Tripping in Front of UPOV: Plant Variety Protection in India
By Dwijen Rangnekar, Published in Social Action - 48(4) Oct-Dec 1998 pp: 432-451
Plant variety protection (PVP) legislation in India has been initiated under the pressure of the TRIPs agreement which itself has made it politically difficult for any government to democratically enact. Simple-minded political opposition aside, the content of the various draft legislation makes it patently unpopular with the farming community. As such there is need to examine the draft legislation in terms of the socio-economic structure of the main constituent, the farmers, that will be affected. In this sense, it is necessary to understand the political economy of International Convention for the Protection of New Varieties of Plants (UPOV), the model underlying India’s draft legislation, and the manner in which plant breeders’ rights (PBRs) have evolved since their inception in 1961.
The article aims to study the Indian draft legislation on PVP in the context of the changes that have undertaken at UPOV. The first section is devoted to the political economy of UPOV where its sui generis status is investigated alongside an exposition of the significant revisions to the Convention. This is followed by a discussion of the changes in the scope of protection of PBRs. The final section is devoted to the Indian draft PVP legislation.
Historical and Political Developments in Plant Variety Protection
Creating a sui generis Legislation
Intellectual property rights (IPRs) in plants have a relatively short history, compared to industrial patents, with efforts only beginning in the 19th century. The 1930 Plant Patent Act (USA) covering asexually propagated species only, first emerging as a bill in 1906 (Bugos and Kevles 1992), was the first patent act for plants internationally (Fowler 1994). Similar efforts in European countries led to a variety of legislative developments beginning in the 1920s. Case law in Italy (1948-50) established new plant varieties as "industrial results" enabling their protection through patents (Wuesthoff and Wuesthoff 1952).
These developments apart, the notion of industrial property enshrined in the Paris Convention for the Protection of Industrial Property of 1883 (henceforth, the Paris Convention) was expansive and included agricultural products:
Despite the wide notion of industrial property the interpretation of law had "developed one-sidedly" (Wuesthoff and Wuesthoff 1952). The body spearheading the breeders’ demand for IPP, the International Association of Plant Breeders for the Protection of Plant Varieties (ASSINSEL), favoured patents as the preferred mode of seeking IPP for breeders right up to the mid-1950s (Heitz 1987; Pistorius and Wijk forthcoming; Rangnekar forthcoming). ASSINSEL repeatedly canvassed the International Association for the Protection of Industrial Property (AIPPI) to gain explicit inclusion of plant varieties in the Paris Convention and simultaneously to promote the necessary legislative changes within member countries (Heitz ibid.; Laclaviëre 1965). These efforts culminated with Wuesthoff and Wuesthoff’s (ibid.) report to AIPPI’s 1952 Congress which noted that "for a large part of their creations, the plant breeders’ require a special protection, but they also require patent protection for their most important inventions"; thus recommending an amendment to art. 1(2) of the Paris Convention so as to explicitly identify "rights in the plant breeding field". The final verdict at this Congress was mixed (Heitz ibid.) and not unambiguously supportive of the breeders’ demands for patent protection, as suggested by some commentators (see Bent et al. 1987: 50-2).
AIPPI remained resistant to widening the notion of industrial property through an explicit inclusion of plant varieties. In the AIPPI Congress of 1947 the British delegation insisted on the non-patentability of plant varieties (Heitz 1987: 78-80). Further at the 1954 AIPPI Congress discussion on plant patenting was minimal (Heitz ibid.; Laclaviëre ibid.). This was disconcerting given that a conference for revising the Paris Convention was slated for 1958. As a consequence of AIPPI’s position, no delegation to the Conference for the revision of the Paris Convention placed the subject of plant varieties on the agenda (Heitz ibid.). It is the series of such actions on the part of the patent-lobby that prompted the breeders’ to strongly focus on alternative methods of protecting their `inventions’.
