what rights are guranteed under protection of plants varities and farmers act

8/8/2019 What Rights Are Guranteed Under Protection of Plants Varities and Farmers Act

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What rights are guranteed under

protection of plants varities and farmers

act. And How they are protected underUPOV convention 1961? On what grounds

compoulsary licencing can be made ?

Submitted by:

Pranav Khanna

Roll No. 47


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Introduction :

The Indian Parliament has finally passed the Plant Variety Protection andFarmers Rights Bill. India has now, for the very first time, put in place a law to

grant Plant Breeders Rights on new varieties of seeds. The law also grants

Farmers Rights. These have been included in the legislation as a result of thedetermined and sustained campaign by NGOs, spearheaded by the GeneCampaign.

Gene Campaigns position right from the start was that if the status quo had to

be changed and India had to grant Plant BreedersRights, our legislation would

have to grant a strong Farmers Rights at the same time. We maintained thatplant back rights, i.e. the right to save seed from the harvest to sow the next crop, were no rights, only exemptions. Breeders under UPOV granted such

exemptions, referred to as Farmers Privilege. We insisted that Indian law had

to grant rights, not provide exemptions, to its farmers.

Our key demand was for the farmer to retain the right tosellseed to other

farmers, even if the variety was protected by a Breeders Right. This right to sellseed is crucial to maintaining the livelihood basis of the farming community andthe nations self-reliance in agriculture. The clause on the right to sell seed was

the major bone of contention to the very end of the legislative process.

The pivotal importance of the farmer having the right to sell seed has to be seenin the context of seed production in India, where the farming community is the

largest seed producer, providing about 87 percent of the countrys annualrequirement. Denying the farmer the right to sell seed would displace thefarming community as the countrys major seed provider. Their only

replacement would be the life science corporations since budget cuts haveseriously weakened the capacity and output of the other major player, the public

research institution. Any development that would give multinationalcorporations a significant share in seed production in India was unacceptable tocivil society groups.


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Farmers Rights:

In section 39 (iv) of the chapter on Farmers Rights, the right to sell

seed even protected seed has finally been providedThe 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 hewas entitled before the coming into force of this Act.However, the farmer is not entitled to sell brandedseed of a

variety protected under this Act

Other Kinds of Farmers Rights:

The Act acknowledges the role of rural communities as contributorsof landraces and farmer varieties in the breeding of new plant

varieties. Breeders wanting to use farmers varieties for creatingEssentially Derived Varieties ( EDVs) can not do so without theexpress permission of the farmers. Anyone can register a

communitys claim and have it duly recorded at a notified center. Ifthe claim is found to be genuine, a share of profits made from thenew variety has to go into a National Gene Fund.

1) Exemption from fees:Further protecting farmers from the new set of provisions being put in

place, the new Act stipulates that farmers wishing to examine documentsand papers or receive copies ofrules and decisions made by the various

authorities will be exempt from paying any fees.

2)Disclosure:Explicit and detailed disclosure in the passport data about the parentageof the new variety is required. If concealment is detected in the passport

data, the Breeders certificate stands to be cancelled.

3)No terminator technology:Breeders must to submit an affidavit that their variety does not contain a

Gene Use Restricting Technology (GURT) or terminator technology.


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4)Protection against innocent infringement:Rightly assuming that farmers may unknowingly infringe Breeders

Rights since they will not be used to the new situation, the law providesfor protection from prosecution for innocent infringement.

5)Benefit-sharing:The provision for payment for use of farmer varieties is welcome but

modalities of implementing benefit-sharing must be made simpler andless bureaucratic. The revenues earned should only be available for use

by farming communities, in the way that they decide.

6)Protection againstbad seed:The clause protecting the farmer from spurious seed leaves too much tothe discretion of the Authority. There should be specific guidelines, such

as that compensation should amount to at least twice the projected harvest

value of the crop. In addition, a jail term should be provided for repeatedoffence.

Rights of Breeders and Researchers:

Breeders Rights are fully protected by the legislation. On registration, thebreeder has complete rights of commercialisation for the registered variety.These include the right to produce, sell, market, distribute, import or export theregistered variety.

Penalties for infringingBreeders Rights:Violation of a Breeders Right can apply to the variety itself, as well as to itspackaging. Penalties can range from Rs. 50,000 to ten lakh as well as a jail term

ranging from three months to two years, depending on the severity of thedamage caused. For repeated offence, fines can go upto Rs. 20 lakh and the jail

term to three years. The new law has provisions for Researchers Rights whichallow scientists and breeders free access to registered varieties for research. The

registered variety can also be used for the purpose of creating new varieties.

