1

NATIONAL LAW UNIVERSITY ODISHA

INTELLECTUAL PROPERTY RIGHTS: SEMESTER – V

“CHALLENGES OF BREEDER'S RIGHTS IN SUI-GENERIS

PROTECTION OF PLANT VARIETIES”

SUBMITTED TO
PROF. AMRENDRA KUMAR AJIT,
FACULTY, LAW

SUBMITTED BY:-
NAINA CHOUDHURY (2012/BA.LL.B/030)
VAISHALI BADERIYA (2012/BA.LL.B/057)
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TABLE OF CONTENTS

1. INTRODUCTION.......................................................................................................................3
2. RESEARCH METHODOLOGY................................................................................................3
I) SCOPE OF RESEARCH........................................................................................................3
II) OBJECTIVES OF RESEARCH.............................................................................................4
III) CHAPTERISATION.............................................................................................................4
IV) RESEARCH QUESTIONS...................................................................................................4
V) HYPOTHESIS........................................................................................................................4
VI) RESEARCH METHOD........................................................................................................4
3. HISTORICAL DEVELOPMENT OF PROVIDING RIGHTS TO PLANT BREEDERS AND
FARMERS.......................................................................................................................................5
4. SUI GENERIS SYSTEM OF PLANT VARIETY PROTECTION............................................6
4.1 National Legislation with the forms of protection (Relationship).........................................7
5. FARMERS’ RIGHT AND BREEDERS’ RIGHT......................................................................8
5.1 Plant Breeders’ Rights...........................................................................................................8
5.2 Farmers’ Right.......................................................................................................................9
6. CHALLENGES TO BREEDERS’ RIGHT IN INDIA.............................................................10
6.1 ABSENCE OF EDV PROTECTION..................................................................................11
6.2 THE SEEDS BILL OF 2004: A MAJOR CHALLENGE FOR BREEDERS’ RIGHT......12
6.2.1 The License Inspector Raj for Seeds................................................................................13
6.3 TERMINATOR BAN..........................................................................................................13
6.4 DISCLOSURE OF ORIGIN................................................................................................14
6.5 FEE AND PROSECUTION WAIVER...............................................................................14
6.6 FARMERS’ RIGHT TO RE-USE THE PGRS OF PLANT BREEDERS’: PROBLEMS
RAISED IN THE CONTEXT OF BIOTECHNOLOGY..........................................................15
6.7 COMPROMISING INDIA’S COMPETITIVENESS IN BIOTECHNOLOGY................16
6.8 CHALLENGES AT THE INTERNATIONAL LEVEL.....................................................16
6.8.1 Bilateral Trade Agreements..........................................................................................17
7. CONCLUSION..........................................................................................................................18
8. BIBLIOGRAPHY......................................................................................................................19
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1. INTRODUCTION

Human intellect leads to the creation of certain items which are preserved by exclusive legal
rights called Intellectual Property Rights. Plant Breeders also enjoy protection under the
Intellectual property rights when they are granted exclusive control over the propagating material
for certain time period. The Breeders’ rights are protected by provisions in UPOV or by adapting
the sui-generis1 model. The sui-generis model enables the countries to formulate the laws in their
land according to the needs in their countries. Plant variety protection enables the protection to
the special knowledge that can be exploited in order to economic advantages.

With accordance of the TRIPS agreement, India has adopted the Sui generis model of Plant
Variety Protection and has formulated legislations like the Seeds Bill etc. However, in this era of
globalization and trade liberalization, the sovereign can dictate its command in its own area
without accommodating the wants of acquaintances. The piece of legislation regarding the
Breeders’ and Farmers’ Right in India is in stage of making and thus, there are confusion
regarding finalization of rules in this arena. It is a general practice to adapt the laws already
framed by other nations and in this particular case, the Indian Economy is very different from
that of other nations. The present legislation prevalent in India poses several challenges to
breeders’ right which have been recognized in the following discussion. The International Trade
Organizations consistently are pressurizing the legislators to adapt the policies which will benefit
them. At local level, there are problems regarding demarcation of difference between rights of
farmers and breeders. Moreover, while trying to accommodate the needs of one section, the other
party has to face repurcussionary challenges.

2. RESEARCH METHODOLOGY

I) SCOPE OF RESEARCH
The research work is divided in the following heads:

a) Firstly, to understand the historical approach and development of protection of rights

over plant variety.
b) Secondly, to understand the meaning and scope of sui generis model of plant variety
protection

1
 Latin phrase, meaning "of its own kind/genus"
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c) Thirdly, figuring out the challenges for the rights of the breeders in the present context in
India
d) Finally, giving a brief overview about the solution to these challenges and find a way out.

