TITLE: Seeds of Discontent? - and - Who is Protected? PUBLICATION: Down To Earth, Vol 10, No 8, p. 6 and pp. 48-51 DATE: 15 September 2001 SOURCE: Centre for Science and Environment, New Delhi URL: http://www.oneworld.org/cse/html/dte/dte.htm NOTE: Last month, India's lower house of parliament, the Lok Sabha, approved the "Protection of Plant Varieties and Farmers' Rights Bill of 1999". The bill still has to go through the upper house before it becomes law. CSE's Down to Earth magazine pulled together different viewpoints on the passage of this bill from various actors in the national debate. Down To Earth, Vol 10, No 8, September 15, 2001 Centre for Science and Environment, New Delhi SEEDS OF DISCONTENT? India's first legislation aimed at protecting farmers' rights raises many apprehensions The much-awaited Protection of Plant Varieties and Farmers' Rights Bill 1999 was recently passed by the Lok Sabha. The bill, which is the first attempt to protect the rights of farmers, has been termed as 'far from perfect' by experts, who have questioned its viability. The bill is awaiting Rajya Sabha's clearance. It is a result of the government's commitment to the Trade Related Intellectual Property Rights (TRIPs) agreement, signed under the World Trade Organisation (WTO) regime. As per the provisions of the TRIPS agreement, the signatories are allowed to protect their seed varieties by either taking out patents on them, creating a sui generis system (a unique set of laws) or through a combination of both. The bill recognises the farmers as breeders, cultivators and conservers of the seeds in their possession. It provides them the right to register a variety that they have evolved over a period of time. The bill also gives the farmers the legal sanction to sell their seeds, which was not in place before. But a farmer shall not be entitled to such rights in cases where the sale is for the purpose of reproduction under a commercial marketing system. Moreover, farmers can get their evolved varieties registered only if they are able to 'conform to the criteria of novelty, distinctiveness, uniformity and stability.' As per the bill, farmers can sell only those patented seeds that are not branded under their name. A lawsuit can be filed against any farmer who is found guilty of selling patented seeds or acquiring a 'brand name' similar to the company's patent name. Farmers could be prosecuted in these cases, unless they prove that these were 'acts of innocence'. The bill also grants scientific researchers the right to conduct experiments with a branded variety in order to create new ones. One of the main provisions of the bill is the establishment of a National Gene Fund, which would facilitate 'benefit sharing' between the farmers and anybody interested in their knowledge. The bill also calls for setting up of the Protection of Plant Varieties and Farmers' Rights Authority. Special mention has been made in the bill about essentially derived varieties (EDV) of seeds. The bill categorises EDV seeds as "derived from the initial variety but clearly distinguishable from it". Permission for using EDV would be granted by the authority. Suman Sahai of Gene Campaign, a Delhi-based non-governmental organisation (NG0), says the bill is a positive step. "The bill would help in giving recognition to those farmers who have preserved traditional knowledge," said M S Swaminathan, chairperson of the Chennai-based M S Swaminathan Research Foundation. S K Sinha, senior scientist at the New Delhi-based Indian Agricultural Research Institute, agrees with him. He says, "The bill would help farmers who have developed a unique tradition of selecting seeds over hundreds of years." However, other experts opine that the bill leaves much to be desired. They allege that it replicates a legislation of the Union for the Protection of New Varieties of Plants (UPOV), whose members consist of industrialised nations. "UPOV is a charter for multinational companies and it is anti-farmer," says Rajeev Dhawan, director of the Public Interest Legal Support and Research Centre, a Delhi-based NGO. "It is unfortunate that the government did not prepare itself well for the WTO regime," rues Sinha. "Though said to be a farmers' rights bill, its procedures are cumbersome," alleges Ashish Kothari, founder member of Kalpavriksh, a Pune-based NGO. But despite these views and the bill being along the lines of UPOV, most experts say that it is a good beginning for recognising the rights of the farmers. It should be effectively implemented for its worthiness to be judged in the future. ----- Sowing a doubtful future ----- WORTHY GRAINS FROM THE BILL: * Gives farmers a legal sanction to sell the varieties they have evolved over the years * Farmers are also recognised as breeders * Researchers have the right to conduct experiments using patented varieties * The registration of varieties with genes that involve the destructive terminator technology is prohibited * Any government or non-government organisation can file a claim on a variety evolved by the local communities THE CHAFF OF MISGIVINGS: * Doubts persist whether farmers' will be able to trade in seeds or not * No mention about the mechanisms for assessing environmental impact of the protected varieties * A bureaucratic authority to monitor the implementation of the bill * Lengthy, expensive and stringent process for farmers to register their varieties * Facilitates filing of lawsuits against farmers * Permission granted to essentially derived varieties could allow the entry of GM crops through the back