Section Summary and Institutional Structures For Effective Implement
Section Summary and Institutional Structures For Effective Implement
Section Summary and Institutional Structures For Effective Implement
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The Protection of Plant Varieties and Farmers ' Rights Act was passed by the Indian Government i
2001. After India became signatory to the Trade Related Aspects of Intellectual Property Rig
Agreement (TRIPs) in 1994, a legislation was required to be formulated. Article 27.3 (b) of this agre
ment requires the member countries to provide for protection of plant varieties either by a patent
by an effective sui generis system or by any combination thereof. Thus, the member countries ha
the choice to frame legislations that suit their own system and India exercised this option. The ex
ting Indian Patent Act, 1970 excluded agriculture and horticultural methods of production fr
patentability. The sui generis system for protection of plant varieties was developed integrating th
rights of breeders, farmers and village communities, and taking care of the concerns for equitabl
sharing of benefits. We attempt here to critically analyse the provisions of legislations for th
effective implementation.
Plant GENETIC RESOURCES (PGRs) are the foundation for Intellectual Property Rights Agreement (TRIPs) in 19
the development of a food and nutritionally secure society. such a legislation was necessitated. Article 27.3 (b) of this
In addition, plants have many uses, including feed, fibre, agreement requires the member countries to provide
medicine and industrial applications. PGRs were treated protection of plant varieties either by a patent or by
as the 'heritage of mankind' and were shared freely among effective sui generis system or by any combination there
nations, till the concerns for conservation of biological Thus, the member countries had the choice to frame le
diversity were raised by the Convention on Biological lations suiting their own system and India exercised
Diversity (CBD), which came into force in 1993. The con- option. The existing Indian Patent Act, 1970 excluded
servation and sustainable utilization and access to bio- culture and horticultural methods of production from
logical diversity were considered as national sovereignty entability. The sui generis system for protection of pl
by CBD. Consequently, many issues regarding the rights varieties was developed integrating the rights of breed
of the conservers, users, breeders, farmers and intellectual farmers and village communities, and taking care of the
property have emerged. concerns for equitable sharing of benefits. It offers flexi
During 2001, significant developments have taken place bility with regard to protected genera/s
with respect to the realization of the rights of breeders, period of protection, when compared to other
farmers and local communities. The Protection of Plant lations existing or being formulated in differen
Varieties and Farmers' Rights Act (PPVFR) was passed The Act covers all categories of plant
by the Indian Government. The present article is an at- organisms. The genera and species of t
tempt to critically analyse the provisions of the legisla- protection shall be notified through a ga
tions for their effective implementation. appropriate rules and by-laws are framed for the enforce
ment of the Act.
Essentially derived variety (a) Novel, if, at the date of filing of the application for
registration for protection, the propagating or harvested
A variety shall be said to be essentially derived when it: material of such a variety has not been sold or otherwise
disposed of by or with the consent of its breeder or his
(i) is predominantly derived from such initial variety, or successor for the purposes of exploitation of such variety
from a variety that itself is predominantly derived from (i) in India, earlier than one year,
such initial variety, while retaining the expression of the (ii) or outside India, in the case of trees or vines earlier
essential characteristics that result from the genotype or than six years, or, in any other case, earlier than four years,
combination of genotypes of such initial variety; before the date of filing such applications.
(ii) is clearly distinguishable from such initial variety, and Provided that a trial of a new variety which has not
(iii) conforms (excepting for the differences which result been sold or otherwise disposed off shall not affect the right
from the act of derivation) to such initial variety in the to protection.
expression of the essential characteristics that result from Provided further that the fact that on the date of filing the
the genotype or combination of genotypes of such initial application for registration, the propagating or harvested
variety. material of such variety has become a matter of common
CURRENT SCIENCE, VOL. 86, NO. 3, 10 FEBRUARY 2004 393
knowledge other than through the aforesaid manner shall by the rules made on this behalf subject to the co
not affect the criteria of novelty for such variety. that the total period of validity shall not excee
(b) Distinct, if it is clearly distinguishable by at least one ..... r , . . , „
... _ . . ,, . . , . (1) in the case of trees and vines, eighteen years from the
essential charactenstic from any other variety whose exis- ......
