INTELLECTUAL PROPERTY LAW

PROJECT
ON
Critical Analysis on Protection on Plants Varieties and Farmer’s
Rights in India

Under the Supervision of: Prof. Priyanka Biswas

NAME:

RAJ VARDHAN AGARWAL( A90821517066)-

BBA.LLB(H)

MAINAK DAS ( A90821517001)- BBA.LLB(H)

SHUVRADIP PANDE (A90821517064)-BBA.LLB(H)

RISHAV GUPTA (A90821517057)-BBA.LLB(H)

MEHAL KAUR ( A90811117061)- BA.LLB(H)

MOHANA SIL(A90811117071)- BA.LLB(H)

RITWIKA BANERJEE(A90811117051)- BA.LLB(H)

MIHIKA ROY ( A90811117004)-BA.LLB(H)

 CONTENTS

 Abstract

 Research Methodology

 Introduction

 Sui Generis Legislation

 Plants Variety Protection And Farmer’s Rights Act, 2001

 Protection Of Farmer’s Rights

 Features Of 2001 Act

 Background Of Study

 Signification Of Study

 Objectives

 Conclusion
 ABSTRACT

The Protection of Plant Varieties and Farmers' Rights Act was passed by the Indian
Government in 2001. After India became signatory to the Trade Related Aspects of
Intellectual Property Rights Agreement (TRIPs) in 1994, a legislation was required to be
formulated. Article 27.3 (b) of this agreement requires the member countries to provide for
protection of plant varieties either by a patent or by an effective sui generis system or by any
combination thereof. Thus, the member countries had the choice to frame legislations that suit
their own system and India exercised this option. The existing Indian Patent Act, 1970
excluded agriculture and horticultural methods of production from patentability. The sui
generis system for protection of plant varieties was developed integrating the rights of
breeders, farmers and village communities, and taking care of the concerns for equitable
sharing of benefits. It is an attempt to critically analyse the provisions of legislations for their
effective implementation.
 RESEARCH METHODOLOGY

The study is doctrinal in nature. The relevant materials were collected from primary and
secondary sources. Materials and information were collected from various central enactments,
international treaties and conventions, legal and other sources like published works, law
journals, national journals, and websites on the relevant topics. An attempt is made to analyze
the intellectual property rights in the context of protection of farmers’ rights by taking into
consideration of the relevant intellectual property rights and legal regime in India on the
subject. An attempt is made to provide valuable insight into the various dimensions of the
complex area of IPRs in the fields of traditional knowledge and protection of overall farmers’
rights.
 INTRODUCTION

In the present era of liberalization, globalization and fast paced information technology,
intellectual property rights have emerged as a new global phenomenon. An efficient and
effective IPR regime is one which balances individual incentives and benefits with the wider
needs of the society, while, IPRs are a well established institution in the manufacturing
sector, their application to agriculture is still in a state of evolution. The key issue in the
agricultural sector is, quite simply, that some agricultural innovations are imperfectly
appropriable. This imperfect appropriability may reduce innovators’ incentive to invest in the
improvement of such crops.

India is among the first countries in the world to have passed legislation granting farmers’
rights in the form of the Plant Varieties Protection and Farmers’ Rights Act, 2001 (PVPFR).
India’s law is unique in that it simultaneously aims to protect both farmers’ and breeders’
rights.

The Indian case assumes immense importance due to the country’s lead in establishing a legal
framework on Farmers’ Rights and also significant as the Indian Gene Centre is recognized
for its native wealth of plant genetic resource.

