A landmark law

Print edition : January 05, 2002

Experts, activists and farmers' representatives discuss, at a seminar organised by the M.S. Swaminathan Research Foundation, problems that may be encountered while implementing the Protection of Plant Varieties and Farmer's Rights Act.

THE Protection of Plant Varieties and Farmer's Rights Bill got the President's assent in early November. Hailed as a piece of landmark legislation by scientists, policy-makers and legislators, the Act provides a range of safeguards for farmers and gives them rights on a par with plant breeders.

At the plant exhibition organised by the agro-biodiversity centre.-BY SPECIAL ARRANGEMENT

Legislating on farmers' rights, however, is only the first step. Some 110 million families of farmers conserve almost all plant genetic material, most of it not registered. This makes the process of identifying, recognising and rewarding their knowledge under the Act difficult. To discuss the various issues relating to the implementation of the Act, the M.S. Swaminathan Research Foundation (MSSRF) organised a seminar in November at its centre in Wayanad district of Kerala. Several scientists, researchers, policy-makers and representatives of non-governmental organisations, activist groups, farmers and local tribes, and the media attended the seminar.

Agriculture scientist and institution-builder Dr. M.S. Swaminathan, who set the stage for discussion, said: "The Act is a major step in incorporating the ethics and equity provisions of the Convention on Biological Diversity in a sui generis system of varietal protection. The crucial aspect of the Act is that it gives importance to community, as against individual recognition, and provides an economic stake in conservation."

The concept of farmers' rights has several dimensions, including economic, social, cultural, traditional and institutional ones. These vary vastly across the country, making the implementation of the law difficult. The Act aims at identifying conservers, recognising their contribution, documenting their contribution, protecting their intellectual property rights, rewarding communities and benefit-sharing among them, and conserving and sustaining their knowledge.

Dr. S. Bala Ravi, Assistant Director-General, Indian Council of Agricultural Research (ICAR), said that the Act considered the diverse role of farmers and defined a farmer as one who cultivated crops himself or through other persons under his supervision and who conserved and preserved by himself or with others any traditional variety or wild species and added value to them through selection. The Act gives a farmer the right to improve a variety even if he or she does not own land.

Dr. Shyamsunder Nair, MSSRF Trustee and a former Vice-Chancellor of the Kerala Agricultural University, said that the resource-poor marginal farmers and tribal people were the custodians of the bio-wealth and traditional knowledge. Massive efforts were needed to identify and preserve their knowledge passed over generations and they had to be compensated for conserving the knowledge, he said.

The M.S. Swaminathan Research Foundation's Community Agro-biodiversity Centre in Wayanad district, Kerala.-BY SPECIAL ARRANGEMENT

Devoting an exclusive chapter to farmers' rights, the Act deals with major aspects of protecting their rights, including registering farmers' plant varieties; recognising their knowledge for reward from the national gene fund; benefit-sharing by communities that preserve biodiversity; saving, using, sharing and selling protected varieties; claiming compensation for under-performing varieties; protecting farmers from legal proceedings; and requiring authorisation from farmers to use their varieties for developing them further.

The concept of farmers' rights was first conceived of by the Food and Agriculture Organisation (FAO) in 1983. However, its scope was limited to the right of farmers to save propagating material for re-sowing, exchanging and selling. Even the 1991 Conventions on International Union for the Protection of New Varieties of Plants (UPOV), the only international agreement on farmers' rights, recognises only this right.

Dr. Swaminathan said that no other legislation on plant variety protection, enacted anywhere in the world, had such wide- ranging provisions on farmers' rights as the Indian one. While the legislation was enacted in compliance with the provisions of the Trade-Related Intellectual Property Rights (TRIPS) agreement and the guidelines of the World Trade Organisation (WTO), it was also unique for its harmonious integration of the relevant principles from the Convention on Biological Diversity (CBD). The CBD has a number of provisions that deal with farmers' rights, including the principles of 'prior informed consent of farmers' to use their knowledge of plant varieties for research leading to intellectual property rights-protected technology and for sharing the commercial benefits arising from such technology. The present Act is based on the first Plant Varieties Protection Bill drafted by the MSSRF in 1994.

Under the Act, farmers' rights are divided into three categories - breeders, conservers and cultivators. As the majority of families of farmers are also involved in cultivation, their major rights under the Act include saving, using, resowing, exchanging, sharing or selling farm produce, including seeds. However, farmers cannot sell branded seeds protected by the Act.

