In India, the Plant Variety Protection and Farmers Rights (PPVFR) Act, 2001 ('Act') is a sui generis system that intends to establish an effective system for protection of plant varieties and the rights of plant breeders and farmers. It provides legal protection of a plant variety to a breeder in the form of Plant Breeder's Rights (PBRs), which is a part of intellectual property rights system that offers exclusive rights to a breeder of the registered variety.
PPVFR Act, in conformity with TRIPs agreement, grants a certificate of registration for a variety issued under this Act which confers an exclusive right on the breeder or his successor, his agent or licensee, to produce, sell, market, distribute, import or export the variety.
The Act also prescribes the registrable plant varieties that can be registered for protection, namely:
- New varieties
- Extant variety
- Farmers' variety
- Essentially derived variety
Any of the above type which fulfills the distinctiveness, uniformity, and stability (DUS) criteria and which is 'novel' (New in the market) is eligible for this kind of protection and shall be registered under this 'Act'. The 'inventive step' criteria for industrialization, which is required under the patent regime, is not mandatory for plant variety protection. The duration of Protection for a Registered Variety may vary from plant to plant - 1) Trees and vines reserve protection for eighteen years from the date of registration of the variety, 2) Extant varieties for fifteen years from the date of notification of that variety by the Central Government under Seed Act, 1966, and 3) Other crops for fifteen years from the date of registration of the variety.
Further, the plant varieties mentioned below are non–registrable under the 'Act', where:
- prevention of commercial exploitation of a variety is necessary to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment,
- the varieties involve any technology which is injurious to the life or health of human beings, animals, or plants. The expression "any technology" includes genetic use restriction techology and terminator technology,
- the variety belongs to the species or genera which is not listed in the notification issued by the Central Government1.
Despite the government's effort and above clarification, gaps exist in understanding and there are challenges faced by farming communities while applying for formal IP rights. The major challenges and probable solutions are discussed below:
Legislative law with National interest: The legislative efforts within India have not been explored in terms of assimilation with larger public interest. It will take much more imagination and much wider public participation before a bill reflective of national self-interest can emerge in Parliament. Further, the existing law need to be revised in order to comply with national interest considering sociodemographic and economic status of Indian farmers and traditional farming patterns of farmers.
Easy-to-do formalities for variety registration: The biggest challenge an applicant faces while registering a "variety" is for one that is bred by informal breeding. In this case also, the farmer is under an obligation to provide all information sought in Form 1 which is otherwise required for registration of a new variety developed by formal breeding technology. It means that an applicant who wants to register a new variety after informal breeding is also required to furnish information like technical details (reports of lab test/field test), determination of DUS criteria etc. This means that the outcome of informal breeding based on genetic variability (phenotype) has to be scientifically validated by modern scientists based on DUS standards set by the authority on the basis of genetic makeup. In order to promote informal breeding equivalent to formal breeding by farming communities, the government should first formulate different parameters for testing and registration of the "new farmer's varieties" bred by informal breeding.
Revision of statutory fees: Registering and maintaining "new farmer's variety' cost a whopping amount to a farmer. Depending on the crop cost can be almost 2-3 lakh rupees. There is a mandatory registration fee of Rupees 7,000 along with a DUS test fee of maximum Rupees 2 lakhs. It is obvious that such a fee is exorbitant for an ordinary farmer to afford. Therefore, revision of statuary fees is recommended to make the registration more pocket friendly.
Incentive enjoyment of the IP rights: Section 39(1) (iv) of the Act allows all farmers cultivating a registered new variety the right to "save, use, sow, resow, exchange, share or sell farm produce including seeds" except the branded seeds. Hence, once it is released to the farmers for cultivation, it is possible for the farmers to save the seeds from their farm produce for the next season and not return to the registered farmer for more of them each season. Hence, the economic incentive is very limited for the variety registered by farmer. It is important to revisit the approach of formal IP rights as an incentive for registered varieties and for promotion and sustenance of traditional breeding practices by the farming communities.
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