In addition to the above political resistance there remained unresolved issues in the request made by breeders. For example, the subject matter of protection, the plant variety, was not easily definable and only in 1958 did the International Code of Nomenclature for Cultivated Plants agree on an acceptable definition for a cultivar:
Also, while the scope of protection offered to breeders differed across European countries, there were no standardised methods for identifying varieties and testing their distinctiveness. These factors remained as hurdles in fulfilling patent law requirements of disclosure, novelty and enablement (UPOV 1984). Plant varieties were generally created by non-reproducible methods, where neither the method nor the end product could be adequately described. These problems were compounded by the perception that breeders 'work with nature,' thus, placing doubts on the inventiveness of the breeder. It was only in the mid-1950s that a harmonised seed certification was established in Europe. The definition for cultivars, noted above, provided the legal foundation for plant varietal protection (Fejer 1966), thus paving the route for the triple criterion of distinctness, uniformity and stability of UPOV.
It is in light of these problems confronting the breeders’ lobby that ASSINSEL proposed to the French government to host an international convention to discuss the principles of a system for the protection of plant varieties in 1956 (Heitz 1987: 82; Laclaviëre 1965). This meeting took place in 1957, and after four years of discussion the UPOV was signed.
Simultaneous to these developments were moves to harmonise specific aspects of patent law across Europe under the auspices of the Council of Europe (estb. 1949). The issue of protecting plant varieties was noted but maintained as distinct from industrial property (Bent et al. 1987: 64). It was felt that the UPOV would be better placed to deal with such matter; and as a consequence, the final form of the agreement harmonising patent law across Europe, the Strasbourg Convention (1963), had article 2 as follows:
The dichotomy and separation of `micro’- from `essentially’-biological was later carried forward into the European Patent Convention as article 53(b), which establishes the limits of patentable subject matter as a legal principle (Crespi 1983: 203; Straus 1987: 724). In line with this development demarcating the spheres of activity of patent law, UPOV erected itself as a sui generis form of protection dedicated to plant varieties; a principle captured in article 2(1) of the founding convention where a ban on double protection was articulated. As such, the same species cannot be protected by patents as well as 'special title of protection,' i.e., breeders’ right.
The 1961 Act: Containing the Scope of Protection
The 1961 Act of UPOV largely clarified and harmonised prevailing practices in seed-related legislations across Europe. For example, the Dutch Scheme of 1941 provided PBRs with "exclusive right to put on the market propagation material, described as "original" or "elite" of the variety ". Similarly, art. 5 of UPOV 1961 provides an exclusive right over the commercial production and marketing of the reproductive or vegetative propagating material of the protected variety. This scope reveals a double contingency that restricts the commercial space of protected plant varieties: firstly, any infringing act must necessarily be commercial, and secondly, the transaction must necessarily involve the propagating material of the protected variety. Hence, the researchers’ exemption and the farmers’ exemption in PBRs law.
Under the research exemption clause a protected variety may be used in competing breeding programmes as long as subsequently derived varieties do not require the repeated use of the protected variety for it’s production. This notion of dependency, related largely to the breeding of F1-hybrids, is relatively weak compared to patent law (Royon 1980; Straus 1984; Bent et al. 1987), prompting one commentator to term UPOV 1961 a `copier’s charter’ (Byrne 1989). The second exemption from the scope of protection relates to the use of farm-saved seeds (FSS) by farmers. It was argued, for example by the Committee recommending PBRs in the UK, that charging a royalty on the use of FSS would effectively be forcing farmers to pay a `fee’ twice (Committee on Transactions in Seeds, 1960). Since the use and exchange of saved seeds was considered non-commercial, the activity was considered outside the scope of PBRs.
The 1991 Revision: Eliminating the sui generis Status?
As a preface to the 1991 revision of UPOV we consider the changes effected in 1978 which was enacted to enable the entry of the US into the UPOV-fold (Royon 1980; Beier, Crespi and Straus 1985; Christie 1989; Bugos and Kevles 1992). The essential amendment, art. 37(1), allowed member states to provide patent and/or PBRs protection for the same genus or species, on the condition that these provisions existed prior to the "end of the period during which this Act is open for signatures" (i.e., 31 October, 1979, art. 31). The amendment was necessary to accommodate the US Plant Patent Act, 1930. This amendment is the first step towards eliminating the line of demarcation between patents and PBRs, i.e. the raison d’etre of the UPOV.
