Subject: Who Does the Plant Varieties Bill Benefit?

Ashish Kothari
Kalpavriksh - Environmental Action Group 

Introduction: What Should the Plant Varieties Bill Achieve? 

On December 14, 1999, the Government of India introduced into Parliament
the Protection of Plant Varieties and Farmers' Rights Bill, 1999. Soon
after, it was decided to have this Bill (PPV Bill, for short), examined by
a Joint Committee of Members of Parliament. This Committee, chaired by
Sahib Singh Verma, is currently seeking public inputs to the Bill, and is
expected to finish its task by late February. 

The urgent question before the Committee should be: does the PPV Bill meet
the objectives that the Government claims it will, viz., improve India's
food security by providing incentives for better and stepped up breeding of
new crop varieties? Or does it actually lead the country away from such
security? 

This question cannot be answered without recourse to a more fundamental
question: what constitutes a nation's food security? By now, it is clear
that a simple aggregate figure of foodgrains output is not an adequate
measure of food security. We need to know if this food is reaching where it
should (especially to the poor), and if the costs incurred in producing
this food are ecologically and financially sustainable within India's
resources. The current models of agricultural development appear not to
meet either of these indicators, even if they are resulting in higher
aggregate foodgrains output. A third or more of the country's population
still does not have enough quality food, or simply enough food, to eat. And
increasingly, it is apparent that the enormous economic subsidies involved
in fertilisers and other inputs, the country-wide degradation of soils and
poisoning of water, the contamination of the food itself by chemical
residues, the debilitating dependence of farmers on centralised
bureaucracies and markets, and the reduction in diversity of seeds,
livestock, and farm practices, are leading us more and more into a dead-end
alley. 

National food security can only be achieved if these issues are addressed.
It would of course be unfair to expect any law to do this by itself, and I
do not intend to take on the PPV Bill on all these counts. However, what is
absolutely clear is that any legislation purporting to ensure "food
security" by providing incentives for greater crop production, must be
assessed in terms of not only whether it will indeed lead to greater
production, but also what kind of crops, on whose lands, and to whose
benefit? The production of new varieties, by the corporate sector, does not
necessarily benefit farmers, especially when it ties them up to increasing
dependence on markets and bureaucracies. Privatised intellectual property
rights (IPRs), such as patents and plant breeders' rights, would only
increase this trend, apart from raising ethical issues of IPRs on life
forms. And past experience suggests that varieties developed in the formal
sector often actually displace valuable crop diversity on farmers' fields.
All this leads, in the long run, to greater instability, depedence, and
unsustainability in farmers' lives…and hence in the national agricultual
sector as a whole. 

The litmus test then is: does the PPV Bill enable farmers to stand on their
own feet (is it truly a "Farmers' Rights" Bill as it claims?), and the
indigenous seed breeding and production sector to blossom in the service of
the farmer and the nation's consumers? Will it actually lead us to greater
food security? 

Unfortunately, despite a number of progressive clauses in the Bill, the
answer is a clear NO. The PPV Bill emerges as a legislation that will end
up benefiting the large seed corporations, some very large farmers, and
corporate farming agencies. In so doing, it will be playing into the hands
of those in the international arena who pushed agreements such as WTO (and
in particular, the Trade Related Intellectual Property Rights (TRIPs)
regime). It will do little to facilitate genuine food security in terms of
feeding the poor and ensuring sustainable agricultural production through
protecting the rights of small farmers and the small-scale seed sector.
This is a pity, because India could well exploit loopholes in TRIPs, and
the solid mandate given to it by the international Convention on Biological
Diversity, to push forward a boldly different plant varieties protection
legislation.  It can still do so, if the Joint Parliamentary Committee is
appraised of these issues and willing to take cognizance of them. 