This flexibility is curtailed only when the registered variety needs to be usedrepeatedly as a parental line for commercial production of another variety.

Protection Under UPOV convention:

UPOV was established by the International Convention for the Protection of

New Varieties of Plants. The Convention was adopted in Paris in 1961 and


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revised in 1972, 1978 and 1991. The objective of the Convention is the

protection of new varieties of plants by an intellectual property right. Bycodifying intellectual property for plant breeders, UPOV aims to encourag e thedevelopment of new varieties of plants for the benefit of society.

For plant breeders' rights to be granted, the new variety must meet four criteriaunder the rules established by UPOV:

1. The new plant must be novel, which means that it must not have beenpreviously marketed in the country where rights are applied for.

2. The new plant must be distinct from other available varieties.3. The plants must display homogeneity.4. The trait or traits unique to the new variety must be stable so that the

plant remains true to type after repeated cycles of propagation.

System of protection:

The Convention defines both how the organization must be governed and run,

and the basic concepts of plant variety protection that must be included in thedomestic laws of the members of the Union. These concepts include :

y The criteria for new varieties to be protected: novelty, distinctness,uniformity, and stability.

y The process for application for a grant .y Intellectual property rights conferred to an approved breeder .y Exceptions to the rights conferred to the breeder .y Required duration of breeder's right .y Events in which a breeder's rights must be declared null and void .

In order to be granted breeder's rights, the variety in question must be shown to

be new. This means that the plant variety cannot have previously be en availablefor more than one year in the applicants country, or for more than four years in

any other country or territory. The variety must also be distinct, that is, easilydistinguishable through certain characteristics from any other known variety

(protected or otherwise). The other two criteria, uniformity and stability, meanthat individual plants of the new variety must show no more variation in the

relevant characteristics than one would naturally expect to see, and that futuregenerations of the variety through various propagation means must continue to

show the relevant distinguishing characteristics.


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A breeder can apply for rights for a new variety in any union member country,

and can file in as many countries as desired without waiting for a r esult fromprevious applications. Protection only applies in the country in which it wasgranted, so there are no reciprocal protections unless otherwise agreed by the

countries in question. There is a right of priority, and the application date of the

first application filed in any country is the date used in determining priority.

The rights conferred to the breeder are similar to those of copyright in theUnited States, in that they protect both the breeder's financial interests in the

variety and his recognition for achievement and labor in the breeding process.The breeder must authorize any actions taken in propagating the new variety,including selling and marketing, importing and exporting, keeping stock of, and

reproducing. This means that the breeder can, for example, require a licensingfee for any company interested in reproducing his variety for sale. The breeder

also has the right to name the new variety, based on certain guidelines that

prevent the name from being deliberately misleading or t oo similar to anothervariety's name.

There are explicit exceptions to the rights of the breeder, known as the

"breeder's exemption clause", that make it unnecessary to receive authorizationfor the use of a protected variety where those rights interfere i n the use of the

variety for a private individual's non-monetary benefit, or the use of the varietyfor further research. For example, the breeder's rights do not cover the use of thevariety for subsistence farming, though they do cover the use of the var iety for

cash crop farming. Additionally, the breeder's authorization is not required touse a protected variety for experimental purposes, or for breeding other

varieties, as long as the new varieties are not "essentially derivative" of the

protected variety.

The Convention specifies that the breeder's right must be granted for at least 20years from grant date, except in the case of varieties of trees or vines, in which

case the duration must be at least 25 years.

Finally, there are provisions for how to negate granted breeders' rights if the

rights are determined to be unfounded. That is, if it is discovered after theapplication has been granted that the variety is not actually novel or distinct, or

if it is discovered to not be uniform or stable, the breeder's rights are nullified.In addition, if it is discovered that the person who applied for protection of thevariety is not the actual breeder, the rights are nullified unless they can be

transferred to the proper person. If it is discovered after a period of protectionthat the variety is no longer uniform and stable, the breeder's rights are

canceled.


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Plant breeders' rights (PBR):

It also known as plant variety rights (PVR), are rights granted to the breeder of a

new variety of plant that give them exclusive control over the propagatingmaterial (including seed, cuttings, divisions, tissue culture) and harvested

material (cut flowers, fruit, foliage) of a new variety for a number of years.

