A critical analysis and comparison of the present national legislations which govern the transfer, sale and usage of seeds and bestows proprietary rights on plant varieties in India with the existing international regime in this regard.
In traditional Indian agriculture the seed is the source of life (Navdanya organization, 1998). It is both the source of grain, and all future seeds. The seed is a free resource which is saved and exchanged. A seed showcasing and containing specific beneficial/useful characteristics is made available only after it has been nurtured and developed over generations by careful selection and saving methods and is therefore integral to the value system and culture of the community that grows it. These seeds have over the years acclimatized to the environment they are grown in and the neighbouring flora and fauna and are resistant to drought, floods and other such natural variations. This delicate balance between the seed and the outside environ has been nurtured, protected and developed over the years by farmer and tribal communities of India. Traditional/indigenous knowledge which is passed from generation to generation, freely exchanged between neighbours, friends and foes and frequently tested by daily usage and trial and error is key to squeezing out a livelihood by cultivating these seeds for all these communities. Generations of strife and negotiating with the nature while understanding the importance of not playing god came to an end when science found ways to breed seed in such transformational manner that it did not remain sustainable or suitable for the environment or the farmers that were using it. This calamity did not stop here there was an strong attempt by the monstrously huge and highly organised seed industry to impose this on all the farmers of the developing countries in the name of higher yield, better crops and more pest resistance.
It is relevant to know that indigenous/traditional knowledge in regard to agriculture in the developing countries has been plenty and hugely unprotected and undocumented. Indigenous knowledge has two powerful advantages over scientific knowledge – it requires little or no cost to develop, and it is readily available and can be freely distributed. Indigenous knowledge is essentially the accumulated knowledge, skills and technology of the local people derived from the direct interaction they have had with their environment (C, 2009).
Further, agriculture has been one such occupation which has been close to the developing countries. Over the past centuries farmers and cultivators from various tribes and communities indigenous to Asia, South America and Africa have gained a lot of knowledge by years of experimentation and free transfer of knowledge. Specifically, Indian farmers have over the years evolved numerous agricultural practices which have shown to be sustainable and have remarkably increased the output of the field in totality and just the produce one particular crop.
For example, Indian farmers have traditionally grown more than one kind of crop on their fields. The kondhs grow more than 11 kinds of millet on the same farm. Just before the monsoons different seed varieties are sown on the same field. These are a combination of niger (an oilseed), sorghum, millet varieties like finger, foxtail, pearl, pigeon pea and horse gram along with creeper beans. (Jena, 2012) According to leading Indian agro-scientist M.S. Swaminathan, mixed cropping – that involves several cereals, pulses, oilseeds, vegetable and fodder crops – retards buildup of insect pests (Jena, 2012).
What is also interesting is that it has always been the women folk who have played a role in preserving the seeds. It has been estimated that 60-70% of food grains presently in India is stored at home level in indigenous structures ranging from bamboo baskets to mud structures, gunny bags and moderns bins (C, 2009). From years farmers and cultivators have been breeding, selecting and storing seeds. But the onset of science has changed a few things
Now, breeding can be done in three ways: 1) in an open pollinated environment, 2) through hybrid cross, and 3) through genetic modification. I think it is important to briefly understand these different kinds of breeding to understand how the rights of traditional farmers and science driven breeders are conflicting.
Open Pollinated Seeds
Open pollinated seeds are seeds that are produced from natural random open pollination by birds or insects, resulting in plants that are naturally varied. Open pollinated seed saving is the oldest of the three methods of producing seeds. Farmers and cultivators in India have been carefully selecting open pollinated seed varieties that have beneficial traits (like drought resistant, pest resistant or better flavour).
