by Shalini Bhutani | December 07, 2011
Plant variety protection (“PVP”) is a type of intellectual property. PVP laws grant economic rights known as plant breeder rights (“PBR”) to breeders vis-a-vis the new, distinct, uniform, and stable varieties of crops that they develop. This intellectual property right is of European origin. In the 1950s, countries in Europe started designing laws for protecting to protect the interests of their plant breeders. This was extended throughout Europe through the Union for the Protection of New Varieties of Plants (“the UPOV”), which was established in 1961 by the UPOV Convention.
It is critical to understand the relationship between the implementation of PVP laws and the World Trade Organisation Organization (“the WTO”) and its intellectual property rights (IPR) agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”). Even though the text of the TRIPS Agreement does not mention the UPOV, the latter has been pushed by the developed world as the “effective sui generis system” by which to implement the TRIPS Agreement. Developing country governments that were reluctant to make laws allowing patents on plants were shown the UPOV as the way out for complianceto comply with the TRIPS Agreement. This was convenient for developing countries in several ways. Their administrators could avoid the hard work of designing something from scratch for the specific needs of their own country. They agreed to use the ready-made solution offered by the UPOV model; other governments were forced to do so. This also meant that there would be no risk of not gaining acceptability from other WTO member countries. Further, for governments that had also faced public opposition to patents on life forms, lawmakers could simply point to the characteristics of PVP, which make it look relatively less restricting. For instance, in a PVP law, unlike in a patent law, the “research exemption” can allow others to use the breeder’s protected material for research purposes. More importantly, the PVP law can (optionally) provide for a “farmer’s privilege”, which would permit farmers and small growers to save and re-use seeds from the PVP-protected variety. The term of protection under PVP law (fifteen years) is also shorter than that for patents (twenty years).
Does the PVP law protect the rights of the farmers of Odisha adequately?
Image above and on article thumbnail from rajkumar1220’s photostream on Flickr.
Image (but not the rest of the work) published under :
The fundamental problem remains – that agreeing to pass a PVP law means that a country is no longer against the grant of intellectual property rights on planting material. The supreme irony is that countries legislating for the first time on farmers’ rights have landed up situating them within a commercial law. This is how the South has lost the battle against the privatisation of life forms. In effect, it means that the so-called exception to patents that developing countries and less-developed countries legitimately had in the TRIPS Agreement has been reduced to naught. With PVP laws, patent-like protection is being given. This also forecloses possibilities of a discussion on interpreting ‘sui generis’ to mean methods outside of intellectual property rights to ‘protect’ plant breeders’ varieties.
Fifty years after UPOV and over fifteen years after the TRIPS Agreement, the global seed industry (including theInternational Seed Federation and the Asia and Pacific Seeds Association) is looking for tighter intellectual property protection for its seed products. Yet some European plant breeder associations want a breeder’s exemption even to patents, so that they have more material under patent protection available for breeding. Meanwhile, Tthe ‘maximalist’ agenda for intellectual property includes demands for the removal of the two exceptions from breeders’ rights that PVP laws currently permit. While this will reduce the distance between a PVP and a patent, there are also lobbying efforts underway for an extension of patentthe PVP terms to twenty-five years.
Since the economic ‘reforms’, the political economy has also undergone drastic changes. Liberalisation of agriculture has meant that more private players are encouraged in the seed sector. Large corporations now have a much larger role in seed production and agricultural research and development. Informal breeding by farmers is being systematically sidelined. Both, the public sector and private corporations, are in the race for PVP certificates, for existing as well as for new varieties.
India passed its PVP law – the Protection of Plant Varieties and Farmers’ Rights Act (“the PPVFR Act”) in 2001. In 2003, the Protection of Plant Varieties and Farmers’ Rights Rules (“the PPVFR Rules”) were issued. In 2005, the PPVFR Authority (“the Authority”) was set up in Delhi. In 2009, the first PVP certificates were granted in India. Rice was amongst the first crops that the Central Government notified as eligible for the registration of varieties. In the Indian PVP law however, the fact that the definition of ‘breeder’ includes farmers, does not take away from the fact that the ‘protection’ offered by the law to even farmer-bred varieties is an intellectual property right. This is in complete contrast to the seed cultures that small farmers in India and elsewhere live by. The law and its ongoing implementation processes offer many sops to farmers to lure them into the PVP system. These include the waiver of fees and “genome saviour” awards such as the one awarded to the Panchbati Gramya Unyan Samiti of Koraput, Odisha. The law also promises a share of ‘benefits’ (read money) if and when the farmers’ material is used in the development of a new plant variety. For formal plant breeders, the varieties from the informal sector are important raw material from which to develop ‘new’ marketable products. Hence the drive to encourage farmers to register their varieties and have a sample of the same deposit samples of their varietiesed with the Plant Authority. It is however, pertinent to note that the Authority puts a time limit on the registration of farmer varieties (“FVs”).
Odisha’s former Minister of Agriculture, Dr. Damodar Rout, had recently announced that hundreds of traditional paddy varieties of the state would be registered under the PPVFR Act. As a consultant to the process, a significant role is envisaged for the Swaminathan Research Foundation in the collection of sample seeds of traditional varieties and their subsequent registration. Reportedly, the farmers who provide up to five kilograms of samples of their varieties and the basic information along with it will be recognised as facilitators. Ironically, the Minister’s announcement says that the ownership of these traditional rice varieties “shall be vested in the Government of Orissa, on behalf of the people…” Why should this be so, when the law expressly provides for a specific category – that of FVs? Meanwhile, the Orissa University of Agriculture and Technology (“the OUAT”) has already registered eight of its own varieties so far as extant varieties, including “‘Pratikhsya” ’ (ORS 201-5) (IET-15191) and “‘Jogesh” ’ (OR 1519-2) (IET-15169) for the seeds of which the Vice-Chancellor has the exclusive right to produce, sell, market, distribute, import, or export of the seeds of these two varieties for a initial term of six years commencing July 20, 2009. The DuPont-owned Pioneer Overseas Corporation has also sought PVP for hybrid rice varieties.
The members of the Rice Varieties Registration Committee in Odisha will be:
1. Director, Directorate of Agriculture and Food Production;
2. Dr. S.R. Dhua, Central Rice Research Institute, Cuttack;
3. Dean, Research, OUAT;
4. J.D.A. (Special Programme and Crops), Directorate of Agriculture;
5. Dr. Baburam Singh, OUAT;
6. J.D.A. (Farms and Seeds), Directorate of Agriculture;
7. Dr. Ravi Kumar Pattnaik, Associate Dean, College of Agriculture, Bhawanipatna;,
8. Director, Orissa State Seed and Organic Products Certification Agency;
9. Dean, Extension, OUAT; and
10. Dr. Satya Ranjan Dash, Professor, Plant Breeding, OUAT.
The rice knowledge of farmers has to be protected from IPR and not by an IP system like PVP, which was designed to eventually put restrictions on farmer seed-saving. Those pushing for PVP certificates not only in Odisha but across India have to fully understand the long term implications of such variety registration. If the government authorities are genuinely interested to save the people’s know-how on rice, then they should not be encouraging the many potentially destructive development activities in the State of Odisha. That will be real plant PROTECTION of rice varieties.
Shalini Bhutani is a Delhi-based lawyer working independently on issues of trade, agriculture, and biodiversity.