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National Policy Dynamics in Plant Variety Protection and Seed Laws
Dr. M.K.Ramesh, Professor, NLSIU, Bangalore
 The previous presentations by Dr.Nagarajan and Dr.Bala Ravi has already presented the lacuna in the laws on Plant Variety and Seed supported by hands on experiences. The govt. report on Seed Bill is highly revealing the initiative by the Central government in introducing laws on Plant Varieties and Biodiversity started as early as 1992-93. Though the Plant Varieties law and the Biodiversity laws came into being in 2001 and 2002 respectively, the Seed Bill is still to be finalized. There is huge delay in making rules. An overarching law is still to come.
Conservation encompasses the species and varieties of plants and animals in the eco-system and the conservation of these species. It is unfair that the living species are commodified as “resources”. The sovereign right of State makes it legally entitled to access to, use and manage Biodiversity resources. 190 nations supported the ‘Conservation of Biodiversity’ and this has universal application overriding all other laws. Subject to state regulation & administration, device for prevention of bio-piracy-facilitation mechanism for bio-prospecting and benefit sharing is developed. Premised on the recognition of Biodiversity and knowledge associated with it as “economic resource”, the state has the ownership rights over them. It also allows for access, use, management and commercial exploitation of “Green Gold” under a licensing regime, with “prior informed consent” of the State.
Cartegena protocol, for instance, ensures bio-safety in biotechnological processes and their application.
The International Treaty On Plant Genetic Resources For Food & Agriculture, 2001 (ITPGRFA) affirms and requires promotion of farmers’ rights, over plant genetic resources, both at the national and international levels. There is a clear distinction drawn between farmers’ and breeders rights-the contributions to agricultural innovations of the former given the same status to that of the latter.
The rights include, saving, using, exchanging and selling farm saved seed and other propagating material and participation in decision making and in the fair and equitable sharing of benefits that arise from the use of plant genetic resources for food and agriculture. The farmers’ rights encompass their past, present and future contributions (in conserving, improving and making available the resources), in all regions of the world, particularly those in centers of origin and diversity
UPOV: International Union for the Protection of New Varieties of Plants: In Art. 15 (2) UPOV, there are exceptions to the Breeder’s Right, possibility to restrict the breeder’s right in order to permit farmers to save seed for sowing on their land. And there is no right to sell the seeds which contradicts Indian legislation on Farmers Rights (PPVFR).
Legal Situation in Europe: Under the Council Regulation 2100/94, the Community has plant variety right (based on UPOV). Under Art. 14: Derogation from Community Plant Variety Right, farmers are authorized to use for propagating purposes the product of their harvest which applies only to special agricultural plant species and they are required to pay an equitable remuneration to the holder whereas the small farmers are not required to pay an equitable remuneration.
Domestic Legal Frame
1. PPVFRA,2001 :
It focuses on establishing plant breeders’ and farmers’ rights; it introduces rights which are meant to provide incentives for the development of the commercial seed industries – the criteria for registration are novelty, distinctiveness, uniformity and stability (as stipulated under the international convention for the protection of New Varieties of Plants – UPOV Convention). It has attempted to put farmer’s rights on par with Breeders’ rights. But, plants produced through conventional breeding cannot be brought under protection.The legislation protects plant varieties developed through biotechnological methods, genetic manipulation, gene insertion or transfer. Registration of new variety should have a distinctive name subject to opposition within 3 months. And the duration of protection under different categories stipulated. The Registration grants exclusive rights to breeders/licensee to produce, sell, market, distribute, import or export.
Farmer’s Rights: (i) like a breeder, entitled for registration & protection of new variety; (ii) entitled to save, use, sow, re-sow, exchange, share & sell his farm produce, including a seed of a variety protected under this Act, in the same manner as he was entitled to before the coming into force of this Act. But these are more of concessions than conferment of exclusive rights.
