CHAPTER – V

FARMERS’ RIGHTS UNDER INTELLECTUAL

PROPERTY REGIME AND PVP AND FR ACT 2001

5.1 Introduction

This chapter proposes to examine the issues relating to farmers’ rights in the
context of Intellectual Property Rights, in genetically engineered (GE) crops and
seeds, for which patents are increasingly available and their impact on the rights of
the farmers.

The concept of farmers' rights is basically contradictory to the principles of

intellectual property. Intellectual property rights are intended to provide incentive
for a limited period as a reward for the innovation.419

Farmers' right is a retrospective reward of unlimited duration for the

conservation of plant genetic resources. The rights provide reward for the
innovations done on the field. The Keystone International Dialogue on Plant
Genetic Resources between 1988 and 1991 offered suggestions for developing a
recognition and reward system for informal innovation represented by the concept
of farmers' right. Farmers' rights are the countervailing force to breeders' right and
patents on seeds and plants. The knowledge and rights of local community has to be
strengthened in order to conserve our biodiversity. The concept of farmers’ right
had its origin in the FAO International Undertaking on Plant Genetic Resources420.
The Resolution defines farmers' rights as "rights arising from the past, present and
future contributions of farmers in conserving, improving and making available plant
genetic resources, particularly those in centers of genetic diversity. These rights are
vested in the international community as trustees for present and future
generations." Innovation by farmers began from the time of settled agriculture.

419
Elizabeth Verkey, ‘Law of Plant Varieties Protection’, (2007) Eastern Book Co., Lucknow,
p. 145.
420
Twenty-fifth Session of the FAO Conference - Rome, 1989, Resolution 5/89.

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Though the process of innovation by the farmer may not conform to the strict terms
of the distinctness, stability and uniformity requirement, they also have definite
criteria to identify improved varieties they develop. But these innovations are rarely
recognized. Farmers do not breed in ideal laboratory conditions, but on actual
knowledge of the environmental conditions through natural selection and
continuous evolving process. Indian farmers have evolved many varieties
that are resistant to salt, flood, drought etc. If the breeders who develop a
new variety from the existing genetic resources have a right of ownership
and control by virtue of laboring to develop the new variety, the farmers also
have a right for identifying, conserving and developing the traditional variety.
It is the farmer who has safeguarded the tremendous biodiversity that
breeders and seed industries use as raw material. There have been various
efforts at the international level for recognizing the contribution of the
farmers.

5.2 Farmers' Rights

Developing countries are in the process of attempting to fulfill these

demands by evolving IPR regimes that simultaneously protect the rights of breeders
and farmers. While TRIPS does not formally recognize farmers' rights, it does allow
the enactment of sui generis legislation for PVP. There are many articulations and
enactments at the national level in favour of sui generis legislation which protects
the farmers and their plant varieties. For instance, India which did not have existing
sui generis legislation developed its own version of PVP, recognizing both Plant
Breeders’ Rights and farmers' rights.

Farmers’ rights are a precondition for the maintenance of crop

genetic diversity, which is the basis of all food and agriculture in the world.
Genetic diversity of agricultural plants is the very basis of farming. It provides
the pool from which plant traits can be found that meet the challenges of
crop pests and diseases, of marginal soils, and – not least – of changing
climate conditions and it is vital for spreading risks for small-holder
farmers.

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 In general outlook, the idea of farmers' rights denotes in simple terms the
rights of farmers over their resources and knowledge. The term 'resources and
knowledge' can have wide meaning and scope in common parlance. It may
encompass a number of concerns related to all important factors of agricultural
production such as land, water, seeds, traditional agricultural practices, harvest and
traditional agricultural knowledge. However, the contemporary legal regime does
not address all these aspects of farmers' rights. In fact, farmers' rights as a legal
norm have defined boundaries. Broadly there are two major issues that are
addressed by the concept of farmers' rights in the contemporary legal context. They
are: plant genetic resources and traditional agricultural knowledge.

Plant genetic diversity is probably more important for farming than any other
environmental factor, simply because it is the factor that enables adaptation to
changing environmental conditions. Farmers, in most developing countries, have
been the main actors involved in saving seeds, cross breeding to produce new
varieties with better suited traits, biodiversity management and so on. They have
played the combined role of producer, consumer and conserver. They are thus the
original rights-holders of agricultural resources, especially in developing countries.
This was the beginning of the conception that farmers are also intellectual property
rights-holders in a similar, if not in a more forceful way, as the modem
biotechnologically assisted plant breeders are on the whole, it was recognition that
while the commercial breeders were protected by either PBRs or through patents in
plant varieties, the farmers' contributions as preservers and developers of the gene
pool, on which was based much of the incremental changes that were made by
commercial breeders, remained unrewarded and unprotected. There was no system
for compensating or providing incentives for the farmers.421

The inequity and exploitative implications of intellectual property rights in

agriculture, PBRs or patents, led into a recognition that farmers have a prior right to
be adequately compensated for the resource they hold, in terms of both their
knowledge and genetic pool. The livelihood rights of the farmers thus needed to be

421
See, for e.g., GRAIN, Plant Variety Protection to Feed Africa, 16/4 Seedling 2 (1999).

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protected by securing their access to the genetic resources under threat by patents
and plant breeders' rights (PBRs).

The inequitable treatment between the owners of germplasm and the

owners of technology spawned a debate at various international forums. The
result was the institutionalization of farmers' rights in the form of two main
instruments:

a) The demand for farmers' rights formally got incorporated in 1983 in Food
and Agricultural Organization (FAO) as an International Undertaking on Plant
Genetic Resources (IU). The IU422 resolutions 4/89, 5/89 and 3/91, were negotiated
by the Commission on Plant and Genetic Resources and were unanimously
approved by more than 160 countries in the FAO conferences held in 1989 and
1991.

b) The International Treaty on Plant Genetic Resources for Food and

Agriculture (PGRFA)423 in November 2001.

Farmers' Rights were inserted, in the Agenda 21 of the Convention on

Biological Diversity (CBD).424 FAO's Global System on Plant Genetic Resources,
which was prepared by FAO as a result of Agenda 21's commitment to the
conservation of agricultural biodiversity, also includes continued commitment to the

422
IU for Plant and Genetic Resources, Resolution 8/83, Text available at ftp://ftp.fao.org/ag/
cgrfa/iu/iutextE.pdf. visited 15-11-2015.
423
International Treaty on Plant Genetic Resources for Food and Agriculture Resolution
3/2001 ftp://ftp.fao.org/ag/cgrfa/it/TPGRe.pdf visited 15-11-2015.
424
Article 8(j) of CBD on in situ conservation states: Subject to its national legislation,
respect, preserve and maintain knowledge, innovations and practices of indigenous and
local communities embodying traditional lifestyles relevant to the conservation and
sustainable use of biological diversity and promote their wider application with the
approval and involvement of the holders of such knowledge, innovations and practices and
encourage the equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices; See also FAO Corporate Document repository, Title:
Intellectual property rights in plant varieties. Section 1.3.5.3. Convention on Biological
Diversity (CBD) Available at http://www.fao.org/docrep/007/y5714e/ y5714e02.htm

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implementation of Farmers' rights.425 These developments were in order to broaden
the scope of farmers' rights and to assess the role of intellectual property rights in
the conservation of biodiversity. These developments culminated in the adoption of
Plant Genetic Resources for Food and Agriculture (PGRFA) treaty426 which
incorporated the new orientation given by the CBD and serve as an instrument for
the conservation and sustainable use of plant genetic resources and the fair and
equitable sharing of the benefits arising from the use of such resources.427 The FAO
Conference (through Resolution 3/2001) adopted the International Treaty on
PGRFA, in November 2001. This treaty establishes legally binding rules to secure
facilitated access to and exchange of plant and genetic resources within a
multilateral system. To conform to the CBD, it also has effective provisions for
benefit-sharing, including articles on funding and Farmer's Rights to benefit small
farmers who have been the traditional custodians of PGRFA, particularly in
developing countries.

5.3 Evolution of Farmers’ Rights

During the 1960s and 1970s, developed countries started granting PBR and
patent right on plant varieties. Plant breeding by private seed industry was gaining
force in developed countries. The grant of patent on varieties totally privatizes the
seed supply with no right to farmers to save seed from their farm. The PBR is more
just, because it can concurrently accommodate farmers' right to save, sow,
exchange, share or sell seeds. The impact of farmers' rights on seed or its denial is
very different on the farmers of rich developed and poor developing countries.
Farming sector of rich countries is different from that in India in many ways. Only

425
Chapter 14, agenda 21, Report of the UN Conference on Environment and Development,
Rio de Janeiro, 3-14 June 1992, UN Doc A/CONF 151/26/Rev1 (Vol. 1), Annex II.
426
International Undertaking on Plant Genetic resources for Food and Agriculture, Rome, 3
November 2001 (PGRFA treaty).
427
CBD was adopted at the Earth Summit in Rio de Janerio in 1992. The Convention has
three main goals conservation of biological diversity (or biodiversity); sustainable use of its
components; and fair and equitable sharing of benefits arising from genetic resources. In
other words, its objective is to develop national strategies sustainable development. It
entered into force on 29th December 1993 as part of the outcome of the decisions of full
text of CBD. visit http://www.cbd.int/convention/ convention.shtml. Visited 26.9.2015.

225
less than 4 per cent of the population of rich countries is involved in farming, while
it is more than 65% in India. The average farm size in rich countries is few hundred
acres, while this is less than one acre in India. The resource and technological
capabilities of farmers in rich countries are far superior to those of Indian farmers.
The diversity of crops and wealth of varieties associated with agriculture is far
richer in India than in the agriculture of rich countries. Hence, the farmers of rich
countries suffer far less disadvantage than their poor counterparts in India by the
denial of farmers' traditional right on seeds.

The first use of Farmers’ Rights as a political concept dates back to

the early 1980s, when Pat Roy Mooney and Cary Fowler of the then Rural
Advancement Foundation International coined the term to highlight the
valuable but unrewarded contributions of farmers to plant genetic resources for food
and agriculture.

The idea came up as a countermove to the increased demand for plant

breeders' rights, as voiced in international negotiations, to draw attention to the
unremunerated innovations of farmers that were seen as the foundation of all
modern plant breeding428. Pat Roy Mooney argued that any legal arrangement
which may hinder farmers in their practice of saving, re-using, improving and
developing seeds should be condemned. According to Cary Fowler, the concept of
FR can be traced back to the work of the renowned plant explorer, geneticist and
plant breeder Jack R. Harlan (1917-1988), who spoke of farmers as the 'amateurs'
who had in fact created the genetic diversity that had become subject to
controversies. In fact, today's FR reflects both these aspects.