The Plant Varieties Protection and Farmers’ Rights Act, 2001, establishes a unique system by
extending the concept of Plant Breeders Rights (PBRs), which is currently applied to new
varieties of plants, held by farmers, NGOs and public sector institutions. 5 The law emerged
from a process that attempts to incorporate the interests of various stakeholders, including
private sector breeders, public sector institutions, non-governmental organizations and
farmers, within the property rights framework. While the Act is based on the important
principle of distributing ownership rights in a fair and equitable manner, assigning of multiple
rights could pose several obstacles to useful utilization and exchange of resources.
India is bound by all the provisions of TRIPS Agreement, which oblige the country to
enact/amend relevant domestic laws. Further, with such shifts in legal provisions and also
national policies, increased private participation in agricultural R&D and far more public-
private relationships, including both competition and cooperation in relevant areas, are
imminent. Several legislative and institutional adjustments are being made in the country to
gear up and face the challenges of globalization. These include enactment of new legislations
on Protection of Plant Varieties and Farmers’ Rights Act, 2001 and Geographical Indications
of Goods (Registration and Protection) Act, 1999, and Amendments of Patents Act 1970, in
1999, 2002 and 2005. The Biological Diversity Act, 2002 and Seeds bill in 2004, is also
receiving attention. Effective implementation of IPRs related legislations in place and those
in the offing is expected to have significant impact on the course of agricultural R&D in the
country.
Therefore, it is considered important to identify and develop various national policy options
for addressing the emerging areas of IPRs in agriculture including the access to various
protected technologies to the Indian farmers, entrepreneurs and users. In the days to come,
IPRs are likely to dominate the agricultural scenario irrespective of whether the technology in
question is conventional or modern.

Plant Breeders’ Rights (PBR) are called "farmers’ privilege" in many countries. This right,
however, is merely an exemption from a right granted to the plant breeder. This kind of
exemption is in force in different degrees in various - UPOV member countries. But after the
last amendment in 1991, such exemptions were made subject to the breeder's consent.
Countries that have since joined UPOV have to comply with standards of 1991, whereas
those who joined earlier are bound by the less stringent version of 1978.

Plant varieties play an important role in human affairs. Success or failure in producing
foodstuffs is a life or death matter for large part of the world's population. For many nations,
where agriculture is a less significant component of economic 1.activity, there remains intense
interest in maintaining farm communities and promoting food security. Disputes concerning
agricultural subsidies remain at the heart of the World Trade Organization agenda. Although
the protection afforded to plant varieties as a matter of right, intellectual property law does
not receive the level of public attention accorded to pharmaceutical patents or copyrights in
1

Geoff Tansey, Trade, Intellectual Property, Food and Biodiversity, A Discussion Paper,
Quaker Peace and Service London (1999).
music, the direction of public interest should not obscure the fundamental importance of
intellectual property rights in plant varieties.
Plant Variety Protection (PVP) is a patent like system that allows the owner/innovator to
prohibit specific unauthorized uses of his or her invention. European nations were the first
countries to leverage PVPs as an incentive mechanism for agricultural innovation under the
auspices of the International Convention for the Protection of New Varieties of Plants UPOV,
(established in 1961 and revised in 1972, 1978 and 1991).

As a signatory to WTO, India adopted its own sui generis system in the form of Protection of
Plant Varieties and Farmers’ Rights Act, 2001.

The present study makes a sincere attempt to analyze the food situation in India through times
and also the various provisions of the sui generis legislation, PVPFR Act, 2001 and as to how
this Act can help maintain an intelligent balance between the rights of the farmers and the
breeders. Ensuring of farmers’ rights through this Act can guarantee livelihood opportunities
to the farmers and in turn help in attaining food security for a country like India which is
predominantly dependent on an agrarian economy.

SUI GENERIS LEGISLATION

Art 27.3(b) of TRIPS, which deals with the protection of new plant varieties, offered three
options. According to TRIPS, Plant Protection will have to be granted by –

1. a patent right or

2. an effective ‘sui generis’ system or

3. by a combination of patent and sui generis.

To comply with the TRIPS provision India decided to opt for a sui generis system of
protection for plant varieties. In August 2001, Indian Parliament enacted the Plant Varieties
Protection and Farmers' Rights Act. This is the "sui generis" (of its own kind) legislation of
India, defining intellectual property rights (IPRs) according to Indian standards rather than
adopting a model from elsewhere in the world. Before the Act was passed, there was a long
and heated debate. As a WTO member, India had to comply with TRIPS, the agreement on
Trade Related Intellectual Property Rights. Among other things, TRIPS applies to Plant
Varieties Protection (PVP).

