FARMERS OR
CORPORATIONS:
Who Does the
Plant Varieties Bill Benefit?
Ashish Kothari
Kalpavriksh - Environmental
Action Group[1]
Introduction: What Should
the Plant Varieties Bill Achieve?
On
December 14, 1999, the Government of India introduced into Parliament the
Protection of Plant Varieties and Farmers' Rights Bill, 1999. Soon after, it
was decided to have this Bill (PPV Bill, for short), examined by a Joint
Committee of Members of Parliament. This Committee, chaired by Sahib Singh
Verma, is currently seeking public inputs to the Bill, and is expected to
finish its task by late February.
The
urgent question before the Committee should be: does the PPV Bill meet the
objectives that the Government claims it will, viz., improve India's food
security by providing incentives for better and stepped up breeding of new crop
varieties? Or does it actually lead the country away from such security?
This
question cannot be answered without recourse to a more fundamental question:
what constitutes a nation's food security? By now, it is clear that a simple
aggregate figure of foodgrains output is not an adequate measure of food
security. We need to know if this food is reaching where it should (especially
to the poor), and if the costs incurred in producing this food are ecologically
and financially sustainable within India's resources. The current models of
agricultural development appear not to meet either of these indicators, even if
they are resulting in higher aggregate foodgrains output. A third or more of the
country's population still does not have enough quality food, or simply enough
food, to eat. And increasingly, it is apparent that the enormous economic
subsidies involved in fertilisers and other inputs, the country-wide
degradation of soils and poisoning of water, the contamination of the food
itself by chemical residues, the debilitating dependence of farmers on
centralised bureaucracies and markets, and the reduction in diversity of seeds,
livestock, and farm practices, are leading us more and more into a dead-end
alley.
National
food security can only be achieved if these issues are addressed. It would of
course be unfair to expect any law to do this by itself, and I do not intend to
take on the PPV Bill on all these counts. However, what is absolutely clear is
that any legislation purporting to ensure "food security" by
providing incentives for greater crop production, must be assessed in terms of
not only whether it will indeed lead to greater production, but also what kind
of crops, on whose lands, and to whose benefit? The production of new
varieties, by the corporate sector, does not necessarily benefit farmers, especially when it ties them up to
increasing dependence on markets and bureaucracies. Privatised intellectual
property rights (IPRs), such as patents and plant breeders' rights, would only
increase this trend, apart from raising ethical issues of IPRs on life forms.
And past experience suggests that varieties developed in the formal sector
often actually displace valuable crop diversity on farmers' fields. All this
leads, in the long run, to greater instability, depedence, and unsustainability
in farmers' lives…and hence in the national agricultual sector as a whole.
The
litmus test then is: does the PPV Bill enable farmers to stand on their own feet (is it
truly a "Farmers' Rights" Bill as it claims?), and the indigenous
seed breeding and production sector to blossom in the service of the farmer and
the nation's consumers? Will it actually lead us to greater food security?
Unfortunately,
despite a number of progressive clauses in the Bill, the answer is a clear NO.
The PPV Bill emerges as a legislation that will end up benefiting the large
seed corporations, some very large farmers, and corporate farming agencies. In
so doing, it will be playing into the hands of those in the international arena
who pushed agreements such as WTO (and in particular, the Trade Related
Intellectual Property Rights (TRIPs) regime). It will do little to facilitate
genuine food security in terms of feeding the poor and ensuring sustainable
agricultural production through protecting the rights of small farmers and the
small-scale seed sector. This is a pity, because India could well exploit
loopholes in TRIPs, and the solid mandate given to it by the international
Convention on Biological Diversity, to push forward a boldly different plant
varieties protection legislation.
It can still do so, if the Joint Parliamentary Committee is appraised of
these issues and willing to take cognizance of them.
Elements of the PPV Bill
Largely
modeled on the 1978 version of the International Convention for the Protection
of New Plant Varieties (UPOV), an agreement signed mostly by the industrial
nations of the world, the PPV contains the following major provisions:
1.
Registration
of new varieties of plants, by their breeders, provided they fulfil the
criteria of novelty, distinctiveness, uniformity, and stability;
2.
