TITLE: Farmers or Corporations: Who Does the Plant Varieties Bill Benefit? AUTHOR: Ashish Kothari, Kalpraviksh (Pune, India) PUBLICATION: submitted by the author to BIO-IPR DATE: February 2000 NOTE: The author has worked on biodiversity issues for several years, and is currently Coordinator of the Technical and Policy Core Group to formulate the Government of India's National Biodiversity Strategy and Action Plan. He is a founder-member of Kalpavriksh, a 20 year old environmental action group which has focused on issues of conservation and development, including policy matters related to wild and agricultural biodiversity. For a formatted Word version of this paper, please write ashish(at)nda.vsnl.net.in. FARMERS OR CORPORATIONS: WHO DOES THE PLANT VARIETIES BILL BENEFIT? Ashish Kothari Kalpavriksh - Environmental Action Group Pune, India February 2000 INTRODUCTION: WHAT SHOULD THE PLANT VARIETIES BILL ACHIEVE? On December 14, 1999, the Government of India introduced into Parliament the Protection of Plant Varieties and Farmers' Rights Bill, 1999. Soon after, it was decided to have this Bill (PPV Bill, for short), examined by a Joint Committee of Members of Parliament. This Committee, chaired by Sahib Singh Verma, is currently seeking public inputs to the Bill, and is expected to finish its task by late February. The urgent question before the Committee should be: does the PPV Bill meet the objectives that the Government claims it will, viz., improve India's food security by providing incentives for better and stepped up breeding of new crop varieties? Or does it actually lead the country away from such security? This question cannot be answered without recourse to a more fundamental question: what constitutes a nation's food security? By now, it is clear that a simple aggregate figure of foodgrains output is not an adequate measure of food security. We need to know if this food is reaching where it should (especially to the poor), and if the costs incurred in producing this food are ecologically and financially sustainable within India's resources. The current models of agricultural development appear not to meet either of these indicators, even if they are resulting in higher aggregate foodgrains output. A third or more of the country's population still does not have enough quality food, or simply enough food, to eat. And increasingly, it is apparent that the enormous economic subsidies involved in fertilisers and other inputs, the country-wide degradation of soils and poisoning of water, the contamination of the food itself by chemical residues, the debilitating dependence of farmers on centralised bureaucracies and markets, and the reduction in diversity of seeds, livestock, and farm practices, are leading us more and more into a dead-end alley. National food security can only be achieved if these issues are addressed. It would of course be unfair to expect any law to do this by itself, and I do not intend to take on the PPV Bill on all these counts. However, what is absolutely clear is that any legislation purporting to ensure "food security" by providing incentives for greater crop production, must be assessed in terms of not only whether it will indeed lead to greater production, but also what kind of crops, on whose lands, and to whose benefit? The production of new varieties, by the corporate sector, does not necessarily benefit farmers, especially when it ties them up to increasing dependence on markets and bureaucracies. Privatised intellectual property rights (IPRs), such as patents and plant breeders' rights, would only increase this trend, apart from raising ethical issues of IPRs on life forms. And past experience suggests that varieties developed in the formal sector often actually displace valuable crop diversity on farmers' fields. All this leads, in the long run, to greater instability, depedence, and unsustainability in farmers' lives?and hence in the national agricultual sector as a whole. The litmus test then is: does the PPV Bill enable farmers to stand on their own feet (is it truly a "Farmers' Rights" Bill as it claims?), and the indigenous seed breeding and production sector to blossom in the service of the farmer and the nation's consumers? Will it actually lead us to greater food security? Unfortunately, despite a number of progressive clauses in the Bill, the answer is a clear NO. The PPV Bill emerges as a legislation that will end up benefiting the large seed corporations, some very large farmers, and corporate farming agencies. In so doing, it will be playing into the hands of those in the international arena who pushed agreements such as WTO (and in particular, the Trade Related Intellectual Property Rights (TRIPs) regime). It will do little to facilitate genuine food security in terms of feeding the poor and ensuring sustainable agricultural production through protecting the rights of small farmers and the small-scale seed sector. This is a pity, because India could well exploit loopholes in TRIPs, and the solid mandate given to it by the international Convention on Biological Diversity, to push forward a boldly different plant varieties protection legislation. It can still do so, if the Joint