Day 1 Session

Conceptual and Technical Issues on Farmers’ Rights to Genetic Resources

Dr.Nagarajan, Chairman, Protection of Plant Varieties – Farmers’ Rights Authority, New Delhi

[Response to Dr Devinder Sharma]
The PVPFRA act passed by the Indian parliament has dovetailed into it, the requirements of Article 27.3b of TRIPS. Trade negotiations in 1984 required countries to bring in IP regime as one requirement in trade settlements and at that time, globally, plant forms and animal forms were easily patentable. Therefore the US which is one of the oldest in using the plant genome came out with the idea of patenting horticultural plants, which were propagated vegetatively, including the potato and came up with the PVP concept in 1934. 1934 was the year in which the registration system came about and thereafter the UPOV model came up with PVP concept. The US also has the utility patent. The US has multiple layers available to ensure that rights of material are covered from different angles.
India decided to take the spirit of UPOV – identifying varieties, and genotypes based on distinct characteristics. This is also being done under the present Seed Bill, as the application seeks to find a method in seed production, which will help to differentiate from seed types which are already released. This has a historical precedent as this is what farmers were using as distinctiveness even in earlier days. For instance, the seed production man may differentiate between Kalyan Sona and Sonalika because he knows the characteristics.

Distinctiveness, stability and uniformity
Distinctiveness is a major pillar on which differences in varieties between one another will be resolved. This philosophy came out of UPOV after years of experimentation. Distinctiveness, stability and uniformity were developed as parameters to aid private companies wanting to invest in plant breeding, since private companies would not invest in a variety unless there was a procedure.
Distinctiveness and uniformity are the only parameters being tested. Stability is not tested but inferred. Uniformity implies genetic uniformity – variation is permitted, but within limits. For instance, one or two off types out of a thousand are allowed and these are pulled out to make the variety uniform. This is the manner in which the seed production chain moves. If there is a uniform seed material it is already stable because it is based on fixed loci and is stable from one generation to the next.

Differences between the Scope of Patenting and PVPFRA
India therefore took the concept of UPOV while drafting the PVPFRA. At the same time under the chairmanship of Dr Swaminathan of the FAO, a philosophy evolved which claimed that since plants have existed before plant breeding became an activity, plant breeders cannot claim exclusive patent rights over such plants. The patent system provides exclusivity and as such, plant breeding is neither a de novo invention nor a discovery. We make improvements by innovation which is different from break through research. Therefore though PVP comes under the IP cluster, by approach it is different from patenting. Patent gives total exclusive right and there is no researchers' right in case of patenting. In case of PVP, the Act provides for researchers' rights because unless research is conducted it is not possible to produce a new variety. Therefore plant breeding is a continuum and not discrete. When working with such a science, elbow space is required and this is provided by the PVPFRA. This is fundamentally the difference between patenting and the Act. Also, patenting is based on examining documentation provided, but under PVP, the plant variety has to be grown out and its distinct characteristics and traits have to be measured and documented as it deals with plants as life forms. There are several differences between the two, without going into extensive detail.

PVPFRA and Protection of farmers’ rights
Therefore the committee under Dr Swaminathan which discussed these issues in FAO, came out with the concept of farmers' rights. The committee was of the opinion that the inheritors of this seed material were in fact the farmers. Over several generations they observed minor variations occurring in the seeds, which they selected and experimented with, not in terms of modern science, but through human intelligence. Thus they developed certain varieties and genetic resources. Therefore the interests and stake of the farmers in this process was also acknowledged so that their interests could be adequately represented. Agenda 21 also addressed biodiversity. Therefore this Act has tried to marry the UPOV system of identifying varieties for registration and has also tried to accommodate farmers' rights. There have been several precedents (such as the Schmeiser case in Canada) which demonstrate that farmers have been placed at a disadvantage. Through this Act, the law seeks to ensure fairness to farmers.

PVPFRA and biodiversity
To a limited extent the Act has accommodated biodiversity which is immediately connected with plant varieties. It is not that biodiversity per se in the wider context that is referenced. Where issues involve gene transfer or in the case of medicinal plants, that may be found in the forests, the law has accommodated wild plants in nature to ensure that these are also taken care of. Therefore the best effort has been made to cover the interests of foresters, farmers and cultivators. Balancing these various issues is a tough job. Conflict is of various kinds and management of conflict is my responsibility. Several groups have their own interests at stake. There is public interest as can be seen from this meeting. The government has its own interests in food security issues. Seed organizations represent private interests. The farmer is also interested as he has to make a living. Research and the advance of Science represent another group. All of these have to be taken into account.