.. , , , . date of registration of the variety;
tence is a matter of common knowledge in any country at *.... . ^ ,
, . ff... f , .. . (11) in the case of extant varieties, fifteen years from the
the time of filing of the application.
date of the notification of that variety by the Cent
(c) Uniform, if subject to the variation that may be ex
Government under Section 5 of the Seed Act, 1996, and
pected from the particular features of its propagation, it is
(iii) in the other case, fifteen years from the date of reg
sufficiently uniform in its essential characteristics.
tration of the variety.
(d) Stable, if its essential characteristics remain un
changed after repeated propagation or, in the case of a
particular cycle of propagation, at the end of each such Payment of annual fee
cycle.
The Authority may, with the prior approval of the Central
The variety will be subjected to such distinctiveness, Government; by notification in the Official Gazette, impose
uniformity and stability tests as shall be prescribed. a fee tQ bß pajd annually> by every breeder of a varietyi
agent and licensee thereof registered under this Act de
. termined on the basis of benefit or royalty gained by such
pp ication form breeder, agent or licensee, as the case
of the variety, for the retention of their registrat
Every application for registration will have to be accom- this Act [Section 35(1)].
panied with the following information [Section 18 (a-h)]:
Farmers' rights
Period of protection
The farmers' rights of the Act define the privilege of
farmers and their right to protect varieties developed or
The certificate of registration issued under section 24 or conserved by them [Chapter VI], Farmers can sav
sub-section 98 of section 23 shall be valid for nine years sow, resow, exchange, share and sell farm produc
in the case of trees and vines and six years in the case of protected variety except sale under a commercial m
other crops, and may be reviewed and renewed for the re- ing arrangement (branded seeds) [Section 39 (1), (
maining period on payment of such fees as may be fixed Further, the farmers have also been provided pro
394 CURRENT SCIENCE, VOL. 86, NO. 3, 10 FEBRUARY 2004
of innocent infringement when, at the time of infringe- benefit claim, after providing an opportunity to
ment, a farmer is not aware of the existence of breeder both the plant breeder and the claimer.
rights [Section 42 (1)].
A farmer who is engaged in the conservation of genetic National Gene Fund
resources of landraces and wild relatives of economic
plants and their improvement through selection and pre- The National Gene Fund t0 be constituted under the Ac
servation, shall be entitled in the prescribed manner for „h;.n h. r„HifpH thpTY>(r..
recognition and reward from the Gene Fund, provided the
material so selected and preserved has been used as do- (a) The benefit sharing from the breeder.
nor of genes in varieties registrable under the Act. (b) The annual fee payable to the authority by way
The expected performance of a variety is to be dis- royalties,
closed to the farmers at the time of sale of seed/propagating (c) By the compensation provided to the communities as
material. A farmer or a group of farmers or an organiza- defined under Section 41(1).
tion of farmers can claim compensation according to the (d) Contribution from any national and international or
Act, if a variety or the propagating material fails to give nization and other sources.
the expected performance under given conditions, as clai- The fund wil, be applied for disbursing shares t0 benef
med by the breeder of the variety. claimers, either individuals or organization, and for com
pensation to village communities. The fund will also be
Communities rights used f°r supporting conservation and sustainable use of
genetic resources, including in situ and ex situ collection
The rights of the communities as defined, provide for com- and f°r strengthening the capabilities of the panchayat
pensation for the contribution of communities in the evo- *n carrying out such conservation and sustainable use
lution of new varieties in quantums to be determined by [Section (45)].
the PPVFR Authority [Section 41 (1)].