Elements of the PPV Bill

Largely modeled on the 1978 version of the International Convention for the
Protection of New Plant Varieties (UPOV), an agreement signed mostly by the
industrial nations of the world, the PPV contains the following major
provisions: 

1. Registration of new varieties of plants, by their breeders, provided
they fulfil the criteria of novelty, distinctiveness, uniformity, and
stability; 
2. Protection for registered varieties for periods ranging from 15 to 18
years (depending on the kind of plant variety); this protection would
include the exclusive right to produce, sell, market, distributed, import,
or export the variety or its propagating material, and to license other
persons to do the same; 
3. Deposition of sample seeds or propagating material by the applicant,
with the government; 
4. Exclusion of plant varieties from being registered if such exclusion is
necessary for public purposes, or if the commercial utilisation of such
varieties could threaten human, animal, or plant life or the environment in
general; such exclusion could extend to entire genera/species; 
5. Rights of researchers to use the registered variety for experimentation; 
6. Rights of farmers to save, use, exchange, share, or sell the produce of,
any registered variety (except selling for the purpose of reproduction
under commercial marketing arrangements); 
7. Revocation of protection if it is found that the breeder supplied
incorrect or inadequate information at the time of application, or did not
provide the necessary seeds or propagating material, or if the registration
was found not to be in public interest; 
8. Compulsory licensing in cases where the breeder is not making the seed
publicly available in reasonable price or quantity or regularity; 
9. Benefit-sharing arrangements with those including farmers', claiming to
have contributed genetic material to the registered variety; 
10. Rights of communities and persons to claim significant contribution to
a registered variety, and to receive compensation if such a claim is
upheld; 
11. A National Gene Fund built up with royalty fees from plant variety
right holders, national and international contributions, etc., meant to be
used for benefit-sharing and compensation to farming communities, and for
conservation and sustainable use of genetic resources. 

Under the PPV Bill, a Plant Varieties and Farmers' Rights Protection
Authority will be established. This will be chaired by a person of eminence
in agriculture, and consist of various government officials from relevant
ministries and agencies. Committees of experts can be appointed by this
Authority. The PPV Bill also sets up a Plant Varieties Registry, with a
Registrar General and other Registrars to process applications. The
Registry will maintain a National Register of Plant Varieties, which are
given protection under the PPV Bill. 

Violations will invite penalties ranging from 3 months to 2 years
imprisonment, and Rs. 50,000 to Rs. 10 lakhs fine. 

Does the PPV Bill Protect Farmers or Breeders? 

Though its name explicitly gives it a claim to protect farmers' rights, the
PPV Bill is in actuality much more weighed in favour of the formal sector
plant breeder. Even in the latter category, I will argue below that the
Bill will work to the advantage of the private corporate sector more than
public sector breeders. 

The PPV Bill is meant primarily to provide incentives to the seed breeding
sector, in particular financial incentives. This, it is hoped, will lead to
continued and increased investment into plant breeding, and to innovations
in this field. Indirectly, the agricultural establishment hopes, this will
benefit farmers, as they will get access to 'improved' varieties. 

The Background Note circulated to the Joint Committee members with the PPV
Bill, itself starts off on a dubious note. It recognises that the public
sector breeding programmes are not meeting the increasing needs of India's
farmers, and hence the growing importance of private (read: corporate)
sector breeding. Unfortunately, this entirely leaves out the critical
importance of a third sector…farmers themselves! Considering that for
thousands of years, our farmers have selected, bred, and used hundreds of
thousands of varieties of several hundred crop species, it is amazing that
the government does not even think it fit to mention them as possible
breeders. This continues the bias, built into agricultural planning for
decades, against the 'informal' sector, and perpetuates the image of
farmers as simply supplying the 'raw material' that the formal sector
breeders use to develop new varieties. 

This bias permeates the PPV Bill, though there are some well-meaning
attempts at reducing it. Consider the following: 