II) OBJECTIVES OF RESEARCH

To explore the challenges posed before the rights of breeders in sui-generis model of plant
variety protection in India.

III) CHAPTERISATION
Chapter 1: Historical Development of Providing Rights to Plant Breeders and Farmers

Chapter 2: Sui Generis System of Plant Variety Protection

Chapter 3: Farmers’ Right and Breeders’ Right

Chapter 4: Challenges to Breeders’ Right

IV) RESEARCH QUESTIONS

Q.1 What is the current stand of Indian Law with regards to plant variety protection?

Q.2 What are the pertinent challenges that pose before the breeders’ right when it is less
preferred than the rights of the farmer?

Q.3 What are the possible reason behind those challenges and the mechanism to overcome the
same?

V) HYPOTHESIS
India has adopted sui generis model of plant variety protection wherein the farmers’ rights have
been protected as India is an agricultural economy. This has resulted in few challenges before the
rights of the breeders which need to be combated. The legislation needs to amended in such a
manner that it possibly accommodates all the needs of the time.

VI) RESEARCH METHOD

The research work was approached and initiated primarily through the Secondary Source i.e.
several articles on effective sui generis models of plant variety, the reports on Seed Campaign
and several articles by various experts in the field of PVP rights.
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3. HISTORICAL DEVELOPMENT OF PROVIDING RIGHTS TO PLANT BREEDERS

AND FARMERS

The first attempt to harmonize IP laws was made by the Paris Convention of 1883. 2Industrial
Property including the scope of agricultural and extractive industry confining to natural products
were also protected under this convention.3 Different European Nations evolved processes
involving recognition to the seeds and seedlings, newly bred plants and setting up Seed
Association as well as a Seed Control Committee and Register for newly bred plants in the next
fifty years.4 Plant breeder protection under IPR was the enactment of Plant patent Act by USA in
1930.This enactment also popped up a debate regarding the type of IPR Protection for
agriculture viz; (1) Patent Protection to plants ; (2) Sui generis Protection recognizing Plant
Breeder’s right. Later, the convention on substantive law on patent prescribed land varieties and
other biological processes for production of plant as non patentable subject matter. This led to
adoption of these exceptions by the European patent convention in 1973 and later the same was
reproduced in the TRIPS Agreement in 1995.

Later various problems regarding the extension of the IP Protection to agriculture and related
products were seen.

Firstly, Farmers in developing countries lost their traditional rights and monopoly over
agriculture. Secondly, they could not conserve and preserve varieties for further plant variety. So
in order to solve this problem the European nation started measures through the UPOV Act 5 and
FAO6 but the UPOV act protected farmer’s interest over plant breeders.

Farmers right thus continuously gained prominence and in order to comply with the breeders
right several countries adopted the sue generis model as per their need.

Amongst all the countries across the world, India is one of the pioneers to pass legislation
granting right s to both breeders and farmer under the PPVFRA7, 2001.

2
WIPO Intellectual Property Handbook : Policy , law and use . 17th October 2010
3
Paris Convention Article 1 (3) “which reads out industrial property shall be understood in the broadest sense and
shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to
all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters,
beer, flowers, and flour”
4
Dhar Bishwajeet , Sui Generis system for plant variety Protection (2010)
5
Union for the Protection of New Varieties of Plant
6
Food and Agriculture Organization
7
Protection of Plant Variety and Farmers Rights Act.
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4. SUI GENERIS SYSTEM OF PLANT VARIETY PROTECTION

Although there is a technical problems in patent law for plant varieties but there is a protection
in TRIPS Agreement under the Plant Variety Protection. There are also some ethical and
political issues regarding this. Article 27.3 (b) talks about the sue generis system of protection
allowed by different countries.

Some important issues should be considered in understanding a sui generis system of plant
variety protection, which should include the requirements of protection and duration of it.

The UPOV convention can be adopted the minimal basis of sui generis system, but adoption of
its provisions and limitation should be supplemented with the problems like Extension of the
Farmer’s Rights, Breeder’s Rights, equitable sharing of benefits, a policy of compensation,
technology, commercialization, training and access.8

The TRIPS Agreement does not enforce a specific provision to the protection of plant varieties.

On 1 January 1995, TRIPS Agreement came into effect establish also WTO. In 1999, specific
provision Article 27.3(b) revised, it considers the implementation of plant varieties. “Members
shall provide for the protection of plant varieties either by patents or by an effective sui generis
system or by any combination thereof”

Three types of varieties that are protected under protection of plant varieties :

Firstly, patents; an effective sui generis system ;or any combination thereof. Complexity is
noticed in all the three options mentioned here. The expression Sui generis, is not used in a same
way as given in always in IPR referred to plant variety protection, there are different elements
and combination of this system which can be applied. The word “Effective” should be given
emphasis by this system.

