Registrar shall on receipt of the opposition intimate the breeder
of the opposition. The Registrar shall after hearing the parties if satisfied that the certificate of
registration may be surrendered, revoke the certificate of registration. The protection granted
to a breeder in respect of a variety shall be revoked by the Authority on the following
grounds:

1. that the grant of the certificate of registration has been based on incorrect information
furnished by the applicant;
2. that the certificate of registration has been granted to a person who is not eligible for
protection;
3. that the breeder did not provide the Registrar with such information, documents or
material as required for registration under the Act;
4. that the breeder has failed to provide an alternative denomination of the variety which
is the subject-matter of the registration to the Registrar in case where the earlier

87
PVPFR Act, S. 28(6)
88
Ibid., S. 24(6)
89
Ibid., Sec. 33 - surrender and revocation of certificate and rectification and correction of register.
60
 denomination of such variety provided to the Registrar is not permissible for
registration under the Act;
5. that the breeder did not provide the necessary seeds or propagating material to the
person to whom compulsory licence has been issued in respect of which registration
certificate has been issued to the breeder;
6. that the breeder has not complied with the provisions of the Act or rules or
regulations;
7. that the breeder has failed to comply with the directions of the Authority;
8. that the grant of the certificate of registration is not in the public interest.90

Protection shall not be revoked unless the breeder is given a reasonable opportunity to file
objection and of being heard. Every breeder of a variety, agent and licensee shall be required
to pay annual fees imposed by the Authority. The Authority shall issue notice if a breeder
fails to deposit the fee imposed for two consecutive years and on failure to comply with the
directions in the notice, the Authority shall forfeit the registration certificate issued to such
authority.91 The arrears of fee shall be deemed to be arrears of land revenue. The Registrar
shall cancel or change the certificate of registration for failure to observe a condition of
registration or for contravention of any provisions of the Act. The Registrar can also correct
any error in the name, address or description of such breeder or any other entry relating to the
variety, change in the name, address or description of such breeder, cancel the entry in the
Register of the variety in respect of which the application for cancellation was made and can
also make consequential amendment or alteration in the certificate of registration. The
breeder of any variety registered under the Act can apply to the Registrar to delete any part or
to add to or alter the denomination of such variety in a manner not affecting its identity.92

4.13 Non-Registrable Varieties

The Indian Act also adopts the method of exclusion, by excluding a new variety from
registration if the denomination given to such variety falls within the ambit of the
exclusions.93 The Act precludes grant of patents to protect public order or public morality, or

90
PVPFR Act. S. 34 - Revocation of protection on certain grounds.
91
Ibid., S. 35 - (1)
92
Ibid., S. 38
93
Ibid., S. 15(4)
61
to protect the human, animal or plant life or health or to avoid serious prejudice to the
environment.94

Agracetus Inc. obtained an Indian patent on cotton that provided it monopoly control
over all kinds of transgenic cotton in 1991. The patent was granted in contravention of the
Indian Patent Act which prohibits patenting of seeds. The Indian Council of Agricultural
Research challenged the patent claims. The Indian government revoked on 18th February
1994 the sweeping patent on all genetically engineered varieties of cotton granted to the
Agracetus company, a subsidiary of W.R. Grace & Co. The Indian government based its
decision on Section 66 of the Indian Patent Act in public interest.95

Fiat G.A. Smith J. of the Queens Bench of Saskatoon in Hoffman v. Monsanto

Canada Inc.96 did not decide on the short question whether genetically modified canola is
environmentally unsafe. The plaintiffs were certified organic farmers in Saskatchewan. The
claim alleged that these organic farmers have lost the ability to market organic canola due to
the contamination of organic canola crops caused by adventitious cross-pollination from
open-pollinated varieties of genetically modified canola marketed and/or licensed and/or sold
by Monsanto Canada Inc. and Aventis in Saskatchewan.

The plaintiffs also stated that the defendants' genetic modifications are "pollutant",
within the meaning of The Environmental Management and Protection Act, that has caused
loss or damage to certified organic grain farmers because of its discharge into the
Saskatchewan environment. The Court came to the conclusion that it was not at issue in that
motion and hence did not consider it.

The Indian Act excludes from its ambit registration of a variety containing any gene
or gene sequence involving any technology, including genetically used restriction technology
and terminator technology which is injurious to the life of living beings.97

94
PVPFR Act, S.29(1)
95
Anumita Roychowdhry, The cancellation of a U.S. firms’ rights on a method to genetically engineer cotton
has brought weakness in India’s patent system into focus. Down to Earth, March 31, 1994,
www.downtoearth.org.in/news
96
2005 SKQB 225.
97
PVPFR Act, S. 29 - Exclusion of certain varieties.
62
 4.14 Rights of breeders

Breeders’ rights recognised under the PPV and FR Act 2001 extend, for seed and/or
propagating material of the protected variety, to:

1. production,
2. selling,
3. marketing,
4. distribution,
5. export, and
6. import.98

These rights are consistent with those that have been provided under UPOV 1991. However,
if the breeder’s variety protected under the Act is an EDV from a farmer’s variety, the
breeder cannot give any authorisation without the consent of the farmers or communities
from whose varieties the protected variety is derived.99

4.15 Farmers’ Right

Chapter VI of the Act, on Farmers’ Rights, contains specific provisions to safeguard

the interests of farmers and other village and local communities engaged in plant breeding in
two ways: first, by protecting their on-farm activities and secondly, by providing incentives
in the form of rewards for their contribution to farming.

Two specific provisions protect on-farm activities. Firstly, the farmer will be “entitled
to save, use, sow, re-sow, exchange. Exchange and share are two different terms. The farmer
is entitled to share or sell his farm produce including seed of a “variety protected” under the
legislation “in the same manner as he was entitled before the coming into force” of this
legislation. This provision, in essence100 is what has been known as the “farmers’ privilege”,
an accepted practice under UPOV 1978, which UPOV 1991 severely diluted. The 2001 Act,
however, imposes a condition on the farmer that the seeds, farmers are entitled to sell cannot
be branded. Although, this requirement may not appear too demanding, the definition of
“branded seed” in the legislation could impose restrictions on farmers. “Branded seed”,

98
Ibid., Section 28(1)
99
Ibid., Section 43
100
Ibid., Section 39(1)(iv)
63
according to the Act “means any seed put in a package or any other container and labeled” in
a manner indicating that the seed is of a protected variety. Whether or not this qualification
on the so-called “branded seeds” will affect the farmers’ ability to engage in brown–bagging
will be the key issue during implementation of the Act it is like a comment but see. 39(1) is
given below:

The second provision concerns the full disclosure of the expected performance of the
seeds or planting material by the plant breeder. Where those fail to perform in the manner
claimed by the breeder, the farmer may claim compensation from the plant breeder. This
provision appears to exceed the limits that plant varieties’ legislation normally provides and
transgresses into the domain of the Seed Act, the relevant legislation for verifying the quality
of seeds.

The PVPFR Act also seeks to reward the farmer “who is engaged in the conservation
and preservation of genetic resources of land races and wild relatives of economic plants and
their improvement through selection and preservation”.101

4.16 Farmers’ Right Similar to Commercial Breeders Right

The main contribution of the PVPFR Act is the achievement made under Section 39
which grants the same rights as commercial breeders for their varieties. The PVPFR Act
recognizes the rights of the farmers to save, use, sow, re-sow, exchange, share or sell their
farm produce including seeds of a protected variety. In contrast to this UPOV recognized the
rights of the farmers over their crops, and not the rights of farmers over the seeds of the crops
they grew. The only proviso is that these seeds must not be ‘branded’ with breeder’s
registered name. In this way both farmers and breeders rights are protected. The breeder is
rewarded for his innovation, but without being able to threaten the farmer’s ability
independently to engage in his livelihood and supporting the livelihood of other farmers. In
addition, as a part of the farmer’s rights, compensation can be claimed if a variety fails to
provide the expected performance under given condition and leads to crop failure.

101
PVPFR Act, 2001- Section 39(1) (iv)
64
 4.17 Right to Seed

If a farmer does not have the right to sell seed, it implies that each time the farmer wishes to
grow a new crop, he or she has to turn to the market to procure seeds. Such dependence on
the market for seeds is not economically feasible for farmers in India and hence will have
hindrance in livelihood. Further, if farmers do not have the right to sell seeds, it will weaken
the overall seed market in India because there will be less competition for the private seed
companies. Food security can be ensured only if there is a control over seeds by the farmers.
In circumstances where the harvested material can be used as a seed, without any kind of
processing, the significance of farmers having control over seeds cannot be ruled out. Unlike
UPOV, where the farmers require the authorization of the breeder in every case of production
or reproduction, conditioning for the purpose of propagation, offering for sale, selling or
other marketing, exporting, importing, etc., the Indian Legislation places the farmers at a
better position because they are free to take any decision regarding the handling of seeds. The
farmer’s right to save and exchange seed has been one of the major demands of the farmers’
right movement. The 2001 Act aims to give farmers the right to save, use, exchange or sell
seed in the same manner he/she was entitled to before the Act. However, the right to sell seed
is restricted in that the farmer cannot sell seed in a packaged form labelled with the registered
name.

4.18 Researchers’ Rights

Researchers’ rights are recognized in Section 30102 which grants them free and complete
access to protected materials for research use in developing new varieties of plants. However,
authorization of the breeder is required “where repeated use of such variety as parental line is
necessary for commercial production of such other newly developed variety”. This provision
in effect uses the formulation provided in UPOV 1978 Act for breeders’ exemption.

4.19 Benefit Sharing

The Act provides for benefit sharing involving registered varieties in two
circumstances. Firstly, it applies specifically to Essentially Derived Variety.103 In the second,

102
Section 30 of PVPFR Act, 2001 Researcher’s Rights
103
Ibid., Section 26 – Determination of benefit sharing by Authority
65
any village local community can claim benefit for contributing to the development of a
variety registered under the Act.104

For a variety registered as an EDV, NGOs or individuals can claim a share of benefits
that may arise from its commercialization on behalf of any village or local community. The
Plant Varieties and Farmers’ Rights Authority, the designated authority to implement the Act,
to whom the claims for benefit sharing must be made, will investigate claims and indicate the
amount of benefit sharing if justified. The Authority will use two criteria to establish the
justification of the claims. These are:

 the extent and nature of the use of genetic material of the claimant in the
development of the variety for which benefit sharing has been claimed and
 the commercial utility and demand in the market for the variety. The amount of
benefit sharing, if any, would have to be deposited in the National Gene Fund by the
breeder of the variety.

In the second circumstance, any individual or NGO can make a claim on behalf of a
village or local community for the contribution that they had made in the evolution of any
variety registered under the Act. If, upon investigation, the claim was found justified, after
the breeder was given an opportunity to file objection and to be heard, an amount of
compensation as the Authority deems fit would be deposited by the breeder in the National
Gene Fund.

4.20 Compulsory Licensing

Intellectual property right is granted to an inventor as a bargain for disclosing the

invention. The ultimate beneficiary apart from the owner of the right is the public and hence
it is essential that the variety should be available to the public. There has always been a
danger that the owner of the right will abuse the monopoly granted to him. Abuse of the right
can be by refusing to grant licenses, imposing unreasonable terms on the licensee or
restrictive conditions on the use of the patented articles. The provision of compulsory
licensing in the Act prevents this situation. A compulsory license is an authorization given by
an authority allowed by law to grant a license, without or against the consent of the title
holder for the exploitation of a subject-matter protected by a patent.

104
Ibid., Section 41 – Rights of Communities
66
 An important feature of the Act is the priority attached to the public interest over the
interests of the commercial breeders. The legislation authorizes the granting of compulsory
licenses to ensure availability of seed plant or reproductive material of the protected variety
in reasonable quantity at reasonable price if:

 three years have elapsed since the date of issue of a certificate of registration,
 reasonable requirements of the public for seeds or other propagating material of the
variety have not been satisfied, and
 the seed or other propagating material of the variety is not available to the public at a
reasonable price.

If these conditions exist, the Plant Varieties Protection and Farmers’ Rights Authority
can intervene. If, after giving an opportunity to the breeder of such a variety to file an
opposition and, after hearing the parties, the Authority may, on grounds (b) and (c), order the
breeder to license anyone interested in undertaking production, distribution and sale of the
seed or other propagating material of the variety.

After the expiry of a period of three years from the date of issue of a certificate of
registration of a variety, any person interested may make an application to the Authority for
obtaining a compulsory license. The application can be made on the grounds that the
reasonable requirements of the public for seed or other propagating materials of the variety
have not been satisfied or that the seed or other propagating material of the variety is not
available to the public at a reasonable price.105 The application for compulsory license shall:

1. specify particulars of variety denomination, generic and specific name of the variety
or varieties concerned,
2. contain the grounds for issue of compulsory license with supporting documents, and
be supported by-
i. qualification, technical and financial capabilities of the person making such
request with evidence,
ii. particulars of the holder of the right to the variety,
iii. written evidence that the person, making such request, has exhausted all
measures for voluntary license.

105
PVPFR Act, S. 47 – Power of Authority to make order for compulsory license in certain circumstances.
67
 The Authority shall grant a compulsory license after consultation with the Central
Government and after giving an opportunity to the breeder of such variety to file an
opposition within one month from the receipt of the notice of opposition and after
hearing the parties may order that the breeder shall grant license to the applicant on
such terms and conditions as it deems fit. The Authority while determining the terms
and conditions of the compulsory license shall ensure that reasonable compensation to
the breeder of the variety is secured having regard to the nature of the variety, the
expenditure incurred by such breeder in breeding the variety or for developing it. The
Authority shall also ensure that the compulsory licensee of such variety possesses the
adequate means to provide to the farmers, the seeds or other propagating material of
such variety at a reasonable market price.106

While determining whether the reasonable requirements of the public is satisfied, the
Authority shall take into account the nature of the variety, the time which has elapsed
since the grant of the certificate of registration of the variety, price of the seed of the
variety and the measures taken by the breeder or any registered licensee of the variety
to meet the requirements of the public and the capacity, ability and technical
competence of the applicant to produce and market the variety to meet the
requirement of the public.107 An application for the grant of a compulsory license
shall be adjourned by the Authority for a period of twelve months on a written request
by the breeder that due to any reasonable factors, the breeder is not able to produce
seed or other propagating material of the variety on a commercial scale to an adequate
extent.108 The duration of the compulsory license shall be determined by the
Authority, but shall not exceed the total remaining period of the protection of the
variety.

The Authority may on its own motion or on an application from an aggrieved

person, if it is satisfied that a compulsory licensee has violated any terms or
conditions of the license or where it is not appropriate in 'the public interest after

106
PVPFR Act. S. 51 – (1). The Authority shall, while determining the terms and conditions of a compulsory
license
107
Ibid., S. 48
108
Ibid., S. 49
68
 giving the licensee an opportunity to file an opposition and of being heard, make
order to revoke such license.109

The Authority will determine the period for which compulsory licenses are
granted in each case, taking into consideration the gestation periods and other relevant
factors and will also give due consideration to the interests of the plant breeder. The
terms and conditions of a compulsory license should ensure the reasonable
compensation to the breeder of the variety under the compulsory license taking note
of the nature of the variety, the expenditure incurred by the breeder in developing it
and other relevant factors, and that the compulsory licensee can provide farmers the
seeds or other propagating material of the variety in a timely manner and at a
reasonable market price. Compulsory licenses revoke the exclusive right given to the
breeder and enable third parties to produce, distribute or sell the registered variety.

