Protection of plant varieties

The link between agriculture and the fulfilment of basic food needs should acquire primacy while introducing intellectual property rights on plant varieties. The most immediate consequence of the relevance of fundamental rights and basic needs is the need to circumscribe commercial activity so that it does not impact on food security at the individual level.

The present Bill does not consider the impact of the strengthening of patent rights on the realisation of fundamental rights such as the right to food and health, despite their close links.

This is the second part of a four part series on biodiversity, patents and plant variety bills that reflect India's obligations under the TRIPS and Biodiversity Convention.

THE PROTECTION of Plant Varieties and Farmers' Rights Bill constitutes the Government's response to its obligations under TRIPS concerning plant varieties. It is specifically required by a provision which forces all states to introduce intellectual property rights over plant varieties but allows them to choose the form of protection. The Bill was introduced in December 1999 and referred to a parliamentary committee which submitted its report in August last together with a substantially revised version of the Bill. This Bill should have been adopted by January 1, 2000 according to TRIPS deadlines and is to be considered in priority in the current session.

The Government has chosen not to impose patents over plant varieties but rather to devise its own system of intellectual property rights. Further, it was agreed that the UPOV Convention should not be ratified but that a law suited to the specific conditions of the country should rather be drafted. In its present form, the Bill focuses on the establishment of plant breeders' and farmers' rights. It is striking that the proposed regime for plant breeders' rights largely follows the model provided by the International Convention for the Protection of New Varieties of Plants (UPOV). It introduces rights which are meant to provide incentives for the development of the commercial seed industry. The criteria for registration are thus the same as those found in UPOV, namely novelty, distinctiveness, uniformity and stability. The Bill not only incorporates elements from the 1978 version of UPOV but also includes some from the much more stringent 1991 version, such as the possibility to register essentially derived varieties.

The second main aim of the Bill is to introduce farmers' rights. It is here that the Joint Committee has substantially changed the proposed law. Indeed, the first version only contained a short provision on farmers' rights which did not do justice to the complexity of the issue and was definitely not sufficient to justify the title of the Bill. After a series of hearings, the committee came to the conclusion that the Bill was unbalanced and decided to add a whole chapter on farmers' rights.

In the new version, the Bill seeks to put farmers' rights on a par with breeders' rights. It provides, for instance, that farmers can, like commercial breeders, apply to have a variety registered. Generally, the Bill envisions that farmers should be treated like commercial breeders and should receive the same kind of protection for the varieties they develop. The new provisions are significant in theory because they try to establish farmers' and breeders' rights as equal rights but they are unlikely to have a major impact in practice. This is due to the fact that the Bill accepts the registration criteria of the UPOV convention. These criteria have been developed exclusively with commercial breeders in mind and can generally not be applied for the registration of farmers' varieties since these are unlikely to fulfil all the conditions.

Benefit-sharing

In its 1999 version, the bill tried to compensate the lack of substantive farmers' rights with the introduction of two schemes for channelling to them some financial compensation. The idea behind `benefit-sharing' is that actors who have contributed to the development of a protected variety but cannot claim property rights are awarded monetary compensation instead.

The first scheme allows individuals or organisations to submit claims concerning the contribution they have made to the development of a protected variety. The final decision is taken by the authority established under the Act which determines the amount taking into account the importance of the contribution in the overall development of the variety and its commercial potential. The second benefit-sharing avenue allows an individual or organisation to file a claim on behalf of a village or local community. The claim relates to the contribution that the village or community has made to the evolution of a variety.Benefit- sharing in the plant variety Bill is problematic in several regards. First, it formalises the fact that some actors involved in plant variety management, such as farmers, cannot easily obtain property rights even though the possibility is now open to them in principle. Second, the Bill only conceives benefit- sharing as financial compensation even though other sharing schemes exist. Third, benefit-sharing focuses mainly on the genetic material that has been used in the development of a protected variety. Possible intellectual contributions to the development of a variety are not taken into account.

The Bill in context

It is important to keep in mind that the Bill has only been drafted in response to TRIPS obligations. It is therefore surprising to see that some of the core provisions of the Bill derive directly from an international treaty devised for countries with fundamentally different ground realities. Nothing in TRIPS forces states to adopt or even refer to UPOV.

After the revisions proposed by the committee, the Bill has acquired a much more balanced approach. However, the fact that the criteria for registration of plant varieties are those devised for commercial breeders may not allow farmers to benefit much from the provisions of the Bill. In its current form, it is clearly visible that the chapter on farmers' rights was added as an afterthought to a regime meant to benefit mostly commercial breeders. There is a need to recognise that the variety of actors engaged in agricultural management have rights to their resources or knowledge.

More fundamentally, the link between agriculture and the fulfilment of basic food needs should acquire primacy while introducing intellectual property rights on plant varieties. The most immediate consequence of the relevance of fundamental rights and basic needs is the need to circumscribe commercial activity so that it does not impact on food security at the individual level.

Patents Amendment Bill

The Patents Act of 1970 deals with patents in general and is not specifically related to biological resources. However, it addresses a number of issues that are of relevance in the present context. It rejects, for instance, the patentability of all methods of agriculture and is generally much more restrictive than similar laws in western countries. TRIPS now forces significant alterations to this Act. Thus, where only a product patent could be obtained for no more than seven years for food or medicine related inventions, TRIPS now requires the availability of product and process patents for 20 years.

The Patents (Second Amendment) Bill of 1999 generally seeks to modify the Act to allow compliance with TRIPS. There is not much scope to diverge from the rather precise TRIPS obligations if Parliament wants to avoid further confrontation with the World Trade Organisation (WTO). However, the exceptions contained in TRIPS have not necessarily been used to their full extent. Further, the present Bill does not consider at all the impact of the strengthening of patent rights on the realisation of fundamental rights such as the right to food and health, despite their close links.

With regard to environmental protection, the Bill includes some of the TRIPS exceptions related to environment and health. It also addresses the question of biopiracy by imposing the disclosure of the source and geographical origin of biological material used in a patented invention. Further, non-disclosure of the geographical origin or the anticipation of the invention in local or indigenous knowledge constitute grounds for opposing or revoking a patent.

Philippe Cullet

(The author is with the International Environmental Law Research Centre, Geneva. E-mail: pccullet@vsnl.net)

(To be continued)

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