Basically three main suggestions admitted for the patentability of plants and animals. The
general rule of patentability suggests that no exception should be given this point is suggested by
industrialized countries.9 Secondly, Exclusion of biological processes other that micro-biological
processes, plant and animal varieties from the patentability by considering the provisions applied

8
http://www.iprcommission.org/papers/pdfs/final_report/ciprfullfinal.pdf
9
http://www.uspto.gov/web/offices/pac/mpep/s707.html
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in Europe from EPC10. Lastly for the exclusion of biotechnology from patentability, it is
suggested that Government should be allowed as a member for giving more freedom.

After having debates on suggestions mentioned above, TRIPS Agreement considers the second
and third suggestion and allowed exclusion of plant and animal varieties and also in general if we
say plants and animals.11 Finally, after so long, this time Protection under industrial patent
system given to the Breeders. But it is also having so many difficulties. 12 However, duration of
rights under a sui generis system is not specified under TRIPS Agreement. It should grant
protection for a limited period of time.

This agreement suggests that the term “effective” is in the context of national enforcement of
rights. It is for the procedures, prevention and settlement of disputes between Governments. This
term relates to the opportunity to have legal and administrative action for enforcing particular
right or to prevent an infringement from this. This system should guarantee such measures
irrespective of the content of right. The system comprises of all these procedures would means
an effective “Sui generis System”.

4.1 National Legislation with the forms of protection (Relationship): Relationship between
the systems established by different countries should be considered particularly in the case of
patents in the forms of protection. From the suggestions which are earlier mention in this article ,
the third proposal by the TRIPS Agreement which is, the combination of patents and a sui
generis system for the protection of plant varieties suggests that the opportunities is given to
different countries with regard to drafting of their own legislation.

Important attribute which is to be included in sui-generis system of protection are the Breeder’s
Exemption and the Farmer’s Privilege. Its provisions are in a way encouraging genetic diversity
and reducing the potential negative effect. It should also be consider while adapting this system
in different countries according to their circumstances and needs.

5. FARMERS’ RIGHT AND BREEDERS’ RIGHT

There are two systems namely; Plant Breeders Rights and Farmer’s Rights were adopted by the
Indian legislation.
10
European Patent Convention
11
Kibert, Charles J., Lelie Thiele, Anna Peterson, and M. Monroe. "The Ethics of Sustainability." (2011).
12
http://www.fao.org/3/a-x7355e/X7355e07.htm
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5.1 Plant Breeders’ Rights : PBRs are intended to provide protection to the seed
industries .Breeders wanted to evolve breeders right as an alternative to patents after
biological processes where seen as non patentable subject matter. 13 As mentioned earlier the
initial attempt to harmonize plant breeder rights emerge in 1961 with the UPOV. Thereby it
is defined as, “PBR is an exclusive right over the commercial protection of the marketing of
the reproductive or the vegetative protective material for the protected variety”. There were
two exceptions to these:

a) Research Exemption
b) Farmers’ Privilege (Use and exchange of saved seeds not amounting to sale of seed.)

Later, in 1991 UPOV increased breeders’ right by inclusion of notion of essentially

derived variety and optionalising farmers’ privilege.
Essentially derived variety refers to the variety that has been pre dominantly derived from
the initial variety itself. It essentially fulfils the criteria of novelty, distinctiveness,
uniformity and stability and hence protected against exploitation without breeders
authorization. It were the industrialized countries that adopted PBRs initially. Developing
Countries extended PBRs after the TRIPS agreement in the WTO. Here interestingly,
there were conflict between USA and Europe over the type of protection for plant variety
that should be confirmed in TRIPS. This made TRIPS to call countries to provide
effective Sui Generis system for plant variety if they felt appropriate. Several industries
wanted to portray the sui generis system of UPOV-like system shaped upon in the 1991
convention. However numerous NGO’s and farmers’ lobbies prevented an interpretation
of the sui generis clause as UPOV.

The scope of the rights of the breeder is exclusive of propagating material in the
production of the ornamental plants or cut flowers; the breeder does not require giving
authorization while marketing of varieties created out of initial source of variety.
However, such authorization is needed when there is repeated use of variety for the
commercial production of another variety protection duration does not exceed 18 years

13
http://www.upov.int/en/publications/conventions/1961/w_up
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for vines, forest trees and fruit trees and in case of ornamental trees, it extends up to 15
years.14

We can better understand the provision laid down in UPOV by the following example.
“A breeder of a new variety of a coconut tree will have right over the coconut but not
over the any other product derived from the coconut or any other parts of the plant. In
addition authorization of the breeder is not essential for using it as an initial source for
research purpose.15 Thus the question was that plant breeders right had a very limited
scope over the farmers’ right through the provision laid down in UPOV.”