Protection
for registered varieties for periods ranging from 15 to 18 years (depending on
the kind of plant variety); this protection would include the exclusive right
to produce, sell, market, distributed, import, or export the variety or its
propagating material, and to license other persons to do the same;
3.
Deposition
of sample seeds or propagating material by the applicant, with the government;
4.
Exclusion
of plant varieties from being registered if such exclusion is necessary for
public purposes, or if the commercial utilisation of such varieties could
threaten human, animal, or plant life or the environment in general; such
exclusion could extend to entire genera/species;
5.
Rights
of researchers to use the registered variety for experimentation;
6.
Rights
of farmers to save, use, exchange, share, or sell the produce of, any
registered variety (except selling for the purpose of reproduction under
commercial marketing arrangements);
7.
Revocation
of protection if it is found that the breeder supplied incorrect or inadequate
information at the time of application, or did not provide the necessary seeds
or propagating material, or if the registration was found not to be in public
interest;
8.
Compulsory
licensing in cases where the breeder is not making the seed publicly available
in reasonable price or quantity or regularity;
9.
Benefit-sharing
arrangements with those including farmers', claiming to have contributed
genetic material to the registered variety;
10.
Rights
of communities and persons to claim significant contribution to a registered
variety, and to receive compensation if such a claim is upheld;
11.
A
National Gene Fund built up with royalty fees from plant variety right holders,
national and international contributions, etc., meant to be used for
benefit-sharing and compensation to farming communities, and for conservation
and sustainable use of genetic resources.
Under
the PPV Bill, a Plant Varieties and Farmers' Rights Protection Authority will
be established. This will be chaired by a person of eminence in agriculture,
and consist of various government officials from relevant ministries and
agencies. Committees of experts can be appointed by this Authority. The PPV
Bill also sets up a Plant Varieties Registry, with a Registrar General and
other Registrars to process applications. The Registry will maintain a National
Register of Plant Varieties, which are given protection under the PPV Bill.
Violations
will invite penalties ranging from 3 months to 2 years imprisonment, and Rs.
50,000 to Rs. 10 lakhs fine.
Does the PPV Bill Protect
Farmers or Breeders?
Though
its name explicitly gives it a claim to protect farmers' rights, the PPV Bill
is in actuality much more weighed in favour of the formal sector plant breeder.
Even in the latter category, I will argue below that the Bill will work to the
advantage of the private corporate sector more than public sector breeders.
The
PPV Bill is meant primarily to provide incentives to the seed breeding sector,
in particular financial incentives. This, it is hoped, will lead to continued
and increased investment into plant breeding, and to innovations in this field.
Indirectly, the agricultural establishment hopes, this will benefit farmers, as
they will get access to 'improved' varieties.
The
Background Note circulated to the Joint Committee members with the PPV Bill,
itself starts off on a dubious note. It recognises that the public sector
breeding programmes are not meeting the increasing needs of India's farmers,
and hence the growing importance of private (read: corporate) sector breeding.
Unfortunately, this entirely leaves out the critical importance of a third
sector…farmers themselves! Considering that for thousands of years, our
farmers have selected, bred, and used hundreds of thousands of varieties of
several hundred crop species, it is amazing that the government does not even
think it fit to mention them as possible breeders. This continues the
bias, built into agricultural planning for decades, against the 'informal'
sector, and perpetuates the image of farmers as simply supplying the 'raw
material' that the formal sector breeders use to develop new varieties.
This
bias permeates the PPV Bill, though there are some well-meaning attempts at
reducing it. Consider the following:
1.
Does the PPV Authority
include farmer representatives?: The Authority set up by the PPV Bill has no farmers'
representative on it, not even NGO representatives; it is made up entirely of
government officials…with the possible exception of the Chairperson (Section
3);
2.
Can farmers' varieties get
protection?: In
theory (and according to the Background Note given to the Joint Committee,
though not explicitly mentioned in the Bill), farmers are included in the
category of 'breeders', and can apply for protection to varieties that they
would have developed. However, given the stringent requirements for obtaining
protection under the PPV Bill (the Novelty, Distinctiveness, Uniformity, and
Stability criteria, Section 14), requirements that are expensive to fulfill and
technologically easier to achieve in the laboratory or highly controlled
conditions that formal sector breeders have access to, it is unlikely that
farmers' varieties will be able to receive protection. This could only happen
if the state were to assist in carrying out the tests to prove these
characteristics, on behalf of farmers…rather unlikely in the current situation!