Ownership issues and registration
There are several issues: who controls the plant? This is very complicated. Under the Act, the plant has to be protected.PVPFR Authority requests all NGOs, [of the 18 declared species,] to please apply either as farmers' associations or jointly with farmers. They should apply and register and provide details of distinctive characteristics of each variety. Examples of such characteristics are whether the plant is drought tolerant, provides a high protein content and so on. The particular gene can then be determined. It is then protected and no one can patent it since what is known cannot be patented.

If distinctive characteristics are identified then whether at a genetic level or otherwise, the variety has been protected. By identifying whether the variety has an amino acid sequence peculiar to it, a high concentration of Zinc, etc., indirectly that particular gene is registered. Therefore, since what is already known is not patentable the farmers will get indirect protection.

Therefore those varieties that will make a breakthrough, should be guarded. Those that are marginal may be put into the public domain.
Therefore as a nation, we have to take care of very valuable genes which are important for the next Green Revolution. This work has to be prioritized. Gene sequencing also should be done to safeguard and control transgenic varieties which could be developed. Therefore there are multiple layers to take care of.

The important genes have to be identified. When registering, ensure for instance that the top fifty varieties are protected first. Prioritize
germ plasm since it costs money to protect it. The plant varieties get protection for the farmer’s innovation in developing it. Protect your variety whether local, cultivated or not. This is the key.

Therefore when an NGO gets a particular variety registered then IISC should sequence that gene. The important varieties should be identified. Don't waste time on all 2000 varieties. Take top 50 varieties and protect that and rest later on. Immediate priority is the best - Alfonso mango, Nendren banana. Therefore prioritize germ plasm because it costs money to protect it. Certain varieties of plants cannot be protected, for example, where GURT (Genetic Use Restriction Technology) technology is involved. When man has interfered with the natural process of perpetuation, the law does not permit registration. As of now, GURT technology is not acceptable by Indian law.

Secondly, anything injurious to human or animal health is also not permissible. PVPFR Authority is now looking at GEAC (Genetic Engineering Approval Committee) clearance before registration because the GEAC has to give direction as to whether a transgenic variety is environmentally safe and cultivable.

Conclusion
India is the fifth largest seed market in the world with only 20% seed replacement ratio. When there is so much diversity there is no need to fear. We should not have a colonial fear that we will be overrun by imperialists. But if you look into the world chart, of the top 15 seed companies in the world, not even one is from India.

By the use of science and technology if India can compete, we can also produce multi national seed corporations rather than being afraid of Monsanto. Science has given us the opportunity to move from gene to grass to sugarcane, with so much biodiversity, bio technology and investment.

By 2013 India should emerge as a major seed producer if we put science, policy and knowledge in alignment. We also have to take care that farmers are not disadvantaged and other material interests are compromised. Bangalore can also become a Mecca for modern seed production.

Definition of a Farmer:

• One who cultivates crops by cultivating land by himself
• Cultivates the land by directly supervising the cultivation of land through any other person
• Conserves and preserves any wild species or traditional varieties or adds value to such wild species or traditional varieties through selection and identification of their useful properties.