5.2 Farmers’ Right : Farmers right are of counter to breeders right the idea behind farmers right
is that farmer also contribute to agricultural innovation and hence deserve recognition and
rewards like thee breeder. The notional aspect of farmers’ right is particularly prevalent in
developing countries as the advanced countries do not differentiate between breeders and
farmers. The reason behind this is that farmers are the major source of seed supply in developing
nation. The three basic aspects of farmers’ right are described below

a) Farmers’ privilege: UPOV refer to this as farmers’ exemption which essentially

provides an exemption for farm saved seeds under PBRs. The initial motive behind
this as for protecting right in commercial production as the scope of PBR was
inclusive of non commercial activity. However, this was reduced to an optional clause
after the 1991 UPOV revision.
b) Benefit Sharing: The convention on the biological diversity concluded in 1992
marked the emergence of the concept of benefit sharing. By this it referred to
compensation to farmers /communities who contribute to the creation of a new
variety or the development and conservation of existing varieties. Essentially there is
refrence to the rights and rewards that the farmers deserve for their contribution to
agriculture innovation and growth.
c) Farmers’ rights as ownership: This does not refers to exemption to benefits but to
the right of farmers in similar fashion to breeder to claim ownership over their

14
Plant Varieties (Proprietary Rights) Act, 1980, Irish Statute
15
http://agropedialabs.iitk.ac.in/agrilore/sites/default/files/HNM-book.pdf
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varieties. The extension of the ideology of IPR to farmers’ varieties is hereby

represented. However, problem arises with regard to the criteria for registering
farmers’ variety. The properties of distinctiveness , uniformity and stability as
applied in case of breeders’ right does not appear fit for the myriad of comparatively
heterogeneous , locally adapted and locally recognized farmers varieties.

These three aspects of farmers’ right are still in the process of being applied and interpreted in
developing countries. Developing countries had passed a resolution in 1989 which had defined
farmers right as , “ Rights arising from the past , present and future contribution of farmers in
conserving , improving and making available plant genetic resources, particularly those in
centre of genetic diversity. These rights are vested in the international community as trustee for
present and future generation.”16 NGO’s and developing countries legitimize farmers right in the
light of sue generis clause under TRIP. So they preferred TRIPS over UPOV in order prioritize
the scope of rights for both farmers and breeder.

6. CHALLENGES TO BREEDERS’ RIGHT IN INDIA

Sui Generis has neither been defined in the TRIPS Agreement, nor has it mentioned any
elaborate measures aiming at its effectiveness. It has evaded from mentioning any particular PVP
like UPOV as a model. It is clearly implied that the countries do not have to maintain any
similarity or identity with the legislations of any other countries and can devise their very system
of PVP. Absence of such proper definition in TRIPS can be positively interpreted as a flexible
platform to mould the laws according to the needs of the nation.

In a developing country like India, where the economy is basically agricultural, the flexibility of
sui generis model paves a way for accommodating a proper balance between promotion of
private interest in national plant breeding and safeguarding the livelihood opportunities of
farming communities. Presently, the laws in India regarding protection of plant varieties and
farmers’ right are in infancy stage. They are persistently being framed and the legislation process
is in continuation. The major problem of the hour is striking a perfect balance between Farmers’
Right vis-a-vis Breeders’ Right.

16
FAO Resolution, 1989
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In India, the agriculture is the primary sector of the economy and approximately 70% of the
Indian population comprises of farmers who are not very affluent. The legislators and other
active institutions are showing biasness towards protection of Farmers’ Right over the Breeders’
Right.

6.1 ABSENCE OF EDV17 PROTECTION

Farmers are allowed to sell unbranded seed of protected varieties in India. In this way, the rural
breeders’ who are also the farmers are being recognized and their rights are being given priority.
EDVs refer to the varieties of seeds which have extra qualities over the parent seeds and are
more productive.18 This is attained by genetic modification beyond the natural breeding process.

In India, these GM varieties are not being protected on the grounds that they are genetic replica
of the parent seed with slight modification. The other basic reason is by protecting EDVs is the
farmers’ right shall be limited. Though the moral grounds are apparently appealing, but this is
increasing the plight of the Breeders. The Breeders don’t have freedom to use landraces to create
EDV and need to seek permission from the farmers. Considering the socio-economic-political
scenario of India, it is really strenuous to obtain such permission.