In order to keep a variety similar to the original strain the cultivator usually keeps it isolated from the other varieties. And seeds from the best plant sin the patch are then selected are stored and planted in the next farming season. This is how most of the sweet, juicy large fruits we enjoy today were bred and selected over many generations from their bitter, small and barely edible ancestors (Small footprint family, 2009). Farmers’ varieties are bred for quality, taste, nutrition, resilience and diversity. Therefore, in the face of climate change they are able to adapt and produce quality grains for the farmers and their communities
Hybrid seeds are first generation seeds produced through cross breeding two genetically dissimilar parents (Navdanya organization, 1998). Hybrids are often spontaneously and randomly created in nature when open pollinated plants are cross pollinated with other related varieties. The technique of hybridization can be done by means of controlled hand-pollination. The advantage of growing hybrid seed compared to inbred, open-pollinated lines comes from the ability to cross the genetic materials of two different, but related plants to produce new, desirable traits that can’t be produced through inbreeding two of the same plants.
For example, most of today’s livestock and companion animals were created through crossing different breeds to create hybrids
But the main difference between an open pollinated and hybrid seed is that one can save open pollinated seeds but hybrid seeds cannot be saved, they cannot be saved because they do not “breed true”, the offspring is not identical to the parent. An open pollinated seed can be made adaptable your area over many growing seasons, and enjoy caring for the plants through their entire life cycle as they produce for you from generation to generation. But, if you grow an F1 hybrid seed and you like it, you must go back to the source you got it from if you wish to grow it out again. Hybrid seeds have to be bought every year, thus increasing the farmers’ dependence on the seed industry.
Genetically Engineered Seeds
A seed that is developed using the technology of genetic engineering is an engineered seed (GM). Genetic engineered seeds are created by introducing one organism to another biologically unrelated organism. Genetically engineered seed uses a gene gun or a plant cancer as a vector, an antibiotic resistant marker to select successful introduction of the new gene and a viral promoter. Genetically engineered cells are then mass propagated through tissue culture methods to produce thousands of new life forms with new characteristics (Navdanya organization, 1998).
GM corn developed by Monsanto, for example, includes genetic material from the bacterium Bt (Bacillus thuringiensis), (Small footprint family, 2009) which kills European corn borers by punching holes in their stomach lining lining. This means that every single cell of the GMO corn plant contains the DNA of bacteria which is capable of damaging digestive tracts of insects and pests. As this bacterium is engineered into every cell of the corn plant, it doesn’t wash off. Though most GM companies swear that these crops have no harmful effect on humans, there has been empirical studies done, which show otherwise.
Patenting life forms
As genetically modified plant varieties made their way to the market. Pharmaceutical companies who had expertise in dealing with biotechnology jumped into the business and put pressure on governments to allow patenting of plant varieties. Patent essentially is a way of recognizing and bestowing benefits to individuals and entities for creation of the mind which also is required to have industrial application. Therefore one of the key necessities for a patent to be awarded to an object or invention is that it should be a creation of mind. The raging debate therefore has been to question whether genetically modified seeds can be labelled as only creations of mind. It is an accepted fact that the present the seed germplasm that was available was definitely a creation of nature and was also the efforts and generations of nurturing of the farming and tribal communities which harvested it.
This being the case it was argued that it would be unfair for the benefits rising from the patent to only go to the immediate breeder of the plant variety. Unfortunately even after this has been accepted by the international community the benefits that are doled out to the commercial and organised breeder has been way more than what has been provided to the tribal and unorganised farmers. There have been in the past years issues of mass bio piracy that the southern countries have alleged together with there has also been agreements into workout a more ethical benefit sharing model in regard to these patents. But many have still warn of the Pandora box of problems allowing patenting of life forms would unleash.
Seed sovereignty and green revolution
Seed sovereignty as a concept arose directly as a result of the trend to patent plant varieties. It was a struggle of the farmers to reclaim their rights over their livelihoods.
“Seed sovereignty is the right to own, sow, breed, save and exchange seeds. This makes seed the common property of the community. Farmers in India have been following this tradition for thousands of years. Sadly, the arrival of commercial seed industries have changed the entire picture. These Multinational Corporation have successfully taken away the ownership of the seed from the hands of the farmer in the form of Intellectual Property Rights (IPR)”. (Navdanya organization, 1998)
It started essentially when the hybrid seeds entered the market. The fact is that Hybrid seeds offer many benefits to the farmers in the west who are involved in extensive farming on huge tracts of land and are bale to buy the seeds year after year from the seed industry. But this cannot be said to be true in regard to farmers in the developing countries.