Parliamentary Committee is appraised of these issues and willing to take cognizance of them. ELEMENTS OF THE PPV BILL Largely modeled on the 1978 version of the International Convention for the Protection of New Plant Varieties (UPOV), an agreement signed mostly by the industrial nations of the world, the PPV contains the following major provisions: 1. Registration of new varieties of plants, by their breeders, provided they fulfil the criteria of novelty, distinctiveness, uniformity, and stability; 2. Protection for registered varieties for periods ranging from 15 to 18 years (depending on the kind of plant variety); this protection would include the exclusive right to produce, sell, market, distributed, import, or export the variety or its propagating material, and to license other persons to do the same; 3. Deposition of sample seeds or propagating material by the applicant, with the government; 4. Exclusion of plant varieties from being registered if such exclusion is necessary for public purposes, or if the commercial utilisation of such varieties could threaten human, animal, or plant life or the environment in general; such exclusion could extend to entire genera/species; 5. Rights of researchers to use the registered variety for experimentation; 6. Rights of farmers to save, use, exchange, share, or sell the produce of, any registered variety (except selling for the purpose of reproduction under commercial marketing arrangements); 7. Revocation of protection if it is found that the breeder supplied incorrect or inadequate information at the time of application, or did not provide the necessary seeds or propagating material, or if the registration was found not to be in public interest; 8. Compulsory licensing in cases where the breeder is not making the seed publicly available in reasonable price or quantity or regularity; 9. Benefit-sharing arrangements with those, including farmers, claiming to have contributed genetic material to the registered variety; 10. Rights of communities and persons to claim significant contribution to a registered variety, and to receive compensation if such a claim is upheld; 11. A National Gene Fund built up with royalty fees from plant variety right holders, national and international contributions, etc., meant to be used for benefit-sharing and compensation to farming communities, and for conservation and sustainable use of genetic resources. Under the PPV Bill, a Plant Varieties and Farmers' Rights Protection Authority will be established. This will be chaired by a person of eminence in agriculture, and consist of various government officials from relevant ministries and agencies. Committees of experts can be appointed by this Authority. The PPV Bill also sets up a Plant Varieties Registry, with a Registrar General and other Registrars to process applications. The Registry will maintain a National Register of Plant Varieties, which are given protection under the PPV Bill. Violations will invite penalties ranging from 3 months to 2 years imprisonment, and Rs. 50,000 to Rs. 10 lakhs fine. DOES THE PPV BILL PROTECT FARMERS OR BREEDERS? Though its name explicitly gives it a claim to protect farmers' rights, the PPV Bill is in actuality much more weighed in favour of the formal sector plant breeder. Even in the latter category, I will argue below that the Bill will work to the advantage of the private corporate sector more than public sector breeders. The PPV Bill is meant primarily to provide incentives to the seed breeding sector, in particular financial incentives. This, it is hoped, will lead to continued and increased investment into plant breeding, and to innovations in this field. Indirectly, the agricultural establishment hopes, this will benefit farmers, as they will get access to 'improved' varieties. The Background Note circulated to the Joint Committee members with the PPV Bill, itself starts off on a dubious note. It recognises that the public sector breeding programmes are not meeting the increasing needs of India's farmers, and hence the growing importance of private (read: corporate) sector breeding. Unfortunately, this entirely leaves out the critical importance of a third sector?farmers themselves! Considering that for thousands of years, our farmers have selected, bred, and used hundreds of thousands of varieties of several hundred crop species, it is amazing that the government does not even think it fit to mention them as possible breeders. This continues the bias, built into agricultural planning for decades, against the 'informal' sector, and perpetuates the image of farmers as simply supplying the 'raw material' that the formal sector breeders use to develop new varieties. This bias permeates the PPV Bill, though there are some well-meaning attempts at reducing it. Consider the following: 1. Does the PPV Authority include farmer representatives?: The Authority set up by the PPV Bill has no farmers' representative on it, not even NGO representatives; it is made up entirely of government officials?with the possible exception of the Chairperson (Section 3); 2. Can farmers' varieties get protection?: In theory (and according to the Background Note given to the Joint