This article has been written by Ms. Samriddhi Vishen, a 2nd year LL.B. student of Shri Jai Narain Misra PG College (KKC), Lucknow.
The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act was approved by the Indian government in 2001 and given a sui generis framework. There are 97 clauses and 11 Chapters in this Act. Under Section 15 of the act, a variety must meet the requirements of novelty, distinctiveness, uniformity, and stability (NDUS) in order to be eligible for registration.
According to the 1978 International Union for the Protection of New Varieties of Plants (UPOV), it is compliant. The legislation acknowledges the roles played by farmers and commercial plant breeders in plant breeding activities, takes into account their respective contributions, and also provides for the implementation of TRIPs, which support the specific financial interests of numerous partners, including private, open, and review organizations and farmers required to acquire property. Thus, the Indian PPV&FR Act appears to be an effective sui generis system because it strikes a balance between the rights of plant breeders, farmers, and researchers. This article makes an effort to critically analyze the provisions of this legislation in order to ensure their successful implementation.
Historical Background
The Protection of Plant Varieties and Farmers’ Rights Act was passed in 2001 after India joined the World Trade Organization in 1995 and agreed to implement the Agreement on Trade-Related Aspects of Intellectual Property Rights. Discussions then took place in the nation regarding how licenced innovation rights should be portrayed in Indian horticulture (TRIPS).
India had the choice to either pass the legislation or accept the rights granted to plant breeders by the International Union for the Protection of New Plant Varieties (UPOV Convention) after joining the WTO in 1995. The UPOV option was previously rejected because it forbade farmers from reusing farm-saved seeds and from sharing those with their neighbours. Nevertheless, in 2002 formally acceded to the UPOV treaty. The final alternative was rejected mainly because farmers were unable to reuse any saved seeds and exchange them with their neighbours under the current UPOV adaptation, which was adopted in 1991.
Accordingly, India included a section on farmers’ rights in The Protection of Plant Varieties and Farmers’ Rights Act, where farmers are recognised as plant breeders and can register their assortments; farmers concerned with the preservation of hereditary resources of landraces and wilder relatives of monetary plants and their development through choice and safekeeping are perceived and compensated; and assuring farmers’ traditional activities of sparing seeds from one gather for giving it to their neighbours or utilizing it for their next reap are recognised and compensated.
Objectives of the Protection of Plant Varieties and Farmers’ Rights Act
The act’s objective is to establish a strong framework for the protection of plant varieties, of farmers’ and plant breeders’ rights, and to encourage the development of new plant varieties. To recognise and protect farmers’ rights in light of their commitments made when keeping track of, enhancing, and making available plant genetic resources for the advancement of new plant assortments. It is to hasten rural development across the country, protect the rights of plant breeders, and encourage investment in innovative work both in the public and commercial part for improving new plant varieties. The act is also to promote the growth of the country’s seed business, which will ensure that farmers have access to high-quality seeds and planting supplies.
Implementation of the Act
The Protection of Plant Varieties and Farmers’ Rights Authority, 2001, was established by the Department of Agriculture, Cooperation and Farmers Welfare, Ministry of Agriculture, and Farmers Welfare to carry out the provisions of the Act. The authority’s main executive is the chairperson. According to the Government of India (GOI), the authority consists of 15 people, including the chairperson. Eight of them serve as ex-officio representatives to various departments and ministries; three come from SAUs and state governments, and the central government designates one representative for each of the associations for farmers, ancestors, the seed business, and women involved in horticultural activities. The authority’s ex-officio member secretary is the Registrar General.
Rights under the Act
- Breeders’ rights- The breeder, his successor, his agent, or licensee will have the sole right to produce, sell, market, distribute, import, or export the variety upon receipt of the certificate of registration [Section 28 (1)].
- Farmers’ rights – The farmers’ rights outlines their privilege and their right to defend varieties that they have created or preserved [Chapter VI]. Farmers are permitted to store, use, resow, exchange, share, and sell farm products of protected varieties, with the exception of sales made according to commercial marketing arrangements for branded seeds [Section 39 (1), (i)–(iv)].
- Researchers’ right – Access to protected varieties for bona fide research purposes has been provided to researchers [Section 30].
- Communities rights – In accordance with their established rights, communities are compensated in quantums to be decided by the PPVFR Authority for their contribution to the evolution of new varieties [Section 41 (1)].
Case Laws
- The Supreme Court ruled in Emergent Genetics India (P) Ltd. v. Shailendra Shivam[vii] that farmers in India have been producing their own seeds locally for centuries and that a considerable portion of the population relies on agriculture for survival and a means of subsistence. About 75% of these seeds are produced by farmers and peasants. These farmers have certain protections under the PPVFRA, including the ability to use, save, use, exchange, share, sell, sow, or resow farm products, including seeds protected by the Act. Breeders are required to inform farmers when they sell any registered material. This is done so the farmer can forecast performance and make a compensation claim if they fail to provide the same. Hence, the act does offer a decent regulatory framework for subjects the Seed Act does not cover. By prohibiting the patenting of seeds, which would have resulted in huge corporations assuming control and profiting from the royalties, it also preserves the integrity of agriculture.
- Pioneer Overseas Corporation v. Chairperson- In this case, the request for a special test was reinstated in the registrar’s file. Based on the findings of the DUS test, the Court initially decided that both varieties’ traits met the requirements for the test and that they were almost identical to one another when compared inter se. According to the aforementioned, the Registrar’s orders that Kaveri cannot apply for registration and that the special test as requested by Pioneer be restored to the Registrar’s file were set aside by the ACC. As a result, the parties were left to cover their own expenses.
- Sungro Seeds Ltd. v. Union of India- In this case, the issue of whether a plant variety’s seed should be regarded as novel if a hybrid seed is produced from it was raised. It was held that the hybrid’s parental lines cannot be considered novel if they fall into the category of an existing variety that is well-known.
Conclusion
A successful sui generis arrangement that balances the interests of plant breeders, ranchers, and experts is the Protection of Plant Varieties and Farmers’ Rights Act. For their work and practices in India and the bulk of the countries of Asia-Creative Pacific, small, modest ranchers must trade the obtained materials with others. The Indian government has provided evidence in their National Intellectual Property Rights Policy for the number of filings by the Authority requesting assistance from various partners for expansive admissions of new, surviving, and determined plant assortments. This is despite the fact that some claim the Act discourages research and innovation by allowing farmers to use patented varieties and making private companies reluctant to bring modern technology.
References
https://www.fao.org/faolex/results/details/en/c/LEX-FAOC028128/
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3720685
https://en.m.wikipedia.org/wiki/Protection_of_Plant_Varieties_and_Farmers%27_Rights_Act
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