A series of developments through the 1980s set the stage for a major overhaul of the UPOV system such as: (a) litigation in the US brought forward by seed companies aimed at curtailing the FSS exemptions began in the mid-1980s (Hamilton 1993; Seay 1993; Smith 1996); (b) US court decisions relating to patentable subject matter, such as the Diamond v. Chakravarty decision of 1980 and the Ex parte Hibberd verdict in 1985; (c)developments in Europe, such as the Directive for the Protection of Biotechnological Inventions and the draft Community Plant Variety Rights, both being introduced in 1988; and (d) the conflicting pressures of developments in the FAO’s International Undertaking, the Uruguay Round and the Rio Convention. Among the many changes the were effected through the 1991 revision of UPOV, the one discussed here is the revocation of the ban on dual protection.
Art. 2(1) of the 1961 Act required only one form of protection, patents or special title of protection, for a particular species or genus which Straus (1984) interprets as leaving it upon implementing states to determine the preferred instrument of protection. Further, Straus (ibid.) speculated that the Chakravarty decision would lead to the patenting of (genetically-modified) plants, thus placing pressure for the revocation of the ban on dual protection (art. 2). This perception was favoured by the OECD (Beier, Crespi and Straus 1985) as well as independent legal commentaries (e.g. Bent et al. 1987; Bloom 1988; Christie 1989; Crespi 1983, 1986, 1989; Straus 1988) and countered reasoned critiques from different perspectives (e.g. Gfeller 1988; Heitz 1988; Lange 1985; Llewelyn 1989). Biotech-based breeding companies were concerned with the manner in which patented gene constructs incorporated in plant varieties might be used in subsequently derived varieties (e.g. Duesing and Raeber 1989). As a consequence of this pressure the 1991 Act entirely revoked art. 2(1) and instead merely required member countries of the Convention to "grant and protect breeders’ rights" (art. 2), i.e. without mentioning the issue of alternative instruments of protection.
The implications of this particular revision is that henceforth the clear demarcation between the spheres of activity of PBRs and patents does not remain. Taking account of the changes in the scope of protection offered by UPOV 1991 (see below), most breeding companies and association favour it as the minimum interpretation of the sui generis clause in the TRIPs agreement (art. 27.3[b]) (van Wijk 1998). While there is substantial pressure from the North and MNCs in seeds to introduce plant patents via the TRIPs agreement, van Wijk (ibid.) notes that the term `effective’ in art. 27.3 (b) will largely be interpreted as UPOV 1991. It is this point that policy makers and interested parties in India and other developing countries need to comprehend and accept as a reality while formulating their respective sui generis legislations. Before exploring the developments in India it is useful to identify the critical trends that have been charted through the enhancement of PBRs since their inception at UPOV in 1961.
Trends in the Development of Breeders’ Rights
For the discussion here the article notes four interrelated aspects of the development in PBRs in the last four decades.
UPOV was initiated under the drive to harmonise IPP of plant varieties within Europe. It gradually expanded to include other developed and industrialised countries. Recently, under the pressure of the TRIPs agreement developing countries have become members or provide comparable forms of protection (e.g. the Andes Pact Countries). Even India has considered signing onto UPOV 1978 (Anon. 1995; Singh 1996). With the pressure of the TRIPs review process there is even greater pressure for the sui generis interpretation of "effective" to reflect UPOV 1991 (Seiler 1998; van Wijk 1998).
One of the striking features of UPOV, when compared to other multilateral agreements such as the Paris Convention, is its rather clear-cut guidelines for ratification (Smith 1965), thus leaving limited room for national latitude in implementation (Bent et al. 1987: 57). Member countries implementing the provisions of UPOV must necessarily provide the defined scope of protection (art. 5) and extend the provisions of PBRs to the prescribed list of species and genus at the defines speed (art. 4). These principles reinforce the drive to harmonise standards of protection across the member countries. Now, with the inclusion of IPRs in GATT enforcement of a harmonised regime across a wider geographical space will be possible, given the provisions for cross-sectoral retaliatory action in the Final Act of the Uruguay Round.
