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TITLE: Protection of Plant Varieties and Farmers' Rights Act, 2001 - Just leave the seed alone AUTHOR: Shalini Bhutani and Kanchi Kohli PUBLICATION: Hindu Business Line (Chennai) DATE: 12 March 2004 URL:
http://www.thehindubusinessline.com/2004/03/12/stories/2004 031200100900.htm

Hindu Business Line | 12 March 2004

PROTECTION OF PLANT VARIETIES AND FARMERS' RIGHTS ACT, 2001 JUST LEAVE THE SEED ALONE

Shalini Bhutani Kanchi Kohli

The year 2001 and India gets a plant varieties protection legislation (The Protection of Plant Varieties and Farmers' Rights Act, 2001; Act 53 of 2001) heralding agriculture of the 21st century: A 'brand' new age, where 'new' plant varieties can be labelled and sold; the 'creator' breeding seeds for commercial purposes is granted protection by law through Plant Breeder Rights (PBR). Such ensuing rights give exclusive commercial control to the breeder over the propagating material of the 'protected' variety. Agriculture, reincarnating as agribusiness in today's global trade system, dares to commodify all plants, seeds, and knowledge related to any of these.

Where does the farmer fit in, in all this?

While the Preamble of the Act expressly states the need to recognise and protect the rights of farmers in respect of their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties, the real emphasis is on protection to the plant breeder; a protection that will facilitate the growth of the (private) seed industry in the country which will ensure the availability of high quality seeds and plant material to the farmers. Thus, in these 'new' times, the very source -- the farmer -- ironically becomes the consumer and that too at a price he cannot command or control. Thus far, farmers were free to use any and all planting materials. Under the new law and system, a farmer would have to tender the price of use of 'protected' varieties of crops. He is also prohibited by the law from selling branded seed of a protected variety. This, when all 'new' varieties are bred from existing ones and, in any case, can be traced back to farmers' varieties.

Therefore, further discussion on the grant of a PBR must address the fundamental question as to what is actually the basis of a 'new' variety. The law grants protection (as per criteria of the International Union for the Protection of New Varieties of Plants) for new varieties that are 'distinct', 'uniform' and 'stable'. Fundamentally, can any variety be new? Are not all varieties bred from what exists in nature? Are not all commercially-viable crops traceable to the traditional varieties farmers have been conserving and developing for generations? So, would that not make the very basis of granting such a PBR to a transnational corporate plant enterprise, flawed?

In India, knowledge on the conservation and use of plant genetic resources has traditionally been community knowledge, without it being accrued to a particular entity. For instance, farmers have been growing basmati rice for centuries. There might be certain varieties attributed to certain farming communities, but there was never a question of exclusive ownership of basmati varieties.

The need for a PBR as a form of intellectual ownership as a right upon varieties creation is not borne out of a demand by the farmer. Indeed, for centuries, farmers have innovated without any supposed incentive in the form of their IPR protection. The need has been artificially created by the system that believes in private or monopolised control over plants and/or life forms. And when operationalised, it would mean nothing less than a disruption of the traditional farming cultures which have been the essence of agriculture in a country such as India.

The Act has its definitions of farmer, farmers' variety, and a chapter on Farmers' Rights retrofitted in the original Bill. This, many argue was a mere placebo to farmers' groups and non-governmental organisations, of the Act being more favourable to corporate plant breeders. The criticism now is that the concept of Farmers' Rights herein merely as privileges vis-à-vis a market economy do not blend, in with the interpretation of rights as farmers and farmer organisations themselves see them. The law provides for the grant of IPR to farmers on the registration of farmers' varieties or by their inclusion in the definition of `breeder' if they chose to register a variety as one.

The issue here is that of the acceptability of the entire concept of IPRs in agriculture and the need to establish PBR of the nature which the Act allows for. Traditional farming practices in India and the related knowledge has not been the private property of anyone. So, for the Dalit women farmers of Andhra Pradesh who have shown exemplary efforts in reviving and retaining the agricultural diversity on their fields, this would not be a priority. It would essentially be richer farmers or those with commercial gains or private companies with the agenda to control food production who would attempt to directly or indirectly stake claims on what is otherwise collective knowledge.

Therefore, by attempting to equate farmers' rights with making farmers eligible under law to be treated as plant breeders will not be able to resolve these fundamental issues. In fact, it would create a new problem of farmers staking ownership over the traditionally-shared varieties and, thereby creating a situation whereby a farmer in Chhattisgarh would be competing with his counterpart in Andhra Pradesh. The Act does not offer solution towards conflicting claims by farmers from different parts of the country.

However, despite this, if one is to visualise the scenario if and when a small or subsistence farmer decides to register a variety, the realities of limited means to submit applications, tedious and intimidating bureaucratic procedures will all come into play. These in themselves are daunting.

In the light of these issues, it is important to understand the very genesis of the Act, and the connected pressure from outside to legislate so. As the Preamble of the Act itself states, this law has been enacted to give effect to Article 27.3(b) of the Trade Related Intellectual Property Rights (TRIPs) Agreement relating to protection of plant varieties. The Article requires a developing country to provide for either a patent or sui generis (unique) protection for the ownership of plant varieties. One the one hand, there is a long standing demand from activists, farmers groups and others all over the world that there be a review of the entire TRIPS Agreement. On the other hand, there is direct and indirect pressure on the developing and least developed countries (LDCs) to establish UPOV-like plant variety protection regimes that are designed to protect the interest of corporate plant breeders, and not farmers. Since farmers traditionally re-use the seed from their harvests, they are considered direct competitors of breeders who develop plant varieties for commercial interests and then seek legal protection for the exclusive market exploitation of their varieties. Such a regime takes away the traditional and community-centred control over seed conservation and use, which has been the regular practice of farming communities all over the country.

As things stand today, the Union Ministry of Agriculture has notified the Rules under the Act for its implementation. The Protection of Plant Varieties and Farmers' Rights Authority is in the process of being set up in the said Ministry. The ramifications of the law on local farming communities and their relationship with plant genetic resources are yet to be fully fathomed. The relevant questions to be asked today are whether the law gives impetus to farmer-led research; supports the small-scale seed industry; mandates prior informed consent of farmers' resources and knowledge; facilitates traditional farming practices and guarantees agro biodiversity. If we believe in agriculture that is farmer-friendly, and that the people of the country need to retain their food and farming practices, then something as basic as a seed must remain free from corporate control and private monopoly.

(Shalini Bhutani is Regional Programme Officer, Asia, GRAIN, and Kanchi Kohli is a member of Kalpavriksh Environmental Action Group, New Delhi.)