PROJECT WORK ON LAW AND POVERTY

TOPIC: RIGHTS OF PLANT BREEDERS AND FARMERS

SUBMITTED TO

DR. ZAFAR NOMANI SIR

SUBMITTED BY

PARUL SINHA

12 LL.M 11

II SEMESTER

SYNOPSIS

1. INTRODUCTION2. THE TRIPS AGREEMENT OF WTO AND THE RIGHTS OF PLANT BREEDERS AND FARMERS3. UPOV INTERNATIONAL CONVENTION FOR THE PROTECT ON OF NEW VARIETIES OF

PLANTS,19914. APPLICATION FOR THE GRANT OF BREEDERS’ RIGHT5. THE RIGHTS OF THE BREEDERS6. EXCEPTIONS TO THE RIGHT OF THE BREEDERS7. EXHAUSATION OF THE BREEDER’S RIGHT8. RESTRICTIONS ON THE EXERCISE OF BREEDERS’ RIGHT9. THE PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS ACT, 200110. THE PLANT VARIETIES AND FARMERS’ RIGHTS PROTECTION AUTHORITY11. FARMERS’ RIGHT12. CONCLUSION 13. BIBLIOGRAPHY

INTRODUCTION

This project aims at helping provide some understanding on the concept, evolution, and legalization of farmers’ rights in domestic legislation, and their implications on public and private sector plant breeding and proprietary seed commercialization programs. A better understanding of the rights and the surrounding issues should then improve rather than hinder such programs, particularly those that are proprietary in nature. This impetus should then generate better plant varieties, even though they are proprietary, that could result in improved profitability of small farmers dependent on these improved cultivars.

By reviewing relevant international and domestic laws embodying farmers’ rights, this project concludes that international and Philippine laws recognize farmers’ rights as a bundle of rights evolving from international law to domestic law. The right recognizes the enormous contribution of farmers worldwide in the preservation, conservation, and development of plant genetic resources (PGR), particularly those from the centers of origin and biodiversity. The right evolved \into a legal right in the light of the increasing assertion of plant breeders on their new plant varieties, as embodied in the International Treaty for the Protection of New Plant Varieties (UPOV) adopted by most developed countries in Europe.

While the UPOV recognizes and protects plant breeders’ rights, it also overlooked the fact that the plant breeders’ breeding materials came from landraces that were conserved, preserved, and developed by farmers from developing countries, which are centers of origin and biodiversity, since time immemorial.

The protection of the rights of breeders and farmers has gained general acceptance in many States. The States are convinced of the importance attaching to the protection of new varieties of plants not only for the development of agriculture in their territory but also for safeguarding the interests of breeders. They are conscious of the special problems arising from the recognition and protection of the rights of breeders through patents and particularly of the limitations that the requirements of the public interest may impose on the free exercise of such a right. They deem it highly desirable that these problems, to which very many States rightly attach importance, should be resolved by each of them in accordance with uniform and clearly defined principles

THE TRIPS AGREEMENT OF WTO AND THE RIGHTS OF THE PLANT BREEDERS AND FARMERS

The sub-paragraph (b) of Paragraph 3of Article 27 under Section 5 (patent) in Part II of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRI PS) states relating to protection of plant varieties thus: plants and animals other than micro-organism and essentially biological processes for the protection of plant or animals other than non-biological and microbiological processes. However, Members staff provide for the protection of plant varieties either by patents or by an effective suigeneris system or by any combination thereof." The provisions in this paragraph shall be reviewed four years alter the date of entry into force of the WTO Agreement”. Hence, the Member countries of WTO have to undertake measures for the protection of the rights of the plant breeders and farmers and to encourage the development of new varieties of plants.

UPOV INTERNATIONAL CONVENTION FOR THE PROTECT ON OF NEW VARIETIES OF PLANTS, 1991

Plant Breeders' Rights (PBR) system to save, use and exchange seeds are declared in UPOV Convention of December 2, 1961, and it is revised at Geneva on November 10, 1972, and on October 23, 1978 and on March 19,1991. As of 23rd March, 1999 UPOV had 39 Member States and 16 other Countries have initiated with the council of UPOV the procedure for becoming members of the Union. India has become a member of the Union.

PURPOSE OF CONVENTION :- The purpose of this International Convention is to recognize and to ensure to the breeder of a new plant variety or to his successor in title a right. The States parties to this Convention constitute a Union for the Protection of new varieties of Plants. The seat of the union and its permanent organs shall be at Geneva.

BREEDER' MEANS1

i. The person who bred, or discovered and developed, a variety,

ii. The person who is the employer of the aforementioned person or who has commissioned the latter's work where the laws of the renewal Contracting Party so provide

iii. The successor in title of the first or second aforementioned person, as the case may be.

'VARIETY' means a plant grouping within a single botanical tax on of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a breeder's right are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of at

1 According to the act of the international convention for the protection of new varieties of plants, 1991

least one distinguished from any other plant grouping by the expression of at least one of the said characteristics and considered as a unit with regard to its suitability for being propagated unchanged.2

GENENERAL OBLIGATIONS OF THE CONTRACTING PARTIESEach contracting party shall grant and protect breeder's right.3 Each contracting State shall apply the provisions of this Convention at the date on which it becomes bound by this convention, at least 15 plant genera and species, and at the least by the expiration of a period of 10 years from the said date, to all plant genera and species4.