The whole episode of BT Crops is the example of the helplessness of the breeders when their
rights are not being protected. The BT Crops were denied protection on the point that they are
genetically similar to that of their parent crops except the bacterial gene that of Bacillus
thuringiensis. But, the extensive research conducted by the breeders inside the lab in order to
attain the special quality associated with the BT crops i.e. More Productivity, More Storage Life,
Pest Combating Aspects etc., needs to be rewarded. Squeezing someone’s right over ethical
grounds doesn’t appear very ethical. This is one of the major challenges to the breeders’ right in
India.

6.2 THE SEEDS BILL OF 2004: A MAJOR CHALLENGE BEFORE BREEDERS’

RIGHT

17
Essentially Derived Variety
18
Title 7, Agriculture; Chapter 57, Plant Variety Protection, Protectability of Plant Varieties and Certificates of
Protection; Protectability of Plant Varieties.
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The Seeds Bill, 200419 was introduced with a purview of regulating the quality of seeds that are
bought by the farmers and hence replaced the Seeds Act, 1966. 20 It made the registration of all
seed varieties for sale compulsory and the seeds need to satisfy a set of standards.

The Bill has clearly lifted the restriction on the farmers’ right to sell and exchange the farm seeds
and planting material.21 This definitely is a boon for the farmers but a direct attempt to jeopardize
the rights of breeders. The Seeds Bill, 2004, however, says that the farmers don’t have the right
to sell it under any brand name and in addition farmers need to conform to the minimum
standards regarding germination, physical purity and genetic purity applicable to registered
seeds. This appears as a farce as branding the item or not branding is immaterial and what is at
stake is the interest of the Breeders.

Secondly, the said bill imposes stringent policy as to failure of performance by the seed sold by
the breeders. A registered variety of seed, when fails to meet the expected standards,
compensates the farmer who is at loss under the CPA22, 1986. This is definitely advantageous to
the farmer who gets the loss reimbursed but the breeder is at loss. The legislation has not
prescribed any measure to determine the cause of the failure of the crop and very arbitrarily
imposes the damages on the breeders. There might be possibly any negligence on the part of the
farmers or any force majeure which is responsible for the crop failure. The policy decision
should have preferred arbitration over arbitrariness and could have found something midway,
thus, protecting both the rights of the farmers and the breeders.

In India, there is no concrete differentiation between the farmers and the breeders. India also
does not have big seed companies and seeds are essentially produced by the farmers and farmers’
cooperative. Here, the farmers play a significant role as breeders of new plant varieties. They are
often credited of releasing new varieties by crossing and selection from their fields and thus
preserving our ecological and food security. For instance, the coastal farmers have developed
varieties that are resistant to salinity and the farmers from Bengal and Bihar have evolved
varieties that can withstand flood. The farmers from Rajasthan and Central India have evolved
seed techniques which can survive water scanty situation. These farmers who are also the
breeders don’t get protected under the Seeds Act. The Compulsory registration is beyond their

19
http://agricoop.nic.in/seeds/seeds_bill.htm
20
http://indiatogether.org/seeds-laws
21
http://www.nfu.ca/issue/fundamental-principles-farmers-seed-act
22
Consumer Protection Act.
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reach and the seeds produced by them shall be termed illegal. This shall result in a doldrumatic
situation where the farmers alias the breeders are subjected to the monopoly of the Corporate
Sector.

In a continuation to the previous analysis, we can also infer that as India doesn’t have huge
Corporate that govern the agricultural sector, it would the MNCs who will end up establishing
their supremacy.

6.2.1 The License Inspector Raj for Seeds is yet another trauma to be faced by the helpless
farmers who can be colloquially called as breeders in Indian Context. A monopolistic Patent
regime is a distant dream as long as the farmers have access to the seeds of their traditional
varieties of indigenous agro-biodiversity. The strategic aim of the Seeds Act, 2004 is apparently
to snatch the rights of seed saving, exchange and reproduction from the farmers/breeders.

Compulsory registration of seed would accompany the examination of the seeds by the seeds
inspector who are empowered to enter and search the farms and huts of the breeders thus
tantamounting a terror of ‘Seed Police’ amongst the farmers/breeders who are conserving the
rich biodiversity and practicing a sovereign self-reliant agriculture.

6.3 TERMINATOR BAN

Terminator technology refers to plants that have been genetically modified to render sterile seeds
at harvest – it is also called GURTS23. Terminator technology was developed by the
multinational seed/agrochemical industry and the United States government to prevent farmers
from saving and re-planting harvested seed. The Indian legislation has put a complete ban this
technology. Indian law also prohibits breeders from using sterile seed technologies. Every
breeder has to submit an affidavit that their product doesn’t contain GURT.