Farmers' rights on seeds variety in rich countries like India promotes the
global public good cause of enrichment and conservation of crop diversity. Without
this right farmers cannot continue the important process of variety selection and
conservation, which are responsible for evolution of novel genetic diversity in crop
plants. Hence, enrichment of genetic diversity by on-farm conservation is of high

428
Available at http://www.farmersrights.org/about/fr_history_part1.html. visited on 20-08-
2014.

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importance to global agriculture. In recognition of this critical factor, an
independent Commission on plant genetic resources was constituted in 1983 by the
Food and Agriculture Organization, Rome, under the Chairmanship of Prof. M.S.
Swaminathan. The International Undertaking on Plant Genetic Resources (IUPGR)
appointed by this Commission affirmed the need for global protection of farmers'
rights on seeds, particularly in countries, which are rich in plant genetic diversity.
Farmers' rights defined by the IUPGR were recently made into a legally binding
international treaty. This treaty is called International Treaty on Plant Genetic
Resources for Food and Agriculture (ITPGRFA). India is a party to this treaty and
hence committed to protect farmers' rights on seeds.

Farmers’ Rights formally, first took place with the Food and Agriculture
Organisation (FAO) of the U.N., in relation to the making of the International
Undertaking on Plant Genetic Resources for Food and Agriculture (IUPGRFA).
FRs were addressed in an FAO forum for the first time at the First Meeting
of the Working Group in Rome, in 1986, which focused on legal and technical
matters in addition to discussing the feasibility of establishing an international
fund for plant genetic resources. In their analysis of country reservations to the
IUPGRFA, the Working Group identified various categories of reservations,
one of which involved PBR and considered ways and means to reach negotiated
solutions to the problem so as to achieve widest possible adherence to the
IUPGRFA. One solution found was to recognize the rights of plant breeders. It was
in this context that FRs were addressed for the first time. The working Group
emphasized that, in addition to the recognition of PBR, specific mention should
be made of the rights of the farmers of the countries where the materials used
by the breeders originated. These materials were the result of the work of
many generations and were a basic part of the national wealth. On the basis of the
discussion in the Working Group on how to deal with country reservations to the
IUPGRFA and attract greater adherence, a report was produced for the
Second Session of the Commission on Plant Genetic Resources (CPGR), held in
Rome in March 1987.

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 The second meeting of the Working Group of the Commission on Plant
Genetic Resources took place in Rome in 1987. At this meeting, FR was addressed
in greater detail, and thus this report is a milestone in the history of FR. The most
important parts of the same are reproduced below:

“During the discussion of document CPGR/87/4, the Working Group agreed

that the breeding of modern commercial plant varieties had been made possible first
of all by the constant and joint efforts of the people/farmers (in the broad sense of
the word) who had first domesticated wild plants and conserved and genetically
improved the cultivated varieties over the millennia. In recent years some countries
had incorporated the rights of the latter group into laws as 'Breeders' rights', i.e. the
right of professional plant breeders or the commercial companies which employ
them to participate in the financial benefits derived from the commercial
exploitation of the new varieties. However, as document CPGR/87/4 pointed out,
there was presently no explicit acknowledgement of the rights of the first group,
in other words, no 'Farmers' rights'. The Working Group considered such rights
to be fair recognition for the spade-work done by thousands of previous
generations of farmers. And which had provided the basis for the material available
today and to which the new technologies were in large measure applied.
Alternative names such as 'right of the countries of origin' or 'gene donors', were
proposed, but the conclusion was that the name 'Farmers' Rights' was the most
expressive”429.

The working group however had entrusted the further development of

the concept of FRs with a small contact group, which were to negotiate mainly
three themes called the breeders' rights, farmers' rights, and the free exchange of
genetic material. The Working Group concurred that Breeders' rights and Farmers’
right were parallel and complementary rather than opposed, and that the
simultaneous recognition and international legitimization of both these rights
could help to boost and speed up the development of the people of the world.

429
Available at http://www.farmersrights.org/about/fr_history_part2.html. visited on
20-02-2014.

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The idea of developing farmers' and plant breeders' rights simultaneously in
order to seek a balance between the two also emerged at this meeting.

5.4 Commission on Plant Genetic Resources

For the first time documented discussion on FR took place in the second
session of the Commission on Plant Genetic Resources in 1987. The main
discussions focused on the aspect that at par with PBR, FR should also be
recognized. The important parts of the Report are reproduced below.

"On the question of Farmers' rights, delegations expressed a wide range of

opinion. Most delegations which intervened on the subject stressed the importance
of the concept of Farmers' rights, holding that these rights derived from centuries of
work by farmers which had resulted in the development of the variety of plant types
which constituted the major source of plant genetic diversity; many of these
resources were now being exploited in other countries as well and had become, in
fact, part of the common heritage of mankind. They considered that Farmers' Rights
were up to a point comparable with breeders' rights, which even existed in the
national legislation of many countries, and it was therefore fitting that Farmers'
Rights should also be recognized430”.

It was found that recognizing the FR is a difficult task due to various

reasons. This could be quoted as,

"Breeders' rights are already recognized by national legislation in many

countries. The so-called 'Farmers' rights', however, which stem from the work that
farmers have performed over centuries, which resulted in the formation of the land-
races, have not found any recognition in the laws and institutions of nations. It was
agreed that these rights, too, must be given some formal recognition. It was
acknowledged that, while the so-called 'Farmers' Rights' could not yet be given a
precise definition, some sort of compensation for their most valuable contribution to

430
FAO, 1987 : Report of the Second Session of the Commission on Plant Genetic Resources,
16-20 March 1987, CL 91/14, paragraph 37.

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the enrichment of the plant genetic resources of the world was well-founded and
legitimate.”431

5.5 Food and Agriculture Organization (FAO) and Farmers’ Rights

William Brown, then Chairman of the US National Board for Plant Genetic
Resources, initiated a contact with the Keystone Center in Colorado, with the
request of holding a dialogue on plant genetic resources among international
stakeholders. The Keystone Approach was to invite stakeholders as individuals, to
reduce conflict level and seek dialogue, to keep the discussions off the record, and
to produce a report on the basis of consensus only. The Keystone Dialogues took
place in 1988, 1990 and 1991, in Keystone, in Chennai and in Oslo respectively,
and were chaired by the distinguished Prof. M.S. Swaminathan, who also led an
Interim Steering Committee that gave direction to the dialogues.

One of the recommendations of the Keystone centre was that there should be
an international fund for helping the farmers to conserve and preserve the genetic
diversity, as a compensation which is as an obligation. A breakthrough of the FRs
took place in the twenty fifth session of the FAO in 1989, where it adopted a
Resolution (5/89) on Farmers' Rights. As per this non-binding resolution, Farmers'
Rights meant "the rights arising from the past, present and future contributions of
farmers in conserving, improving, and making available plant genetic resources,
particularly those in the centres of origin/diversity. These rights are vested in the
International Community, as trustee for present and future generations of farmers,
for the purpose of ensuring full benefits to farmers, and supporting the continuation
of their contributions, as well as the attainment of the overall purposes of the
International Undertaking".

However, first of all there was no shape to this concept yet, as this definition
did not make it clear as to what were the rights, who were to get these rights, and in
what manner. Another thing was that these Resolutions considered PGR as the
"common heritage of mankind", so that they should be freely available to all. The
contradiction here was that, while the FAO Resolution 4/89 clarified that there is no

431
Ibid.,

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incompatibility between UPOV and the IU it meant that, the PBR will be protected
even while access is given. However, the PGR of the farmers will remain
commonly available to all due to the "common heritage" concept.

Fortunately, FAO Conference 1991 stated that the concept of genetic

resources being the heritage of mankind, as applied in the IUPGRFA was subject
to the sovereignty of the States. With the new formulations in Resolution 3/91, the
FAO members also felt it necessary to state that the conditions for access to plant
genetic resources required further clarification432. This was a highly controversial
issue, which caused heated debate. To balance between proponents and opponents
and reach to a consensus decision, the Conference again adopted provisions on
Farmers' Rights. Building on the negotiations in 1987 and the 1989 resolutions, the
Conference decided to have an international fund of plant genetic resources for
helping the farmers, which never materialized. Thus, in the international level, this
is the beginning of the Farmers’ Rights.

It was also clear that farmers are to be given some rights while access is
allowed to the PGR which they conserved, as a reward, and they should also be
allowed to continue to use the PGR of the developed varieties for the future
conservation". So, farmers' access to the PGR of the plant breeders, and plant
breeders' access to the PGR of the farmers are thus the central issue, as this area is
not yet conceptualized and left to the national legislation, the shape of FR could be
found out only in the national legislations. Thus, this thesis tries to find out what
types of rights are given to farmers during their access to the PGR of plant breeders,
and during the plant breeders' access to their PGR and TK.

The Full Court of Australia in the case Cultivaust (P) Limited v. Grain Pool
(P) Limited433 observed with regard to farmers' rights as:

“the effect of Sections 14 and 17 of the PVP Act is that a person

engaged in farming activities (a 'farmer'), who legitimately obtains
propagating material by purchase, may harvest further propagating material

432
C 1991/REP, Conference Resolution 3/91, Paragraph (d).
433
[2005] FCAFC 223. Full Court of Federal Court of Australia.

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 from plants grown from the propagating material so purchased and may
condition that further propagating material for the farmer's use for
reproductive purposes and may reproduce that further propagating material.
The farmer may do those same acts in relation to a third generation of
propagating material harvested from that second generation of propagating
material. The farmer will not infringe plant breeders right by doing so.
Section 14(1) will not apply to the harvested material that consisted of
propagating material used for those purposes. However, Section 14(1) will
apply to all other material harvested from any of that propagating material."

India is the first country which has included farmers' rights in its protection
of plant varieties. The 2001 Act provides that a farmer who has bred a new variety
is entitled for registration and protection as a breeder of a new variety.434 The
definition of breeder also clarifies this position by including within the fold of
breeder, farmer or group of farmers.435

5.6 Farmer - Definition

Farmer is defined as a person or group of persons who are engaged

in farming directly or by supervision by engaging others and who conserve or
preserve traditional knowledge associated with the plant genetic resources

(a) Hold the control of PGR and

(b) Save, use, exchange and re-use plant genetic resources.

As per this definition, the rights associated during access to Traditional

Knowledge go to those who hold the PGR, and the rights regarding the use, save,
exchange, and re-use of PGR or the plant breeder go to those who are engaged in
farming and are responsible for further production.

