Abstract
This article is all about the implementation and impact of the Protection of Plant Varieties and Farmers’ Rights Act, 2001. This law is just a part of Intellectual Property Rights and it was introduced in when India joined the World Trade Organization in 1995 and agreed to implement the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Article 27.3 which required the protection of plant varieties either by patent or new sui generis (‘of its own kind’) system or by any combination thereof. This system has the capability to encourage the farmers or breeders to get more productivity and to produce better plant variety. This will actually result in not only more productivity in less farming land but also give more strength to the nation’s economy. In this study, it is tried to analyze in past decade, that how the legislation has affected the farmers or breeders and how much farmers are aware with the law and their rights enshrined under this Act. The analysis has been done on the basis of number of applications filed in these years and on the number of such application it has been assumed that how far the Act has been effective or not. It is also notice here that only few calendars year has some good number of applications but these numbers can’t be said too good, because in a country having great population it cannot be a satisfactory number. In study tells that the legal mechanism of the Act is not working as it should be. There may be so many reasons for this less effectiveness which are also discussed here.
An Analytical study on the Implementation of PPVFR Act and its Impact on farmers in India
Introduction
An intellectual property right pertains to any original creation by the human intelligencein various fields such as arts,technology or scientific creation. Intellectual Property Rights refers to the legal rights given by the state to the inventor or creator to protect his invention or creation for a certain period of time. These legal rights confer an exclusive right to the inventor or creator or his assignee to fully utilize his invention or creation for a given period of time. Intellectualproperty rights include patents, copyright, industrial design rights, trademarks, trade dress, geographical indications[1], and in some jurisdictions trade secrets.
But there is another distinct category known as Plant Varieties Protection. Plant Varieties Protection is Sui Generis and law to protect plant varieties was enacted as India has ratified the TRIPS agreement and to give effect to this agreement, The Protection of Plant Varieties and Farmers Rights Act, 2001 (PPV&FRA) was enacted. The main aim of this Act is to establish an effective system for the protection of plant varieties and, the rights of the breeders and to encourage the development of new varieties of plants.
Objectives of the PPV&FR Act, 2001
Following are the objectives of the Act:
- To establish an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants
- To recognize and protect the rights of the farmers in respect of their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties
- To protect plant breeders’ rights to stimulate investment for research and development both in the public and private sector for development of new plant varieties
- To facilitate the growth of seed industry in the country that will ensure the availability of high-quality seeds and planting material to the farmers
Various Rights For Farmers And Breeders Included In The Act
Sections 39 to 46 of the Protection of Plant Varieties and Farmers’ Rights Act, 2001, provide for the following rights:
Rights on seeds: These reflect customary practices which acknowledge the traditional rights of farmers in agriculture. They include the right to save seeds and use them for sowing, exchanging, sharing, and selling to other farmers.
Right to register: The Act allows registration of traditional varieties or farmers’ varieties under Section 14. Once a variety is registered, farmers obtain the exclusive right to produce and market it. This right recognizes the role of farmers as plant breeders and innovators.
Right to reward and recognition: This right recognizes the role of farmers in preserving and developing agro-diversity. The National Gene Fund presents awards to selected farmers or communities in this regard.
Right to benefit-sharing:Farming or tribal communities that contributed to the development of a new crop variety are entitled to an equitable sharing of the benefits earned from it.
Right to compensation for losses: The Act requires that registered varieties be sold with a declaration regarding their agronomic performance and the conditions needed to ensure successful cultivation. This right guarantee compensation to farmers who are victims of exaggerated claims regarding the performance of newly registered varieties. The right thus serves as a means to prevent unfair marketing practices by breeders and seed sellers.
Right against undisclosed use of traditional varieties: This provision protects farmers when a commercial breeder makes undisclosed use of a traditional variety. Farming communities are seldom able to detect the use of “their” varieties or traditional knowledge in the breeding of a new variety. In such situations, any third party who has a reasonable knowledge of the use of traditional methods in the breeding of the new variety is eligible to file a claim for compensation on behalf of the concerned local or tribal community.
Right to access to seed: If farmers are to benefit from scientific crop improvement, it is self-evident that they need access to seeds. While allowing a plant breeder the exclusive right to the commercial production and marketing of seeds of the varieties registered in their names, the Act also directs that breeders meet farmers’ demand for seeds at reasonable prices.
