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TRIPS Downhill: India's Plant VarietyProtection System and Implications forSmall FarmersJagjit Kaur Plahe aa Department of Management, Monash University, Victoria,AustraliaPublished online: 14 Dec 2010.

To cite this article: Jagjit Kaur Plahe (2011) TRIPS Downhill: India's Plant Variety ProtectionSystem and Implications for Small Farmers, Journal of Contemporary Asia, 41:1, 75-98, DOI:10.1080/00472336.2011.530038

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TRIPS Downhill: India’s Plant VarietyProtection System and Implications forSmall Farmers

JAGJIT KAUR PLAHEDepartment of Management, Monash University, Victoria, Australia

ABSTRACT The Indian government was obliged to extend private property rights to plant vari-eties under the World Trade Organisation’s Trade Related Intellectual Property Rights (TRIPS)Agreement. This paper analyses the implications of India’s TRIPS-induced Protection of PlantVarieties and Farmers Rights (PPVFRs) Act for small producers. The Indian Act gives formalrecognition to farmers’ rights and upholds the principle of benefit sharing. This notwithstanding,it is argued that it will be very difficult for small farmers to benefit from the legislation sincethe Act is designed to protect the rights of parties that are able to prove that they are innovatorsin agriculture. The extension of private property rights to plant varieties will lead to higher seedprices and could lead to further erosion of genetic diversity in the country, negatively impactingfarmers. Importantly, the Indian government’s decision to accede to the International Union forthe Protection of New Plant Varieties Convention (UPOV), coupled with the provisions of the2004 National Seed Bill, severely compromise the farmers’ rights provisions in the PPVFRsAct, putting into question the Indian government’s commitment to protecting farmers’ rights.

KEY WORDS: TRIPS, India, plant variety protection, farmers’ rights, UPOV

During the Uruguay round of trade negotiations, the push to extend privateproperty rights to life forms came from multinational seed, agro-chemical andbiotechnology corporations, the majority of which are based in developed countries.These corporations, which make large investments in developing new plant varietiesusing advanced technologies, wanted to be assured of ‘‘adequate’’ financial returnsfor their research efforts. The biotechnology and seed industries successfully lobbiedtheir governments to ensure the final World Trade Organisation’s (WTO’s) TradeRelated Intellectual Property Rights (TRIPS) Agreement extended private propertyrights to plant varieties and allowed for the patentability of plant genetic material(Plahe and Nyland, 2003: 33). TRIPS came into force on 1 January 1995 as the mostwide-ranging and far-reaching international treaty on the subject of intellectualproperty (Watal, 2001: 2). According to Drahos (2002: 4) ‘‘TRIPS in essence is theoutcome of international regulatory capture of the WTO process by concentrated

Correspondence Address: Jagjit Kaur Plahe, Department of Management, Faculty of Business and

Economics, Caulfield Campus, Monash University, 27 Sir John Monash Drive, Caulfield East, VIC 3145,

Australia. Email: Jagjit.plahe@buseco.monash.edu.au

Journal of Contemporary AsiaVol. 41, No. 1, February 2011, pp. 75–98

ISSN 0047-2336 Print/1752-7554 Online/11/010075-24 � 2011 Journal of Contemporary Asia

DOI: 10.1080/00472336.2011.530038

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producer interests’’ including biotechnological transnational corporations (TNCs).As a result of this regulatory capture, every WTO member is obliged to give effect tothe minimum intellectual property standards set by TRIPS which include standardsfor patent and plant variety protection (Drahos, 2002: 1). TRIPS has become one ofthe most controversial agreements of the WTO. This is due to its broad mandate andits complex socio-economic implications. The TRIPS controversy has been markedby negotiation breakdowns within the WTO mostly along so-called North-Southlines. Importantly, it has also been marked by a strong world-wide campaignamongst civil society organisations, drawing attention to the implications of TRIPSnot only for research, development and innovation but for fundamental humanrights, including the right to health, the right to food, the rights of farmers, theprotection of traditional knowledge and the preservation of biodiversity (Plahe,2009: 1197-8).

TRIPS has dramatically shaped national intellectual property (IP) regulations indeveloping economies. The broad mandate of TRIPS is leading to a plethora ofcomplex domestic IP policies which will play a vital role in determining the direction ofeconomic and social development in the Third World. As most developing countriesonly began to give effect to the TRIPS agreement from 2000 onwards, the international-national IP policy nexus is an under-researched area. Understanding how and whydeveloping countries have responded to TRIPS is crucial in terms of the rights ofeconomically poor people. In this regard, India’s legislative response to TRIPS isextremely important given that many smaller developing countries depend upon theIndian government’s negotiation skills and capacity to put forward strong concreteproposals on IP issues in the WTO. Progressive policy decisions taken by India couldembolden other countries to emulate its position; however, the opposite is also true.

Given TRIPS, WTO member states were required to extend private propertyrights to plant varieties through a system known as plant variety protection (PVP).PVP takes the form of plant breeders’ rights (PBRs) which ‘‘are used to protect newvarieties of plants by giving exclusive rights to commercial breeders to market agiven variety or its reproductive material’’ (IP Australia, 2007: 1).

The main objective of this paper is to analyse the implications of India’s PBRlegislation for small farmers. The legislation entitled The Protection of PlantVarieties and Farmers Rights Act (PPVFRs) was passed in the Indian parliament in2001 (Government of India, 2001). This paper adds to a small body of literature onthe Indian PVP legislation (Ramanna and Smale, 2004; Ranjan, 2009). A distinctivefeature of this paper is that it focuses primarily on the status of small farmers.Furthermore the paper includes analysis of the latest data obtained from theProtection of Plant Varieties and Farmers’ Rights Authority of India on PBRapplications. Given the objective of the paper, a number of questions are posed.

1. How has the Indian government responded to the TRIPS agreement in terms ofextending private property rights to plant varieties?

2. How does the Indian PVP legislation compare to the International Union for theProtection of New Plant Varieties Convention Agreement (UPOV)?

3. What implications does the Indian PVP regime have for small Indian farmers?4. What are the key trends in terms of the applications for plant breeders’ rights in

India?

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5. What policy options are available to the Indian government under TRIPS toprotect the status of small farmers?

The paper begins by discussing India’s pre-TRIPS seed policy, which was closely tiedto the intellectual property regime. The section that follows outlines the plant varietyprotection provisions of the TRIPS Agreement and the significance of the UPOVsystem in this regard. The rest of the paper addresses the specific questionsposed above.

India’s Seed and IP Policy Prior to TRIPS

In the post-independence period the Indian government tightly controlled the seedsector to ensure that this ‘‘genetic software’’ (Rangnekar, 2002: 2) was not onlyaccessible, but also affordable to farmers. There was a ban on commercial imports ofany agricultural inputs which were also produced in India and this included seed.Private companies could only import seed after obtaining special permission fromthe government and there was a similar ban on the export of seed. Also under the1969 Industrial Policy Act, large Indian firms (firms with more than Rs1 billion orabout US$133 million in assets) and firms that had more than 40% foreignownership could not enter the seed industry (Pray and Ramaswami, 2001: 409). Thedevelopment as well as the distribution of seed was controlled by governmentagencies, the primary ones being the National Seed Corporation and the State FarmCorporation of India. According to Pal and Tripp (2002: 443), given India’s seedpolicy, government agencies pursued the ‘‘twin goals of efficiency (serving marketoriented large farmers) and equity (serving small farmers and marginal areas).’’ Theyalso note that Indian plant breeding programmes have been amongst the mostsuccessful in the world, and the ‘‘rates of return to investment in plant breedingresearch in the country have been in excess of 50 per cent.’’ It was partly due to itspredominant role in plant breeding that the Indian government did not allowintellectual rights over plants and plant varieties. The benefit of the researchconducted by public agencies was in the public domain and could not bemonopolised by any private entity (Ramakrishna, 2002: 6).

