PLANT VARIETIES AND FARMERS’ RIGHTS

PLANT GENETIC RESOURCES (PGRs) are the foundation for the development of a food and nutritionally secure society. In addition, plants have many uses, including feed, fibre, medicine and industrial applications. PGRs were treated as the ‘heritage of mankind’ and were shared freely among nations, till the concerns for conservation of biological diversity were raised by the Convention on Biological Diversity (CBD), which came into force in 1993.

The conservation and sustainable utilization and access to biological diversity were considered as national sovereignty by CBD. Consequently, many issues regarding the rights of the conservers, users, breeders, farmers and intellectual property have emerged. 

During 2001, significant developments have taken place with respect to the realization of the rights of breeders, farmers and local communities. The Indian Government passed the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPVFR). It was an outcome of India’s obligations which arose from the TRIPs (Trade Related Intellectual Property Rights) agreement which obligates members to protect plant varieties either by patents or by effective sui generis (unique) system or by any combination thereof. 

Objectives

The objectives of the Act are as follows: 

1.     To provide for the establishment of an effective system for protection of plant varieties. 

2.     To provide for the rights of farmers and plant breeders. 

3.     To stimulate investment for research and development and to facilitate growth of the seed industry. 

4.     To ensure availability of high quality seeds and planting materials of improved varieties to farmers.

Definitions

·      Variety 

According to section 2(za) of the Act, ‘variety’ means a plant grouping except microorganisms within a single botanical taxon of the lowest known rank, which can be: 

i)     Defined by the expression of the characteristics resulting from a given genotype of a plant of that plant grouping; 

ii)    Distinguished from any other plant grouping by expression of at least one of the said characteristics; and 

iii)  Considered as a unit with regard to its suitability for being propagated, which remains unchanged after such propagation and includes propagating material of such variety, extant variety, transgenic variety, farmers’ variety and essentially derived variety. 

·      Extant variety 

According to section 2(r) of the Act,  ‘extant variety’ means a variety available in India which is:

i)     Notified under section 5 of Seeds Act, 1966, or 

ii)    Farmers’ variety, or 

iii)  A variety about which there is common knowledge, or 

iv)  Any other variety which is in public domain. 

(Section 5 of Seeds Act, 1966 - If the Central Government, after consultation with the Committee, is of opinion that it is necessary or expedient to regulate the quality of seed of any kind or variety to be sold for purposes of agriculture, it may, by notification in the Official Gazette, declare such kind or variety to be a notified kind or variety for the purposes of this Act and different kinds or varieties may be notified for different States or for different areas thereof.)

·      Essentially derived variety 

According to section 2(i) of the Act, ‘essentially derived variety’ in respect of a variety (the initial variety) shall be said to be essentially derived when it: 

i)     Is predominantly derived from such initial variety, or from a variety that itself is predominantly derived from such initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of such initial variety; 

ii)    Is clearly distinguishable from such initial variety, and 

iii)  Conforms (excepting for the differences which result from the act of derivation) to such initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of such initial variety

·      Farmer 

According to section 2(k) of the Act, ‘farmer’ means any person who:

i)     Cultivates crops by cultivating the land himself, or 

ii)    Cultivates crops by directly supervising the cultivation of land through any other person, or 

iii)  Conserves and preserves, severally or jointly, with any person any wild species or traditional varieties, or adds value to such wild species or traditional varieties through selection and identification of their useful properties. 

·      Farmers’ variety 

According to section 2(l) of the Act, ‘farmers’ variety’ means a variety which:

i)     Has been traditionally cultivated and evolved by the farmers in their fields, or 

ii)    Is a wild relative or land race of a variety about which the farmers possess common knowledge.

·      Authority

The Central Government shall establish an Authority to be known as the Protection of Plant Varieties and Farmers’ Rights Authority. It shall consist of a chairperson and fifteen members as representatives of different concerned ministries and departments, seed industry, farmers organizations, tribal communities and State-level women’s organization, etc.

Criteria for Registration of a Variety:

Novel: if at the date of filing an application for registration for protection, the propagating or harvested material of such variety has not been sold or otherwise disposed of in India earlier than one year or outside India, in the case of trees or vines earlier than six years, or in any other case earlier than four years, before the date of filing such application.

Distinct: A variety is said to be distinct if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing an application.

Uniform: A variety is said to be uniform, if subject to the variation that may be expected from the particular features of its propagation it is sufficiently uniform in its essential characteristics.

Stable: A variety is said to be stable if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.

Persons who can apply for the  Registration of Plant Variety

Application for registration of a variety can be made by:

1. Any person claiming to be the breeder of the variety;
2. Any successor of the breeder of the variety;
3. Any person being the assignee or the breeder of the variety in respect of the right to make such application;
4. Any farmer or group of farmers or community of farmers claiming to be breeder of the variety;
5. Any person authorized to make application on behalf of farmers and
6. Any University or publicly funded agricultural institution claiming to be breeder of the variety.