When UPOV was instituted in 1961 the list of protected species and genus totalled only 13 which expanded to 24 in the 1978 revision. Variations in the list of protected species reflected differing national priorities (Official of the UPOV 1991), creating problems for national reciprocity. The 1991 Act solves this problem by demanding all ratifying members to provide protection to all plant species, new members are given a transitional period of 10 years to fulfill this obligation (art. 3).
The scope of protection offered under the 1991 Act is much wider than its predecessors, even a supporter of enhanced protection like Byrne (1993) agrees that it offers `patent-like’ protection without demanding the taxing requirements of novelty and disclosure of patent law. There are two aspects to the enhanced protection worth noting: (a) redefined technological territory and (b) modified commercial space. The disclosures and claims included in a patent application establish the technological territory of the invention, i.e. demarcating the (technological) boundaries of the invention (Merges and Nelson 1990). Under PBRs, the subject matter of protection is the plant variety itself and defined by the distinguishable characteristics of the plant through field trials over a number of generations. Thus, the borders (i.e. technological territory) of a plant variety are established by the distinguishing characteristics of the plant at the time the grant is made (Murphy 1979; Bent et al. 1987; Byrne 1989). Under the 1991 revision the borders of a protected plant variety are not immutably fixed. Rather, with the notion of essentially derived varieties (EDV) (art. 14) a breeder can widen the technological territory to include close substitutes as long as the substitutes retain the "expression of the essential characteristics that result from the genotype or the combination of genotypes" of the protected variety.
The commercial space of a plant variety relates to the transactions that fall within the legal rights of the breeder. Under the 1961 Act this was restricted to commercial acts involving the reproductive material of the protected variety giving rise to the researchers’ and farmers’ exemptions. Three changes established by the 1991 Act modify the commercial space of varieties. Firstly, the research exemption clause now hinges on the notion of EDV. While the use of protected varieties in competing breeding programmes continues, the derived varieties will be granted protection only if does not infringe on the technological territory of the (initial) variety (art. 14). Secondly, the exemption granted to farmers to use and exchange FSS has been reduced to an optional clause and left to legislating states to decide how they will implement the provisions "within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder" (art. 15). In the UK, farmers, breeders and merchants have agreed to royalty rates of 53% on FSS (Coghlan 1991) while on an EU-wide basis the rate will be about 40% (Tiedje 1996). In the US, while farmers’ were permitted to sell saved seeds of a protected variety under the `plantback’ option of PVPA, now they can only save seed of an amount needed to replant a crop (Hamilton 1993). Finally, UPOV 1991 also grants rights to the breeder in the harvested product as well as `products made directly from harvested material’. This novel introduction in PBRs reflects the pressure of biotech companies where the effort is to widen the sphere of accumulation while also enhance control over subsequent disposal of biotech products. Hence, a breeder of fruits with increased juice content or a particular vitamin combination will be able to interlink and earn returns from farmers using the variety as well as downstream juice processors.
A proper understanding of the manner in which the sui generis status of UPOV has been undermined as well as of the tendencies underpinning the enhancement of PBRs is necessary while formulating national legislation.
Development of Plant Variety Legislation in India
Discussion regarding PVP legislation in India began only after issues came to a head at the Uruguay Round in the early 1990s when the Dunkel Draft was circulated. Efforts at initiating national debate were stalled to some extent by the lack of adequate information and understanding of the parameters of a sui generis system for the protection of plant varieties. NGOs like Gene Campaign, Research Foundation for Science, Technology and Ecology, and Karnataka Rajya Ryota Sangh have been at the forefront in generating awareness regarding the relevant issues. For example, Gene Campaign undertook a major `educational’ campaign, in 1993-94, across the nation to mobilise farmers against the provisions of the Dunkel Draft. During this campaign one key demand was for a national debate and special Lok Sabha session on the Dunkel Draft before the deadline for signing (15 December, 1993) (Anon. 1993a, 1993b). Further, this group also sponsored a memorandum addressed to PM P. V. Narishima Rao, signed by a range of prominent citizens, urging a Parliamentary session on the Dunkel proposals, pending which the government should not to sign the Final Act (Anon. 1993a).