1. Does the PPV Authority include farmer representatives?: The Authority
set up by the PPV Bill has no farmers' representative on it, not even NGO
representatives; it is made up entirely of government officials…with the
possible exception of the Chairperson (Section 3); 
2. Can farmers' varieties get protection?: In theory (and according to the
Background Note given to the Joint Committee, though not explicitly
mentioned in the Bill), farmers are included in the category of 'breeders',
and can apply for protection to varieties that they would have developed.
However, given the stringent requirements for obtaining protection under
the PPV Bill (the Novelty, Distinctiveness, Uniformity, and Stability
criteria, Section 14), requirements that are expensive to fulfill and
technologically easier to achieve in the laboratory or highly controlled
conditions that formal sector breeders have access to, it is unlikely that
farmers' varieties will be able to receive protection. This could only
happen if the state were to assist in carrying out the tests to prove these
characteristics, on behalf of farmers…rather unlikely in the current
situation! Even the provision to register "extant" varieties, i.e. those
which are already in existence or in public knowledge, would not help, as
these too have to fulfill the criteria of Distinctiveness, Uniformity, and
Stability. In any case, given the nature of our society, no more than a
handful of farmers are likely to be able to approach the PPV Authority
without the active aid of NGOs or sensitive government officials, and there
is nothing in the Bill that mandates the government to reach out to them.
Finally, the Bill only talks of "persons" as being applicants for
protection, and it is not clear whether communities as a whole fit this
description. 
3. Has farmer permission been taken?: India is now legally obliged, under
the Convention on Biological Diversity (CBD), to ensure that local
community consent is sought, and equitable benefit-sharing arrangements are
made with it, before wider use is made of its knowledge and practices. Yet
in the application requirements for those wanting plant variety protection
in the PPV Bill (Sections 17/18), there is no mention of the applicant
having to show whether his/her variety is based on farmers' knowledge, or
whether permission has been taken from the farmer/community for the use of
such knowledge or their varieties, and finally whether an appropriate
benefit-sharing arrangement has been worked out with such farmer/
community. This is a violation of India's commitments under the CBD. 
Even in the matter of approving a particular name ("denomination") for a
variety (Section 16), the Authority does not have the mandate to reject a
breeder's name even if it is already in use by a farming community, though
this could conceivably be developed as a specific regulation under Section
16(2,3). There is no penalty associated with 'stealing' such a name
(Sections 61-64). 
Section 48 of the PPV Bill enables communities to make claims if they
believe they have contributed to the development of a variety for which
protection has been given. But the onus to prove this is on these
communities. How many farmers will even get to know about what has been
protected, whether their varieties or knowledge has been used or not, etc?
The PPV Bill does make it mandatory for applications to be advertised
(Section 17), but again, will such advertisements even reach the concerned
rural populations? The only consolation is that this right to make claims
on behalf of aggrieved farmers has also been given to NGOs or others, which
could in theory help in greater outreach. 
Even if some farmers or others acting on their behalf do manage to make
such a claim, and the claim is upheld, their only consolation will be some
compensation that they might get, at the discretion of the Authority
(Section 48(3)). This too, indirectly, as the compensation amount will
first be deposited into the Gene Fund, and there is no provision to ensure
that it thereafter comes to the claimant! But worse, there is no clause to
revoke the protection if it is found that the applicant has unfairly
appropriated farmer/community resources or knowledge…indeed such a
provision cannot be made since, as stated above, the PPV Bill has no
provisions for prior consent of farmers. 
4. Is the provision on farmers' rights adequate?: The PPV Bill's single
paragraph on farmers' rights (Section 31) pertains to the ability to save,
use, exchange, share and sell protected varieties. While this is in itself
commendable (given especially the increasing international trend to exclude
even such basic rights), it falls far short of the much fuller definition
of farmers' rights that has been proposed by communities and NGOs across
the world. This larger definition includes the right to protect community
or individual farmer varieties and knowledge from being used without
consent and benefit-sharing arrangements, as also to have guaranteed access
to the biological, cultural, and economic resources that allow farmers to
innovate and sustainably use crops. 
5. Is the benefit-sharing provision adequate?: To its credit, the
Government has introduced a provision (Section 26) for benefit-sharing
arrangements with farmers/communities in case claims are made for this with
regard to a registered variety. However, once again, the onus is on the
claimant to prove a contribution, and the Authority is under no obligation
to make its own enquiries about whether what contributions may have gone
into a registered variety. Moreover, claims can only be made for
contributions of genetic material, and not for knowledge…a rather strange
oversight considering that information and knowledge of local communities
is such a common ingredient in breeders' work. Nor is there any requirement
for this benefit-sharing arrangement to be "equitable", however that is
defined, though the Statement of Objects and Reasons attached with the PPV
Bill states that this will be the case. Finally, the benefit-sharing
amount, once determined, will be deposited into the Gene Fund, rather than
given directly to the claimant, the reasoning behind which is unclear. 
6. Will the national registration process cover farmers' varieties?: The
PPV Bill's registration process, unfortunately, is open only to varieties
that get protection under the Act. Farmers will not be able to register
their varieties in it. NGOs have for many years been demanding some such
registration process, so that there is proof of 'prior existence' of a
variety and its related knowledge, making it easier to contest biopiracy.
The PPV Bill makes only one possible provision for this: one of the duties
it gives to the PPV Authority is to take measures for "compulsory
cataloguing facilities for all varieties of plants, seeds, and germplasm".
In theory, this could be used to register farmers' varieties, but the Bill
does not provide any legal protection to such a catalogue against piracy
and misuse. 