NATIONAL TREATMENTWithout prejudice to the rights specified in this convention, Nationals of a contracting Party as well as natural persons reside it and legal entities having their registered offices within ,the territory of a contracting party shall, in so far as the grant and protection of breeder's rights are concerned enjoy with the territory of each other Contracting Party the same treatment as is accorded or may hereafter be accorded by the laws of each such other Contracting Party to its own nationals, provided that the said nationals, natural persons or legal entities comply with the conditions and formalities imposed on the nationals of the said other Contracting Party. 'Nationals' means where the Contracting Party is a State, the Nationals of that State and, where the Contracting Party is an intergovernmental organisation, the nationals of the state which are members of that organisation.5

CONDITIONS OF PROTECTION:-

The breeder's right shall be granted where the variety is new, distinct, uniform and stable. The grant of the breeder's right shall not be subject to any further or different conditions provided that the variety is designated by a denomination in accordance with the provisions of Article 20, that the applicant complies with the formalities provided for by the law of the contracting party with whose authority the application has been filed and that he pays the required fees.6

a. NOVELTY:-- The variety shall be deemed to be new if, at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety in the territory of the contracting party in which the application has been filed earlier than one year before that date and in the territory other than that of contracting party in which the application has been filed earlier than four years or, in the case of trees or of vines, earlier than six years before the said date.

b. Where a Contracting Party applies this convention to a plant genus or species to which it did not previously apply this convention or an earlier Act, it may consider a variety of recent creation existing at the date of such extension of protection to satisfy the condition of novelty even where the sale or disposal to others took place earlier than the time limits.

2 [art. I (vi)] 3(art. 3) 4 (art. 4)5 (art. 5)6 (art. 6)

c. All the Contracting Parties which are member States of one and the same intergovernrnental organisation may act jointly, where the regulations of that organisation so require, assimilating acts done on the territories of the State members of that organisation to acts done on their own territories and, should they do so, shall notify the Secretary-General accordingly.

d. DISTINCTNESS:-- The variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application. In particular, the filing of an application for the granting of a breeder's right or for the entering of another variety in an official register of varieties, in any country, shall be deemed to render that other variety a matter of common knowledge from the date of the application, provided that the application leads to the granting of a breeder's right or to the entering of the said other variety in the official register of varieties, as the case may be7.

e. UNIFORMITY:- The variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.8

f. STABILITY:-- The variety shall be deemed to be stable if its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.9

APPLICATION FOR THE GRANT OF THE BREEDER’S RIGHT

a) FILING OF APPLICATIONS:- The breeder may choose the Contracting Party with whose authority he wishes to file his first application for a breeder's right. The breeder may apply to the authorities of other Contracting Parties for the grant of breeder's rights without waiting for the grant to him of a breeder's right by the authority of the Contracting Party with which the first application was filed. No Contracting Party shall refuse to grant a breeder's right or limit its duration on the ground that protection for the same variety has not been applied for, has been refused or has expired in any other State or intergovernmental organisation10

b) RIGHT OF PRIORITY:- Any breeder who has duly filed an application for the protection of a variety in one of the Contracting Parties (the 'first application') shall, for the purpose of filing an application for the grant of a breeder's right for the same variety with the authority of any other Contracting Party (the 'subsequent application'), enjoy a right of priority for a period of 12 months. This period shall be computed from the date of filing of the first application. The day of filing shall not include in the latter period. In order to benefit from the right of priority, the breeder shall, in the subsequent application, claim the priority the first application. The authority with which the subsequent application has been filed may require the breeder to furnish, within a period of not less than three months from 7 (art. 7)8 (art .8)9 (art. 9)10 (art. 10)

the filing date of the subsequent application, a copy of the documents which constitute the first application, certified to be a true copy by the authority with which that application was filed, and samples or other evidence that the variety which is the subject matter of both applications is the same. The breeder shall be allowed a period of two years after the expiration of the period of priority or, where the first application is rejected or withdrawn, an appropriate time after such rejection or withdrawal, in which to furnish, to the authority of the Contracting Party with which he has filed the subsequent application, any necessary information, document or material required for the purpose of the examination Article 12, as required by the law of that Contracting Party. Events occurring within the period of 12 months, such as the filing of another application or the publication or use of the variety that is the subject of the first application, shall not constitute a ground for rejecting the subsequent application. Such events shall also not give rise to any third-party right11.

c) EXAMINATION OF THE APPLICATION:- Any decision to grant a breeder's right shall require an examination for compliance with the conditions under Articles 5 to 9. In the course of the examination, the authority may grow the variety or carry out other necessary tests, cause the growing of the variety or the carrying out of other necessary tests or take into account the results of growing tests or other trails which have already been carried out. For the purposes of examination, the authority may require the breeder to furnish all the necessary information, documents or material.12

d) PROVISIONAL PROTECTION:- Each Contracting Party shall provide measures designed to safeguard the interests of the breeder during the period between the filing or the publication of the application for the grant of a breeder's right and the grant of that right. Such measures shall have the effect that the holder of a breeder's right shall atleast be entitled to equitable remuneration from any person who, during the said period, has carried out acts which, once the right is granted, require the breeder's authorization as provided in Article 14. A Contracting Party may provide that the said measures shall only take, effect in relation to persons whom the breeder has notified of the filing of the application.13

RIGHTS OF THE BREEDERS

11 (art.11) 12 (art. 12)13 (art. 13)

THE FOLLOWING ACTS IN RESPECT OF THE PROPAGATING MATERIAL OF THE PROTECTED VARIETY SHALL REQUIRE THE AUTHORISATION OF THE BREEDER;

(a) Production or Reproduction (Multiplication)

(b) Conditioning For The Purpose Of Propagation,

(c) Offering for Sale,

(d) Selling or other Marketing,

(e) Exporting,

(f) Importing,

(g) Stocking for any of the above Purposes.