Plant varieties and micro-organisms are the two life forms allowed for IP protection in India,
although the level of protection in these two forms vastly varies. In the case of plant varieties,
TRIPS provide an option to member countries for protecting them by patents, or by an
effective sui generis system or by a combination of patent and sui generis system. India chose
not to give patent to plants and chose to protect plant variety by the sui generis system The
PVP and FR Act, 2001 is the second Indian IPR legislation having major impact on
agriculture. Sui generis system grants an exclusive right to the innovator of a plant variety for
producing, processing, stocking, commercializing, importing or exporting the propagating
material of the protected variety.
 PLANT VARIETIES PROTECTION AND FARMERS’ RIGHTS ACT,
2001

In compliance with the requirement under TRIPS, India developed its own sui generis system
of law to protect plant variety. This law is the Protection of Plant Varieties and Farmers'
Rights Act, 2001 (PVPFR Act).

The PVPFR Act 2001 came into existence to provide for the establishment of an effective
system for the protection of plant varieties, the rights of farmers and plant breeders and to
encourage the development of new varieties of plants.

It has been considered necessary to recognize and protect the right of the farmers in respect of
their contribution made at any time in conserving, improving and making available plant
genetic resources for the development of new plant varieties. To accelerate agricultural
development, it was felt necessary to protect plant breeders’ rights to stimulate investment for
research and development of new plant varieties. Such protection is likely to facilitate the
growth of seed industry which will ensure the availability of high quality seeds and planting
material to the farmers. The innovative Indian legislation has opened up interesting
possibilities for developing and regulating breeders’ and farmers’ rights. So that, both are
acknowledged and protected simultaneously.

PVPFR Act deals with the protection of IPR for plant varieties by the process of registration.
The various varieties which are covered under this Act are – new varieties, extant varieties,
farmers’ varieties and breeders’ varieties. The Act provides for the registration of new
varieties of plants by their breeders, provided they fulfill the criteria of novelty,
distinctiveness, uniformity and stability. The breeders’ rights protection would include the
exclusive right to produce, sell, market, distribute, import or export the variety or its
propagating material and to license other persons to do the same.

This Act is proactive and farmer friendly. It recognizes the farmer not just as a cultivator but
also as a conserver of the agricultural gene pool and as a breeder who has bred several
successful varieties.
The Act makes provisions for such farmer’s varieties to be registered with the help of NGO’s
so that they are protected against being scavenged by formal sector breeders. Section 39 (iv)
of PVPFR Act confers various rights on the farmers, like right to sow, re-sow, exchange,
share or sell his farm produce including seed of a variety protected under this Act. But the
farmers are prohibited from selling seeds that are branded, packed and labeled indicating that
the seeds are protected under PVPFR Act. In this way both the farmers and breeders’ rights
are protected.

The Act provides protection to farmers' seeds but it is only possible when farmers' varieties
are registered with the help of NGOs. This provision is to ensure protection against people
such as corporate breeders. This provision though could provide the necessary protection and
also could help in facilitating the access and benefit sharing mechanism as foreseen in the
Convention on Biological Diversity, has its own inherent weaknesses and will pose practical
problems in implementation. Given the nature of knowledge related to plants, both in the wild
and for domestic varieties, it is well understood that such knowledge lies in the public domain
and is not restricted usually to a single individual. Such knowledge sometimes is spread over
large geographical regions where such bio-resources are found and sometimes such
knowledge even crosses national borders regionally especially if the same ethnic
communities reside in the adjacent countries and the agro-ecological region is also the same.
People share and exchange seeds sometimes with communities in neighboring villages. If a
breeder or a scientist uses farmers' variety to breed new varieties, the question arises as from
whom the permission will be sought? and how will the benefits be shared? The very basic
concern that arises with the issue of registering of the seed is to how will the farmers collect
and document data for this purpose.

The government in enacting this law felt that plant varieties protection accorded to
commercial plant breeders leads to increased food production, greater food security and the
development of new varieties by spurring investments in this sector by protecting the IPRs.
But, the reality is that the commercial seed sector is essentially engaged in the research on
hybrid technology in a few commercial crops such as the maize, canola, sunflower, etc. The
food production is still largely in the hands of the small farmers who use farm saved seeds.

The Act makes provisions for such farmer’s varieties to be registered with the help of NGO’s
so that they are protected against being scavenged by formal sector breeders. Section 39 (iv)
of PVPFR Act confers various rights on the farmers, like right to sow, re-sow, exchange,
share or sell his farm produce including seed of a variety protected under this Act. But the
farmers are prohibited from selling seeds that are branded, packed and labeled indicating that
the seeds are protected under PVPFR Act. In this way both the farmers and breeders’ rights
are protected.