In addition, there are also some benefits associated with the terminator technology. One of the
basic advantages is that this technology is capable of combating Genetic Contamination
particularly for potential use in GE trees and plants modified to produce drugs and industrial
chemicals. Genetic contamination poses a great threat to the agricultural biodiversity.

Though there are several problems with the active use the terminator technology and it needs to
be looked at so that it doesn’t pose a great threat to the rights of the farmers. But putting a
complete ban on the technology is like overlooking the breeders’ right. The legislators could
23
Genetic Use Restriction Technology
 14

have found a way somewhere in between in order to accommodate the rights of both farmers and
breeders.

6.4 DISCLOSURE OF ORIGIN

It is compulsory for the people who intend to apply for breeders’ certificate to provide ‘passport
data’. Passport data consists of a set of information, including the parentage of the new variety
and the names and locations of landraces used. Prima Facie, there is no problem with disclosure
of such information but the reason why this gains importance is that the breeders’ Certificate
shall be cancelled if some falsity is noticed within such information. Another reason behind
considering this hefty procedure as a challenge before the breeders is that the farmers do not
have to undergo all these trials and tribulations. The legislation is clearly showing undue
advantage to the farmer over the breeder which is not acceptable at any cost.

6.5 FEE AND PROSECUTION WAIVER

The instances of the legislators’ favouritism towards the farmers are not yet over. Farmers are
vested with exemption of fees if they wish to examine PBR-related documents and papers or
receive copies of rules and decisions made by various authorities. However, everyone else
including the breeders have to pay that required fee. The breeders also have some association
with the PBR documents and they too work for the betterment of the agricultural sector. Such
alienist treatment towards the breeders is yet another obstacle on their path.

Another instance is the waiver of prosecution to the farmers. This is sheer discrimination as the
rules should be equal for everyone and favouring someone by not prosecuting them is like
encouraging them to break the laws time and again. The farmers can easily infringe the rights of
the breeders and they can be acquitted only if they can prove that they were unaware of the
existence of that rule. This is sheer injustice not only because the farmers are being encouraged
to break the rules but also because they are free to pounce upon the rights of the breeders
whenever they feel like. Thus, the rights of breeders which are limited in number also lack any
legal enforcement and are likely to be infringed.

This can be clearly understood by the following illustration; Farmer ‘A’ deliberately sells seed
under a breeders’ registered name ‘B’. He can easily save himself from the clutches of law by
 15

merely proving the act was accidental and not intentional. This can be misused by the farmers’
and pose a threat towards the position of breeders.

6.6 FARMERS’ RIGHT TO RE-USE THE PGR24S OF PLANT BREEDERS’:

PROBLEMS RAISED IN THE CONTEXT OF BIOTECHNOLOGY

The plant breeding range from the ancient form of hybridisation, to the new genetic engineering
technology which includes marker assisted selection, reverse breeding and double haploids, and
genetic modification.25 Plant propagation happens either sexually or through seeds. In order to
maintain the quality and integrity of seed-propagated plants, the seed sources need to be
controlled and monitored. It is very essential to understand every technical link in seed
production to meet the required economic result. 26 There are kinds of seeds which cannot be used
simply without the help of breeders. There are techniques like parthenocarpy 27 and CMS28 which
endow the products with additional attributes. However, the current Plant Variety Protection law
as being formulated provides scope to the farmers to reuse the seeds.
Again, there has been a restriction on parthenocrapic fruit variety as it snatches away the right to
use, sow, re-sow, and exchange seed, as there is no seed at all from the farmers. But the breeders
have enough justification to resort to such techniques as it forbids natural pollination and thus
preventing any kind of contamination helping to keep the quality of the fruit intact. However,
restriction on such technical advancement is another challenge to the rights of breeders as well as
the quality of crops produced. If the farmer does not need to come back to the breeder at all after
one purchase of seeds, and he starts producing the seed with the special trait himself, and
exchanges them with other farmers, the plant breeders’ return for his invest for the breeding
becomes meager.

