NOTE: The author has worked on biodiversity issues for several years, and is currently Coordinator of the Technical and Policy Core Group to formulate the Government of India's National Biodiversity Strategy and Action Plan. He is a founder-member of Kalpavriksh, a 20 year old environmental action group which has focused on issues of conservation and development, including policy matters related to wild and agricultural biodiversity. For a formatted Word version of this paper, please write ashish@nda.vsnl.net.in.

INTRODUCTION: WHAT SHOULD THE PLANT VARIETIES BILL ACHIEVE?

On December 14, 1999, the Government of India introduced into Parliament the Protection of Plant Varieties and Farmers' Rights Bill, 1999. Soon after, it was decided to have this Bill (PPV Bill, for short), examined by a Joint Committee of Members of Parliament. This Committee, chaired by Sahib Singh Verma, is currently seeking public inputs to the Bill, and is expected to finish its task by late February.

The urgent question before the Committee should be: does the PPV Bill meet the objectives that the Government claims it will, viz., improve India's food security by providing incentives for better and stepped up breeding of new crop varieties? Or does it actually lead the country away from such security?

This question cannot be answered without recourse to a more fundamental question: what constitutes a nation's food security? By now, it is clear that a simple aggregate figure of foodgrains output is not an adequate measure of food security. We need to know if this food is reaching where it should (especially to the poor), and if the costs incurred in producing this food are ecologically and financially sustainable within India's resources. The current models of agricultural development appear not to meet either of these indicators, even if they are resulting in higher aggregate foodgrains output. A third or more of the country's population still does not have enough quality food, or simply enough food, to eat. And increasingly, it is apparent that the enormous economic subsidies involved in fertilisers and other inputs, the country-wide degradation of soils and poisoning of water, the contamination of the food itself by chemical residues, the debilitating dependence of farmers on centralised bureaucracies and markets, and the reduction in diversity of seeds, livestock, and farm practices, are leading us more and more into a dead-end alley.

National food security can only be achieved if these issues are addressed. It would of course be unfair to expect any law to do this by itself, and I do not intend to take on the PPV Bill on all these counts. However, what is absolutely clear is that any legislation purporting to ensure "food security" by providing incentives for greater crop production, must be assessed in terms of not only whether it will indeed lead to greater production, but also what kind of crops, on whose lands, and to whose benefit? The production of new varieties, by the corporate sector, does not necessarily benefit farmers, especially when it ties them up to increasing dependence on markets and bureaucracies. Privatised intellectual property rights (IPRs), such as patents and plant breeders' rights, would only increase this trend, apart from raising ethical issues of IPRs on life forms. And past experience suggests that varieties developed in the formal sector often actually displace valuable crop diversity on farmers' fields. All this leads, in the long run, to greater instability, depedence, and unsustainability in farmers' lives…and hence in the national agricultual sector as a whole.

The litmus test then is: does the PPV Bill enable farmers to stand on their own feet (is it truly a "Farmers' Rights" Bill as it claims?), and the indigenous seed breeding and production sector to blossom in the service of the farmer and the nation's consumers? Will it actually lead us to greater food security?

Unfortunately, despite a number of progressive clauses in the Bill, the answer is a clear NO. The PPV Bill emerges as a legislation that will end up benefiting the large seed corporations, some very large farmers, and corporate farming agencies. In so doing, it will be playing into the hands of those in the international arena who pushed agreements such as WTO (and in particular, the Trade Related Intellectual Property Rights (TRIPs) regime). It will do little to facilitate genuine food security in terms of feeding the poor and ensuring sustainable agricultural production through protecting the rights of small farmers and the small-scale seed sector. This is a pity, because India could well exploit loopholes in TRIPs, and the solid mandate given to it by the international Convention on Biological Diversity, to push forward a boldly different plant varieties protection legislation. It can still do so, if the Joint Parliamentary Committee is appraised of these issues and willing to take cognizance of them.

ELEMENTS OF THE PPV BILL

Largely modeled on the 1978 version of the International Convention for the Protection of New Plant Varieties (UPOV), an agreement signed mostly by the industrial nations of the world, the PPV contains the following major provisions:

1. Registration of new varieties of plants, by their breeders, provided they fulfil the criteria of novelty, distinctiveness, uniformity, and stability;
2. Protection for registered varieties for periods ranging from 15 to 18 years (depending on the kind of plant variety); this protection would include the exclusive right to produce, sell, market, distributed, import, or export the variety or its propagating material, and to license other persons to do the same;
3. Deposition of sample seeds or propagating material by the applicant, with the government;
4. Exclusion of plant varieties from being registered if such exclusion is necessary for public purposes, or if the commercial utilisation of such varieties could threaten human, animal, or plant life or the environment in general; such exclusion could extend to entire genera/species;
5. Rights of researchers to use the registered variety for experimentation;
6. Rights of farmers to save, use, exchange, share, or sell the produce of, any registered variety (except selling for the purpose of reproduction under commercial marketing arrangements);
7. Revocation of protection if it is found that the breeder supplied incorrect or inadequate information at the time of application, or did not provide the necessary seeds or propagating material, or if the registration was found not to be in public interest;
8. Compulsory licensing in cases where the breeder is not making the seed publicly available in reasonable price or quantity or regularity;
9. Benefit-sharing arrangements with those, including farmers, claiming to have contributed genetic material to the registered variety;
10. Rights of communities and persons to claim significant contribution to a registered variety, and to receive compensation if such a claim is upheld;
11. A National Gene Fund built up with royalty fees from plant variety right holders, national and international contributions, etc., meant to be used for benefit-sharing and compensation to farming communities, and for conservation and sustainable use of genetic resources.