• Entitlement on seed except bagging, labeling, branding and selling a registered variety
  • Farmer has complete right to grow, harvest, retain and sell but cannot bag and sell as branded seed as it is already registered and this particular right belongs to the Plant Breeder.
• Compensation on not realizing what is claimed on the seed packet under the given condition
  • This right is unique to PPVFRA. There is no direct dialogue between the farmer and the agency from which he claims compensation, whether it is an Agricultural university or a seed company, as the PPVFR Authority acts as the middleman in such cases
• Access to benefit sharing
  • If a private company uses a registered farmers’ variety for back crossing then permission is required, as they are deriving the genes. Any act of derivation requires permission and the farmer then has the right to ask for access to benefit sharing.
• Exemption from all fees
  • There is no fee to register a farmers’ variety including court fee and stamp paper.
• Innocent infringement
  • Since the Act and its contents may not be known to the farmer he may make some infringement and such a situation, the Authority has the power to say that it is not punishable. However, it has a limited time scale.
• Protection of farmers’ variety
  • A farmer is also recognized as a plant breeder. If he knowingly makes a cross between A and B varieties and makes a selection, then he has entered into the act of deriving plants. But if he has cultivated a variety ancestrally over a period of time then it is considered as a farmers’ variety and is registerable.
• Gene Fund – benevolence action
  • When any variety registered under the Act is sold, a part of the turnover goes to the Authority as an annual fee, which goes into the Gene Fund. This issue is being legally examined under Chapter 22 and for any variety that has been registered, a statement has to be provided as to how much seed is produced, where it was sold and at what cost. Financial advisors from the Authority will then provide a certificate stating that there are no dues for the registered variety. In order to maintain the legal rights, an annual retainership fee has to be paid. This fee goes to the Gene Fund which is used to protect biodiversity. This feature is therefore built into the Act and this Act is the only one of its kind which has a Gene Fund.

• A special or peculiar benefit, favor or advantage is a privilege and is now granted by UPOV countries to their farmers. Essentially this is a favor being granted by seed companies to farmers.
• A right is in accordance and conformable to law. India grants rights to farmers under PPVFRA. For instance an English farmer can maintain up to 40 tons of seeds under UPOV 1991, but in developing countries such as India, sometimes the entire village combined may not have the capacity to produce the same quantity of seeds.

Genetic Resources:
The difference between germ plasm and genetic resources is that characteristics of the plant are not known or recorded in the case of germ plasm. It is not indexed or value added. When the particular characteristics or traits peculiar to it are identified then it can be considered as a genetic resource.

• Genetic resources are a sub system under biodiversity, being gene source for active plant breeding and value addition program.
• Genetic resources are dense in agro-biodiversity hot spots.
• The Authority, through the Task Force, has identified 22 hot spots in India that are distinct from one another on the basis of botanical distribution, usage, climate, ethnic and social reasons.

• There are areas of ambiguity and not necessarily conflict.
• Biodiversity and germplasm are not addressed by TRIPS and left to CBD.
• The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) of the FAO links both CBD and TRIPS loosely; grants access to benefit to researcher but not to the native conservers of biodiversity.

• Farmers or farming community can get farmers’ variety registered under the Act. If such varieties are used as parental lines by others then there is a case for access to benefit sharing.
• Participatory plant breeding needs to examine Rule 41, sub rule 1, as communities have certain rights.

• Farmers’ variety offers crucial raw material for improving the productivity and quality of crops in perpetuity. For centuries they have often been tested for conditions such as erratic monsoon, heat tolerance, drought tolerance etc. Thus genes with the right characteristics and resistance to these conditions have been accrued in rice, pulses and so on. Today it is possible to transfer genes even from mango to rice and therefore with the potential horizontal movement of these genes through gene mining, farmers’ varieties should be protected.

• Farmers’ variety provides uncommon opportunities for developing decentralized and location specific crop varieties to anchor the green revolution. For instance it may be possible to find, in Africa, in a similar ecosystem to Maharashtra, the potential for niche marketing of an Indian variety of sorghum. This gives the opportunity for farmers’ varieties to be globally marketed and thus derive an economic benefit to the farmers’ of Maharashtra.

• Lack of awareness, documentation of materials, a decentralized seed bank of farmers’ variety at national level and the disappearance of exchange of seeds between farmers are major limitations.

• There has been a poor response from public plant breeding institutions and NGOs to register farmers’ variety of even rice. Of over 1,200 applications received so far, only 7 are farmers’ varieties.

• Prior informed consent means that the provider is to be made fully aware of the planned utilization, and explicitly agrees with this before any transfer of material takes place.
• Prior informed consent from local communities is needed to collect farmers’ varieties or wild crop relatives.
• Prior informed consent for access to genetic materials and accompanying information in a country are granted by the competent national authority.