Committee, though not explicitly mentioned in the Bill), farmers are included in the category of 'breeders', and can apply for protection to varieties that they would have developed. However, given the stringent requirements for obtaining protection under the PPV Bill (the Novelty, Distinctiveness, Uniformity, and Stability criteria, Section 14), requirements that are expensive to fulfill and technologically easier to achieve in the laboratory or highly controlled conditions that formal sector breeders have access to, it is unlikely that farmers' varieties will be able to receive protection. This could only happen if the state were to assist in carrying out the tests to prove these characteristics, on behalf of farmers?rather unlikely in the current situation! Even the provision to register "extant" varieties, i.e. those which are already in existence or in public knowledge, would not help, as these too have to fulfill the criteria of Distinctiveness, Uniformity, and Stability. In any case, given the nature of our society, no more than a handful of farmers are likely to be able to approach the PPV Authority without the active aid of NGOs or sensitive government officials, and there is nothing in the Bill that mandates the government to reach out to them. Finally, the Bill only talks of "persons" as being applicants for protection, and it is not clear whether communities as a whole fit this description. 3. Has farmer permission been taken?: India is now legally obliged, under the Convention on Biological Diversity (CBD), to ensure that local community consent is sought, and equitable benefit-sharing arrangements are made with it, before wider use is made of its knowledge and practices. Yet in the application requirements for those wanting plant variety protection in the PPV Bill (Sections 17/18), there is no mention of the applicant having to show whether his/her variety is based on farmers' knowledge, or whether permission has been taken from the farmer/community for the use of such knowledge or their varieties, and finally whether an appropriate benefit-sharing arrangement has been worked out with such farmer/ community. This is a violation of India's commitments under the CBD. Even in the matter of approving a particular name ("denomination") for a variety (Section 16), the Authority does not have the mandate to reject a breeder's name even if it is already in use by a farming community, though this could conceivably be developed as a specific regulation under Section 16(2,3). There is no penalty associated with 'stealing' such a name (Sections 61-64). Section 48 of the PPV Bill enables communities to make claims if they believe they have contributed to the development of a variety for which protection has been given. But the onus to prove this is on these communities. How many farmers will even get to know about what has been protected, whether their varieties or knowledge has been used or not, etc? The PPV Bill does make it mandatory for applications to be advertised (Section 17), but again, will such advertisements even reach the concerned rural populations? The only consolation is that this right to make claims on behalf of aggrieved farmers has also been given to NGOs or others, which could in theory help in greater outreach. Even if some farmers or others acting on their behalf do manage to make such a claim, and the claim is upheld, their only consolation will be some compensation that they might get, at the discretion of the Authority (Section 48(3)). This too, indirectly, as the compensation amount will first be deposited into the Gene Fund, and there is no provision to ensure that it thereafter comes to the claimant! But worse, there is no clause to revoke the protection if it is found that the applicant has unfairly appropriated farmer/community resources or knowledge?indeed such a provision cannot be made since, as stated above, the PPV Bill has no provisions for prior consent of farmers. 4. Is the provision on farmers' rights adequate?: The PPV Bill's single paragraph on farmers' rights (Section 31) pertains to the ability to save, use, exchange, share and sell protected varieties. While this is in itself commendable (given especially the increasing international trend to exclude even such basic rights), it falls far short of the much fuller definition of farmers' rights that has been proposed by communities and NGOs across the world. This larger definition includes the right to protect community or individual farmer varieties and knowledge from being used without consent and benefit-sharing arrangements, as also to have guaranteed access to the biological, cultural, and economic resources that allow farmers to innovate and sustainably use crops. 