The breeder may make his authorization subject to condition and limitations. The above acts in respect of harvested material, including entire plants and parts of plants, obtained through the unauthorised use of propagating material of the protected variety shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said propagating material. Each contracting party may provide that the above acts in respect of products made directly from harvested material of the protected variety through the unauthorized use of the said. Harvested material shall require the authorization of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation, to the said harvested material. Each contracting party may provide that acts other than the above acts shall also require the authorization of the breeder.

The above provisions shall also apply in relation to varieties which were essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety, and varieties which are not clearly distinguishable in accordance with Article 7 from the protected variety and varieties whose production requires the repeated use of the protected variety. For the purpose of varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety, a variety shall be deemed to be essentially derived from another variety ('the initial variety') when……

a) It is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety,

b) It is clearly distinguishable from the initial variety and

c) Except for the differences which result from the act of derivation, it conforms to the initial variety in tile expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.

Essentially derived varieties may be obtained for example by the selection of a natural or induced mutant, or of a somaclonal variant, the selection of a variant individual from plants of the initial variety, backcrossing, or transformation by genetic engineering14.

EXCEPTIONS TO THE RIGHTS OF BREEDERS

The breeder's right shall not extend to acts done privately and for non¬ commercial purposes, acts done for experimental purposes and acts done for the purpose of breeding other varieties. Each Contracting Party may, with reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder's right in relation to any variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety or varieties which are not clearly distinguishable in accordance with Article 7 from the protected variety. 15

EXHAUSATION OF THE BREEDERS RIGHT

The breeder's right shall not extend to acts concerning any material of the protected variety, or of varieties which are essentially derived from the protected varieties, which have been sold or otherwise marketed by the breeder or with his consent in the territory of the Contracting Party concerned, or any material derived from the said material, unless such acts involve further propagation of the variety in question or involve an export of material of the variety, which enables the propagation of the variety, into a country which does not protect varieties of the plant genus or species to which the variety belongs, except where the exported material is for final consumption purposes. 'MATERIAL' means, in relation to a variety, propagating material of any kind, harvested material, including entire plants and parts of plants, and any product made directly from the harvested material. All the Contracting Parties which are member states of one and the same intergovernmental organization may act jointly, where the regulations of that organization so require, to assimilate acts done on the territories of the States members of that organisation to acts done on their own territory and, should they do so, shall notify the Secretary-General accordingly16

14 (art.14)15 (art. 15)16 (art. 16)

RESTRICTION ON THE EXERCISE OF THE BREEDERS’ RIGHT

Except where expressly provided in this convention, no Contracting Party may restrict the free exercise of a breeder's right for reasons other than of public interest. When any such restriction has the effect of authorizing a third party to perform any act for which the breeder's authorization is required, the Contracting Party concerned shall take all measures necessary to ensure that the breeder receives equitable remuneration17.

MEASURES RELATING COMMERCE.The breeder's right shall be independent of any measure taken by a Contracting Party to regulate within its territory the production, certification and marketing of material of varieties or the importing or exporting of such material. In any case, such measure shall not affect the application of the provisions of this convention.18

DURATION OF THE BREEDERS RIGHT

The breeder's right shall be granted for a fixed period. The said period shall not be shorter than 20 years from the date of the grant of the breeder's right. For trees and vines, the said period shall not be shorter than 25 years from the said date19.

NULLITY OF BREEDERS RIGHT

EACH CONTRACTING PARTY SHALL DECLARE A BREEDER'S RIGHT GRANTED BY IT NULL AND VOID WHEN IT IS ESTABLISHED:

(a) That the conditions laid down in Articles 6 or 7 were not complied with at the time of the grant of the breeder's right,

(b) That, where the grant of the breeder's right has been essentially based upon information and documents furnished by the breeder, the conditions laid down in Article 8 or 9 were not complied with at the time of the grant other breeder's right, or

(c) That the breeder's light has been granted to a person who is not entitled to it, unless it is transferred to the person who is so entitled.

No breeder's right shall be declared null and void for reasons other than those referred above20

CANCELLATION OF THE BREEDERS RIGHT17 (art. 17)18 (art.18)19 (art.19)20 (art.21)

Each Contracting Party may cancel a breeder's right granted by it if it is established that the conditions laid down in Articles 8 or 9 are no longer fulfilled. Each Contracting Party may cancel a breeder's right granted by it if, after being requested to do so and within a prescribed period, the breeder does not provide the authority with the information, documents or material deemed necessary for verifying the maintenance of the variety, the breeder fails to pay such fees as may be payable to keep his right in force, or the breeder does not propose, where the denomination of the variety is cancelled after the grant of the right, another suitable denomination. No breeder's right shall be cancelled for reasons other than those referred above.21

IMPLEMENTATION OF BREEDERS RIGHT

Each Contracting Party shall adopt all measures necessary for the implementation of this Convention; in particular, it shall.