109
Ibid., S. 52
69
 PVP and FR Act 2001

Particulars TRIPS UPOV (1991) PVPFR (2001)

Agreement
Granting Novelty, inventive New, distinct, uniform Novelty, distinctiveness,
criteria type and industrial and stable uniformity and stability
applicability
Farmers’ Not specific – but Optional Contracting A farmer shall be deemed
privilege possibly permitted parties, may within to be entitled to save, use,
Article 30 reasonable limits and sow, resow, exchange,
subject to the share or sell his farm
safeguarding of the produce including seed of a
legitimate interests of the variety protected under this
breeder, restrict the Act in the same manner as
breeders right in relation he was entitled before the
to any variety in order to coming into force of this
permit farmers to use for Act; (b) A farmer will not
propagating purposes be entitled to sell branded
seed of a variety protected
under this Act
Breeders/ Not specific – but Yes – non-infringing Yes. Any person, for
research possibly permitted include: conducting experiment or
exemption via Article 30 (a) acts done privately research, can use any
and for non-commercial variety registered under
purposes, this Act; however, if an
(b) acts done for initial source of a registered
experimental purpose variety is repeatedly used
and for breeding for the purpose of creating
other varieties for
commercial production,
then authorization
Duration of 20 years from the 30 years for trees and Registration is valid for

70
Protection date of filing vines, 25 years for all nine years in the case of
other varieties (Article trees and vines and six
19) years in the case of other
crops and may be reviewed
and renewed for the
remaining period on
payment of fees as fixed by
the rules. The total period
of validity shall not exceed:
(a) 18 years from the date
of registration of the
variety in the case of trees
and vines,
(b) 15 years from the date
of the notification in the
case of extant varieties; and
(c) in other cases, 15 years
from the date of
registration of the variety

71
 CHAPTER- 5

RIGHTS OF FARMERS UNDER THE PLANT VARIETY

PROTECTION AND FARMERS’ RIGHTS ACT, 2001 AND
INTELLECTUAL PROPERTY RIGHTS

72
 5.1 Introduction

This chapter proposes to examine the issues relating to farmers’ rights in the context
of Intellectual Property Rights, in genetically engineered (GE) crops and seeds, for which
patents are increasingly available and their impact on the rights of the farmers.

The concept of farmers' rights is basically contradictory to the principles of

intellectual property. Intellectual property rights are intended to provide incentive for a
limited period as a reward for the innovation.110

Farmers' right is a retrospective reward of unlimited duration for the conservation of

plant genetic resources. The rights provide reward for the innovations done on the field. The
Keystone International Dialogue on Plant Genetic Resources between 1988 and 1991 offered
suggestions for developing a recognition and reward system for informal innovation
represented by the concept of farmers' right. Farmers' rights are the countervailing force to
breeders' right and patents on seeds and plants. The knowledge and rights of local community
has to be strengthened in order to conserve our biodiversity. The concept of farmers’ right
had its origin in the FAO International Undertaking on Plant Genetic Resources. The
Resolution defines farmers' rights as "rights arising from the past, present and future
contributions of farmers in conserving, improving and making available plant genetic
resources, particularly those in centers of genetic diversity. These rights are vested in the
international community as trustees for present and future generations." Innovation by
farmers began from the time of settled agriculture.

Though the process of innovation by the farmer may not conform to the strict terms of the
distinctness, stability and uniformity requirement, they also have definite criteria to identify
improved varieties they develop. But these innovations are rarely recognized. Farmers do not
breed in ideal laboratory conditions, but on actual knowledge of the environmental conditions
through natural selection and continuous evolving process. Indian farmers have evolved
many varieties that are resistant to salt, flood, drought etc. If the breeders who develop a new
variety from the existing genetic resources have a right of ownership and control by virtue of
laboring to develop the new variety, the farmers also have a right for identifying, conserving
and developing the traditional variety. It is the farmer who has safeguarded the tremendous

110
Elizabeth Verkey, ‘Law of Plant Varieties Protection’, (2007) Eastern Book Co., Lucknow, p. 145.
73
biodiversity that breeders and seed industries use as raw material. There have been various
efforts at the international level for recognizing the contribution of the farmers.

5.2 Farmers' Rights

Developing countries are in the process of attempting to fulfill these demands by

evolving IPR regimes that simultaneously protect the rights of breeders and farmers. While
TRIPS does not formally recognize farmers' rights, it does allow the enactment of sui generis
legislation for PVP. There are many articulations and enactments at the national level in
favour of sui generis legislation which protects the farmers and their plant varieties. For
instance, India which did not have existing sui generis legislation developed its own version
of PVP, recognizing both Plant Breeders’ Rights and farmers' rights.

Farmers’ rights are a precondition for the maintenance of crop genetic diversity,
which is the basis of all food and agriculture in the world. Genetic diversity of agricultural
plants is the very basis of farming. It provides the pool from which plant traits can be found
that meet the challenges of crop pests and diseases, of marginal soils, and – not least – of
changing climate conditions and it is vital for spreading risks for small-holder farmers.

In general outlook, the idea of farmers' rights denotes in simple terms the rights of
farmers over their resources and knowledge. The term 'resources and knowledge' can have
wide meaning and scope in common parlance. It may encompass a number of concerns
related to all important factors of agricultural production such as land, water, seeds,
traditional agricultural practices, harvest and traditional agricultural knowledge. However, the
contemporary legal regime does not address all these aspects of farmers' rights. In fact,
farmers' rights as a legal norm have defined boundaries. Broadly there are two major issues
that are addressed by the concept of farmers' rights in the contemporary legal context. They
are: plant genetic resources and traditional agricultural knowledge.

Plant genetic diversity is probably more important for farming than any other
environmental factor, simply because it is the factor that enables adaptation to changing
environmental conditions. Farmers, in most developing countries, have been the main actors
involved in saving seeds, cross breeding to produce new varieties with better suited traits,
biodiversity management and so on. They have played the combined role of producer,
consumer and conserver. They are thus the original rights-holders of agricultural resources,
74
especially in developing countries. This was the beginning of the conception that farmers are
also intellectual property rights-holders in a similar, if not in a more forceful way, as the
modem biotechnologically assisted plant breeders are on the whole, it was recognition that
while the commercial breeders were protected by either PBRs or through patents in plant
varieties, the farmers' contributions as preservers and developers of the gene pool, on which
was based much of the incremental changes that were made by commercial breeders,
remained unrewarded and unprotected. There was no system for compensating or providing
incentives for the farmers.

The inequity and exploitative implications of intellectual property rights in

agriculture, PBRs or patents, led into recognition that farmers have a prior right to be
adequately compensated for the resource they hold, in terms of both their knowledge and
genetic pool. The livelihood rights of the farmers thus needed to be protected by securing
their access to the genetic resources under threat by patents and plant breeders' rights (PBRs).

5.3 Evolution of Farmers’ Rights

During the 1960s and 1970s, developed countries started granting PBR and patent
right on plant varieties. Plant breeding by private seed industry was gaining force in
developed countries. The grant of patent on varieties totally privatizes the seed supply with
no right to farmers to save seed from their farm. The PBR is more just, because it can
concurrently accommodate farmers' right to save, sow, exchange, share or sell seeds. The
impact of farmers' rights on seed or its denial is very different on the farmers of rich
developed and poor developing countries. Farming sector of rich countries is different from
that in India in many ways. Only less than 4 per cent of the population of rich countries is
involved in farming, while it is more than 65% in India. The average farm size in rich
countries is few hundred acres, while this is less than one acre in India. The resource and
technological capabilities of farmers in rich countries are far superior to those of Indian
farmers. The diversity of crops and wealth of varieties associated with agriculture is far richer
in India than in the agriculture of rich countries. Hence, the farmers of rich countries suffer
far less disadvantage than their poor counterparts in India by the denial of farmers' traditional
right on seeds.

75
 The first use of Farmers’ Rights as a political concept dates back to the early
1980s, when Pat Roy Mooney and Cary Fowler of the then Rural Advancement
Foundation International coined the term to highlight the valuable but unrewarded
contributions of farmers to plant genetic resources for food and agriculture.

The idea came up as a countermove to the increased demand for plant breeders' rights,
as voiced in international negotiations, to draw attention to the unremunerated innovations of
farmers that were seen as the foundation of all modern plant breeding111. Pat Roy Mooney
argued that any legal arrangement which may hinder farmers in their practice of saving, re-
using, improving and developing seeds should be condemned. According to Cary Fowler, the
concept of FR can be traced back to the work of the renowned plant explorer, geneticist and
plant breeder Jack R. Harlan (1917-1988), who spoke of farmers as the 'amateurs' who had in
fact created the genetic diversity that had become subject to controversies. In fact, today's FR
reflects both these aspects.

Farmers' rights on seeds variety in rich countries like India promote the global public
good cause of enrichment and conservation of crop diversity. Without this right farmers
cannot continue the important process of variety selection and conservation, which are
responsible for evolution of novel genetic diversity in crop plants. Hence, enrichment of
genetic diversity by on-farm conservation is of high importance to global agriculture. In
recognition of this critical factor, an independent Commission on plant genetic resources was
constituted in 1983 by the Food and Agriculture Organization, Rome, under the
Chairmanship of Prof. M.S. Swaminathan. The International Undertaking on Plant Genetic
Resources (IUPGR) appointed by this Commission affirmed the need for global protection of
farmers' rights on seeds, particularly in countries, which are rich in plant genetic diversity.
Farmers' rights defined by the IUPGR were recently made into a legally binding international
treaty. This treaty is called International Treaty on Plant Genetic Resources for Food and
Agriculture (ITPGRFA). India is a party to this treaty and hence committed to protect
farmers' rights on seeds.

Farmers’ Rights formally, first took place with the Food and Agriculture Organisation
(FAO) of the U.N., in relation to the making of the International Undertaking on Plant
Genetic Resources for Food and Agriculture (IUPGRFA). FRs were addressed in an FAO
forum for the first time at the First Meeting of the Working Group in Rome, in 1986, which

111
Available at http://www.farmersrights.org/about/fr_history_part1.html. visited on 20-03-2018.
76
focused on legal and technical matters in addition to discussing the feasibility of establishing
an international fund for plant genetic resources. In their analysis of country reservations to
the IUPGRFA, the Working Group identified various categories of reservations, one of which
involved PBR and considered ways and means to reach negotiated solutions to the problem
so as to achieve widest possible adherence to the IUPGRFA. One solution found was to
recognize the rights of plant breeders. It was in this context that FRs were addressed for the
first time. The working Group emphasized that, in addition to the recognition of PBR,
specific mention should be made of the rights of the farmers of the countries where the
materials used by the breeders originated. These materials were the result of the work of
many generations and were a basic part of the national wealth. On the basis of the discussion
in the Working Group on how to deal with country reservations to the IUPGRFA and attract
greater adherence, a report was produced for the Second Session of the Commission on Plant
Genetic Resources (CPGR), held in Rome in March 1987.

The second meeting of the Working Group of the Commission on Plant Genetic
Resources took place in Rome in 1987. At this meeting, FR was addressed in greater detail,
and thus this report is a milestone in the history of FR. The most important parts of the same
are reproduced below:

“During the discussion of document CPGR/87/4, the Working Group agreed that the
breeding of modern commercial plant varieties had been made possible first of all by
the constant and joint efforts of the people/farmers (in the broad sense of the word)
who had first domesticated wild plants and conserved and genetically improved the
cultivated varieties over the millennia. In recent years some countries had
incorporated the rights of the latter group into laws as 'Breeders' rights', i.e. the right
of professional plant breeders or the commercial companies which employ them to
participate in the financial benefits derived from the commercial exploitation of the
new varieties. However, as document CPGR/87/4 pointed out, there was presently no
explicit acknowledgement of the rights of the first group, in other words, no 'Farmers'
rights'. The Working Group considered such rights to be fair recognition for the
spade-work done by thousands of previous generations of farmers. And which had
provided the basis for the material available today and to which the new technologies
were in large measure applied. Alternative names such as 'right of the countries of

77
 origin' or 'gene donors', were proposed, but the conclusion was that the name
'Farmers' Rights' was the most expressive”112.

The working group however had entrusted the further development of the concept of
FRs with a small contact group, which were to negotiate mainly three themes called the
breeders' rights, farmers' rights, and the free exchange of genetic material. The Working
Group concurred that Breeders' rights and Farmers’ right were parallel and complementary
rather than opposed, and that the simultaneous recognition and international legitimization of
both these rights could help to boost and speed up the development of the people of the
world. The idea of developing farmers' and plant breeders' rights simultaneously in order to
seek a balance between the two also emerged at this meeting.

5.4 Food and Agriculture Organization (FAO) and Farmers’ Rights

William Brown, then Chairman of the US National Board for Plant Genetic
Resources, initiated a contact with the Keystone Center in Colorado, with the request of
holding a dialogue on plant genetic resources among international stakeholders. The
Keystone Approach was to invite stakeholders as individuals, to reduce conflict level and
seek dialogue, to keep the discussions off the record, and to produce a report on the basis of
consensus only. The Keystone Dialogues took place in 1988, 1990 and 1991, in Keystone, in
Chennai and in Oslo respectively, and were chaired by the distinguished Prof. M.S.
Swaminathan, who also led an Interim Steering Committee that gave direction to the
dialogues.

One of the recommendations of the Keystone centre was that there should be an
international fund for helping the farmers to conserve and preserve the genetic diversity, as a
compensation which is as an obligation. A breakthrough of the FRs took place in the twenty
fifth session of the FAO in 1989, where it adopted a Resolution (5/89) on Farmers' Rights. As
per this non-binding resolution, Farmers' Rights meant "the rights arising from the past,
present and future contributions of farmers in conserving, improving, and making available
plant genetic resources, particularly those in the centres of origin/diversity. These rights are
vested in the International Community, as trustee for present and future generations of
farmers, for the purpose of ensuring full benefits to farmers, and supporting the continuation

112
Available at http://www.farmersrights.org/about/fr_history_part2.html. visited on 20-03-2018.
78
of their contributions, as well as the attainment of the overall purposes of the International
Undertaking".

However, first of all there was no shape to this concept yet, as this definition did not
make it clear as to what were the rights, who were to get these rights, and in what manner.
Another thing was that these Resolutions considered PGR as the "common heritage of
mankind", so that they should be freely available to all. The contradiction here was that,
while the FAO Resolution 4/89 clarified that there is no incompatibility between UPOV and
the IU it meant that, the PBR will be protected even while access is given. However, the PGR
of the farmers will remain commonly available to all due to the "common heritage" concept.

Fortunately, FAO Conference 1991 stated that the concept of genetic resources
being the heritage of mankind, as applied in the IUPGRFA was subject to the
sovereignty of the States. With the new formulations in Resolution 3/91, the FAO
members also felt it necessary to state that the conditions for access to plant genetic
resources required further clarification.113 This was a highly controversial issue,
which caused heated debate. To balance between proponents and opponents and reach
to a consensus decision, the Conference again adopted provisions on Farmers' Rights.
Building on the negotiations in 1987 and the 1989 resolutions, the Conference
decided to have an international fund of plant genetic resources for helping the
farmers, which never materialized. Thus, in the international level, this is the
beginning of the Farmers’ Rights.

It was also clear that farmers are to be given some rights while access is allowed to
the PGR which they conserved, as a reward, and they should also be allowed to continue to
use the PGR of the developed varieties for the future conservation". So, farmers' access to the
PGR of the plant breeders, and plant breeders' access to the PGR of the farmers are thus the
central issue, as this area is not yet conceptualized and left to the national legislation, the
shape of FR could be found out only in the national legislations. Thus, this thesis tries to find
out what types of rights are given to farmers during their access to the PGR of plant breeders,
and during the plant breeders' access to their PGR and TK.

113
C 1991/REP, Conference Resolution 3/91, Paragraph (d).
79
 The Full Court of Australia in the case Cultivaust (P) Limited v. Grain Pool (P)
Limited114 observed with regard to farmers' rights as:

“the effect of Sections 14 and 17 of the PVP Act is that a person engaged in farming
activities (a 'farmer'), who legitimately obtains propagating material by purchase, may
harvest further propagating materialfrom plants grown from the propagating material
so purchased and may condition that further propagating material for the farmer's use
for reproductive purposes and may reproduce that further propagating material. The
farmer may do those same acts in relation to a third generation of propagating
material harvested from that second generation of propagating material. The farmer
will not infringe plant breeders right by doing so. Section 14(1) will not apply to the
harvested material that consisted of propagating material used for those purposes.
However, Section 14(1) will apply to all other material harvested from any of that
propagating material."

India is the first country which has included farmers' rights in its protection of plant
varieties. The 2001 Act provides that a farmer who has bred a new variety is entitled for
registration and protection as a breeder of a new variety.115 The definition of breeder also
clarifies this position by including within the fold of breeder, farmer or group of farmers.116

5.5 Farmer - Definition

Farmer is defined as a person or group of persons who are engaged in farming

directly or by supervision by engaging others and who conserve or preserve traditional
knowledge associated with the plant genetic resources

(a) Hold the control of PGR and

(b) Save, use, exchange and re-use plant genetic resources.