The Rights of Communities includes the right to file application for protection of any claim attributable to the contribution of people – in the evolution of a variety and to the disclosure to information concerning the use of genetic material conserved by traditional communities (theft and piracy issues). Provisions are made for National Gene Fund, Compulsory License & exclusions. In general it bears a closer resemblance to the model provided by UPOV Convention, than evolving a Sui generis System, with the exception of granting a few concessions to the farming community.
2. Law Concerning “Seed”: 1966 Act & Amendments:
THE SEED BILL: (Act came in 2004) This law is part of the National Agricultural Policy. The main objectives are to facilitate production and supply of seeds of quality and to regulate quality of seeds for sale, import and export. It also intends to overcome limitations in the existing laws through wider coverage of seeds varieties and regulations like compulsory registration and effective penal provisions. It also introduces new strategies for ensuring food security through increased use of quality seeds (as against farmers’ saved seeds); introduction of new and improved varieties and expanding the role of private seed industry. Finally, use of biotechnology for enhanced investment to develop new varieties, without jeopardizing farmers’ interests and sustainability of Indian Agriculture.
But when it comes to implementation there are some problems. For instance the compulsory state level registration of seed producers, processing units and nurseries curtails traditional autonomy of farmers with respect to saving, selling and exchanging seeds. Regulation for extant varieties and landraces also call for unfair and unjust practices.
 Seeds Law allows a unique monopolistic commercial advantage without the need to acquire plant Breeder’s Right under PPVFR. Certain Public interest liability questions are not addressed. Seed Certification is mandatory. Accredited individuals and institutions can offer seed certification and self certification is also allowed. It allows for any seed company to establish an institution and start certifying its own seeds, countering the underlying policy of the law. Though the bill entitles compensation to farmers when agronomic performance claimed by the seed provider is not realized, the establishment of claims through consumer forums is rare as they are not an exclusive fora. Simplified farmer friendly seed insurance is required.
Exceptions are so wide that it overwhelms the rights. Though the Act says not to restrict the right of the farmer to save, use, exchange, share or sell his farm seeds and planting material, it also says that he should not sell such seed or planting material under a brand name or that which doesn’t conform to minimum limit of germination, physical purity, genetic purity etc. The Law also opens the gateway for a fool proof patent like monopoly on hybrid seeds and transgenic hybrids and farmer unfriendly practices in the trade of low-volume –high value seeds.In general, the Seed Bill fails to harmonize with already existing laws and directly conflicts with PPVFR. It also overlooks overarching laws like EPA 1986 and BDA 2002.
3. Biodiversity Act, 2002:
It facilitates bio-prospecting, benefit-sharing and regulation by a three tier administrative-cum advisory body, working directly under the Central Government. The States have to make rules on the issues of Bio-Piracy and Bio-safety; but hardly anything has been done. The issue of bio-safety comes under Environment (Protection) Act which deals with application of Gene Technology and Micro-Organisms and environment concerns. There are a number of authorities like RDAC; RCGM; IBSC; GEAC; SBCC; DLC which are hardly cooperative. As Dr.Upendra Bakshi referred about authorities of Water issues, they lack coordination and there are overlapping roles and jurisdictions. The Law also provides for Penalties for violation – as provided under S.15 EPA.
4. The Patents (Second Amendment) Act, 2002:
Environmental concerns are somewhat addressed here. Bio-piracy questions are addressed by imposition of the Disclosure provision as to the source and geographical origin of the Biological Material used in patented invention. But it excludes Plants & Animals (other than Micro organisms), Seeds, varieties, species & essentially biological processes for production or propagation of plants and animals, new Varieties of crops and their seeds and methods & processes of Agriculture & Horticulture.
The Act speaks about ‘What are Patentable’ and does not talk about conservation or farmers rights. Patent Law, with its amendments has, apparently, better mechanisms of protection of Bio-resources by “exclusion”, than the host of recently evolved Bio-diversity – related laws that “weaken their protection” by “inclusions”.
In short, the very fundamental concerns of bio-diversity management are sidelined and space for the evolution of a Sui generis System are not taken advantage of.
Comments:
- Fragmentation is international.
- Departments make laws with their own concerns, without consulting others; we need a unified law which goes beyond departmental concerns only.
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