(a) Provide for appropriate legal remedies for the effective enforcement of breeder's rights;

(b) Maintain an authority entrusted with the task of granting breeder's rights or entrust the said task to an authority maintained by another contracting part ;

(c) Ensure that the public is informed through the regular publication of information concerning applications for and grants of breeder's rights, and proposed and approved denominations.

It shall be understood that, on depositing its instrument of ratification, acceptance, approval or accession, as the case may be, each State or intergovernmental organization must be in a position, under its laws, to give effect to the provisions of this convention.22

THE PROTECTION OF THE PLANT VARIETIES AND FARMERS RIGHT ACT, 2001

21 (art. 22)22 (art. 30)

The Final Act, embodying the results of Uruguay Round of Multilateral Trade Negotiations, done at Marrakesh on the ~ 5th of April, 1994 provides for the establishment of the World Trade Organisation. The Agreement on TRIPS is part of the said Final Act. India, having ratified the said Final Act, should make provision for giving effect to sub-paragraph (b) of paragraph 3 of Article 27 in Part II under Section 5 of the Agreement on TRIPS relating to Protection of plant varieties which reads "Members may also exclude from patentability plants and animals other than micro-organism and essentially biological processes for the protection of plant or animals other than non-biological and microbiological processes. However, Members shall provide for 'he protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this paragraph shall be renewed four years after the date of entry into force of the WTO Agreement".

PRINCIPLE AND OBJECTS OF THE ACT

a. To provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants;

b. To protect the rights 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;

c. To protect plant breeders' rights to stimulate investment for research and development, both in the public and private sector, of the development of new plant varieties to achieve accelerated agricultural development in the country;

d. To facilitate the growth of the seed industry in the country this will ensure the availability of high quality seeds and planting material to the farmers.

e. To give effect to Article 27(3) (b), it is considered necessary to undertake measures for the protection of the rights of the plant breeders and fam1ers and to encourage the development of new varieties of plant and hence enacted the Protection of Plant varieties and Farmers' Rights Act, 2001. It extends to thewhole of India. It shall come into force on such date as the Central Government may appoint.

OBJECTIVES:

The protection of Plant Varieties and Farmer's Rights Act, 2001 proposes to achieve the following objectives:

a. To stimulate investments for research and development both in the public and the private sectors for the development of new plant varieties by ensuring appropriate returns on such investments;

b. To facilitate the growth of the seed industry in the country through domestic and foreign investment which will ensure the availability of high quality seeds and planting material to Indian farmers; and

c. To recognize the role of farmers as cultivators and conservators and the contribution of traditional, rural and tribal communities to the country's agro-biodiversity by rewarding them far their contribution through benefit sharing and protecting the traditional rights of the farmers.

DEFINITIONS:

'FARMER' means any person who cultivates crop either by cultivating the land himself or cultivates crops by directly supervising the cultivation of land through any person; or conserves and preserves, severally or jointly, with -any person any wild species or traditional varieties, or adds value to such wild species or traditional varieties through selection and identification of their useful properties [Sec. 2(k)].

'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 [Sec.2(c)].

FARMERS' VARIETY" means a variety which has been traditionally cultivated and evolved by the farmers in their fields; or is a wild relative or land race of a variety about which the farmers possess the common knowledge23

'SEED' means a type of living embryo or propagate capable of regeneration and giving rise to a plant which is true to such type. 24

'VARIETY' means a plant grouping except micro organism within a single botanical taxon of the lowest known rank, which can be--

(a) Defined by the expression of the characteristics resulting from a given genotype of that plant grouping;

(b) Distinguished from any other plant grouping by expression of at least one of the said characteristics; and

(c) Considered as a unit with regard to its suitability for being propagated, which remains unchanged after such propagation and includes propagating material of such variety, extant variety, farmers' variety transgenic variety and essentially derived variety.25

23 {sec. 2(1)}24 {sec.2 (x)}25 {sec. 2(aa)}

'EXTANT VARIETY' means a variety available in India which is-¬ (a) Notified under Section 5 of the Seeds Act, 1966; or

(b) Farmers' variety; or

(c) A variety about which there is common knowledge; or

(d) Any other variety which is in public domain.26

'ESSENTIALLY DERIVED VARIETY' in respect of a variety (i.e. 'the initial variety'), shall be said to be essentially derived from such initial variety when it--

(a) Is predominantly derived from such initial variety; or from a variety that itself is predominantly derived from such initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of such initial variety;

(b) Is clearly distinguishable from such initial variety; and

(c) Conforms (except for the differences which result from the act of derivation) to such initial variety in the expression of the essential characteristics that~ result from the genotype or combination of genotypes of such initial variety.27

'ESSENTIAL CHARACTERISTICS' means such heritage traits of a plant variety which are determined by the expression of one or more genes of other heritable determinants that contribute to the principal features, performance or value of the plant variety.28

'PROPAGATING MATERIAL' means any plant or its component or part thereof including an intended seed which is capable of or suitable for regeneration into a plant.29

'DENOMINATION' in relation to a variety or its propagating material or essentially derived variety or its propagating material, means the denomination of such variety or its propagating material or essentially derived variety or its propagating material, as the case may be, expressed by means of letters or a combination of letters and figures written in any language.30

'BENEFIT SHARING' in relation to a variety, means such proportion of the benefit accruing to a breeder of such variety or such proportion of the benefit accruing to the breeder

26 {sec.2(j)}27 {sec 2(i)}28 {sec. 2(h)}29 {sec.2(r)]30 [sec. 2(g)]

from an agent or a licensee of such variety, as the case may be, for which a claimant shall be entitled as determined by the Authority under Section 26.