Even the provision to register "extant" varieties, i.e. those which
are already in existence or in public knowledge, would not help, as these too
have to fulfill the criteria of Distinctiveness, Uniformity, and Stability. In
any case, given the nature of our society, no more than a handful of farmers
are likely to be able to approach the PPV Authority without the active aid of
NGOs or sensitive government officials, and there is nothing in the Bill that
mandates the government to reach out to them. Finally, the Bill only talks of
"persons" as being applicants for protection, and it is not clear
whether communities as a whole fit this description.
3.
Has farmer permission been
taken?: India
is now legally obliged, under the Convention on Biological Diversity (CBD), to
ensure that local community consent is sought, and equitable benefit-sharing
arrangements are made with it, before wider use is made of its knowledge and
practices. Yet in the application requirements for those wanting plant variety
protection in the PPV Bill (Sections 17/18), there is no mention of the
applicant having to show whether his/her variety is based on farmers'
knowledge, or whether permission has been taken from the farmer/community for
the use of such knowledge or their varieties, and finally whether an
appropriate benefit-sharing arrangement has been worked out with such farmer/
community. This is a violation of India's commitments under the CBD.
Even in the matter of
approving a particular name ("denomination") for a variety (Section
16), the Authority does not have the mandate to reject a breeder's name even if
it is already in use by a farming community, though this could conceivably be
developed as a specific regulation under Section 16(2,3). There is no penalty
associated with 'stealing' such a name (Sections 61-64).
Section 48 of the PPV Bill
enables communities to make claims if they believe they have contributed to the
development of a variety for which protection has been given. But the onus to
prove this is on these communities. How many farmers will even get to know
about what has been protected, whether their varieties or knowledge has been
used or not, etc? The PPV Bill does make it mandatory for applications to be
advertised (Section 17), but again, will such advertisements even reach the
concerned rural populations? The only consolation is that this right to make
claims on behalf of aggrieved farmers has also been given to NGOs or others,
which could in theory help in greater outreach.
Even if some farmers or
others acting on their behalf do manage to make such a claim, and the claim is
upheld, their only consolation will be some compensation that they might get, at the discretion of the
Authority (Section 48(3)). This too, indirectly, as the compensation amount
will first be deposited into the Gene Fund, and there is no provision to ensure
that it thereafter comes to the claimant! But worse, there is no clause to
revoke the protection if it is found that the applicant has unfairly
appropriated farmer/community resources or knowledge…indeed such a provision
cannot be made since, as stated above, the PPV Bill has no provisions for prior
consent of farmers.
4.
Is the provision on farmers'
rights adequate?: The PPV Bill's single paragraph on farmers' rights (Section 31)
pertains to the ability to save, use, exchange, share and sell protected
varieties. While this is in itself commendable (given especially the increasing
international trend to exclude even such basic rights), it falls far short of
the much fuller definition of farmers' rights that has been proposed by
communities and NGOs across the world. This larger definition includes the
right to protect community or individual farmer varieties and knowledge from
being used without consent and benefit-sharing arrangements, as also to have guaranteed
access to the biological, cultural, and economic resources that allow farmers
to innovate and sustainably use crops.
5.
Is the benefit-sharing
provision adequate?: To its credit, the Government has introduced a provision (Section 26)
for benefit-sharing arrangements with farmers/communities in case claims are
made for this with regard to a registered variety. However, once again, the
onus is on the claimant to prove a contribution, and the Authority is under no
obligation to make its own enquiries about whether what contributions may have
gone into a registered variety. Moreover, claims can only be made for
contributions of genetic material, and not for knowledge…a rather strange
oversight considering that information and knowledge of local communities is
such a common ingredient in breeders' work. Nor is there any requirement for
this benefit-sharing arrangement to be "equitable", however that is
defined, though the Statement of Objects and Reasons attached with the PPV Bill
states that this will be the case. Finally, the benefit-sharing amount, once
determined, will be deposited into the Gene Fund, rather than given directly to
the claimant, the reasoning behind which is unclear.
6.