6.7 COMPROMISING INDIA’S COMPETITIVENESS IN BIOTECHNOLOGY

24
Plant Growth Regulators
25
http://en.wikipedia.org/wiki/Plant_breeding#Reverse_Breeding_and_Doubled_Haploids_.2
26
Amarjit S. Basra, Heterosis and hybrid seed propagation in agronomic crop
27
Development of a flower into fruit without fertilization thus creating seedless fruit
28
Cytoplasmic Male Sterility(This is a maternally inherited trait that makes the plant produce sterile pollen.
However, this technology is used with the intention of reducing the labour cost of removing pollen from the plant to
avoid natural pollination)
 16

India is a country abundant with richness of flora and fauna. This indirectly refers to the wide
genetic diversity that India embodies. The technical advancement related to natural genetic
diversity is going to be a great prospective field in the near future and a dominant technology in
the upcoming few decades. India shall be deprived of this competitiveness if the IP Laws don’t
protect this prospect in an apt mannerism. The discouragement and challenges faced by breeders
and biotechnologists inhibits their potentials and thus curbing future advancements.
The competitions posed by several economically huge MNC 29s are reason due to which nascent
Indian ventures are being stumped. India, if continues to neglect the interests of the breeders, will
be a great loser by completely demeaning the scope for self-reliant growth. It will end up losing a
great opportunity to emerge as an economically powerful nation just due its negligence to protect
the biotech prospects.

6.8 CHALLENGES AT THE INTERNATIONAL LEVEL

The seed industry and market has great prominence in international market. In this age of
globalisation, the nations across the globe mutually have to exchange techniques and ideas as to
get best output. However, there are differences with regards to policies followed by different
countries. As we all know, the developed countries are on verge of exhausting all their natural
resources and hence devising various strategies in order to utilise the resources available with the
developing nations. The developed nations who have their dominant say in the International
Organisations are very cleverly trying to attack on the breeders’ right by the means of ‘Forum
Shifting’. They always come up with a new idea in every meeting, thus endangering the sense of
security of rights vested with the breeders. Now, they are of the opinion that TRIPs agreement’s
is simply vague in keeping it open for the countries to select the mode of protection and it would
be wiser to follow the rule laid down by the UPOV, 1991. The provision laid down in UPOV
denies more than two kinds of protection for a specific variety of plant. This limits the benefit
endowed upon the breeders and giving extra privilege to farmers. The UPOV didn’t recognise
the preservation of seeds by the farmers for their next years’ crop as commercial. This directly
affects the breeders’ right as they are the ones who have the rights over the seeds.

29
Multi National Company
 17

Bilateral FTA30 and the UN31 have become platforms where the seed industry and developed
countries organize their attack on Breeders Rights. 

6.8.1 Bilateral Trade Agreements

The prevalent trend amongst the developed countries is that they are asking for protection
beyond TRIPs. The current scenario is such that almost every international organisation is
pressurising the developing nations to agree to the provisions as laid down by the UPOV over the
TRIPs. UPOV has been developed by the countries which are basically industrial. The
agricultural industry is by and large very affluent and financially sound and their sole purpose is
to prioritise the profit. Indian context is totally different. In an agricultural economy like that of
India, both the farmers’ right and the breeders’ right need to be protected.

(i) EU32-India FTA: India and EU started their trade negotiations in the year 2007 and there has
been a constant pressure from the European Union to the Indian legislation to prefer UPOV over
the presently followed sui-generis mode of protection.

(ii) EFTA33India FTA: The EFTA nations have also started pressurising the developing nations
to prefer UPOV and scrape down the sui generis protection. India is in their special target as it
has unique PPV-FR legislation it is the only nation to have enacted a PVP platform which
deviates from UPOV.

(iii) UN and GATT34 ATTACKS: The ISF35 has tried to advocate Breeders’ right over the
farmers’ right. However the UN and other international organisations have not submitted their
agreement as regards to these arguments. The ISF in its position paper for the year 2009 has
clearly mentioned, “ISF members consider that any national legislation authorizing farm saved
seed …without safeguarding the legitimate interest of the breeders…would not be an effective sui
generis system in the meaning of the article 27.3.b of the TRIP’s agreement.36”

The aforementioned sentences are quite contrary to the provisions mentioned in the WTO-TRIPS
on sui generis protection. In addition, the countries have declined to accept the UPOV model of
sui generis protection.
30
Free Trade Agreements
31
United Nations
32
European Union
33
European Free Trade Association
34
General Agreement on Tariffs and Trade
35
International Seed Federation
36
http://www.worldseed.org/isf/on_intellectual_property.html
 18

7. CONCLUSION

The effectiveness of the UPOV model of PVP protection stands inefficacious in case of the
Indian context. The UPOV model is appropriate for economically affluent nations where
agricultural sector is more commercialized. In India, agriculture is the source of livelihood and
there are no huge corporate giants who are to be benefited from the protection of breeders’ right.
To the contrary, Indian scenario is such that there is a very thin line of difference between the
farmers and the breeders. The legislations’ attempt to accommodate the rights of the farmers has
proved to have contrary effect on the breeders and vice-versa.