Right to free services: The Act exempts farmers from paying any fees at any stage of the registration of a variety.
Right to protection against accusations of infringement: A farmer cannot be prosecuted on charges of infringement of another’s title to a variety if he or she affirms ignorance of the legal provision deemed to have been violated by him or her. This provision protects people of low legal literacy from harassment, particularly by seed companies.
The DUS Testing
DUS means distinctness, uniformity and stability (DUS) of new varieties of plants for the purpose of granting the Breeders’ Right. The new variety should be distinct from the other varieties for at least one characteristic to pass in the DUS test.
Distinctness: Here distinctness means to the variety of seed that breeder of farmer has discovered must be very unique in nature. It should not be pre existed or similar to any existing variety.
Uniformity: Another part of the testing is ‘Uniformity’. It is the testing of the seed or variety presented by breeder. Various samples of the similar variety are taken together and then it is observed that the variety discovered by the breeder is actually uniform in nature or not.
Stability: Stability is one more stage of the testing which helps to determine the permanency or firmness of the variety provided by the breeder or farmer.
The authority has DUS monitoring centers. There are various centers for various crops and zones. Wheat has its DUS centers in Karnal (DWR), Indore (IARI), Kanpur (CSUAT), Dharwad (UAS) and Ludhiana (PAU). Sugarcane has its DUS testing centers in Lucknow (IISR), Coimbatore (SBI), Karnal (SBI Regional Center). The breeder is required to deposit the seed or propagating material including parental line seeds of registered variety to the Authority. The DUS test is done for a fixed amount of fee and some other fees. The person after getting the right can sell the seeds / propagating material in his / her name.
Need of Plants Varieties Protection Act in India
Firstly, as a member of WTO and signatory of TRIPS it became mandatory for India to provide protection to plant varieties either by patent or by sui generis system or by both. Like most developing countries, India decided to exclude patents for plants and plant varieties but exercised the sui generis option. The sui generis system means for effective protection of plant varieties. India enacted ‘The Protection of Plant Varieties and Farmers’ Rights’ (PPVFR) Act, 2001, for plant variety registration.
Secondly, to protect the farmers’ rights in context to poverty. In India, about 660 million people in India are subsisting largely on agriculture for their livelihoods. Prior to this Act there was no provision to protect the new discoveries by the farmers. But now this Act provides not only protection to the varieties they derived, but also right to sell, market, distribute, import-export etc.
Varieties which can be registered under the Act
Applications for registration of a plant variety and its denomination can be made under the following categories:
- New Variety: On the date of filing of application for registration of the variety has been commercialized for period of less than one year then it is a new variety.
- Extant Variety: Consist of the following categories:
- Extant variety notified under section 5 of Seeds Act, 1966: Varieties notified under Section 5 of Seeds Act, 1966 are eligible for registration under this category.
- Farmers’ variety: Traditionally cultivated and evolved by the farmers in their fields and includes wild relative or landrace or a variety about which the farmers possess common knowledge.
- Variety of Common Knowledge: Varieties which are not notified under Section 5 of Seeds Act, 1966 and are in commercial chain for more than a year.
- Public domain variety: These are not eligible for registration as they are already in public domain.
- Essentially Derived Variety: A variety predominantly derived from an initial variety and should fall either under new or extant variety.
Indian Constitution and Farmers’ Rights
His speech is of mortgaged bedding,
On his kine he borrows yet,
At his heart is his daughter’s wedding,
In his eye foreknowledged of debt.
He eats and hath indigestion,
He toils and he may not stop;
His life is a long-drawn question
Between a crop and a crop.
