ABSTRACT

Farmers and plant genetic diversity form the subject matter of the present work.
The purpose of the study titled “Intellectual Property Rights of Farmers:
International and National Perspectives” is to examine the existing national and
international legal framework for the protection of farmers’ rights so as to propose
a model for developing nations. The existing body of law which has been
examined in this work is contained in international treaties and national
legislations of various countries in relation to the subject; books, journals, WIPO
documents and also the data provided by the PPVFR Authority of India. The basic
premise of the study is that the status of farmers as breeder and conserver of
traditional knowledge will enhance only if intellectual property rights of farmers is
recognized. Further, the study is also premised on an assumption that no amount
of institutional framework shall be efficacious unless the community ownership
rights is also recognized along with individual rights within the intellectual
property rights regime. The study argues that the idea of farmers’ rights protection
is not just a simple issue of recognizing the rights of farming community. It is a
mixed question of economics, ethics, culture, technology and law.

Farmer’s rights are the traditional rights which farmers have on the seeds or
the propagating materials of plant varieties. These rights are basically about to
enabling farmers to continue their work as stewards and innovators of agricultural
biodiversity, and recognizing and rewarding them for their contribution to the
global pool of genetic resources. The importance of these rights from the
conservation point of view becomes more compelling with the grant of plant
breeders rights (PBR) to commercial breeders under intellectual property
protection regime. The demand for extending intellectual property protection to
agriculture has met with counter claims for granting farmers’ rights. In this respect
the debate over farmers’ rights protection has attracted much attention in the
recent time all over world.
i
 ABSTRACT

It is important to note that incorporation of rules contained in various international

documents in different national legal systems had met a slow pace of
development. In addition to slow pace, these legal developments have also been
brought with their own difficulties and, as a result, has neither been
uncontroversial nor homogenous. There have been controversies with almost
every aspect related to these rights. Difference of opinion continues to prevail in
relation to the nature of protection best suited for this category of rights. Further, it
is yet to be established as to what shall be the content of the sui generis law for the
protection of farmers’ rights. The International documents present a complex web
of different methods of possible protection.

Amidst existence of various problems, which wait for resolution, there have
emerged new challenges for the international community. The present work aims
to discuss the development of intellectual property regime for protection of
farmers’ rights in light of various theoretical and legal debates and controversies
that have accompanied this development. In addition to the international initiatives
the focus here is on the national laws of the U.S.A., European Union, Australia,
Africa, Philippines and India. While highlighting various landmarks of this
process of development at national as well as international levels, the aim here is
to analyze the responses of international community to settle controversial issues
such as nature of rights, basis of protection, need for harmonization or demand to
respond to the technological advancements. In addition to an analysis of
theoretical issues, the study maintains a special focus on the contemporary
challenges that have arisen in wake of advancement in technology and the
resulting opportunities.

The evolution of law relating to protection of farmers’ rights at the

international and national levels has not been systematic and planed. Various legal
instruments were concluded to answer the demand which existed at that time.
Most of the international documents lack the planning required to take care of the

ii
 ABSTRACT

problems in the long run. In spite of the above it seems that a consequence of these
existing international instruments concerning farmers’ rights is that the
coexistence of several international instruments will have to be maintained for the
time being.

The UPOV Convention, 1961 was adopted to introduce property rights over
plant varieties. It was, however, felt at the time that the introduction of patents in
agriculture would be inappropriate in light of the prevalent practices of free
exchange of seeds and knowledge among farmers. Though the UPOV Convention
did not introduce patents, it sought from the outset to provide incentives to the
private sector to engage in commercial plant breeding by granting them Plant
Breeders’ Rights (PBRs). Under the 1978 version of the Convention, farmers were
permitted to reuse propagating material from the previous year’s harvest and can
freely exchange seeds of protected varieties with other farmers. Thus, the
Convention recognizes what is known as the farmer’s privilege. The UPOV
Convention, 1991 has further strengthened PBRs and restricted the farmers’
privilege which was reduced to an optional clause leaving it to states to decide on
the extent of farmers’ right to save and exchange seed.

The concept of farmers’ rights emerged from the Food and Agricultural
Organization (FAO) in the 1983. Farmers’ rights were first addressed in the
International Undertaking on Plant Genetic Resources (IUPGR) for Food and
Agriculture in 1989. The Undertaking recognizes the enormous contributions
made by farmers worldwide in conserving and developing crop genetic resources,
and it provides for measures to protect and promote these rights. But, the
description of the farmer’s right does not seem to be granting any positive right to
farmers over their intellectual assets.

The FAO International Treaty on Plant Genetic Resources (ITPGR) for

Food and Agriculture, 2001 replaced the Undertaking of 1989. Under the treaty
governments are free to protect and promote farmers’ rights, and can choose the

iii
 ABSTRACT

measures to do so according to their needs and priorities. However, the

understanding of farmers’ rights and the modalities for their implementation still
remained vague.

The Convention on Biological Diversity, 1992 attempts to establish for the

fair and equitable sharing of benefits to indigenous people arising from the
utilization of genetic resources. Indigenous farming communities may be benefited
from the implementation of the Convention. The Agreement on Trade Related
Aspects of Intellectual Property, 1994 obliges members to provide protection for
plant varieties either through patent or through an effective sui generis law or
through any combination of the two. There is no explicit provision for protection
of farmers’ rights in the Agreement; however, it gives an option to member
country to legislate on this subject according to their need. The Agreement does
not define what constitutes an effective sui generis system. This offers the
flexibility to WTO Members to devise PVP system which suit their interests to the
fullest extent.