Until the 1960s India was successfully and independently developing policies of land reform based on strengthening the ecological base of agriculture and self-reliance. In 1951, a detailed farming strategy was initiated which recognized the need to plan from the bottom which achieved major success—the rate of growth of total crop production was higher during this period than in the years following the introduction of Green Revolution agriculture (Navdanya organization, 1998).
In 1961, the Ford Foundation launched its Agricultural Development Program with the introduction of modern intensive chemical farming. But native varieties of wheat tend to ―lodge‖, or fall over, when subject to intensive fertilizer applications. Therefore the new Green Revolution dwarf variety developed by American agronomist, Norman Borlaug were specifically designed to overcome this problem: shorter and stiffer stemmed, they could absorb chemical fertilizer, to which they were highly receptive, without lodging. The new so-called High Yield Varieties used in Green Revolution agriculture were therefore in reality High Response Varieties, as they required heavy doses of chemical fertilizer and water (Navdanya organization, 1998).
When the farmers of the east grew these new hybrids, they were indeed more productive, even though they required more fertilizer and water. But when they collected and saved the seed for replanting the next season—as they had done for generations and generations—none of it grew true to the parent crop, little food grew, and these poor farmers, having none of their open-pollenated traditional varieties left viable, had no choice but to go back to the big companies to purchase the hybrid seeds again for planting year after year. This unmitigated disaster completely changed the agricultural landscape of India. It made farmers dependent on the now growing agricultural industry not only for highly priced seeds but also for the fertilisers that these plants would require and pesticides which these plants were designed to require.
These seeds unlike the open pollinated seeds were not resistant or acclimatized to the environment that they were now being grown in. They required more fertilisers, more insecticides and pesticides. They required more water and lab like condition to provide the yield that would keep the farmers still afloat amidst a suddenly capital intensive occupation. This pushed many farmers to the brink of indebtedness and the spiralling cycle of poverty.
In such a situation, GM crops and limitations that come with the patenting systems were introduced in India.
In the early 1990s, it was finally recognised at the international level that the industrial system of production that was introduced and its drive for continued growth at all costs, was literally costing the Earth. The planet’s life support systems were being severely threatened, as evidenced by: increasing climate instability caused by the greenhouse effect; dramatic levels of soil and genetic erosion; the drying up of the equatorial rainforests leading to unprecedented fires, which will add to climate instability; marine pollution and the depletion of fish stocks; an estimated loss of 100 species per day, extinct forever. (TRIPs versus CBD, 1998)
This realisation did motivate many to turn to the old methods at an individual level but at policy level very little has been done.
International regime in regard to the intellectual property rights over plant varieties and seeds
The Agreement on Trade Related Aspects Intellectual Property (“TRIPS”) agreement was established as a part of the World Trade Organization (“WTO”) regime that came into operation on January 1, 1995 (Rohan & Chandini, 2009). The TRIPS agreement lays down certain minimum standards for intellectual property rights that the contracting parties of the WTO had to implement through their own national legislations. These minimum standards have caused a significant shift in the IPR regime, away from the public interest and towards the monopolistic privileges of IPR holders.
TRIPS is a legally binding international instrument enforceable in the WTO, across all 140 member states
The TRIPs Agreement came into force on 1 January 1995. It mainly entails obligations for seven areas of intellectual property rights available for all fields of technology. Further it sets up the first global system of IPR on biological diversity, and specifically plant varieties.it mainly requires the application of either patents or an “effective” Sui generis (i.e. unique) system, to “protect” (i.e. gain monopoly rights over) plant varieties at the national level in accordance to article 27(3) of the Agreement.
Article 27.3(b) of the TRIPs treaty in GATT states: Parties may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non biological and micro-biological processes. However, parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of the Agreement establishing the WTO (World Trading Organization).