'CONTRACTING COUNTRY' means a country which has acceded to an international convention for the .protection of plant varieties to which India has also acceded, or a country which has a law on protection of plant varieties on the basis of which India has entered into an agreement for granting plant breeders' right to the citizens of both the countries.31

THE PLANT VARIETIES AND FARMERS' RIGHTS PROTECTION AUTHORITY

The Central Government shall, by notification in the Official Gazette, establish the Protection of Plant Varieties and Farmers' Rights Authority. The Authority shall consist of a Chairperson and fifteen members. The Chairperson shall be a person of outstanding calibre and eminence 1n the field of plant varietal research or in the related field of agricultural research or agricultural development. The Registrar-General shall be the Member-Secretary of the Authority. The ex officio members include the Agriculture Commissioner\ Horticulture Commissioner, Director of the National Bureau of Plant Genetic; Resources, representatives of Ministries dealing with seeds, bio-technology). environment and forests and law and Indian Council of Agricultural Research the Deputy Director General in charge of Crop Sciences, Indian Council Agricultural Research, one representative from each of a National or State level farmers, organisation, a tribal organisation, the seeds industry, an agricultural University, a National or State level women's Organisation associations with agricultural activities and two representatives of State Governments are being nominated as members. The established Authority shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power to acquire, hold and dispose of properties, both movable and immovable, and to contract, and shall by the said name sue and be sued. The Chairperson shall appoint a Standing Committee consisting of five members, one of whom shall be a member who is a representative from a farmer’s organisation, to advise the Authority on all issues including farmer’s rights. The Head Office of the Authority shall be at a specified r lace as notified by the Central Govt. The Authority may establish branch offices at other places in India, with the previous approval of the Central Government.32 The Authority shall meet at such time and place and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed. The Chairperson of the Authority shall preside at the meetings of the Authority. In his absence, any member of the Authority chosen by the members present at the meeting shall preside at the meeting. All questions which come before any meeting of the Authority shall be decided by a majority of the votes of the members of the Authority present and voting and in the event of equity of votes the Chairperson of the Authority or in his absence, the person presiding shall have and exercise a second or casting vote. Every member who is in any way interested in a matter to be decided at the

31 [sec. 2(t)]32 (sec.3)

meeting shall disclose the nature of his concern or interest and after such disclosure, the member concerned shall not attend that meeting.33

The Authority may appoint committees as may be necessary for the efficient discharge of its duties and performance of its functions34. The Authority may appoint such other officers and employees as may be necessary for the efficient performance of its functions and the Central Government may lay down rules governing the method of appointment, salary and other terms and conditions of the officers and employees35. The Chairperson of the Authority shall be the Chief Executive of the Authority. His detailed powers and functions will be laid down in the rules.36 It shall be duty of the Authority to promote by such measures as it thinks fit, the encouragement and development of new varieties of plants and protect the rights of the farmers and breeders with respect to those varieties of plants.

POWER OF AUTHORITY:- In all proceedings under this Act before the Authority or the Registrar--

i. The Authority or the Registrar, as the case may be, shall have all the powers of a Civil Court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents and issuing commissions for the examination of witnesses;

ii. The Authority of the Registrar may, subject to any rules made in this behalf under this Act, make such orders as to cost as it considers reasonable and any such order shall be executable as a decree of a Civil Court.37

THE REGISTRY AND OFFICES THEREOF:-- The Central Government shall establish the Plant Varieties Registry at the Head Office of the Authority and branch offices at such other places as the Authority may think fit to register the Plant Varieties. The Authority shall 1ppoint the Registrar General and such number of Registers as may be necessary for registration of Plant Varieties. There shall be a seal of the Plant Varieties Registry.38 NATIONAL REGISTER OF PLANT VARIETIES:-

A Register called the National Register of Plant Varieties shall be kept at the Head Office of the Registry. The details of the breeder and salient features of the variety would be entered in the Register. The copies of this register can also be kept at the branch offices of the Registry as per the directions of the Authority.39

33 (sec. 4)34 (sec. 5)35 (sec. 6)36 (sec. 7)37 (sec. 11)38 (sec. 12)39 (secc. 13)

REGISTRATION OF PLANT VARIETIES

APPLICATION FOR REGISTRATION:--

Any person specified in Section 16 may make an application to the Registrar for registration of any variety--

(a) Of such genera and species as specified under sub-section (2) of Section 29; or

(b) Which is an extra variety; or

(c) Which is a farmers' variety40

REGISTERABLE VARIETIES :- A new variety shall be registered if it conforms to the criteria of novelty, distinctiveness, uniformity and stability. An extra variety shall be registered under this Act within a specified period if it conforms to such criteria of distinctiveness, uniformity and stability as shall be specified under the regulations.