door WHO IS PROTECTED? The Lok Sabha passed Protection of Plant Varieties and Farmers? Rights Bill with complete amendments on August 29, 2001, twenty months after it was first moved in the Parliament. But experts are doubtful about the rights and protection that the bill seeks to provide the Indian farmers. - A WELCOME STEP - by M S Swaminathan I am happy that at last the Lok Sabha has passed the Protection of Plant Varieties and Farmers? Rights Bill. This is a major step in incorporating the ethics and equity provisions of the convention on biological diversity in a sui generis system of varietal protection. If implemented in an effective, transparent and speedy manner, the provisions of the bill will improve crops through breeding as well as revitalise the conservation traditions of tribal and rural communities. In 1983 the Food and Agricultural Organisation council established a commission on plant genetic resources (PGR) and developed an international undertaking on it. Later, the commission developed the concept of farmers? rights in order to recognise and reward farmers for their contribution in conservation, selection and improvement of crop genetic resources. In fact, much of the rich diversity occurring within a crop species is the result of community conservation. In 1994, M S Swaminathan Research Foundation (MSSRF) developed a draft plant variety protection act, giving concurrent recognition to the rights of farmers and breeders. Their rights should be mutually reinforcing and not antagonistic in the struggle for sustainable food security. The bill approved by the Lok Sabha retains this important feature. Farmers? rights fall into three major categories -- farmers as breeders, farmers as conservators and farmers as cultivators. A majority of farmers fall under the category of cultivators. Their major right under the bill is to save, use, re-sow, exchange or share or sell their farm produce, including seeds. However, farmers cannot sell branded seed as variety protected under the bill. Farmers, who develop new strains through selection and breeding, have the same rights as any professional breeder. They can seek protection under the bill, provided their strains satisfy conditions like novelty, distinctness, uniformity, and stability. Farmer-conservators are mostly tribal and rural women and men. They conserve as well as select strains for local adaptation. In the Chennai draft, I had proposed ?community gene fund? for rewarding the in situ on-farm conservation traditions of local communities. The purpose was to give explicit recognition and reward to community conservation. Unless these community efforts receive both social prestige and economic reward, such conservation measures will become ?dying wisdom?. The bill has included ?National Gene Fund? instead of ?Community Gene Fund?. The purposes for which the fund will be used are also rather wide. Since the size of the fund is not likely to be large, its use will be mainly confined to recognising and rewarding farmer conservators. The provisions relating to breeders? rights are, by and large, similar to that recognised by Union for the Protection of New Varieties of Crops (UPOV). It will be interesting to watch the reaction of UPOV to the Indian Act, since this is for the first time anywhere in the world, the rights of farmers and breeders are given concurrent recognition. UPOV should not have any objection, since the responsibility for recognising farmers? right has been left to national governments in the revised international undertaking on genetic resources, now being negotiated in the FAO. Soon the bill will become law. So we should begin establishing resource centres for farmers? rights, like the one MSSRF established in 1995. Such resource centres should help the communities to get recognition and reward from the National Gene Fund. Since the conservation and improvement of agrobiodiversity is often the result of community, and not individual efforts, methods of compensating communities from the National Gene Fund will have to be developed in consultation with them. It should also be ensured that this bill and the Biodiversity Bill, which is currently under the consideration of Parliament, are implemented in a coordinated manner, so that we not only conserve our bio-resources but also use them effectively to strengthen our food, health and livelihood security systems. - QUESTION OF FOOD SECURITY - by Ashish Kothari The Protection of Plant Varieties and Farmers? Rights Bill was introduced in Parliament, with the argument that it would help to enhance India?s food security. Intellectual property rights would supposedly provide incentives for rapid breeding of new crop varieties. But, does the bill actually meet the requirements of farmers in India? Will it actually enhance food security? India today has surplus grain stocks, yet several millions go to bed hungry. Food security is not just a measure of total available food in the country. But the access that poor people have to this (including buying power), their security of tenure over land and water resources, their access to other natural resources, and immediate access to seed and livestock diversity. Can the bill help in meeting even some of these requirements? It seems not for various reasons: Farmers are the major producers of seeds in India. Yet, the bill is in favour of formal sector breeders, and not of the marginal farmer community. In theory, farmers can get IPRs for their varieties, but how many farmers can actually generate the resources to pass the requirement