As per this definition, the rights associated during access to Traditional Knowledge go
to those who hold the PGR, and the rights regarding the use, save, exchange, and re-use of

114
[2005] FCAFC 223. Full Court of Federal Court of Australia.
115
PVPFR Act, S. 39(i) – (1) Notwithstanding anything contained in this Act – (i) a farmer who has bred or
developed a new variety shall be entitled for registration and other protection in like manner as a breeder of a
variety under this Act;
116
Ibid., S. 2(c) – “breeder” means a person or group of persons or a farmer or group of farmers or any
institution which has bred, evolved or developed any variety;
80
PGR or the plant breeder go to those who are engaged in farming and are responsible for
further production.

The Protection of Plant Varieties and Farmers Rights Act, 2001 defines, a farmer as
any person who –

i. cultivates crops either by cultivating the land himself; or

ii. cultivates crops by directly supervising the cultivation of land through any other
person; or
iii. conserves and preserves, severally or jointly, with any 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.”117

The PVPFR Act defines even an agricultural labourer as a farmer, as the only ingredient
necessary is, cultivation of crops, irrespective of the ownership over the land. Even a
landlord is defined as a farmer, even if he does not cultivate it himself, but only supervises.
An addition that is found in this definition is, a person who conserves and preserves, or adds
value to wild or traditional varieties are also considered as a farmer. This is a change in the
definition of farmer which is caused due to the new plant breeders rights, and as this Act
deals with PBRs as well this change is also adopted in the definition.

In the international level, the rights of the farmers are recognised to their efforts in
conserving, preserving and making available the PGR for further development. It follows
from this that, only persons who do the above are entitled to FRs. Thus, if there are a group of
persons who were identified as the conservers of a particular variety of rice which is very
commonly available, they can be given rights over the same. Based on the same reason, they
are also entitled to the right to use, save, exchange and re-use the seeds of even the protected
variety. Suppose person, in India, who gets engaged in farming after retirement is using the
seeds of the protected variety, are they entitled to the right to use, save, exchange, and sell the
same? The answer is not based on the above reason for FRs, because the latter person did not
conserve, preserve and make available the PGR to the world. If that is the case, he will not be
even called a farmer. Thus, he will not be entitled to the rights emanating from the right to

117
PVPFRA, Section 2 (k) “farmers” 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.
81
use, called the right to compensation in case of non performance or poor performance of the
seeds (this is a right given in the PVPFR Act).

5.6 Deficiency in the Farmers' Rights Concept

In fact, while access is given to the PGR of the farmers, one thing should be
remembered, and it is that, for a person who develops a new variety using this PGR is going
to be given an Intellectual Property Right called the PBR. This shows that there is a
possibility of privatizing the natural resources like the plants. Or that, property rights can be
given on plant varieties. To counter this argument regarding FRs should be that, same kind of
a property right should be given to the farmers as well. So, there is a scope of developing a
property regime for FRs. There can be many rights from the Human Rights angle as well.
These can be summarized as below.
The plant breeders are given the IPR called the PBR because of the intellectual input
in developing a new variety, which is of various advantages to the society. While examining
the same regarding the PGR conserved and preserved by the farmers, it should be said that
there has to be intellectual input in identifying the best PGR, and conserving them. Regarding
TK, it is nothing but the constant experimentation and observation of the farmers which made
it possible to identify the TK associated with a particular PGR. Without intelligence, even the
conservation and preservation of both these are not possible.
The issue of farmers’ rights is significant in relation to PBRs as provided in the
UPOV or TRIPS. In fact, the concept of farmers’ rights was developed in the context of the
development of intellectual property rights in agriculture.
However there were no legal instruments at a multi-national or national level that protected
farmers rights over their plant varieties. The attempts to acquire patent rights in “Basmati
rice”, “Neem”,118 “Turmeric”,119 etc were the outcome of non-enactment of laws on farmers’

118
The European Patent Office (EPO) revoked in its entirety patent granted to the US Department of
Agriculture and the multinational corporation W.R. Grace for a fungicide derived from seeds of the Neem tree.
As a pesticide neem extracts were used against more than 250 pests. It is also effective against fungus diseases.
The properties of neem are also used to cure common colds and flu.
The primary argument of the Indian Government was that derivatives of neem were part of the
traditional knowledge of our Country and that fungicide qualities of the neem tree and its use had been known in
India for over 2000 years. The multinational took the case in appeal and in 2005, the European Patent Office
upheld the contentions or the Indian Government and dismissed the appeal.
119
Turmeric (Curcuma longa) is a plant of the ginger family yielding saffron-coloured rhizomes used 'as a spice
for flavouring Indian cooking. Its unique properties also make it an effective ingredient in medicines, cosmetics
and as a colour dye. As a medicine, it is traditionally used to heal wounds and rashes.
82
rights. This led to increasing demand for protection of farmers’ rights and their genetic
resources.

Basmati is a variety of rice from the Punjab provinces of India and Pakistan. The rice
is a slender, aromatic long grain variety that originated in this region and is a major export
crop for both the countries.

The "Battle of Basmati" started in 1997 when US rice breeding firm Rice Tec Inc.
was awarded a patent relating to plants and seeds, seeking a monopoly over various rice lines
including some having characteristics similar to Basmati lines. Concerned about the potential
effect on exports, India requested a re-examination of this patent in 2000. The patentee in
response to this request withdrew a number of claims including those covering basmati type
lines. Further claims were also withdrawn following concerns raised by the USPTO. The
dispute has however moved on from the patent to the misuse of the name "Basmati". In some
countries the term "Basmati" can be applied only to the long grain aromatic rice grown in
India and Pakistan. RiceTec also applied for registration of the trademark 'Texmati' in the UK
claiming that "Basmati" was a generic term. It was successfully opposed, and the UK has
established a code of practice for marketing rice. Saudi Arabia (the world's largest importer
of Basmati rice) has similar regulations on the labelling of Basmati rice.

The Code states that "the belief in consumer, trade and scientific circles is that the
distinctiveness of authentic Basmati rice can only be obtained from the northern regions of
India and Pakistan due to the unique and complex combination of environment, soil, climate,
agricultural practices and the genetics of the Basmati varieties".

But in 1998 the US Rice Federation submitted that the term "Basmati" is generic and
refers to a type of aromatic rice. In response, a collective of US and Indian civil society
organizations filed a petition seeking to prevent US-grown rice from being advertised with
the word "Basmati". The US Department of Agriculture and the US Federal Trade
commission rejected it in May 2001, and neither considered the labeling of rice as

In March 1995, two expatriate Indians, Suman K. Das and Hari Har P. Cohy at the University of
Mississippi Medical Centre, Jackson, were granted a US patent for turmeric to be used to heal wounds.
The Indian Council for Scientific and Industrial Research (CSIR) filed a case with the US Patent Office
challenging the patent on the grounds of "prior art," i.e. existing public knowledge. CSIR said turmeric has been
used for thousands of years for healing wounds and rashes and therefore its use as a medicine was not a new
invention. CSIR also presented an ancient Sanskrit text and a paper published in 1953 in the Journal of the
Indian Medical Association. The turmeric case failed to meet the novelty criteria. The US PatentOffice upheld
the objection and cancelled the patent.

83
"American- grown Basmati" misleading, and deemed "Basmati" a generic term. The name
"Basmati" can be protected by registering it as a Geographical Indication. However, India
and Pakistan will have to explain why they did not take action against the gradual adoption of
generic status of Basmati over the last 20 years. For example, India did not lodge a formal
protest when the US Federal Trade Commission formally declared "Basmati" generic.

There is an inherently conflictual relationship implied in the two rights, i.e., the
breeders’ rights and the farmers’ rights. Farmers traditionally re-use the seed from their
harvests and therefore come in direct competition with the breeders who develop plant
varieties for commercial interests and then seek legal protection for the exclusive market
exploitation of their varieties. Intellectual property regime takes away the traditional and
community- centered control over seed conservation and use, which has been the regular
practice of farming communities all over the country.

So, there is every justification for developing a sui generis law for the protection of
Farmers' Rights as an IPR, which could be left to the national legislations. In fact, this will be
a collective right, as different from an individual right. The usual novelty criteria will have no
significance at all. The advantage of having such property right should be to avoid
misappropriation of the PGR and TK, and to allow its usage only by paying compensation to
allowed set of purposes.

5.7 The Emergence of Farmers’ Rights in India

The Plant Variety Protection and Farmers’ Rights Act, 2001 initially emerged as a
result of the demands of the seed industry for breeder’s rights. A chapter on Farmers’ Rights
was added to the Act due to pressure from NGOs.

Agriculture was generally excluded from IPR protection in India and there was no
legal system of Plant Breeders’ Rights or Farmers’ Rights for decades. ‘Common heritage’ or
the principle of free exchange based on the view that the major food plants of the world are
not owned by anyone and are a part of our human heritage governed genetic resources.
Farmers were free to use, share and exchange seeds and since breeders could not acquire
plant variety protection, there was no system of benefit sharing or compensation.

84
 The initial demands for IPRs in agriculture arose with the change in policy that
allowed private sector entry into the seed sector with the New Seed Policy of 1988. The Seed
Association of India, formed in 1985, first actively promoted the need for plant breeders’
rights in India. With the conclusion of the TRIPS agreement there was also external pressure
on India to establish PBRs in India. India’s public sector had initially objected to plant variety
protection partly because it would enable private companies to take advantage of breeding
material developed by the public sector, but this stance underwent a change due to the
changing role of the private sector and the relationship between the public and private
sectors.120 Enormous protest against implementing TRIPS and introducing PBRs, arose from
non-governmental organizations and farmers’ lobbies in India. Their most effective and
forceful argument was that the IPR system as outlined in TRIPS recognizes only agricultural
innovations of breeders and corporations, but ignores informal innovations of farmers and
communities, especially in developing countries. They asserted that TRIPS and western IPR
regimes promote ‘bio-piracy’ as they only recognize formal innovations and ignore
indigenous knowledge systems. Bio-piracy refers to the utilization of traditional knowledge
or resources by industrialized nations to create profitable products without compensation.
TRIPs allows countries to establish ‘effective sui generis’ systems, but many developing
countries are implementing even higher standards than the minimum requirement, such as
UPOV 1991. Developing countries are also subject to pressure to implement higher standards
from TRIPs plus agreements, including regional trade agreements.

The government formulated a draft of a bill to grant PBRs in 1993/94. The draft led to
enormous controversy in spite of the government’s attempts to take into account the various
demands of the actors while framing the bill. The bill provided for plant breeders’ rights
through provisions based on UPOV. The first draft of the bill also contained a clause on
community rights and farmers’ rights. The farmers right under this draft included farmers’
right to save, use, exchange propagating material of seed and benefit sharing. There was no
concept of farmers’ rights as ownership rights or rights to register their varieties in this draft.

The bill was opposed both by NGOs and industry and with this impasse the
government began the process of revising the draft. The Ministry of Agriculture prepared a
second draft in 1996 and a third one in 1997. The third draft added the words ‘Farmers’

120
Shaila Seshia, Plant Variety Protection and Farmers’ Rights – Law Making and Cultivationof varietal
control, Economic and Political Weekly, July 6th 2002, p. 2742.

85
Rights’ in the title and was labelled the Plant Variety Protection and Farmers’ Rights Act.
NGOs, however, criticized both of the bills for not providing adequate protection to farmers.
NGOs claimed that benefit sharing was vague under the bill, there were no farmer’s
representatives in the Authority, and there was no system for registering farmers’ varieties.

The process of accommodating the interests of various actors began with another draft
introduced in Parliament in 1999 (Protection of Plant Varieties and Farmers Rights Bill) and
sent to a Joint Committee of Parliament (JPC). The Joint Parliamentary Committee’s main
revision was the inclusion of a separate chapter on Farmers’ Rights. In 2001, the Bill was
passed and made into a law.

The final version of the Bill was largely accepted by the major stakeholders. Industry
understood that the concept of farmers’ rights as seen as an alternative IPR system actually
reinforces their position on IPRs and enables them to gain plant breeders’ rights in India.
NGOs accepted the bill as it provided for a mechanism for granting protection for farmers’
varieties on par with breeders’ varieties.

5.8 PVPFR Bill 1999 and Farmers’ Rights

The PVPFR Bill 1999 provided for Farmers’ rights under Section 31 which reads as :

"Nothing contained in this Act shall affect the right of a farmer to save, use,
exchange, share or sell his farm produce of a variety under this Act : provided that a farmer
shall not be entitled for such right in case where the sale is for the purpose of reproduction
under the commercial marketing arrangement".

Internationally, farmers' rights have only been acknowledged in a non-binding

resolution of the FAO Conference known as the International Undertaking on Plant Genetic
Resources. No treaty has yet recognized these rights and still there is disagreement on the
nature of the rights. The question as to whether the farmers' rights should be specifically
provided in the proposed legislation which as such under the TRIPS Agreement is meant for
regulating the exclusive rights granted to breeders on their new plant varieties. The only
relevant aspect which needs to be amplified in the Bill is that the farmers shall continue to
enjoy rights and privileges enjoyed by them as hitherto, i.e. prior to the enactment of this
legislation. This would mean that the exclusive rights granted to the breeder shall not extend

86
to any normal activity of the farmer. It would be within farmer’s rights to save seeds for his
new harvest, exchange seeds with other farmer and sell seeds surplus to his requirement
which need to be disposed off in the market. Legally, the farmer cannot use the same brand
name as that of the breeder for sale of his surplus produce. However, there should not be any
difficulty in labelling the surplus seeds by the denomination given to the variety harvested
from the protected seeds for sale by the farmer in the market. The Bill provides for benefit
sharing for the farmers if they are able to establish the linkage of the new protected variety to
the variety developed and being used by him. This is a very good provision and the long
pending need to remunerate the farmers for their achievements would be accomplished. The
concerned Organization will have to act fast and in a judicious manner to do justice to this
laudable provision.

There is also no need to provide for any protection to the farmers' variety as the same
would not qualify for grant of exclusive rights because such varieties have already fallen in
public domain. In case any farmer wants to embark upon commercial activity of its new
protected variety, he must obtain compulsory license right for such activity.

5.9 Farmers’ Right under the PVP and FR Act 2001

The government of India inclined to accept patents described patenting of seeds as

great good fortune for farmers and prosperity for rural India. But aggressive and sustained
campaign initiated by the Gene Campaign and other NGO communities forced the
government to change its stand and opt for the TRIPS sui generis system instead.

Gene Campaign's position right from the start has been that if the status quo has to be
changed and PBR is to be granted then our legislation should also grant a strong farmers'
right simultaneously. Gene Campaign's demand has been for farmers' right that would allow
the farming community to retain the same control over seed and seed production. At the same
time, it was also insisted by the Gene Campaign that Indian law has to grant well defined
rights to its farmers. These rights have to be recognized because of the past and present
contributions made by the farming community to the conservation of agro bio-diversity and
their role as dynamic breeders of new varieties which anchor the food security of the world.
The demands made by this campaign for farmers' rights were comprehensive and included
several other features that would protect the farming community. This includes payment for

87
the use of farming varieties and their informed consent along with a compensation for the
farmer if poor quality spurious seeds led to crop failure. It was also demanded to protect the
right of the farmer as a seed producer while making certain new companies and also as a
seller to other farmers even if a breeders' right protected the variety. This right of the farmer
to sell seed was crucial to maintaining his control over it and moreover it is also central to the
nation's self reliance in agriculture. This clause, the right to sell seed was the most fiercely
resisted and was till the end, the major bone of contention.

As a result of the Gene Campaign and efforts of NGOs, the Indian government in
response to TRIPS Agreement relented and started enacting a series of domestic laws to
implement the commitments it has made. The PVPFR Act, 2001, is the Indian sui generis
legislation, which is the first in the world to grant formal rights to farmers in a way that their
control over genetic resources and their self-reliance in agriculture is not jeopardized. The
significant aspect of this legislation is that it charts its own course, deviating from the norms
set by UPOV. The innovative Indian legislation has opened up interesting possibilities for
developing a developing country platform for regulating breeders' and farmers' rights so that
both are acknowledged and protected.

The Indian law now recognizes the farmer not just as a cultivator but also as a
conserver of gene pool and a breeder who has bred several successful varieties. The Bill
makes provisions for such farmer's varieties to be registered with the help of NGOs so that
they are protected against being scavenged by formal sector breeders. The rights of rural
communities are acknowledged as well. The farmers' rights defined is an international
recognition to the contribution made by farmers for the creation and conservation of genetic
diversity in all crop plants and that this diversity provides the basis for global agriculture, in
the past, present and future. This recognition includes a need to provide reward and monetary
incentives to promote conservation by farmers, particularly from regions of high genetic
diversity. The IUPGR also affirmed the need to make the benefits of crop improvements by
breeding and other scientific methods accessible to farmers. All these elements of farmers'
rights are incorporated in the PVPFR Act.

