What rights are guranteed under

protection of plants varities and

farmers act. And How they are
protected under UPOV convention
1961? On what grounds
compoulsary licencing can be
made ?

Submitted by:
Pranav Khanna
Roll No. 47

Introduction :

The Indian Parliament has finally passed the Plant Variety Protection and
Farmers 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 the
determined and sustained campaign by NGOs, spearheaded by the Gene
Campaign.

Gene Campaigns position right from the start was that if the status quo had to
be changed and India had to grant Plant Breeders Rights, our legislation would
have to grant a strong Farmers Rights at the same time. We maintained that
plant 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 to sell seed to other
farmers, even if the variety was protected by a Breeders Right. This right to sell
seed is crucial to maintaining the livelihood basis of the farming community and
the 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 seen
in the context of seed production in India, where the farming community is the
largest seed producer, providing about 87 percent of the countrys annual
requirement. Denying the farmer the right to sell seed would displace the
farming community as the countrys major seed provider. Their only
replacement would be the life science corporations since budget cuts have
seriously weakened the capacity and output of the other major player, the public
research institution. Any development that would give multinational
corporations a significant share in seed production in India was unacceptable to
civil society groups.

Farmers Rights:

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

seed even protected seed has finally been provided
The 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 is not entitled to sell branded seed of a
variety protected under this Act

Other Kinds of Farmers Rights:

The Act acknowledges the role of rural communities as contributors

of landraces and farmer varieties in the breeding of new plant
varieties. Breeders wanting to use farmers varieties for creating
Essentially Derived Varieties ( EDVs) can not do so without the
express permission of the farmers. Anyone can register a
communitys claim and have it duly recorded at a notified center. If
the claim is found to be genuine, a share of profits made from the
new 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 documents
and papers or receive copies of rules 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 parentage
of 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.

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 provides
for 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 and
less bureaucratic. The revenues earned should only be available for use
by farming communities, in the way that they decide.

6) Protection against bad seed:

The clause protecting the farmer from spurious seed leaves too much to
the 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 repeated
offence.

Rights of Breeders and Researchers:

Breeders Rights are fully protected by the legislation. On registration, the

breeder has complete rights of commercialisation for the registered variety.
These include the right to produce, sell, market, distribute, import or export the
registered variety.

Penalties for infringing Breeders Rights:

Violation of a Breeders Right can apply to the variety itself, as well as to its
packaging. 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 the
damage 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 which
allow 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 used
repeatedly 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
revised in 1972, 1978 and 1991. The objective of the Convention is the
protection of new varieties of plants by an intellectual property right. By
codifying intellectual property for plant breeders, UPOV aims to encourage the
development of new varieties of plants for the benefit of society.

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

1. The new plant must be novel, which means that it must not have been
previously 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 the
domestic laws of the members of the Union. These concepts include :

The criteria for new varieties to be protected: novelty, distinctness,

uniformity, and stability.

The process for application for a grant .

Intellectual property rights conferred to an approved breeder.

Exceptions to the rights conferred to the breeder .

Required duration of breeder's right .

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 been available
for 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, easily
distinguishable through certain characteristics from any other known variety
(protected or otherwise). The other two criteria, uniformity and stability, mean
that individual plants of the new variety must show no more variation in the
relevant characteristics than one would naturally expect to see, and that future
generations of the variety through various propagation means must continue to
show the relevant distinguishing characteristics.

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 result from
previous applications. Protection only applies in the country in which it was
granted, 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 the
United 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 licensing
fee 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 too similar to another
variety'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 authorization
for the use of a protected variety where those rights interfere in the use of the
variety for a private individual's non-monetary benefit, or the use of the variety
for further research. For example, the breeder's rights do not cover the use of the
variety for subsistence farming, though they do cover the use of the variety for
cash crop farming. Additionally, the breeder's authorization is not required to
use 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 20
years 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 the
application 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 the
variety 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 protection
that the variety is no longer uniform and stable, the breeder's rights are
canceled.

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 propagating
material (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 of
the 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 more
than 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 characteristics,
such as height, maturity, color, etc. A variety is uniform if the plant
characteristics are consistent from plant to plant within the variety. A variety is
stable if the plant characteristics are genetically fixed and therefore remain the
same 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 and
vines). Annual renewal fees are required to maintain the rights.
Breeders can bring suit to enforce their rights and can recover damages for
infringement. 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 their own
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 (research exemption
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 for other
experimental purposes (1991 Act). There is also a provision for compulsory
licensing to assure public access to protected varieties if the national interest
requires it and the breeder is unable to meet the demand.

India Should Not Join UPOV:

Gene Campaign opposes Indias joining UPOV because UPOV does not address
our needs and because its working is totally alien to the conditions of
agriculture prevailing in the countries of the South. We believe that developing
countries must create their own platform, which will grant Farmers Rights
distinct from Breeders Rights, and be geared to work towards food and
nutritional security in our countries. There is no concept of Farmers Rights in
the 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 we
do.

CoFaB, a Developing Country Alternative to

UPOV:

Gene Campaign, along with Centre for Environment and Agriculture

Development, has drafted an alternative treaty to UPOV to provide a forum for
developing 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 Human
Development Report 1999 commended CoFaB as a strong and coordinated
international proposal which offers developing countries an alternative to
following European legislation by focusing legislation on need to protect
farmers rights to save and reuse seed and to fulfil the food and nutritional
security goals of their people. Gene Campaigns purpose in drafting an
alternative 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.

Compulsory licenses:

The grant of a compulsory license is provided for if it is shown that the

reasonable 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. The
breeder may file an opposition but should the charge be valid, the breeder can
be ordered to grant a compulsory license under certain conditions, including the
payment of a reasonable license fee. However, no compulsory license will be
awarded if the Breeder can demonstrate reasonable grounds for his inability to
produce 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.