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 the apex body under an international convention1 on the subject, of which an Act of 1991 is the present version. India has never been a member, even of past versions. The UPOV is itself more than four decades old. It was created under the aegis of the 1961 UPOV Convention which came to be amended in 1972. The Convention was revised in 1978 and then 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, since 1961 is estimated to be more than 100,000. About 7,000 varieties are being added to this list every year presently.2 Territorially however, the UPOV, until recently, has remained almost exclusively a first world preserve. Developing and Least Developed countries have perceived the UPOV as a tool of the multinational seed industry inimical to the interests 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’ Rights Act which, as its name suggests, sought to protect plant-breeder’s rights but in a much diluted form by recognizing parallel and competing farmers’-rights. The Act, however was never commenced by the Government by issuing the necessary notification to that effect3 and then, last year, the Government i s reported to have taken a decision to adhere to the UPOV model, which will require scrapping the sui-generis enactment. With the dismissal4 in May of this year by the Delhi High Court of a public interest litigation against this move, the decks have been cleared for India to join the UPOV regime, the 1978 Act regime as reported, possibly as a precursor to formally acceding the 1991 Act itself.

The Framework for Farmers’ Rights The provisions of the Indian legislation5 are sui-generis in that they are n ot based on any model draft nor intended primarily to be in conformity with the standards and obligations of any international convention. The concerned Act of 2001 6 , now aborted by the
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The International Convention For The Protection of New Varieties of Plants UPOV Position Paper ‘The Notion of Breeder and Common Knowledge’ adopted by UPOV Council 19th 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 the country 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 defines10 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 and traditional varieties of plants. If a variety has been traditionally cultivated by farmers or is a 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 the needful 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 corporate entities but only by farmers, community bodies, non governmental organizations and government 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 registered in his favor, the definition is unnecessarily encumbered by including within it13 ‘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 breeder15 is as obvious as it is superfluous. That a farmer’s variety is capable also of registration16 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 movement in tandem with government and non-profit bodies to participate in this endeavor. A Gene Fund corpus would support17 tribals and indigenous peoples who tend to traditional varieties and wild races. The real cut to seed companies is the statutory18 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 notwithstanding that it may become protected. The rationale must be that farmers lack information and are liable to be exploited by the market in seeds. But such a stringent undercutting of the
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Agreement on Trade Related Aspects of Intellectual Property Rights, 1994 The International Treaty on Plant Genetic Resources For Food and Agriculture (FAO) , Convention on Bio Diversity, The OAU (Organisation for African Unity) Model Law for the Protection of Rights of Local Communities, 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 is against privatization and corporatisation of agriculture.

The Breeder as Discoverer? The non-alphabetical organization of the definitions in the UPOV Convention19 is indicative 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 are enshrined 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 discovered and developed a variety.’ It is the notion of a breeder as a ‘discoverer and developer’ that has been clarified by the UPOV Council in a Position Paper adopted by it in 199223 “…Breeding in its strict sense connotes a process involving sexual reproduction as a source 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 also clear that, when the text of the UPOV Convention was adopted in 1961, it established a system that was intended to provide protection for the fruits of all forms of plant improvement, including selections made within natural, that is to say, pre-existing variation. Discover ies accordingly, became eligible for protection as selections made within natural sources of variation…It should be noted that the 1978 Act contain no definition of ‘breeder’ or ‘breeding’’ so that these words have their natural meaning and include all classes of activity…There is equally no express reference to the protection of ‘discover ies.’ The protection of discoveries is inferred from a natural source of initial variation, for example, a mutation…The UPOV Convention differs from the patent system in its treatment of discoveries. Discoveries 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 failed in its mission if it had excluded such varieties from protection and withheld from discoverers 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 only satisfied 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
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The 1991 Act Article 1 (iv) 21 Article 1 (v) 22 Article 1 (vi) 23 supra at 2

would require the discovered plant to be propagated sexually and for a selection to be made in the progeny in order to demonstrate development. It is suggested that this approach cannot be correct since selection in the progeny would constitute ‘breeding.’ This approach would also deny protection to most mutations, since the mutation is usually propagated unchanged…” The UPOV Council takes decisions by simple majority24 and countries, big or small, have the same voting power.25 If and when India accedes to the UPOV Convention it will accede to the interpretation of it as espoused in this Position Paper. And this positio n can be cannot be changed until those in favor of a change can muster the requisite majority. Developing and Least developed countries becoming members who may seek to do so will first have to adhere to this position and then wait till enough of them joined up. This assumes, of course, that these new adherents will continue to hold such views on the subject.

