IPR-agri by rishabhmishra



                    INTELLECTUAL PROPERTY RIGHTS(Agriculture)

The agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), one of the
treaties administered by the World Trade Organization (WTO), has been a subject of
controversy in India. Membership of the WTO and the ratification of TRIPS have significant
implications for developing countries. Public awareness about the implications of TRIPS with
regard to bio-piracy heightened following the patenting in some countries of neem and its
various properties and the application for a patent on some medicinal properties of haldi
(turmeric) in the United States, which was turned down after a review.

The WTO ministerial conference slated for November 1999 in Seattle, whose member-states
are to decide on the launch of a new round of trade negotiations, will raise the stakes once
again. More significant is the fact that India has to prepare for the implementation of TRIPS
and initiate a broad debate on the issue since any legislation to protect a plant variety should,
theoretically, be adopted before the year-end. The issue of protection of plant varieties has
received a fair degree of attention. In addition, a fresh look at the provisions concerning plant
varieties and the responses being proposed in India is in order.

TRIPS provides for the availability of patents for inventions, whether they are products or
processes, in all fields of technology. Member-states can restrict patentability to some cases.
For instance, they can exclude plants and animals from patentability. But TRIPS mandates the
introduction of a form of legal protection on plant varieties. Member-countries have the liberty
to "provide for the protection of plant varieties either by patents or by an effective sui generis
system or by any combination thereof" (Article 27.3.b). This constitutes one of the few areas
where countries are given some margin of appreciation in devising a protection system.

There has traditionally been no legal protection for plant varieties in India or at the
international level. Seeds were, for instance, exchanged among farmers and countries on the
basis of the principle that the means of enhancement of food security should not fall into the
domain of commercial interests. This free sharing of knowledge has in no way hampered the
development of new plant varieties or agricultural research. Indeed, the hybrid varieties of
the Green Revolution, celebrated as the ultimate solution to the challenges of improving food
availability per capita, were developed entirely on the basis of free access to and free sharing
of knowledge pertaining to biological resources.

In Europe and in North America, the principle of free access to information has been
progressively restricted following pressure from the private sector for the establishment of a
system of private property rights. This has been concomitant with the decline of agriculture as
a subsistence activity and the overall commercialisation of the primary sector. In India, socio-
economic conditions differ dramatically from those obtaining in the countries that are part of
the Organisation for Economic Cooperation and Development (OECD). The primary sector still
constitutes more than a quarter of the gross domestic product (GDP) and employs about two-
thirds of the working population. Further, agriculture is still mainly a subsistence activity. The
current Patents Act reflects both the traditional practices of free exchange and the socio-
economic conditions of the country. It provides, for instance, that methods of agriculture or
horticulture cannot be patented. Further, in the case of substances intended for use as food,
it restricts patentability to the process and provides for a shorter duration of the rights.

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The TRIPS agreement broadly reflects the current legal situation in the OECD countries. It
thus imposes a significant burden of adaptation on countries such as India. In a few cases, it
allows member-states the liberty to determine the form of protection (as in the case of plant
variety) they want to adopt. In fields such as pharmaceuticals, patent protection is
compulsory. If the new regime seems inappropriate to the local situation in India, the only
remedy is to lobby for a change in the agreement or for India's withdrawal from the WTO.

Here the focus is on the current proposals at the governmental and non-governmental levels
concerning the development of a sui generis system. All these proposals fall short of
constituting appropriate alternatives for India. Efforts should be directed at the development
of such an alternative. While fighting patents and working towards a reform of the WTO
agreements can be pursued in the long term, it is of utmost importance to use the scope
provided in the treaties.

THE government has for the past several years been in the process of drafting a Plant Variety
Protection and Farmers' Rights Act, which is to constitute a direct response to the TRIPS
agreement. The draft mainly focuses on the definition of formal plant breeders' rights and
follows closely on the model of the International Convention for the Protection of New
Varieties of Plants (UPOV Convention). The UPOV Convention specifically seeks to develop
plant breeders' rights. Patents and plant breeders' rights are conceptually similar. Both seek
to give the private sector incentives to enter the seed business. Plant breeders' rights are,
however, less firm than patents and provide some exceptions to breeders' rights in favour of

The draft Act provides, as in the case of the UPOV Convention, that protection will be
available only for varieties that conform to the criteria of novelty, distinctness, uniformity and
stability. Further, the draft explicitly states that, in order to be protected, the 'new variety'
must be clearly distinct by at least one essential characteristic from wild relatives and
traditional cultivars. In this sense, it is geared to providing incentives to the private sector to
engage in the seed business.

Although the title suggests that the Act also provides for farmers' rights, it focuses on plant
breeders' rights, which are inherently incapable of recognising farmers as breeders. Farmers
are seen as cultivators and managers of agro-biodiversity, whose varieties cannot be
protected under the Act. At the most, farmers are granted the rights to save, use, exchange,
share and sell the produce of a protected variety. These do not constitute novel rights but
rather drastically restrict existing rights.

NON-GOVERNMENTAL activists have been active in the field of plant variety protection. Their
efforts have focussed on both practical activities and policy development. Significant attention
has been devoted to the setting up of biodiversity registers for benefit-sharing and in order to
develop alternative legislative frameworks.

Biodiversity registers

The idea is to document existing plant and animal species and knowledge relating to these
resources. This can then be used to show that a given patent application uses information
which is already part of the common body of knowledge in use in a given community or in

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the country in general. This is enough to defeat a patent application since the patents system
is premised on rewarding 'inventions'.