With these rights, the breeder can choose to become the exclusive marketer ofthe variety, or to license the variety to others. In order to qualify for these

exclusive rights by plant breeders' rights, a variety must be new, distinct,

uniform and stable. A variety is new if it has not been commercialized for morethan one year in the country of protection. A variety is distinct if it differs from

all other known varieties by one or more important botanical characteris tics,

such as height, maturity, color, etc. A variety is uniform if the plantcharacteristics are consistent from plant to plant within the variety. A variety is

stable if the plant characteristics are genetically fixed and therefore remain thesame from generation to generation, or after a cycle of reproduction in the case

of hybrid varieties. The breeder must also give the variety an acceptable"denomination," which becomes its generic name and must be used by anyone

who markets the variety.

Typically, plant variety rights are granted by national offices, after examination.

Seed is submitted to the plant variety office, who grow it for one or more

seasons, to check that it is distinct, stable, and uniform. If these tests are passed,exclusive rights are granted for a period of 20 years (or 25 years, for trees andvines). Annual renewal fees are required to maintain the rights.

Breeders can bring suit to enforce their rights and can recover damages forinfringement. Plant breeders' rights contain exemptions from infringement that

are not recognized under patent law. Commonly, there is an exemption for

farm-saved seed. Farmers may store the production in their own bins for theirown use as seed, but this does not necessarily extend to brown-bag sales of

seed. Further sales for propagation purposes are not allowed without the written

approval of the breeder. There is also a breeders' exemption (researchexemption in the 1991 Act) that allows breeders to use protected varieties as

sources of initial variation to create new varieties of plants (1978 Act), or forother experimental purposes (1991 Act). There is also a provision for

compulsory licensing to assure public access to protected varieties if thenational interest requires it and the breeder is unable to meet the demand.


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IndiaShould Not Join UPOV:

Gene Campaign opposes Indias joining UPOV because UPOV does notaddress our needs and because its working is totally alien to the conditions ofagriculture prevailing in the countries of the South. We believe that developingcountries must create their own platform, which will grant Farmers Rightsdistinct from Breeders Rights, and be geared to work towards food and

nutritional security in our countries. There is no concept of Farmers Rights inthe UPOV system, rights are granted only to the breeder, which in todays

context means the seed companies. UPOV laws are formulated by industrial,not agricultural economies. In these countries the farming community is by and

large rich and constitutes from two to five percent of the population. These

countries do not have the large numbers of small and marginal farmers that wedo.

CoFaB,a Developing Country Alternative to UPOV:

Gene Campaign, along with Centre for Environment and AgricultureDevelopment, has drafted an alternative treaty to UPOV to provide a forum fordeveloping countries to implement their Farmers and Breeders Rights. This

treaty is called the Convention of Farmers and Breeders, CoFaB for short.CoFaB reflects developing country strengths and vulnerabilities and seeks to

secure their interests in agricultural policy-making. The UNDP HumanDevelopment Report 1999 commended CoFaB as a strong and coordinated

international proposal which offers developing countries an alternative tofollowing European legislation by focusing legislation on need to protectfarmers rights to save and reuse seed and to fulfil the food and nutritional

security goals of their people. Gene Campaigns purpose in drafting analternative to UPOV was to provide the basis for a discussion on what kind of

non-UPOV platform developing countries should have. Once consensus

emerges after comprehensive analysis and critique among developing countries,it will not take long to come up with a minimum operational framework with

which to start.

Compulsorylicenses:

The grant of a compulsory license is provided for if it is shown that thereasonable requirements of the public for seeds have not been satisfied or that

the seed of the variety is not available to the public at a reasonable price. Thebreeder may file an opposition but should the charge be valid, the breeder can


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be ordered to grant a compulsory license under certain conditions, including the

payment of a reasonable license fee. However, no compulsory license will beawarded if the Breeder can demonstrate reasonable grounds for his inability toproduce the seed.

Conclusion:

So we can conclude that the protection of plants varities and farmers act

provides many rights to the farmers and also to the breaders of the new seed and

the varities of the plants. This acts ensures the safety of the farmes they

provides them some special rights like to sell their seeds etc so thats their

interest is saved. The UPOV convention also provides some unique rights to the

breeders for the protection of new varities of the plants and the seeds.Under this

act there is also the provision of compoulsary licensing for the public interest.

what rights are guranteed under protection of plants varities and farmers act

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