The Navara Rice Controversy

In India, Agriculture is the highest revenue generator for India’s economic system. The farmers have been given special position in society through farmer’s card under the farmers’ rights act. The farmers’ are given subsidy, a special exception under article xx of WTO and various other privileges under various policies and laws of central and state governments. Still, the Protection of Plant Varieties and Farmers Rights Act, 2001 gives special rights of registration to the inventor or rather improver of any superior quality of existing species of seed or other forms of plants. This special right of registration provides with proprietary right to the inventor of higher quality of the existing quality which is nothing but an improvement over prior art. The recent case of registration of improved variety of Navara rice has opened a Pandora’s Box for the impediments to farmer’s Right over the use of the similar or lower variety of the same species of rice.

The wide contribution of farmers from all the regions of the world for development and conservation of food and agriculture production has been recognized in the Article 9 of the International treaty.[1] The right of protection of farmer’s traditional knowledge, the right to share in the benefits derived accordingly, right to participate on related matters at the national level and right to save, use, re-use, exchange and sell farm-saved seeds are protected by the same. As for national security, Food security is important. A country that does not protect its own seed and food cannot secure its own nation.[2] The contribution of farmers has been virtually been ignored since the emergence of the concept of intellectual property rights extended to new plant varieties. The article questions the credibility of Protection of Plant Varieties and Farmers’ Act in the light of a current issue i.e. Navara Rice. Instead, the proprietary rights given to the inventor for an improvement over prior right are looked into. Farmers need special protection because country’s survival depends on it. Therefore, the importance of farmers cannot be undermined. Farmers have authority over the seeds regarding how to utilize them, save and re-use them. Here the question is, since farmers had customary rights to use, save and re-use the seeds of protected variety, don’t they have a better right? The intervention of law is necessary if they put restrictions on farmers to utilize their own customary rights.[1]

Facts of the Issue

A petition for registering Navara, a traditional medicinal rice variety under the Protection Plant Variety and Farmers Right Act, 2001 was filed by Mr. P Narayanan Unni, a farmer and founder of the Navara Eco Farm and Navara Foundation at Chittur in Palakkad.[2] Navara Rice unlike other rice varieties is deep red in color and has been cultivated for more than 2000 years in the Palghat region. In the last 40-50 years, it has come close to being wiped out as several new hybrid varieties had been introduced.[3]“The State Government of Kerala and Kerala Agriculture University (KAU) maintain that Navara is a traditional rice variety cultivated across the State” and so they are objecting the petition filed by Mr. P. Narayanan Unni, for registration of the Navara Rice.[4] Mr. P Unni, claims that the variety which is being cultivated by him is of an exclusive variety only belonging to Chittur and therefore it can be registered.[5]

Importance of the Issue

The Navara Rice Controversy i.e. whether it can be registered or is it ethical to register the same opens questions to the credibility of the Protection of Plant Variety and Farmers Right Act, 2001. There are many Farmers who are using similar or lower variety of the same species of rice and are having rights over such variety. In the present issue, Navara Rice is a traditional variety which has been evolved and cultivated by the local farmers in the Palghat region for many years. It would be impediment for other farmers rights if any single farmer gets such traditional variety patented under his or her name. Moreover, no database generally exists for traditional varieties as the same has been cultivated and evolved over decades. Since no database exists, the new variety which is claimed by any farmer cannot be compared with that of traditional variety. The Protection of Plant Variety and Farmers Right Act, 2001 fails to recognize the fact that a traditional variety is developed by many farmers over the years, even before the existence of this act and registration of an improved version of a traditional variety would be impediment to the farmers rights as they might be using similar or lower variety of the same species under different name.

Plant Variety Act does not protect farmers interest

Mr. P Unni request to register a traditional variety, Navara Rice has raised concerned regarding the loopholes in the Protection of  Plant Varieties and Farmers Rights Act. As per the researcher, it is an unethical move because of the following reasons:-

1. Due to lack of database, registration can be given to any individual who claims that they have developed the variety.

2. The act ignores the fact that different farming communities may be caretakers and custodian of the same variety, may be even by different names.

3. Such registration is made on the basis of first come first serve basis.

4. Farmers who are relatively well-off might get to know about the registration regime in the first instance itself and therefore get the variety registered.

All the above would deny the fact that contribution was made by others to conserve and maintain a variety.

The following remedies are suggested for the recognition of the farmers rights :

(1) To improve the method of data collection of authority of Traditional Varieties:

In the act, it is the function of the authority to collect data of varieties so that distinction can be made. Though the law is well intended, but such phrasing only makes it the duty of the authority and does not explain any criteria where the database is needed to be available for the purpose of distinction.

(2) Protection against innocent infringement:

When such registration of traditional variety is made, it affects the rights of the farmer communities who use it for their own purposes. Chances can also be that the farmers may already hold rights over the similar variety in different name and because of this, there can be unknown infringements of breeders rights. Therefore, guidelines are needed to be given for violations of breeders right within the act.

(3) Liberal right should be given to farmers if registration is to be permitted

If registration of a traditional variety is to be permitted in the absence of data of traditional seeds, then customary rights of farmers should be recognized who are using the similar or lower kind of the same variety. Such practice by them should not be recognized as violation of any breeders right, only after considering the facts and circumstances.

Looking at the impact made by the registration of a different version of Navara rice, it can be said that the Protection of Plant Varieties and Farmers Rights Act, 2002 is not able to protect rights of farmers who are using similar or lower version of the same variety. The act needs to recognize that India is country with rich history of agriculture and most of its innovations are not recorded as they are customarily used by the farmers. Different approach is needed to be taken in the case of traditional varieties and such approach has to be made proactively through interactions with the farmers community.

Author: Pranjal Gupta, BA LLB(Hons.), Symbiosis Law School, Pune (V Year), Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at niharika@khuranaandkhurana.com

References:

[1] FAO, 2012.Second Global Plan of Action for Plant Genetic Resources for Food and Agriculture Adopted by the FAO Council, Nov 29 2011, paragraph 18(e).

[2] Vol. 35, No. 11,Sahai, S. (2000). Farmers’ Rights and Food Security.Economic and Political Weekly, (Mar. 11-17, 2000), pp.pp. 878-880.

[3] Carlos M. Correa et al., Plant Variety Protection in Developing Countries: A Tool for Designing a Sui Generis Plant Variety Protection System: An Alternative to UPOV 1991, APBREBES, 2015.

[4] Shaji, K. (2018). Navara lands in IP rights row.The Hindu.(Sep. 8, 2018), https://www.thehindu.com/news/national/kerala/navara-lands-in-ip-rights-row/article24017583.ece.

[5] Balachandran, P. (2015). Navara, the rice that cures.Downtoearth.org.in. (Sep. 9, 2018) https://www.downtoearth.org.in/coverage/navara-the-rice-that-cures-2521.

[6] The Times of India.(2018).Kerala to safeguard IP rights of Navara rice – Times of India.(Sep. 12, 2018, 3:31 PM), https://timesofindia.indiatimes.com/city/thiruvananthapuram/kerala-to-safeguard-ip-rights-of-navara-rice/articleshow/64352264.cms.

[7] Sushma, M. (2018).Navararice controversy: Plant Variety Act doesn’t protect farmers’ interests, say experts.Downtoearth.org.in. (Sep. 11, 2018, 4:40 PM) https://www.downtoearth.org.in/news/navara-rice-controversy-plant-variety-act-does-not-protect-farmers-interests-say-experts-60728.

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