The Indian government’s strong presence in the seed sector both in terms ofimproved seed varieties and the delivery of seed kept seed prices in check. From thelate 1980s several key changes were made to India’s seed policy. In 1987, thegovernment reversed the ban on the entry of large and foreign-owned seed andbiotechnological industries into the seed sector and the 1988 ‘‘New Seed IndustryDevelopment Policy’’ reversed the ban on seed imports (Rao, 2004: 851).Furthermore, in 1991, the government introduced changes to technology transferand foreign investment regulations (Pray and Ramaswami, 2001: 409). Rao (2004:851) notes these policy changes led to the entry of large Indian companies into theseed market, joint ventures/technical collaboration between Indian seed companiesand foreign companies and the establishment of subsidiaries in India by foreign seedcompanies.

Given changes to the seed policy, foreign corporations began to express strongsentiments about India’s IP system which prohibited product patent protection aswell as plant variety protection. Despite introducing changes to the seed policy, the

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Indian government was opposed to an international IP agreement under the GeneralAgreement on Tariffs and Trade (GATT) that would require parties to extendprivate property rights to plants and plant varieties. India, with the help of Brazil,continued to block a global IP agreement during the Uruguay round of tradenegotiations (Ramanna, 2002: 10). In the early 1990s, however, India came understrong pressure from the US government to commence negotiations on an IPAgreement under GATT. In 1991 the US Trade Representative (USTR) commencedan investigation on the effect of India’s policies on US commerce. While theinvestigation was terminated after nine months, the USTR reported that India’s IPpolicies were inadequate and ‘‘unduly burdened U.S. commerce’’ (Stewart, 1993:2258). The US government took strong action against India by suspending allIndian-origin chemical and pharmaceutical products from duty-free status under theGeneralised System of Preferences (US Department of State, 1994: 4). Underpressure from the USA, the Indian government subsequently accepted a text duringthe mid-term Review of the Uruguay round in April 1989, which paved the way forthe TRIPS Agreement (GATT, 1989: 1-2). TRIPS introduced a global IP regulatoryregime which can be enforced through the WTO’s binding dispute settlement system.

Plant Variety Protection, UPOV and the TRIPS Agreement

In the late 1950s, under pressure from the plant breeding industry, Western Europeancountries instigated a process to extend IP protection to plant varieties. This resulted inthe adoption of the 1961 UPOV Convention, which came into force in 1968 and wasinitially signed by just five countries. UPOV is the only international treaty thatregulates plant breeders’ rights. The purpose of the UPOV is solely ‘‘to recognise andto ensure’’ the rights of commercial breeders of new plant varieties (as in article 1 ofboth the 1961 and 1978 UPOV Conventions). The UPOV Convention was amended in1972 and again in 1978.1 In 1986, there was a decision taken by the then 17 members ofthe 1978 UPOV Convention, to further revise the provisions of the Convention whichled to the adoption of the 1991 UPOV Convention, which dramatically strengthenedthe rights of breeders at the expense of small farmers (GRAIN, 1998: 3). Thedifferences between the 1978 and 1991 UPOV Conventions and the implications ofthese differences for farmers’ rights are discussed in the section below.

The push to enforce PVP through TRIPS came from the plant-breedingcorporations, which wanted ‘‘reasonable’’ rates of return on their investment.However, as Helfer (2002: 2) notes, ‘‘the genetic material within plants that specifiestheir distinctive and commercially valuable features is naturally self-replicating;’’commercial breeders were not assured of returns because they were not able toenforce exclusive rights over plant genetic resources (Seshia, 2002: 3). Commercialplant breeders argued that without IPR protection for new plant varieties, therewould be little or no progress in plant breeding. However, the IPR system does notrecognise the significant input of farmers, often over many generations, in producingnew plant varieties. Farmers over thousands of years have been involved in selecting,improving and conserving plant germ plasm which forms the basis of manycommercial varieties today (Srinivasan, 2003: 422). Seshia (2002: 4) notes the PVPsystem makes a distinction between growers and breeders, which assumes thatcommercial breeders are the legitimate suppliers of propagating material. She notes

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that this distinction between growers and breeders breaks down in many developingcountries where farmers develop new plant varieties and are the major suppliersof seed.

Given TRIPS, WTO member states were obliged to protect plant varieties ‘‘eitherby patents or an effective sui generis [unique] system or by any combination thereof’’by the year 2000. What is mandated by TRIPS is that any sui generis system has to be‘‘effective’’ and that effectiveness of the system will be determined by the WTO (Dharand Rao, 1999: 179). In the case of a dispute, a WTO panel may have to decide whatconstitutes an ‘‘effective’’ set of standards and could take the UPOV Convention asthe standard of what is ‘‘effective’’ (Tansey, 2002: 11). Given the condition of‘‘effectiveness’’ of a sui generis system, developing countries have come underpressure from bilateral trading partners in the developed world to becomesignatories to UPOV (Gopalakrishnan, 2001: 158). Ranjan (2009: 222) notes 40 ofUPOV’s 64 members joined UPOV after 1995 when the TRIPS Agreement wasadopted. The Indian government elected to adhere to the PVP provisions of TRIPSby enacting sui generis legislation. The following section analyses the provisions ofthe Indian legislation and compares these provisions to the UPOV system from afarmers rights’ perspective.

The Indian Sui Generis Legislation

Enacting legislation to permit the private ownership over seed and plant varieties hasbeen controversial in India. Changes to the seed policy in the 1980s led to a flurry ofgrowth in the private seed industry. Given this growth, private seed companies underthe banner of the Seed Association of India (SAI) strongly lobbied the Indiangovernment for the extension of IPRs to plant varieties through PBRs. Theintroduction of PBRs was, however, strongly opposed by NGOs and farmers’ lobbygroups. Under pressure from the SAI, the first Bill on PBRs was drafted in 1993-94by the Indian Ministry of Agriculture. This was even before the TRIPS Agreementhad been finalised in the GATT negotiations. The draft bill contained someprovisions on farmers’ rights and community rights. These provisions were stronglyopposed by the SAI which advocated for their complete removal. NGOs objected toany such removal and in fact argued that the rights of farmers should bestrengthened (Ramanna and Smale, 2004). The TRIPS Agreement, however, putadditional pressure on the Indian government to establish an IPR system whichwould allow PBRs. The government had to heed the demands of various differentgroups that had diametrically opposed views on extending private property rights tolife forms. Given the different views, the bill was revised in 1996, 1997 and 1999; the1997 draft introduced for the first time the words ‘‘Farmers’ Rights’’ in the title ofthe bill (Ramanna and Smale, 2004: 427-8). It was the 1999 draft bill of the PVPlegislation that was finally introduced in the Indian Parliament.