The Act makes provisions for such farmer’s varieties to be registered, with the help of
NGOs so that they are protected against being scavenged by formal sector breeders. The
rights of rural communities are acknowledged as well. Farmers' rights are dealt under Sec. 39
of the Act in the following way:

88
 A farmer shall be deemed to be entitled to save, use, sow, exchange, share or sell his
farm produce including seed of a variety protected under this Act in the same manner as he
was entitled before the coming into force of this Act; provided that the farmer shall not be
entitled to sell branded seed of a variety protected under this Act.

Explanation: For the purpose of clause (iv) branded seed means any seed put in a
package or any other container and labelled in a manner indicating that such seed is of a
variety protected under this Act.121

Hence, Explanation to Sec. 39(iv) allows the farmer to sell seed in the way he has
always done, with the restriction that this seed cannot be branded with the breeder's registered
name. In this way, both farmers' and breeders' rights are protected. The breeder is rewarded
for his innovation by having control of the commercial market place but without being able to
threaten the farmer’s ability to independently engage in his livelihood, and supporting the
livelihood of other farmers.122

5.10 Protection of Interests of Farmers

The primary compulsion for enacting the PVPFR Act is India's commitment with
WTO to provide intellectual property protection on plant varieties. While complying with this
commitment, Indian lawmakers have shown equal concern to respect the intellectual
contribution of Indian farmers, who developed all traditional varieties. They were also
concerned that the protection of intellectual property rights on varieties should not erode the
traditional rights of farmers on seeds. PBR was designed to promote development of superior
varieties beneficial to farmers. Farmers are also protected from unethical business practices
of selling seeds with exaggerated claim on their performance or levying unreasonable prices.
The PVPFR Act seeks to institutionalize the public interest on conservation by provisioning
reward and recognition to individual and community conservers.123

121
PVPFR Act Sec. 39 (1) (iv).
122
Suman Sahai, India’s Plant Variety Protection and Farmers’ Right Act, 2001, Current Science, Vol. 84, No.
3, Feb. 2003, pp. 408-410.
123
A unique aspect of the 2001 Act is that it confers three concurrent rights – to breeders, to farmers and to
researchers. When it comes to Farmers’ Rights, the Act recognizes the farmer as cultivator, conserver and
breeder.

89
 5.11 India's Protection of Plant Varieties and Farmers' Rights Act

India has enacted PVP and FR Act in compliance to the TRIPS requirement. The Act
deals with PVP as well as the farmers' rights and follows a holistic approach. The sui generis
system adopted by India is unique in the world in the sense that it has taken the farmers'
rights concept a step forward and genuinely addresses the concerns of farmers as breeders,
innovators, conservers, etc. It has tried to incorporate the features of UPOV and ITPGRFA
along with certain distinctive features of its own as per requirement of farmers. The term
'farmers' rights' per se is used only in the Indian legislation, ITPGRFA and Bangladesh draft.
No other Asian countries' Act uses the term 'farmers' rights'. PVP and FR Act of India
recognizes various rights of farmers as per Section 39.

Rights Provided to Farmers in the PVP and FR Act, 2001

Description of Rights Also available in

1. Farmers’ rights  Rights to seeds ITPGRFA, UPOV
 Right to register varieties UPOV
 Right to reward and ITPGRFA
recognition as conserver
 Right to information about
expected performance and
compensation for under-
performance
2. Other rights  Right to benefit sharing ITPGRFA
 Right to compensation for ITPGRFA
undisclosed use of traditional
varieties
 Right to adequate availability UPOV
of registered material
 Right to free services
 Protection from innocent
infringement of breeders'
rights

90
 5.12 The Nine Rights of Farmers

The PVPFR Act provides a separate chapter on farmers' rights. 124 The farmers' rights
contained in this chapter and elsewhere in the Act constitute nine important rights. These
rights acknowledge the role of farmers in conserving varietal diversity, honour their
traditional rights on seeds to promote conservation, their poor economic capability to buy
seed for every sowing, their low legal literacy and their entitlement for equitable share of
benefit arising from new varieties.

5.12.1 Right on Seeds

The farmers' right on seeds is a traditional right enjoyed by farmers all along the
history of agriculture.125 UPOV 1978 Act included this as farmers' privilege while UPOV
1991 Act made it an optional exception. This privilege has been recognized as fundamental to
the realization of farmers' rights by ITPGRFA as described in its preamble. This right
includes the right to save the seed from one's crop and use the saved seed for sowing,
exchanging, sharing or selling to other farmers. It is fundamental to the conservation role
performed by farmers. The process of conservation encompasses the total genetic variability
in time and space, including traditional and new varieties; the farmers' right on seeds
encompasses the total genetic variability, including protected varieties. The PVPFR Act,
therefore, allows this right on seed to all varieties, including varieties registered under this
Act.126 The Act restricts farmers from selling seeds of a protected variety in packages and
containers with labels bearing its registered name.127 To further safeguard this right on the
seeds of registered varieties, the Act prohibits use of technologies like the terminator gene
technology, which destroys the germination capability of saved seeds.128

124
Chapter VI of the PVPFR Act - Sections 39 to 46
125
Bala Ravi, S., India’s Protection of Plant Varieties and Farmers’ Rights Act, Manual on Farmers’ Rights,
MSSRF, 2004.
126
Sec. 39 (1) (iv)
127
The provisions on the right to seed specify that farmers are entitled to save, use, sow, resow, exchange, share
and sell farm produce, including seeds of varieties protected by plant breeders’ rights. They are, however, not
allowed to sell seeds of protected varieties as branded packages. All the same, this stands as the most liberal
legislation to date in this sphere, allowing farmers all the customary rights they previously enjoyed.
128
Section 18 (1) (c).
91
 5.12.2 Right to Register Traditional Varieties

The PVPFR Act allows the registration of traditional varieties or farmers' varieties. 129
Registration of the variety grants PBR on the variety, which allows exclusive legal right
to the PBR-holding farmers to produce and market its seed.130 Farmers are awarded PBR
by the Act on their recognition as breeders. Traditional varieties developed or conserved
by a community of farmers and new varieties developed by one or more farmers are
eligible for registration. In the case of registration of a traditional variety, it is important
to involve all communities associated with its conservation, if there is no clear evidence
to establish an exclusive role for the origin of the said variety. Similarly, when a variety
developed by a farmer is registered, it is important to recognize spousal contribution
under joint ownership. Farmers need not have to pay any fee either to register their
varieties or to renew these registrations.131 This is a major incentive to the innovative
breeders among farmers. On the contrary, professional breeders and public research
institutions are required to pay separately Rs.5,000 to 10,000 as registration and renewal
fees. The PVPFR Act is unique in respect of this right, because the plant variety
protection laws of many other countries do allow only protection of new varieties bred by
professional breeders.

5.12.3 Right for Reward and Recognition

Right to reward and recognition to farmers is based on the fact that their generations
have conserved, improved and made available plant genetic resources, and this contribution
has not been sufficiently recognized or rewarded. ITPGRFA has recognized such a
contribution but not identified it as a component of farmers' right under Article 9. Rather,
Articles 13 and 18 of the Seed Treaty provide for support to farmers who conserve plant
genetic resources.

In recognition of the important role farmers are playing for the conservation of
varietal wealth of crop plants, the PVPFR Act has a provision to reward and recognize
individual farmers or farming and tribal communities for such contribution.132 According to
the Act, a National Gene Fund is to be created to facilitate reward and recognition to eligible
individual farmers and communities. This is provided as an incentive to encourage

129
Sec. 14 of PVPFR Act.
130
Ibid., Sec. 28.
131
Sections 18 and 44.
132
Sections 39 (1) (iii).
92
conservation undertaken by farming and tribal communities. Farmers conserving traditional
varieties and wild species of crop plants are deemed eligible to receive reward and
recognition.

The reward is to be given from Gene Fund. In 2007, the PVP & FR Authority started
the Plant Genome Savior Community Recognition for this purpose. However, such a
provision does not exist in any other Asian country.

5.12.4 Right for Benefit Sharing

Right to benefit sharing is recognized as one of the farmers' rights under Article 9 of
ITPGRFA. Section 26 of the PVP & FR Act of India recognizes the right of benefit sharing
with the breeder of initial variety, where a breeder may include a farmer.

The Act provides for equitable sharing of the benefit earned from the new variety with
farming or tribal communities that had contributed varieties used as parents.133

Normally, all applicants who seek to register new varieties are required to declare the
source of the varieties used as parents for breeding new varieties. 134 Farmers are given
opportunity to submit claims for benefit share, when their variety is used as parents.135
Claims for benefit share is made when breeder discloses the use of specific varieties
conserved by farmers of a region or on the basis of strong grounds which may substantiate
undisclosed use of specific farmers' variety by the breeder. Claims for benefit share has to be
made in Form PV-7, prescribed by the Authority within six months from the date of
advertisement inviting such claims by the Authority. On examination of such claims by the
Authority applicant eligible for benefit sharing and the quantum of benefit to be shared are
decided. The PBR holder of the variety is required to remit the awarded benefit share in the
National Gene Fund.136 The benefit share may be disbursed from the National Gene Fund to
the eligible individual, community or institution.137

Therefore for claiming eligible benefit share, the farming communities should have

 timely information on the varieties being registered under the Act.

133
Section 26 (5).
134
Section 18 (e) and (h).
135
Section 26 (2)
136
Section 26 (6).
137
Sec. 45 (2) (a).
93
  timely understanding on the notification on such varieties inviting claims for benefit
share, and
 capability to understand the disclosed characteristics of the new variety vis-a-vis those
of parental varieties.

The capability of farmers in accessing this right can be strengthened by vigilant farmers'
associations and panchayats by regularly following the notifications of the PVPFR Authority.
Assistance from governmental or non-governmental organizations may also help farmers in
this regard.

5.12.5 Right to get Compensation

The primary purpose of registration of a plant variety under this Act is to establish
exclusive commercial right on the variety. Commercial demand arises from the capability of
the variety for better agronomic performance. Some of the seed companies, however,
promote their seed by making exaggerated claims on the agronomic performance of their
varieties. Farmers purchasing and cultivating such seeds may eventually realize the deceit.
The PVPFR Act has a provision to check such unfair marketing practices by breeders and
their seed sellers. The Act requires that the seed be sold with a declaration on its agronomic
performance and the cultivation conditions ensuring this performance. The performance
could be higher yield, better pest or disease resistance, better quality, and so on. In the event
if farmers are not able to achieve the claimed performance on having cultivated under the
specified conditions, the PBR-holder will be made liable to pay compensation to affected
farmers.138

Such claims for compensation are made to the PVPFR Authority in Form PV-25. The
Authority on confirmation of the compensation claim decides the amount of compensation to
be paid by the PBR-holder. For establishing the compensation claim farmers may be required
to prove that they had cultivated a specific variety with seed marketed by a specific PBR-
holder, that they cultivated variety in accordance with the recommended practices in
recommended region and that they suffered an estimated loss due to poor performance of the
crop.

138
Section 39 (2)
94
5.12.6 Protection against Bad Seed

The farmer in principle is protected against the supply of spurious and/or bad quality seed in
which he is adequately compensated in the event of crop failure resulting from sowing of bad
seeds.

However, the clause is weakly framed, leaving too much to the discretion of the Plant
Variety Authority which will fix the compensation. This could lead to arbitrary decisions and
should be amended. Compensation should be large enough to be a deterrent. In addition, a jail
term should be provided if the breeder repeats the offence.139

5.12.7 Farmers' Right to receive Compensation for Undisclosed use of Traditional

Varieties

It was earlier stated that the cause of benefit sharing arises from a declaration made by the
breeder that the pedigree of a new variety has certain traditional varieties or traditional
knowledge sourced from certain regions/communities. However, there can be situations
where the breeder of a new variety may not disclose the correct identity of parental varieties
or knowledge. Under such circumstances if such parental varieties belonged to one or more
rural communities, they may be denied the opportunity for benefit share due from the new
variety. The communities concerned also may not have the capability to detect such use of
their varieties or traditional knowledge in the breeding of a new variety. Under such
situations, any third party who has a reasonable knowledge on the possible identity of the
traditional varieties or knowledge used in the breeding of the new variety, is eligible to prefer
a claim for compensation on behalf of the concerned local or tribal community.140 The third
party could be an NGO, an individual, a government or private institution. Such
compensation claims are to be submitted to the PVPFR-Authority by such third party. The
Authority on verification of the veracity of the claim shall admit the same and decide on the
compensation to be awarded. The awarded compensation will be remitted in the National
Gene Fund by the PBR-holder. The National Gene Fund shall disburse the compensation to
the party who made the claim. A good understanding of plant varieties and professional skill
in plant breeding science will help in detecting many of such eligible cases for compensation.

139
Sahai S. Plant Variety Protection and Farmers Rights Law’, Economic and Political Weekly, September
2001.
140
Section 41 (1).
95
5.12.8 Farmers' Right for the Seeds of Registered Varieties

One of the objectives of the Act is to promote the availability of high quality seed and
planting material to farmers for accelerated agricultural development. The Act tries to
achieve this objective by ensuring adequate availability of seeds of registered varieties to
farmers at reasonable cost. According to the Act, when the PBR-holder does not satisfy this
requirement three years after registration of the variety, farmers have the right to take the
matter of non-availability of seed, its poor supply, or its high price to the PVPFR-
Authority.141

On receiving such complaints and on its verification, the PVP Authority may take remedial
actions. One of these actions may be enforcement of compulsory licensing. Compulsory
licensing revokes the exclusive right on commercial production and marketing of seed
granted to the PBR-holder and transfer this right to third parties determined by the Authority.
This revoke of exclusive right is done for a period decided by the Authority. The third parties,
who are given right to produce and market the seed, are required to meet the demands and
supply seed at reasonable prices.

5.12.9 Farmers' Right for Receiving Free Services

Considering the poor economic capability of farmers and with a view that this
economic weakness shall not be a hurdle for accessing farmers' rights, the PVPFR Act totally
exempts farmers from paying any fees.142

The Indian PVP &FR Act in Section 44 has exempted farmers from paying any fees
with respect to any proceeding before the Authority or Registrar or the Tribunal or the High
Court. They also need not pay fees for registration of farmers' variety, DUS testing, etc. This
provision is exclusive to India.

This exemption is applicable to individual, group or community of farmers. The

exemption includes the fees required to be paid to the Registrar of Plant Varieties for
registration of farmers' varieties, for conducting tests on them, for the renewal of registrations
and the fees prescribed for opposition, benefit claim, etc. This exemption also covers fees on
all legal proceedings at the PVPA-Tribunal or the Intellectual Property Appellate Board

141
Section 47.
142
Secs. 18 and 44
96
(IPAB) or any Court of law. This exemption, however, does not include fee on lawyers
privately hired by farmers to represent them at the Tribunal or Appellate Board or Courts.

5.12.10 Farmers' Right for Protection Against Innocent Infringement

All laws have penal provisions stating what constitutes an infringement and what
punishment is to be awarded to different proven infringements.143 A safeguard to farmers
against innocent infringement is provided in the Act.144 Section 42 of Indian PVP &FR Act
protects innocent infringement of the rights created under this Act by a farmer, if the farmer
was not aware of existence of such right at the time of infringement. Therefore, no relief or
cognizance of any offence under the Act can be taken as the act is not considered as
infringement.145

According to this, a Court is prevented from prosecution of a farmer on charges of

infringement of the Act, if the respondent farmer makes an affirmation that he/she was not
aware of the legal provision deemed to have been violated by him or her at the time of such
commission.465 This highlights the importance of legal literacy to farmers on this Act, not
only to prevent infringement proceedings against them, but also to create capability to access
the rights provided to them.