–Rudyard Kipling, The Masque of Plenty
India is an agricultural country where the economy contributes 14% to the GDP. The Indian farmers are poor. Being considered as the backbone of the economy, it is an irony that the farmers don’t have enough food to feed their families. It is a tragedy in modern times that they often end their lives. Most of the land is lost to industrialization and urbanization. The irrigation facilities are not developed well by the government. NITI Aayog reported that the agricultural sector is 28 years behind its time. The farmers take the loan at an exorbitant interest to invest in buying fertilizers or seeds which proves failure of providing economy to the farmers. Due to erratic weather, the monsoons are unpredictable with improper irrigation facilities. The farmers suicide is increasing at an alarming rate. It is estimated that in every 30 minutes one farmer in our country puts an end to his life. Between 1995 and 2015, a period of 21 years, a total of 3,18,528 farmers have committed suicide. According to the NCRB reports, the farmers who commit suicide have less than 2 hectares of land The states with largest number of suicides are Maharashtra, Kerala, Punjab, Andhra Pradesh, Tamil Nadu, Uttar Pradesh, Madhya Pradesh, etc. The price they get after selling the harvest is less than what they had invested. In 2014, 12,360 persons in the farming sector – 5,650 farmers-cultivators and 6,710 agricultural laborers committed suicide, accounting for 9.4% of the total number of suicides (131,666) in the country, the Centre said[2]. Debt is considered as the primary reason for suicide of the famers to which the P Sainath said, “In all the farm households I’ve visited where people have killed themselves, the single largest component of family debt was health costs”
The Supreme Court in several cases has widened the scope of the Art.21 for the farmers. In UppliyanthittuKamarajar Nagar vs The District Collector, it was held that, “This right of these poor and downtrodden people, who are involved in agricultural sector, is also a part of right to life guaranteed under Article 21 of the Constitution of India, which needs to be preserved. It is needless to say that every endeavor should, therefore, be taken by the Government to ensure that the irrigation sources are in no manner disturbed or reduced by any agency or individual.”
The farmers suicide is a crisis which if not taken care of we have to pay the socio-economic costs. The advancement in agricultural techniques needs heavy investment. The government should secure more investment than in the IT sectors, etc. There must be a minimum support price for the agriculture. The Public Distribution System is to checked. The lacuna is the improper implementation of the government policies. The government has to offer path breaking welfare schemes for the farmers only then suicides can be prevented[3].
Fig: Applications filed per Year for PV Registration
The above-mentioned figure is the full span of applications filed for the registration of plant varieties. This span lies from 2007 when the PPVFR, Act came into force by commencing the registration process. The one thing to be noticed here is that it took almost 6 year for the legislation to start its effect. Also, another thing is to be noticed here is the number of applications years by year. In some initial years, obviously there may be less registration due to lack of awareness of the Act and such mechanism. If it is notice from 2007-2010, there were 833 applications by public organizations/institutes, 1,236 by private institutes and only 138 by the farmers. Although, there are some big bars in the name of farmers in few years i.e., 2011, 2013, 2014 and 2018. But it can be said that it is still not satisfactory for the purpose of the Act.
In this study, the category of farmers is being focused, because we know that farmers reside mostly in rural areas which makes them unaware by such legal things. It may be possible they are well educated or their family member also, but the awareness of such legislation is not possible by easy means. One of the main objectives of Plant Variety Protection is to increase productivity, which is not possible if it is not going to reach the root of farming in India.
Conclusion & Suggestions
In the above study it has been noticed that the Act is a great initiative for the protection of intellectual work of farmers or breeders and it also helps in increased productivity. The Protection of Plant Varieties and Farmers’ Rights Act, 2001 also helps in encouragement to the farmers and breeders to create a new variety. But unlike other legislations it also has some loopholes as well. However, in previous years there were so many applications were filed for registration of various varieties but the numbers were not so large as proportional to the population of India. It would have been much more but it seems that this Act is little bit out of the reach of the root farmers. It is obviously possible that literacy rate of farmers is not so good, so there must be some more innovations to be made so that the farmers of rural-to-rural areas can get the full benefit of it.
Some suggestions can be added to the end of this study it can be as follows:
- The legal mechanism and benefits of the PPVFR Act must be disseminated.
- There must be some nation-wide comprehensive programs regarding protection of plant varieties and IPR.
- There must some regional authorities to deal with the same. The regional means, at every possible lowest level area like villages, small town or tallukas.
- The awareness programs should also be held through mass communication or by reaching area by areas.
- There may be some more NGOs to support and help such activities.
These are few suggestions and it may be possible some of them can be existing but existence has no worth it must be effectively implemented.
[1]Article 1(2) of the Paris Convention: “The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.”
[2]https://timesofindia.indiatimes.com/india/over-12000-farmer-suicides-per-year-centre-tells-supreme court/articleshow/58486441.cms
[3] “Right to Life of Farmers” December 26, 2017 INBA News