The above elements make it clear that, despite undoubtedly progressive
elements such as community rights to claim compensation, benefit-sharing
arrangements, compulsory licensing under certain conditions, and farmers'
rights to continue using protected varieties, the PPV Bill is not really a
"farmers' rights protection" bill. 

Does the PPV Bill Protect the Small Seed Sector? 

Even within the formal seed sector, the PPV Bill is likely to benefit large
private corporate houses more than the public sector or the small-scale
seed industry. Public sector seed breeding has been the backbone of
official agricultural programmes. Though these programmes have suffered
from the bias against the farmer being at the centre of research and
development, pointed out above, they have at least been motivated by public
needs, including those of marginal farming areas. Secondly, reaching seeds
to farmers has been done mainly by small-scale seed industries. The PPV
Bill not only acknowledges a move away from this, but in fact encourages
it. The Background Note with the Bill states that the public research
system will have to be made more "self-sustainable" due to "decreasing
levels of government support" (itself an outcome of so-called structural
adjustment programmes with IMF, World Bank and other agencies requiring a
cut in government expenditure, never mind its social consequences). Doing
this through intellectual property rights is a sure-fire way of increasing
the role of the private sector, both in itself and in funding research
within public institutions such as our agricultural universities. Partly
due to the PPV Bill, and partly due to other trends, we will see more and
more corporate interests showing up in our seed breeding programme. A
serious question that we must ask is: will this really benefit our farming
populations, especially those in so-called 'marginal' areas where profit
margins for private companies may be extremely low if not negative? And if
the small-scale seed sector has to pay increasing amounts of royalties to
the big breeders, will they be able to cope with the competition from big
seed industries, including the multinationals that are coming into India? 

Perhaps one of the major thrusts behind the PPV Bill is stated in its
Statement of Objects and Reasons: "in the absence of plant breeders'
rights, foreign companies would be hesitant to organise buy-back production
of seeds in India for export to their countries for fear of unauthorised
use of their genetic material." Two other stated reasons along with this
one --- "better and mission-oriented research for development of varieties
that are fully suited to a given agro-climatic region", and protection of
Indian breeders' varieties while giving them access to foreign germplasm
--- hardly cut ice. As argued above, many agro-climatic regions are hardly
likely to be served by a system increasingly tending towards privatised,
market-oriented R&D. As for protecting Indian varieties, what I am going to
suggest below as a truly sui generis system may have a better chance of
achieving this without the pitfalls of a breeder-oriented IPR system. 

Will the PPV Bill Protect the Environment and Biodiversity? 

Progressive clauses in the PPV Bill give to the government the right to
refuse or revoke registration of a variety that may in some way be contrary
to "public interest", or whose commercial exploitation may be harmful to
human/animal/plant health and the environment. These provisions stem
directly from similar clauses in TRIPs. However, will these really be
effective? 

In extreme cases, they may be. For instance, the PPV Bill prohibits
registration of varieties which uses genes involving the terminator
technology (which renders a crop sterile after the first generation), an
undoubtedly laudable provision. However, there are many other ways in which
registered varieties, in particular those produced through the new
biotechnologies of genetic manipulation, may be harmful. Unfortunately, the
PPV Bill has no provision to ensure that a thorough Environmental Impact
Assessment (EIA) is done of the variety proposed for registration. Perhaps
an existing notification regarding the use of Genetically Modified
Organisms will help in this, but this does not cover the problem of new
varieties displacing existing crop diversity and narrowing the genetic
base. Without and EIA requirement, how will the Authority know whether the
variety's commercial exploitation could lead to such harm? 