Interestingly, in April 1998 the Indian government informed UPOV that it wantedto join the 1978 UPOV Convention (Ranjan, 2009: 230). This was despite the factthat the introduction of PBRs in India was a hugely controversial and divisive policyissue and also despite the fact that the government had chosen to draft sui generislegislation in order to comply with TRIPS. This move clearly signals that the Indiangovernment had given in to the demands of SAI despite the public outcry against not

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only India’s accession to UPOV but also any UPOV-based PVP system. Accordingto Article 32.1 of the 1978 UPOV Convention, the Indian government was requiredto deposit its instrument of accession with the Secretary-General of UPOV.However, before doing so, the Indian government was obliged under the Conventionto ‘‘ask the Council to advise it in respect of the conformity of its laws with theprovisions of [UPOV]’’ (Article 32.3). Also, according to UPOV, the Indiangovernment could only deposit the instrument of accession if ‘‘the decisionembodying the advice was positive’’ (Article 32.3). Soon after India informedUPOV of its wish to accede to the 1978 Convention, the 1991 Convention came intoforce and, according to the 1991 Convention, India was required to accede tothe 1991 Convention and could no longer join the 1978 Convention (Article 37.3).The UPOV Council, however, made an exception to this rule and permitted theSecretary-General to accept India’s accession to the 1978 Convention. According toRanjan (2009: 231) this was as long as the Indian government ‘‘moved expeditiouslyto complete its [PVP] legislation.’’ Even though the Indian government chose toenact sui generis legislation in order to comply with the TRIPS Agreement, the draftIndian PVP bill was strongly influenced by the UPOV model of PBRs.

The final 1999 bill was referred to a Joint Parliamentary Committee. Given the highlevel of public concern about plant variety protection, the Committee conductedpublic hearings on the bill in the year 2000. A substantially revised draft whichincluded farmers’ rights provisions was introduced in Parliament in August 2000 andfinally passed a year later in August 2001 (Cullet and Raja, 2004: 104; Seshia, 2002: 2).The Act was hailed as a strong victory for farmers’ rights and a model law that otherdeveloping countries could emulate. The Indian Act came into force in August 2005,four years after it was passed in parliament. The PPVFRs Authority of India wasestablished soon after the Act came into force; regulations for the formal registrationof plant varieties were established in December 2006. It was not until early 2007 thatthe Authority began to accept registrations for plant varieties (Ranjan, 2009: 232).Given that India had enacted sui generis legislation, the government was under noobligation to join UPOV. The PPVFRs Act addressed India’s obligations underTRIPS. However, the UPOV question was not settled. India did not withdraw itsaccession request and it is argued in this paper that India’s policy response to TRIPSis, therefore, confusing and contradictory. It is confusing because it is not clear whythe government did not withdraw its decision to join UPOV. It is also contradictorybecause certain provisions of the Indian Act conflict with the UPOV PVP system.Ranjan (2009: 232) questions whether the long delay in implementing the Act hadanything to do with India’s application to accede to UPOV. Ranjan notes ‘‘no answeris available.’’ While no answer is available, what is clear is that the Indian governmenthas not sent a consistent message about protecting and upholding farmers’ rights. Inexploring the Indian government’s response to TRIPS, the sub-sections that followdiscuss the provisions of the Indian sui generis legislation and compare them to theUPOV regime of plant variety protection.

Objective of the Indian PPVFRs Act

Similar to UPOV, the main objective of the Indian PPVFRs Act is ‘‘to provide forthe establishment of an effective system for protection of plant varieties.’’ According

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to the Act, ‘‘for accelerated agricultural development in the country, it is necessary toprotect plant breeders’ rights to stimulate investment for research and development,both in the public and private sector, for the development of new plant varieties.’’However, unlike UPOV, the Indian Act acknowledges farmers’ rights by stating that‘‘it is considered necessary to recognise and protect the rights of the farmers inrespect of their contribution made at any time in conserving, improving and makingavailable plant genetic resources for the development of new plant varieties.’’

It is important to note that the Indian Act does not allow for the protection ofplant varieties through both patents and PBRs. This provision is based on the UPOV1961 and 1978 Conventions, which prohibit such double protection. However, thebar on double protection was removed in the 1991 UPOV Convention.2 The doubleprotection of seed and plant varieties provides absolute monopoly control to plantbreeders.

Coverage of Varieties

The Indian PPVFRs Act specifies the varieties that can be protected through the Act.Under Section 14 of the Act, the following varieties are eligible for private plantvariety protection: new varieties, extant varieties, essentially derived varieties andfarmers’ varieties. According to the Act, new varieties are only eligible for protectionif they are specified by the government by notification in the Official Gazette. Thegovernment can, therefore, limit the scope of PVP by prohibiting the protection ofcertain plant varieties. This provision stands in contrast to the 1991 UPOVConvention, where members are obliged to bring all plant varieties within the scopeof plant breeders’ rights, within 10 years of accession.

An extant variety is defined in the Act as a variety available in India, which isnotified under section 5 of the Seeds Act (1966), or a farmers’ variety, or a varietyabout which there is common knowledge or any other variety which is in the publicdomain (Section 2j). This is a TRIPS-plus provision since the TRIPS Agreementdoes not require member states to extend private property rights to plant varietiesthat are already in the public domain. In India, high yielding food crop varieties werethe outcome of public research efforts based on the principle of free exchange ofgerm plasm with the overarching aim of creating a food-secure India (Cullet, 1999:12). The significance of the protection of extant varieties in the Act is that it makesvarieties already in the public domain eligible for monopolisation. This provision isprimarily to strengthen the position of the public sector in establishing PBRs over itsvarieties developed over many years since independence (Seshia, 2002: 9).

The Indian Act also makes provision for essentially derived varieties (EDVs). Theprotection of EDVs under Indian legislation is not required under TRIPS and istherefore another TRIPS-plus provision which is based on the 1991 UPOVConvention. Section 2i of the Indian Act is based on Article 5a of the 1991 UPOVConvention, which extends the rights of plant breeders to cover not just thereproductive propagating material, but also to cover any harvested material,products of harvested material and EDVs obtained through propagating material(Dhar, 2002: 13; Dutfield, 1999: 20). The rationale behind the protection of EDVs isthat a first innovation can have spill-over effects and therefore form the basis of asecond innovation. The extension of PBRs to EDVs is to ensure that the first

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innovator is able to benefit economically from any other downstream innovation(s)derived from the first innovation. The second innovator, however, is only obliged toshare profits with the first one, if an intellectual property right is infringed. It ispossible that innovators may be less inclined to base their innovations on IPR-protected products, thereby stifling innovation as opposed to encouraging it(Srinivasan, 2003: 428). Bala Ravi (2002: 73) argues that this sort of protectionprovides virtually absolute ownership over a protected variety, which is very similarto a patent. Dhar and Rao (1999: 182) observe that the ‘‘scope of protection leavesvirtually no possibility of farmers reusing seeds without authorisation of thebreeder.’’ The protection of EDVs provision in the Indian Act is to protect the largenumber of varieties developed by the public sector. Public institutions will be able touse the provision to reap economic benefits from private sector innovation based onprevious public sector research (Srinivasan, 2003: 428). It remains to be seen if EDVswill allow the public sector to reap any benefits since, as argued above, this provisioncould be a disincentive for innovation.