There have been several campaigns, protests and movements in order to claim protection of
rights over plant variety and the mystery remains unsolved. The apt mannerism which the
aforesaid problem can be tackled has been enumerated by the Gene Campaign in India. The
Gena Campaign along with CEAD37 has come up with a proposal named CoFaB38. It has very
successfully accommodated both the wants of the farmers and the breeders. The UNDP 39 HDR40
has reviewed this article by CoFaB and has praised it as, “a strong and coordinated
international proposal” which “offers developing countries an alternative to following
European legislation by focusing legislation on needs to protect farmers’ rights to save and
reuse seed and to fulfil the food and nutritional security goals of their people.41”

India being one of the fiest countries to have given rights to farmers should strive towards a
piece of legislation which ensures equally protective rights to both the farmers and the breeders.
The challenges faced by the breeders should be entertained and an attempt should be made to
eradicate the same. The problem can never be solved by ignoring it. Rather, the preferable
approach is to find out the reasons responsible for the same and evade the root cause itself.

8. BIBLIOGRAPHY

ARTICLES REFFERED
37
Centre for Environment and Agriculture Development
38
Convention of Farmers and Breeders
39
United Nations’ Development Programme
40
Human Development Report
41
UNDP HD Report, 1999 (http://hdr.undp.org/sites/default/files/reports/260/hdr_1999_en_nostats.pdf)
 19

 A. Ravishankar and Sunil Archak, Searching for Policy Options: Is CoFaB a Suitable
Alternative to UPOV?, Economic and Political Weekly, Vol. 34, No. 52 (Dec. 25-31,
1999), pp. 3661-3667
 Bonwoo Koo, Carol Nottenburg and Philip G. Pardey, Plants and Intellectual Property:
An International Appraisal Science, New Series, Vol. 306, No. 5700 (Nov. 19, 2004), pp.
1295-1297
 Navchetan Singh and Sharangit S. Dhillon, Contract Farming In Punjab: An Analysis of
Problems, Challenges and Opportunities, Pakistan Economic and Social Review, Vol.
44, No. 1 (Summer 2006), pp. 19-38
 Peter J. Goss, Guiding the Hand That Feeds: Toward Socially Optimal Appropriability in
Agricultural Biotechnology Innovation, California Law Review, Vol. 84, No. 5 (Oct.,
1996), pp. 1395-1436
 Shaila Seshia, Plant Variety Protection and Farmers' Rights: Law-Making and
Cultivation of Varietal Control, Economic and Political Weekly, Vol. 37, No. 27 (Jul. 6-
12, 2002), pp. 2741-2747
 Shakeelur Rahman and Suman Sahai , Performance of Bt Cotton: Data from First
Commercial Crop, Economic and Political Weekly, Vol. 38, No. 30 (Jul. 26 - Aug. 1,
2003), pp. 3139-3141
 Suman Sahai, Government Legislation on Plant Breeders' Rights, Economic and Political
Weekly, Vol. 29, No. 26 (Jun. 25, 1994), pp. 1573-1574
 Suman Sahai, Protection of New Plant Varieties: A Developing Country Alternative,
Economic and Political Weekly, Vol. 34, No. 10/11 (Mar. 6-19, 1999), pp. 579-580
 Suman Sahai, The 'Sui Generis' System, Economic and Political Weekly, Vol. 28, No. 50
(Dec. 11, 1993), pp. 2702-2703
 Suman Sahai, TRIPS Review: Basic Rights Must Be Restored, Economic and Political
Weekly, Vol. 36, No. 31 (Aug. 4-10, 2001), pp. 2918-2919
 Suman Sahai, Protecting Plant Varieties: UPOV Should Not Be Our Model, Economic
and Political Weekly, Vol. 31, No. 41/42 (Oct. 12-19, 1996), pp. 2788-2789
 Suman Sahai, TRIPS and Biodiversity: A Gender Perspective, Gender and Development,
Vol. 12, No. 2, Trade (Jul., 2004), pp. 58-65
 Suresh Pal, Robert Tripp and Niels P. Louwaars, Intellectual Property Rights in Plant
Breeding and Biotechnology: Assessing Impact on the Indian Seed Industry, Economic
and Political Weekly, Vol. 42, No. 3 (Jan. 20-26, 2007), pp. 231-240

WEBSITES
 http://genecampaign.org/
 http://www.ielrc.org/
 http://www.iponz.govt.nz/
 www.upov.int/
 http://www.in.undp.org/
 20

 http://www.ip-watch.org/

STATUTE

 Seeds Act, 2004