The Act provides protection to farmers' seeds but it is only possible when farmers' varieties
are registered with the help of NGOs. This provision is to ensure protection against people
such as corporate breeders. This provision though could provide the necessary protection and
also could help in facilitating the access and benefit sharing mechanism as foreseen in the
Convention on Biological Diversity, has its own inherent weaknesses and will pose practical
problems in implementation. Given the nature of knowledge related to plants, both in the wild
and for domestic varieties, it is well understood that such knowledge lies in the public domain
and is not restricted usually to a single individual. Such knowledge sometimes is spread over
large geographical regions where such bio-resources are found and sometimes such
knowledge even crosses national borders regionally especially if the same ethnic
communities reside in the adjacent countries and the agro-ecological region is also the same.
People share and exchange seeds sometimes with communities in neighboring villages. If a
breeder or a scientist uses farmers' variety to breed new varieties, the question arises as from
whom the permission will be sought? and how will the benefits be shared? The very basic
concern that arises with the issue of registering of the seed is to how will the farmers collect
and document data for this purpose.

The government in enacting this law felt that plant varieties protection accorded to
commercial plant breeders leads to increased food production, greater food security and the
development of new varieties by spurring investments in this sector by protecting the IPRs.
But, the reality is that the commercial seed sector is essentially engaged in the research on
hybrid technology in a few commercial crops such as the maize, canola, sunflower, etc. The
food production is still largely in the hands of the small farmers who use farm saved seeds.

PROTECTION OF FARMERS’ RIGHTS

Farmers rights are very crucial in developing countries like India to ensure present and future
food security where the farmers are mainly responsible for development of vast genetic
diversity of resources through keen observation and intelligence. The farming communities
across the world have been following, since time immemorial, the practice of sharing of
knowledge and resources. Sharing of seeds among farmers, for example, constitutes perhaps
the most important part of these traditional agricultural practices. But unfortunately the
developers of this wealth remained invisible in trade and commerce and their resources were
exploited by the private agrarian sector.

For thousands of years, the farmers were engaged in the process of selection and conservation
of plant varieties. As a result, diverse varieties of each crop plant were seen in developing
nations, especially in India. Though plant varieties were developed according to climatic
conditions at each place, the dissemination of seed varieties had largely contributed to
enrichment of knowledge and skill in farming. In India farmers are the source of supply of
both seeds and food commodities and substantial amount of these requirements are met
through ‘farmer-to-farmer exchange2.

Thus farmer is also the breeder, conserver and distributor of not only the seed but also
spreading information about agricultural practices. Therefore on all counts the responsibility
for food security and genetic diversity completely depends upon the farmers.

Anitha Ramanna, India’s Plant Varieties and Farmers Rights Legislation : Potential Impact
on Stakeholder Access to Genetic Resources, EPTD Discussion Paper No. 96, Environment
and Protection Technology Division, International Food Policy Research Institute, January
2003.

DEFINITION OF FARMERS’ RIGHTS

The international treaty does, however, not define Farmers’ Rights. A working definition
developed by the Farmers’ Rights Project is as follows:

“Farmers’ rights consist of the customary rights of farmers to save, use, exchange and sell
farm-saved seed and propagating material, their rights to be recognized, rewarded and
supported for their contribution to the global pool of genetic resources as well as to the
development of commercial varieties of plants, and to participate in decision making on
issues related to crop genetic resources”.

2
Sophy K.J., Farmers’ Rights under Plant Variety Protection Legislation in India : A Critical
Study, (http://rostrumlegal.com/r dt. 2.8.2015).
Farmers’ rights are a precondition for the maintenance of crop genetic diversity, which is the
basis of all food and agriculture production in the world. Basically, realizing farmers’ rights
means enabling farmers to maintain and develop crop genetic resources as they have done
since the dawn of agriculture and recognizing and rewarding them for this indispensable
contribution to the global pool of genetic resources.

Plant genetic diversity is probably more important for farming than any other environmental
factor and for the maintenance of this diversity, farmers’ rights are crucial for ensuring
present and future food security in the country.