In sharp contrast to the UPOV system of PVPs, the Indian act makes a provisionfor the protection of farmers’ varieties. In fact, the definition of the term ‘‘breeder’’under Indian law also includes farmers. According to the Act, a farmers’ variety is ‘‘avariety which has been traditionally cultivated and evolved by the farmers in theirfields; or is a wild relative or land race or a variety’’ about which the farmers possesscommon knowledge. This provision allows farmers to protect their own plantvarieties. The protection of farmers’ varieties, however, is fraught with problems.These are discussed in the section below which covers the implications of the IndianPVP legislation for small farmers.

Conditions of Protection

The Indian Act stipulates that a new variety has to be novel in order to be registered.The conditions of protection under the Indian Act are based on the provisions of theUPOV Convention. According to the Indian Act, a variety is novel if ‘‘at the date offiling of the application for registration for protection the propagating or harvestedmaterial of such variety has not been sold’’ in the market (Section 15.3a). Therefore,under the Act a variety is novel, not if it did not exist before, but if it was notavailable on the market before. According to Ghose (2003: 36), the novelty criterionin PBRs ‘‘presumes at the outset that seeds are a marketable commodity, as opposedto an input that is not owned by private parties but by communities.’’ PBRs involvelower thresholds than those for patents. The notion of novelty for PBRs differs fromthat of patents. Under TRIPS, a patent can be granted only to an invention that isnew and involves an inventive step. The criteria for PBRs do not include therequirement of an inventive step. PBRs, therefore, allow commercial breeders toprotect plant varieties with very similar characteristics, which – according to theCommission on IPRs (2002: 61) – means that ‘‘the system tends to be driven bycommercial considerations of product differentiation and planned obsolescence,rather than genuine improvements in agronomic traits.’’ Also, according to theCommission (2002: 61), developing countries could consider raising this thresholdlevel so that protection is awarded only to genuine and significant innovations thatare deemed socially beneficial, for example, those that increase yields and provide

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greater nutritional value. The Indian government chose not to raise the threshold toensure that only new inventions can be protected.

For PBR registration under the Indian Act, in addition to being novel, a varietyalso has to be genetically uniform, distinct and stable.3 Farmers are also required toconform to the distinctiveness, uniformity and stability (DUS) criteria in order toprotect their own varieties. The DUS criteria, therefore, by default control the sortsof seeds that can be marketed and who can market them (Sahai, 2001: 5-6).

In contrast to the UPOV system, the Indian Act poses further conditions uponplant breeders. Section 15.4 of the Indian Act sets out certain conditions under whicha PBR will not be approved if, for example, the denomination given to the variety ‘‘isnot capable of identifying the variety; or is comprised of solely or partly of [a]geographical name.’’ Section 18 stipulates that each ‘‘application for registra-tion . . . shall be accompanied by an affidavit sworn by the applicant that suchvariety does not contain any gene or gene sequence involving terminatortechnology . . ..’’4 The Act upholds the principle of prior informed consent bystipulating that breeders (except farmers) also have to provide ‘‘a declaration that thegenetic material or parental material acquired for breeding, evolving or developingthe variety has been lawfully acquired . . . .’’

The Rights of Plant Breeders

The rights of plant breeders in the Indian Act are based on the 1991 UPOVConvention. It should be noted that the 1991 Convention considerably strengthenedthe scope of protection for plant breeders when compared to the 1978 Convention.In terms of the rights of breeders, Section 28.1 of the Indian Act states that ‘‘acertificate of registration for a variety issued under this Act shall confer an exclusiveright on the breeder or his successor, his agent or licensee, to produce, sell, market,distribute, import or export the variety.’’ Mirroring the 1991 UPOV Convention, theIndian Act extends the rights of plant breeders to exporting protected varieties. Thismakes the PVP provisions of the Act stronger than the patent system under theTRIPS Agreement (Dhar, 2002: 13). The period of protection for plant varieties,including essentially derived varieties, is valid for nine years and can be renewed for aperiod of up to 15 years (Section 24.6 of the Act).

The Act protects the rights of breeders by stipulating heavy penalties forinfringement of PBRs. Punishment under the Act includes heavy financial penaltiesand jail terms. Importantly, in the case of a dispute, the Act reverses the burden ofproof from the plaintiff to the defendant, which could place onerous cost burdens onfarmers if they are accused of infringing PBRs.

The Rights of Researchers and the Farmers’ Privilege

The Indian Act protects the rights of researchers under Section 30, which states that‘‘nothing in the Act will prevent (a) the use of any protected variety by any personusing the variety for conducting experiments or research; or (b) the use of a varietyby any person as an initial source of variety for the purpose of creating othervarieties.’’ The Act makes this conditional upon ‘‘the authorisation of the breeder ofa registered variety [which] is required where the repeated use of such variety as a

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parental line is necessary for commercial production of such other newly developedvariety.’’ This provision is based on Article 5 of the UPOV 1978 Convention, whichstipulates that permission of the breeder is required only if the production of seeds isundertaken for commercial purposes. The interpretation of Article 5 of the 1978Convention gave rise to the ‘‘farmers’ privilege,’’ which implies that farmers areallowed to reuse the propagating material from the previous year’s harvest (Dharand Rao, 1999: 180-1). Farmers are also allowed to freely exchange seeds of theprotected varieties. While there is no reference to the farmers’ privilege in the 1978UPOV Convention, as Dhar (2002: 11) observes, Article 5 provides the basis forbalancing the rights of breeders of new plant varieties with those of farmers andresearchers who are allowed ‘‘the space to carry on with their activities unhinderedby the exercise of PBRs.’’ The 1991 UPOV Convention, however, strengthened therights of breeders at the expense of small farmers. According the Article 15 of theConvention, Contracting parties

may, within reasonable limits and subject to the safeguarding of the legitimateinterests of the breeder, restrict the breeder’s right in relation to any variety inorder to permit farmers to use for propagating purposes, on their own holdings,the product of the harvest which they have obtained by planting, on their ownholdings, the protected variety . . . (emphasis added).

Dhar (2002: 15) notes, the exceptions in the 1991 Convention are in sharp contrast tothe 1978 Convention where farmers were allowed to re-use protected materialwithout having to pay royalties to the holders of PBRs. The 1991 UPOVConvention, therefore, restricts the right of farmers to save and replant seeds – acommon practice followed by 75% of Indian farmers (Priyanka, 2005: 3). The IndianAct not only upholds the farmers’ privilege provision enshrined in the 1978 UPOVConvention, but also goes beyond this provision by protecting the rights of farmers.

Farmers’ Rights

The Indian Act stipulates that farmers are ‘‘entitled to save, use, sow, resow,exchange, share or sell’’ their farm produce, including seed of a variety which isprotected under the Act (Section 39.1). However, farmers are not entitled to sellbranded seed of a protected variety. According to the Act, branded seed ‘‘means anyseed put in a package or any other container and labelled in a manner indicating thatsuch seed is of a [protected] variety.’’ Farmers are, therefore, free to save and reuseseed, provided they do not sell any branded seed. Dhar (2002: 19) notes ‘‘whether ornot this qualification on the so-called ‘branded seeds’ will affect the farmers ability toengage in brown-bagging will be the key issue during implementation of the Act.’’