434
PVPFR Act, S. 39(i) – (1) Notwithstanding anything contained in this Act – (i) a farmer
who has bred or developed a new variety shall be entitled for registration and other
protection in like manner as a breeder of a variety under this Act;
435
Ibid., S. 2(c) – “breeder” means a person or group of persons or a farmer or group of
farmers or any institution which has bred, evolved or developed any variety;

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 The Protection of Plant Varieties and Farmers Rights Act, 2001 defines, a
farmer as any person who –

i. cultivates crops either by cultivating the land himself; or

ii. cultivates crops by directly supervising the cultivation of land through
any other person; or
iii. conserves and preserves, severally or jointly, with any person any wild
species or traditional varieties or adds value to such wild species or
traditional varieties through selection and identification of their useful
properties.”436

The PVPFR Act defines even an agricultural labourer as a farmer, as the

only ingredient necessary is, cultivation of crops, irrespective of the ownership over
the land. Even a landlord is defined as a farmer, even if he does not cultivate it
himself, but only supervises. An addition that is found in this definition is, a person
who conserves and preserves, or adds value to wild or traditional varieties are also
considered as a farmer. This is a change in the definition of farmer which is caused
due to the new plant breeders rights, and as this Act deals with PBRs as well this
change is also adopted in the definition.

Though this definition covers many aspects of farmer, there are certain
missing links, in the light of the central theme of this thesis. As the formula above
showed, the definition should take into account two types of persons connected with
farming. Among the various types of farmers mentioned above, the agricultural
labourers who actually work in the field, and those who hold TK. But as the
production is under the control of someone else, (it can be a feudal landlord farmer,
or a person who took the land for lease from the capitalist landlord farmer), the
agricultural labourers cannot be said to have control over the PGR. But, as far as the
poor farmer, medium farmer and the rich farmer are concerned, they hold the TK as

436
PVPFRA, Section 2 (k) “farmers” means any person who - (i) cultivates crops by
cultivating the land himself; or (ii) cultivates crops by directly supervising the cultivation
or land through any other person; or (iii) conserves and preserves, severally or jointly, with
any other person any wild species or traditional varieties or adds value to such wild species
or traditional varieties through selection and identification of their useful properties.

233
well as the PGR. The feudal landlord farmer surely holds the PGR, but he may or
may not be holding the TK. But when it comes to benefit sharing, the persons who
added to the value of the plant genetic resource, the preservers, and holders of the
traditional knowledge, and the PGR will have to be considered as farmers. The
farmers' rights are needed in the areas of (a) access to TK (b) access to PGR (c)
access to the PGR (right to use, save, exchange and sell seed) of the plant breeders'
variety. Along with this, while access is given to the farmers' PGR and TK, they
need some rights over the same, like property rights, as in the case of plant breeders.
So, the custodians, preservers and developers of TK and PGR will be eligible to get
the rights associated with these two. The right to use, save, exchange and re-use
seeds is due to all those who are engaged in farming, who rather control the
production, who are going to handle seeds for further production. So, the definition
should cover all these persons separately, as their respective rights are also separate.

In the international level, the rights of the farmers are recognised to their
efforts in conserving, preserving and making available the PGR for further
development. It follows from this that, only persons who do the above are entitled
to FRs. Thus, if there are a group of persons who were identified as the conservers
of a particular variety of rice which is very commonly available, they can be given
rights over the same. Based on the same reason, they are also entitled to the right to
use, save, exchange and re-use the seeds of even the protected variety. Suppose
person, in India, who gets engaged in farming after retirement is using the seeds of
the protected variety, are they entitled to the right to use, save, exchange, and sell
the same? The answer is not based on the above reason for FRs, because the latter
person did not conserve, preserve and make available the PGR to the world. If that
is the case, he will not be even called a farmer. Thus, he will not be entitled to the
rights emanating from the right to use, called the right to compensation in case of
non performance or poor performance of the seeds (this is a right given in the
PVPFR Act).

5.7 Deficiency in the Farmers' Rights Concept

In fact, while access is given to the PGR of the farmers, one thing should be
remembered, and it is that, for a person who develops a new variety using this PGR

234
is going to be given an Intellectual Property Right called the PBR. This shows that
there is a possibility of privatizing the natural resources like the plants. Or that,
property rights can be given on plant varieties. To counter this argument regarding
FRs should be that, same kind of a property right should be given to the farmers as
well. So, there is a scope of developing a property regime for FRs. There can be
many rights from the Human Rights angle as well. These can be summarized as
below.

The plant breeders are given the IPR called the PBR because of the
intellectual input in developing a new variety, which is of various advantages to the
society. While examining the same regarding the PGR conserved and preserved by
the farmers, it should be said that there has to be intellectual input in identifying the
best PGR, and conserving them. Regarding TK, it is nothing but the constant
experimentation and observation of the farmers which made it possible to identify
the TK associated with a particular PGR. Without intelligence, even the
conservation and preservation of both these are not possible.

The issue of farmers’ rights is significant in relation to PBRs as provided in

the UPOV or TRIPS. In fact, the concept of farmers’ rights was developed in the
context of the development of intellectual property rights in agriculture.

However there were no legal instruments at a multi-national or national level

that protected farmers rights over their plant varieties. The attempts to acquire
patent rights in “Basmati rice”, “Neem”,437 “Turmeric”,438 etc were the outcome of

437
The European Patent Office (EPO) revoked in its entirety patent granted to the US
Department of Agriculture and the multinational corporation W.R. Grace for a fungicide
derived from seeds of the Neem tree. As a pesticide neem extracts were used against more
than 250 pests. It is also effective against fungus diseases. The properties of neem is also
used to cure common colds and flu.
The primary argument of the Indian Government was that derivatives of neem were
part of the traditional knowledge of our Country and that fungicide qualities of the neem
tree and its use had been known in India for over 2000 years. The multinational took the
case in appeal and in 2005, the European Patent Office upheld the contentions or the Indian
Government and dismissed the appeal.

235
non-enactment of laws on farmers’ rights. This led to increasing demand for
protection of farmers’ rights and their genetic resources.

Basmati is a variety of rice from the Punjab provinces of India and Pakistan.
The rice is a slender, aromatic long grain variety that originated in this region and is
a major export crop for both the countries.

The "Battle of Basmati" started in 1997 when US rice breeding firm Rice
Tec Inc. was awarded a patent relating to plants and seeds, seeking a monopoly over
various rice lines including some having characteristics similar to Basmati lines.
Concerned about the potential effect on exports, India requested a re-examination of
this patent in 2000. The patentee in response to this request withdrew a number of
claims including those covering basmati type lines. Further claims were also
withdrawn following concerns raised by the USPTO. The dispute has however
moved on from the patent to the misuse of the name "Basmati". In some countries
the term "Basmati" can be applied only to the long grain aromatic rice grown in
India and Pakistan. RiceTec also applied for registration of the trademark 'Texmati'
in the UK claiming that "Basmati" was a generic term. It was successfully opposed,
and the UK has established a code of practice for marketing rice. Saudi Arabia (the
world's largest importer of Basmati rice) has similar regulations on the labelling of
Basmati rice.

438
Turmeric (Curcuma longa) is a plant of the ginger family yielding saffron-coloured
rhizomes used 'as a spice for flavouring Indian cooking. Its unique properties also make it
an effective ingredient in medicines, cosmetics and as a colour dye. As a medicine, it is
traditionally used to heal wounds and rashes.
In March 1995, two expatriate Indians, Suman K. Das and Hari Har P. Cohy at the
University of Mississippi Medical Centre, Jackson, were granted a US patent for turmeric
to be used to heal wounds.
The Indian Council for Scientific and Industrial Research (CSIR) filed a case with the
US Patent Office challenging the patent on the grounds of "prior art," i.e. existing public
knowledge. CSIR said turmeric has been used for thousands of years for healing wounds
and rashes and therefore its use as a medicine was not a new invention. CSIR also
presented an ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian
Medical Association. The turmeric case failed to meet the novelty criteria. The US Patent
Office upheld the objection and cancelled the patent.

236
 The Code states that "the belief in consumer, trade and scientific circles is
that the distinctiveness of authentic Basmati rice can only be obtained from the
northern regions of India and Pakistan due to the unique and complex combination
of environment, soil, climate, agricultural practices and the genetics of the Basmati
varieties".

But in 1998 the US Rice Federation submitted that the term "Basmati" is
generic and refers to a type of aromatic rice. In response, a collective of US and
Indian civil society organizations filed a petition seeking to prevent
US-grown rice from being advertised with the word "Basmati". The US Department
of Agriculture and the US Federal Trade commission rejected it in May 2001, and
neither considered the labeling of rice as "American- grown Basmati" misleading,
and deemed "Basmati" a generic term. The name "Basmati" can be protected by
registering it as a Geographical Indication. However, India and Pakistan will have
to explain why they did not lake action against the gradual adoption of generic
status of Basmati over the last 20 years. For example, India did not lodge a formal
protest when the US Federal Trade Commission formally declared "Basmati"
generic.

There is an inherently conflictual relationship implied in the two rights, i.e.,

the breeders’ rights and the farmers’ rights. Farmers traditionally re-use the seed
from their harvests and therefore come in direct competition with the breeders who
develop plant varieties for commercial interests and then seek legal protection for
the exclusive market exploitation of their varieties. Intellectual property regime
takes away the traditional and community-centered control over seed conservation
and use, which has been the regular practice of farming communities all over the
country.

So, there is every justification for developing a sui generis law for
the protection of Farmers' Rights as an IPR, which could be left to the
national legislations. In fact, this will be a collective right, as different from an
individual right. The usual novelty criteria will have no significance at all.
The advantage of having such property right should be to avoid misappropriation

237
of the PGR and TK, and to allow its usage only by paying compensation to
allowed set of purposes.

5.8 The Emergence of Farmers’ Rights in India

The Plant Variety Protection and Farmers’ Rights Act, 2001 initially
emerged as a result of the demands of the seed industry for breeder’s rights.
A chapter on Farmers’ Rights was added to the Act due to pressure from NGOs.

Agriculture was generally excluded from IPR protection in India and there
was no legal system of Plant Breeders’ Rights or Farmers’ Rights for decades.
‘Common heritage’ or the principle of free exchange based on the view that the
major food plants of the world are not owned by anyone and are a part of our human
heritage governed genetic resources. Farmers were free to use, share and exchange
seeds and since breeders could not acquire plant variety protection, there was no
system of benefit sharing or compensation.

The initial demands for IPRs in agriculture arose with the change in policy
that allowed private sector entry into the seed sector with the New Seed Policy of
1988. The Seed Association of India, formed in 1985, first actively promoted the
need for plant breeders’ rights in India. With the conclusion of the TRIPS
agreement there was also external pressure on India to establish PBRs in India.
India’s public sector had initially objected to plant variety protection partly because
it would enable private companies to take advantage of breeding material developed
by the public sector, but this stance underwent a change due to the changing role of
the private sector and the relationship between the public and private sectors.439
Enormous protest against implementing TRIPS and introducing PBRs, arose from
non-governmental organizations and farmers’ lobbies in India. Their most effective
and forceful argument was that the IPR system as outlined in TRIPS recognizes
only agricultural innovations of breeders and corporations, but ignores informal
innovations of farmers and communities, especially in developing countries. They
asserted that TRIPS and western IPR regimes promote ‘bio-piracy’ as they only

439
Shaila Seshia, Plant Variety Protection and Farmers’ Rights – Law Making and Cultivation
of varietal control, Economic and Political Weekly, July 6th 2002, p. 2742.