The idea of farmers’ rights denotes in simple terms the rights of farmers over their resources
and knowledge. In fact, discussion on farmers’ rights as a legal norm involves two major
issues and they are plant genetic resources and traditional agricultural knowledge.

India is one of the few countries having specific legal provisions addressing farmers’ rights.
The concept of farmers’ rights has become an explicit part of Indian Intellectual Property
Regime through the Plant Varieties Protection and Farmers’ Rights Act, 2001. While this can
be considered as a landmark legislation, farmers’ rights provision under the Act has invited
several criticisms both from a conceptual and implementation point of view. In this
background, this study seeks to explain the nature and scope of farmers’ rights in India and
further captures meaningful development of the concept.

BACKGROUND OF THE STUDY

As required by the TRIPS agreement, to protect the new varieties and also the extant and
derived varieties and in turn protecting the interest of the breeders, farmers and the village
communities, India adopted the sui generis system and enacted the Protection of Plant
Varieties and Farmers’ Rights Act, 2001 as the existing Indian Patents Act, 1970 excluded
agriculture and horticultural methods of production from patentability.

Article 27(3)(b) of TRIPS excludes plants from patent protection. So there has been a
pressing need to decide about what sort of intellectual property protection should be given to
plant innovation and why. Deciding on this issue became urgent in the light of the obligation
imposed by Article 27.3 of the TRIPS Agreement on all WTO member countries to provide
for the protection of plant varieties either by patents or by an "effective sui generis system" or
by any combination of the two.

By providing an incentive to breeders, plant variety protection encourages investment and

effort into plant breeding. IPRs provide an incentive for private research and development
into new breeding techniques, thereby reducing the need for government funding to subsidize
these activities.

SIGNIFICANCE OF THE STUDY

Before the advent of modern technologies in the agricultural sector, inventions based on
living organisms (like breeding of new crop varieties through hybridization, back-crossing
and selection) were considered as natural and obvious discoveries that could rarely be copied
and did not warrant any protection. Developments in biotechnology have changed the
situation dramatically. Biotechnological inventions require substantial investments, and their
processes and products can easily be copied. Such kind of plant breeding is increasingly
being carried out by large multinational corporations of third most under developed nations
and by some state-run establishments in a few developing countries. The establishments
definitely look for returns on their investments to support and provide incentives for their
future innovations. Intellectual property protection provides a way for ensuring financial
revenues, and also protects novel innovations and crop material from illegal commercial
duplication.
This opens a floodgate of questions regarding the need for such protection in less developed
countries. The third world societies, indigenous people and other farming communities, had
no concept of ownership rights over life forms. In particular, no law existed to grant
exclusive ownership rights to traditional plant breeders for creating new plant varieties and
crops. The third world farming communities developed and innovated new crop varieties to
respond to their climate, soil and food needs, in a spirit of free exchange.

The model of protection envisaged in the TRIPS Agreement, fails to give due recognition to
the interests of the indigenous farmers in the developing countries, as it is modeled to serve
the purposes of the developed world / economies. This has further widened the North-South
divide in the WTO.3

The UNDP Human Development Report summarizes the Western viewpoint by stating that
"technology is created in response to market pressure - not for needs of the poor people who
have little purchasing power". The Report also states that "policy and not charity" is needed
"to build technological capacities in the developing countries". It is clear from these
statements that technology innovators in the developed nations of the West are not interested
in developing technology for public benefit of the poor and the needy, but are increasingly
interested in tightening the implementation of TRIPS (IPRs) in all fields of technology,
including agriculture.4

Farmer is the first link in the food security especially in countries like India where 70 per
cent of the population are engaged in agrarian based activities.

REVIEW OF LITERATURE

Vandana Shiva has clearly emphasized the need for plant variety protection with special
reference to Plant Varieties Protection and Farmers’ Rights Act, 2001.

Elizabeth Verkey has traced out the international efforts in protecting plant varieties by
incorporating the UPOV Convention, TRIPS Agreement and the Convention on Biological
diversity. The UPOV convention aims to ensure a harmonized International system for the
protection of plant varieties and encourage the development of new varieties of plants. The
convention also provides for an international legal framework for the granting of plant
breeders’ rights which is a key element in encouraging breeders 5.The author emphasised the
need for a separate law to protect plant varieties in India.