At the national level the industrially developed countries started to

recognize the creative role of commercial plant breeders and gave them
intellectual property protection. The first initiative was taken by USA, EU,
Australia, Africa and Philippines. Indian legislation exploits the flexibility granted
by TRIPs in an intelligent manner and enacted the sui generis law called the
Protection of Plant Varieties and Farmers Rights Act, 2001. Several rights of
farmers have been recognized in this Act. Indian law is significant both in the
domestic and international context as several other countries are trying to establish
similar legislations. Other developing countries are currently attempting to fulfill
these demands by evolving new intellectual property regime that suited their
interest and simultaneously protects the rights of breeders and farmers.

Chief among the issues identified for consideration is to examine the very
nature of protection to be provided to farmers. The nature of protection of farmers’

iv
 ABSTRACT

rights has been examined for proper appreciation of the status of farmers in the
intellectual property protection regime. The nature of farmers’ rights protection
has been examined in two contexts, first, suitability of either patent or plant
variety protection law for farmers and second, the suitability of farmers’ right as
privilege, as benefit sharing or as ownership right.

The thesis devotes itself to the study of among other things the scope and
content of the sui generis law and more importantly to the parameters of efficacy
of the possible sui generis law. India exploiting the flexibility granted by TRIPs
Agreement enacted the Protection of Plant Varieties and Farmers Rights Act, 2001
(PPV&FR Act). This legal regime recognizes the rights of commercial breeders
and also grants positive right to farmers and goes beyond the widely recognized
international sui generis regime represented by the UPOV Convention. The key
requirement under the TRIPs Agreement is that the sui generis system must be an
effective system. But, it does not set criterion to decide effectiveness of sui generis
system. The issue of effectiveness of sui generis system of plant variety protection
has become contentious in the absence of its definition in TRIPs Agreement. In
order to ascertain its effectiveness it would be important to examine the
effectiveness of the sui generis system of India in the context of protection of
farmers’ rights. It is also important to examine whether the Indian law is TRIPs
compliant by examining the sui generis aspects and efficacy of the institutional
framework.

The field of Farmers’ Rights is very wide and it has multiple dimensions.
Commensurate with the objectives of the study this research is divided into eight
chapters. The first introductory chapter draws attention towards certain
fundamental theoretical issues related to the present work. It identifies the
problem, outlines the objectives, and structure of the study. The basic research
questions have been raised which have been answered in the remaining chapters.

v
 ABSTRACT

Chapter two entitled “Protection of Farmers’ Rights: Evolution, Growth and

Justification” traces the evolution and growth of the concept of protection of
farmer’s right under international and national instruments. It highlights the status
of farmers at different times and discusses major changes brought by technological
developments. It also defines key terms, and explains different aspects of farmers’
rights. Theoretical justification for protection of farmers rights in the form of
natural justice, unjust enrichment, creative incentive, human right have also been
discussed in this chapter.

The third chapter entitled “Intellectual Property Rights of Farmers:

International Perspective” discusses intellectual property protection for farmers
under different international instruments. In this chapter provisions of UPOV,
IUPGR, CBD, TRIPs Agreement and ITPGR have been discussed. It examines the
flexibilities of TRIPs Agreement. An examination of seemingly conflicting
provisions of CBD and TRIPs Agreement has been made so as to evolve
suggestion for specific modifications. The UPOV Convention, which is considered
as sui generis model has also been examined from the perspective of developing
nations.

Chapter four entitled “National Perspectives on Farmers’ Rights Protection:

USA, European Union, Australia, Africa and Philippines” brings to fore the
discussion on the initiatives taken by different nations for the protection of
farmers’ rights. In this chapter the laws of U.S.A., European Union, Australia,
Africa and Philippines have been discussed. Laws of above countries have been
identified because these laws present different models on various aspects of
farmers’ rights.

Chapter five entitled “Farmers’ Rights: Privilege, Benefit Sharing and

Ownership” discusses different aspects of farmers’ rights. Primarily, it examines
farmers’ rights as privilege, in the form of benefit sharing, and as ownership right
in the context of protection of traditional knowledge and biological diversity of a

vi
 ABSTRACT

country. This chapter also examines the applicability of concept of ‘community

ownership’ for farming community.

The sixth chapter is a study related to the “Intellectual Property Rights of

Farmers in India”. It examines Indian sui generis legislation the Protection of
Plant Varieties and Farmers’ Rights Act, 2001granting rights to both breeders and
farmers. It also examines other legislations such as the Seed Act, 1966, the Patent
Act, 1970 and the Biological Diversity Act, 2002 for farmers’ rights protection.

Chapter seven entitled “Indian Sui Generis System for Protection of

Farmers’ Rights: Efficacy and Challenges” examines the effectiveness of Indian
sui generis law in the context of protection of farmers’ rights. It discusses whether
the Indian law is TRIPs compliant by examining the sui generis aspects and
efficacy of the institutional framework. It also makes an attempt to highlight the
challenges before Indian sui generis law.

The last chapter concludes the work on the basis of whole of the study and
proposes accordingly suitable suggestions on various issues.

vii