TRIPs further mandated that all the obligations under the agreement were required to be implemented in developing countries by the year 2000 and in least-developed countries by the year 2005. Further disputes falling under TRIPs would be subject to the same dispute settlement procedures as other WTO agreements. Essentially failure to implement the terms of the agreement will result in trade retaliation against the offending country or other kinds of economic sanctions (TRIPs versus CBD, 1998).
The 1993 Convention on Biological Diversity (CBD) is a legally-binding commitment to secure the conservation and sustainable use of biological diversity. Less than a year after the CBD came into force, however, the World Trade Organisation (WTO) was established with quite a different agenda.
The CBD is founded on the principle that local communities generate and are dependent on biodiversity and should continue to benefit from it. The WTO administers a global trading system, much of which is founded on the private monopoly rights of transnational corporations over biodiversity. The CBD recognizes the importance of the contribution of the peoples of developing countries to the world’s biodiversity. It acknowledges that biodiversity is not a ‘gift of nature’, but the result of community activities where women in particular play a vital role. The fact that biological diversity is intrinsically co-dependent with diverse cultures, knowledge systems, and lifestyles which generate and maintain it has also been considered while drafting the convention.
That in situ (local) conservation of biological resources is more sustainable than ex situ (gene bank) conservation has been accepted in the convention and it has been stated that because of this reason the work that many NGO’s are doing by maintaining crowd sourced gene banks should not be undermined. The convention makes it obligatory for the states to make programmes and policies that promote conservation and sustainable use, as well as the sharing of benefits arising from the use of biological resources.
Basic obligations under the CBD
- Recognises the sovereign rights of states over their biological resources (Art. 3 and 15).
- Stipulates that access to biological resources can only occur with the ‘prior and informed consent’ of states (Art 15.5).
- Requires signatories to protect and promote the rights of communities, farmers and indigenous peoples vis-á-vis their biological resources and knowledge systems (Art. 8j and 10).
- Establishes access to the biological resources of developing countries on a quid pro quo basis with technology transfer from the industrialised countries (Art. 16).
- Requires the equitable sharing of benefits arising from the commercial use of communities’ biological resources and local knowledge (Art 15.7).
- Asserts that intellectual property rights must not conflict with the conservation and sustainable use of biodiversity (Art 16.5).
International Union for the Protection of New Varieties of Plants or UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 and revised latest in the year 1991. The objective of the Convention is the protection of new varieties of plants by an intellectual property right. By codifying intellectual property for plant breeders, UPOV aims to encourage the development of new varieties of plants for the benefit of society. It essentially is a union of many major plant breeders and nowhere in the convention does it acknowledge the input of the indigenous farmers or mention any environmental convention. UPOV also set up a model sui generis system for the protection of plant varieties.
The UPOV convention has gained prominence due to the interpretation of concept of ‘effective’ sui generis system as per Article 27(3) (b) of the TRIPS agreement. The only generally agreed interpretation is that UPOV is an effective sui generis protection regime under TRIPS. (Rohan & Chandini, 2009). Consequently, a number of states have taken the UPOV convention as the model for a plant variety protection regime. However, the very effectiveness of the UPOV system is in question.
UPOV is deficient in accommodating national goals, as it does not balance the interests of breeders with other interests vital to developing nations, such as those of farmers.
Protection of Plant variety and Farmers’ Rights Act, 2001 (the Plant Variety Act)
The Plant Variety Act was passed in 2001. Following the adoption of the Act, rules were framed in 2003. The Plant Variety Act of 2001 has a clear twin mandate. It is premised on the need ‘to recognize and protect the rights of farmers in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties’ as well as to protect plant breeder’s rights to stimulate investment for research and development, both in public and private sector for the development of new plant varieties’. In general the aims of the act are much broader in scope than those of the existing international treaties and agreements in this regard.
Positive features of the act:
Under the Plant Variety Act, the new plant variety must conform to the criteria of novelty, distinctiveness, uniformity and stability. It is remarkable that the PPVFR allows four types of varieties to be protected: a new variety, an extant, an essentially derived and a farmers’ variety.