3
Human Development Report, Oxford University Press, 2001, pp. 2-3.
4
Ms. Sophy, K.J., Farmers’ Rights under Plant Variety Protection (PVP) Legislation in India : A
Critical Study, (http://rostrumlegal.com/r dt. 2.8.2015).
5
Vandana Shiva, CED Documentation prepared for Bangalore Seminar on Women, Ecology
and Health, 1991 and Sacred Seed, (2014) Global Peace Initiative of Women (GPIW) Editor,
Dheradun.
Suman Sahai has analysed the concept of plant varieties and farmers’ rights in a detailed
manner.6 The Indian legislation was the first in the world to grant formal rights to farmers in
a way that their self-reliance is not jeopardized. What is significant and positive about this
legislation was that it charted its own course, deviating from the norms set by the Union for
the Protection of New.7

Plant Varieties (UPOV). UPOV is at present the only platform for developed countries which
is modulated to protect the interests of agriculture in industrial countries. It does not even
have the notion of farmers’ rights. The innovative Indian legislation has opened up
interesting possibilities for developing a developing country platform for regulating breeders’
and farmers’ rights so that both, not just one, are acknowledged and protected. The salient
features of the new law are described in this article.

In fact the Indian legislation succeeds in balancing the rights of Breeders and Farmers and
exploits the flexibility granted in TRIPS, in an intelligent manner. There are clauses to protect
the rights of researchers and provisions to protect the public interest.

Gopalakrishnan, N.S., in his article titled ‘Protection of Farmer’s Rights in India : Need for
Legislative Changes’ has critically analysed the Farmers’ Right in detail. He had indicated
that it is now mandatory that members of the WTO must introduce legal measures either in
the form of patent or an “effective” sui generis law or a combination of both to protect plant
varieties. There was stiff resistance from many developing countries including India and
farmer’s groups against the introduction of such a provision in the TRIPS Agreement. The
concern for providing food security to the people of the country forced many nations to keep
plant varieties out of IPR protection. The diverse pattern of agriculture, the traditional
methods of breeding and farming followed in the developing countries resulted in the
generation of many customary rights to the farmers.8

Swaminathan , M.S., has endorsed the protection of plant varieties by sui generis law9.
Access to good seeds of appropriate varieties is an effective method of bridging the

Elizabeth Verkey, ‘Law of Plant Varieties Protection’ 2007, Eastern Book Company,
6

Lucknow, pp. 171, 197, 204.

7
Suman Sahai, 2003, India’s Plant Variety Protection and Farmers’ Rights Act, 2001, Current
Science Vol. 84, No. 3, Feb. 2003, p. 407.
8
N.S. Gopalakrishnan, An “Effective” Sui Generis Law to protect plant varieties and
Farmer’s Right in India – A critique, Journal of World Intellectual Property, January, 2001.
technology divide among farmers. Hence, he had suggested that there is a need for the
effective and integrated implementation of the following three Acts :

Protection of Plant Varieties and Farmers’ Rights Act, 2001.

Biodiversity Act (yet to be approved by the Parliament)

Seed Act (the revised Seed Act is now under consideration of the Parliament).

He has opined that the provisions of the Act cannot be implemented effectively, unless there
is a major effort in awareness generation and information empowerment.He has emphasised
thus in order to ensure that the farmer-breeders and conservers secure the recognition and
reward provided under the Act, there is need for resource centres for farmers’ rights.

Philippe Cullet has examined the issues of PVP and enforcement of rights of plant breeders
in the plant variety protection regime. The author had highlighted various other issues
involved in Plant Breeders’ Rights even though Plant Varieties Protection Act, 2001 was
adopted.