238
recognize formal innovations and ignore indigenous knowledge systems. Bio-piracy
refers to the utilization of traditional knowledge or resources by industrialized
nations to create profitable products without compensation. TRIPs allows countries
to establish ‘effective sui generis’ systems, but many developing countries are
implementing even higher standards than the minimum requirement, such as UPOV
1991. Developing countries are also subject to pressure to implement higher
standards from TRIPs plus agreements, including regional trade agreements.

The government formulated a draft of a bill to grant PBRs in 1993/94. The

draft led to enormous controversy in spite of the government’s attempts to take into
account the various demands of the actors while framing the bill. The bill provided
for plant breeders’ rights through provisions based on UPOV. The first draft of the
bill also contained a clause on community rights and farmers’ rights. The farmers
right under this draft included farmers’ right to save, use, exchange propagating
material of seed and benefit sharing. There was no concept of farmers’ rights as
ownership rights or rights to register their varieties in this draft.

The bill was opposed both by NGOs and industry and with this impasse the
government began the process of revising the draft. The Ministry of Agriculture
prepared a second draft in 1996 and a third one in 1997. The third draft added the
words ‘Farmers’ Rights’ in the title and was labeled the Plant Variety Protection
and Farmers’ Rights Act. NGOs, however, criticized both of the bills for not
providing adequate protection to farmers. NGOs claimed that benefit sharing was
vague under the bill, there were no farmer’s representatives in the Authority, and
there was no system for registering farmers’ varieties.

The process of accommodating the interests of various actors began with

another draft introduced in Parliament in 1999 (Protection of Plant Varieties and
Farmers Rights Bill) and sent to a Joint Committee of Parliament (JPC). The Joint
Parliamentary Committee’s main revision was the inclusion of a separate chapter on
Farmers’ Rights. In 2001, the Bill was passed and made into a law.

The final version of the Bill was largely accepted by the major stakeholders.
Industry understood that the concept of farmers’ rights as seen as an alternative IPR

239
system actually reinforces their position on IPRs and enables them to gain plant
breeders’ rights in India. NGOs accepted the bill as it provided for a mechanism for
granting protection for farmers’ varieties on par with breeders’ varieties.

5.9 PVPFR Bill 1999 and Farmers’ Rights

The PVPFR Bill 1999 provided for Farmers’ rights under Section 31 which
reads as :

"Nothing contained in this Act shall affect the right of a farmer to save, use,
exchange, share or sell his farm produce of a variety under this Act : provided that a
farmer shall not be entitled for such right in case where the sale is for the purpose of
reproduction under the commercial marketing arrangement".

Internationally, farmers' rights have only been acknowledged in a non-

binding resolution of the FAO Conference known as the International Undertaking
on Plant Genetic Resources. No treaty has yet recognized these rights and still there
is disagreement on the nature of the rights. The question as to whether the farmers'
rights should be specifically provided in the proposed legislation which as such
under the TRIPS Agreement is meant for regulating the exclusive rights granted to
breeders on their new plant varieties. The only relevant aspect which needs to be
amplified in the Bill is that the farmers shall continue to enjoy rights and privileges
enjoyed by them as hitherto, i.e. prior to the enactment of this legislation. This
would mean that the exclusive rights granted to the breeder shall not extend to any
normal activity of the farmer. It would be within farmer’s rights to save seeds for
his new harvest, exchange seeds with other farmer and sell seeds surplus to his
requirement which need to be disposed off in the market. Legally, the farmer cannot
use the same brand name as that of the breeder for sale of his surplus produce.
However, there should not be any difficulty in labelling the surplus seeds by the
denomination given to the variety harvested from the protected seeds for sale by the
farmer in the market. The Bill provides for benefit sharing for the farmers if they
are able to establish the linkage of the new protected variety to the variety
developed and being used by him. This is a very good provision and the long
pending need to remunerate the farmers for their achievements would be

240
accomplished. The concerned Organization will have to act fast and in a judicious
manner to do justice to this laudable provision.

There is also no need to provide for any protection to the farmers' variety as
the same would not qualify for grant of exclusive rights because such varieties have
already fallen in public domain. In case any farmer wants to embark upon
commercial activity of its new protected variety, he must obtain compulsory license
right for such activity.

5.10 Farmers’ Right under the PVP and FR Act 2001

The government of India inclined to accept patents described patenting of

seeds as great good fortune for farmers and prosperity for rural India. But
aggressive and sustained campaign initiated by the Gene Campaign and other NGO
communities forced the government to change its stand and opt for the TRIPS sui
generis system instead.

Gene Campaign's position right from the start has been that if the status quo
has to be changed and PBR is to be granted then our legislation should also grant a
strong farmers' right simultaneously. Gene Campaign's demand has been for
farmers' right that would allow the farming community to retain the same control
over seed and seed production. At the same time, it was also insisted by the Gene
Campaign that Indian law has to grant well defined rights to its farmers. These
rights have to be recognized because of the past and present contributions made by
the farming community to the conservation of agro bio-diversity and their role as
dynamic breeders of new varieties which anchor the food security of the world. The
demands made by this campaign for farmers' rights were comprehensive and
included several other features that would protect the farming community. This
includes payment for the use of farming varieties and their informed consent along
with a compensation for the farmer if poor quality spurious seeds led to crop failure.
It was also demanded to protect the right of the farmer as a seed producer while
making certain new companies and also as a seller to other farmers even if a
breeders' right protected the variety. This right of the farmer to sell seed was crucial
to maintaining his control over it and moreover it is also central to the nation's self

241
reliance in agriculture. This clause, the right to sell seed was the most fiercely
resisted and was till the end, the major bone of contention.

As a result of the Gene Campaign and efforts of NGOs, the Indian

government in response to TRIPS Agreement relented and started enacting a series
of domestic laws to implement the commitments it has made. The PVPFR Act,
2001, is the Indian sui generis legislation, which is the first in the world to grant
formal rights to farmers in a way that their control over genetic resources and their
self-reliance in agriculture is not jeopardized. The significant aspect of this
legislation is that it charts its own course, deviating from the norms set by UPOV.
The innovative Indian legislation has opened up interesting possibilities for
developing a developing country platform for regulating breeders' and farmers'
rights so that both are acknowledged and protected.

The Indian law now recognizes the farmer not just as a cultivator but also as
a conserver of gene pool and a breeder who has bred several successful varieties.
The Bill makes provisions for such farmer's varieties to be registered with the help
of NGOs so that they are protected against being scavenged by formal sector
breeders. The rights of rural communities are acknowledged as well.

The farmers' rights defined is an international recognition to the contribution

made by farmers for the creation and conservation of genetic diversity in all crop
plants and that this diversity provides the basis for global agriculture, in the past,
present and future. This recognition includes a need to provide reward and monetary
incentives to promote conservation by farmers, particularly from regions of high
genetic diversity. The IUPGR also affirmed the need to make the benefits of crop
improvements by breeding and other scientific methods accessible to farmers. All
these elements of farmers' rights are incorporated in the PVPFR Act.

The Act makes provisions for such farmer’s varieties to be registered,

with the help of NGOs so that they are protected against being scavenged by formal
sector breeders. The rights of rural communities are acknowledged as well. Farmers'
rights are dealt under Sec. 39 of the Act in the following way:

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 A farmer shall be deemed to be entitled to save, use, sow, exchange, share
or sell his farm produce including seed of a variety protected under this Act in the
same manner as he was entitled before the coming into force of this Act; provided
that the farmer shall not be entitled to sell branded seed of a variety protected under
this Act.

Explanation: For the purpose of clause (iv) branded seed means any seed
put in a package or any other container and labeled in a manner indicating that such
seed is of a variety protected under this Act.440

Hence, Explanation to Sec. 39(iv) allows the farmer to sell seed in the way
he has always done, with the restriction that this seed cannot be branded with the
breeder's registered name. In this way, both farmers' and breeders' rights are
protected. The breeder is rewarded for his innovation by having control of the
commercial market place but without being able to threaten the farmer’s ability to
independently engage in his livelihood, and supporting the livelihood of other
farmers.441

5.11 Protection of Interests of Farmers

The primary compulsion for enacting the PVPFR Act is India's commitment
with WTO to provide intellectual property protection on plant varieties. While
complying with this commitment, Indian lawmakers have shown equal concern to
respect the intellectual contribution of Indian farmers, who developed all traditional
varieties. They were also concerned that the protection of intellectual property
rights on varieties should not erode the traditional rights of farmers on seeds. PBR
was designed to promote development of superior varieties beneficial to farmers.
Farmers are also protected from unethical business practices of selling seeds with
exaggerated claim on their performance or levying unreasonable prices. The PVPFR

440
PVPFR Act Sec. 39 (1) (iv).
441
Suman Sahai, India’s Plant Variety Protection and Farmers’ Right Act, 2001, Current
Science, Vol. 84, No. 3, Feb. 2003, pp. 408-410.

243
Act seeks to institutionalize the public interest on conservation by provisioning
reward and recognition to individual and community conservers.442

5.12 India's Protection of Plant Varieties and Farmers' Rights Act

India has enacted PVP and FR Act in compliance to the TRIPS requirement.
The Act deals with PVP as well as the farmers' rights and follows a holistic
approach. The sui generis system adopted by India is unique in the world in the
sense that it has taken the farmers' rights concept a step forward and
genuinely addresses the concerns of farmers as breeders, innovators, conservers,
etc. It has tried to incorporate the features of UPOV and ITPGRFA along with
certain distinctive features of its own as per requirement of farmers. The term
'farmers' rights' per se is used only in the Indian legislation, ITPGRFA and
Bangladesh draft. No other Asian countries' Act uses the term 'farmers' rights'.
PVP and FR Act of India recognizes various rights of farmers as per Section 39
(See Table 5.1).

Table 5.1

Rights Provided to Farmers in the PVP and FR Act, 2001

Description of Rights Also available in

1. Farmers' rights Rights to seeds ITPGRFA, UPOV

Right to register varieties UPOV
Right to reward and recognition as ITPGRFA
conserver
Right to information about expected
performance and compensation for
under-performance

442
A unique aspect of the 2001 Act is that it confers three concurrent rights – to breeders, to
farmers and to researchers. When it comes to Farmers’ Rights, the Act recognizes the
farmer as cultivator, conserver and breeder.

