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Move in join UPOV — Farmers' rights in jeopardy

B. J. Krishnan

The move to join the UPOV is anti-farmer as, among other disadvantages, it restricts his right to save seeds to replant, a practice common among most Indian farmers.

THE recent green signal from the Union Cabinet to the Agriculture Ministry proposal to join the International Union for the Protection of New Varieties of Plants (UPOV) comes as a rude shock and surprise. Shock because it will neutralise some or the recent positive initiatives of the government and surprise because it is unwarranted.

It all started with the coming into being of the World Trade Organisation (WTO) in January 1995. As a member of the WTO, India was required to provide under Article 27.3 (b) of the Trade Related Aspects of the Intellectual Property Systems (TRIPS) for the protection of the plant verities by patents, or by an effective sui generis system (the only one of its kind). Since UPOV was in place, it was assumed that a sui generis system has to be in conformity with the convention.

Set up in 1961 by the multinational corporate seed sector, UPOV seeks to protect and strengthen research in plant genetics. Its primary aim is to promote the plant breeder's rights and privileges. By its very nature UPOV is intended to preserve and enlarge the interest of multinational seed corporations and the scientists/plant breeders who work for them.

UPOV does not recognise the notion of prior knowledge of the farming community and consequently takes no notice of the farmers' right to the benefits flowing out of such knowledge.

On the other hand, UPOV has the scope and potential to restrict the age-old traditional right of the farmer to "plant back seeds". Restricting this right will be disastrous since 75 per cent of the Indian farming community saves seeds to replant. UPOV openly declares that concern of farmers' rights is the business of Food and Agricultural Organisation (FAO) and not of UPOV. Its logic is simple: The prey does not seek redress from the hunter.

The FAO established the Global System in 1983 to co-ordinate the conservation and use of plant genetic resources at molecular, population, species and ecosystem levels. Its primary objective was food and agricultural production. As many as 140 nations participated in the FAO's Global System which had two institutional components — the Commission on Plant Genetic Reforms (CPGR) and the International Undertaking on Plant Genetic Reforms (IUPGR).

The CPGR, which has 123 states on its rolls, is an inter-governmental forum of donors and users of plant genetic resources, technology and goods. The IUPGR is an agreement (non-binding) to ensure the exploration, collection, conservation, evaluation, utilisation and availability of plant genetic resources of present or future economic importance.

The International Fund for Plant Genetic Resources (IFPGR) of IUPGR (envisaged in Resolution 3/91, Annexure III-1991) recognises the farmers' rights and also offers to create the means to implement the concept of farmers' rights. The 1UPGR is premised on the principle that plant genetic resources are mankind's natural heritage and consequently should be available without any restrictions (Article 1). There is a close and positive link between the FAO's Global System and the Convention on Biological Diversity (CBD).

Adopted at the Earth Conference (Rio, 1992), the CBD is a legally binding international environmental law. India has ratified the convention and therefore the CBD's provisions are binding on the country. The Conference for Adoption of the agreed final text of CBD — the Nairobi Final Act — adopted a resolution recognising the need to resolve the outstanding issues of farmers within the FAO's Global System. This was accepted by the CPGR in April 1993, which in turn was finally approved by the 27th FAO Conference in 1993.

The 27th FAO Conference recommended conveying inter-governmental negotiations to harmonise IUPGR with the CBD in the context of realising the farmers' rights. Therefore, it is possible, if the government so decides, to convert the farmers' right into a legally binding instrument which could, in turn, become a protocol to the CBD. And there are safeguards within the CBD too.

The CBD mandates that benefits arising from the utilisation of knowledge and practices that are relevant for conservation and sustainable use of biological diversity should be equitably shared with the communities concerned — Article 8(j). This includes the contribution of the farming community to the critical foundational knowledge of agricultural biodiversity that led to development of new plant varieties.

Therefore, any patent regime or allied process relating to biological diversity, including agricultural biodiversity, should enlarge and promote the CBD objectives. UPOV represents, as pointed earlier, just the opposite; it completely negates rights of the farming community.

It was in such a scenario and context that New Delhi was required under the TRIPS-WTO process to provide for protection of plant varieties either under an existing patent scheme like UPOV or under a sui generis system. As UPOV was in place and operational, the Government was initially inclined to joining it.

An alert civil society quickly pointed out the adverse impact of UPOV on the farming community if India were to join it. Instead, it emphasised the need to develop a sui generis system that would strive to balance the need for stimulation and incentives to research and development with the welfare of the farmers. It is in this context that various governments at the Centre during 1994-2001 tried hammering out a comprehensive legislation that would balance the needs and demands of breeders/scientists and farming communities. After a long gestation period the Plant Variety Protection and Farmers Rights Act (PVPFR) was enacted by Parliament.

The Plant Variety Protection and Farmers' Rights Act 2002 was formulated under the sui generis option. The PVPFR Act recognises the farmers' rights. Perhaps for the first time in the legislative history of the country, the farmer's right is recognised in an enactment. The Act goes beyond the farmer's right to save seeds and replant.

Under sub clauses (iv) of Section 39 of the PVPFR Act, among other things, the farmer "...shall be deemed to be entitled to save, use, sow, exchange, share or sell his farm products including the seed of a variety protected under this Act in the same manner, as he was entitled before the coming into force of this Act".

The PVPFR Act clearly recognises the rights of the farmers as conservators, breeders and cultivators. The proposed Plant Varieties Protection Authority (PVPA), under the Act, is obliged to register new strains of plant varieties developed by the farmers alongside the professional breeder. The PVPA is also required to ensure equitable benefit sharing with the farmers.

The PVPFR is broadly compliant, as it should be, with the FAO Global System and the CBD on the critical issue of the farmers' rights. The enactment was hailed by the civil society as a milestone in the long journey in the recognition of the farmers' rights in the Indian context.

The Union Cabinet's recent decision to join UPOV, after enacting the PVPFR Act, will undo all the expectant benefits and will be detrimental to the interest of the farming community.

UPOV and the PVPFR cannot co-exist as they represent two irreconcilable viewpoints. Accession to UPOV demands that India have a pro-breeder and pro-patent plant varieties protection scheme. The present pro-farmer PVPFR Act will not be acceptable to UPOV. The farmers' rights are, once again, in jeopardy. The Indian farmer is back to square one.

(The author is a member of the Commission on Environmental Law of the International Union for Conservation of Nature.)

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