Farmers' Intellectual Property Rights in Nepal
The United Nations Sustainable Development Goals 2030 have incorporated food security, improvement of nutrition and promotion of sustainable agriculture to end hunger in the world. This goal can be achieved if improved, high-yield, new plant varieties are made available in many developing countries. The Food and Agriculture Organisation (FAO) predicted that the global population would reach around 9 billion by 2050, and that the per capita food consumption would increase to nearly 3,100 kcal per day. Currently, a considerable percentage of the population suffers from malnutrition. It is predicted that the agricultural capability still needs to be increase by 70 percent to fulfil the needs of the world.
The intellectual property (IP) rights regime is a
key motivator of innovation and rewards to develop solutions in the
agricultural and food sector. This is how there is an evident and
clear interface between intellectual property and farming which has
the potential to improve productivity to ensure that no one is
hungry. Therefore, the influence of IP rights on promoting agricultural
inventions, biotechnology and plant breeder rights in the
developing countries is a matter to consider and research upon.
The key to an increase in the agricultural productivity is innovation. But the research and development involve huge costs. In today's era, the private companies have also started investing in the research and development, along with the government. IP rights play a significant role in enabling the private sector to invest and generate revenues to recover the costs and invest in further research. Basically, patent rights, plant variety rights and rights over genetic resources are particularly relevant in the field of agricultural R&D. In the developing countries, innovation should be inexpensive to encourage farmers to adopt it. However, people in the developing countries are concerned that the IP system is empowering the private sector to generate huge profits at the cost of farmers and the public.
Out of more than 6,000 vascular plant species in Nepal, around 550 species have food value and around 200 are cultivated species. Similarly, over 400 species of agro-horticulture crops are estimated to be available in Nepal, and there are over 100 varieties of 15 major fruit species, 200 varieties of 50 vegetable species, and about 10 varieties of potato under commercial cultivation. Farmers' continued contribution in maintaining and improving agricultural biodiversity in both home gardens and farm land is one of the major driving forces behind the development of the agricultural sector, and on-farm maintenance of agricultural biodiversity in Nepal.
Prior to 2017 regime
During WTO accession, Nepal expressed its commitment to implement the national IPR laws in compliance with the TRIPS Agreement. Specifically, the country has made a commitment to enact and implement an industrial property law that deals with IPRs such as patent, trademark and geographical indications.
The seed development, certification, registration and release programme were being administered through the Seed Act and Regulations 1988. The seeds have to be distinct, uniform and stable in order to qualify for registration under the Seeds Act. Under the Seed Act, a National Seed Board has been formed, which is tasked, among others, to maintain a balance between the private and the government sectors in the activity of certain production and distribution of the seeds and to motivate the private entrepreneurs to invest in the seed industry. The Board must also be able to regulate or control the quality standards of seeds produced by the private and government seed companies. In addition, subject to specified terms and conditions, the Board has the authority to approve, release and register the seeds; test their specialty, uniformity and permanency; and provide ownership certificates to the breeders over their seeds. The Seed Act was, however, being implemented in only 33 of the 75 districts. Seed certification is mostly effective in cereal crops, and there is very limited seed trade outside the country.
Generally modern varieties that were delivered from research to farmer fields were supported by seed certification. Seed produced by local farmers did not formally qualify for certification, ignoring the fact that local-level seed production usually includes farmers' preferred varieties, which may include both landraces and modern varieties. This lack of an option for certification had become a disadvantage for farmer-produced seeds in a competitive market.
2017 regime
In 2017, the government of Nepal endorsed the Integrated Intellectual Property Policy in which plant variety protection and protection of genetic resources have been incorporated as IP rights. However, developing countries and the least developed countries like Nepal need a new and creative public-private partnership to facilitate a biotechnological revolution which is essential to achieve agricultural productivity and food security. A partnership mechanism will make biotechnological innovation affordable to farmers and encourage them to adopt new technologies. A policy framework for public-private collaboration in agricultural research can be a critical success factor for the achievement of agricultural productivity goals.
One of the most challenging tasks is the enactment of a policy framework to enable the allowance of knowledge to and transfer of agricultural and biotechnological innovation from the developed to the developing countries. Generally, farmers save some of their harvested crops to use as seeds during next year's growing season. This is a common practice which has continued through the generations. Basically, issues of farmers' rights, access to new agro-biotechnological innovation and seeds for improving agricultural productivity are some of the challenges in the commercialisation of agriculture in countries like Nepal.
Conclusion
Nepalese farmers have not merely been contributing to farming and agricultural biodiversity conservation as guardians and custodians of plant genetic resources but, as breeders, have also developed several varieties that are crucial for agricultural biodiversity and food security. Thus, the sui generis system of plant variety protection should aim at enabling farmers to obtain legal ownership over their varieties and knowledge. This requires the law to make adequate provisions for the registration of farmers' varieties and knowledge as a unique form of IPR.
Co-Authored by Narsee Monjee Institute of Management Studies (NMIMS)
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