http://www.south-asian-initiative.org/epw/current/comm4.htm
Economic & Political Weekly Commentary Mumbai, March 6-12 and 13-19, 1999
PROTECTION OF NEW PLANT VARIETIES A DEVELOPING COUNTRY ALTERNATIVE
Suman Sahai
AFTER the conclusion of the Uruguay Round, India as well as other developing countries have accepted the sui generis option for the protection of new plant varieties. India has already drafted a Plant Variety Protection Act. In order to implement the law concerned with the protection of new varieties in each other?s countries, nations need to work through an international platform. The Union for the Protection of New Plant Varieties (UPOV) is such a platform through which industrialised nations regulate the implementation of plant breeders? rights. UPOV came into being in 1961 with its headquarters in Geneva and it is the only platform of its kind today. There are over 30 members in UPOV, [mostly] developed countries.
Gene Campaign has opposed India joining UPOV because it does not address our needs. India must rise to the challenge of crafting an alternative treaty to UPOV that will meet the needs of developing countries. We need to provide a forum that will grant Farmers? Rights as well as Breeders? Rights and be geared to work towards food and nutritional security. However, the agriculture ministry is of the view that India should become a member of UPOV, a forum whose working is totally alien to the conditions of agriculture prevailing here. There is no concept of Farmers? Rights in the UPOV system; rights are granted only to the breeder. The UPOV system does not need to protect the rich farming community of Europe and America in the way that our seed laws will have to protect our farmers. It is clear that we have goals which cannot be fulfilled by the UPOV system. The UPOV system embodies the philosophy of the industrialised nations where it was developed and where the goal is to protect the interests of powerful seed companies who are the breeders. In India the position is very different. We do not have big seed companies in essential seed sectors and our major seed producers are farmers and farmers? co-operatives. Logically, our law will have to concentrate on protecting the interests of the farmer in his role as producer as well as consumer of seed.
Once we are in the UPOV system, we shall be forced to go in the direction that UPOV goes. It is a system headed towards seed patents. Starting with its first amendment in 1978 when limited restrictions were placed on protected seed, the 1991 amendment which is now ratified, brought in very strong protection for the plant breeder. In this version, breeders are not exempt from royalty payments for breeding work and the exemption for farmers to save seed has become provisional. The UPOV now also permits dual protection of varieties, that means in the UPOV system, the same variety can be protected by Plant Breeders? Right (PBR) and patents. It would seem obvious that UPOV is ultimately headed towards patent protection for plant varieties. It would be wise for India to stay out of a system which has plant patents as its goal since that is neither our goal nor our interest.
The UPOV laws are formulated by countries which are industrial, not agricultural economies. In these countries the farming community is by and large rich and constitutes from 1 to 5 per cent of the population; their agriculture profile is completely different from ours. These countries do not have large numbers of small and marginal farmers, yet subsidy to agriculture is of a very high order. Because they produce a massive food surplus, farmers in industrialised countries get paid for leaving their fields fallow. In Europe agriculture is a purely commercial activity. For the majority of Indian farmers however, it is a livelihood. These farmers are the very people who have nurtured and conserved genetic resources, the same genetic resources that breeders want to corner under Breeders? Rights. We must protect the rights of our farmers and these rights must be stated unambiguously in our sui generis legislation.
Almost all agricultural research and plant breeding in India is financed with tax-payers? money. It is conducted in public institutions like agricultural universities and institutions of the Indian Council of Agricultural Research (ICAR). This research belongs to the public. The laws of UPOV on the other hand are formulated by societies where seed research is conducted more in the private domain than in public institutions; where private capital finances plant breeding. Because they invest in expensive breeding methods and need to secure returns on their investments, seed companies in Europe and North America seek market control through strong IPRs. These conditions do not apply in India.
Another feature that makes the UPOV system unsuitable for us is its sheer cost. At a seminar organised jointly by the Indian Council of Agricultural Research (ICAR) and the UPOV in Delhi last year, the figures that were presented for obtaining an UPOV authorised Breeders? Right certificate could be several thousands, even lakhs. Such rates will effectively preclude the participation of all but the largest seed companies. There certainly will be no space in such a system for small companies, farmers? co-operatives or farmer/breeders.
