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UPOV, India and the World – Common Knowledge

UPOV, India and the World – Common Knowledge

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UPOV
UPOV

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Published by: shalw on Apr 10, 2013
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05/14/2014

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UPOV, India and the World – Common Knowledge and Uncommon Wisdom
Vasudha J. Mehta
Background
The International Union For The Protection of New Varieties of Plants (UPOV) is theapex body under an international convention
1
on the subject, of which an Act of 1991 isthe present version. India has never been a member, even of past versions. The UPOV isitself more than four decades old. It was created under the aegis of the 1961 UPOVConvention which came to be amended in 1972. The Convention was revised in 1978 andthen again in 1991. The number of plant varieties that have been granted recognition and protection in respect thereof accorded to the plant-breeder, under the Convention, since1961 is estimated to be more than 100,000. About 7,000 varieties are being added to thislist every year presently.
2
Territorially however, the UPOV, until recently, has remainedalmost exclusively a first world preserve. Developing and Least Developed countrieshave perceived the UPOV as a tool of the multinational seed industry inimical to theinterests of their large uncorporatised agricultural communities and been slow to join in.India, in 2001, enacted a sui-generis Protection of Plant Varieties’ and Farmers’ RightsAct which, as its name suggests, sought to protect plant-breeder’s rights but in a muchdiluted form by recognizing parallel and competing farmers’-rights. The Act, however was never commenced by the Government by issuing the necessary notification to thateffect
3
and then, last year, the Government is reported to have taken a decision to adhereto the UPOV model, which will require scrapping the sui-generis enactment. With thedismissal
4
in May of this year by the Delhi High Court of a public interest litigationagainst this move, the decks have been cleared for India to join the UPOV regime, the1978 Act regime as reported, possibly as a precursor to formally acceding the 1991 Actitself.
The Framework for Farmers’ Rights
The provisions of the Indian legislation
5
are sui-generis in that they are not based on anymodel draft nor intended primarily to be in conformity with the standards and obligationsof any international convention. The concerned Act of 2001
6
, now aborted by the
1
The International Convention For The Protection of New Varieties of Plants
2
UPOV Position Paper ‘The Notion of Breeder and Common Knowledge’ adopted by UPOV Council 19
th
 April, 2002
3
Section 1 (3) of The Protection Of Plant Varieties and Farmers’s Rights Act, 2001
4
Order dated 5.5.2004 in WP (C ) 6428/2002
5
The Protection of Plant Varieties and Farmers’ Rights Act, 2001
6
supra
 
Government’s decision, is designed to be within the limits of freedom available to thecountry under its TRIPS
7
obligations (the UPOV is in this sense referred to as TRIPS positive) and also derives support from the general thrust and declaratory provisions of some international treaties and materials.
8
 In the scope of rights granted to farmers and exceptions thereby made to the rights of  plant-breeders, it has very few peers.
9
It defines
10
farmers as not only self-cultivators or direct supervisors of cultivation but also including someone who tends (conserves, preserves or adds value through selection and identification) of wild species andtraditional varieties of plants. If a variety has been traditionally cultivated by farmers or isa wild relative or land race of a variety about which farmers possess common knowledge,it is a farmers’ variety.
11
But who is to tell? This provision calls for an authority to do theneedful without active prosecution of a claim as by a business-motivated breeder. A breeder is someone who has bred or evolved or developed any variety.
12
A discoverer of a natural variety who selects the same is not evidently within the scope. This particular  potential in the natural environment is to be exploited not by profit-motivated corporateentities but only by farmers, community bodies, non governmental organizations andgovernment agencies, essentially for a non-profit motive. From an economic point of view, there is intrinsic inefficiency of exploitation in this situation. Instead of defining a breeder purely in terms of what the breeder does in relation to the variety to be registeredin his favor, the definition is unnecessarily encumbered by including within it
13
‘group of  persons or a farmer or group of farmers or any institution.’The most striking feature is the codification of farmers’ rights.
14
That a farmer can be a breeder 
15
is as obvious as it is superfluous. That a farmer’s variety is capable also of registration
16
is to require a national effort to go about identifying them in the first place.The scheme of the Act is that it expects a community based cooperative type movementin tandem with government and non-profit bodies to participate in this endeavor. A GeneFund corpus would support
17
tribals and indigenous peoples who tend to traditionalvarieties and wild races. The real cut to seed companies is the statutory
18
preservation of a farmer’s right to continue to deal in (save, use, sow, resow, exchange, share or sell)material produced on his farm (so long as it is not branded) of a variety notwithstandingthat it may become protected. The rationale must be that farmers lack information and areliable to be exploited by the market in seeds. But such a stringent undercutting of the
7
Agreement on Trade Related Aspects of Intellectual Property Rights, 1994
8
The International Treaty on Plant Genetic Resources For Food and Agriculture (FAO) , Convention onBio Diversity, The OAU (Organisation for African Unity) Model Law for the Protection of Rights of LocalCommunities, Farmers and Breeders, and for the Regulation of Access to Biological Resources.
9
Namibia is cited
10
Section 2 (k)
11
Section 2 (l)
12
Section 2 (c)
13
supra, at 12
14
Section 39
15
Section 39 (1) (i)
16
Section 39 (1) (ii)
17
Section 39 (1) (iii)
18
Section 39 (1) (iv)
 