244
2. Other rights Right to benefit sharing ITPGRFA
Right to compensation for undisclosed ITPGRFA
use of traditional varieties
Right to adequate availability of UPOV
registered material
Right to free services
Protection from innocent infringement
of breeders' rights

5.13 The Nine Rights of Farmers

The PVPFR Act provides a separate chapter on farmers' rights.443

The farmers' rights contained in this chapter and elsewhere in the Act
constitute nine important rights. These rights acknowledge the role of farmers in
conserving varietal diversity, honour their traditional rights on seeds to
promote conservation, their poor economic capability to buy seed for every
sowing, their low legal literacy and their entitlement for equitable share of
benefit arising from new varieties.

5.13.1 Right on Seeds

The farmers' right on seeds is a traditional right enjoyed by farmers all along
the history of agriculture.444 UPOV 1978 Act included this as farmers' privilege
while UPOV 1991 Act made it an optional exception. This privilege has been
recognized as fundamental to the realization of farmers' rights by ITPGRFA as
described in its preamble. This right includes the right to save the seed from one's
crop and use the saved seed for sowing, exchanging, sharing or selling to other
farmers. It is fundamental to the conservation role performed by farmers. The
process of conservation encompasses the total genetic variability in time and space,
including traditional and new varieties; the farmers' right on seeds encompasses the

443
Chapter VI of the PVPFR Act - Sections 39 to 46
444
Bala Ravi, S., India’s Protection of Plant Varieties and Farmers’ Rights Act, Manual on
Farmers’ Rights, MSSRF, 2004.

245
total genetic variability, including protected varieties. The PVPFR Act, therefore,
allows this right on seed to all varieties, including varieties registered under this
Act.445 The Act restricts farmers from selling seeds of a protected variety in
packages and containers with labels bearing its registered name.446 To further
safeguard this right on the seeds of registered varieties, the Act prohibits use of
technologies like the terminator gene technology, which destroys the germination
capability of saved seeds.447

5.13.2 Right to Register Traditional Varieties

The PVPFR Act allows the registration of traditional varieties or farmers'

varieties.448 Registration of the variety grants PBR on the variety, which allows
exclusive legal right to the PBR-holding farmers to produce and market its
seed.449 Farmers are awarded PBR by the Act on their recognition as breeders.
Traditional varieties developed or conserved by a community of farmers and new
varieties developed by one or more farmers are eligible for registration. In the
case of registration of a traditional variety, it is important to involve all
communities associated with its conservation, if there is no clear evidence to
establish an exclusive role for the origin of the said variety. Similarly, when a
variety developed by a farmer is registered, it is important to recognize spousal
contribution under joint ownership. Farmers need not have to pay any fee
either to register their varieties or to renew these registrations.450 This is a
major incentive to the innovative breeders among farmers. On the contrary,
professional breeders and public research institutions are required to pay
separately Rs.5,000 to 10,000 as registration and renewal fees. The PVPFR Act

445
Sec. 39 (1) (iv)
446
The provisions on the right to seed specify that farmers are entitled to save, use, sow, re-
sow, exchange, share and sell farm produce, including seeds of varieties protected by plant
breeders’ rights. They are, however, not allowed to sell seeds of protected varieties as
branded packages. All the same, this stands as the most liberal legislation to date in this
sphere, allowing farmers all the customary rights they previously enjoyed.
447
Section 18 (1) (c)].
448
Sec. 14 of PVPFR Act.
449
Ibid., Sec. 28.
450
Sections 18 and 44.

246
is unique in respect of this right, because the plant variety protection laws of many
other countries do allow only protection of new varieties bred by professional
breeders.

5.13.3 Right for Reward and Recognition

Right to reward and recognition to farmers is based on the fact that their
generations have conserved, improved and made available plant genetic resources,
and this contribution has not been sufficiently recognized or rewarded. ITPGRFA
has recognized such a contribution but not identified it as a component of farmers'
right under Article 9. Rather, Articles 13 and 18 of the Seed Treaty provide for
support to farmers who conserve plant genetic resources.

In recognition of the important role farmers are playing for the conservation
of varietal wealth of crop plants, the PVPFR Act has a provision to reward and
recognize individual farmers or farming and tribal communities for such
contribution.451 According to the Act, a National Gene Fund is to be created to
facilitate reward and recognition to eligible individual farmers and
communities. This is provided as an incentive to encourage conservation
undertaken by farming and tribal communities. Farmers conserving traditional
varieties and wild species of crop plants are deemed eligible to receive reward
and recognition.

The reward is to be given from Gene Fund. In 2007, the PVP & FR
Authority started the Plant Genome Savior Community Recognition for this
purpose. However, such a provision does not exist in any other Asian country.

5.13.4 Right for Benefit Sharing

Right to benefit sharing is recognized as one of the farmers' rights under

Article 9 of ITPGRFA. Section 26 of the PVP & FR Act of India recognizes the
right of benefit sharing with the breeder of initial variety, where a breeder may
include a farmer.

451
Sections 39 (1) (iii).

247
 The Act provides for equitable sharing of the benefit earned from the new
variety with farming or tribal communities that had contributed varieties used as
parents.452

Normally, all applicants who seek to register new varieties are required to
declare the source of the varieties used as parents for breeding new varieties.453
Farmers are given opportunity to submit claims for benefit share, when their variety
is used as parents.454 Claims for benefit share is made when breeder discloses the
use of specific varieties conserved by farmers of a region or on the basis of strong
grounds which may substantiate undisclosed use of specific farmers' variety by the
breeder. Claims for benefit share has to be made in Form PV-7, prescribed by the
Authority within six months from the date of advertisement inviting such claims by
the Authority. On examination of such claims by the Authority applicant eligible for
benefit sharing and the quantum of benefit to be shared are decided. The PBR-
holder of the variety is required to remit the awarded benefit share in the National
Gene Fund.455 The benefit share may be disbursed from the National Gene Fund to
the eligible individual, community or institution.456

452
Section 26 (5).
453
Section 18 (e) and (h).
454
Section 26 (2)
The Thailand Plant Varieties Protection Act, 1999 provides for the person who is
involved in conserving or developing local domestic plant variety a 'right to profit sharing'.
It also provides for the percentage of profits to be allocated to these groups.
The Philippine Plant Varieties Protection Act, 2002 is silent regarding benefit sharing.
Nevertheless, the Magna Carta for Small Farmers, Section 2 affirms the government policy
for equitable distribution of benefits and opportunities realized through empowerment of
small farmers. Further, Section 1 of the Guidelines for Bio-prospecting Activities in the
Philippines Series of 2005 declares that the state is to ensure fair and equitable sharing with
the resources providers of the benefits derived from the utilization of biological resources.
Moreover, Section 5 of Community Intellectual Rights Protection Act of Philippines
provides that a community, as a general owner of any form or product of traditional
knowledge, is entitled to collect a justifiable percentage from all profits derived from the
commercial use of their knowledge, for a period of ten years starting from the date of
registration.
455
Section 26 (6).
456
Sec. 45 (2) (a).

248
 Therefore for claiming eligible benefit share, the farming communities
should have (i) timely information on the varieties being registered under the Act.
(ii) timely understanding on the notification on such varieties inviting claims for
benefit share, and (iii) capability to understand the disclosed characteristics of the
new variety vis-a-vis those of parental varieties. The capability of farmers in
accessing this right can be strengthened by vigilant farmers' associations and
panchayats by regularly following the notifications of the PVPFR Authority.
Assistance from governmental or non-governmental organizations may also help
farmers in this regard.

5.13.5 Right to get Compensation

The primary purpose of registration of a plant variety under this Act is to

establish exclusive commercial right on the variety. Commercial demand arises
from the capability of the variety for better agronomic performance. Some of the
seed companies, however, promote their seed by making exaggerated claims on the
agronomic performance of their varieties. Farmers purchasing and cultivating such
seeds may eventually realize the deceit. The PVPFR Act has a provision to check
such unfair marketing practices by breeders and their seed sellers. The Act requires
that the seed be sold with a declaration on its agronomic performance and the
cultivation conditions ensuring this performance. The performance could be higher
yield, better pest or disease resistance, better quality, and so on. In the event if
farmers are not able to achieve the claimed performance on having cultivated under
the specified conditions, the PBR-holder will be made liable to pay compensation to
affected farmers.457

457
Section 39 (2) - Where any propagating material of a variety registered under this Act has
been sold to a farmer or a group of farmers of any organization of farmers, the breeder of
such variety shall disclose to the farmer or the group of farmers or the organization of
farmers, as the case may be, the expected performance under given conditions, and if such
propagating material fails to provide such performance under such given conditions, the
farmer or the group of farmers or the organization of farmers, as the case may be, may
claim compensation in the prescribed manner before the Authority and the Authority, after
giving notice to the breeder of the variety and after providing him an opportunity to file
opposition in the prescribed manner and after hearing the parties, may direct the breeder of

249
 Such claims for compensation are made to the PVPFR Authority in Form
PV-25. The Authority on confirmation of the compensation claim decides the
amount of compensation to be paid by the PBR-holder. For establishing the
compensation claim farmers may be required to prove that they had cultivated a
specific variety with seed marketed by a specific PBR-holder, that they cultivated
variety in accordance with the recommended practices in recommended region and
that they suffered an estimated loss due to poor performance of the crop.

5.13.6 Protection against Bad Seed

The farmer in principle is protected against the supply of spurious and/or bad
quality seed in which he is adequately compensated in the event of crop failure
resulting from sowing of bad seeds.

However, the clause is weakly framed, leaving too much to the discretion of
the Plant Variety Authority which will fix the compensation. This could lead to
arbitrary decisions and should be amended. Compensation should be large enough
to be a deterrent. In addition, a jail term should be provided if the breeder repeats
the offence.458

5.13.7 Farmers' Right to receive Compensation for Undisclosed use of

Traditional Varieties

It was earlier stated that the cause of benefit sharing arises from a declaration
made by the breeder that the pedigree of a new variety has certain traditional
varieties or traditional knowledge sourced from certain regions/communities.
However, there can be situations where the breeder of a new variety may not
disclose the correct identity of parental varieties or knowledge. Under such
circumstances if such parental varieties belonged to one or more rural communities,
they may be denied the opportunity for benefit share due from the new variety. The
communities concerned also may not have the capability to detect such use of their

the variety to pay such compensation as it deems fit, to the farmer or the group of farmers
or the organization of farmers, as the case may be.
458
Sahai S. Plant Variety Protection and Farmers Rights Law’, Economic and Political
Weekly, September 2001.