The introduction of plant variety protection in India has significant implications since seed
was traditionally been supplied overwhelmingly by farmers themselves and by the public
sector, with the private sector playing a marginal role until recently in most crops.10

varieties remains an issue which is far from settled even though the Protection of Plant
Varieties and Farmers' Rights Act was adopted in 2001 in compliance with TRIPS
obligations. This was due to a number of reasons: Firstly, plant variety protection is an issue
which goes beyond giving incentives to the private sector. In fact, while the TRIPS
agreement is the direct trigger for the introduction of plant variety protection, it is not the
only relevant treaty. The Biodiversity Convention and the International Treaty on Plant
Genetic Resources for Food and Agriculture (PGRFA Treaty) were also of major importance
in this regard. Secondly, while plant variety protection is directly related to innovation in the

9
M.S. Swaminathan, The Protection of Plant Varieties and Farmers’ Rights Act : From
Legislation to Implementation, Journal of Intellectual Property Rights, Vol. 7, July 2002, pp.
324-329.

Philippe Cullet, ‘Plant Variety Protection : Plant Breeder’s Rights and Sui Generis
10

Systems’ Economic and Political Weekly, August 6, 2005, p. 3607.

field of agriculture, it must also be understood in the broader context which includes
conservation of biological resources. Thirdly, plant variety protection is opposed to the idea
that agricultural management should be based on the sharing of knowledge and resources.
However, in the context of the widespread ratification of TRIPS and the increasingly tenuous
nature of farmers' hold over their resources and knowledge, it is necessary to go beyond
criticism and understand the additional requirements of the current international legal system
with respect to the needs of farmers and more broadly of food security for all individuals.

Bala Ravi, S. has also stated that “effectiveness of sui generis system of plant variety
protection has become contentious in the absence of its definition in Trade-Related Aspects
of Intellectual Property Rights (TRIPS) Agreement. India legislated the sui generis law, the
Plant Varieties Protection and Farmers’ Rights Act in 2001 and notified its rules in 2003. The
effectiveness of the legislation depends on the clarity and scope of its legal provisions,
associated rules and regulations. The manner in which these are implemented also contributes
to the effectiveness. An examination of this Act and its rules by applying certain de minimis
requirements essential to ensure effectiveness of an IPR system 11, concludes that the Act is
effective in design and scope”.

CONCLUSION

11
Bala Ravi, S., “Effectiveness of Indian Sui generis Law on Plant Variety Protection and its
Potential to Attract Private Investment in Crop Improvement”, JIPR, Vol. 9, Nov. 2004, pp.
533-534.
This paper endeavoured to explore the construction of proprietary claims to PGRs through
the development of India’s Protection of Plant Varieties and Farmers’ Rights legislation.
Although the drafting of the legislation is, in one sense, a singular process, the construction of
PBRs and Farmers’ Rights may be explained, respectively, through rather different processes.
This study of the development of India’s Protection of Plant Varieties and Farmers’ Rights
takes its cue from the statement that: ‘we make the law, and the law makes us’ (Houtzager,
2001). Analysis of the processes and mechanisms whereby varietal control is cultivated
indicate the multiple ways in which actors in India have endeavoured to ‘make the law’
through the articulation of Plant Breeders’ Rights and Farmers’ Rights. If the experience of
an ever-growing number of countries that have adopted PVP legislation is any indication,
however, ownership and control of plant varieties also re-defines relations among different
groups within the agricultural sector. In developed countries, the introduction of PVP has
been accompanied by a reduction in the proportion of the population engaged in farming, the
gradual eclipse of public sector plant breeding by the private sector, and a complete change in
the relationship of farmers to the means of agricultural production. Aware of this pattern, in
crafting its own sui generis system India has endeavoured to balance the rights of breeders
with those of farmers. What remains to be seen, however, is how the Indian legislation,
shaped as it is by its various stakeholders will, in turn and in time, shape them.

Our contribution:

The period of protection for field crops is 15 years and for trees and vines is 18 years and for
notified varieties it is 15 years from the date of notification under section 5 of Seeds Act, 1966
The rights granted under this Act are exclusive right to produce, sell, market, distribute, import
and export the variety. Civil and criminal remedies are provided for enforcement of breeders'
rights and provisions relating to benefit sharing and compulsory licence in case registered variety
is not made available to the public at reasonable price are provided. Compensation is also
provided for village or rural communities if any registered variety has been developed using any
variety in whose evolution such village or local community has contributed significantly. The
procedural details and modes of implementing this Act are provided in PPV&FR Rules, 2003. 

ccording to sec 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." [1]
According to sec 2(k), "farmers" means 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."