Biodiversity registers are of great importance in fighting unwarranted patents. However, they
do not contribute to the development of an alternative to the patents system as they are
conceived exclusively as a defensive strategy against patents. They serve to show that the
knowledge already exists and thus cannot be patented, but do not provide any other form of
protection for this existing knowledge.


Benefit-sharing constitutes a useful strategy to mitigate some of the undesirable impacts of
patents on biological resources for current holders of biodiversity-related knowledge. Without
benefit-sharing, such knowledge may be 'taken' from its current holders without any form of
acknowledgement or compensation. However, benefit-sharing does not contribute to the
definition of an alternative regime to patents. Indeed, while it seeks to limit the impact of the
introduction of patents in the field of biological resources, it does not seek to provide any
rights to current holders of knowledge. In this sense, it assumes that local people do not have
intellectual property rights (IPRs) over their knowledge and that a monetary reward
constitutes a sufficient compensation. Further, benefit-sharing is not necessarily a practical or
desirable solution since there are many instances where the source of the materials used is
very difficult to trace to a particular community, region or even country. This is because most
people around the world depend to a large extent on plants which are originally from other
areas for some of their staple food. Since centuries may have passed since the first transfers
took place, it is hardly feasible to trace the variety to its original source even if this was
deemed to be desirable.

Towards an alternative system

Exclusion of patents in agriculture has traditionally been premised on elements of public
morality, the need to foster innovations at all levels from the smallest farmer to multinational
companies and the need to restrict the commercialization of sectors dealing with the most
basic needs of humankind, such as food and healthcare. While these characteristics are valid
even today, TRIPS now requires the introduction of a form of plant variety protection.

The introduction of patents in agriculture should be avoided in the current socio-economic
context characterized by the existence of a variety of actors involved in agricultural
management and agricultural innovations. Patents are by definition incapable of apportioning
benefits in a manner that fits this reality since the grant of a patent implies that the patentee
derives all the benefits associated with the invention. Patents also have the undesirable side-
effect of implying that all knowledge which is not patented is in the public domain and thus
freely available. Any knowledge which cannot be protected by patents because it is not 'state-
of-the-art' is thus deprived of legal protection. This is very unfortunate because it gives the
impression that the work of the managers of biodiversity is devoid of value while the work
carried out in laboratories is the only one which adds value to the final product. Finally, patent
rights are not known to foster the conservation or sustainable use of biological diversity.

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Current proposals clearly do not constitute a full alternative to patents. The plant variety
legislation is closely modeled on the UPOV Convention and recognises plant breeders' rights
which are, like patents, monopoly rights meant to foster the involvement of the private sector
in the seed industry. Some of the other proposals are extremely interesting in the context of
a patent regime but do not contribute to the development of an alternative. Clearly, India
should develop an alternative system, not one modeled after UPOV. The UPOV system was
developed by European countries at a time when subsistence agriculture had already mostly
disappeared and when an overwhelming percentage of the population did not work in the
primary sector anymore. These conditions do not obtain in India.

An alternative regime should have some of these characteristics: First, it should provide for
the establishment of property rights for all actors involved in agricultural management and
seed improvement. To this end, it should aim at protecting not only the interests of corporate
biotechnology firms and seed companies, as is the case with patents and plant breeders'
rights but also the interests of farmers, who are among the major seed producers in India.
One solution would be to provide a two-pronged recognition of commercial breeders' rights
and farmers' rights, a proposal made at the international level a decade ago but which is still
being discussed. Concerning farmers, the aim should be to protect farmers' current
techniques or varieties and to al low them to derive benefits from any improvements they will
carry out.

Secondly, the system should provide for non-monopoly rights. This directly derives from the
fact that various actors contribute to agricultural innovation and that each of them should be
entitled to property rights over their inventions, whether they are state-of-the-art or not. This
would, for instance, imply that while commercial breeders can have the right to market their
varieties, farmer-breeders can at the same time have the right to use their own varieties,
exchange them and sell them. In this framework, different property rights systems exist side
by side. A non-monopoly system implies that no single entity derives all the benefits
associated with a given invention and that various inventors can have concurrent rights.

Thirdly, an alternative regime should recognize the fact that not all inventors seek to
commercialize their knowledge. Indeed, one of the major shortcomings of the patent system
is the assumption that the only incentive for innovation is the possibility of commercializing an
invention and receiving monetary returns from it. Some farmers may try to take advantage of
the possibility of commercializing their knowledge, while others may not. This fact should
therefore be recognized in the proposed framework .

Fourthly, the TRIPS agreement requires that the alternative system should be 'effective'. This
should not be understood as implying only the existence of legal enforcement procedures but
should be understood in a broader context. While the WTO has assume d disproportionate
importance in international relations partly because of the existence of a stringent dispute
settlement system, plant variety protection is not regulated exclusively in TRIPS. Therefore, it
is imperative that an alternative system be construed in the broader framework of India's
international obligations which include, for instance, the Convention on Biodiversity (CBD). Of
particular relevance is Article 1 of the CBD which states that the aims of the Convention are
the conservation an d sustainable use of biodiversity. The alternative system should thus
contribute to the sustainable management of plant varieties.

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Overall, the TRIPS agreement gives member-states the liberty to adopt plant variety
protection regimes which are not based on patents. Given the current socio-economic
conditions in India, this possibility should be fully utilized to strengthen the posit ion of all
innovators in the field of agricultural management. The current draft legislation, which is
directly based on the UPOV Convention, should be abandoned because it provides for
monopoly rights which will only benefit the private sector industry. A novel version should be
drafted with a view to granting meaningful property rights to all relevant actors and foster the
sustainable management of biological resources.

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