A first draft of the proposed PVP legislation emerged in early 1994. This was roundly criticised for being, among other reasons, closely in conformity with the UPOV model and hence not suitable for Indian agriculture (Sahai 1994; Shiva and Holla-Bhar 1993). However, the bill not find favour in Parliament. Later, the Agriculture Ministry expressed the desire for signing onto UPOV 1978 which some rationalised as enabling Indian breeders’ to protect their work from being plagiarised elsewhere (Anon. 1995). The UPOV bug persisted and the Ministry prepared another draft which was circulated amongst a expert group consisting of M. S. Swaminathan, Suman Sahai and B. K. Keayla in August 1996. At this stage, the draft included provisions for seed multiplication so as to protect farmers from seed companies (Singh 1996). With the changes in government and the inevitable political conflicts within coalitions groups and between those in and those out of power, the PVP legislation was left on the back-burner for some time. A new version, titled the Plant Variety Protection and Farmers’ Rights (PVPFR) Act was presented by the Agriculture Ministry in April 1997. This version was also widely criticised, following which the Agriculture Minister, Chaturanan Mishra, established an expert group, consisting of public breeders and scientists, NGO-individuals, and academics, to propose amendments. It is a sorry state of the democratic process as well as a reflection on the status of `expert groups’ that the Chaturanan Mishra decided to by-pass the major recommendations and deletion and thus proceed with a `in-tact’ draft to the Cabinet (Shiva 1997a) which was then approved (Sharma 1997). However, a group of Parliamentarians in Rajya Sabha, organised under the Forum of Parliamentarians on Intellectual Property, who earlier stalled the Patents (Amendment) bill on a number of occasions, have expressed their opposition to the PVPFR (Gupta 1997).
The political reality of the changes any incumbent government has to effect after India signed the Final Act is stark. The chances of finding wide consensus and approval, not only in the chambers of power, but on the streets and fields of this country are thin. More so, when the democratic process is not duly respected.
Substantive Details of PVP for India
Laws are promulgated in the nation’s self-interest and it is in these terms that one should examine the provisions of the proposed PVPFR bill. As a fundamental premise, any legislative effort pertaining to plant genetic resources must reckon with India’s status as a "germplasm-owning country" (Sahai 1994). Taking this into consideration, it is suggested that seed companies must necessarily pay for germplasm used as a pre-condition for getting protection for new varieties (Sahai ibid.; Shiva 1997b). This perception is reflected in Chaturanan Mishra’s expert group recommendation that contributions to the National Community Gene Fund include royalty payments for the use of farmer and extant varieties (Shiva 1997a). However, this is not incorporated in the final draft.
The second important consideration for this legislation is the predominant nature of agriculture in India. While farming is a very heterogenous practice in India, it also provides sustenance to the largest segment of the our masses. The apex and central fulcrum of agriculture is the seed which sets the productivity limits for all other inputs. It also provides the link between succeeding harvests. Looking at the seed replacement rates, the rate at which fresh seed stocks are purchased, in India gives an indication of the dynamics of seed sourcing. The very low seed replacement rates (e.g under 2% for wheat) is indicative of the tradition of multiplying seeds and disseminating them through farmer-to-farmer exchange networks (Menon 1994). It is this lifeline that accounts for 70% of domestic seed requirement which will be threatened by a regressive PVPFR legislation. As such, Menon (ibid.) argues that it is not only the widely noted right of farmers to save, exchange and sell seeds that is crucial, but also the right to multiply seeds.
Related to this feature of the seed network is the position farmers occupy in the matrix of the seed-system. Not only are farmers consumers of seeds, but they also act as the producers of seeds (Sahai 1994). The very act of selecting varieties for multiplication as seeds to use as reproductive material for a crop involves a range of breeding decisions. Considering these factors would suggest a nuanced conceptualisation of the farmer-breeder relationship and an equitable balance of economic power between these disparate groups. How does the draft legislation consider farmers?