In a way, all seeds on which IPRs are obtained should be suspect. For
obtaining protection under the PPV Bill will be an expensive proposition,
and the holders will surely want to push their registered varieties into as
large a farming population as possible. What is happening already with the
Green Revolution thrust --- the pushing out of a large diversity of
indigenous crop varieties that farmers had been growing and their
replacement by a handful of formal sector generated varieties --- will only
increase with the introduction of plant breeders' rights. In this sense,
the government's following argument (made in the Background Note) is rather
suspect: that the PPV Bill will lead to "varieties from different
geographical areas and growing in different timeframes will be brought on a
common platform for breeding purposes…(and) result in new genetic
combinations…The fear of narrowing the genetic base can be allayed by in
situ preservation of plant varieties" It is precisely such in situ (on
farmers' fields) preservation and use of plant varieties that will suffer
with the introduction of privatised IPRs. 


Why UPOV? 

The PPV Bill is explicitly modeled after the UPOV regime of plant breeders'
rights. This itself reveals its bias, for UPOV was and remains explicitly
oriented towards protecting formal sector plant breeders, not farmers.
While the 1978 version of this agreement provides limited exemption to
farmers and researchers, the 1991 amended version has narrowed this down,
allowing countries to remove such exemptions if they so want. A number of
countries have already done eliminated farmers' rights or are in the
process of doing so. 

The PPV Bill has explicit provisions to guard against such a move, such as
farmers' rights, compulsory licensing, and so on. The government has
clearly stated, in the Background Note, that what is an "effective" system
of plant variety protection (as required by TRIPs) should be determined
nationally, not in international forums. If such provisions are retained,
the danger of farmers' rights getting further compromised are remote. But
the fear remains: once on this path of privatised IPRs, what is to stop
future governments from further giving in to international demands and the
pressure of the big seed industry, and applying the 1991 model of UPOV? 

It is, therefore, objectionable that India should have gone into a UPOV
kind of legislation in the first place. There was no need for this, even
under the TRIPs clauses. TRIPs clearly allows each country to have its own
sui generis system of the plant variety protection; India could well have
gone into a radical alternative system that protected the rights of its
farmers, and preserved our tradition of not accepting privatised IPRs on
life forms and related knowledge. Such a system is sketched out below…it
may even be possible to evolve this through appropriate modifications in
the PPV Bill. 

An Alternative Sui Generis System 

Any system of plant variety protection that aims to achieve food security
and enhancement of the genetic base, and other laudable objectives claimed
for the PPV Bill, should start with explicit provisions aimed at farmers
and farming communities. Formal sector breeder rights should only come as a
corollary to this, and should not be oriented towards monopolistic,
privatised IPRs. At the very least, such a legislation would have the
following provisions: 

1. Legal recognition to the plant varieties, practices, and related
knowledge evolved and being grown/conserved by farmers and farming
communities across India; 
2. Protection to these varieties, practices and knowledge, to prevent them
from being taken away and utilised without the prior informed consent of
their holders; 
3. A local, state-level, and national registration system for such
varieties, practices, and knowledge, to ensure protection from piracy; 
4. Representation of farmer communities on planning and implementation
bodies relating to plant varieties and agriculture; 
5. Appropriate and equitable benefit-sharing arrangements with farmers and
communities whose varieties, practices and/or knowledge is used for wider
commercial or scientific purposes (such benefit-sharing need not be only
financial, it could also include technology transfers, social recognition,
etc.); 
6. Incentives to formal sector breeders to develop varieties that are of
use to farming communities, and protection to these varieties without
giving monopolistic control over them. These incentives should encourage
participatory breeding with farmers, and  give a special focus to so-called
'marginal' areas; 
7. A system of environmental impact assessment for all new varieties being
introduced from laboratory or controlled conditions, to ensure that they do
not cause genetic erosion by displacing extant varieties or in other ways,
or do not threaten human or animal or plant health; 