of uniformity, distinctiveness, and stability? In any case, farmers? varieties are often much more variable than those generated in the lab, and may not pass the tests. Benefit sharing is highly convoluted in the bill. Farmers will have to claim benefits from breeders who use their genetic material, rather than the breeder having to automatically share such benefits. How many farmers would even know what varieties are being registered, and have the passport data with them, to make such claims? And even if they do, they have to go through a tortuous process. Benefit-sharing is likely to remain a mirage under this bill in all but the most exceptional case. There is no benefit-sharing envisaged when farmers? *knowledge* is used. Indeed, there is nothing in the bill to protect such knowledge, except when a farmer registers a particular variety. There is no obligation on the part of breeders, to take prior consent of farmers whose genetic material or knowledge they may be using for commercialising their varieties. There is also no compulsory benefit-sharing requirement between breeders and such farmers. Both these omissions are a violation of India?s commitment under Article 8j and 10c of the Convention on Biological Diversity. There is no provision for registration of all existing farmers? varieties in India, without individual claims from farmers. What farmers will claim may be registered, and all other such ?extant? varieties could then be claimed as the property of the Government of India. This seems highly unfair. Breeders can even claim IPRs on varieties that are ?essentially derived? from farmers? varieties, Without having to seek permission from the farmers or having to compulsorily share the benefits. There is absolutely no requirement to conduct environmental impact assessment (EIA) of the varieties that are being considered for IPRs, despite the past history of new lab-generated varieties having caused large-scale displacement of traditional agro-biodiversity. So while there is a provision for the authority to reject IPR claims on varieties that could harm ?public interest?, how can this be established without mandatory EIA provisions? India could have actually gone in for a truly independent legislation. One that actually promotes comprehensive farmers? rights, including full protection of their knowledge and agro-diversity and sensitive to the ethical issues involved in commercialising life forms. The law should encourage public and private sector crop breeding within an overall framework of social justice and ecological sustainability. NGOs had argued for an ?effective sui generis? system within the WTO/TRIPS framework. Instead, we have succumbed to the pressures of industrial countries and the corporate sector, which will increasingly push India towards the more privatised, monopolistic model represented by Union for Protection of New Varieties of Plants (UPOV). Already corporations, mostly foreign, are lining up applications for patents and plant IPRs, and once the PPVFR Bill comes in, the floodgates will have been opened. We can build in whatever safeguards we want at this stage, but once on the path of plant IPRs, we are inevitably headed towards a trap for small farmers and local communities, and the undermining of independent food security for the country. - PROMISING, BUT NOT PERFECT - by Suman Sahai If the Rajya Sabha clears Plant Variety Protection and Farmers Rights Bill passed by the Lok Sabha, India will have put in place a sui generis legislation granting breeders? rights over new crop varieties. This will be the first time such rights are introduced. Gene Campaign has been in the forefront of the struggle to get strong farmers? rights in our sui generis legislation. Our position from the start has been that if we alter the status quo and grant plant breeders rights, our legislation will have to grant strong farmers rights at the same time. Gene Campaign has over the years been demanding farmers? rights that would allow the farming community to retain the same control over see production and use what they have always had. This has most importantly meant for the farmer to have the right to sell the seed of any variety that he grows, even if there were to be a breeders right on it. In addition, our demands included formal recognition of farmer varieties, payment for the use of farmer varieties in breeding work, preceded by informed consent and adequate compensation if poor quality spurious seeds led to crop failure. The current bill accommodates most of these demands. As it now stands, according to the draft act the farmer can ?save, use, sow, exchange, share or sell his farm produce, including seeds.? This is on the condition that the farmer shall not be entitled to sell branded seeds of a variety protected under this Act. The branded seed means any seed put in a package or any other container and labelled in a manner indicating that such seed is of a variety protected under this Act. This allows the farmer to sell seeds in a way he has always done, with the restriction that it cannot be branded with the breeder?s registered name. In this way, both farmers? and breeders? rights are protected. Giving strength to farmers * The role of rural communities in the breeding of new plant varieties are acknowledged. * Royalties for use of farmer varieties by breeders will be levied and be payable into a National Gene Fund for benefit sharing. * The farmer is protected from prosecution against innocent infringement of rights specified in the Act. ? Farmers can examine documents