Is the Variety New or is it of ‘Common Knowledge?’ The UPOV Position Paper adopted by the UPOV Council26 deals seamlessly with the related concept of which variety would be entitled to registration and protection in favor a breeder and when a breeder would be denied on the ground that the variety claimed by him is within ‘common knowledge’ already. It sets out as under“Article 6 (1) (a) 27 : ‘Whatever may be the origin, artificial or natural, of the initial variation from which it has resulted, the variety must be clearly distinguishable by one or more important characteristics from any other variety whose existence is a matter of common knowledge at the time when protection is applied for. Common knowledge may be established by reference to various factors such as: cultivation or marketing already in progress, entry in an official register of varieties already made or in the course of being made, inclusion in a reference collection, or precise description in a publication. The characteristics which permit a variety to be defined and distinguished must be capable of precise recognition and description.’ …The language of the Convention establishes that there should have been a source of variability, which may have been created by the breeder or be pre-existing and that the breeder’s selection must be clearly distinguishable from any other commonly known variety. …It is important to emphasize the language used at the beginning of Article 6 (1)…The language implies a need for variation and for selection within that variation in order that the resulting plant material be the basis of a protectable plant variety…The relevant provisions of the 1991 Act therefore read as follows: Article 7 ‘The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application.’ …A fundamental feature of the UPOV
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Article 26 (7) Article 26 (6) 26 supra, at 2 27 of the 1978 Act

Convention, now embodied in Article 12 of the 1991 Act, is that protection shall only be granted after an examination to determine if the variety is clearly distinguishable from all other varieties that are a matter of common knowledge at the date of filing of the application….Article 6 (1) (a) of the 1978 Act did not define ‘ common knowledge’ but provided a non-exhaustive list of examples of how a variety could become a matter of common knowledge…the 1991 Act leaves ‘common knowledge’ undefined and specifies only certain acts (which are not likely to be known to the general public) shall be deemed to render varieties a matter of common knowledge. ‘Common knowledge ’ has its natural meaning. It is a worldwide test. A variety that is a candidate for protection must be clearly distinguishable from any variety whose existence is a matter of common knowledge at the date of the application for protection anywhere in the world….In applying the notion of common knowledge in cases of dispute and particularly applications for a declaration of nullity, UPOV members are recommended to be prepared to take into account not only knowledge that exists in a documented form, but also the knowledge of relevant communities around the world provided that this knowledge can be credibly substantiated so a to satisfy the standards of proof of the civil law courts….land races which are capable of satisfying the definition of ‘variety’ and which can in consequence be defined and propagated unchanged should be regarded as varieties of common knowledge for distinctness purposes…”

The Outlook Earlier with China signing up and now with India exploring to do so, the two most populous nations of the world are slated to make the UPOV a truly global institution. India’s 2001 l egislation will get substantially rewritten as India proceeds to accede to the UPOV. But what about the lofty ideals of farmers’ rights enshrined therein? Although India was ahead of most third world countries in actually framing a legislation of this kind, the outlook of a UPOV world has consequences for all of the third world. Is the expansive application of the twin notions of “breeder” and “new variety” under the UPOV going to lead to a rush to the bio -diverse ‘germplasm’ rich tropical “south” viz. places like India, in an attempt by western companies to ‘discover’ genetic material that is known to the indigenous people, tribals and poor isolated communities living there, ‘develop’ it in the sense of merely ‘selecting it in the progeny’ and then file claims for its registration in their own favor, quite possibly in their own home jurisdictions that will treat them with a kindly eye overlooking the common knowledge of the people where the material is sourced from viz. discovered? A rude and insensitive global economy as also a far-off and insensitive foreign jurisdiction may treat such people themselves as capable of being ‘discovered.’ To be sure, the ‘common knowledge’ of such peoples will not command much of a premium when it is of such little use to the rest of the world.

Irrespective of whether such fears and apprehensions have any basis or not, the fact remains that the real and material imbalance is between the state of corporatisation of the economy of the first world versus that of the third world. In theory, it should be possible for domestic companies of such economies to ‘reap the same harvest.’ Actually the UPOV itself permits a phased transition to the full rigor of its regime to redress such alarmist concerns. A new member such as India would have a grace period of 10 years from the date of accession before it recognized any more than the minimum fifteen initially recognized plant-species. 28 In such a period, third world economies will typically try to create a national publicly funded authority with the mandate of identifying and recording all ‘discoveries’ that are potentially to be made within their territories. What they will, more often than not, fail to do is supplement this with free market policy measures to create a strong and dynamic domestic seed industry in private hands outside of state control. Nor will these societies, typically, attempt timely to create the sophisticated regulatory structures required – in this case the national authorities that will decide applications for registration of new varieties that will be filed by breeders. Regulatory authorities of the third world are often described as atrocious. These may possibly look at misconceived applications with an even kindlier eye. The market forces at work are ranged against indigenous peoples and aboriginals having a monopoly over the genetic resources of where they live because the socio-cultural-economics of their societies does not permit them to exploit these as effectively as the more scientifically and technologically advanced and resourceful companies of the societies they face which are increasingly both global and local everywhere. Whereas indigenous peoples are perceived as being under threat of being deprived of control over the plant-genetic material to be found in their places of subsistence and livelihood, this is because of the inherent incongruity of their situation with UPOV’s mission statement which has its own unassailable merit- ‘The objective of UPOV is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society...The UPOV protection system seeks to protect varieties resulting from the various forms of plant improvement activity, which have been of much benefit to society, particularly over the last century, as an understanding of plant genetics has grown.’29 As the UPOV expands, there is great need for other global institutions also to expand the reach and depth of the care they can r each to the many people in this world who are going to be disenfranchised as the world shrinks.

Vasudha J. Mehta vasudha.mehta@algindia.com ALG India Law Offices The views are personal

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Article 3 (2) supra, at 2