250
varieties or traditional knowledge in the breeding of a new variety. Under such
situations, any third party who has a reasonable knowledge on the possible identity
of the traditional varieties or knowledge used in the breeding of the new variety, is
eligible to prefer a claim for compensation on behalf of the concerned local or tribal
community.459 The third party could be an NGO, an individual, a government or
private institution. Such compensation claims are to be submitted to the
PVPFR-Authority by such third party. The Authority on verification of the veracity
of the claim shall admit the same and decide on the compensation to be awarded.
The awarded compensation will be remitted in the National Gene Fund by the
PBR-holder. The National Gene Fund shall disburse the compensation to the party
who made the claim. A good understanding of plant varieties and professional skill
in plant breeding science will help in detecting many of such eligible cases for
compensation.

5.13.8 Farmers' Right for the Seeds of Registered Varieties

One of the objectives of the Act is to promote the availability of high quality
seed and planting material to farmers for accelerated agricultural development. The
Act tries to achieve this objective by ensuring adequate availability of seeds of
registered varieties to farmers at reasonable cost. According to the Act, when the
PBR-holder does not satisfy this requirement three years after registration of the
variety, farmers have the right to take the matter of non-availability of seed, its poor
supply, or its high price to the PVPFR-Authority.460

On receiving such complaints and on its verification, the PVP Authority may
take remedial actions. One of these actions may be enforcement of compulsory
licensing. Compulsory licensing revokes the exclusive right on commercial
production and marketing of seed granted to the PBR-holder and transfer this right
to third parties determined by the Authority. This revoke of exclusive right is done
for a period decided by the Authority. The third parties, who are given right to

459
Section 41 (1).
460
Section 47.

251
produce and market the seed, are required to meet the demands and supply seed at
reasonable prices.

5.13.9 Farmers' Right for Receiving Free Services

Considering the poor economic capability of farmers and with a view that
this economic weakness shall not be a hurdle for accessing farmers' rights, the
PVPFR Act totally exempts farmers from paying any fees.461

The Indian PVP &FR Act in Section 44 has exempted farmers from paying
any fees with respect to any proceeding before the Authority or Registrar or the
Tribunal or the High Court. They also need not pay fees for registration of farmers'
variety, DUS testing, etc. This provision is exclusive to India.

This exemption is applicable to individual, group or community of farmers.

The exemption includes the fees required to be paid to the Registrar of Plant
Varieties for registration of farmers' varieties, for conducting tests on them, for the
renewal of registrations and the fees prescribed for opposition, benefit claim, etc.
This exemption also covers fees on all legal proceedings at the PVPA-Tribunal or
the Intellectual Property Appellate Board (IPAB) or any Court of law. This
exemption, however, does not include fee on lawyers privately hired by farmers to
represent them at the Tribunal or Appellate Board or Courts.

5.13.10 Farmers' Right for Protection Against Innocent Infringement

All laws have penal provisions stating what constitutes an infringement and
what punishment is to be awarded to different proven infringements.462 A safeguard
to farmers against innocent infringement is provided in the Act.463 Section 42 of

461
Secs. 18 and 44
462
Chapter X – Sections 64 to 77 deal with Infringement, Offences, Penalties and Procedure.
463
Sec. 42 – Farmers who unknowingly violate the rights of a breeder are not to be punished if
they can prove that they were not aware of the existence of such a breeder’s right.
Ensuring Farmers’ Rights to save, use, exchange and sell seed in this way must be seen
as a success with regard to this component of Farmers’ Rights, as these rights are basically
fully ensured through the Act. On the whole, India’s Protection of Plant Varieties and
Farmers’ Rights Act is the most advanced in terms of Farmers’ Rights to save use,

252
Indian PVP &FR Act protects innocent infringement of the rights created under this
Act by a farmer, if the farmer was not aware of existence of such right at the time of
infringement. Therefore, no relief or cognizance of any offence under the Act can
be taken as the act is not considered as infringement.464

According to this, a Court is prevented from prosecution of a farmer on

charges of infringement of the Act, if the respondent farmer makes an affirmation
that he/she was not aware of the legal provision deemed to have been violated by
him or her at the time of such commission.465 This highlights the importance of
legal literacy to farmers on this Act, not only to prevent infringement proceedings
against them, but also to create capability to access the rights provided to them.

5.14 Importance of Farmers' Right to Sell Seed

The pivotal importance of the farmer having the right to sell (not save nor
exchange, but sell) seed has to be seen in the context of seed production in India. In
India, the farming community is the largest seed producer, providing about 87% of
the country's annual requirement of over 60 lakh tons. If the farmers were to be

exchange and sell seed to date. It applies to all farmers in India, and to all crop species.
The practice of saving, using, exchanging and selling seeds may well exist elsewhere, but
India is the only country so far where a law has been passed establishing and securing
Farmers’ Rights to this extent.
464
PVP & FR Act 2001, Section 42, Notwithstanding anything contained in this Act, – (i) a
right established under this Act shall not be deemed to be infringed by a farmer who at the
time of such infringement was not aware of the existence of such right; and (ii) a relief
which a court may grant in any suit for infringement referred to in Section 65 shall not be
granted by such court, nor any cognizance of any offence under this Act shall be taken, for
such infringement by any court against a farmer who proves, before such court, that at the
time of the infringement he was not aware of the existence of the right so infringed.
465
Thailand protects any act committed in good faith relating to a protected new plant variety
under Section 47(2) of its PVP Act, 1999. Section 33(3) of the Thailand Act has recognized
such acts as an exception to the rights of the holder of the new plant variety. It also protects
any act done for non-commercial purposes from being legal infringement.
In the case of Malaysian Act it provides for certain limitation on the breeders' right under
Section 31. It protects any act done privately on a non-commercial basis or any act done for
an experimental purpose from being an infringing act. It, however, does not mention act
done in good faith as an exception to the rights of the breeders.

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denied the right to sell, it would not only result in a substantial loss of income for
there but far more importantly, such a step would displace the farming community
as the country's major seed provider.466

Weak Farmers' Rights, including denial of right to sell seed, will allow seed
corporations to dominate the seed market since farmers will be denied the right to
function as seed producers. The space vacated by them will be taken by the seed
industries since public sector institutions have been so weakened by budget cuts that
they could not compete. The seed industry would then become the dominant source
of seed. Control over seed production is central to food security which is in the
forefront of national security.467

5.15 Other kinds of Farmers' Rights in the 2001 Act

i. Contribution of Rural/Local Communities

Apart from the right to sell non-branded seed of protected varieties, the
rights of farmers and local communities are protected in other ways too. There are
provisions for acknowledging the role of rural communities as contributors of
landraces and farmers' varieties in the breeding of new plant varieties. Breeders
wanting to use farmers' varieties for creating essentially derived variety, cannot do
so without the express permission of the farmers involved in the conservation of
such varieties.

Anyone is entitled to register a community's claim and have it duly recorded

at a notified centre. This intervention enables the registration of farmer varieties
even if the farmers themselves cannot do this due to illiteracy or lack of awareness.
If the claim on behalf of the community is found to be genuine, a procedure is
initiated for benefit sharing so that a share of profits made from the use of a farmer
variety in a new variety goes into a National Gene Fund.

466
Bala Ravi, S., India’s Protection of Plant Varieties and Farmers’ Rights Act, Manual on
Farmers’ Rights, MSSRF 2004.
467
Sahai, S., An Analysis of Plant Variety Protection and Farmers Right Act 2001, Gene
Campaign, New Delhi, 2001.

254
ii. Disclosure

Other details supportive of the rights of farmers are the explicit and detailed
disclosure requirements in the passport data required at the time of applying for a
Breeders' certificate. Concealment in the passport data will result in the Breeders'
certificate being cancelled.

iii. Gurt (Terminator) Forbidden

Breeders will have to submit an affidavit that the variety does not contain a
Gene Use Restricting Technology (GURT) or terminator technology.

iv. Protection against Innocent Infringement

The draft legislation has also attempted to address a concern voiced by

several quarters, that when the new system of Plant Breeders' rights is imposed for
the first time, there will probably be many cases of unknowing infringement of
breeders' rights. Section 42 specifies that the farmer cannot be prosecuted for
infringement of rights specified in the Act if he can prove in court that he was
unaware of the existence of such a right.468

v. Exemption from Fees

Further, protecting farmers from the new set of provisions being

put in place, the Bill stipulates that if farmers wish to examine documents
and papers or receive copies of rules and decisions made by the various authorities,
they will be exempt from paying any fees. Such fees will be payable by all other
people.469

468
Sec. 42 – Notwithstanding anything contained in this Act –
(i) a right established under this Act shall not be deemed to be infringed by a farmer who
at the time of such infringement was not aware of the existence of such right; and
(ii) a relief which a court may grant in any suit for infringement referred to in section 65
shall not be granted by such court, nor any cognizance of any offence under this Act
shall be taken, for such infringement by any court against a farmer who proves, before
such court, that at the time of the infringement he was not aware of the existence of the
right so infringed.
469
Sec. 44 - A farmer or group of farmers or village community shall not be liable to pay any
fees in any proceeding before the Authority or Registrar or the Tribunal or the High Court
under this Act or the rules made there under.

255
5.16 Tribals' Rights vis-a-vis Farmers' Rights in North East India

There is a great potential for developing and enhancing forest-based

livelihoods in many parts of North East India. However, this requires, in addition to
the appropriate policy instruments, a strong scientific basis for determining
harvesting and extraction levels, value addition, marketing and benefit sharing.
Specific options need to be studied throughout the life cycle from harvesting to
benefit sharing in order to develop mechanisms that can enable forest based
livelihoods to play a role in economic development as well as an incentive for
conservation. This is only possible with recognition of District Councilor Tribal
Councils in the region which already have their own traditional laws for
agriculture/natural resource management.

North East is now under increasing pressure to unleash its resources for
economic development. Any development process without taking into cognizance
the environmental safeguards in general and tribal rights in particular may cause
irreversible damage to the region. Globally three, and nationally five priority setting
exercises have been carried out to highlight the bio-diversity significance of the
region. This priority setting processes can help identify key sites and species which
are ecologically unique or important from a social, cultural and environmental
perspective.

In a situation where the north eastern states of India till recently have been
alienated from the outer world due to one or more reasons and now prone to
globalization will have to learn the ways of incorporating new technologies into
their traditional lifestyles so that they can still generate income for their livelihood
and commercially maintaining their environmentally sustainable ways of generating
income and also effectively begin to interact with the global commercial economy.
Education and advocacy will thus play a key role in north east in this process of
community empowerment that will make these local communities self sufficient
and knowledgeable about their needs and sources of inputs required to meet the
same.