In developing countries, farmers play a significant role as breeders of new varities. They often release very successful varieties by crossing and selection from their fields. These varieties are released for use as such. In addition, in almost all cases, these varieties are taken up by agriculture universities as breeding material for producing other varieties. Such farmer/breeders would not be able to participate in an expensive system like the UPOV. Their material along with their labour and innovation would be misappropriated by those with the money to translate such valuable germplasm into money-spinning varieties registered in the UPOV. Poor farmers unable to pay the costs of getting an UPOV certificate, would tend to sell their varieties for small sums to larger seed companies. This will be the ultimate irony, creating an institution that will snatch away from the farmer his material and his opportunities. Gene Campaign and the Centre for Environment and Development present here 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 has an agenda that is appropriate for developing countries. It reflects their strengths and their vulnerabilities. It seeks to secure their interests in agriculture and fulfil the food and nutritional security goals of their people. This treay between developing countries seeks to fulfil the following goals:
 Provide reliable, good quality seeds to the small and large farmer.  Maintain genetic diversity in the field.  Provide for breeders of new varieties to have protection for their varieties in the market, without prejudice to public interest.  Acknowledge the enormous contribution of farmers to the identification, maintenance and refinement of germplasm.  Acknowledge the role of farmers as creators of land races and traditional varieties which form the foundation of agriculture and modern plant breeding.  Emphasise that the countries of the tropics are germplasm owning countries and the primary source of agricultural varieties.  Develop a system wherein farmers and breeders have recognition and rights accruing from their respective contribution to the creation of new varieties.
The salient features of CoFaB are as follows:
(1) Farmers? Rights: Each contracting state will recognise the rights of farmers by arranging for the collection of a farmers? rights fee from the breeders of new varieties. The farmers? rights fee will be levied for the privilege of using land races or traditional varieties either directly or through the use of other varieties that have used land races and traditional varieties, in their breeding programme. Farmers? rights will be granted to farming communities and where applicable, to individual farmers. Revenue collected from farmers? rights fees will flow into a National Gene Fund (NGF) the use of which will be decided by a multi-stakeholder body set up for the purpose. The rights granted to the farming community under farmers? rights entitles them to charge a fee from breeders every time a land race or traditional variety is used for the purpose of breeding or improving a new variety. Rights granted to the farmer and farming community under farmers? rights are granted for an unlimited period.
(2) Breeders? Rights: Each member state will recognise the right of the breeder of a new variety by the grant of a special title called the plant breeders? right. The plant breeders? right granted to the breeder of a new plant variety is that prior authorisation shall be required for the production, for purposes of commercial and branded marketing of the reproductive or vegetative propagating material, as such, of the new variety, and for the offering for sale or marketing of such material. Vegetative propagating material shall be deemed to include whole plants. The breeder?s right shall extend to ornamental plants or parts of these normally marketed for purposes other than propagation when they are used commercially as propagating material in the production of ornamental plants or cut flowers.
Authorisation by the breeder shall not be required either for the utilisation of the new variety as an initial source of variation for the purpose of creating other new varieties or for the marketing of such varieties. Such authorisation shall be required, however, when the repeated use of the new variety is necessary for the commercial production of another variety. At the time of application for a plant breeders? rights, the breeder of the new variety must declare the name and source of all varieties used in the breeding of the new variety. Where a land race or farmer variety has been used, this must be specially mentioned.
In order to promote a more sustainable kind of agriculture and without any prejudice to the quality and reliability of the new variety, CoFaB enjoins breeders of new varieties to try to base the new variety on a broader rather than a narrower genetic base, in order to maintain greater genetic variability in the field. Further, a variety for which rights are claimed must have been entered in field trials for at least two cropping seasons and evaluated by an independent institutional arrangement. The breeder at the time of getting rights will have to provide the geneology of the variety along with DNA finger printing and other molecular, morphological and physiological characteristics. The right conferred on the breeder of a new plant variety shall be granted for a limited period, depending on the variety.
In the event of a variety becoming susceptible to pest attack, the normal period of protection may be curtailed to prevent the spread of disease. In order to monitor this, periodic evaluations will be undertaken. The breeder or his successor shall forfeit his right when he is no longer in a position to provide the competent authority with reproductive or propagating material capable of producing the new variety with its morphological and physiological characteristics as defined when the right was granted. The breeder will also forfeit his right if the ?productivity potential? as claimed in the application is no longer valid.
To give primacy to the goals of food security, it has been provided in CoFaB that the right of the breeder will be forfeited if he is not able to meet the demand of farmers, leading to scarcity of planting material, increased market price and monopolies. If the breeder fails to disclose information about the new variety or does not provide the competent authority with the reproductive or propagating material, his right will be declared null and void.
The CoFaB booklet containing the full text of the treaty can be obtained from:
Dr Suman Sahai Gene Campaign J-235/A Sainik Farms Khanpur, New Delhi 110062 India Fax: (91-11) 696 97 16 Email: drsahai(at)nde.vsnl.net.in
It is also
available on the Internet at the UK Agricultural
Biodiversity Coalition's website:
http://ds.dial.pipex.com/ukfg/UKabc/cofabtxt.htm