The Indian Act rewards farmers for their contribution to breeding new varieties ofplants (Dhar, 2002: 18). According to the Act, ‘‘a farmer who is engaged in theconservation of genetic resources of land races and wild relatives of economic plantsand their improvement through selection and preservation’’ is entitled to a rewardfrom the gene fund (Section 39.1). The Act mandates the establishment of a nationalgene fund (Section 45). Furthermore, the breeder of a protected variety is obliged todisclose to farmers the expected performance under given conditions of the

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propagating material of the variety (Section 39.2). If the propagating material fails toprovide the stated performance, then farmers can claim compensation from thebreeder through the relevant government body. Furthermore, a plant breeder whouses a farmers’ variety to create an essentially derived variety has to get permissionfirst from the farmer (Section 43). Farmers are entitled to claim benefits for a PBRthat utilises their knowledge (Section 26.2).5 However, most probably, only the largefarmers will be able to take advantage of these provisions in the Act. Small farmerswill benefit from the provisions only if they are well organised and are able to acquireexternal assistance in order to claim a reward from the gene fund.

The PPVFRS Act and Implications for Small Farmers

Bringing Small Farmers into the Formal Plant Variety Protection System

Small farmers over many generations have cultivated different varieties whichform the basis of varieties produced in India. However, the assertion of IPRs overplant varieties and plant genetic material allows for this knowledge to be usurped.In terms of PBRs, commercial plant breeders rely on the DUS criteria in order toprove that they are innovators in agriculture. Small farmers are not able to codifytheir role in the innovation process since, unlike commercial breeders who conductresearch in controlled conditions, small farmers use the normal environmentalconditions available to them in terms of plant breeding (Dhar, 2002). Whiletechnically the rights of farmers are upheld in the PPVFRs Act and farmers areallowed to protect their plant varieties, in reality, the PVP system is in place toprotect varieties developed in laboratories and is not suitable for protectingvarieties that farmers develop on their own farms (Ramakrishna, 2002: 22).India’s PBRs legislation is modelled after the UPOV Convention and farmers’rights were in fact introduced into the draft bill as an afterthought when farmersgroups and other civil society organisations put immense pressure on thegovernment to secure the rights of small producers (Cullet, 1999: 14; Cullet andKoluru, 2003: 7; Seshia, 2002).

It will be difficult to uphold the farmers’ rights provisions for several reasons.Firstly, it will most probably be more affluent farmers who will take the initiative toregister their varieties for IP protection. Small farmers will find it difficult to provethat they are the true innovators of new plant varieties because they will be requiredto demonstrate that their varieties are distinct, stable and uniform (Cullet andKoluru, 2003: 7). Without adequate external assistance, small farmers will be left outof the PBR system altogether. Secondly, it would be difficult to establish exactlywhich farmer/farming community has a right to apply for PBR. A co-operative froma particular farming community could apply for a PBR application. However, allfarmers from a given community who stand to benefit from a successful PBRapplication would have to be members of the co-operative. This goes against theconcepts of community membership which, as Salazar and colleagues (2006: 20)note, are implicit, for example, by birth. Thirdly, formal IP systems underestimatethe fact that farmers may not wish to gain exclusive control over plant geneticmaterial which would negatively affect neighbouring farming communities (Salazaret al., 2006: 20). A system of individual private property rights goes against the

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culture of farming in developing countries where farmers share knowledge andinnovate communally. Srinivasan (2003: 426) argues that the

attempt to confer IPRs on traditional varieties involves fairly heroicassumptions about the feasibility of identifying specific communities (or evenindividuals, as some NGOs would prefer) to whom the development ofindividual varieties can be attributed. Traditional varieties may be in use overlarge, dispersed areas. Even if the geographic origin of a traditional variety canbe identified . . . the attempt to attribute ownership to a specific community islikely to be fraught with uncertainty and arbitrariness.

Permitting farmers to monopolise plant varieties they have developed, includingthose in the public domain, silenced the debate on extending private property rightsto life forms in India. The opposition was neutralised and the Act hailed as successstory for farmers. However, current applications for PBRs and approved PBRregistrations paint a different picture. In May 2007 the PPVFRs Authority began toreceive applications for 12 notified species, including wheat, rice, maize, sorghum,millet, chickpea, pigeon pea, mung bean, black gram, garden pea and kidney bean.In December 2007 the government also notified various species of cotton and jute. Inthe 2007-08 period, the Authority received 653 applications for registration of thenotified varieties. According to the Authority, 481 applications were received frompublic plant breeding bodies, 15 from State Agricultural Universities (SAUs), 153from seed corporations and 4 from farmers (Government of India, 2009a). Asillustrated in Table 1, by April 2009, the total number of applications had almostdoubled from the 2008 figure of 653 to 1109. It should be noted that 834 of theseapplications were for extant varieties that are already in the public domain and 268for new varieties. India’s PVP system, which has barely been in place in two years,has paved the way for monopoly control over numerous varieties of major food and

Table 1. Applications for PBRs May 2007-April 2009

Notified species Extant varieties New varieties Farmers’ varieties

Rice 174 29 6Wheat 87 6 0Sorghum 59 24 0Millet 84 31 0Maize 109 42 0Mung bean and Black gram 43 4 0Pigeon pea 22 6 0Garden pea 24 3 0Chick pea 46 8 1Lentil and Green gram 17 1 0Kidney beans 7 1 0Cotton 146 111 0Jute 16 2 0

Total 834 268 7

Source: Data from the Government of India (2009b).

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fibre crop species in the country, as outlined in Table 1. In May 2009 the PPVFRsAuthority had issued 40 PBR registration certifications. This number is expected toincrease on a monthly basis as a large number of applications are assessed andvarieties tested using the DUS criteria (Government of India, 2009b).

The number of applications for registrations from farmers/farmers’ groups isunlikely to increase dramatically since the process is both costly and time consumingand requires farmers to ‘‘prove’’ that their variety is distinct, uniform and stablewhich can be a daunting process for small farmers. The present trend in registrationsclearly indicates that government bodies are all set to monopolise varieties in thepublic domain. According to a senior official from the peak government body, theIndian Council of Agricultural Research (ICAR), India’s PVP Act allows governmentbodies to ‘‘consolidate’’ their own extant varieties. According to the ICAR official,the rationale for the private protection of extant varieties already in the publicdomain was to ensure that varieties developed by public bodies, such as ICAR andpublic agricultural universities, would not be usurped by the private sector. In early2008 the ICAR alone had submitted over 400 PBR registration applications (ICARofficial, New Delhi, personal communication, January 2008). As explained above, ifthe novelty conditions in the Act were strong enough, then the private sector would beunable to usurp these varieties. It seems more likely that the government introducedthe provision of extending private property protection to extant varieties so thatpublic bodies could gain some commercial benefit. According to the ICAR official,

we are a public sector organisation who knows it has a responsibility, whoknows it gets money from the public exchequer, who knows that it has a dutytoward the public, who knows that the public has some trust in us to do thisduty. So we have many options: either delivering the seed free of cost, maybe ata subsidised cost, maybe even at full cost. So, we do need resources, butcommerce is not our main motive (ICAR official, New Delhi, personalcommunication, January 2008).

The official did not rule out the commercial incentive of government bodies to chargefarmers high premiums for proprietary seed. The official also added that thegovernment would decide who would receive free or highly subsidised seed and whowould not. The official did not specify what criteria would be used to determinewhich farmers would be entitled to free seed and which ones would not. This is a farcry from the earlier system where every farmer had a right to cheap and good qualityseed developed by government bodies.