Filing Requirements For The Registration Of A Plant Variety

• Name, address and Nationality of Applicants as well as the address of service of their agent.
• Denomination assigned to such variety.
• Accompanied by an affidavit that variety does not contain any gene or gene sequences involving terminator technology.
• Complete passport data of parental lines with its geographical location in India And all such information relating to the contribution if any, of any farmer (s), village, community, institution or organization etc in breeding, evolving or developing the variety.
• Characteristics of variety with description for Novelty, Distinctiveness, Uniformity and Stability.
• A declaration that the genetic material used for breeding of such variety has been lawfully acquired. 

Certificate of Registration

The maximum time taken for issuing certificate of registration is three years from the date of filing of the application for registration of a plant variety.

Duration of Registration

·       For trees and vines (Perennials)- 18 years from the date of registration of the variety.

·       For other crops (Annuals) – 15 years from the date of registration of the variety.

·       For extant varieties – 15 years from the date of notification of that variety by the Central Government under section 5 of the Seeds Act, 1966.

Payment of annual fee

The Authority may, with the prior approval of the Central Government, by notification in the Official Gazette, impose a fee to be paid annually, by every breeder of a variety, agent and licensee thereof registered under this Act determined on the basis of benefit or royalty gained by such breeder, agent or licensee, as the case may be, in respect of the variety, for the retention of their registration under this Act

Breeders’ rights

Section 28 confers exclusive right on the breeder of a registered variety or his successor, his agent or licensee to produce, sell, market, distribute, import or export the variety.  The rights are subject to other provisions of the Act.

A breeder may authorise any person to produce, sell, market or otherwise deal with the registered variety subject to such limitations and conditions as may be specified in the regulations. Such authorisation is to be in such form as may be specified by the regulations made by the authority.

The agent or licensee shall apply to the registrar to register his title.

In the case of extant variety, unless a breeder or his successor establishes his right, the Central Government, and in cases where such extant variety is notified for a state under section 5 of the Seeds Act, 1966, the State Government is deemed to be the owner of such right.

Researchers’ right

Section 30 of the Act, allows the following uses:

a)    The use of any variety registered under this Act by any person using such variety for conducting experiments or research; and 

b)   The use of a variety by any person as an initial source of a variety for the purpose of creating other varieties.

However, the authorization of the breeder of a registered variety is required where the repeated use of such variety as a parental line is necessary for commercial production of such other newly developed variety’. 

Farmers’ rights

Section 39 provides that -
i)     A farmer who has bred or developed a new variety shall be entitled for registration and other protection in like manner as a breeder of a variety;
ii)    The farmers’ variety shall be entitled for registration if the application contains declarations as specified in clause (h) of sub-section (1) of section 18; 
iii)  A farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund subject to the condition that material so selected and preserved has been used as donors of genes in varieties registrable under this Act; 
iv)  A 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 However, the farmer shall not be entitled to sell branded seed of a variety protected under this Act. 

(For the purpose of clause (iv), “branded seed” means any seed put in a package or any other container and labeled in a manner indicating that such seed is of a variety protected under this Act.)

Where any propagating material of a variety registered under this Act has been sold to a farmer or a group of farmers or any organisation of farmers, the breeder of such variety shall disclose to the farmer or the group of farmers or the organisation of farmers, as the case may be, the expected performance under given conditions. If such propagating material fails to provide such performance under such given conditions, the farmer or the group of farmers or the organisation of farmers, the case may be, may claim compensation in the prescribed manner before the Authority. The Authority, after giving notice to the breeder of the variety and after providing him an opportunity to file opposition in the prescribed manner and after hearing the parties, may direct the breeder of the variety to pay such compensation as it deems fit, to the farmer or the group of farmers or the organisation of farmers, as the case may be.

Exemptions provided by the Act

·       Farmers' Exemption: 

Farmer shall be entitled to produce, save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act.

·       Researcher's Exemption: 

i)     The use of registered variety for conducting experiment. 

ii)    The use of variety as an initial source of variety for the purpose of creating other varieties.

National Gene Fund

The Central Government is to constitute ‘The National Gene Fund’ under section 45 of the Act.  Following amounts are to be credited to the Fund:
i)     The benefit sharing from the breeder. 
ii)    The annual fee payable to the authority by way of royalties. 
iii)  By the compensation provided to the communities as defined under Section 41(1). 
iv)  Contribution from any national and international organization and other sources. 

The fund will be applied for disbursing shares to benefit claimers, either individuals or organization, and for compensation to village communities. The fund will also be used for supporting conservation and sustainable use of genetic resources, including in situ (in the original place or in the appropriate position) and ex situ (outside an ecological niche) collection and for strengthening the capabilities of the panchayat in carrying out such conservation and sustainable use.

Compulsory License

Under Section 47 of the Act, the authority can grant compulsory license, in case of any complaints about the availability of the seeds of any registered variety to public at a reasonable price. The license can be granted to any person interested to take up such activities after the expiry of a period of three years from the date of issue of certificate of registration to undertake production, distribution and sale of the seed or other propagating material of the variety. The Authority is to determine the duration of the compulsory license.

As on March 8^th 2018, 147 Crop species are open for registration under New/Extant/Farmers Variety.