Will the national
registration process cover farmers' varieties?: The PPV Bill's registration
process, unfortunately, is open only to varieties that get protection under the
Act. Farmers will not be able to register their varieties in it. NGOs have for
many years been demanding some such registration process, so that there is proof
of 'prior existence' of a variety and its related knowledge, making it easier
to contest biopiracy. The PPV Bill makes only one possible provision for this:
one of the duties it gives to the PPV Authority is to take measures for
"compulsory cataloguing facilities for all varieties of plants, seeds, and
germplasm". In theory, this could be used to register farmers' varieties,
but the Bill does not provide any legal protection to such a catalogue against
piracy and misuse.
The
above elements make it clear that, despite undoubtedly progressive elements
such as community rights to claim compensation, benefit-sharing arrangements,
compulsory licensing under certain conditions, and farmers' rights to continue
using protected varieties, the PPV Bill is not really a "farmers' rights
protection" bill.
Does the PPV Bill Protect
the Small Seed Sector?
Even
within the formal seed sector, the PPV Bill is likely to benefit large private
corporate houses more than the public sector or the small-scale seed industry.
Public sector seed breeding has been the backbone of official agricultural
programmes. Though these programmes have suffered from the bias against the
farmer being at the centre of research and development, pointed out above, they
have at least been motivated by public needs, including those of marginal
farming areas. Secondly, reaching seeds to farmers has been done mainly by
small-scale seed industries. The PPV Bill not only acknowledges a move away
from this, but in fact encourages it. The Background Note with the Bill states
that the public research system will have to be made more
"self-sustainable" due to "decreasing levels of government
support" (itself an outcome of so-called structural adjustment programmes
with IMF, World Bank and other agencies requiring a cut in government
expenditure, never mind its social consequences). Doing this through
intellectual property rights is a sure-fire way of increasing the role of the
private sector, both in itself and in funding research within public institutions
such as our agricultural universities. Partly due to the PPV Bill, and partly
due to other trends, we will see more and more corporate interests showing up
in our seed breeding programme. A serious question that we must ask is: will
this really benefit our farming populations, especially those in so-called
'marginal' areas where profit margins for private companies may be extremely
low if not negative? And if the small-scale seed sector has to pay increasing
amounts of royalties to the big breeders, will they be able to cope with the
competition from big seed industries, including the multinationals that are
coming into India?
Perhaps
one of the major thrusts behind the PPV Bill is stated in its Statement of
Objects and Reasons: "in the absence of plant breeders' rights, foreign
companies would be hesitant to organise buy-back production of seeds in India
for export to their countries for fear of unauthorised use of their genetic
material." Two other stated reasons along with this one --- "better
and mission-oriented research for development of varieties that are fully
suited to a given agro-climatic region", and protection of Indian
breeders' varieties while giving them access to foreign germplasm --- hardly
cut ice. As argued above, many agro-climatic regions are hardly likely to be
served by a system increasingly tending towards privatised, market-oriented
R&D. As for protecting Indian varieties, what I am going to suggest below
as a truly sui generis system may
have a better chance of achieving this without the pitfalls of a
breeder-oriented IPR system.
Will the PPV Bill Protect
the Environment and Biodiversity?
Progressive
clauses in the PPV Bill give to the government the right to refuse or revoke
registration of a variety that may in some way be contrary to "public
interest", or whose commercial exploitation may be harmful to
human/animal/plant health and the environment. These provisions stem directly
from similar clauses in TRIPs. However, will these really be effective?
In
extreme cases, they may be. For instance, the PPV Bill prohibits registration
of varieties which uses genes involving the terminator technology (which
renders a crop sterile after the first generation), an undoubtedly laudable
provision. However, there are many other ways in which registered varieties, in
particular those produced through the new biotechnologies of genetic
manipulation, may be harmful. Unfortunately, the PPV Bill has no provision to
ensure that a thorough Environmental Impact Assessment (EIA) is done of the
variety proposed for registration. Perhaps an existing notification regarding
the use of Genetically Modified Organisms will help in this, but this does not
cover the problem of new varieties displacing existing crop diversity and
narrowing the genetic base. Without and EIA requirement, how will the Authority
know whether the variety's commercial exploitation could lead to such harm?