5.13 Importance of Farmers' Right to Sell Seed

The pivotal importance of the farmer having the right to sell (not save nor exchange,
but sell) seed has to be seen in the context of seed production in India. In India, the farming
community is the largest seed producer, providing about 87% of the country's annual
requirement of over 60 lakh tons. If the farmers were to be denied the right to sell, it would
not only result in a substantial loss of income for there but far more importantly, such a step
would displace the farming community as the country's major seed provider.146

Weak Farmers' Rights, including denial of right to sell seed, will allow seed
corporations to dominate the seed market since farmers will be denied the right to function as
seed producers. The space vacated by them will be taken by the seed industries since public

143
Chapter X – Sections 64 to 77 deal with Infringement, Offences, Penalties and Procedure.
144
Sec. 42
145
PVP & FR Act 2001, Section 42.
146
Bala Ravi, S., India’s Protection of Plant Varieties and Farmers’ Rights Act, Manual on Farmers’ Rights,
MSSRF 2004.
97
sector institutions have been so weakened by budget cuts that they could not compete. The
seed industry would then become the dominant source of seed. Control over seed production
is central to food security which is in the forefront of national security.147

5.14 Other kinds of Farmers' Rights in the 2001 Act

1. Contribution of Rural/Local Communities

Apart from the right to sell non-branded seed of protected varieties, the rights of
farmers and local communities are protected in other ways too. There are provisions for
acknowledging the role of rural communities as contributors of landraces and farmers'
varieties in the breeding of new plant varieties. Breeders wanting to use farmers' varieties for
creating essentially derived variety, cannot do so without the express permission of the
farmers involved in the conservation of such varieties.

Anyone is entitled to register a community's claim and have it duly recorded at a

notified centre. This intervention enables the registration of farmer varieties even if the
farmers themselves cannot do this due to illiteracy or lack of awareness. If the claim on
behalf of the community is found to be genuine, a procedure is initiated for benefit sharing so
that a share of profits made from the use of a farmer variety in a new variety goes into a
National Gene Fund.

2. Disclosure

Other details supportive of the rights of farmers are the explicit and detailed disclosure
requirements in the passport data required at the time of applying for a Breeders' certificate.
Concealment in the passport data will result in the Breeders' certificate being cancelled.

3. Gurt (Terminator) Forbidden

Breeders will have to submit an affidavit that the variety does not contain a Gene Use
Restricting Technology (GURT) or terminator technology.

147
Sahai, S., An Analysis of Plant Variety Protection and Farmers Right Act 2001, Gene Campaign, New Delhi,
2001.
98
 4. Protection against Innocent Infringement

The draft legislation has also attempted to address a concern voiced by several quarters,
that when the new system of Plant Breeders' rights is imposed for the first time, there will
probably be many cases of unknowing infringement of breeders' rights. Section 42 specifies
that the farmer cannot be prosecuted for infringement of rights specified in the Act if he can
prove in court that he was unaware of the existence of such a right.148

5. Exemption from Fees

Further, protecting farmers from the new set of provisions being put in place, the Bill
stipulates that if farmers wish to examine documents and papers or receive copies of rules
and decisions made by the various authorities, they will be exempt from paying any fees.
Such fees will be payable by all other people.149

5.15 Clauses that Need Amendment

After an indepth study of Farmers’ Rights under the legislation PVP and FR Act,
2001, the scholar feels that certain clauses of the Act needs amendment as detailed below :

1. Benefit Sharing150

The use of farmer’s variety to breed new varieties will have to be paid for. Revenue will
flow into a National Gene Fund. Despite its good intentions of protecting the interests of the
farming community, the formulation of this section 46(2)(d) is likely to create problems in
implementation because the drafting is poor. The Gene Fund should be the recipient of all
revenues payable to the farming community under various heads.

148
Sec. 42 – Notwithstanding anything contained in this Act –
I. a right established under this Act shall not be deemed to be infringed by a farmer who at the time of
such infringement was not aware of the existence of such right; and
II. a relief which a court may grant in any suit for infringement referred to in section 65 shall not be
granted by such court, nor any cognizance of any offence under this Act shall be taken, for such
infringement by any court against a farmer who proves, before such court, that at the time of the
infringement he was not aware of the existence of the right so infringed.
149
Sec. 44 - A farmer or group of farmers or village community shall not be liable to pay any fees in any
proceeding before the Authority or Registrar or the Tribunal or the High Court under this Act or the rules made
there under.
150
Sec. 26 of the PVPFR Act, 2001 and Rules 41 to 44 of the PVPFR Rules 2003.
99
 The method for fixing and realizing benefit sharing should be made simpler and easier to
implement. One approach to fixing benefit sharing could be a system of lump-sum payments,
based for example on (projected) volume of seed sale.

2. Protection against Bad Seed

In providing a liability clause in the section on Farmers' Rights, the farmer in principle is
protected against the supply of spurious and/or poor quality seed leading to crop failures. At
present there is too much left to the discretion of the Plant Variety Authority which will fix
the compensation. This could lead to arbitrary decisions and should be amended. If it is
proven that the breeder has made false claims and the farmer has suffered a crop failure, then
compensation should be awarded amounting to at least twice the projected harvest value of
the crop. Compensation should be large enough to be a deterrent. In addition, a jail term
should be provided if the breeder repeats the offence.

Apart from the right of registration of a new variety, the farmer has the right to register a
farmers' variety.151 This allows ownership rights to the farmers apart from the privileges. The
only condition imposed is that the farmer shall not be entitled to sell branded seed of a variety
protected under the Act.152 Protection against bad seed is a safeguard to the farmer.
According to this provision, the breeder has to disclose to the farmer the expected
performance of the variety under given conditions and if the variety fails to give the expected
performance when it was sold to him, he is entitled to compensation.153 On receipt of a
compensation claim from the farmer under Section 39(2) of the Act, the Authority is required
to give notice to the registered breeder about the compensation claim. On receipt of the notice
from the Authority, the breeder has to file his notice of opposition within three months from
the date of receipt of the notice. The Authority shall after giving an opportunity of being
heard direct the breeder to pay such amount as compensation as it deems fit.

The breeder or applicant is also required to provide information regarding use of genetic
material conserved by any tribal or rural families in the breeding or development of the
variety.154 Any person or group of persons or any governmental or non-governmental

151
PVPFR Act, S. 39 (1) (ii) – the farmers’ variety shall be entitled for registration if the application contains
declaration as specified in clause (h) of sub-section (1) of section 18;
152
Ibid., S. 39 (1) (iv)
153
Ibid., S. 39 (2)
154
PVPFR Act. S. 40(1) – A breeder or other person making application for registration of any variety under
Chapter III shall disclose in the application the information regarding the use of genetic material conserved by
any tribal or rural families in the breeding or development of such variety.
100
organisation may on behalf of any village or local community in India file in any centre
notified any claim attributable to be the contribution of the people of that village or local
community.155 The Authority after enquiry by the notified centre and after giving an
opportunity to the breeder to file his objection within a period of three months156 and after
hearing him if satisfied, grant such compensation to be paid to a person or group of persons
or governmental or nongovernmental organization which has made the claim.157 The
compensation is to be deposited in the Gene Fund. The Gene Fund is constituted by the
Central Government. Amounts received as benefit sharing from the breeder, annual fee
payable to the Authority as royalty, contribution received from national and international
organization and other sources shall be deposited in the gene fund. The gene fund shall be
utilized for meeting any amount to be paid by way of benefit sharing determined under
Section 26 of the Act and also for settling the compensation to be paid to the claim from any
community. The fund shall also be used for supporting the conservation and sustainable use
of genetic resources including the in-situ and ex-situ collections and also for strengthening
the capability of the Panchayat in carrying out such conservation and sustainable use. 158 The
compensation if not paid can be recovered as an arrear of land revenue. A farmer shall not be
considered as infringing the right established under the Act where he was not aware of the
existence of the right.159

5.16 Position of Farmers’ Rights in Asian Countries

Although UPOV was established and revised to give IP rights to breeders, it also
acknowledged to some extent the privileges of farmers. However these privileges were
diluted and made optional in later amendments.160 Given this scenario, it is notable that only
a few Asian countries became party to the UPOV convention.161 Some countries, who are not
members of UPOV, treated UPOV as a guiding legislation in matters of PVP and the grant of
plant breeders' rights. Since most of the Asian countries are WTO members, they were
required to comply with the minimum standard as laid down in the provisions of TRIPS. The

155
Ibid., S. 41
156
PVPFR Rules R. 67 – Procedure on application for claim for compensation under Rule 66.
157
PVPFR Act, S. 41 – Rights of Communities.
158
PVPFR Act, S. 45; PVPFR Rules. R. 70(2)
159
PVPFR Act. S. 42 – Protection of Innocent Infringement.
160
Sahai Suman, The TRIPS Agreement: Implications for farmers’ rights and food security,
http://www/genecampaign.org/Publication/Article/IPR/tripsagreement Implication For%20FarmerRights.pdf
161
Only 12 Asian countries have joined the UPOV Convention as of October 2009,
http:www.upov.int/export/sites/upov/en/about/members/pdf/pub423.pdf
101
sui generis provision of the TRIPS Agreement has been used by interested countries to
recognize farmers' rights. Further, members of the ITPGRFA treaty also recognized farmers'
rights.

Of the WTO members some of the Asian countries, like, Bangladesh, Cambodia,
India, Indonesia, Malaysia, Maldives, Myanmar, Nepal, Pakistan, Philippines, Thailand who
are members of ITPGRFA but not the UPOV members, have opted for a sui generis system,
which provides for the farmers' rights.

India, Thailand, Indonesia, Malaysia and Philippines have enacted legislations with
respect to farmers' rights; Bangladesh and Pakistan have prepared draft legislations; and
Nepal has prepared a policy document, which discusses the farmers' right. Other countries in
the group do not have any legislation relating to farmers' rights or plant variety protection.162

Of the Group A countries of WTO, Bahrain, Brunei Darussalam, Hong Kong (China),
Kuwait, Macao (China), Mongolia, Sri Lanka and Chinese Taipei which have not joined
either UPOV or ITPGRFA, only Sri Lanka has drafted a plant breeders’ rights legislation,
known as Protection of New Plant Varieties (Breeders’ Rights) 2001, which follows the
model of UPOV 1991 and does not recognize the farmers' rights.

Legislative Policies in Asian Countries to Protect Farmers’ Rights

Legislations/Policies dealing with

Countries Status
Farmers’Rights

India The Protection of Plant Varieties and Farmers' In force

Rights Act, 2001

Indonesia Law on Plant Variety Protection 2000 In force

Thailand Plant Varieties Protection Act 1999 In force

Malaysia Protection of New Plant Varieties Act 2004 Adopted

162
Source : http://www/wto.org,http://www.upov.int and http://www.fao.org
102
 Philippines  Magna Carta of Small Farmers, 1992 Adopted
 The Indigenous Peoples Rights Act, 1997 In force
 Plant Varieties Act, 2002 Draft
 Community Intellectual Rights Protection Draft
Act, 2001

Pakistan  Legislation on Access to Biological Draft

Resources and Community Rights, 2004
 Plant Breeders' Rights Ordinance, 2000

Bangladesh  Biodiversity and Community Knowledge Draft

Protection Act, 1998
 Plant Varieties Act, 1998

Nepal Nepal Biodiversity Strategy, 2002 Policy

document163

163
Source: http://www.farmersrights.org/database/asia.html
103
 CHAPTER- 6

CONCLUSIONS AND SUGGESTIONS

104
 6.1 Introduction

This paper titled “A Study on the Protection of Farmers’ Rights under the Indian
Intellectual Property Regime” examines Farmers’ Rights in India under the Plant Varieties
Protection and Farmers’ Rights Act, 2001.

India is one of the countries in the world to have passed sui generis legislation (the
Latin term sui generis means ‘of its own kind’) granting rights to both breeders and farmers
under the Plant Varieties Protection and Farmers’ Rights Act, 2001. The law 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 under an effective sui generis system as mandated by Art. 27.3(b) of TRIPS.

The Indian Act allows four types of varieties to be registered reflecting the interests of
actors; a new variety, provided it is new, with distinctiveness, uniformity and stability. It
must be essentially derived variety that is essentially derived from such initial variety when it
is predominantly derived from such initial variety and clearly distinguishable from such
initial variety. Such farmers’ variety must be traditionally cultivated and evolved by the
Farmers in their fields.

6.1.1 IPR and Protection of Farmers’ Interests

The object of Intellectual Property Rights is to protect the interests of farmers.

Regarding seeds, Intellectual Property Rights give breeders an exclusive monopoly right in
relation to the seed. Under patent law, this monopoly right is very strong, and generally
prevents anyone from using, selling or producing the seed without the patent holder's
permission.164 In developing countries, farmers domesticated and facilitated the process of
crop adaptation to varied eco-systems and practiced diversity farming for sustainable
agriculture. Therefore absolute Intellectual Property Rights on Breeders recommended by
developed nations would leave the farmer with no legal status as their traditional agricultural
practices do not satisfy the originality, novelty and uniformity which are the requirements of
IP law.

India is one of the few countries having specific legal provisions addressing farmers'
rights. By considering farmers' rights as a kind of Intellectual Property through legislation, is

164
Farmers’ Privilege under Attack, Grain, June 2003, URL:http://www.grain.org/ briefings/?id=121

105
a safe platform for Indian farmers' to enforce their rights globally. For decades, India did not
allow patents on seeds or plants and had no system of protection for plant varieties.165

The PVP Act 2001 tends to recognize and protect farmers' practices. It is provided in
the Act that farmers have the right to 'save, use, sow, resow, 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. This indicates insertion of the concept of stewardship (conservatorship)
rights. A farmer who is engaged in the conservation of genetic resources and its improvement
through selection and preservation is entitled to rights under this Act. However, farmers are
not entitled to sell the seed of a variety protected under the Act.166 This means, out of the
bundle of rights provided to protect farmers' practices; the right to sell cannot be invoked in
the case of seeds of a variety protected under the Act.

Despite being christened as a progressive legislation in the field of PVP, the Plant
Varieties Act, 2001 faces a number of shortcomings. To begin with, it remains unclear
whether farmers will ever be able to benefit from the relatively generous provisions of the
Act.

On the one hand, the Act indicates clearly that it seeks to provide a framework for the
protection of the rights of commercial breeders as well as farmers. On the other hand, the Act
provides for not only the protection of new varieties but also for the protection of essentially
derived varieties.

6.1.2 The Urgency of Genetic Conservation and Indigenous Rights

The Convention on Biological Diversity is the only major international convention

that assigns ownership of biodiversity to indigenous communities and individuals and asserts
their right to protect this knowledge. The TRIPS Agreement has to be implemented in the
light of the provisions of the CBD. TRIPS is now the key international agreement promoting
the harmonization of national IPR regime. TRIPS makes no reference to the protection of

165
Dr. Anitha Ramanna, India’s Policy on IPRs and Agriculture : Relevance of FAO’s New International
Treaty, Economic and Political Weekly, Vol. 36, No. 51 (Dec. 22-28, 2001), pp. 4689-4692, URL :-
http://www.jstor.org/stable/4411493
166
The Plant Varieties Protection and Farmers Rights Act, 2001 - Sec. 39 (1) (iv): A farmer shall be deemed to
be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety
protected under this Act in the same manner as he was entitled before the coming into force of this Act :
Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.
Explanation : For the purposes of clause (iv), “branded seed” means any seed put in a package or any other
container and labeled in a manner indicating that such seed is of a variety protected under this Act.
106
traditional knowledge. The Biodiversity Convention and the TRIPS Agreement are likely to
influence the future exploitation of genetic resources to the benefit of the source countries as
well as of the exploiting industries. Genetic material in public gene banks has normally been
freely accessible on the basis of disclosure of information as to intended use. In recent years,
as a result of renewed interest in the screening of genetic resources for commercial as well as
academic purposes, the need for formal arrangements has been considered.

The Biodiversity Convention, 1992 recognizes the sovereign rights of States over
their natural resources. Access to genetic resources must be preceded by negotiation as to the
form in which benefit to the donor country is to be achieved. The Convention envisages
formal arrangements for access based on the principle of prior informed consent at the
official level.

6.2 Summary of Findings

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 resources. The farming communities across the world have been following,
since time immemorial, the practice of sharing their knowledge and resources. Sharing of
seeds among farmers, for example, constitutes perhaps the most important part in these
traditional agricultural practices. But unfortunately the developers of this wealth remain
invisible in trade and commerce and their resources have been utilized by Private Agrarian
Sector. They were not either consulted or benefited or not even informed. With the advent of
Intellectual Property Regime, ownership rights vested with the Multi National Companies
(MNCs). They deliberately used the resources of poor and uneducated farmers of developing
nations for their monetary gain. The poor farmer remained poorer in this bargain in fact they
lost their means of livelihood as they have to buy seeds at fixed prices maintained by the
private companies.

