New varieties, old foundations: Small farmers in IPR regime

By Shalini Bhutani

The Indian Council of Agricultural Research (ICAR), which was founded
after Independence in 1947, was preceded by the Imperial Council of
Agricultural Research set up in 1929.

Ironically ICAR celebrated its 83rd foundation day last weekend on July
16, rather than its 64th! The European legacy continues. Our country may
have got independence, but our agriculture and our farmers are still
struggling for that.

Another foundation of a European idea was literally laid this month. On
July 8 the foundation stone of the new office buildings of India’s
Protection of Plant Varieties and Farmers’ Rights Authority (PPV&FRA)
was laid in the Pusa Campus of ICAR. More than the buildings, it is
intellectual property rights (IPR) that have been institutionalised in
agriculture in the country. This in itself manifests the big change in
the national agricultural research landscape since the ICAR was first
set up.

The history of agriculture in India is believed to go back to 9,000 BC.
In fact this is also the history of free exchange of crop varieties
amongst farmers. This made possible the many crop innovations on the
field. Sharing not only gave free access to diverse planting materials
but also allowed for the exchange of know-how, giving the farmers enough
to select from for the production of plants with desirable traits.

Such informal breeding of new crop varieties is the foundation on which
formal research has been built. And in fact national and global gene
banks would not have been filled with traditional varieties for free, if
farmers had refused to share the crops they have developed.

Yet small farmers have never asked for IPR for their innovation. But
formal breeders in developed countries did! In Europe, in the ’60s they
asked for IPR in the form of plant breeder rights. This was to be an
exclusive right to sell and produce the new plant variety. The
foundation for limiting free sharing was cemented then.

The first laws on plant variety protection (PVP) were passed in European
countries—The Netherlands, Germany, etc. in the early ’60s. The PVP laws
granted breeders control over the planting material. It also gave them
the right to make money from the use of ‘their’ variety for a certain
number of years. The first legal instrument for international
recognition of ‘rights’ of breeders was also a Europe-led UPOV – The
International Union for the Protection of New Varieties of Plants dated
1961. Its 1991 version as it stands today allows breeders to even claim
royalties for the produce harvested from PVP-‘protected’ varieties,
while restricting farmers’ rights and researcher access.

Transplanted concept
This European concept was transplanted into India after the World Trade
Organisation (WTO). The Indian law—Protection of Plant Varieties and
Farmers Rights Act was issued in 2001 and the Authority set up in 2005.
While the officialdom takes pains to explain that the Indian version is
a unique variety of PVP law in itself. Yet the fact of the matter is, it
plants IPR on crops nonetheless. Today professional plant breeders be it
in the government research institutions or in private seed corporations
are the ones going after PVP-type IPR ‘protection.’

The name of the law misleads the lay person and unsuspecting farmers
into believing that this law is both about conservation, farmer welfare
and benefit sharing. On the occasion of the foundation day of ICAR, the
first of the Plant Genome Saviour Awards (2009-2010) were given out to
two local communities. One from Odisha for conserving rice and the other
from Karnataka for medicinal plants.

The awards have been instituted by the PPVFRA. While, it is the first
official attempt to acknowledge the outstanding contribution of
individual farmers and farming communities in conserving
agro-biodiversity, it does so in an IPR frame. The law says to these
seed keepers: you save and give us, but we ‘develop’ and sell ‘new’
varieties (back to you).

For the farmers’ rights provision in the same law comes with a proviso.
It allows them to sell only to the extent that their seed is not branded
seed of a variety which has the PVP certificate under the law. The
message to farmers is clear, keep out of the formal research and seed
markets. And it’s important to recall that when the Government of India
through its ministry of agriculture first mooted this Act in the 90s, it
did not have any chapter or provisions on Farmers Rights.

That the law allows for ‘farmers varieties’ to be registered is a step
to woo them into the IPR system. No amount of award money from the
National Gene Fund or citations and shawls will make good for the loss
of farmer freedoms when they have to buy PVP-protected seeds to continue
to be…farmers.

Awardee communities such as these are the only islands of hope and
diversity in a sea of disasters. But the wave of IPR could break into
the very foundations of their small farm agriculture.

(The writer works on issues of trade, agriculture and biological diversity)


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