In
a way, all seeds on which IPRs are obtained should be suspect. For obtaining
protection under the PPV Bill will be an expensive proposition, and the holders
will surely want to push their registered varieties into as large a farming
population as possible. What is happening already with the Green Revolution
thrust --- the pushing out of a large diversity of indigenous crop varieties
that farmers had been growing and their replacement by a handful of formal
sector generated varieties --- will only increase with the introduction of
plant breeders' rights. In this sense, the government's following argument
(made in the Background Note) is rather suspect: that the PPV Bill will lead to
"varieties from different geographical areas and growing in different
timeframes will be brought on a common platform for breeding purposes…(and)
result in new genetic combinations…The fear of narrowing the genetic base can
be allayed by in situ preservation of
plant varieties" It is precisely such in
situ (on farmers' fields) preservation and use of plant varieties that will
suffer with the introduction of privatised IPRs.
Why UPOV?
The
PPV Bill is explicitly modeled after the UPOV regime of plant breeders' rights.
This itself reveals its bias, for UPOV was and remains explicitly oriented
towards protecting formal sector plant breeders, not farmers. While the
1978 version of this agreement provides limited exemption to farmers and
researchers, the 1991 amended version has narrowed this down, allowing
countries to remove such exemptions if they so want. A number of countries have
already done eliminated farmers' rights or are in the process of doing so.
The
PPV Bill has explicit provisions to guard against such a move, such as farmers'
rights, compulsory licensing, and so on. The government has clearly stated, in
the Background Note, that what is an "effective" system of plant
variety protection (as required by TRIPs) should be determined nationally, not
in international forums. If such provisions are retained, the danger of
farmers' rights getting further compromised are remote. But the fear remains:
once on this path of privatised IPRs, what is to stop future governments from
further giving in to international demands and the pressure of the big seed
industry, and applying the 1991 model of UPOV?
It
is, therefore, objectionable that India should have gone into a UPOV kind of
legislation in the first place. There
was no need for this, even under the TRIPs clauses. TRIPs clearly allows
each country to have its own sui generis
system of the plant variety protection; India could well have gone into a
radical alternative system that protected the rights of its farmers, and
preserved our tradition of not accepting
privatised IPRs on life forms and related knowledge. Such a system is sketched
out below…it may even be possible to evolve this through appropriate
modifications in the PPV Bill.
An Alternative Sui Generis System
Any
system of plant variety protection that aims to achieve food security and
enhancement of the genetic base, and other laudable objectives claimed for the
PPV Bill, should start with explicit provisions aimed at farmers and farming
communities. Formal sector breeder rights should only come as a corollary to
this, and should not be oriented towards monopolistic, privatised IPRs. At the
very least, such a legislation would have the following provisions:
1.
Legal
recognition to the plant varieties, practices, and related knowledge evolved
and being grown/conserved by farmers and farming communities across India;
2.
Protection
to these varieties, practices and knowledge, to prevent them from being taken
away and utilised without the prior informed consent of their holders;
3.
A
local, state-level, and national registration system for such varieties,
practices, and knowledge, to ensure protection from piracy;
4.
Representation
of farmer communities on planning and implementation bodies relating to plant
varieties and agriculture;
5.
Appropriate
and equitable benefit-sharing arrangements with farmers and communities whose
varieties, practices and/or knowledge is used for wider commercial or
scientific purposes (such benefit-sharing need not be only financial, it could
also include technology transfers, social recognition, etc.);
6.
Incentives
to formal sector breeders to develop varieties that are of use to farming
communities, and protection to these varieties without giving monopolistic
control over them. These incentives should encourage participatory breeding
with farmers, and give a special focus
to so-called 'marginal' areas;
7.
A
system of environmental impact assessment for all new varieties being
introduced from laboratory or controlled conditions, to ensure that they do not
cause genetic erosion by displacing extant varieties or in other ways, or do
not threaten human or animal or plant health;
While
a comprehensive new legislation would be ideal, at the very least the PPV Bill
needs to be modified to integrate the above provisions, in the following ways:
1.
Adding
farmers' representatives and NGO members in the Authority and other
institutional bodies set up under the Bill;
2.
Making
it explicit that farmers are also breeders and researchers in their own rights;
3.
