Abstract
The Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV&FR Act) is a legislation which aims to balance between the interests of plant breeders as well as traditional farmers. In this regard, it grants intellectual property rights to plant breeders for new plant varieties along with protecting the rights of farmers in relation to traditional crops and varieties. For understanding the need and scope of this Act better, we must analyse how this Act balances the rights of breeders and farmers, keeping both, an agricultural and a property rights viewpoint; and considers the challenges and implications of the implementation of the Act in India, along with studying a relevant landmark judgement.
Introduction
The Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV&FR Act) was enacted by India to provide a comprehensive and functional legal regime that benefits both breeders and farmers. The Act promotes India’s compliance with its obligations under the TRIPS Agreement by granting intellectual property rights to breeders for new varieties of plants; simultaneously, it recognizes and protects the important role of farmers in preserving, enhancing, and making available plant genetic resources. The sui generis system established through the PPV&FR Act is designed to promote innovation, benefit agricultural development, and secure farmers’ rights alongside breeders’ rights.
Balancing Breeders’ and Farmers’ Rights
- Breeders’ Rights
The PPV&FR Act, 2001 gives strong intellectual property rights for plant breeders. These rights encourage new plant varieties to be developed. Section 28 provides that if a breeder registers a new variety, he will have exclusive rights to propagate, produce, sell, market, distribute, import and export that new variety for a specific period of time. These periods are given as – 15 years for annual crops, and 18 years for trees and vines. These rights can be inherited and transferred under Section 41, which provides commercial value for breeders.
Nonetheless, the exclusive breeders’ rights are limited. Section 47, provides for compulsory licensing of registered varieties when the registered variety is not made available to the public at a fair price, and/or in reasonable quantities, thus ensuring that exclusive rights do not deny farmers access to seeds. Additionally, the Act has provided for wide-range exemptions for farmers to use registered varieties further demonstrating that the Act is aimed at balancing incentives for innovation with public access to critical agricultural resources.
- Farmers’ Right
An important aspect of India’s PPV&FR Act is its outstanding and clear guarantee of farmers’ rights, which makes it distinctive globally. Section 39 protects farmers’ rights to save, use, sow, resow, exchange, share, and sell the produce (seed) of the crop of a protected variety, so long as it is not as branded or sealed seed. This saves the traditional practice of seed sharing, which is key to ensuring agro-biodiversity and rural livelihoods.
Farmers may also register their own varieties under Section 15, which gives them legal status and some prospect of gaining income from it. Farmers also have the explicit right, under Section 41, to compensation if a registered variety fails to produce as claimed; and are specifically protected from punitive damages for accidental infringement by the provisions of Section 42. Together, they affirm what are known as farmers’ rights and in doing so recognize farmers’ role both as conservers of crop seeds and as breeders, while also recognising that existing commercial seed monopolies have negative consequences.
- Benefit Sharing
Sections 26 and 41 of the PPV&FR Act provide for a benefit-sharing mechanism to compensate communities and individuals on whose genetic resources or traditional knowledge the registered variety has been developed. When a breeder registers a variety, the authority can invite claims for contributions. If the contributor can provide evidence of their contribution, the breeder must share a portion of the benefits, in money or in-kind benefits, with the contributor. The goal is to ensure that custodians of traditional knowledge are not cut out of the wealth generated by plant breeding.
In practical terms, benefit sharing has proven to be quite difficult. Most farmers do not have the knowledge or means to access their benefits, and problems such as disputes and delays still arise. Nevertheless, the provisions still matter, as they provide an opportunity to recognize traditional knowledge, as well as an incentive to preserve it. With more than half of plant variety registrations in India now being farmers’ varieties, this benefit-sharing framework could help to make agricultural development more equitable and sustainable in the long run.
Case Law
A landmark judgement here is Monsanto Technology LLC v. Nuziveedu Seeds Ltd. & Ors., (2019) 3 SCC 381. In this case, Monsanto signed a sub-licensing agreement with Nuziveedu Seeds in 2004 to use its Bt Cotton technology that gives resistance from pests. Nuziveedu was to make royalty payments. However, the government capped royalty fees to make seeds more affordable, and thus, Nuziveedu paid only that amount. Post this, Monsanto ended the agreement in 2015 and sued for patent infringement and breach of contract. Nuziveedu argued that Monsanto had no patent claim under Section 3(j), since it excludes plants, seeds, and biological processes. These are governed under the PPV&FR Act and not the Patents Act.
The Delhi High Court agreed with Nuziveedu, ruling that the PPV&FR Act represents special legislation exclusively for the issues of plant varieties, and to hold that patents could issue for seeds would deny the farmer-centric protections engendered under that legislation.
On appeal, the Supreme Court did not resolve the question of patentability. However, it did state that such complex issues need a proper trial along with expert evidence. It set aside the High Court’s order and restored the suit for trial, while leaving the question open-ended. The case reflects a struggle between the Patents Act and the PPV&FR Act.
Implementation Challenges
- Awareness and Accessibility: While the Act contains forward-looking provisions, many farmers are not even informed of their rights under the Act, and the process of registration is complex and may be burdensome for smallholders.
- Documentation and Evidence: To register a farmers’ variety, it is essential that proof of the variety’s uniqueness and history is provided, which can be difficult for traditional varieties.
- Benefit Sharing and Community Participation: A challenge to ensuring that benefit sharing occurs with the actual contributors, usually rural or tribal community members, is the risk of encumbering benefit sharing with bureaucratic process and an absence of legal avenues to obtain legal recognition under the Act.
- Enforcement and Dispute Resolution: Despite the Act being clear, challenges remain in exercising dispute resolution because of lack of awareness among farmers and delays in registration.
Suggestions for Improvement
- Conduct awareness campaigns in vernacular or via community networks to educate farmers on their rights and the registration process under the PPV&FR Act.
- Simplify registration process for farmers, including digital collection and processing by Local Service Centres, and give them better access to it.
- Provide training and technical support that will help uneducated or aged farmers document their local varieties correctly.
- Develop a quick dispute resolution system at the district level and provide free legal support to farmers, so they can address their grievances.
Comparative Perspective: India and International Norms
The PPV&FR Act attempts to balance the rights of breeders and farmers, unlike the International Union for the Protection of New Varieties of Plants (UPOV), which mainly focuses on breeder rights. Under UPOV, breeders have been given patent-like rights that last up to a span of 20-25 years, and it also lacks in recognizing farmers as breeders.
Unlike this, the PPV&FR Act allows Indian farmers to save, reuse, exchange, and profit from farm-saved seed. The Act also recognizes farmers as breeders and gives them a right to register varieties. The Act also provides for benefit sharing, compensation, and rewards for conserving genetic resources – all features absent in UPOV. India further has options for shorter protection (15 years in most crops, 18 in the case of trees and vines), and harmful species to health or environment are not protected.
India has been a party to the UPOV Convention since 2002, but it includes and gives recognition to farmers’ rights on a domestic level which is not present in the UPOV. This approach shows India’s commitment to biodiversity and smallholder farmers.
Conclusion
The PPV&FR Act, 2001 signifies a significant advancement towards equality in the interests of plant breeders and traditional farmers in India. Through recognizing the abilities of farmers and providing them benefits, this Act is a step towards promoting innovation while acknowledging the inherent value of farming communities. A good service would mean more knowledge and easy access, as well as solid support for farmers and their communities. As India progresses in modernizing its agricultural sector, the PPV&FR Act is an important feature to ensure that modernization does not come at the expense of equity or traditional cultures.
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WRITTEN BY Stuti Vineet