APPLICATION FOR REGISTRATION An application for registration shall be made by-

(a) Any person claiming to be the breeder of the variety; or

(b) Any successor of the breeder of the variety; or

(c) Any person being the assignee of the breeder of the variety in respect of the right to

(d) Any farmer or group of farmers or community of farmers claiming to be the breeder of the variety; or

(e) Any person authorised in the prescribed manner by a person specified under (i) to (iv) to make application on his behalf; or

(f) Any university or publicly funded agricultural institution claiming to be the breeder of the variety;

The application may be made by any person either individually or jointly with any other person for registration of the variety.41

40 Sec. 1441 Sec.16

Every applicant shall assign a single and distinct denomination to a variety for seeking registration by the applicant. The authority shall make detailed regulations governing such assignment of denomination of plant varieties. Where the denomination assigned to the variety does not satisfy the requirements specified in the regulations, the Registrar may require the applicant to propose another denomination within such time, as may be specified by such regulations. A denomination assigned to a variety shall not be registered as a trade mark under the Trade Mark Act, 1999.42

EVERY APPLICATION FOR REGISTRATION SHALL

a. Be with respect to a variety;

b. State the denomination assigned to such variety by the applicant;

c. Be accompanied by an affidavit sworn by the applicant that such variety does not contain any gene or gene sequence involving terminator technology;

d. Be in such form as may be prescribed;

e. Contain a complete passport data of the parental lines from which the variety has been derived along with the geographical location in india from where the genetic material has been taken and all such information relating to the contribution, if any, of and farmer, village community, institution or organisation in breeding, evolving or developing the variety; f. Be accompanied by a statement containing a brief description of variety bringing out its characteristics of novelty, distinctiveness, uniformity and stability as required for registration;

g. Be accompanied by such fees as may be prescribed;

h. Contain a delegation that the genetic material or parental material acquired for breeding, evolving or developing the variety has been lawfully acquired; and

i. Be accompanied by such other particulars as may be prescribed

The form of application, the documents and fee which may accompany an application and the manner in which such application shall be made will be specified by the Central Government. Every application shall be filed in the office of the Registrar along with a proof of the right to make the application.43 Every applicant, along with the application for registration, makes available to the Registrar such quantity of seeds for the purpose of conducting various tests to establish its eligibility for registration. The applicant is required to deposit necessary fee for this purpose.44

42 Sec.1743 Sec.1844 Sec.19

The Registrar may, after making such inquiry as he thinks fit, accept the application of the breeder either absolutely or subject to such conditions or limitations as he may deem fit after examining the application. If the Registrar rejects an application he is required to give a reasonable opportunity to the applicant for presenting his case.45 When an application has been accepted, the Registrar shall cause the same to be advertised in such manner as may be prescribed by the Central Government by rules inviting objections from all persons interested in the matter. Any person may within three months from the date of advertisement of the application or within such further period, not exceeding thirty days in the aggregate, as the Registrar may, an application made to him along with the required fees, allows, gives notice of his opposition to the Registrar. As opposition could be made on the ground that the person opposing the application is entitled to the breeder's right as against the applicant for registration; or that the variety is not registered under this Act or that the grant of certificate of registration may not be the public interest or that the variety may have adverse effect on the environment. The Registrar shall, by serving a copy of the notice to the parties in prescribed manner, hear the parties and grant of permission by him for correction or amendment to the note of opposition or counter statement. The Registrar shall consider all the grounds of opposition for registration of a variety and give a reasonable decision.

FARMERS' RIGHTS

(1) NOTWITHSTANDING ANYTHING CONTAINED IN THIS ACT--

a. A farmer who has bred or developed a new variety shall be entitled for registration and other protection in like manner as a breeder of a variety under this Act;

b. The farmers' variety shall be entitled for registration if the application contains declarations as specified in clause (h) of sub-section (I) of Section 18;

c. A farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund. However, material so selected and preserved has been used as donors of genes in varieties registrable under this Act; d. A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act. However, the farmer shall not be entitled to sell branded seed of a variety protected under this Act. Here, "branded seed" means any seed put in a

45 Sec.20

package or any other container and labelled in a manner indicating that such seed is of a variety protected under this Act.

Where any propagating material of a variety registered under this Act has been sold to a farmer or a group of fanners or any organisation of farmers, the breeder of such variety shall disclose to the farmer or the group of farmers or the organisation of farmers, as the case may be, the expected performance under given conditions, and if such propagating materials fails to provide such performance under such given conditions, the farmers or the group of farmers or the organisation of farmers, as the case may be, may claim compensation in the prescribed manner before the Authority and the Authority shall after giving notice to the breeder of the variety and after providing him an opportunity to file opposition in the prescribed manner and after hearing the parties, it may dire;:t the breeder of the variety to pay such compensation as it deems fit, to the farmer or the group of farmers or the organisation of farmer, as the case may be.46

CERTAIN INFORMATION TO BE GIVEN IN APPLICATION FOR REGISTRATION:-- A breeder or other person making application for registration of any variety shall disclose in the application the information regarding the use of genetic material conserved by any tribal or rural families in the breeding or development of such variety. If the breeder or such other person fails to disclose any information, the Registrar may, after being satisfied that the breeder or such person has wilfully and knowingly concealed such information reject the application for registration.47

PROTECTION OF INNOCENT INFRINGEMENT:-- A right established under this Act shall not be deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right; and a relief which a Court may grant in any suit for infringement referred to in Section 65 shall not be granted by such court, nor any cognizance of any offence under this Act shall be taken for such infringement by any court against a fam1cr who proves, before such court, that at the time of the infringement he was not aware of the existence of the right so infringed.48

