The way it always was

In August 2001, India’s Parliament passed the Plant Variety Protection and Farmers’ Rights Act. This is the “sui generis” legislation of India, defining intellectual property rights (IPRs) according to Indian standards rather than adopting a model from elsewhere in the world.

Before the Act was passed, there was a long and heated debate. As a WTO member, India had to comply with TRIPS, the agreement on Trade Related Intellectual Property Rights. Among other things, TRIPS applies to plant variety protection (PVP). WTO members must protect IPRs either by patents, a sui generis system or a combination of the two.

Initially, India’s government leaned towards patents. It launched a large-scale public relations campaign propagating seed patenting as the harbinger of prosperity for rural India. But NGOs like Gene Campaign intervened. An important early event was a farmers’ rally in Delhi. Its single point message was: “No patents on seeds”. The event was organised by Gene Campaign and three farmer organisations, showing the government the strength of the opposition.

In the end, the government was persuaded to opt for a sui generis legislation. The WTO offers no references to existing models of plant breeders’ rights (PBR). Therefore, developing countries tend to draft their PVP legislation according to the model of ­UPOV (International Union for the Protection of New Varieties of Plants), partly because of the pressure of the seed corporations and partly due to lack of alternatives.

UPOV provides rights to plant breeders, but does not recognise farmers’ rights. Gene Campaign’s position was clear from the start: if India was to grant PBR, it would have to grant strong rights to farmers too. Gene Campaign insisted that the farming community had to retain control over seed production and use. It would not do to merely allow farmers to save seed from the harvest to sow for the next crop (“plant back rights”).

Plant back rights are called “farmer’s privilege” in many countries. This right, however, is merely an exemption from a right granted to the plant breeder. This kind of exemption is in force in different degrees in various ­UPOV member countries. But after the last amendment in 1991, such exemptions were made subject to the breeder’s consent. Countries that have since joined UPOV have to comply with standards of 1991, whereas those that joined earlier are bound by the less stringent version of 1978.

Selling seed

Gene Campaign always demanded
– that Indian law include clearly defined farmers’ rights,
– that landraces not be used by commercial breeders unless farmers give their consent and are financially rewarded, and
– that farmers be entitled to compensation should poor-quality commercial seeds lead to crop failure.
The most important issue, however, is the farmers’ right to sell seed to other farmers, even if a variety is registered under PBR. This is key to ensuring that farmers stay relevant as seed producers. Not surprisingly, the right to sell seed was most fiercely contested until the law was finally passed.

The seed industry opposed this right. After the patent option fell through, the industry wanted strong UPOV-style PBR in India. Business leaders managed to persuade some government officials, including senior scientists of ICAR (the Indian Council of Agricultural Research) and top bureaucrats at the Agriculture Ministry. The idea was to allow farmers to save, sow and exchange seed, but not to sell seed of protected varieties.

It took seven years of civil-society campaigns and the intervention of two Parliamentary Committees to establish comprehensive farmers’ rights, including the sale of seed, though not under the registered brand name. Breeders thus stay in control of large scale commercial marketing, while farmers have the right to sell seed and mutually support one another the way they always have at the local level.

Generally speaking, there are three focal points to farmers’ rights:
– PBR should not hinder the traditional right of farmers to save, exchange and sell seeds of all varieties that they grow.
– Protection should also be given to landraces bred by farmers and not only to varieties produced by commercial breeders.
– The regime should reward farmers for their contributions to conserving and enhancing plant ­genetic resources, which commercial breeders need in ­order to develop new crop varieties.

Recognising the contribution of farming communities of the developing world to plant genetic ­resources, the Food and Agriculture Organisation (FAO) introduced the concept of farmers’ rights in 1989 in its Undertaking on Plant Genetics Resources. In November 2001, the International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) was adopted (see essay by Regine Andersen, p. 147).

The Treaty recognises the rights of farmers to save and use, exchange and sell farm-saved seeds or propagating material. There is, however, no international agreement on the design and implementation of farmers’ rights. That responsibility is left to individual countries.

Indian perspectives

India is the birthplace of crops such as rice, millets, red gram, moth bean, jute, pepper, cardamom, many vegetables and fruits. Over millennia, rural and tribal communities identified plants from the wild and developed them into food and cash crops. The result is the cereals, legumes, spices and vegetable species we know today. Farmers incrementally improved these varieties over time.

India’s sui generis law recognises farmers not just as cultivators but also as agricultural gene pool conservers and breeders of several successful varieties (see box). The rights of rural communities are acknowledged as well.

To understand the importance of Indian farmers’ right to sell seed, one must consider the context of seed production in this country. The farming community is the largest seed producer. Until recently, it provided 85 % of the country’s annual requirement of over 6 million tons.

Denying farmers the right to sell seed would have resulted in a substantial loss of rural incomes. In addition, the farmer would lose self reliance in seed and become dependent on outside seed suppliers. In ­Europe, the US, Canada, Australia, New Zealand, Japan and to a lesser extent South Korea and some Latin American countries, the largest seed suppliers are agro-chemical multinationals that have turned into “life science” corporations.

These industry giants have taken control of the international seed market by buying up all smaller seed companies. That strategy, however, would not have worked in India. Since there are not enough large seed corporations and farmers themselves are not a purchasable company, multinational corporations could only gain control of the Indian market if farmers were denied the right to sell seed. That is why there was such heated debate over farmers’ rights. Control over seed production is key to a country’s food independence. A nation that does not produce its own seed – and food – is not secure.

Protection for rural communities

India’s sui generis law not only allows farmers to sell unbranded seed of protected varieties, it protects their rights in other ways too. It acknowledges the role of rural communities as contributors to breeding landraces, which are essential for the creation of commercially valuable new varieties. Breeders who want to use landraces to create what is legally called an “essentially derived variety” (EDV) need the permission of the farmers affected.

EDVs are basically the same as the parent variety except for limited, specific changes. They virtually retain the original genetic structure. Most genetically modified (GM) varieties are EDVs. For example, Bt cotton, Bt corn or any other Bt crop are varieties identical to their parents except that they contain a bacterial gene from the Bacillus thuringiensis.

The Indian law has provisions for benefit-sharing when farmer varieties are used in breeding. A share of profits made from new varieties is required to be paid into the National Gene Fund. For this to happen, farmers’ landraces need to be registered. The Indian law allows any person, governmental or non-­governmental agency to register a community’s claim and have it recorded at an official centre.

Farmers’ rights are also protected in the so-called “passport data”, which people have to submit when applying for a breeders’ certificate. Passport data contain a host of information, including the parentage of the new variety and the names and locations of landraces used. Breeders certificates will be cancelled if such information is found faulty.

Farmers’ rights according to Indian law also prohibit breeders from using sterile seed technologies. Breeders have to submit an affidavit that their variety does not contain Gene Use Restricting Technology (GURT or terminator technology).

Moreover, farmers are exempt from paying fees if they wish to examine PBR-related documents and papers or receive copies of rules and decisions made by various authorities. Fees, however, are applicable to everyone else. Finally, the law states that farmers cannot be prosecuted for infringement of rights specified in the Act if they can prove in court that they were unaware of the existence of that rule. For example, farmers are protected from punishment if they can prove that they only accidentally sold seed under a breeder’s registered name.