Developing countries are wealthy in genetic resources and have farmers who
traditionally conserve and use plant genetic resources for planting and seed production. Many
traditional crops such as the Neem tree and Basmati rice have been patented in developed
countries ignoring farmers’ contribution to genetic resources through the selection of seeds

107
over generations and denying their role in conservation and development of plant genetic
resources.

For thousands of years, the farmers have been engaged in the process of selection and
conservation of plant varieties. In India farmers are the source of supply of both seed and
food commodities and substantial amount of these requirements are met through ‘farmer-to-
farmer exchange’. Thus farmer is also the breeder, conserver and distributor of not only seed
but also information about agricultural practices. Therefore food security and genetic
diversity completely depend upon farmers. Farmers deserve rights because they innovate,
improve and develop varieties and contribute to agricultural innovations. In developing
countries, there is no traditional division between breeders and farmers. Free exchange of
seed 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
deals only with 'technologically developed plant varieties' would not be in compliance with
philosophy of Intellectual Property Rights to incentivise 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, monopolization of the
mightier MNCs on existing varieties and exclusion of others to avail, access and distribute
seeds.167 As a conserver of rich agro-biodiversity, the stewardship rights should be granted to
the farmers to ensure that they are prior consulted before acquisition of their variety by
others.

The other perception is that farmers' rights should go beyond ownership and stewardship
rights and they should be provided with development right to access to resources such as
technology, seeds at lower prices, low interest credit etc.168 Legal and economic costs of
establishing the system, the difficulties of legally claiming rights for farmers, and the limited
returns from plant variety protection itself are some of the reasons why IPR-based Farmers'
Rights approaches are unlikely to provide significant economic returns to farmers.169
Therefore monetary gain from royalty payments the farmers' looks for economic support to
access to new resources. There is also a view that opening up of Indian markets resulted in

167
S. Bala Ravi, Manual on Farmer’s Rights, MSSRF, 2004
168
Dr. Anitha Ramanna, Farmers’ Rights in India : A case study, Farmers’ Rights Project, FNI report 6/2006,
The Fridtjof Nansen Institute 2006.
169
Ibid.,
108
import of seeds and Indian agricultural varieties were underestimated and replaced in Indian
fields under the influence of foreign seed companies.170 The reasons for recent GDP decline
of Indian agriculture has its roots in farmers' inability to cop up with use of technology, lack
of infrastructure and awareness about their rights. An analysis of economic changes due to
assertion of farmers' rights could help to strengthen farmers' livelihood and agriculture
growth.

6.2.1 UPOV and Farmers’ Rights

UPOV 1991 hinders the implementation of farmers’ rights to freely use, save,
exchange and sell seeds/propagating material, which is fundamental to the realization and
promotion of farmers’ rights. When using a protected variety, farmers may save seeds for
replanting on their own holdings, but Article 15(2) exception is restricted to seeds of certain
crops grown on their own farm, and even in this case remuneration to breeders may be
required to safeguard the legitimate interests of the breeders. Farmers are prohibited from
selling and exchanging farm saved seeds/propagating material.

The effects of such restrictions on farmers’ rights can be quite devastating. A human
rights impact assessment of UPOV that examined the potential impact of UPOV in the
Philippines, Peru and Kenya concludes that “UPOV 91 restrictions on the use, exchange and
sale of farm-saved PVP seeds will make it harder for resource-poor farmers to access
improved seeds. From a human rights perspective, restrictions on the use, exchange and sale
of protected seeds could adversely affect the right to food, as seeds might become either more
costly or harder to access.”

There is nothing in the UPOV Acts that could be interpreted as recognition of the
farmers contribution and local and indigenous communities contribution regarding plant
genetic resources. Instead, the UPOV’s instruments and activities are heavily tilted in favour
of commercial breeders, to the detriment of farmers’ rights and interests. Furthermore, the
definition of “novelty” in UPOV 1991 is narrow. If a variety “has not been sold or otherwise
disposed of to others, by or with the consent of the breeder, for purposes of exploitation of
the variety” (Art. 6 UPOV 1991), it is considered to be “new.” This suggests that varieties in

170
Renuka Mahadevan, Productivity Growth in Indian Agriculture : The Role of Globalization and Economic
Reform, Asia-Pacific Development Journal, Vol.10, No. 2, December, 2003.

109
farmers’ fields may not destroy novelty. This facilitates misappropriation of farmer’s
varieties.

Another inequality noted regarding Essentially Derived Varieties (EDVs) is Article

14(a) of UPOV 1991. It extends breeders’ rights to varieties that are essentially derived from
the protected variety. This means that if a farmer makes a small derogation from a protected
variety (e.g. by selection), he needs authorization from the breeder (of the protected variety)
to commercialize the newly bred variety (which would be considered to be an EDV).

However, if a public or private commercial breeder uses a variety bred by farmers

(but not protected by PBRs) to breed a new plant variety, the breeder may obtain PBRs but
the farmer has no rights. As noted above, UPOV does not have any mechanism to prevent
misappropriation and facilitate benefit sharing arising from the utilization of plant genetic
resources developed by farmers.

Plant variety protection is an indispensable element in this era of technological

developments. The plant variety protection system provides breeders with an incentive to
properly maintain their varieties and ensure that authentic propagating material is available to
users. As a consequence, the benefits of plant variety protection go not only to breeders, but
flow on to farmers and to the national economy generally.

The pressure to extend intellectual property rights to plant varieties is gaining

momentum in developing countries. The World Trade Organisation's Agreement on Trade
Related Aspects of Intellectual Property Rights, the TRIPS Agreement require developing
countries to provide either a patent or a sui generis system of protection for the ownership of
plant varieties.

The Plant Varieties Protection and Farmers’ Rights Act, 2001, (PVPFR) fulfilled
India’s commitments under Article 27.3(b) of TRIPS to provide protection of plant varieties
either by patents or through an effective sui generis system or by any combination thereof.
The legislation contains measures to protect plant varieties developed through public and
private sector research and developed and conserved by farmers and traditional communities.
It provides legal rights to farmers to save, use, share or sell their farm seeds and stimulates
plant breeders and researchers to develop new and improved varieties. The Act ensures that
farmers will be treated like commercial breeders and receive the same kind of protection. It
prescribes the establishment of the Plant Varieties Protection Authority that not only registers

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the new varieties developed by breeders and farmers but also ensures fair and equitable
benefit sharing and financial compensation.

The Act enshrines the rights of farmers as breeders, farmers as conservator and
farmers as cultivators, into law. Farmers who develop new strains through selection and
breeding have the same rights as any professional breeder.

6.3 UPOV Convention and Farmers’ Privilege

The UPOV Convention 1991 has further restricted the scope of farmers' privilege that
can be established unduer national law and the trend is for further restrictions. Any legislation
must be "within reasonable limits and safeguarding the legitimate interests of the breeder"
(Article 15.2 UPOV 1991 Convention).

The effect of this will be to the detriment of the farming community. For thousands of
years, Indian farmers have selected, bred and used hundreds of thousands of varieties of
several hundred crop species, but it seems likely that the Government will not recognise their
potential role for the future. India has taken the route to protect plant breeders’ interests while
forsaking the knowledge and traditional practices of its farming community.

The restrictions that branded seeds cannot be sold and the seed has to be in
conformity with minimum limit of germination, physical purity and genetic purity imposes
additional conditions on farmers shoulders. And reluctantly, the new Seed Bill, 2010 again
gives an idea of 'forum shopping' in case of seed failure in the field, to claim compensation
under the Consumer Protection Act whereas under the PVP Act, 2001 the remedial body is
PVP authority.

Though the Act provides ownership rights to both farmers and breeders, the MNCs
have stronger say while poor farmers would struggle to assert their legal claim. Considering
socially, economically and educationally weak situations of the local and tribal communities,
without explicit provisions to protect customary agricultural practices and their varieties, the
Act would fail to implement one of its objectives to protect the interest of traditional farming
communities and farmers. In reality, the inclusion 'Farmers' Rights' would remain as a
decorative title in the Act.

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 So the law could provide incentives for sharing of knowledge that would promote
research and innovation. At the same time the farmers must have access to information about
the technology used in hybridization. To strengthen the small and marginal farmers, they
should be provided with access to infrastructure.

6.3.1 Inadequacies of the Legislation - PVP and FR Act, 2001

The Act, 2001 has several positives as well as negatives. Firstly, the Act gives the
farmers, the right to use, save, exchange and sell the seeds of even the protected variety.
Thus, this legislation respects the ITPGRFA, 2001 mandate, which shows India has not
blindly followed the model sui generis law called the UPOV. Also, India has gone a step
further to give some additional rights to the farmers' right to use, save and re-use the seeds.
This right is given in the context of the GURT. India has prohibited the registration of plant
varieties which are made using GURT like the terminator technology. Also, if the seeds of a
registered variety do not give the claimed results, the farmers are entitled to compensation
from the breeder. Though there are certain drawbacks to this guarantee, this is a right
guaranteed only by the Indian legislation, among any other plant variety protection
legislations in the world.

There are no express provisions in the law to protect the customary rights of the
farming community in India.171 There is a wide concern with the Act that it treats farmers at
par with commercial breeders. Further the registration procedure included under the Act
demands both farmer and breeder to satisfy the criteria of novelty, distinctiveness, uniformity
and stability to qualify for protection.172 So a farmer is obliged to prove his variety
scientifically for protection under the Act.

Intellectual Property regime in India relating to farmers’ rights consists of two major
statutes – the Protection of Plant Varieties and Farmers’ Rights Act, 2001 and the Biological
Diversity Act, 2002. The Protection of Plant Varieties and Farmers’ Rights Act, 2001
addresses farmers’ rights directly. The rights of farmers provided under this Act are
registration of farmers’ variety, right to claim compensation for default seeds purchased from
breeders, benefit sharing and recognition of traditional rights of farmers. The Biological
Diversity Act, 2002 is linked to farmers’ rights as it regulates Access and Benefit Sharing

171
Vandana Shiva, Protection of Plant Varieties in India 1996; Usha Menon, “TRIPS Negotiation and Indian
Agriculture”, JSCI IND RES, Vol. 52 (1993), p. 296.
172
Section 19
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(ABS). This Act provides norms of prior informed consent (PIC) and mutually agreed terms
for accessing biological resources in India. These norms are crucial for farmers’ rights as it
facilitates fair and equitable sharing of benefits arising from the use of plant genetic
resources.

The PVP Act 2001 has received mixed comments and responses in the context of
farmers' rights from the academics and thinkers regarding its normative and pragmatic value.
While some hail it as a landmark legislation, being the first of its kind across the world, some
others criticise it as incapable of producing any significant outcome for farmers and failed to
protect their interest.

The PVP Act, enables more powerful groups like large farmers and influential NGOs
to promote their interests while marginalizing small farmers and grass root community
organizations due to economic, political and social condition of farmers.

Another barrier in achieving Farmers' Rights is the lack of adequate policy measures
to promote effective utilization of germplasm. The policy towards Farmers' Rights in India
focuses more on asserting and assigning ownership rights, than on measures to utilize
traditional knowledge and genetic resources for the development of farmers.

The appreciation of the PVP Act, mainly, is based on the fact that farmers' rights have
been incorporated as a separate chapter recognising some of the core rights of farmers.
Whereas the PVP Act treats farmers at par with modern commercial breeders, it does not take
into consideration the essential concerns between modern commercial breeding and the
traditionally farming system. These two systems rely on and promote different knowledge
systems and identify innovations differently and reward inventors in different ways.

Though, the Plant Variety Act is a progressive legislation as it provides a clear

acknowledgement that farmer’s rights can be conceived as intellectual property rights, in
exactly the same way as other products of human creativity. On the other hand, it appears
likely that the chapter on farmer’s rights will not be implemented owing to its incoherent
coordination with other Acts namely Patents Act, 1970 and Biodiversity Act, 2002.

It could be seen that the PVP Act does not consider this essential difference. The
procedure prescribed under the Act for registration of farmers' variety173 could be taken as a

173
Sec. 18(1) (i) of the PVP and FR Act, 2001.
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best example to establish this gap. Even though the PVP Act does not require farmers to
comply with all conditions prescribed under the Act, farmers need to produce a declaration as
to the lawful procurement of genetic material or parental material to register a farmers'
variety.174 It may be pointed out this requirement seems to be unrealistic in the farming
practices followed traditionally in this country.

It has also been noted that the equal treatment of farmers and commercial breeders
under the PVP Act with regard to the registration of new varieties would do little good to
farmers. Because, various conditions required to be followed in the registration of a new
variety requires technical expertise. Given the social and economical conditions of majority
of farmers in India, this provision would have little effect when it comes to implementation.

The socio-economic condition of farmers will also be a matter which is likely to affect
the benefit sharing mechanism envisaged under the PVP Act. The PVP Act requires farmers
to be vigilant and make application before the authority situated most likely far away from
their place. To counter this implication, the PVP Act presupposes that non-governmental
organisations would take care of this matter. However, this does not seem to be sufficient,
especially given the fact that the socially and economically under privileged farmers will
have to fight against big corporates having huge financial and human resources.

Regarding the procedural and administrative aspects, the PVP Act envisages that the
revenue generated from the use of farmers' variety is to be maintained by the Gene Fund and
part of this money will be used for the administrative expenses of the Gene Fund. Being this a
responsibility of the government, it could be argued that the whole amount should be used for
the benefit of farmers. Second, the PVP Act provides for compensation to farmers from
commercial breeders if the seeds purchased by farmers failed to yield as declared by the
breeder. Regarding the quantum of compensation, the PVP Act gives complete discretion to
the Authority. Hence it is suggested that there should be some guidelines as to the quantum of
compensation such as 'it should be at least twice the projected harvest value of the crop'.175
Third, the PVP Act provides protection to farmers from innocent infringement of breeders'
rights. Here, the critical point is that the burden of proof lies on farmers. It is for the farmers
to prove that the infringement was 'innocent'. This could be considered as a deviation from

174
Sec. 39 of the PVP and FR Act, 2001.
175
Suman Sahai, Plant Variety Protection and Farmers’ Rights Law, Economic and Political Weekly, 36, (35):
3338-3342.
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the general principle that the duty to prove lies on the person who alleges the violation of
rights. Moreover, that does not provide any particular reason for this deviation.

Another major flaw is related to the classic property rights of farmers. Section 39 of
the Act provides that farmers are not allowed to indulge in commercial exchange of seeds of
a variety protected under the Act. As per the classical property concept, a farmer has absolute
control over the seeds purchased by him. Therefore, the right to exchange such seeds,
whether in a commercial or non-commercial manner, could be considered as inevitably
emanating from the classic property right concept.176 This right has been curtailed or
restricted by the PVP Act and the Act does not provide sufficient reason for restricting this
classic property right and its implications upon agricultural economy do not seem to have
considered adequately.

6.3.2 Right to claim Compensation

Regarding right to claim compensation it is granted to a village or a local community

for their contribution to the evolution of a variety registered under the Act. Hence, it is a
group right or a community right. Consequently, the principle of Locus standi is diluted in
putting claim for compensation. This means the right holding village or local community
need not necessarily lodge claim for compensation. The PVP Act permits any person, group
of persons or any governmental or non-governmental organisations to file the claim on behalf
of the right holding community.177

The right to claim compensation is available to farmers if they purchase a registered

variety. In case a registered variety is sold to farmers, the breeder of such variety has a duty
to disclose the expected performance of the variety under given conditions. If the variety fails
to perform as per the disclosure, concerned farmers can claim compensation from the
breeder.178

6.3.3 Protection for innocent infringement

It is a positive protection for poor, illiterate farmer who is alleged to have infringed
the rights of others being unaware of such rights. There are fee exemptions during

176
Niranjan Rao, Indian Seed System and Plant Variety Protection, Economic and Political Weekly, 2004,
39(8); 845-852.
177
The PVP & FR Act, 2001, Section 41 (1)
178
The PVP & FR Act, 2001, Section 39 (2)
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registration and litigation proceedings before the Authority, Registrar or the Tribunal or the
High Court under the Act.179

The institutional mechanisms for protection of farmers rights are – Plant Varieties
Protection and Farmers' Rights Authority (hereafter ‘the Authority’)180 and the National Gene
Fund.181 It is explicitly mentioned in the Act that the general function of the Authority
includes the protection of the rights of farmers182 and to ensure that the varieties of seeds
registered under the Act are available at reasonable price and reasonable quantity.609 Gene
Fund regulates financial matters such as compensation and benefit sharing.