AUTHORISATION OF FARMERS' VARIETY:-- Notwithstanding anything contained in sub-section (6) of Section 23 and Section 28, where an essentially derived variety is derived from a farmers' variety, the authorisation undersub-section (2) of Section 28 shall not be given by the breeder of such farmers' variety except with the consent of the fam1ers or group of farmers or community of farmers who have made contribution in the preservation or development of such variety.49

COMPULSORY LICENCE:--

46 Sec 3947 Sec.4048 Sec.4249 Sec.43

After the expiry of three years from the date of issue of a certificate of registration of a variety, any person interested may make an application to the authority alleging that the reasonable requirements of the public for seeds have not been satisfied or not available at the reasonable price and pray for the grant of a compulsory license to undertake production, distribution and sale of the seeds or other propagating material of that variety. The Authority after giving an opportunity to the breeder of such variety, may order such breeder to grant a licence to the applicant upon such terms and conditions as may be deemed fit.50

The Authority shall take into account the nature of variety, the capacity, ability and technical competence of the applicant to produce and market the variety to public when requirement of the public when requirement of public for seeds of a variety have not been satisfied. The Authority may adjourn the hearing of the application for grant of compulsory licence on certain grounds.51

PLANT VARIETIES PROTECTION APPELLATE TRIBUNAL

TRIBUNAL:-

The Central Government may, by notification in the Official Gazette, establish a Tribunal to be known as the 'Plant Varieties Protection Appellate Tribunal' to exercise the jurisdiction, powers and authorities conferred on it by or under this Act.52

COMPOSITION OF TRIBUNAL:-

The Tribunal shall consist of a Chairman and such number of Judicial Members and Technical Members as the Central Government may deem fit to appoint. A Judicial Member shall be a person who has for at least ten years held a judicial office in the territory of India or who has been a member of the Indian Legal Service and has held a post in Grade II of that service or any equivalent or higher post for at least three years or who has been an advocate for at least twelve years. A Technical Member shall be a person who is an eminent agricultural scientist in the field of plant breeding and genetics and possesses an experience of at least twenty years to deal with plant variety or seed development activity, or who has held the post in the Central Government or a State Government dealing with plant variety or seed development equivalent to the Joint Secretary to the Government of India for at least three years and possesses special knowledge in the field of plant breeding and genetics. The Central Government shall appoint a Judicial Member of the Tribunal to the Chairman thereof. The Central Government may appoint one of the Members of the Tribunal to be the Senior Member thereof. The Senior Member or a Member shall exercise such of the powers and perform such of the functions of the Chairman as may be delegated to him by the Chairman by a general or special order in writing. Sec. 55

50 Sec.4751 Sec.4952 Sec.54

APPEALS TO THE TRIBUNAL :- An appeal shall be preferred to the Tribunal within the prescribed period from an

a. order or decision of the authority or registrar, relating to registration of a variety; or

b. order or decision of the registrar relating to registration as an agent or a licensee of a variety; or

c. order or decision of the authority relating to claim for benefit sharing; or

d. order or decision of the authority regarding revocation of compulsory licence or modification of compulsory licence; or

e. order or decision of the authority regarding payment of compensation, made under this act or rules made thereunder.

Every such appeal shall be preferred by the petition in writing and shall be in such form and shall contain such particulars as may be prescribed. The Tribunal in disposing of an appeal under this section shall have the power to make any order which the Authority or the Registrar could make under this Act.53

ORDERS OF TRIBUNAL:- The Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The Tribunal may, at any time within thirty days from the date of the order, with a view to rectifying the mistake apparent from the record, amend any order passed by it, and make such amendment if the mistake is brought to its notice by the appellant or the opposite party. In every appeal, the Tribunal may where it is possible, hear and decide such appeal within a period of one year from the date of filing of the appeal. The Tribunal shall send a copy of any order passed under this section to the Registrar. The orders of the Tribunal under this Act shall be executable as a decree of a Civil Court.54

PROCEDURE OF TRIBUNALThe powers and functions of the Tribunal may be exercised and discharged by Benches constituted by the Chairman of the Tribunal from among the Members thereof. A Bench shall consist of one Judicial Member and one Technical Member. If the Member of a Bench differs in opinion on any point, they shall state the point or points on which they differ, and the case shall be referred to the Chairman for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.

53 Sec.5654 Sec.57

The Tribunal shall have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or the discharge of its functions, including the places at which the Benches shall hold their sittings. The Tribunal shall, for the purpose of discharging its functions, have all the powers which are vested in the Registrar under Section II, and any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the Indian Penal Code, and the Tribunal shall be deemed to be Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure. 1973

Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or other matter) shall be made on or in, any proceeding relating to an appeal unless--

a. Copies of such appeal and of all documents in support of the plea for such interim order are furnished to the party against whom such appeal is made or proposed to be made; and

b. Opportunity is given to such party to be heard in the matter.55

OFFENCES, PENALTIES AND PROCEDURE:-

No person other than the breeder of a variety registered under this Act or a registered licensee or registered agent thereof shall use the denomination of that variety in the manner as may be prescribed. Anybody who uses the denomination of a registered variety without the assent of the breeder will be treated as falsely applying the denomination of a variety. The penalty for applying false denomination to a variety registered under the proposed legislation will be imprisonment for a term which shall not be less than three months but which may extend to two years or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees or with both. The penalty for selling variety with false denomination will be imprisonment for a term not less than six months and upto two years or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees or with both. The penalty for falsely representing a variety as registered will be an imprisonment for a term, which shall not be less than six months but which may extend to three years, or with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees or with ,both . The penalty for subsequent offences (having convicted earlier under this Act) will be punished with imprisonment for a term which shall not be less than one year but which may extend to three years or with fine which shall not be less than two lakh rupees but which may extend to twenty' lakh rupees or with both.56