According to Ramanna and Smale (2004: 438-9), given the fact that the Act allowsso many PBR claimants, instead of leading to innovative research and development,the Act may have exactly the opposite effect. Emerging data from the PPVFRsAuthority certainly point to a rush by the public and private sector to monopolisewhatever they can. Whether or not innovation will take place remains to be seen. Afull analysis of PBR registrations for new plant varieties will have to be conducted toascertain whether the Act has led to more research and innovation and, importantly,if small farmers can afford PBR protected products. Also, future studies willascertain whether or not small farmers have benefited from the benefit sharing andother provisions in the Act and why.

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Hybrid Crops and the Entrenchment of Mono-cropping

The public sector in India focused primarily on the development of low-value andhigh-volume seeds. Also the public sector efforts concentrated on the production ofopen-pollinated varieties where the seed replacement rate is low and the proportionof farmer-saved seed is high (Rao, 2004: 851). The focus of private seed companiesin India has been on the low volume, high value category of crops with the greatestfocus on the development of new hybrids for oil seeds, maize, cotton, vegetablesand, most recently, rice (Singh, 2001: 1). The participation of the private sector inthe development of hybrid seed, however, depends on the availability of patents,PBRs or similar rights (Cullet, 1999: 12). According to a US Department ofAgriculture report, foreign corporations have focused on hybrid varieties for foodcrops such as rice, in particular, because they involve low production volume andhigher margins. The report also observes that there is no ‘‘significant governmentintervention in the pricing of these hybrids’’ (USDA, 2003: 4). The majority of thehybrid seed companies operating in India are either owned by foreign agri-chemical corporations or closely allied to them. The principal producers of hybridrice in India are Hybrid Rice International, which is owned by Aventis (sincedmerged with Bayer); Mahyco which was bought by Monsanto, and Spic-PHIBiogene and Pioneer Hi-Bred International Inc., both of which are part of the US-based agri-chemical and seed giant, DuPont (GRAIN, 2000: 5). PBRs in India willprovide the private sector with a much greater incentive to develop and markethybrid food crops.

The seed sector in India comprises open-pollinated varieties, public-bred hybridsand proprietary hybrids. Open-pollinated seed comprises the largest quantity of seedin India, followed by public hybrids and private hybrids. However, in terms of value,hybrid seed varieties developed by private seed companies are much more expensivethan the hybrids developed by public institutions and open-pollinated varieties(Gadwal, 2003: 400). Ghose (2003: 4) contends that the prices of seed acquired fromthe private sector have been increasing often by as much as 300% in five years. Henotes ‘‘while this rise cannot directly be attributed to the assertion of IPRs, itsexclusionary nature confers monopoly rights over seeds and award the holder thepossibility of pursuing monopoly pricing strategies.’’ He also argues that prices ofseeds protected by IPRs are generally higher compared to those that are not.Importantly, given that extant varieties can now be protected under the Indian PVPlegislation, the price of public hybrids will increase too.

In terms of higher yields, an empirical study on the profitability of hybrid rice inthe Indian state of Karnataka notes that while hybrid rice has a distinct yieldadvantage over inbred varieties, hybrid rice was not profitable for farmers in thestate. The study concluded that higher costs of production associated with higherseed cost, higher level of fertiliser and pesticide use and higher labour cost were notcompensated by the final market price of the rice (Chengappa et al., 2003). Despitethe costs, according to the head of Bayer BioScience, the sales of hybrid rice inIndia are steadily growing and will continue to grow by around 30%. The price forhybrid rice seed in 2006 was Rs170 (US$4) per kg, almost three and a half timesmore expensive than conventional rice (Damodaran, 2006). Under the TRIPSregime, the price of seed for hybrid rice and other food and fibre crops is expected

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to rise further. However, the legislation will not just lead to an increase in the costof seed and other inputs, it could further entrench the negative impacts of thegreen revolution.

The green revolution led to a concentration in the high-yielding seed varietiesused by farmers in many states in India, which in turn led to a loss of seeddiversity. A study by Pal and Tripp (2002: 450) reveals that given the greenrevolution, farmers in Andhra Pradesh are almost totally dependent on just threerice varieties. Such dependency is also true for the North-Western states ofPunjab, Haryana and Uttar Pradesh. Moreover, the experience of the states showsthat high-yielding varieties perform well only if other inputs are available insufficient quantities. The green revolution required important investments in seed,fertilisers, pesticides and irrigation, which only the biggest farmers could afford(Cullet, 1999: 12). Shiva (1993: 48) notes the green revolution displaced geneticdiversity at two levels. Firstly, it displaced the system of mixed cropping, wherefarmers produced different grains, pulses and oil seed, to a system of mono-cropping, where they primarily produced wheat and rice. Secondly, the high-yielding varieties introduced under the green revolution ‘‘came from a very narrowgenetic base’’ compared to the high genetic variability in traditional rice and wheatvarieties. Also, according to Shiva, ‘‘destruction of diversity and the creation ofuniformity simultaneously involves the destruction of stability and the creation ofvulnerability.’’

PBRs enacted under the neo-liberal paradigm will further intensify the trendsintroduced by the green revolution in terms of loss of seed diversity and farmerdependence on a large number of additional production inputs. This will not happenjust in the green revolution areas but across India. As Dutfield (2003) argues, this isbecause PBRs generally do not encourage breeding related to minor crops or to cropdiversification because the returns on investment in terms of research are minimal.He further notes, ‘‘it is conceivable, then, that PBRs may contribute to a trendwhereby traditionally diverse agro-ecosystems, containing a wide range oftraditional crop varieties, are replaced with monocultures of single agro-chemical-dependent varieties . . .’’ (Dutfield, 2003: 106). Similarly, according to the NGOGRAIN (1998: 5), there are many causes of genetic erosion; however, a widespreadcause ‘‘is the replacement of genetically-diverse traditional varieties by geneticallyuniform seeds,’’ a trend which will exacerbate with the introduction of PBRs. Morefarmers will become more dependent on the market because saved hybrid seeddelivers considerably lower yields (Cullet, 1999: 12).

It is important to note that its problems notwithstanding, the green revolution wasfully supported by the state and high-yielding varieties produced by variousgovernment agencies were in the public domain. This is not true for the generevolution which has led to the extension of private property rights to life forms at aglobal level through TRIPS. As Dunwell (2005: 379) notes, ‘‘the green revolutionwas shaped by the exigencies of modernisation, while the Gene Revolution is beingshaped by the imperatives of neo-liberal economic globalisation.’’ PBRs will lead tofurther concentration in seed varieties available in the market, leaving farmers withlittle choice but to purchase privately protected rice seed. The situation could becomemore dire for Indian farmers given that, in 2002, the Indian government formallyannounced that it plans to join the UPOV Convention.