Extant variety is a broad category covering varieties available in India that are notified under Section 5 of the Seeds Act 1966 in situations where it has been deemed necessary to regulate the quality of seeds for specific variety sold for use in agriculture. Farmer’s varieties are those about which there is common knowledge or which are in the public domain. An essentially derived variety is one that can be distinguished from the initial variety but retains its essential characteristics. This multiple rights system aims to distribute benefits equitably.
Inadequacies in the act:
Despite being christened as a progressive legislation in the field of PVPs, the Plant Variety Act faces a number of shortcomings. To begin with, it remains unclear whether farmers will ever be able to benefit from the relatively generous provisions of the Act. while there exists a framework in place for
the registration of farmer’s varieties, very few farmers if any will be able to benefit from its provisions because their varieties generally do not meet the criteria of distinctiveness, uniformity and stability- a criteria directly picked up from the UPOV Convention designed exclusively for commercial breeders.
The second corollary is with regard to the essentially derived varieties. On the one hand, the Act,
indicates clearly that it seeks to provide a framework for the protection of the rights of commercial breeders as well as farmers. On the other hand while India is officially seeking to join the 1978 Act of the UPOV Convention, the Act provides for not only the protection of new varieties but also for the protection of essentially derived varieties. Further, under Section 46. 2 (d), the use of farmer’s varieties to breed new varieties will have to be paid for and the revenue will flow into a Gene Fund. Despite the good intentions of protecting the farming community, the formulation of this section is likely to create problems in implementation.
Today’s international legal framework remains partly inconclusive with regard to the type of agricultural management that it seeks to encourage. While the TRIPS Agreement generally seeks to foster private appropriation of inventions, the PGRFA Treaty is much more hesitant since it endeavors to foster free flows of plant genetic resources while accepting the validity of intellectual property rights claims over transformed material.
Perhaps due to the decentralized nature of international law, there are several treaties with the same mandates and there is no coordination mechanism for all these treaties to work together. The TRIPS Agreement and the biodiversity convention are in a equal in the sense that have been negotiated independently by member states and carries the same weight in legal terms. The TRIPS Agreement makes absolutely no mention of any environmental treaty and does not even acknowledge the possibility of any overlaps. The Biodiversity Convention includes a general provision on IPR but provides no mechanism in case of a contradiction.
In the light of such a fragmented position of international law the competing interests of two groups the breeders and the farmers have remained unresolved. This resolution, further, can only work against the farmers and the breeders who generally have more political clout and are more organised.
Further it is important to understand that the introduction of intellectual property rights in agriculture cannot be dissociated from the conservation of agro biodiversity, the protection of traditional knowledge in general and the scope of life patenting which influences the development of genetic engineering. The fine balance between the complex aspirations and vulnerabilities of the present times lies in sound international decisions. Thus harmonizing the splintered international law is the only solution to the mutual needs of the north and the south.
TRIPs versus CBD. (1998, april 25). Retrieved february 8, 2015, from www.grain.org: http://www.grain.org/article/entries/20-trips-versus-cbd
C, K. (2009). Traditional Storage Parctices. Indian journal of traditional knowledge, 564-568.
Jena, M. (2012, april 27). tribal-farming-beats-climate-change. Retrieved february 8, 2015, from http://www.ipsnews.net: http://www.ipsnews.net/2012/04/tribal-farming-beats-climate-change/
Navdanya organization. (1998). You too can be a Seed Saver! Retrieved February 2015, from Navdanya: http://www.navdanya.org/attachments/seedkit.pdf
Rohan, D., & Chandini, G. (2009). Sui Generis Plant Variety Protection: The Indian Perspective . american journal of economic and business administration, 303-312.
Small footprint family. (2009, January 15). The Difference Between Open Pollinated Seeds, Hybrids and GMOs. Retrieved February 14, 2015, from Small footprint family: http://www.smallfootprintfamily.com/hybrid-seeds-vs-gmos