6.3.4 Biological Diversity Act, 2002

Further, the presence of the Biological Act makes the legal and institutional
framework addressing farmers’ rights in India is multiple and complex in nature. This
complexity is particularly apparent in the case of access and benefit sharing. A brief
comparative analysis of two statutes could reveal that there is overlapping and differences
between these two statutes which was already explained. This might lead to obscurity at the
level of implementation and realization of farmers’ rights also.

The existence of more than one statutory framework makes farmers’ rights in India a
subject of ‘regime complex’. There are several overlapping areas between the existing
statutory regimes. For instance, both the Plant Varieties Protection and Farmers’ Rights Act,
2001 and the Biological Diversity Act, 2002 deal with benefit sharing. However, the scope of
benefit sharing is significantly different under these two statutes. While the Plant Variety
Protection Act talks only about monetary compensation, the Biological Diversity Act
provides a number of benefits other than monetary compensation.

Developing coordination between various legislations and various bodies is another

serious difficulty in India. There are a number of institutions that are focusing on promoting
India's agriculture and development of farmers. While each organization focuses on one

179
The PVP & FR Act, 2001, Section 44: A farmer or group of farmers or village community shall not be liable
to pay any fees in any proceeding before the Authority or Registrar or the Tribunal or the High Court under this
Act or the rules made there under.
180
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 Protection of Plant Varieties and Farmers' Rights Authority for the
purposes of this Act.
181
The PVP & FR Act, 2001, Section 43: The Central Government shall constitute a Fund to be called the
National Gene Fund.
182
The PVP & FR Act, 2001, Section 8
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particular aspect, the overall picture is not clearly evaluated by anyone body. The lack of one
clear and comprehensive policy aimed at benefiting farmers is a serious shortcoming.
Evolving co-ordination between the PVPFR and the Biodiversity Act is an enormous task in
itself, let alone ensuring linkages between these Acts and agricultural policies. The
complexity is further highlighted by the fact that one Authority is vested with the task of
implementing two completely different systems of Breeder's Rights and Farmers' Rights.

There must be an effective co-ordination between two statutes. This could be

facilitated by a new regulation or guideline on access and benefit sharing by incorporating all
relevant norms such as prior informed consent, mutually agreed terms and an expanded list of
benefits. The impediment of socio-economic conditions of farmers and local communities
could be addressed by envisaging a pro-active role for statutory bodies to ensure that relevant
norms are followed in meaning and spirit. In fact the Biodiversity Act already follows this
approach by entrusting the duty on the Biodiversity Authority to ensure mutually agreed
terms between the user, local communities and claimers.

The lack of resources and attention given to the public sector is another hurdle to be
crossed. Public sector institutions appear cash strapped to maintain resources. In addition, the
relationship of the public sector with the farmers is changing as the public sector begins to
focus more on earning revenue from public private partnerships. The implementation of
Farmers' Rights would require a strong public sector having integrated linkages with farmers.

Other very innovative rights which the Indian Act attempts to recognize are, the IPR
given to the farmers over their PGR and TK, as well as their newly developed varieties. As
far as the latter is concerned, the farmer is given the right just as a modern plant breeder,
which means he is also given. While giving IP Rights to the farmers over their PGR or TK,
the Act treated Farmers’ Right at par with other IPR, and gave only a temporary right. Even
while giving the farmer the PBR for creating a new variety, the Act fails to appreciate that
even this modified variety form part of the collective right of the farmers who were adding
such varieties for ages.

Traditional farmers and indigenous people around the world have been seeing their
Plant Genetic Resources (PGRs) and Traditional Knowledge (TK) monopolized by private
enterprises under patents and plant breeders’ rights and have not been receiving their
equitable share of benefits for their contribution. The Convention on Biological Diversity and
the International Treaty on Plant Genetic Resources for Food and Agriculture recognize the
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valuable contribution that farmers rendered for the conservation and development of genetic
resources. Hence, a balance should be achieved while protecting breeders’ rights in
developing countries by considering farmers’ rights.

6.4 Suggestions and Recommendations

The above Findings point to the fact that the legal position in India has to be improved
to the betterment of Farmers’ Rights. Farmers are the producers of food and conservers of
plant genetic resources for food and agriculture. They thus contribute to conservation of agro
bio-diversity and biological diversity. Their method of farming helps in sustainable use of the
genetic diversity. They are the key factors in achieving the objects of CBD also. They are
also making available the plant genetic resources for food and agriculture for plant breeding,
and thus the newly developed varieties. Hence, the farmers are entitled to all the rights
associated with these capacities. Now, as the problem areas are identified, the next part of this
Chapter proceeds to Suggestions and Recommendations.

1. The fact that the PVPFR Act, 2001 was originally designed for the registration of
new variety bred by modern corporate breeders. Farmers’ rights were included subsequently
at the instance of the Joint Parliamentary Committee without changing the rest of the
provisions of the framework. Therefore, inconsistencies and contradictions are very likely to
occur both at the conceptual and procedural level. Out of 97 Sections in PPVFR Act, 2001
only 8 sections are devoted to Farmers’ Rights in Chapter VI i.e., Sections 39 to 46. Though,
Agriculture is the backbone of rural people in India, and farming is the century old
occupation for Indian agriculturist which contains mostly small and medium sized holdings,
yet the Government of India hurriedly without studying the real needs of the Farmers living
in remote villages passed the legislation in 2001. The Act is so weak, when compared to
several developed nations like Germany, China, U.K., and even some of the South Asian
countries like Malaysia and Bangladesh, as they wanted to protect their farmer’s rights.
Hence, it is suggested that there should be a separate law or by Amending the existing
sections in the 2001 Act, by providing separate procedure and norms for the protection of
farmers' rights and for the registration of farmers' variety, so that especially small and
marginal farmers rights are protected.

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 2. Thus a system could be evolved under the PVP and FR Act, 2001, which is
specifically tailored to reward farmers for their immense contribution towards food security.
Several developing countries such as India has adopted a sui generis system to protect plant
varieties and recognize at the same time farmers’ rights and protect relevant traditional
knowledge. The Government must take sincere efforts to propagate the rights of the farmers’
and create awareness about the legislation.

3. A probable solution to these overlapping and conflicting regimes is an effective co-

ordination between two statutory frameworks i.e., PVPFR Act and Biological Diversity Act.
The poor socio-economic conditions of farmers and local communities could be addressed by
envisaging a pro-active role for statutory bodies to ensure that relevant norms are followed in
meaning and spirit.

4. There is therefore an urgent need to develop a suitable Amendment to PVPFR Act,

2001 on farmers’ rights. Farmers’ rights must be recognised and given effective protection in
this legislation.

5. In view of the observations and findings drawn from the foregoing chapters, the
following suggestions could be adapted by incorporating necessary amendments to the Plant
Varieties Protection and Farmers’ Rights Act, 2001.

6. The encouragement of commercial plant breeding through IPR though beneficial to

countries and farmers, can be detrimental to small scale farmers and can also lead to loss of
genetic diversity in the field. It can take into account the complexities of the system as well as
the contribution of the generations of the local communities and the need to balance the
interests of the society as a whole with the interests of the inventor.

7. So, altogether, the BDA is not up to the expectations from the Farmers’ Right point
of view. Hence, the entire legislation needs a revamping and this is another area which
requires solution.

6.4.1 Farmers’ Rights

At the International level various Treaties and Conventions like. UPOV, CBD and
ITPGRFA played a significant role. UPOV dealt with the farmers’ access to the PGR of the
plant breeders. In fact UPOV 1978 did not create any restriction on the farmers’ right to use,
save, exchange, reuse and sell the seeds of the protected variety as the scope and extent of the

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PBR was limited to the commercial use of the propagating material. But UPOV 91 while
expanding the scope of PBR to the level of patent right did not recognise the Farmers’ right
to sell the farm saved seeds which right they were enjoying previously. Thus this is an area
which requires immediate solution, as these documents are contradictory to each other
regarding the right to exchange and sell the seeds. Even regarding the right to use, or re-use,
due to the biotechnologies like the GURT, the farmers will not be in a position to re-use the
seed, which is also an issue which requires solution.

The rights of farmers must be recognised by arranging for the collection of a farmers
rights fee from the breeders of new varieties. Farmers’ Rights should be granted to farming
communities and revenue collected from farmers’ rights fees should flow into a National
Gene Fund (NGF) the use of which should be decided by a body set up for the purpose.

India’s efforts, as one of the first countries in the world to forge a national legislation
on Farmers’ Rights is a significant landmark. The Indian PVPFR Act, 2001 case provides
important lessons for other countries in establishing Farmers’ Rights, and demonstrates the
complex and contentious issues that must be tackled to implement Farmers’ Rights. The fact
that even after establishing a law on Farmers’ Rights, the legislation i.e. PVPFR Act, 2001 is
insufficient.

India and other developing countries are faced with a dilemma in defining and
implementing Farmers’ Rights. On the one hand, they are interested in acquiring IPRs and
asserting ownership rights over genetic resources and farmer’s innovations. On the other
hand, they must ensure access to resources for farmers and public sector institutions.

The Rights granted to the farming community under farmers’ rights entitles them to
charge a fee from breeders every time for the purpose of breeding or improving a new
variety. Rights granted to the farmer and farming community under the Act, should be
granted for an unlimited period.

6.4.2 Breeders’ Rights

The right of the breeder of a new variety shall be recognised by the grant of a Plant
Breeders Right. The Plant Breeders Right shall be granted to the breeder of a new plant
variety. It should be stated that prior authorisation shall be required for the production, for
purposes of commercial and branded marketing of the reproductive or vegetative propagating
material of the new variety, and for the offering for sale or marketing of such material.
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Vegetative propagating material shall be deemed to include whole plants. The breeder's right
shall extend to ornamental plants or parts of these normally marketed for purposes other than
propagation when they are used commercially as propagating material in the production of
ornamental plants or cut flowers.

The right conferred on the breeder of a new plant variety shall be granted for a limited
period, depending on the variety. The right of the breeder shall also be forfeited if he is not
able to meet the demand of farmers, leading to scarcity of planting material, increased market
price and monopolies. If the breeder fails to disclose information about the new variety or
does not provide the competent authority with the reproductive or propagating material his
right shall be declared null and void.

Further, under Section 46(2) (d), the use of farmers’ varieties to breed new varieties
will have to be paid for and the revenue will flow into a Gene Fund. Despite the good
intentions of protecting the farming community, the formulation of this section 46(2)(d) is
likely to create problems in implementation as well as incomplete. With respect to the
liability clause for protection against bad seed, too much discretion is left to the plant variety
authority which will fix the compensation as this will lead to arbitrary decisions. They
suggest that if it is proved that a breeder has made false claims and that as a result the farmer
has suffered a crop failure, compensation of at least twice the projected harvest value must be
awarded. In addition a jail term should be provided if the offence is repeated.

Authorisation by the breeder must not be required either for the utilisation of the new
variety as an initial source of variation for the purpose of creating other new varieties or for
the marketing of such new varieties. Such authorisation shall be required, when the repeated
use of the new variety is necessary for the commercial production of another variety. At the
time of application for plant breeders’ rights, the breeder of the new variety must declare the
name and source of varieties used in the breeding of the new variety. Where farmers’ variety
has been used, it must be specifically mentioned.

Thus, sui generis law for the protection of Plant Breeders Right does not respect the
Farmers’ Right much. The net result is that, while access to the Plant Genetic Resources and
Traditional Knowledge of farmers is given to the plant breeder, certain peripheral recognition
is given to the farmers' efforts. But nothing substantial is given to them in their relationship to
their PGR and TK. In other words, they are not recognized as the owners of the PGR and TK.

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 However, when one examines the Indian legislations called the Biological Diversity
Act (made in pursuance of CBD) and PVPFR Act (India's sui generis law as per the TRIPS
mandate) picture is not very promising. The BDA regulates the access to the PGR, and the
PVPFRA deals with the farmers' access to the PGR of the plant breeders, and also with
benefit sharing and compensation. BDA has not created any right to the farmers, while access
is given to the PGR or Traditional Knowledge, maintained by the farmers. PIC of such
farmers is not made either a right, or a mandatory requirement. The 2001 Act did not
envisage Farmers’ Rights in detail in Chapter VI, which was only developing at that time.
However, it is to be noted that the Bangladesh Act, 1998 which has created a strong property
right regime for its farming community.

The Act tried to respect farmers by giving them Intellectual property right, and this
solution is only to modify the existing property jurisprudence recognized by the Act. It is
really a praise worthy to note that the Act has accepted property right for the farmers in
principle. As was mentioned earlier, this legislation is also a platform for the working of
ITPGRFA. But, there are some contradictions between the principles of PVPFRA and
ITPGRFA, which will eventually lead to blocking the functioning of either the Act, or the
Treaty. This happens mostly in the case of benefit sharing. The benefit sharing under the
PVPFRA is bilateral in nature, and it is between the plant breeder and the donor of the
genetic material (farmers). But, the farmers have to come forward and fight for their benefit
sharing. Unless it is the obligation of the State, benefit sharing will remain only in letters as
far as the farmers are concerned, as they are not themselves aware of what they are
preserving, and that they are subject matters of protection.

On getting registration under the Act, the farmers who are conservers and preservers,
having collective ownership over their PG RFA and TK, must have exclusive right to use,
save, exchange and develop the same. Anyone who wants to have access to the same shall get
the consent of such farmers. In case of consent given, the farmers are entitled to right to
compensation from those who seek access to their PGRFA or TK for breeding purpose or
research purposes as a reward for their efforts in conserving and preserving the same.

Benefit sharing is not given as a matter of right in the CBD. This is a deal between the
genetic material provider and the plant breeder directly, and the country has to act as a
medium to give the share of the benefit to the concerned indigenous people or local
community like the farmers. That means, it is almost quid pro quo. Farmers must be assisted

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with advisors during negotiation process of access and benefit sharing. For farmers and
village communities, awareness generation and information empowerment is a must through
vernacular press, radio, television and the Internet. To ascertain the ownership rights of
farmers, the Village / Panchayat should cooperate and if possible notify the varieties belong
to each farmer.

The Act can still transform this benefit sharing into a right, for the betterment of
farmers. Though, Government of India proposed to add all those Plant Genetic Resources
under the State Control, it is suggested that India should not include any variety conserved or
preserved by the farmers under any circumstances, in the PGR, or else the benefit sharing
provisions in the PVP Act, 2001 will remain redundant, even if they are made effective.

Apart from benefit sharing, the Act also stipulates for a compensation to be given to
the farmers who conserved and preserved a particular genetic material which was used for
developing a new variety. Actually there is every possibility of benefit sharing and
compensation being asked from the plant breeder, based on the same genetic material, for the
same set of persons. This will invite unnecessary litigations. Hence it requires solution.

Farmers’ Rights could be effectively protected by amending section 39 in Chapter VI

of the PVPFR Act, 2001 and they shall be given intellectual property rights over the plant
genetic resources and traditional knowledge they possess in agriculture.

It is suggested that the following rights of farmers may be specifically incorporated in

the PVPFR Act, 2001, either by amending Sec. 39 or inserting a new section viz., Section
39A containing the following aspects :

Being producers of food, the farmers are entitled to autonomy in all activities of
farming, which includes their autonomy in handling the seeds in the manner they like. This
includes their right to use, save, exchange, re-use and sell the seeds even of the protected
variety.

Farmers must be given adequate compensation for the non-performance of the seeds,
or other failures. Farmers’ as conservers are the collective owners of the PGRFA and TK
conserved and preserved by them. The farmers are entitled to property rights over the
PGRFA and TK preserved by them. The Government of India shall take legislative measures
to recognise these rights by incorporating in sec. 39 of the Act which entails farmers to a
collective property rights including Intellectual property rights.
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 The other aspect of farmers rights relate to, “by being the owners of the PGRFA and
TK, the farmers have the right to get a share of the benefit arising from their utilization” and
this aspect should be incorporated in Sec. 39 of the PVPFR Act, 2001. Above all, the rights
of farmers all over the World shall be respected and recognised through a United Nations
Convention on the Farmers’ Rights.

At present identifying the rights of farmers is done by two Authorities namely, one is
the Biodiversity Management Committee under the Biological Diversity Act, 2002 which
deals generally with all the biological resources. The BMC, is to create a People’s Register
where to enter the biological resources, but no mandate to identify the conservers. The other
is the National Bureau of Plant Genetic Resources (NBPGR), which has so far identified
about four lakhs of PGR, but they could not identify the farmers who conserved them. Hence,
it is suggested that these two bodies could be utilized for the purpose of identifying the
farmers who conserved them also. The drawback with the existing functioning of BDA is that
it has given the vital powers with the Centre. Hence, a complete restructuring of these bodies
is necessary, in identifying the rights of farmers.