Where the offence charged under this Act is in relation to a variety or its propagating material or essentially derived variety or its propagating material registered under this Act and the accused pleads that the registration of such variety or its propagating material or essentially derived variety or its propagating material, as the case may be, is invalid and the court is satisfied that such offence is Prima facie not tenable, it shall not proceed with the charge but shall adjourn the

55 Sec.5856 Sec.73

proceedings for three months from the date on which the plea of the accused is 'recorded to enable the accused to file an application before the Registrar under this Act for the rectification of the register on the ground that the registration is invalid and the court shall proceed with the case accordingly.57

If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Where a person accused proves that the offence was committed without his knowledge he will not be liable. However, where it is proved that an offence has been committed with the consent or connivance or is attributable to t1 c neglect of any director, manager, secretary or any other officer of the company, be shall be deemed to be guilty of the offence.58

EXECUTION OF DETERMINATION OR ORDER

Every determination of benefit sharing or order made by the National Biodiversity Authority of a State Biodiversity Board under this Act or the order made by the High Court in any appeal against any determination or order of the National Biodiversity authority of a State Biodiversity Board shall, on a certificate issued by any officer of tile National Biodiversity Authority or a State Biodiversity Board or the Registrar of the High Court, as the case may be, be deemed to be decree of the Civil Court and shall be executable in the same manner as a decree of that Court. The Central Government shall remove any difficulties which may arise in giving effect to the provisions of this act by order published in the Official Gazette. Such order shall not be inconsistent with the provisions of the proposed legislation. This power can be exercised onlywithin two years from the commencement of this Act. Every such order shall be required to be laid before Parliament.59

The Authority to make regulations consistent with the provisions of this Act and the rules made thereunder. Such regulations are required to be made with the previous approval of the Central Government and by notification in the Official Gazette. The Central Government shall make rules to carry out the provisions of the proposed legislation. The matters in respect of which such rules may be made include the term of office of the Chairperson, the matter of filling the posts of the Chairperson, the salary, and allowances payable to the Chairperson, the manner of arranging production and sale of seeds, the fee payable for various acts under this Act and the preparation of annual statement of accounts of the Authority. Every rule made and every scheme framed by the Central Government and every regulation made by the Authority shall be laid before parliament.

CONCLUSION

57 Sec.7658 Sec.7759 Sec.94

Farmers’ rights could have both positive and negative implications on public and private plant breeding programs. The right could be seen as having adverse effect on such programs because it dilutes their control of their proprietary varieties. The right could also enhance the performance of plant breeding programs with the sharing of landraces developed and owned by farmers as source of parent materials. Furthermore, the right to improved varieties by farmers as consumers of technology could serve as powerful incentive to breeding programs to continue to generate better varieties. The reality, however, is that these rights may have already been diluted with the developments in technology such as the hybrid, terminator, and other biotechnology-products. Although the concept of farmers’ rights originated as recognition of the farmers’ tremendous role in the conservation and development of plant genetic resources, the actual right given, the right to save, exchange, and related re-use seeds may have been rendered illusory by developments in hybrid technology. Criticized by both critics and supporters, farmers’ rights may bear fruition under the domestic legal system as local law looks at them not as one single right but a bundle of rights, recognized by both old and new statutes and international law. While the original farmers’ right to save, exchange, and re-use seeds may have been rendered meaningless by hybrid technology, the other parts of the bundle, the right to own discovered and developed varieties, the right to excellent and improved varieties, and the right to protect their landraces have been established and strengthened by these same laws. Farmers can now own rights to landraces which they discover and develop, including varieties essentially derived from them. Breeding institutions can make use of these landraces for breeding purposes, with benefits to farmers who hold rights over them. Farmers should now be more assured of better performance of new and improved varieties which are registered because as consumers, they have recourse against these registered owners of new plant varieties. As custodians of local landraces, farmers are in a better position to prevent bio-piracy and illegal bio-prospecting, thereby ensuring the availability of parental lines for breeding purposes and better biodiversity. Finally, though these rights are protected by law, the enforcement of the right may be beyond the reach of the ordinary farmer. This is the ultimate test of the efficacy of these rights.

BIBLIOGRAPHY

BOOKS

Dr. S.R Myneni “Law of Intellectual Property” 4th ed.2007, Asia Law House, Hydrabad.

Manu Luv Shahalia “Perspective in Intellectual Property Law” 2003 ed., Universal Law Publishing Co. Pvt. Ltd, New Delhi.

Dr. B. L.Wadehra “Law Relating to Intellectual Property” 4th ed., Universal Law Publishing Co., New Delhi.

Justice P.S. Narayana’s “Intellectual Property Law in India” Reprint 2008, Gogia Law Agency, Hydrabad.

EXTERNAL LINKS

www.manupatra.com,

www.lexisnexis.com,

www.legalsplider.com,

www. indlaw.com,

www.findlaw.com

www.amnesty.org,