Building
in a more comprehensive definition of Farmers Rights, which includes the right
to protect their varieties and knowledge, and to continue having access to the
biological material and other conditions which are important inputs into their
farming system;
4.
Making
mandatory the consent of, and appropriate benefit-sharing arrangements with,
farmers and communities whose varieties and knowledge are accessed in formal
sector breeding (and not leaving the onus on farmers to claim such
benefit-sharing);
5.
Putting
the onus on formal sector breeders to prove that they have not wrongly or
unfairly appropriated farmers' varieties and knowledge in developing a new
variety, if such complaints are made;
6.
Mandating
the Authority to protect farmers against piracy of their varieties and
knowledge;
7.
Making
the use of farmers' varieties and knowledge, without prior informed consent, a
ground for opposition to a variety; and making it mandatory to revoke
protection to any variety which has been developed in violation of Farmers'
Rights as defined above;
8.
Making
the use of existing farmers' 'denominations' by plant breeders, without seeking
the permission of these farmers, as a violation of Farmers' Rights;
9.
Providing
legal status to local, state, and national level registers of farmers'
varieties and knowledge, and not insisting on expensive-to-prove
characteristics to accept such varieties for registration; where
characteristics of stability etc. have to be demonstrated, the state should be
obliged to help farmers in conducting the necessary tests;
10.
Making
explicit provisions for the functioning of the National Gene Fund, e.g.
prioritising allocations from it to farmers and communities that conserve and
innovate on plant genetic resources; and ensuring that decision-making
regarding its utilisation involves representatives of farmer communities;
11.
Making
compulsory some kind of benefit-sharing arrangements in all further use of
seeds and other genetic material already stored in ex situ gene banks (e.g. that of the National Bureau of Plant
Genetic Resources). In the case of varieties whose origin can be traced to
particular farmers or communities, such benefits must go to them; whereas in
the case of other varieties, the benefits can go the National Gene Fund;
12.
Facilitating
a range of incentive measures for farmers and local communities to revive, or
continue, practices and knowledge systems which promote the conservation and
sustainable use of biological diversity, e.g. linkages with consumers wanting
organic and diverse foods;
13.
Making
environmental impact assessments mandatory for any new variety for which a
claim is made, to ensure that it does not in any way undermine the maintenance
of biological diversity in farmers' fields, or in other ways harm human/animal/plant
health;
14.
Reinserting
the provision for an Appellate Tribunal, to settle disputes regarding plant
variety protection, in particular to hear from aggrieved farmers and
communities (such a Tribunal was envisaged in an earlier version of the PPV Bill,
but has been subsequently dropped);
15.
Providing
to formal sector breeders incentives and protection, and measures to ensure
that they are rewarded and facilitated, but ensuring that compulsory licensing
is done for every variety that is given protection (a partial step towards this
already exists in Section 45(1) of the PPV Bill), so as to guard against
monopolies and enable the small-scale seed sector to benefit.
It
is interesting that simultaneous to the development of the PPV Bill, the
Government of India has developed a draft Biological Diversity Act that
contains provisions for protecting indigenous knowledge and agro-biodiversity.
A comparision of the two bills shows certain basic contradictions, that need to
be resolved. As currently drafted, the BDA is a much stronger vehicle to
achieving environmental sustainability, social justice, and food security, than
is the PPV Bill. But the latter too can be made to achieve these goals, if it
puts the interests of the majority of India's farmers, and the conservation of
the biological diversity which is the basis for all agriculture, as its core
thrusts.
India
has the option of developing a truly sui
generis law which suits its social and ecological conditions. What is
stopping us from doing so?
----------------------------------------------------------------
Contact:
Ashish Kothari
Kalpavriksh
Aptmt.
5, Shree Dutta Krupa, 908 Deccan Gymkhana, Pune 411004
Tel/fax:
91-20-5654239; Email: [email protected]
[1] The author has worked on biodiversity issues for several years, and is currently Coordinator of the Technical and Policy Core Group to formulate the Government of India's National Biodiversity Strategy and Action Plan. He is a founder-member of Kalpavriksh, a 20 year old environmental action group which has focused on issues of conservation and development, including policy matters related to wild and agricultural biodiversity.