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India’s Accession to UPOV: Derailing Farmers’ Rights Provisions

The Indian PVP legislation is based on the UPOV model of protecting plantvarieties. However, the Indian Act differs from UPOV in terms of the conditions ofprotection since it imposes additional obligations on commercial plant breeders inorder to uphold the principle of prior informed consent and to protect farmers fromthe terminator technology. The Act also covers the rights of farmers and researchersand mandates a system of benefit sharing. Critics argue that it is precisely due tothese provisions that the Indian government came under pressure from the seedindustry to strengthen the rights of commercial breeders. Given this pressure, in2002, the government formally announced that it planned to accede to UPOV. It isimportant to note even though the government had informed UPOV in 1998 that itwished to accede to the 1978 Convention, a formal announcement was not madeuntil 2002. According to Sahai (2003: 1),

after spending about eight years on wrangling, negotiations, consultations andan investigation by a Joint Parliamentary Committee, the Indian law withfarmers’ rights was finally enacted . . . There was a general consensus that Indiahad broken new ground and deviated from the UPOV model of sui generislegislation . . . Suddenly, in May 2002, without any discussions in Parliament,the Cabinet decided to reject the developments of the last few years and thegovernment’s own legislation, and decided to join the UPOV. This decision tojoin UPOV has stunned national and international experts, particularly whenIndia has also been taking an independent position in the TRIPS Council,seeking greater national flexibility. Many are legitimately questioning thiscomplete about turn in India’s position.

The Indian Act will have to be changed in order to ensure that it is not in conflictwith UPOV. This was the experience of the Organisation of African Union (OAU)which was asked to significantly alter the ‘‘Model Law for the Protection of theRights of Local Communities, Farmers and Breeders and for the Regulation ofAccess to Biological Resources’’ in order to bring it into conformity with UPOV.The OAU’s Model Law was formulated as a possible sui generis option for Africannations that are required to introduce PBR legislation under the TRIPS Agreement.The objective of the OAU Model Law is not only to ‘‘recognise and protect therights of breeders,’’ but also to ‘‘recognise, protect and support the inalienable rightsof local communities including farming communities over their biological resources,knowledge and technologies.’’ The basis of the law, which is to balance the rights ofcommunities and farmers with those of commercial plant breeders, was challengedby UPOV and World Intellectual Property Organisation (WIPO) officials. In 2001the OAU invited the WIPO and UPOV to a meeting to seek feedback on the ModelLaw. According to GRAIN (2001: 1), ‘‘[w]hat could have been a benign exchange ofviews yielded instead an undisguised attempt from the side of industrial interests tosubvert the whole OAU process.’’ Also, according to GRAIN, UPOV officialsrevised close to 30 Articles of the Model Law to ensure conformity with the UPOVsystem of PVP. In response to the OAU Model Law, WIPO and UPOV put pressureon the francophone African Intellectual Property Rights Organisation to strengthen

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the provisions of the Bangui Agreement for plant variety protection; 15 francophonecountries are signatories to the Bangui Agreement and this has created a rift betweenAfrican nations (GRAIN, 2002: 1). Singh (2002: 6) argues ‘‘the sui generis optionunder TRIPS is gradually being reduced to UPOV-type legislation mainly underpressure from the industrialised countries to harmonise the IP laws worldwide.’’

The Indian government’s announcement outraged many civil society organisa-tions and actors that have long been advocating for farmers’ rights in any sui generisframework. Gene Campaign, a research and advocacy institution focused on farmer,community and indigenous rights, tried several times to discuss the implications ofthe UPOV accession with government officials. All these efforts were in vain,however. The head of the Gene Campaign, Sahai (2003: 2-3), notes that in June 2002,Gene Campaign sought to file a Writ Petition in the form of Public InterestLitigation in the Delhi High Court. Gene Campaign argued that India’s decision tojoin UPOV was not only unconstitutional, but also illegal as it violated theprovisions of the PPVFRs Act. Six months later, the Indian government respondedto the Public Interest Litigation stating that the government had joined the UPOVConvention in order to facilitate investment in plant breeding; to promote therecognition of PBRs in member countries; to make it easier for Indian commercialbreeders to gain PBR protection in other countries; and to enable the government toestablish ‘‘effectiveness’’ of its sui generis law under TRIPS (Sahai, 2003: 3).

The government also stated that India would accede to UPOV 1978, and not tothe 1991 Convention which according to the government was far more damaging(Sahai, 2003: 3). According to Gene Campaign, the government’s response com-promises the rights of farmers. With regard to the government’s decision to join the1978 and not the 1991 Convention, Gene Campaign responded by asserting that:

whether it is the 1972, 1978 or 1991 version, the UPOV system grants only oneright: the right to the Plant Breeder. There are no other rights in UPOV, onlyexemptions, to this one Breeder’s Right. Exemptions under UPOV could begiven to farmers or researchers but these exemptions are not automatic, theyhave to be negotiated. They are provisional, conditional and constrai-ned . . . The distinct and extensive rights granted under the Indian [PPVFRsAct] will have to be done away with (Sahai, 2003: 1).

As stated earlier in this paper, the Indian government’s decision to accede to UPOV,despite enacting sui generis legislation, is both confusing and contradictory. This isespecially so, given that the government had previously stated that what constitutesan effective sui generis system under TRIPS would be determined nationally andwould not be dictated by the WTO (Adcock, 2002: 2). The PPVFRs Act to someextent balances the rights of plant breeders and farmers. However, the decision toaccede to UPOV has always been on the agenda, albeit on the back burner when theprovisions of the sui generis legislation were being hotly contested. It is quite possiblethat farmers’ rights enshrined in the PPVFRs Act will not be implemented becausethe Indian government’s decision to join UPOV will put pressure on the governmentto favour commercial breeders. The Indian government’s decision to join UPOV isespecially problematic because even if India did accede to the 1978 Convention, intime there would be pressure on the government to join the 1991 Convention.

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Clearly, the Indian government cannot maintain the PPVFRs Act in its current formand accede to UPOV at the same time since the provisions in the Act conflict withthe UPOV system. However, neither is the government in a position to rescind thefarmers’ rights provisions in the PPVFRs Act since this would be difficult politically.As Ranjan (2009) rightly argues, the only other way the Indian government couldstrengthen the rights of plant breeders is by enacting new legislation which wouldundermine the farmers’ rights provisions in the PPVFRs Act. This is exactly what theIndian government attempted to do in 2004 by introducing a very conservative SeedBill which severely undermines the farmers’ rights provisions of the sui generislegislation. Perhaps a revised Seed Act would assist the government in accedingto UPOV?

The 2004 Seed Bill: A Further Attempt to Derail Farmers’ Rights Provisions

In December 2004 a National Seed Bill was introduced in India’s parliament toreplace the 1966 Seed Act (Government of India, 2004). The main purpose of the Billis to regulate the production of seed, the quality of seed for sale and the import andexport of seed. According to the Press Information Bureau of the Government ofIndia (2005), the proposed Seed legislation will ensure that seed policy is inconformity with India’s WTO commitments. However, as noted by Gopakumar andSaxena (2005: 1), no WTO Agreement requires the Indian government to change itsseed policy. In reality, it seems as if the proposed legislation was drafted to allay thefears of the seed industry, which is opposed to the strong farmers’ rights provisionsin India’s PVP legislation.

The provisions of the Seed Bill are in direct conflict with the more progressivePPVFRs Act. The bill requires mandatory registration of all plant varieties and seedin India, while the PPVFRs Act does not. According to Section 12.1 of the bill ‘‘aregister of all kinds and varieties of seed to be called the National Register of Seedsshall be kept by the Registration Sub-Committee wherein all specifications, as maybe prescribed, shall be maintained.’’ Furthermore according to Section 13.1 of thebill ‘‘no seed of any kind or variety shall, for the purpose of sowing or planting byany person, be sold unless such seed is registered . . . by the Registration Sub-Committee in such manner as may be prescribed.’’ Farmers will not be allowed tosell their seeds if they do not meet the criteria of registration, which includes aminimum period of germination, physical purity and genetic purity. Cullet (2005: 5)argues that there is no rationale for extending the registration obligations toindividual farmers bartering or selling seeds to each other. According to Sahai (2006:1) ‘‘seeing the [Seed] Bill, one gets a sense that the seed industry, which has nothidden its great unhappiness over the distinctly pro-farmer provisions of the[PPVFRs] Act, has now succeeded in reclaiming ground by getting the PPVFReffectively scuppered.’’

