As the world moves towards a knowledge-driven economy, protection of intellectual property rights has become a key motivator for innovation. Historically, IPR was not important to agriculture – as farming was based on the premise of knowledge sharing. However, the last few decades have witnessed remarkable innovations in agriculture – such as genetically-modified plant varieties, and specialised insecticides for pest control – that have warranted a review of the IPR regime of developing nations so as to foster introduction of innovative agricultural technologies into these countries.
Protection of IPR has the potential to dramatically increase agricultural production. However, in countries such as India, IPR needs to be finely balanced so as to protect the interests of farmers and the food security needs of a billion people. Potential concerns include a number of socio-economic and environmental impacts specifically with regard to loss of bio-diversity and bio-safety. In this context, it is critical to review the IPR framework being followed in India, and develop innovative models that address a larger stakeholder paradigm.
Evolution and Impact of IPR in India
Historically, protection of plant varieties in India through IPR was banned. Until the mid 90s, the Indian Patents Act excluded the patentability of “life forms” including methods of agriculture and horticulture. Further, while allowing “process patents” for substances used as food, it rejected “product patents” for food items. This was intended to foster the availability of essential food items by keeping the prices as low as possible.
The absence of patents in agriculture resulted in low private participation in agricultural research and technology development. As a result, the public sector was the major contributor in agricultural development.
Signing TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement in 1994 triggered significant changes in the IPR related legal framework of the nation. Since then, several legislative and institutional adjustments have been made to protect the intellectual property. Some of the major changes include introduction of the following:
The Geographical Indications of Goods Act, 1999, to preclude misappropriation of traditional knowledge and patenting of products of Indian origin including ‘appellations of origin', such as, Darjeeling Tea and basmati rice, and promoting them in international markets.
The Enactment of Protection of Plant Varieties and Farmers' Rights Act (PPV&FRA), 2001, which has established a unique system by expanding plant variety protection (PVP) to varieties registered by farmers, NGOs and public sector institutions while also protecting the rights of plant breeders.
The Amendment of Patents Act, 1970, in 2005 which has extended patents to innovative products from all industries including agrochemicals, thereby, closing the option of reverse engineering or development of ‘me-too' products thus promoting investment in cutting edge R&D. Strengthening of the IPR regime has significantly improved investment in agricultural technology development. The private sector has not only invested heavily in crop genetic improvement and farm technologies, but has also pursued legal IPR protection under various Acts. For instance, in 2008–09, 64 per cent of the 460 PVP applications received by the PPV&FR Authority were from the private sector. This is also reflected in the fact that, the number of patent applications in India has increased more than eight folds between 2005 and 2009.
Concerns and challenges
Although India has made significant strides towards harmonization of domestic IPR laws with the international system, there are several issues afflicting IPR regime in INDIA. While protection of bio-diversity and farmer rights to use owned seeds remain the greatest concerns, other key challenges for implementation of the regime include:
Legislative gaps: In the current regime, there are no provisions for protection of trade secrets which could be used to protect hybrid plant varieties and to harness the extensive gene pool of India. The amended Patents Act, does not confer data protection and exclusivity once application for patent is filed, thereby, increasing the probability of third-party infringement.
Weak enforceability of IPR: Unlike the US, Europe or Japan, the awareness and understanding of grounds of infringement and exceptions to infringements is poor and vague in India and no time frame is prescribed for legal recourse. In certain forms such as patents, recognition of encroachment as ‘civil and not criminal offense' and pending legal cases are the major deterrents to sound enforceability.
Administrative and affordability issues: Due to deficiencies in the technical and supporting infrastructure, the speed at which an application is granted protection remains extremely slow. Also, the cost of obtaining and enforcing IPR, particularly patents, is high, making them unattractive for small companies, local communities as well as farmers.
Socio-economic concerns: Dominance of developed countries at the technology frontiers has stirred socio-economic concerns due to their inherent capabilities to benefit from an organised IPR system. With six multinationals holding 98 per cent of the global market for patented genetically-modified (GM) crops, 70 per cent of global pesticide market and 63 per cent of patents on staple crops, IPR could lead to consolidation of global seed and agrochemical business, concentrating power in few hands. This could result in royalty payments and restrictive contracts which would in turn increase farm input prices. Also, expansion of GM varieties could endorse dominance of few genotypes, leading to loss of biodiversity and increased susceptibility to pests and diseases.
Misappropriation of traditional knowledge: Acts of ‘bio-piracy' such as patenting of medicinal properties of turmeric and neem in the US - known for centuries in India - have aggravated concerns of misuse of IPR laws.
Solution themes to develop a balanced IPR Regime
While policy makers have efficiently balanced socio-economic concerns with international requirement of IPR till date, some of the key areas that require further improvement to facilitate seamless transfer of technology include:
1. Strengthening institutional mechanisms for protection of IPR – Regulatory, legal and administrative through
Assigning a high priority towards completion of required legislative provisions to harmonise IPR regime with international laws
Simplifying regulatory and administrative procedures for seeking IP protection and defining time frames for the same to reduce lead time
Reinforcing parallel laws supporting IPR regulation to bolster their application and enforcement. For instance, the Seeds Act needs to be fortified for effective implementation of PPV&FR Act, 2001
2. Harnessing IPR linked technical opportunities in Agriculture through -
Judicious application of various forms of IPR by linking protection to commercialisation
Augmenting traditional knowledge digital libraries (TKDL) and documentation of farmers' varieties to give legitimacy and protection to domestic knowledge systems
3. Strengthening public-private R&D interface by -
Adopting mechanisms such as an ‘innovation bill' to enhance public R&D base wherein public researchers, research organisations and universities would be incentivised for commercialisation of their innovation
Competitive funding schemes to encourage links between public and propriety R&D
4. Enhancing IPR literacy by -
Disseminating IPR-related information to all relevant stakeholders – specially the farmers.
To sum up, the current IPR protection framework has the potential to foster introduction of new agricultural technologies that would largely benefit growth in agricultural production. However, there is a need to improve the efficiency of the process and also balance the objective of technological progress with that of social, economic and food security concerns.
This would not only require structural and institutional adjustments in the current IPR framework but would also require development of innovative and out of box IPR protection models that go beyond the TRIPs agreement and effectively address important issues such as protection of farmer's rights and protection of traditional Indian knowledge.
(The writer is Founder, Managing Director & CEO, YES Bank)