Plant Variety Protection Appellate Tribunal
Registration of essentially derived varieties
The Tribunal will be established by a gazette notification
The breeder of the essentially derived variety shall have by the Government to exercise jurisdiction, powers and
the same rights as the plant breeder of other new varie- authority conferred on it under this Act. The Tribunal will
ties, which include production, selling, marketing and consist of Judicial as well as Technical members,
distribution, including export and import of the variety.
The other eligibility criteria for award of registration are Consideration for effective implementation
also the same as for new variety registration under the nftho Art
Act [Section 23(1), (6)].
India has opted for a sui generis system of protection of
Compulsory license plant varieties and has provided for farmers' rights, bree
ders' rights, researchers' rights and equity concerns in the
The authority can grant compulsory license, in case of same legislation. All these provisions in one legislation
any complaints about the availability of the seeds of any make it a unique Act, when compared to similar legisla
registered variety to public at a reasonable price. The license tions in other countries. Although a few countries have pro
can be granted to any person interested to take up such vided for farmers rights, all types of rights for farmers,
activities after the expiry of a period of three years from v'z- as breeder, conserver, seed producer and consumer
the date of issue of certificate of registration to undertake have not been considered elsewhere in the world. It is this
production, distribution and sale of the seed or other pro- uniqueness of the Act which poses many challenges for
pagating material of the variety [Section 47(1)]. bs effective implementation. The balance between bree
ders' rights and farmers' right could be tough to strike. A
. critical analysis of the provisions in the Act is therefore
Benefit s aring essential for its effective implementatio
Sharing of benefits accruing to a breeder from a variety
developed from indigenously derived plant genetic re- Notification of crops species
sources has also been provided [Section 26(1)]. The autho
rity may invite claims of benefit sharing of any variety As a first step towards implementa
registered under the Act, and shall determine the quantum Government shall have to notify the c
of such award after ascertaining the extent and nature of the blish the system of listing of plant
pose of registration. The criteria for selecting the crops (f) Collecting statistics with regard to p
could be the crops on which we are dependent for food including the contribution of any person a
and nutritional security, including major cereals, pulses, the evolution or development of any plant variet
oilseeds, vegetables and fruits crops. Crop species impor- or in any other country, for compilation and pu
tant for India in the world trade, species of Indian origin, (g) Ensuring the maintenance of the Reg
crops where India could benefit from introduction of new varieties,
germplasm and foreign investment, could be the other
priorities for consideration Tbe Auttlority has the responsibility to provide
activities mentioned through appropriate institutional struc
tures. There could be three options for the Authority to
Awareness generation undertake all the activities:
There is a need to create awareness among scientists, policy (a) The Authority can aPPo
makers and breeders as well as farmers, village commu- tlon directly under lts contr
cedures for candidate varieties and other institutional
nities and the private seed sector. Wide circulation of the
mechanisms.
provisions of the Act may be done in all research organi
zations directly or indirectly involved in development of (b) The Authority can take advanta§e of the cxlslinS faci"
new crop varieties. For farmers and village communities, llties and infrastructure available at ICAR crop-based insti
, . t „ .. „ „ . • tutions, State Agricultural Universities, Krishi Vigyan Ken
awareness generation and information empowerment is a b bJ
„ , ,, , , . .. dras and All India coordinated proiects.
must through vernacular press, radio, television and the y J
T„tar„at a (c) The ICAR as an organization can establish a suitable
Internet. A standing committee on awareness generation v ' b
and information empowerment under the Plant Varieties sYstern independently.
