India has taken the consistent stand that the UPOV Convention is unsuitable for the country's needs, yet it has adopted the UPOV model in large measure in formulating the Protection of Plant Varieties and Farmers' Rights Bill that is before Parl iament. A critique of aspects of the Bill.PHILIPPE CULLET
THE introduction of the Protection of Plant Varieties and Farmers' Rights Bill in Parliament was a direct consequence of India's ratification of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires its signatorie s to introduce mechanisms to ensure plant varieties protection through either patents or an alternative system. TRIPS basically invites member-states to conform with existing practices in the developed countries, which introduced plant varieties protecti on before 1994 in the form of either patents or plant breeders' rights. Both patents and plant breeders' rights are monopoly rights that seek to give the private sector incentives to enter the seed business. The main difference between the two is that th e latter provides rights which are less extensive than the former. In effect, plant breeders' rights reflect a compromise between the demand for plant varieties protection coming from the private sector and the traditional practice of free exchange of in formation in agricultural management. Plant breeders' rights do not constitute an alternative to patents but only provide a lower level of protection to commercial breeders.
In India, the protection of plant varieties through intellectual property rights has historically been denied as is reflected in the Patents Act of 1970. The twin rationales for this denial were that food security is a basic need whose fulfilment should not be governed by private commercial interests and that information in agricultural management has always been shared freely among farmers and farming communities. The introduction of plant varieties protection thus constitutes a significant departure f rom the existing regime.
As specified in the TRIPS Agreement, India and other developing countries which had not introduced mechanisms for plant varieties protection before 1995 must protect plant varieties but have the liberty to choose whether they want to introduce patents or provide an alternative form of protection. TRIPS does not give any indications concerning the kind of alternative system that member-states may want to set up. India is thus free to choose its own protection system.
Even though TRIPS does not bind states to adopting any given system, a number of states have decided to fulfil their obligations regarding plant varieties protection by ratifying the International Convention for the Protection of New Varieties of Plants (UPOV Convention). This convention is the main international agreement defining plant breeders' rights. As noted, plant breeders' rights and patents are conceptually similar and the European countries signed the UPOV in 1961 with the specific aim of prov iding incentives to the private sector to enter the seed business. It is significant that the UPOV Convention was developed specifically to suit the conditions and needs of European agriculture, which differ markedly from those of a majority of the devel oping countries where agriculture constitutes the central economic activity. The convention has been revised twice, in 1978 and 1991. On both occasions, the revision aimed at strengthening the rights of commercial breeders and conversely reduced the righ ts and privileges of farmers.
The UPOV Convention constitutes an alternative to patents insofar as plant breeders' rights provide slightly weaker rights to commercial breeders. However, it does not recognise farmers as breeders, does not provide for rights of farmers over their varie ties, implies that plant varieties are developed in laboratories and assumes that the development of plant varieties is only undertaken for commercial gain. It thus provides a partial framework which is inherently incapable of granting rights to farmer-b reeders despite the fact that an overwhelming majority of seeds planted in India are farm-saved seeds. Since TRIPS leaves member-states to choose their own system of plant varieties protection, it is evident that countries such as India where agriculture provides employment to at least two-thirds of the working population should adopt a system adapted to their own needs and requirements, something that UPOV cannot achieve.
India has for the time being refrained from joining UPOV. Further, the government has indicated that it wanted to devise its own legislation for the protection of plant varieties and that it did not think the model provided by UPOV was suitable for the c onditions prevailing in this country. The Bill needs to be analysed against this background.
The draft Bill mainly purports to introduce plant breeders' rights which are meant to provide protection to formal breeders' plant varieties. It is significant that the Bill does not attempt to provide an indigenous definition of these rights but derives its provisions nearly word for word from the UPOV Convention. Despite the government's stand that UPOV is not suitable for this country, the Bill goes even further and takes some of its most central provisions from the latest version of the convention w hich broadens the scope of breeders' rights and conversely reduces the rights and privileges of farmers. The criteria for registration of a plant variety are, for instance, taken directly from UPOV 1991.
The title of the Bill leads one to believe that it provides in equal measure for farmers' and plant breeders' rights. In reality, the Bill devotes a single short provision to the definition of farmers' rights while it defines plant breeders' rights at le ngth. Further, the rights provided are so weak that their complete absence from the text would possibly be more appropriate. Indeed, the Bill does no more than protect the rights of farmers to save, use, exchange, share or sell their produce of a protect ed variety. In other words, the Bill only seeks to grant farmers rights over the crops they have grown. This right is so basic that there should be no need to restate it. Also, it sidelines seeds which should be central in this piece of legislation.