5. Is the benefit-sharing provision adequate?: To its credit, the Government has introduced a provision (Section 26) for benefit-sharing arrangements with farmers/communities in case claims are made for this with regard to a registered variety. However, once again, the onus is on the claimant to prove a contribution, and the Authority is under no obligation to make its own enquiries about whether what contributions may have gone into a registered variety. Moreover, claims can only be made for contributions of genetic material, and not for knowledge?a rather strange oversight considering that information and knowledge of local communities is such a common ingredient in breeders' work. Nor is there any requirement for this benefit-sharing arrangement to be "equitable", however that is defined, though the Statement of Objects and Reasons attached with the PPV Bill states that this will be the case. Finally, the benefit-sharing amount, once determined, will be deposited into the Gene Fund, rather than given directly to the claimant, the reasoning behind which is unclear. 6. Will the national registration process cover farmers' varieties?: The PPV Bill's registration process, unfortunately, is open only to varieties that get protection under the Act. Farmers will not be able to register their varieties in it. NGOs have for many years been demanding some such registration process, so that there is proof of 'prior existence' of a variety and its related knowledge, making it easier to contest biopiracy. The PPV Bill makes only one possible provision for this: one of the duties it gives to the PPV Authority is to take measures for "compulsory cataloguing facilities for all varieties of plants, seeds, and germplasm". In theory, this could be used to register farmers' varieties, but the Bill does not provide any legal protection to such a catalogue against piracy and misuse. The above elements make it clear that, despite undoubtedly progressive elements such as community rights to claim compensation, benefit-sharing arrangements, compulsory licensing under certain conditions, and farmers' rights to continue using protected varieties, the PPV Bill is not really a "farmers' rights protection" bill. DOES THE PPV BILL PROTECT THE SMALL SEED SECTOR? Even within the formal seed sector, the PPV Bill is likely to benefit large private corporate houses more than the public sector or the small-scale seed industry. Public sector seed breeding has been the backbone of official agricultural programmes. Though these programmes have suffered from the bias against the farmer being at the centre of research and development, pointed out above, they have at least been motivated by public needs, including those of marginal farming areas. Secondly, reaching seeds to farmers has been done mainly by small-scale seed industries. The PPV Bill not only acknowledges a move away from this, but in fact encourages it. The Background Note with the Bill states that the public research system will have to be made more "self-sustainable" due to "decreasing levels of government support" (itself an outcome of so-called structural adjustment programmes with IMF, World Bank and other agencies requiring a cut in government expenditure, never mind its social consequences). Doing this through intellectual property rights is a sure-fire way of increasing the role of the private sector, both in itself and in funding research within public institutions such as our agricultural universities. Partly due to the PPV Bill, and partly due to other trends, we will see more and more corporate interests showing up in our seed breeding programme. A serious question that we must ask is: will this really benefit our farming populations, especially those in so-called 'marginal' areas where profit margins for private companies may be extremely low if not negative? And if the small-scale seed sector has to pay increasing amounts of royalties to the big breeders, will they be able to cope with the competition from big seed industries, including the multinationals that are coming into India? Perhaps one of the major thrusts behind the PPV Bill is stated in its Statement of Objects and Reasons: "in the absence of plant breeders' rights, foreign companies would be hesitant to organise buy-back production of seeds in India for export to their countries for fear of unauthorised use of their genetic material." Two other stated reasons along with this one --- "better and mission-oriented research for development of varieties that are fully suited to a given agro-climatic region", and protection of Indian breeders' varieties while giving them access to foreign germplasm --- hardly cut ice. As argued above, many agro-climatic regions are hardly likely to be served by a system increasingly tending towards privatised, market-oriented R&D. As for protecting Indian varieties, what I am going to suggest below as a truly sui generis system may have a better chance of achieving this without the pitfalls of a breeder-oriented IPR system. WILL THE PPV BILL PROTECT THE ENVIRONMENT AND BIODIVERSITY? Progressive clauses in the PPV Bill give to the government the right to refuse or revoke registration of a variety that may in some way be contrary to "public interest", or whose commercial exploitation may be harmful to human/animal/plant health and the environment. These provisions stem directly from similar clauses in TRIPs. However, will these really be effective? In extreme cases, they may be. For instance, the PPV Bill prohibits registration of varieties which uses genes involving the terminator technology (which renders a crop sterile after the first generation), an undoubtedly