256
 In this pursuit of self empowerment, the communities of North East India
will need to develop better local markets as well as seek to participate in global
markets for goods and services for which their own natural resources give them a
comparative advantage. These may include but not be limited to such items as local
varieties of crops and breeds of animals, carbon credit trading, renewable energy,
non-timer forest products, and sustainably managed timber tourism. Obviously also
the farmers and local communities of north east India currently lack the negotiating
skills necessary to successfully bargain with buyers and provide goods and services
in sufficient quantity and consistent quality to compete in global markets. It is thus
necessary to train the farmers and community leaders to become smart business
people with access to computers and other sophisticated tools.

Recognizing communities of North East India of their tribal or other rights

vis-a-vis farmers' rights by improving governance and empowerment, there needs to
be systematic collaboration between a range of organizations including government,
international institutions, NGOs and the private sector to:

promote policies and approaches that respond effectively and

efficiently to community demand for services including re-orienting
and building the capacity or local government;
promote management by the user community, local government and
private sector to ensure efficient and reliable services;
support and facilitate decision-making processes for resources
management with particular emphasis on the inclusion of women in
decision making.

5.17 Clauses that Need Amendment

After an indepth study of Farmers’ Rights under the legislation PVP and FR
Act, 2001, the scholar feels that certain clauses of the Act needs amendment as
detailed below :

257
i. Benefit Sharing470

The use of farmer’s variety to breed new varieties will have to be paid for.
Revenue will flow into a National Gene Fund. Despite its good intentions of
protecting the interests of the farming community, the formulation of this section
46(2)(d) is likely to create problems in implementation because the drafting is poor.
The Gene Fund should be the recipient of all revenues payable to the farming
community under various heads.

The method for fixing and realizing benefit sharing should be made simpler
and easier to implement. One approach to fixing benefit sharing could be a system
of lump-sum payments, based for example on (projected) volume of seed sale.

ii. Protection against Bad Seed

In providing a liability clause in the section on Farmers' Rights, the farmer

in principle is protected against the supply of spurious and/or poor quality seed
leading to crop failures. At present there is too much left to the discretion of the
Plant Variety Authority which will fix the compensation. This could lead to
arbitrary decisions and should be amended. If it is proven that the breeder has made
false claims and the farmer has suffered a crop failure, then compensation should be
awarded amounting to at least twice the projected harvest value of the crop.
Compensation should be large enough to be a deterrent. In addition, a jail term
should be provided if the breeder repeats the offence.

Apart from the right of registration of a new variety, the farmer has the
right to register a farmers' variety.471 This allows ownership rights to the farmers
apart from the privileges. The only condition imposed is that the farmer shall not be
entitled to sell branded seed of a variety protected under the Act.472 Protection
against bad seed is a safeguard to the farmer. According to this provision, the
breeder has to disclose to the farmer the expected performance of the variety under

470
Sec. 26 of the PVPFR Act, 2001 and Rules 41 to 44 of the PVPFR Rules 2003.
471
PVPFR Act, S. 39 (1) (ii) – the farmers’ variety shall be entitled for registration if the
application contains declaration as specified in clause (h) of sub-section (1) of section 18;
472
Ibid., S. 39 (1) (iv)

258
given conditions and if the variety fails to give the expected performance when it
was sold to him, he is entitled to compensation.473 On receipt of a compensation
claim from the farmer under Section 39(2) of the Act, the Authority is required to
give notice to the registered breeder about the compensation claim.474 On receipt of
the notice from the Authority, the breeder has to file his notice of opposition within
three months from the date of receipt of the notice. The Authority shall after giving
an opportunity of being heard direct the breeder to pay such amount as
compensation as it deems fit.

The breeder or applicant is also required to provide information regarding

use of genetic material conserved by any tribal or rural families in the breeding or

473
Ibid., S. 39 (2) – Where any propagating material of a variety registered under this Act has
been sold to a farmer or a group of farmers of any organization of farmers, the breeder of
such variety shall disclose to the farmer or the group of farmers or the organization of
farmers, as the case may be, the expected performance under given conditions, and if such
propagating material fails to provide such performance under such given conditions, the
farmer or the group of farmers or the organization of farmers, as the case may be, may
claim compensation in the prescribed manner before the Authority and the Authority, after
giving notice to the breeder of the variety and after providing him an opportunity to file
opposition in the prescribed manner and after hearing the parties, may direct the breeder of
the variety to pay such compensation as it deems fit, to the farmer or the group of farmers
or the organization of farmers, as the case may be.
474
PVPFR Rules R. 67 – Procedure on application for claim for compensation under
Rule 66 -
(1) The authority shall give notice to the registered breeder about the compensation claim
received in respect of the registered variety.
(2) After receiving a notice from the Authority under sub-rule (1), the registered breeder
may, within three months from the date of receipt of such notice, file notice of
opposition in Form PV-26 of the First Schedule.
(3) In the eventuality of the breeder failing or defaulting to render his opposition, within a
period of three months, from the date of receipt of the notice for compensation, it shall
be presumed that he has no opposition to such claim and accordingly such claim shall
be decided.
(4) The Authority shall, upon receiving opposition from the breeder give opportunity to
both the parties of being heard and may direct the breeder to pay such compensation to
the farmer, the group of farmers or the organisation of the farmers, as the case may be,
as it deems fit.

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development of the variety.475 Any person or group of persons or any governmental
or non-governmental organisation may on behalf of any village or local community
in India file in any centre notified any claim attributable to be the contribution of the
people of that village or local community.476 The Authority after enquiry by the
notified centre and after giving an opportunity to the breeder to file his objection
within a period of three months477 and after hearing him if satisfied, grant such

475
PVPFR Act. S. 40(1) – A breeder or other person making application for registration of
any variety under Chapter III shall disclose in the application the information regarding the
use of genetic material conserved by any tribal or rural families in the breeding or
development of such variety.
476
Ibid., S. 41 – (1) Any person or group of persons (whether actively engaged in farming or
not) or any governmental or nongovernmental organization may, on behalf of any village or
local community in India, file in any centre notified, with the previous approval of the
Central Government, by the Authority, in the Official Gazette, any claim attributable to the
contribution of the people of that village or local community, as the case may be, in the
evolution or any variety for the purpose of staking a claim on behalf of such village or local
community.
(2) Where any claim is made under sub-section (1), the centre notified under that sub-
section may verify the claim made by such person or group of persons or such
governmental or nongovernmental organization in such manner as it deems fit, and if it is
satisfied that such village or local community has contributed significantly to the evolution
of the variety which has been registered under this Act, it shall report its findings to the
Authority.
(3) When the authority, on a report under sub-section (2) is satisfied, after such inquiry
as it may deem fit, that the variety with which the report is related has been registered
under the provisions of this Act, it may issue notice in the prescribed manner to the breeder
of that variety and after providing opportunity to such breeder to file objection in the
prescribed manner and of being heard, it may subject to any limit notified by the Central
Government, by order, grant such sum of compensation to be paid to a person or group of
persons or governmental or nongovernmental organization which has made claim under
sub-section (1), as it may deem fit.
(4) Any compensation granted under sub-section (3) shall be deposited by the breeder
of the variety in the Gene Fund.
(5) The compensation granted under sub-section (3) shall be deemed to be an arrear of
land revenue and shall be recoverable by the Authority accordingly.
Adcock M., Farmers’ Rights - The Hindu, dated 20th July 2002.
477
PVPFR Rules R. 67 – Procedure on application for claim for compensation under
Rule 66.

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compensation to be paid to a person or group of persons or governmental or non-
governmental organization which has made the claim.478 The compensation is to be
deposited in the Gene Fund. The Gene Fund is constituted by the Central
Government. Amounts received as benefit sharing from the breeder, annual fee
payable to the Authority as royalty, contribution received from national and
international organization and other sources shall be deposited in the gene fund. The
gene fund shall be utilized for meeting any amount to be paid by way of benefit
sharing determined under Section 26 of the Act and also for settling the
compensation to be paid to the claim from any community. The fund shall also be
used for supporting the conservation and sustainable use of genetic resources
including the in-situ and ex-situ collections and also for strengthening the capability
of the Panchayat in carrying out such conservation and sustainable use.479 The
compensation if not paid can be recovered as an arrear of land revenue. A farmer
shall not be considered as infringing the right established under the Act where he
was not aware of the existence of the right.480

5.18 Position of Farmers’ Rights in Asian Countries

Although UPOV was established and revised to give IP rights to breeders, it

also acknowledged to some extent the privileges of farmers. However these

478
PVPFR Act, S. 41 – Rights of Communities.
479
PVPFR Act, S. 45; PVPFR Rules. R. 70(2) reads "The Gene Fund shall be applied for
meeting the following purposes in accordance with the priority made hereunder:
(a) to support and reward farmers, community of farmers. particularly the tribal and rural
communities engaged in conservation, improvement and preservation of genetic
resources of economic plants and their wild relatives, particularly in areas identified as
agro-biodiversity hot spots;
(b) for capacity building on ex-situ conservation at the level of the local body, particularly
in regions identified as agro-biodiversity hot spots and for supporting in-situ
conservation;
(c) on benefit sharing and compensation in accordance with sub-section (5) of Section 26
and sub-section (3) of Section 41; and
(d) on transaction cost of administering the Gene Fund”
480
PVPFR Act. S. 42 – Protection of Innocent Infringement.

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privileges were diluted and made optional in later amendments.481 Given this
scenario, it is notable that only a few Asian countries became party to the UPOV
convention.482 Some countries, who are not members of UPOV, treated UPOV as a
guiding legislation in matters of PVP and the grant of plant breeders' rights. Since
most of the Asian countries are WTO members, they were required to comply with
the minimum standard as laid down in the provisions of TRIPS. The sui generis
provision of the TRIPS Agreement has been used by interested countries to
recognize farmers' rights. Further, members of the ITPGRFA treaty also recognized
farmers' rights.

Of the WTO members some of the Asian countries, like, Bangladesh,

Cambodia, India, Indonesia, Malaysia, Maldives, Myanmar, Nepal, Pakistan,
Philippines, Thailand who are members of ITPGRFA but not the UPOV members,
have opted for a sui generis system, which provides for the farmers' rights.

India, Thailand, Indonesia, Malaysia and Philippines have enacted

legislations with respect to farmers' rights (Table 5.2); Bangladesh and Pakistan
have prepared draft legislations; and Nepal has prepared a policy document, which
discusses the farmers' right. Other countries in the group do not have any legislation
relating to farmers' rights or plant variety protection.483

Of the Group A countries of WTO, Bahrain, Brunei Darussalam, Hong Kong

(China), Kuwait, Macao (China), Mongolia, Sri Lanka and Chinese Taipei which
have not joined either UPOV or ITPGRFA, only Sri Lanka has drafted a plant
breeders’ rights legislation, known as Protection of New Plant Varieties (Breeders’
Rights) 2001, which follows the model of UPOV 1991 and does not recognize the
farmers' rights.

