Protection of Plant Varieties and Farmers’ Rights in India– An Analysis

21st June, 2023 - 10:21 am Categories: Farmer Right 0 Comments

Introduction 

In the Indian subcontinent, farming as a profession has the utmost respect in society. Apart from the various bundles of corporeal rights farmers hold, the Protection of Plant Varieties and Farmers’ Rights Act, 2001 gives them incorporeal rights to their crop and production. The Act is wide and unique in terms of the rights it provides. From breeders to an institutional foundation for research and development of better plant varieties for the farmers, the Act tries to cover each aspect of plant varieties and farmers’ rights. The Indian legislature has taken the TRIPS agreement and its implementation into account while framing this statute. This Act also covers various provisions agreed to by various nations in the International Union for the Protection of New Varieties of Plants, 1978. The idea behind this Act is to protect plant varieties and also the economic interests of farmers.

What is the purpose of the Protection of Plant Varieties and Farmers’ Rights Act, 2001?

• Establishment of an effective system for the protection of plant varieties.
• Provide protection and rights to plant breeders.
• Facilitate research and development to produce new varieties.
• Protect the farmers.

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What is a plant variety?

Section 2(za) the Protection of Plant Varieties and Farmers’ Rights Act defines variety. Section 2(za) focuses on plants that have a specific genetic makeup and show certain unique traits. These traits make them different from other groups of plants. The Section also emphasizes that these plants should remain the same even after they are reproduced. It includes plants that have been genetically modified as well. Essentially, it’s about categorizing plants based on their distinct qualities and ensuring their consistency when they are grown or reproduced. Thus, this Section explains variety in plants as different characteristics in them which make them different from other plants with the same origin.  Examples of this are cotton seeds and soya seeds, which are modified with totally unrelated genes for better production output. The modified seeds of soya or cotton have some characteristics which makes them different from the other types of cotton or soya seeds. Although they all are from same origin but it is the characteristic after modification which makes them different “variety”.

What can be registered as a variety under the Act?

Four major varieties can be registered under the Act:

• Extant varieties– Varieties that are available in the public domain or about which there exists common knowledge, farmers’ varieties and varieties notified by the Seeds Act, 1966.
• Essentially derived varieties – A variety must meet three criteria to fall in this category: – First, the new variety must have a genetic relationship with the initial variety such that it can be considered a modified form of that variety.

– Second, the new variety must be distinguishable from the initial variety, i.e., it must be possible to identify the differences between the two varieties based on their observable characteristics, such as plant height, flower colour or fruit size.

– Third, the new variety must have the same genetic makeup as the initial variety in terms of the traits that are important for its identity and performance but can have additional traits or modifications that have been intentionally introduced through breeding or other methods.

• Farmer’s varieties – Varieties that have been developed and maintained by farmers through generations of agricultural practices are preserved and protected under this category. If a variety is a relative of a variety that farmers already had common knowledge about, it can also be registered. This acknowledges the valuable traditional knowledge held by farmers regarding these varieties.
• New registrable variety – Any new variety which is novel, distinct, stable, uniform and has utility as per Section 15 of the Act.

Rights of farmers under the Act

The Act provides a very wide range of rights to farmers and its main objective is to secure farmers’ interests so that more efforts are invested in farming, producing and cultivating crops. The idea behind providing rights to compensation and protection of variety is to support the farmers of the nation. Some of the rights provided to farmers under the Act are analysed below.

1. Rights relating to new variety under Section 39(1)(i) – This Section protects farmers who have developed or bred a new variety on the same footing as a breeder. The Section discusses the economic and moral rights of farmers. If a farmer creates a new plant variety, they can register and protect it, just like a professional breeder would under the Act. Further, farmers involved in conserving the genetic resources of traditional plant varieties and improving them through selection and preservation are recognized and rewarded according to the rules set by the Gene Fund. Farmers can use the produce from their farms for commercial and personal purposes just as they would before this Act was in effect. However, they cannot sell branded seeds of protected varieties. Branded seeds are those packaged and labelled to indicate that they come from a variety protected under this Act.
2. Rights relating to farm produce under Section 39(1)(iv) – This section provides certain rights to farmers over the seeds they produce on their farm, including the right to save the seeds, use them for planting, sow them in their fields and even share or sell them. These rights existed before this law was introduced, and they continue to exist. However, farmers are not allowed to sell branded seeds of a protected variety which are packaged and labelled as such.
3. Reward and recognition from the Gene Fund  – Section 39(1)(iii) states that farmers who are involved in conserving and improving the genetic resources of traditional crop varieties and wild plants will be recognized and rewarded from the National Gene Fund set up by the Central Government. Additionally, an annual Plant Genome Savior Community Award of INR 10 lakhs is given to groups of farmers or communities who are actively working to protect and preserve plant varieties.
4. Innocent infringement – As per Section 42, if a farmer unknowingly infringes on someone else’s rights as a breeder because they were not aware that such rights existed, they will be considered innocent and won’t be held liable for any infringement.
5. Authorization of the farmer variety for new varieties – As per Section 43, if a new variety is developed from a farmer’s existing variety, the breeder of the new variety cannot commercially exploit it without the consent of the farmer.
6. Compensation and fee exemptions – As per Section 39(2), when a farmer purchases seeds or propagating material, the breeder or seller must provide complete information to the farmer. Not doing so can affect the farmer and their production, and in such cases, compensation either by the breeder or the government is provided. Section 44 deals with fee exemptions for farmers or groups of farmers from paying any fees in legal proceedings before the authority established under the Act, the registrar or the High Court in relation to the Act.

Conclusion 

The Protection of Plant Varieties and Farmers’ Right Act not only codifies the rights of farmers in respect of protecting their seeds and crops but also allows them to explore, try new varieties and increase production through new techniques. It is evident that farmers have a large contribution to society and the rights granted by the Act are very few in comparison. On the whole, apart from rights of farmers, breeders and communities, the Act promotes research and development in the field of seed gene mutation and better variety of plants.

Author: Suryansh, A Student at Hidayatullah National Law University, Raipur in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.