laudable provision. However, there are many other ways in which registered varieties, in particular those produced through the new biotechnologies of genetic manipulation, may be harmful. Unfortunately, the PPV Bill has no provision to ensure that a thorough Environmental Impact Assessment (EIA) is done of the variety proposed for registration. Perhaps an existing notification regarding the use of Genetically Modified Organisms will help in this, but this does not cover the problem of new varieties displacing existing crop diversity and narrowing the genetic base. Without and EIA requirement, how will the Authority know whether the variety's commercial exploitation could lead to such harm? In a way, all seeds on which IPRs are obtained should be suspect. For obtaining protection under the PPV Bill will be an expensive proposition, and the holders will surely want to push their registered varieties into as large a farming population as possible. What is happening already with the Green Revolution thrust --- the pushing out of a large diversity of indigenous crop varieties that farmers had been growing and their replacement by a handful of formal sector generated varieties --- will only increase with the introduction of plant breeders' rights. In this sense, the government's following argument (made in the Background Note) is rather suspect: that the PPV Bill will lead to "varieties from different geographical areas and growing in different timeframes will be brought on a common platform for breeding purposes?(and) result in new genetic combinations?The fear of narrowing the genetic base can be allayed by in situ preservation of plant varieties" It is precisely such in situ (on farmers' fields) preservation and use of plant varieties that will suffer with the introduction of privatised IPRs. WHY UPOV? The PPV Bill is explicitly modeled after the UPOV regime of plant breeders' rights. This itself reveals its bias, for UPOV was and remains explicitly oriented towards protecting formal sector plant breeders, not farmers. While the 1978 version of this agreement provides limited exemption to farmers and researchers, the 1991 amended version has narrowed this down, allowing countries to remove such exemptions if they so want. A number of countries have already done eliminated farmers' rights or are in the process of doing so. The PPV Bill has explicit provisions to guard against such a move, such as farmers' rights, compulsory licensing, and so on. The government has clearly stated, in the Background Note, that what is an "effective" system of plant variety protection (as required by TRIPs) should be determined nationally, not in international forums. If such provisions are retained, the danger of farmers' rights getting further compromised are remote. But the fear remains: once on this path of privatised IPRs, what is to stop future governments from further giving in to international demands and the pressure of the big seed industry, and applying the 1991 model of UPOV? It is, therefore, objectionable that India should have gone into a UPOV kind of legislation in the first place. There was no need for this, even under the TRIPs clauses. TRIPs clearly allows each country to have its own sui generis system of the plant variety protection; India could well have gone into a radical alternative system that protected the rights of its farmers, and preserved our tradition of not accepting privatised IPRs on life forms and related knowledge. Such a system is sketched out below?it may even be possible to evolve this through appropriate modifications in the PPV Bill. AN ALTERNATIVE SUI GENERIS SYSTEM Any system of plant variety protection that aims to achieve food security and enhancement of the genetic base, and other laudable objectives claimed for the PPV Bill, should start with explicit provisions aimed at farmers and farming communities. Formal sector breeder rights should only come as a corollary to this, and should not be oriented towards monopolistic, privatised IPRs. At the very least, such a legislation would have the following provisions: 1. Legal recognition to the plant varieties, practices, and related knowledge evolved and being grown/conserved by farmers and farming communities across India; 2. Protection to these varieties, practices and knowledge, to prevent them from being taken away and utilised without the prior informed consent of their holders; 3. A local, state-level, and national registration system for such varieties, practices, and knowledge, to ensure protection from piracy; 4. Representation of farmer communities on planning and implementation bodies relating to plant varieties and agriculture; 5. Appropriate and equitable benefit-sharing arrangements with farmers and communities whose varieties, practices and/or knowledge is used for wider commercial or scientific purposes (such benefit-sharing need not be only financial, it could also include technology transfers, social recognition, etc.); 6. Incentives to formal sector breeders to develop varieties that are of use to farming communities, and protection to these varieties without giving monopolistic control over them. These incentives should encourage participatory