• The endowed botanical diversity have been experimented, documented and traditional knowledge was generated to meet various human needs.
• They are there and continuously evolving enabled by human selection.
• Practices such as “jhum” enable regeneration and succession of species and new forms.
• It is complex to separate community efforts from group efforts.
• Useful genetic resources were shared freely globally and they can be used for gene mining and to construct new plant variety.
• The ITPGRFA of the FAO covers benefit sharing if supplied germ plasm yields commercial varieties. But it is silent on benefit sharing for the genetic resources of farmers/countries used in developing such material.
• Only the investment in technology is covered there, but investments made by sovereign nations in germ plasm conservation and sharing are not even discussed.
• Laws elsewhere permit patenting of plants discovered in nature, as they are not a matter of common knowledge.
• Modern varieties have parental lineage with old farmers’ varieties not registered under the Act.
• The exclusive rights granted to plant variety is to be from seed/planting material to harvest/s and not thereafter.
• Effective PVP of perennial crops needs registering of all the nursery/planting material supplier.
• Harmony with the Seeds Bill is desirable.
• Narrowing of the genetic base, genetic vulnerability and economic hardship to grower are to be avoided.

• Is it right to grant PVP to farmers’ varieties that are a century old?
• Farmers’ varieties / genetic resources – there is no referral seed depository or organized documentation.
• Clients being local the farmers’ variety seed is purchased in trust or as barter or in exchange.
• There is no systematic seed production chain nor are there standards for genetic purity and vigor.
• The material is retained by bulk-head generation advancement and allowing certain degree of heterogeneity accepted by the buyer community.
• For farmers’ varieties, tolerance levels are to be different compared to breeder developed new variety.
• Perennials such as fruit trees, forest trees, etc. ownership claims are difficult to verify as the law is in favor of first come first served.

• Responding to a question regarding compensation for crop losses incurred by farmers under PVPFRA from Mr. Kumaraswamy (Shimoga), Dr Nagarajan clarified that the Act covers only registered distinctive characteristics of a given plant variety. Therefore if this specific trait has failed then the farmer can claim compensation. For crop loss due to other reasons he has to go through the Consumers Court.
• Ms Kumar (independent journalist) raised the issue with regard to farmers’ access to NGOs for assistance in registering their plant varieties. Dr Nagarajan explained the government’s efforts in educating the farmers:
  • through various media (TV, radio programs, newspapers)
  • providing financing from a corpus fund for any organization that comes forward to conduct such a program to the tune of Rs. 50,000 per day
  • providing educational materials on CDs in all regional languages
  • a special center for farmers’ awareness in Punjab since this state is especially impacted by global price change in wheat and rice due to international policies