While the PPVFRs Act contains a full disclosure of origin obligation and theprinciple of prior informed consent, the Seed Bill does not cover these obligations.According to Sahai (2006: 3), this will ‘‘facilitate unrestricted commercialisation ofvarieties in the public domain, including farmer’s varieties by private parties.’’Furthermore, unlike the PPVFR Act, the Seed Bill does not cover any benefitsharing for farmers or communities. The bill is also silent on the issue of

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compensation to farmers in the case of seed failure. Sharma (2005: 2) asks whatprotection, if at all, would farmers in India have, if they bought ‘‘legally-registered’’seed that failed? Their only recourse to justice would lie in the provisions of theConsumer Protection Act. However, the Indian seed industry is lobbying for seeds tobe removed from the Act altogether.

Policy Options under TRIPS to Protect Farmers’ Rights

Narrow the Scope of PBR Protection

The Indian government has the option of narrowing the scope of protection ofplant varieties by stipulating that only new varieties and farmers’ varieties can beprotected under the Act. The PPVFRs Act should not allow for the protection ofextant varieties. This will ensure that all varieties already in the public domaincannot be monopolised. Also they can be freely used by farmers across thecountry, whether they are branded or not. Similarly, EDVs should not be eligiblefor protection under the Act. The protection of EDVs gives breeders ‘‘patent-like’’ rights and leads to further concentration in the seed and plant varietiesmarket.

Tighten the Conditions of Protection

Plant breeders’ rights allow commercial breeders to protect plant varieties with verysimilar characteristics and therefore do not necessarily encourage innovation andgenuine improvements in plant variety traits (Commission on IPRs, 2002: 61). Thecriteria for PBRs do not include the requirement of an inventive step. The TRIPSAgreement leaves it open to WTO members to set the conditions of protection forplant varieties, as long as such conditions are effective. Under the Indian Act, theconditions of protection can be tightened in several ways. Firstly, the Act needs tostipulate that plant varieties have to be novel in order to be eligible for protection.The definition of ‘‘novelty’’ has to exclude the protection of any discoveries.Secondly, the conditions of protection under the Act should include the criteria ofnon-obviousness or an inventive step in order to encourage innovation in new plantvarieties, especially high-yielding plant varieties which are, for example, pest anddrought resistant.

Opt Out of UPOV

Since the Indian government has already enacted the sui generis legislation, it isunder no legal obligation under TRIPS to be a party to UPOV. The UPOVConvention does not recognise the rights of farmers, the principle of prior informedconsent or benefit sharing. The provisions in the Indian Act which cover these rightsand principles are, therefore, not UPOV compliant. In order to preserve and upholdthe farmers’ and community rights provisions of the PPVFRs Act, the Indiangovernment should withdraw its decision to join UPOV. This is important because ifthe Indian government joins UPOV, in time it may be required to accede to the 1991Convention.

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Ensure Seed Bill Provisions are not in Conflict with PPVFRs Act

The 2004 Seed Bill as it stands is in conflict with the PPVFRs legislation. Severalchanges need to be made to the Seed Bill to ensure that it does not undermine theprovisions of the PPVFRs Act. Firstly, the registration of all plant varieties and seedin India should not be made mandatory. Farmers should be allowed to sell their seedif they do not meet the criteria of registration, which includes a minimum period ofgermination, physical purity and genetic purity (Cullet, 2005: 5). Secondly, the SeedBill, like the PPVFRs Act, should contain provisions for full disclosure of originobligation and the principle of prior informed consent. Thirdly, similar to thePPVFRs Act, the Seed Bill should contain provisions for benefit sharing for farmersand communities. The bill should also have clear provisions which protect farmers inthe case of seed failure.

Conclusion

This paper has argued that the Indian government’s response to the TRIPSAgreement in terms of extending private property rights to seed and plant varietieswill compromise the status of small farmers. The PPVFRs Act makes it explicit thatthe plant variety protection will stimulate research and development in the publicsector as well as the private sector. This is a remarkable shift from the previousgovernment policy of strongly supporting public research for public welfare to apolicy where the government wants to use the PVP system to support its ownresearch activities. New plant varieties, and varieties already in the public domain,will become more expensive. The Act will also further entrench some of the negativegreen revolution trends across India. While the sui generis legislation passed in theIndian parliament in 2001 upholds the rights of farmers, it ropes farmers into aformal system of plant variety protection that goes against their practice ofinnovating communally. It remains to be seen if farmers reap any benefits under thenational gene fund as well as the other farmers’ rights provisions in the Act. The2004 Seed Bill and the decision of the government to accede to the UPOVConvention, however, undermine the rights of farmers enshrined in the PPVFRsAct. It is argued that the government can take some policy steps to ensure thatfarmers’ rights are protected.

Notes

1 The 1978 amendments were primarily to facilitate the accession of the USA and, therefore, offered a

much wider scope of protection for plant varieties.2 Dutfield (2002: 189) observes that removing the bar on double protection was primarily to ensure that

the USA remained UPOV compliant since plant varieties in the USA are protected both by utility

patents and by PBRs. According to Helfer (2002), several developed countries, including the USA,

Japan, Australia, New Zealand, Sweden and the UK, have used the 1991 UPOV provision to allow

plant breeders to obtain patent protection for new plant varieties.3 Section 15.3(b) of the Indian Act states that a variety is distinct, ‘‘if it is clearly distinguishable by at

least one essential characteristic from any other variety whose existence is a matter of common

knowledge in any country at the time of filing of the application.’’ Section 15.3(c) states that a variety is

‘‘uniform, if subject to the variation that may be expected from the particular features of its

propagation it is sufficiently uniform in its essential characteristics.’’ In terms of stability, the Act

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(Section 15.2d) states that a variety is ‘‘stable if its essential characteristics remain unchanged after

repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.’’4 Also, in terms of the origin of the variety, the Act requires that every application except a farmer’s

variety, has to

contain a complete passport data of the parental lines from which the variety has been derived

along with the geographical location in India from where the genetic material has been taken

and all such information relating to the contribution, if any, of any farmer, village community,

institution or organization in breeding, evolving or developing the variety.

5 See Chapter 6 of the PPVFRs Act for more details on farmers’ rights. Also note that Chapter 7 of the

Act covers the compulsory licensing (CL) provision. According to Section 47.1 of the Act, three years

after a variety is officially registered, any person can apply for a compulsory licence through the

PPVFRs Authority ‘‘alleging that the reasonable requirements of the public for seed or other

propagating material 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.’’ Public interest in the Act is

protected under Section 29.1 which stipulates ‘‘no registration of a variety shall be made under this Act

in cases where prevention of commercial exploitation of such variety is necessary to protect public

order or public morality or human, animal and plant life and health or to avoid serious prejudice to

the environment.’’ This provision is stronger than the ‘‘public interest’’ provision in the UPOV

Convention.

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