breeding with farmers, and give a special focus to so-called 'marginal' areas; 7. A system of environmental impact assessment for all new varieties being introduced from laboratory or controlled conditions, to ensure that they do not cause genetic erosion by displacing extant varieties or in other ways, or do not threaten human or animal or plant health; While a comprehensive new legislation would be ideal, at the very least the PPV Bill needs to be modified to integrate the above provisions, in the following ways: 1. Adding farmers' representatives and NGO members in the Authority and other institutional bodies set up under the Bill; 2. Making it explicit that farmers are also breeders and researchers in their own rights; 3. Building in a more comprehensive definition of Farmers Rights, which includes the right to protect their varieties and knowledge, and to continue having access to the biological material and other conditions which are important inputs into their farming system; 4. Making mandatory the consent of, and appropriate benefit-sharing arrangements with, farmers and communities whose varieties and knowledge are accessed in formal sector breeding (and not leaving the onus on farmers to claim such benefit-sharing); 5. Putting the onus on formal sector breeders to prove that they have not wrongly or unfairly appropriated farmers' varieties and knowledge in developing a new variety, if such complaints are made; 6. Mandating the Authority to protect farmers against piracy of their varieties and knowledge; 7. Making the use of farmers' varieties and knowledge, without prior informed consent, a ground for opposition to a variety; and making it mandatory to revoke protection to any variety which has been developed in violation of Farmers' Rights as defined above; 8. Making the use of existing farmers' 'denominations' by plant breeders, without seeking the permission of these farmers, as a violation of Farmers' Rights; 9. Providing legal status to local, state, and national level registers of farmers' varieties and knowledge, and not insisting on expensive-to-prove characteristics to accept such varieties for registration; where characteristics of stability etc. have to be demonstrated, the state should be obliged to help farmers in conducting the necessary tests; 10. Making explicit provisions for the functioning of the National Gene Fund, e.g. prioritising allocations from it to farmers and communities that conserve and innovate on plant genetic resources; and ensuring that decision-making regarding its utilisation involves representatives of farmer communities; 11. Making compulsory some kind of benefit-sharing arrangements in all further use of seeds and other genetic material already stored in ex situ gene banks (e.g. that of the National Bureau of Plant Genetic Resources). In the case of varieties whose origin can be traced to particular farmers or communities, such benefits must go to them; whereas in the case of other varieties, the benefits can go the National Gene Fund; 12. Facilitating a range of incentive measures for farmers and local communities to revive, or continue, practices and knowledge systems which promote the conservation and sustainable use of biological diversity, e.g. linkages with consumers wanting organic and diverse foods; 13. Making environmental impact assessments mandatory for any new variety for which a claim is made, to ensure that it does not in any way undermine the maintenance of biological diversity in farmers' fields, or in other ways harm human/animal/plant health; 14. Reinserting the provision for an Appellate Tribunal, to settle disputes regarding plant variety protection, in particular to hear from aggrieved farmers and communities (such a Tribunal was envisaged in an earlier version of the PPV Bill, but has been subsequently dropped); 15. Providing to formal sector breeders incentives and protection, and measures to ensure that they are rewarded and facilitated, but ensuring that compulsory licensing is done for every variety that is given protection (a partial step towards this already exists in Section 45(1) of the PPV Bill), so as to guard against monopolies and enable the small-scale seed sector to benefit. It is interesting that simultaneous to the development of the PPV Bill, the Government of India has developed a draft Biological Diversity Act that contains provisions for protecting indigenous knowledge and agro-biodiversity. A comparision of the two bills shows certain basic contradictions, that need to be resolved. As currently drafted, the BDA is a much stronger vehicle to achieving environmental sustainability, social justice, and food security, than is the PPV Bill. But the latter too can be made to achieve these goals, if it puts the interests of the majority of India's farmers, and the conservation of the biological diversity which is the basis for all agriculture, as its core thrusts. India has the option of developing a truly sui generis law which suits its social and ecological conditions. What is stopping us from doing so? Ashish Kothari Kalpavriksh Aptmt. 5, Shree Dutta Krupa, 908 Deccan Gymkhana Pune 411004 India Tel/Fax: (91-20) 565 42 39 Email: ashish