and Farmers' Rights Protection Authority may be set-up for Any one of lhc proposed institutional mech
ensuring the effective spread of credible information eyer a single objective of effective imple
concerning the rights of plant breeders and farmers as assessment of candidate varieties should
cultivators, breeders and conservers . In order to ensure vjde a jevej piayjng "Field to all categories o
that the farmer as a breeder and conserver secures the as institutions, breeders, farmers and the p
recognition and reward provided under the Act, there is jbe effective implementation of the Act
need to establish resource centres for farmers' rights and DUS testjng and the Authority should ensure
entitlements. parency, accountability and efficiency for carrying out
such tests. Suitable farm and other infrastructure facilities
Institutional structures for effective implementation for DUS testin§' ,ncludinS seed storaSe facilities need t0
be created. It is advisable to carry out DUS testing in at
least two locations in each major-agro climatic region rele
The PPVFR Authority proposed to be established under
vant to the crop for at least two successful years4. Such
the Act has a crucial role to play for effective implemen
an evaluation procedure would create acceptance when
tation of the Act. The duty of the Authority is to promote,
, . , , followed for all types of varieties among all the stake
by such measures as it may think fit, the encouragement boiders
for the development of new varieties of plants and to pro
It is imperative to define essential and addition
tect the rights of the farmers and breeders [Section 8 (1)]
racters for DUS testing (morphological, biochem
In particular, the authority is to provide measures for:
molecular characters), and identification of possible
(a) The registration of extant and new plant varieties sub- rence varieties for each crop
ject to such terms and conditions and in the manner as may UPOV guidelines on DUS te
be prescribed. crops as possible templates for formulation of DUS guide
(b) Developing characterization and documentation of lines that may suit specific requirem
varieties registered under this Act. our legislation may also be considered. In order to test
(c) Documentation, indexing and cataloguing of farmers' the novelty, a database of the existing varieties may have
varieties. to be developed with effective linkages with other such
(d) Compulsory cataloguing facilities for all varieties of database available inte
plants. The Authority may also have to decide about the mini
Ce) Ensuring that seeds of the varieties registered under mum passport d
this Act are available to the farmers and providing for com- application.
pulsory licensing of such varieties, if the breeder of such development of
varieties or any other person entitled to produce such vari- gene banks/br
ety under this Act does not arrange for production and sale ded passport
of seed in the manner as may be prescribed. source of parental ma
396 CURRENT SCIENCE, VOL. 86, NO. 3, 10 FEBRUARY 2004
Further, information regarding parental lines as requi- possess common knowledge, the uniformity crit
red under section 18(e), needs to be restricted to imme- of registration of these varieties is difficul
diate parents. The term parental line is ambiguous here Such consideration may have to be included
since all the varieties developed by traditional methods guidelines for testing of these particular ty
may be having many parental lines. It could be appropri- ties. Further, there could be innumerable
ate to include information on immediate parents, specifi- ties (landraces for registration and their data ar
cally in case of hybrids only. and sometimes overlapping). A technical questionnaire to
It would be difficult to ascertain uniformity criteria for bring out unique characters and area of adaptability could
composites, synthetics, multilines and multiparent hybrids. be developed initially to document these varieties. Th
Such consideration may have to be included in the DUS time-frame to be provided for documentation of informa
guidelines for testing of these particular types of varieties. tion relevant for registration of extant varieties (farmers'
In addition to DUS test centres and database develop- varieties or released varieties) under Section 15(2) may be
ment, attention should be paid to the role of the National restricted to three years.
Gene Bank at the National Bureau of Plant Genetic Re- A farmer/farmer's organization [Section 39(2)] can claim
sources as a National repository, and to the establishment compensation if a variety fails to give the expected per
of recognized DNA fingerprinting centres for conflict formance under given conditions. Such a claim may have
resolution. to be paid by the breeder as directed by the Authority
after giving due hearing to both the parties, n
Storage of reference samples farmer and the breeder. Since t
for DUS by the Authority at the time of regist
Farmers' rights There is a need for the effective and integrated implemen
tation of various new acts/bills concerning biodiversity,
A farmers who has bred or developed a new variety shall environment and seed, which have some interphases be
be entitled for registration and any other protection as a cause of the common commodity that is the 'seed'. These
breeder. Since the definition of an extant variety accord- are in the area of benefit-sharing mechanisms for conser
ing to section 2(j) includes a farmers' variety also, which vers of agro-biodiversity and the establishment of a fund
may be landrace or a wild relative about which farmers for claims of benefit sharing.