and can have copies of rules and decisions made by the various authorities free of fees. * Farmers are protected against the supply of spurious or bad quality seed. Weakness Despite strong farmers? rights, the bill is far from perfect. It should be strengthened. The protection against bad seed, for example, is weakly framed, leaving too much to the discretion of the Authority. A separate track for the clearance of essentially derived varieties (EDV), which will often be genetically modified, raises questions. Why should this be if there is no intention of pushing through varieties, which may be the subject of opposition? The Plant Variety Authority is a monstrous bureaucratic pyramid packed with ex officio babus, who, experience shows, bring little knowledge and even less interest. The text of the bill needs a language overhaul. The language is sometimes so ambiguous that it could even lead to legal disputes. Nevertheless, the bill is by and large positive. Its strengths are the farmers? rights, balanced and just breeders rights and an attempt to safeguard public interest. - LICENSE TO ROB - by Rajeev Dhawan India has never served the interest of her farmers. Neither in the Uruguay Round of the GAIT negotiations nor its aftermath. And now the Plant Varieties and Farmers? Rights Bill that the Lok Sabha passed on the pretext of protection will take over and destroy the world of Indian farmers. It arms the seed companies with civil and criminal powers to harass the farmer. The bill and its contents are fundamentally misconceived and provide excessive protection for multinational and corporate seed companies at the expense of farmers. By passing it the Lok Sabha has clearly jumped the gun. No bill was necessary at this point of time. India should have waited until the post Seattle review, which is taking place now, is completed. The objects and reasons of the bill are wrongly stated and even the requirements under TRIPS are wrongly interpreted. It is clear from the bill that its object is to protect the seed breeder and deprive the farmer of his rights. The role of the farmer is only recognised as a benefit sharer for the contribution he makes to the generation of the new variety seed. It is like stealing traditional rights and giving an illusory compensation in return. Article 27 of the TRIPS states that member countries should have a patent or formulate a sui generis system. But what we have done is to evolve a so-called sui-generis system, which puts traditional agriculture and the Indian farmer in a worse position. This is an open invitation to theft where you tell the thief to rob your house and ask him for a small share of the booty. The farmers, in fact, are the bill?s primary and targeted victims. Instead of providing protection to farmers, it creates a paradise for multinational breeders. Hitherto, India has protected agriculture from any kind of patenting. Another question is that of food security and public interest. The bill does not ensure the provisions of seeds to farmers in public interest at competitive rates during the condition of scarcity caused by natural calamities. Further, the nature of penalties and offences are so drastic under the bill that the farmers will have no option but to surrender to the multinationals. Criminal penalties include possible imprisonment of three years and possible fines running up to Rs 10 lakh [US$22,000]. The potential consequences are horrendous. A multinational can use civil remedies to injunct the farmer?s activity, including sowing. No bill should permit injunctive relief against farmers where damages are an adequate remedy. Criminal penalties will only arm multinationals to seek to imprison our farmers at will. This injunctory relief is an open invitation to famine and enforcement through coercion which brings back the worst memories of colonisation, but this time not by a foreign government but by a foreign seed company. The only ?effective sui generis protection? that the seed companies are entitled to is a trademark right for seeds that they have genuinely innovated and manufactured. And there should be no criminal liability attached to the violation of the rights of the breeder. Further, the entire concept of benefit sharing and the national gene fund will ultimately lead to a situation where traditional varieties and local practices get bulldozed by a system of monoculture which will threaten the food security of the country. The so-called setting up of a Gene Fund is really an eyewash as there is no recognition of the existence of a pool of knowledge in terms of practices, crop patterns and land use which the farmers have acquired over several generations. The Plant Varieties Bill is a humiliating symbol of continuing capitulation. The government, while claiming that it is fighting the patent of basmati and neem, has taken a step to help the ?thieves of the knowledge of the farmers? whom we claim to be fighting against. The bill also does not correlate the rights protected therein and the need to protect biodiversity and the need to protect and prevent kidnapping of genetic resources. _ GOING FURTHER (compiled by GRAIN) M S Swaminathan Research Foundation http://www.mssrf.org/ Kalpavriksh http://www.kalpavriksh.org/ Gene Campaign http://www.genecampaign.org/ Public Interest Legal Support and Research Centre http://www.indev.nic.in/pilsarc/ Copies of the bill itself will be available for download from GRAIN's website in a few days, when we launch the "Biodiversity-Related Laws" online database. An announcement will be posted on BIO-IPR.