Before concluding the paper, some general recommendations are also put forward.
Any measure taken by the Central and State Governments will have limitations, as the
farmers themselves are not comfortable in their profession. The reason why farmers
disappear and prefer some jobs other than agriculture and are distracted to is, it failed to give
them any status in the society. Successive Indian Governments failed to encourage farmers.
Due to failure of crops they incurred to heavy debts and ultimately when they could not repay
the debt, they end their life by committing suicide. This is the present state of Indian farmers
and agriculture.

That is why most of the agricultural lands near urban areas are converted into housing
plots. On the whole, Agriculture and those involved in it like farmers, are not rated as good
profession, and professionals respectively. This is because of the impression among people
that agriculture is a manual labour which involves no intellectual output. Perhaps this is the
reason why the IPR do not equate the efforts of the farmers with that of plant breeders.

It is high time that people should be made aware of the greatness of agriculture and
the farmers, and the enormous contribution they make to the world. To be indifferent to their
needs and sufferings, and to put them at stake in the wake of new plant breeding technologies
like gene technology is an unpardonable act from the part of the human conscience. It is both
124
moral and legal obligation of the international law as well as national law to see that farmers
are considered as the most respected professionals, and that they enjoy all sovereignty in their
profession, and all comforts in life.

The political and strategic gains of defining Farmers’ Rights as IPR type rights must
be accompanied by measures to ensure economic benefits by focusing on Farmers’ Rights as
development rights. Farmers’ Rights must also incorporate a mechanism to promote access
and sharing of resources rather than only ownership rights. Farmers themselves must be seen
as important stakeholders in policy making. If the global community does not face up to the
challenge of unambiguously articulating Farmers’ Rights, what has been achieved so far to
establish Farmers’ Rights may be lost.

125
BIBLIOGRAPHY

126
 I. Books

Adhikari, Kamalesh - Access, Benefit Sharing and Prior Informed Consent under
CBD, IP PGRFA and TRIPS : Legal Mechanisms to Protect
Farmers’ Rights in South Asia,
South Asia Watch on Trade, Economics & Environment
(SAWTEE) 2006.

Andersen, - The Farmers’ Rights Project : The History of Farmers’

Rights : Guide to central Documents and Literature,
FNI 2005.

Anitha Ramanna - India’s Plant Varieties Protection and Farmers’ Rights

Legislation : Potential Impact on Stakeholder’s Access to
Genetic Resources,
EPTD Discussion, Paper No. 96, Environment and Protection
of Technology Division – International Food Policy Research
Institute, January 2003.

Anitha Ramanna - Farmers’ Rights in India : A case study, Farmers’ Rights

Project,
FNI report 6/2006,
The Fridtjv of Nansen Institute 2006.

Bandyopadhyay and - Intellectual Property Law – An Introduction,

Saurabh Bindal Eastern Book Company, Lucknow, 2015.

Biswajit Dhar - Sui Generis System for Plant Variety Protection,

Options under TRIPS, 2002, Quaker House,
Geneva.

Elizabeth Verkey - ‘Law of Plant Varieties Protection’

Eastern Book Company, Lucknow, 2007.
127
Green Grass - UPOV and Farmers’ Rights (Ed.,)
M.S. Swaminathan, Agro biodiversity and Farmers’ Rights,
1996.

Jaffe W. and J. Vanwijk - The Impact of Plant Breeders’ Rights in Developing

Countries,
The Hague, Ministry of Foreign Affairs, 1996.

Jayashree Watal - Intellectual Property Rights,

Oxford University Press, Delhi, 2002.

Jose Esquinas-Alcazar - ‘The Realisation of Farmer’s Rights’, in Agro Biodiversity

and Farmers’ Rights
M.S. Swaminathan, ed., Konark Publishers,
New Delhi, 1996.

Niranjan C. Rao, - Plant Varieties Protection and Plant Bio-technology Patents :

Options for India,
Allied Publishers Ltd., New Delhi, 1997.

Rangheka, D., - Intellectual property rights in Agriculture : An Analysis of the

Economic Impact of Plant Breeders Rights, 2000.

Ravi Shanker, A.S., - Plant Variety Protection : Lessons from cross- country
Archak, S. and perspective,
Gautam, P.L., Policy Brief No. 11. National Centre for Agricultural
Economics and Policy Research (ICAR), New Delhi, 2000.

Robinson, D., - ‘Sui Generis Plant Variety Protection Systems: Liability Rules
and Non-UPOV Systems of Protection’ (2008)
Shaila Seshia - Plant Varieties Protection and Farmers’ Rights in India,

128
Sophy K.J., - Farmers’ Rights under Plant Variety Protection Legislation
in India : A Critical Study, 2015.

Swaminathan, M.S., - Research Foundation,

Vol. MSSRF Proceedings, No. 14, 2002.

II. Journals

Adhikari and Adhikari - Protection of Farmer’s Rights over PlantnVarieties in

Southeast Asian Countries,
SEACON, Kuala Lumpur, Malaysia, 2003.

Arunmas, P., - ‘Seed Firms push for Protection’,

Bangkok Post (Thailand, 4 September 2009)

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.

Bala Ravi, S., - India’s Protection of Plant Varieties and Farmers’ Rights
Act,
Manual on Farmers’ Rights, MSSRF, 2004.

Carlos M. Correa - ‘Access to Genetic Resources’,

20 World Competition– L.&Econ. Rev. 57(1997).

Correa C.M., - “Intellectual Property Rights and Agriculture: Strategies and

Policies for Developing Countries”,
Intellectual Property Rights and Agriculture in Developing
Countries, University of Amsterdam, 2000.

Crespi, R.S., - Patents and Plant Variety Rights : Is there any Interface
Problem?”,
129
 (1992) 2LIC.

Gopalakrishnan, N.S., - An “Effective” Sui Generis Law to protect Plant Varieties and
Farmer’s Rights in India – A critique,
Journal of World Intellectual Property,
January, 2001.

Gopalakrishnan, N.S., - Protection of Farmers’ Rights in India : Need for Legislative

Changes,
Cochin University Law Review, 2001.

Greengrass, B., - UPOV and the Protection of Plant Breeders – Past

Developments,
Future Perspectives, International Review of Industrial
Property and Copy Right Law, 1989,
Vol. 20, Issue 5.

Green Grass, B., - ‘The 1991 Act of the UPOV Convention’,

European Intellectual Property Review, 1991,
Vol. 13, Issue. 12.

Harpal Kaur Khehra - Patents and Sui generis System for Protection of Plant
Varieties : A Threat to Food Security and Health Care,
M.D.U. Research Law Journal, Vol. 8, No. 1 – 2, January,
2004.

Jayne Kuria Kose and P.L.,- Rhetoric of Plant Variety Protection in India,
Mayark Mishra, 2003, web.jour. 17.

Mohan Dewan - IPR Protection in Agriculture : An Overview,

JIPR, Vol. 16, March 2011.

Narayana moorthy - State of India’s Farmers, Economic and Political Weekly,

February 11th 2006.
130
Niranjan Rao - Indian Seed System and Plant Variety Protection,
Economic and Political Weekly, 36 (35).

Niranjan Rao - Indian Seed System and Plant Variety Protection,

Economic and Political Weekly, 2004, 39(8); 845-852.

Philippe Cullet and- Plant Varieties Protection and Farmers’ Rights,

Radhika Koluru Towards a Broader understanding,
24 Delhi Law Review, 2003.

Philippe Cullet- ‘Plant Variety Protection : Plant Breeder’s Rights and Sui
Generis Systems’,
Economic and Political Weekly, August 6, 2005.

Pratibha Brahmi, Sanjeev- ‘The Protection of Plant Varieties and Farmers’ Rights Act of
India,
Saxena and B.S. Dhillon Current Science, Vol. 86, No. 3, February 2004.

Ramanna, A., & Smale, M., - Rights and Access to Plant Genetic Resources under India's
New Law,
Development Policy Review, 2004, 22(4),
423-442.

Regine Anderson, - Protecting Famers’ Rights in the Global IPR Regime :

Challenges and Options,
Trade Insights, 2007, Vol. 3, No. 2.

Renuka Mahadevan - Productivity Growth in Indian Agriculture : The Role of

Globalization and Economic Reform,
Asia-Pacific Development Journal, Vol. 10, No. 2, December,
2003.

Sahai, S., - Plant Varieties Protection and Farmers Rights Law’,

Economic and Political Weekly, September 2001.
131
Sahai, S., - An Analysis of Plant Varieties Protection and Farmers’
Rights Act 2001,
Gene Campaign, New Delhi, 2001.

”- India’s Plant Varieties Protection and Farmers’ Rights Act

2001,
2003, Current Science, 84(3).

Shaila Seshia - Plant Varieties Protection and Farmers’ Rights – Law

Making and Cultivation of varietal Control,
Economic and Political Weekly, July 6, 2002.

Shiva Vandana and- “Monopoly and Monoculture-trends in Indian Seed

Crompton, Industry”,
Economic and Political Weekly, 18th April, 1998.

Singh, H., - ‘Plant Variety Protection and Food Security: Lessons for
Developing Countries’
(2007), 12, Journal of Intellectual Property Rights.

Suman Sahai - ‘Farmers’ Rights under Attack,’

Economic and Political Weekly, April 10–17, 2000.

”- India’s Plant Varieties Protection and Farmers’ Right Act,

2001,
Current Science, Vol. 84, No. 3, Feb. 2003.

”- Plant Varieties Protection and Farmers’ Rights Law,

Economic and Political Weekly, 36, (35).

Suman Sahai - Protection of New Plant Varieties, A Developing Country

Alternative,
Economic and Political Weekly, March 6–13, 1999.

132
Swaminathan, M.S., - The Protection of Plant Varieties and Farmers’ Rights Act :
From Legislation to Implementation,
Journal of Intellectual Property Rights, Vol. 7, July 2002.

Usha Menon - TRIPS Negotiation and Indian Agriculture,

JSCI 2nd Res. Vol. 52, (1993).

III. International Documents

1. UPOV Convention 1961
2. UPOV Convention 1991
3. UPOV Act, 1991
4. Human Development Report 2001
5. Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, 1994.
6. Marrakesh Agreement Establishing the World Trade Organisation, Annex 1C, Legal
Instruments – Results of the Uruguay Round, Vol. 1, 331.L.M 181 (1994).
7. Paris Convention, 1883.
8. Patent Co-Operation Treaty 1978

IV. Reports

1. Anitha Ramanna, Farmers’ Rights in India - A case study, FNI Report 2006, Norway.
2. Anitha Ramanna, Farmers’ Rights in India – A Case Study, FNI Report 6/2006.
3. CBD, Articles 1 and 8 (j).
4. CPGR/87/3, Report of the Working Group of the FAO Commission on Plant Genetic
Resources, 2-3 June 1986.
5. FAO, 1987 : Report of the Second Session of the Commission on Plant Genetic
Resources, 16-20 March 1987, CL 91/14, paragraph 37.
6. FAO, 1989 : Report of the Conference of FAO, Twenty-fifth Session, Rome, 11-29
November 1989 C 1989 / REP.
7. Government of India, ‘Indebtedness of Farmer Households’ Report No. 498 May
2005.
8. Human Development Report (Oxford University Press) 2001.
9. No Patents on Seeds: A Handbook for Activists, Navdanya, 2005, New Delhi.
133
 10. Revised at Geneva on November 10, 1972 and on October 23, 1978 and on March 19,
1991
11. Section 23, of the Seed Bill, M.S. Swaminathan Report.
12. Review of the Provision of Article 27.3(b), IP/C/W/369, 8 August 2002, 13.
13. Twenty-fifth Session of the FAO Conference, Rome, 1989, in Resolution No. 5/89.
14. UPOV Report on the Impact of Plant Varieties Protection (2005), published by UPOV
15. World Patent Information, 33 (1) (2011) 58-66.

V. News Papers and Magazines

1. The Hindu dated 09-08-2012.

2. S. Bala Ravi, ‘Seeds of Trouble’, The Hindu, March 8, 2005.
3. Cullet, P. 2000, Farmers’ Rights in Peril, Frontline (Vol. 17) Issue 7, The Hindu
Publishers.
4. Jaisinghani, B. 2000, Campaign against bio-piracy picks up momentum, Indian
Express Newspapers (Bombay), Ltd.,

VI. Indian Legislations

1. The Indian Patents Act 1970

2. Protection of Plant Varieties and Farmers’ Rights Act, 2001
3. The Seeds Bill, 2004, 2008, 2010, 2014
4. The Seeds Act, 1966.
5. Biological Diversity Act, 2002
6. Geographical Indications of Goods (Registration and Protection) Act, 1999

VII. Website

1. www.hollandinindia.org/india businessguide/agro01.html-_Toc 62707784.

2. http://rostrumlegal.com/r.
3. <http://upov.int>.
4. <UPOV http://upov.int>.

134
5. Article 15 (2) of UPOV 1991, http://www.upov.int/en/publications/conventions/
1991/act1991.htm (accessed on 20 October 2010).
6. Dhar Biswajit, Suit generis systems for plant variety protection, http://homepages.3-
c.coop/tansey/pdfs/sg-coll.pdf.
7. ftp://ftp.fao.org/ag/cgrfa/it/TPGRe.pdf
8. ftp://ftp.fao.org/ag/cgrfa/iu/iutextE.pdf.
9. http://dx.doi.org/10.1002/ jwip.12021
10. http://dx.doi.org/10.1111/j.1467-7679.2004.00258.x
11. http://dx.doi.org/10.1111/j.1747-1796.2004. tb00232.x
12. http://en.Wikipedia.Org/wiki/plant-breeding
13. http://papers.ssrn.com
14. http://pvpbkkt.doa.gov.my/
15. http://www.ansab.org/UserFiles/Nepal%20Biodiversity%20Strategy%202002.pdf
16. http://www.capri.cgiar.org/pdf/GRarnejo.pdf
17. http://www.cbd.int/convention/ convention.shtml.
18. http://www.cbd.int/convention/articles.shtml?a=cbd-08
19. http://www.fao.org/docrep/007/y5714e/ y5714e02.htm
20. http://www.fao.orgldocrep/007/y5714e1y5714e02.htm#bm2.2.
21. http://www.farmersrights.org/about/fr_history_part1.html.
22. http://www.farmersrights.org/about/fr_history_part2.html.
23. http://www.farmersrights.org/database/asia.html
24. http://www.grain.org/briefings/?id=1
25. http://www.grain.org/brl/?docid=683&lawid=1456
26. http://www.iprlawindia.org.
27. http://www.jstor.org/stable/4411493
28. http://www.Scipub.org/fulltext/ajeba/ajeba14303-312.pdf
29. http://www.upov.int.en/publications/conventions/1961/w_up611_htm#_5
30. http://www.upov.int/members/en/
31. http://www/genecampaign.org/Publication/Article/IPR/tripsagreementImplicationFor
%20FarmerRights.pdf
32. http://www/grain.org/ rights_files/trips-plus-presentation-en.swf
33. http://www/grain/org/brl_files/bangladesh-pvp-1998-en.pdf
34. http://www/wto.org,http://www.upov.int and http://www.fao.org
35. http:www.grain.org/brl_files/pakistan-pbr-2000.doc
135
36. http:www.upov.int/export/sites/upov/en/about/members/pdf/pub423.pdf
37. TRIPS Agreement, Article 27.3(b), http://www.wto.org/english/ docs _e/legal_e/
27.trips.pdf
38. URL:http://www.grain.org/
39. wikileaks.org/tpp-ip2/tpp-ip2-chapter.pdf
40. WIPO Intellectual Property Handbook : Policy, Law and Use
http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ ch5.pdf# paris
41. www.evb.ch/fileadmin/files/documents/Saatgut/2014_07_14_Owning_Seed_Accessin
g_Food_report_def.pdf
42. www.farmers’rights.org/fr.project/index/html/
43. www.hollandinindia.org/indiabusinessguide/agro01.html-_Toc62707784)
44. www.planttreaty.org (surfed on 20.12.2015)
45. www.planttreaty.org and www.cbd.int
46. www.upov.int
47. www.upov.int/edocs/mdocs/upov/en/ c_extr/22/c_extr_22_2.pdf

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