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Anoop Mishra, an intern at Khurana and Khurana, Advocates and IP Attorneys, looks at the first piece of legislation in the world to protect the farmer and recognize his contribution in preserving the biodiversity and develop new plant varieties.
In order to comply with its obligations under the TRIPS Agreement, India has implemented The Protection of Plant Varieties and Farmers’ Rights Act, 2001. The objective of this Act is to provide for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants it has been considered necessary to recognize and protect the rights of the farmers for conserving, improving and making available any plant genetic resources. The Act aims to accelerate agricultural development in the country and stimulate investment for research and development. This Act by awarding such protection would ensure the growth of the seed industry in the country.
Section 16 of the Act specifies the persons who may make application for registration. They include any person who claims to be the breeder, successor of breeder, assignee of the breeder, farmer, group of farmers or community, any person authorized by the preceding persons or any university or public funded agricultural institutions.
There are three types of variety which are mentioned in the Act-extant variety, essentially derived variety and farmers’ variety.
The variety must be registered to claim protection under the Act in respect of varieties mentioned in section 14 of the Act. To be deemed registerable, the variety must be novel, distinct, uniform and stable. An extant variety needs to conform to the criteria of distinctiveness, uniformity and stability in order to be registered under the Act. Registration of a plant variety confers exclusive rights on the breeder/farmer to produce, sell, market, distribute, import or export such variety.
To determine novelty under the Act, it must be considered that the propagating or harvested material of such variety has not been sold or otherwise disposed of by or with the consent of its breeder or his successor for the exploitation of such variety 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 of such application.
For the purpose of distinctiveness, at least one essential characteristic of the new variety is different from the usual prevalent varieties. The sufficient uniformity must be maintained by the variety in respect of the essential characteristics if it is subjected to variation. The variety must be stable with regards to the essential characteristics when it is subjected to propagation.
The Plant Varieties Registry at New Delhi in 2011 suo motu considered the issue with regard to the time limit for registration of extant varieties whether from the date of notification of genera and species under section 29(2) of PPV&FR Act, 2001 or from the date of notification of Criteria of Distinctiveness, Uniformity and Stability of extant varieties in the Official Gazette by the Authority in the form of regulations under section 15(2) read with section 92(2)(c) of the Act.
This issue is related closely with the two notifications i.e. S.O. 1884(E) dated 1/11/2006 which was with respect to twelve crop species and the other notification is S.O. 2229(E) dated 31/12/2007 with respect to four species of cotton and two species of jute. Under both these notifications the Criteria of Distinctiveness, Uniformity and Stability for registration of extant varieties about which there is common knowledge and farmers’ variety forms part of extant variety as notified subsequently in the Official Gazette in 2009.
This issue is basically considered because previously the Registry has returned several applications for registration of extant varieties about which there is common knowledge on the ground that the time limit for filing application for registration of extant varieties of eighteen crop species notified earlier have expired after a period of three years from the date species have been notified.
As per section 29(2) of the Act the said notification applies only to the new varieties because Section 29(2) reads as follows: “The Central Government shall, by notification in the Official Gazette, specify the genera or species for the purposes of registration of varieties other than extant varieties and farmers’ varieties under this Act”.
Section 15 lays down the time limit within which the extant varieties must be registered if it satisfies the criteria of Distinctiveness, Uniformity and Stability. Section 24 of PPV&FR Rules, 2003 lays down the time limit for registrability of such extant varieties. As per this Rule, the extant variety must be registered within three years from the date of notification of varieties under Section 29(2) of the Act and farmers’ variety shall be registered within a period of five years from the date of notification of varieties under section 29(2) of the Act.
As per the Annual Report issued by Department of Agriculture and Co-operation; 568 applications were filed with PPV & FR Authority for registration of varieties of different crops, out of which 227 were for new varieties, 297 for extant varieties and 44 for farmers’ varieties. The maximum numbers of applications (266) were received for species belonging to family Poaceae which covers major food crops of the world, 259 applications of species belonging to family Malvaceae were received followed by families Fabaceae (38) and Tiliaceae (5).
In 2009 for the first time PPV&FR Authority has issued certificate of registration for two new varieties. Maharashtra Hybrid Seed Company (Mahyco) has got the male sterile and restorer line of Bread wheat registered as new varieties.
123 extant varieties have been registered in 2009-10. Out of 123 registration certificates issued during the year 2009-10, 107 belonged to ICAR, 11 were from Private Sector and 5 from different state Agricultural Universities. Registration certificates of these varieties were given to concerned breeder / organization / institution.
Three farmers’ varieties of rice viz. Indrasan, Hansraj and Tilak Chandan were granted registration, thus, making India the first country in the world to have done so.
The criteria for registration of variety of common knowledge was finalized by the PPV&FR Authority and published in the Plant Variety Journal of India and Gazette notified vide G.S.R.452 (E) on June 30, 2009. Applications of varieties, hybrids and parental lines under this category will undergo one year DUS testing. Varieties accepted so far under this category are undergoing DUS testing at different DUS test Centres across the country.
This Act is an Indian sui generis legislation; it is the legislation which provides an extensive protection to the farmers than any other legislation of any other country related farmers’ right.
The Act recognizes the farmer not just as a cultivator but also as a conserver of the seed and a breeder who has bred several successful varieties. Moreover, the Act will bolster plant-breeding activity in the private sector. The drawback is that farmers will not benefit uniformly because the corporate companies would focus on hybrid seed production which would involve technology backed farming. Farmers belonging to lower of middle class would not be able to match up due to lack of awareness, capital and skills. Multi National seed companies would always have the edge over farmers due to their patented or licensed technology in the agriculture sector.
The solution to these problems would be to increase expenditure of plant breeding technologies so as to reach out to the poor and increase awareness of biotechnology amongst the lower classes. In addition, pest and nutrient management technologies can be made popular among the farmers belonging to the small and medium sections of the society.