While a comprehensive new legislation would be ideal, at the very least the
PPV Bill needs to be modified to integrate the above provisions, in the
following ways: 

1. Adding farmers' representatives and NGO members in the Authority and
other institutional bodies set up under the Bill; 
2. Making it explicit that farmers are also breeders and researchers in
their own rights; 
3. Building in a more comprehensive definition of Farmers Rights, which
includes the right to protect their varieties and knowledge, and to
continue having access to the biological material and other conditions
which are important inputs into their farming system; 
4. Making mandatory the consent of, and appropriate benefit-sharing
arrangements with, farmers and communities whose varieties and knowledge
are accessed in formal sector breeding (and not leaving the onus on farmers
to claim such benefit-sharing); 
5. Putting the onus on formal sector breeders to prove that they have not
wrongly or unfairly appropriated farmers' varieties and knowledge in
developing a new variety, if such complaints are made; 
6. Mandating the Authority to protect farmers against piracy of their
varieties and knowledge; 
7. Making the use of farmers' varieties and knowledge, without prior
informed consent, a ground for opposition to a variety; and making it
mandatory to revoke protection to any variety which has been developed in
violation of Farmers' Rights as defined above; 
8. Making the use of existing farmers' 'denominations' by plant breeders,
without seeking the permission of these farmers, as a violation of Farmers'
Rights; 
9. Providing legal status to local, state, and national level registers of
farmers' varieties and knowledge, and not insisting on expensive-to-prove
characteristics to accept such varieties for registration; where
characteristics of stability etc. have to be demonstrated, the state should
be obliged to help farmers in conducting the necessary tests; 
10. Making explicit provisions for the functioning of the National Gene
Fund, e.g. prioritising allocations from it to farmers and communities that
conserve and innovate on plant genetic resources; and ensuring that
decision-making regarding its utilisation involves representatives of
farmer communities; 
11. Making compulsory some kind of benefit-sharing arrangements in all
further use of seeds and other genetic material already stored in ex situ
gene banks (e.g. that of the National Bureau of Plant Genetic Resources).
In the case of varieties whose origin can be traced to particular farmers
or communities, such benefits must go to them; whereas in the case of other
varieties, the benefits can go the National Gene Fund;  
12. Facilitating a range of incentive measures for farmers and local
communities to revive, or continue, practices and knowledge systems which
promote the conservation and sustainable use of biological diversity, e.g.
linkages with consumers wanting organic and diverse foods; 
13. Making environmental impact assessments mandatory for any new variety
for which a claim is made, to ensure that it does not in any way undermine
the maintenance of biological diversity in farmers' fields, or in other
ways harm human/animal/plant health; 
14. Reinserting the provision for an Appellate Tribunal, to settle disputes
regarding plant variety protection, in particular to hear from aggrieved
farmers and communities (such a Tribunal was envisaged in an earlier
version of the PPV Bill, but has been subsequently dropped); 
15. Providing to formal sector breeders incentives and protection, and
measures to ensure that they are rewarded and facilitated, but ensuring
that compulsory licensing is done for every variety that is given
protection (a partial step towards this already exists in Section 45(1) of
the PPV Bill), so as to guard against monopolies and enable the small-scale
seed sector to benefit. 

It is interesting that simultaneous to the development of the PPV Bill, the
Government of India has developed a draft Biological Diversity Act that
contains provisions for protecting indigenous knowledge and
agro-biodiversity. A comparision of the two bills shows certain basic
contradictions, that need to be resolved. As currently drafted, the BDA is
a much stronger vehicle to achieving environmental sustainability, social
justice, and food security, than is the PPV Bill. But the latter too can be
made to achieve these goals, if it puts the interests of the majority of
India's farmers, and the conservation of the biological diversity which is
the basis for all agriculture, as its core thrusts. 

India has the option of developing a truly sui generis law which suits its
social and ecological conditions. What is stopping us from doing so? 


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Contact: 

Ashish Kothari
Kalpavriksh 
Aptmt. 5, Shree Dutta Krupa, 908 Deccan Gymkhana, Pune 411004
Tel/fax: 91-20-5654239; Email: ashish@nda.vsnl.net.in