• Query with regard to farmers’ varieties and benefit sharing in the multi lateral system and the International Treaty on Plant Genetic Resources came from Mr Kamlesh Adhikari (Nepal). Dr Nagarajan clarified that the Treaty does not work against the rights of farmers. While it takes care of benefit sharing from International germ plasm, it does not give a similar opportunity if a native germ plasm is used. As of today, the multilateral system as a PVP system does not exist because the PVPFRA is not tied with ITPGR, but with is tied with a requirement under TRIPS. Therefore PVPFRA is a requirement under trade negotiations and ITPGR addresses access to germ plasm. Under the International Treaty, unlike TRIPS, there exist multilateral and bilateral openings. There are several countries ready to recognize our Act and in this way, there can be multilateral and bilateral access also under trade requirements. ITPGR deals with an unfinished product (germ plasm) and PVPFRA with a finished product. Therefore these are two different levels of development.
• Raghunandan Velankar, farmer (RANWA Pune) requested an extension on the November 2009 deadline for registering extant varieties. Dr Nagarajan responded by explaining that the need for registration of extant varieties was required because India has many hundreds of years of plant breeding legacy. The law says that with respect to extant varieties, once the species is notified in the Gazette of India, the Registrar also stipulates a time period by which registration has to be done. As long as it is filed before November 2009, even if the form is incomplete, an extension can be provided, whereas if the filing process is not initiated at all, then there is no provision for an extension.
• Dr Nagarajan also pointed out that while the requirement of stability for a Plant Breeder’s variety is exercised stringently, PVPFRA has relaxed the norms in the case of Farmers’ variety. Since in the case of the farmer, selection and propagation method and generational advancement is through bulk heading, certain variability occurs from year to year. The level of uniformity requirement is also relaxed in the case of the farmer’s variety. Relaxation of norms is almost double in the case of farmer’s variety as opposed to plant breeder’s variety. He noted that the Gazette notification to this effect is expected to be published very soon.
• In response to Dr Bala Ravi’s proposal that the deadline for registration of extant varieties should be extended to 5 years, Dr Nagarajan replied that this can be considered if citizens and NGOs should submit a request to the Authority for such extension.
• With regard to livelihood issues and educational programs (question raised by Sangita Sharma), Dr Nagarajan replied that such programs were the responsibility of the Ministry of Agriculture.
• Mr Jacob Nellithanam made a demand that plant varieties that are currently being considered germ plasm were in fact farmers’ varieties that were being used by research institutions and that the PVPFR Authority should themselves get these registered so that the benefit could flow back to the farmer. Dr Nagarajan responded that land races were different from folk varieties and that the maintenance of this diversity is covered under the Biodiversity Act. He explained that plant species can only be considered as plant genetic resources when they are documented and their characteristics and traits are extracted. The PVPFR Act does not address biodiversity at all, but speaks specifically of Agricultural biodiversity hot spots which have to be implemented. He further explained that an intellectual right can only be granted if documentation is provided by the farmer, as he would then be getting registration for his variety on the basis of his intellectual input and innovation. He also said that whatever is in the Commons cannot be considered a variety but only as germ plasm. In this context, Dr Bala Ravi also gave his insight that research bodies such as ICAR and universities have the capacity and resources documenting farmers’ varieties and should participate more actively in providing this service to the farmers. Dr Devinder Sharma also expressed his opinion that there was a fear and mistrust among farmers that their varieties would be taken away and after registration, would be made available to private companies as germ plasm residing in the public domain. Dr Nagarajan felt that there was an apathy among research institutions such as Agricultural universities and KVKs with regard to registration of farmers’ varieties. He also gave the example of the Palghat Rice Growers association that has filed for registration of farmers’ variety and when this is done it becomes the property of the community. This way registration can be used for both marketing and protection.
• Dr Sharma raised an additional question with regard to universities, asking why they do not support a variety produced by a farmer (plant breeder?) even though it is a high yielding variety. He felt that if they did not do this there was no benefit to him to go through the registration process of the PVP Act. Dr Nagarajan pointed out that the university could be sued if they claimed this variety as their own once it had been registered as a farmers’ variety. He stressed once again the importance of submitting the application for registration before November, even if the form was incomplete.
• With regard to flow of benefits, Dr Sharma had a question about a particular seed variety - a “scuba” variety of seed with deep water resistance. It had since been sent to IRRI who have not made use of it. He therefore wanted to know who the benefit would flow to, and if it would flow at all. Again Dr Nagarajan pointed out it would happen only if it were registered.
• In response to Dr Ramprasad’s question, Dr Nagarajan stated that a farmer can file for registration of a variety as an individual and would have to prove that it was his own contribution. A community could also file for registration if the community was defined and itself registered and approved. The tests for farmers’ varieties are currently relaxed and this is available for a period of 3 years only. He has gone out of his way to get a Gazette notification for relaxing the requirement of uniformity. If he now adds the new variety clause, he says that 90% of farmers’ varieties will not get registration approval. He also said that the public should submit their petition for extension from 3 to 5 years to the Agricultural Secretary as the rule is to be amended by the Department of Agriculture.
• In conclusion Dr Nagarajan suggested that each state should have its own inventory of local varieties. Agriculture is a state subject but the PVPFRA is the only exception, being a federal Act. In response to Dr Ramprasad’s query, he said that if any state requested that the PVPFR Authority should take this up as a scheme project, the Authority would be willing to examine such a proposal. With regard to the Gene Fund, he stated that the law promotes schemes to implement that. He asked that NGOs especially should try to characterize all Siddha Vaidya and Unani Vaidya medicinal plants as this was where a million dollar pharmacological industry could give access to benefit sharing. Some plants such as ginger, sugar cane and turmeric will be notified in the Gazzette soon, while Mango which is used in export, and other medicinal plants such as Ashvagandha, Menthe and Brahmi are to be notified in a year. If NGOs try to have these registered in different areas, they should conduct multi location testing to find out the genotype and interaction with the environment and identify those genetic traits that make them distinct. Dr Nagarajan also urged all NGOs to come together and develop network projects, for instance to take the initiative and leadership in forming a network for the characterization of aromatic plants.