It will be useful to compare the section of the Bill with the current draft article on farmers' rights of the revised International Under-taking on Plant Genetic Resources currently being negotiated in the Commission on Gene-tic Resources for Food and Ag riculture of the Food and Agriculture Organisation (FAO). The rights recognised in this provision include the protection of traditional knowledge, the right to participate in sharing the benefits arising from the use of plant varieties and the right to p articipate in making decisions concerning their management. This article also recognises that no limits should be imposed on the rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material. It is significant that the Bil l uses the same formulation but in a much more restrictive manner since farmers do not get these rights concerning their seeds but only their crops.
While the basic framework of the Bill does not go anywhere near devising an indigenous system that recognises the importance of farmers in the management of plant varieties, the non-commercial motives that may exist for bringing about improvements in pl ant varieties or the need to protect local actors from multinational companies in order to secure food security at the local and national levels, the Bill includes a number of provisions which do not arise out of the UPOV model. The Bill provides for ben efit-sharing and provision for compensation. Benefit-sharing is meant to provide individuals or groups the possibility of receiving financial compensation when their genetic material has been used in the development of a protected variety.
The Protection of Plant Varieties and Farmers' Rights Authority to be set up under the Bill is to be entrusted with operationalising this provision. Once a variety is registered, it must first invite claims and decide whether benefit-sharing is due and f ix the quantum of financial compensation to be given. Another provision allows communities to file claims for the contribution they have made to the development of a protected variety. In this case again, the Authority will have the discretion to dispose of the claim.
In themselves, the provisions for benefit-sharing and compensation are significant since they imply a recognition of the fact that protected varieties are often developed on the basis of other existing varieties developed by farmers over time. Both are h owever subject to significant criticism since they replace property rights by a form of financial compensation whose allocation is to be decided unilaterally and freely by the Authority. Further, in the case of benefit-sharing, the claimants can neither stop the registration of the variety nor claim property rights on their own varieties. Indeed, compensation is only offered for material contributed and not for knowledge and there is thus no recognition in the Bill of any intellectual contribution to th e development of a variety by farmer-breeders. More generally, the problem is that there is no provision in the Bill for obtaining the prior informed consent of farmer-breeders. Claims can only be made after a variety is registered. There is no participa tion before that stage and no right to intervene at the point at which a commercial breeder is making an application for registration.
Finally, the Bill puts the burden of the claim on the claimants. This is problematic because it is far from certain whether information concerning the registration of a given variety will easily reach the people and communities which may have a claim for compensation or benefit-sharing.
Some of the other interesting features of the Bill include a specific ban on the registration of any variety containing technologies such as the 'terminator technology' which are injurious to the life or health of human beings, animals or plants. The Bil l, however, lacks a broader provision on the need for an impact assessment of all varieties whose registration is sought.
Overall, it is clear that the Bill should be given a new direction if it is to benefit, besides big commercial breeders, all actors involved in plant varieties management, including farmers and farming communities. Plant breeders' rights like patents ten d to reward only innovations which are the most advanced technologically and grant all the benefits to a single actor. They also participate directly in the process, leading to the privatisation of common and state resources and will thus have a dramatic impact on food security for crores of farmers. At a minimum, a new framework recognising both plant breeders' rights and farmers' rights as equivalent and concurrent rights should be adopted, as already proposed in the context of the FAO a decade ago.
It is clear that plant varieties management is not the only area where India's interests are at stake following the ratification of the TRIPS Agreement. However, it is one of the few areas where TRIPS gives countries some margin of appreciation in decidi ng how to implement their obligations. In the case of pharmaceuticals, for instance, all countries have to introduce product and process patents and no country is given the option of evolving a different scheme. The possibility offered by TRIPS specifica lly to allow countries which did not have a mechanism of plant varieties protection in place before 1995 to devise a system fitted to their needs should be fully utilised. Adopting the UPOV model cannot be an appropriate response to the needs of this cou ntry. Further, the widespread adoption of UPOV by developing countries would only contribute further to the standardisation of norms adopted in the developed countries, something that India tends to reject in international forums.
The Protection of the Plant Varieties Bill was introduced in December ostensibly to allow India to comply with its obligations under the TRIPS Agreement by the January 1, 2000 deadline. Following the breakdown of the talks in Seattle, it is agreed that t he deadlines previously adopted do not currently apply. There is currently no pressure now from the World Trade Organisation (WTO) to rush into adopting this Bill. Apart from the need for further work to devise a system of protection adapted to local con ditions, it is imperative that both the Protection of Plant Varieties Bill and the proposed Biodiversity Bill should be considered simultaneously and harmonised. Indeed, the Biodiversity Bill proposed by the Law Commission would apply to all life forms a nd a number of provisions of the current text are definitely at variance with the regime proposed for plant varieties.