 plant-breeder’s rights is likely also to stunt the growth of the market itself. In the name of over –benevolence towards farmers, it is their own market that suffers. The attempt isagainst privatization and corporatisation of agriculture.
The Breeder as Discoverer?
The non-alphabetical organization of the definitions in the UPOV Convention
19
isindicative of its objects and concerns. The definition of a “breeder”
20
and the next one of “breeder’s rights”
21
is followed by the definition in sequence by that of “variety.”
22
 Since it is the breeder’s exclusive rights in the plant variety “
bred 
” by it that areenshrined as protected in the UPOV Convention, the definition of who is or is not a breeder in respect of a correspondingly ‘denominated’ plant-variety, is a sensitive one.The definition of “breeder” in the UPOV Convention is basically as ‘the person who bred, or 
discover 
ed and developed a variety.’ It is the notion of a breeder as a ‘
discover 
er and developer’ that has been clarified by the UPOV Council in a Position Paper adopted by it in 1992
23
-“…Breeding in its strict sense connotes a process involving sexual reproduction as asource of variability but in practical usage the activity of plant breeding is much wider and includes, in particular, selection within pre-existing sources of variation…It is alsoclear that, when the text of the UPOV Convention was adopted in 1961, it established asystem that was intended to provide protection for the fruits of all forms of plantimprovement, including selections made within natural, that is to say, pre-existingvariation.
 Discover 
ies accordingly, became eligible for protection as selections madewithin natural sources of variation…It should be noted that the 1978 Act contain nodefinition of ‘breeder’ or ‘breeding’’ so that these words have their natural meaning andinclude all classes of activity…There is equally no express reference to the protection of 
discover 
ies.’ The protection of 
discover 
ies is inferred from a natural source of initialvariation, for example, a mutation…The UPOV Convention differs from the patentsystem in its treatment of 
discover 
ies.
 Discover 
ies are not patentable. However, the
discover 
y’ of mutations or variants in a population of cultivated plants is indeed potentially a source of new improved varieties. The UPOV Convention would have failedin its mission if it had excluded such varieties from protection and withheld from
discover 
ers the incentive to preserve and propagate useful
discover 
ies for the benefit of the world at large...It has been suggested that the criterion of ‘development’ is onlysatisfied if the
discover 
ed plant itself is subsequently changed in some way and that the propagation of the plant unchanged would not constitute ‘development.This approach
19
The 1991 Act
20
Article 1 (iv)
21
Article 1 (v)
22
Article 1 (vi)
23
supra at 2

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