Farmers who develop new strains through selection and breeding have the same rights as of a professional breeder. They can seek protection under the Act, provided the strains satisfy the criteria of "novelty, distinctiveness, uniformity and stability".

Farmers who conserve are mostly tribal and rural women and men. They conserve and select strain for local adaptation, concentrating on qualities such as resistance to pests and diseases, soil stress and water efficiency. Valuable genetic material, including medicinal plants, a range of millets, pulses, vegetables and oilseeds, that have been preserved by them form the basis for organised plant breeding and genetic engineering enterprise.

Dr. Swaminathan said: "Unless the efforts of the tribal people and rural conservers receive social prestige and economic reward, their knowledge will become vanishing wisdom." To address these issues, the Act provides for the creation of a plant varieties registry, which would document indigenous knowledge. It also recommends the creation of a national gene fund from which the conservers of genetic resources can be rewarded. The registry would help identify farmers or farm communities responsible for conserving the genetic knowledge.

To recognise indigenous knowledge, the Act insists on registering the ancestry of a material. Under the Act, any application for registering a new variety should contain a "complete passport data of the parental lines from which the variety has been derived along with the geographical location in India from where the genetic material has been taken and all such information relating to the contribution, if any, of a farmer, village community, institution or organisation in breeding, evolution or developing the variety".

A national gene fund is to be created from the compensation and contributions received from those using indigenous genetic material, the annual fee that is to be paid by the users by way of royalty, and the benefit-sharing amounts received from breeders.

In order to ensure that farmers receive their entitlements under the Act, it is imperative to create awareness among them about their rights and the access mechanisms. Realising this, the MSSRF developed the concept of a technical resource centre (TRC) for farmers in 1996. The TRC's activities include chronicling the contributions of tribal and rural families, organising an agro-biodiversity conservation of corps, developing multimedia databases, maintaining the community gene bank and herbarium, revitalising the genetic conservation traditions and establishing a legal advisory unit.

The TRC concept was given shape at the field level at "biodiversity hotspots" such as Kolli Hills (Tamil Nadu), the Jeypore tract (Orissa) and Wayanad. In order to help the communities to manage their own conservation, enhancement, and sustainable and equitable utilisation of their agro-biodiversity and genetic wealth, the MSSRF has set up a model Community Agro-biodiversity Centre at Kalpatta in Wayanad, located in the Western Ghats.

The activities of the MSSRF's Community Agro-biodiversity Centre include strengthening community conservation systems; enhancing livelihood security of tribal and rural families by understanding their contributions to sustaining biodiversity; linking up ecological security of the agro-systems with the livelihood security of communities; and helping them protect their rights. Dr. Anil Kumar, who heads the project, said that the centre's vision was to make every farmer's family in the region self-reliant and in order to achieve this, it was involved in research, extension and field-level action programmes.

Spread on two hectares of fertile land, the centre has a herbal garden and an organic farming belt that demonstrates and trains farmers in the methods and benefits of conservation and eco-friendly, low-external-input, sustainable agriculture (LEISA). Another priority of the centre is to protect paddy ecosystems to achieve food and employment security as well as to sustain the ecological chain.

Dr. S. Natesh, member-secretary of the National Bio-resources Development Board, said that the Board, set up two years ago, had started resource-specific (plants, animals, microbes and marine life) and region-specific (Himalayan, desert, peninsular, coastal and island and north-eastern ecosystems) inventories of bio-resources. Linked to the documentation of traditional knowledge is awareness generation.

Sumi Krishna, an independent researcher specialising in gender and environment, said: "The major problem is that the new rights are rooted in the old ones, which would only reinforce the existing divisions and old feudal institutions." She said that while implementing the Act it was important to understand that communities are not homogeneous. Moreover, cutting across institutions, with different power relations among them, there are ideological forms of control that suppress the rights of some minority communities. Although women play a major role in conserving knowledge, their access to resources is most often controlled. She said that such problems needed to be addressed while implementing the Act.

Dr. M.K. Prasad, Co-ordinator, Kerala Sastra Sahitya Parishad (KSSP), said that the Act should first be translated into all Indian languages and distributed widely. Prasad recommended, among other things, an awareness generation programme for lawyers, scientists and farmers and the setting up of a group of "bare-foot legal experts" to travel to rural areas in order to create awareness about the ramifications of the Act. He also suggested the preparation of manuals in all Indian languages on the procedures of registration and applying for claims from the gene fund, and on the reward system.

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