481
Sahai Suman, The TRIPS Agreement: Implications for farmers’ rights and food security,
http://www/genecampaign.org/Publication/Article/IPR/tripsagreement Implication For%20
FarmerRights.pdf (visited on 17th October 2010).
482
Only 12 Asian countries have joined the UPOV Convention as of October 2009,
http:www.upov.int/export/sites/upov/en/about/members/pdf/pub423.pdf
483
Source : http://www/wto.org,http://www.upov.int and http://www.fao.org visited on
2.1.2014.

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 Table 5.2

Legislative Policies in Asian Countries to Protect Farmers’ Rights

Legislations/Policies dealing with Farmers’

Countries Status
Rights

India The Protection of Plant Varieties and Farmers' In force

Rights Act, 2001

Indonesia Law on Plant Variety Protection 2000 In force

Thailand Plant Varieties Protection Act 1999 In force

Malaysia Protection of New Plant Varieties Act 2004 Adopted

Philippines Magna Carta of Small Farmers, 1992 Adopted

The Indigenous Peoples Rights Act, 1997 Inforce

Plant Varieties Act, 2002 Draft

Community Intellectual Rights Protection Act, Draft

2001

Pakistan Legislation on Access to Biological Resources Draft

and Community Rights, 2004

Plant Breeders' Rights Ordinance, 2000

Bangladesh Biodiversity and Community Knowledge Draft

Protection Act, 1998

Plant Varieties Act, 1998

Nepal Nepal Biodiversity Strategy, 2002 Policy

document484

484
Source: http://www.farmersrights.org/database/asia.html visited on 2.1.2014.

263
5.19 Provisions Related to Farmers’ Rights in Malaysia

Definition of Farmer

The term ‘farmer’s in Sec. 2(k) of the Indian PVP and FR Act, 2001 has
been defined as: 'any person who cultivates crops by cultivating the land himself; or
cultivates crops by directly supervising the cultivation or land through any other
person; or conserves and preserves, severally or jointly, with any other person any
wild species or traditional varieties or adds value to such wild species or traditional
varieties through selection and identification of their useful properties'. The
Malaysian PVP Act (Sec. 2) deals with the same defects. The Philippines Plant
Variety Act does not define farmer.

However, Community Intellectual Rights Protection Act, 2001 of

Philippines defines farmers as 'all engaged in the cultivation of crops living within
the territory of the Philippines' (Section 3(f)). Nevertheless, conservation or
preservation of any wild species or traditional variety is a distinctive feature in the
definition of the farmer in Indian and Malaysian Plant Variety Act. It is not so well
defined in other Asian countries’ legislations. However, the Community Intellectual
Rights Protection Act of Philippines does define farmer-innovator as an individual
who has provided parent strains or the local community which has helped to
conserve and develop the genetic stocks or the residents of a plant genetic resource
area from which new variety has developed.485

There are subtle differences in the type of rights provided in the various
legislations in the countries and are enumerated below.

485
According to the Community Intellectual Rights Protection Act of Philippines, a farmer-
innovator means : (i) an individual who has provided or was the source of parent strains
used in the development of a new plant variety; (ii) the local community which has helped
to conserve and develop the genetic stocks which have gone into the pedigree of a new
variety; or (iii) the residents of an area rich in plant genetic resources from where breeders
or breeding institutions responsible for the new variety have obtained donors of genes for
resistance/tolerance/avoidance to biotic and/or a biotic stress or other valuable characters.

264
 Both the Malaysian and Philippine Acts use and identify small farmer, a
feature absent in the Indian legislation, in the context of the limitations imposed
upon the rights of the breeder. Section 2 A of the Malaysian Plant Variety Act
defines small farmer in terms of size of holdings while the Philippines Plant Variety
Protection Act of 2002 does not define it. However, Magna Carta of Small
Farmers, another Philippine Act, defines small farmer in terms of income.486

5.20 Right to Register Varieties

The Malaysian, Thai and Philippine Acts do not define the term farmers'
variety but these legislations recognize the right of farmer to register a new variety
at par with the breeder.487 The definition of a breeder in the Indonesian and
Philippine Acts does not preclude the farmers from claiming breeder's rights.488
Therefore, if new varieties developed by farmers comply with the distinctiveness,
uniformity, stability and novelty (DUSN) criteria, farmers are entitled to a PVP title.

486
Magna Carta of Small Farmers, Philippines, Section 4 (1), ‘Small farmer’ refers to natural
persons dependent on small-scale subsistence farming as their primary source of income
and whose sale, barter or exchange of agricultural products do not exceed a gross value of
One hundred eighty thousand pesos (P180,000) per annum based on 1992 constant prices.
An inter-agency committee composed of the Department of Agrarian Reform, the
Department of Trade and Industry, the Department Authority and headed by the
Department of Agriculture Authority and headed by the Department of Agriculture may
conduct periodic review and adjustments of the income level to take into account the
effects of changes in inflation, devaluation and consumer price index.
487
Section 13 (1d) of Malaysian Protection of New Plant Varieties Act recognies farmer or
group of farmers, local community or indigenous people who have carried out the functions
of a breeder as an applicant to register the new varieties. Moreover, Section 14 (2) of the
Malaysian Act recognizes the farmers right to register a variety as new variety if a plant
variety is bred, or indigenous people and the plant variety is new, distinct and identifiable.
Under the Thai PVP Act, if a farmer has bred or developed a new variety, he can register
the plant variety if he qualifies the definition of breeder (Section 3).
488
According to Section 3 (c) of the Philippine Plant Varieties Act of 2002, ‘Breeder means :
1. The person who bred, or discovered and developed a new plant variety; or 2. The person
who is the employer of the aforementioned person or who has commissioned the work; or
3. The successors-in-interest of the foregoing persons as the case may be; or 4. The holder
of the Certificate of Plant Variety Protection’, whereas, according to Article 1 (5) of the
Indonesian Law on PVP, plant breeders, are those who carry out breeding activities.

265
 In the Thailand Act, farmers, as a group, cooperative or community, have the
right to register a domestic plant variety", which may exist only in a particular
locality. Nevertheless, any sui juris person can also register a local plant variety if
he has conserved and developed it exclusively.489

The Philippine Act, on the other hand, provides for a framework for
community registration of locally bred varieties. Farming communities and
bonafide farmers' organizations can establish their respective local registry system
to register or build an inventory of locally bred varieties.

5.21 Right to Adequate Availability of Registered Material

Compulsory licensing is a provision, which provides for the grant of licence

on the ground of public interest or non-adequate availability of the product for a
certain period, to be used as a means to ensure the availability of the protected
material. It may be arguably seen as the right of a farmer to have adequate
availability of protected variety at a reasonable price. Both UPOV 1978 and 1991
Acts provide for restricting the plant breeders right on the ground of public interest.
Compulsory licensing has been used by UPOV member countries as a means to
restrict the breeders' right. However, ITPGRFA does not recognize it as a
component of farmers' rights.

Sections 8 (2)(d)490 and 51 (1)(ii)491 of the PVP & FR Act, 2001 of India
provides for the provision of compulsory licensing if the registered variety is not
adequately available. Similarly, Section 36 of the Malaysian Act provides for
ensuring availability of the protected material by granting compulsory license.

489
Thailand PVP Act, Section 44, A sui juris person, residing and commonly inheriting and
passing over culture continually, who takes part in the conservation or development of the
plant variety which is of the descriptions specified in Section 43 may register as a
community under this Act. For this purpose, there shall be appointed a representative who
shall submit an application in writing to the Changwad Governor of the locality.
490
Sec. 8(2)(d) – compulsory cataloguing facilities for all varieties of plants;
491
Sec. 51(1) (ii) – that the compulsory licensee of such variety possesses the adequate means
to provide to the farmers, the seeds or other propagating material of such variety, timely
and at reasonable market price.

266
Article 46 of Law on PVP 2000 of Indonesia provides for the compulsory licensing
on the ground of public interest. In the Philippines' Act, compulsory licence can be
sought in public interest and for reasonable requirement of the public. However,
compulsory licensing can be opted for after two years while in other countries such
as Indonesia, India or Malaysia it can be applied for only after the expiry of three
years. Grant of compulsory licensing is an executive action in India, Malaysia and
Philippines while in Indonesia it is judicial action. Provision for compulsory
licensing does not exist in any of the other Group B countries.

5.22 Chapter Summary

By becoming TRIPS Agreement signatory, India was under obligation to

either upgrade its existing IPR regime or enact new IPRs legislations to ensure
TRIPS compliance. One of the important changes sought under TRIPS agreement
was to permit IPR in the agricultural field. TRIPS gave three alternatives to its
signatory nations, with reference to protecting plant varieties, namely:

treating new plant varieties as inventions u/ patent laws;

bringing forth sui generis laws to protect plant varieties; or
bringing forth an IPR regime, which is a combination of the above
two.

In 1988, there was a change in seed policy in India, that allowed private
sectors’ entry into seed market. This culminated with pressure on India to become
TRIPS compliant, resulting in a clamour for protecting farmers’ rights in India.
Many NGOs pointed out that TRIPS and Western IPR regimes sought to promote
bio-piracy. It was also highlighted that while most of the rich & developed
countries involved a mere 4% farmer population, India had nearly 65% of its
population, dependent on agriculture as its primary source of its livelihood. Thus,
India which boasts of a very rich bio-diversity had an obligation to look into the
welfare of its farmer population.

This domestic scenario made India to actively work for recognition of

farmers’ rights on global front. Prof. M.S. Swaminathan repeatedly pointed out the

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need to recognise FRs and take initiatives to safeguard them, in FAO, IUPGR and
Keystone Dialogues. On National front, the efforts put forth by NGOs as well as
other farmer lobbies, ensured inclusion of a separate chapter on FRs. The main
rights included in the PVPFR Act 2001, are:

Right to seed
Right to reward & recognition
Right to information and compensation for crop failure
Right to adequate availability of registered material
Right to free services
Right to Register varieties
Right to Benefit sharing
Farmers’ Right for Protection Against Innocent Infringement

Apart from this, GURT (terminator technology) is also specifically

forbidden under this Act.

When compared to other Group B countries, India has infact, taken up a

more holistic approach, wherein farmers’ are also treated as innovators. The Act
allows registration of traditional varieties, which is a rather unique aspect of Indian
legislation. Most of the countries only allow protection of new varieties bred by
professional breeders, and do not extend protection for traditional varieties. One
major area of improvement regarding Indian legislation would be to include tribal
rights as part and parcel of FRs. However, better mechanism for benefit sharing
and an effective method to claim compensation by farmers in case of bad seed
must be included in the Act by suitable amendment, which is also an urgent
requirement.

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