Shiva (1997b) notes three critical ways in which PVPFR undermines a credible concept of farmers’ rights. Firstly, the very definition of farmers (art. 2[x]) recognises only two separable activities, viz. farmers as cultivators and farmers who conserve "wild and folk varieties", thus disregarding the role of farmers as breeders. Secondly, the proposed definition of EDV (art. 2[vii]) does not give farmers’ varieties a status comparable to industrial breeders, which Shiva (ibid.) contends would legitimise bio-piracy. Thirdly, the scope of farmers’ rights (art. 17) is restricted to the exchange and sale of "farm produce" while clearly maintaining the "sale for reproductive purpose" outside the limits of farmers’ rights. This, following Menon’s (1994) observations regarding the seed-exchange network, would jeopardise the lifeline of agriculture and threaten the sustainability of the farm economy.
Further, the draft legislation, as noted earlier, failed to incorporate some key suggestions proposed by the expert group which are worth noting here. The expert group recommended the protection for "new varieties" be contingent on the payment of a prescribed fee, a point made earlier by Sahai (1994). This collection would have been one of the sources of funds for the proposed National Community Gene Fund. However, the government has decided against this proposal. Instead the Fund will depend on (a) government grants, (b) donations, (c) portion of the registration fee, and (d) any levy on seed sales that the government introduces (art. 18). A careful reading of the sources financing the gene fund will make clear that it will be farmer-cultivators (defined in art. 2[x]) who will be made to bear the financial burden of "recognising and rewarding the contributions of farmer-conservers" (art. 18[iii]). The reasoning is simple, any levy on seed sales will be substantially passed onto the consumer (i.e. farmer-cultivator), which unlike a royalty on seed sales can be incorporated into seed prices. It would have been better to include royalties on the use of farmer-varieties and extant varieties as one of the central financial sources for the Fund as proposed by the expert group (Shiva 1997a).
According to the draft legislation a PVPFR Authority will be constituted to administer details of the draft legislation which include the Fund and be composed largely of individuals with an agriculture background (art. 4, 18[v]). The expert group recommended wider public participation in the constitution of the Authority such that it include representatives from the Ministry of Environment, farmers’ organisations and agri-biodiversity based NGOs (Shiva 1997a). The suggested composition would have provided the Authority with a degree of public participation and transparency which would have enabled greater democratic approval; however, the Agriculture Ministry decided against accepting this recommendation of the expert group.
There are a couple of additional features of the draft legislation that the existing literature has not yet addressed. Art. 5 makes marketing of seeds of variety contingent on it being entered in a seed catalogue. While this is laudable in its own right there are additional factors that must be considered before either granting protection and/or permitting marketing. The draft legislation apes the UPOV laws in making distinctness, uniformity, stability and commercial novelty as the sole conditions for granting protection (art. 6). As such, there is no criteria of merit either in terms of agronomic factors or biodiversity considerations that are required for gaining protection or market-entry. Here it is necessary to note that EU countries use a supplementary, though legally-independent, legislation of National Listing that requires agronomic merit tests as a pre-condition for market-entry. Hence, even when a variety gains protection it often fails the merit test and does not enter the market. One of the consequences of National Listing is that many superfluous varieties are stalled from entering the market. While it is not being suggested that this piece of legislation should be copied, rather there is need to consider some form of merit-testing as a prerequisite for gaining protection itself. This will be useful in protecting agricultural productivity as well as to undermine spurious seed promotions by companies. For example, the potential to proliferate the market with near-identical varieties as a strategy to maintain product differentiation has been identified in the European context (Rangnekar forthcoming); this can be forestalled by making the grant of protection contingent on merit-tests.
The essay has outlined the development of PBRs at UPOV which illustrates the manner in which it’s sui generis status has been deeply eroded. The line of demarcation between patents and PBRs has been breached while the scope of protection granted by PBRs been made comparable to patents. The inherent tendency, now using the TRIPs agreement, is to gain wider harmonisation of regimes of protection with easier enforcement.
Unfortunately the legislative efforts within India have not taken the opportunity to interpret the sui generis option in the national interest. More disappointingly it has undermined the notion of Farmers’ Rights espoused in the FAO’s International Undertaking thus doing a disservice to the larger international community. Despite the state of affairs it is unlikely that the existing draft will translate into law. The manner in which successive governments have attempted to fulfill the obligations under the Uruguay Round are indicative of the stark difference of opinion on the `potential’ benefits that will accrue to segments of society. It will take much more imagination and definitely wider public participation before a bill reflective of national self-interest will emerge in Parliament.
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