Under the PPV Bill, a Plant Varieties and Farmers' Rights Protection Authority will be established. This will be chaired by a person of eminence in agriculture, and consist of various government officials from relevant ministries and agencies. Committees of experts can be appointed by this Authority. The PPV Bill also sets up a Plant Varieties Registry, with a Registrar General and other Registrars to process applications. The Registry will maintain a National Register of Plant Varieties, which are given protection under the PPV Bill.

Violations will invite penalties ranging from 3 months to 2 years imprisonment, and Rs. 50,000 to Rs. 10 lakhs fine.

DOES THE PPV BILL PROTECT FARMERS OR BREEDERS?

Though its name explicitly gives it a claim to protect farmers' rights, the PPV Bill is in actuality much more weighed in favour of the formal sector plant breeder. Even in the latter category, I will argue below that the Bill will work to the advantage of the private corporate sector more than public sector breeders.

The PPV Bill is meant primarily to provide incentives to the seed breeding sector, in particular financial incentives. This, it is hoped, will lead to continued and increased investment into plant breeding, and to innovations in this field. Indirectly, the agricultural establishment hopes, this will benefit farmers, as they will get access to 'improved' varieties.

The Background Note circulated to the Joint Committee members with the PPV Bill, itself starts off on a dubious note. It recognises that the public sector breeding programmes are not meeting the increasing needs of India's farmers, and hence the growing importance of private (read: corporate) sector breeding. Unfortunately, this entirely leaves out the critical importance of a third sector…farmers themselves! Considering that for thousands of years, our farmers have selected, bred, and used hundreds of thousands of varieties of several hundred crop species, it is amazing that the government does not even think it fit to mention them as possible breeders. This continues the bias, built into agricultural planning for decades, against the 'informal' sector, and perpetuates the image of farmers as simply supplying the 'raw material' that the formal sector breeders use to develop new varieties.

This bias permeates the PPV Bill, though there are some well-meaning attempts at reducing it. Consider the following:

1. Does the PPV Authority include farmer representatives?: The Authority set up by the PPV Bill has no farmers' representative on it, not even NGO representatives; it is made up entirely of government officials…with the possible exception of the Chairperson (Section 3);

2. Can farmers' varieties get protection?: In theory (and according to the Background Note given to the Joint Committee, though not explicitly mentioned in the Bill), farmers are included in the category of 'breeders', and can apply for protection to varieties that they would have developed. However, given the stringent requirements for obtaining protection under the PPV Bill (the Novelty, Distinctiveness, Uniformity, and Stability criteria, Section 14), requirements that are expensive to fulfill and technologically easier to achieve in the laboratory or highly controlled conditions that formal sector breeders have access to, it is unlikely that farmers' varieties will be able to receive protection. This could only happen if the state were to assist in carrying out the tests to prove these characteristics, on behalf of farmers…rather unlikely in the current situation! Even the provision to register "extant" varieties, i.e. those which are already in existence or in public knowledge, would not help, as these too have to fulfill the criteria of Distinctiveness, Uniformity, and Stability. In any case, given the nature of our society, no more than a handful of farmers are likely to be able to approach the PPV Authority without the active aid of NGOs or sensitive government officials, and there is nothing in the Bill that mandates the government to reach out to them. Finally, the Bill only talks of "persons" as being applicants for protection, and it is not clear whether communities as a whole fit this description.

3. Has farmer permission been taken?: India is now legally obliged, under the Convention on Biological Diversity (CBD), to ensure that local community consent is sought, and equitable benefit-sharing arrangements are made with it, before wider use is made of its knowledge and practices. Yet in the application requirements for those wanting plant variety protection in the PPV Bill (Sections 17/18), there is no mention of the applicant having to show whether his/her variety is based on farmers' knowledge, or whether permission has been taken from the farmer/community for the use of such knowledge or their varieties, and finally whether an appropriate benefit-sharing arrangement has been worked out with such farmer/ community. This is a violation of India's commitments under the CBD.

   Even in the matter of approving a particular name ("denomination") for a variety (Section 16), the Authority does not have the mandate to reject a breeder's name even if it is already in use by a farming community, though this could conceivably be developed as a specific regulation under Section 16(2,3). There is no penalty associated with 'stealing' such a name (Sections 61-64).

   Section 48 of the PPV Bill enables communities to make claims if they believe they have contributed to the development of a variety for which protection has been given. But the onus to prove this is on these communities. How many farmers will even get to know about what has been protected, whether their varieties or knowledge has been used or not, etc? The PPV Bill does make it mandatory for applications to be advertised (Section 17), but again, will such advertisements even reach the concerned rural populations? The only consolation is that this right to make claims on behalf of aggrieved farmers has also been given to NGOs or others, which could in theory help in greater outreach.

   Even if some farmers or others acting on their behalf do manage to make such a claim, and the claim is upheld, their only consolation will be some compensation that they might get, at the discretion of the Authority (Section 48(3)). This too, indirectly, as the compensation amount will first be deposited into the Gene Fund, and there is no provision to ensure that it thereafter comes to the claimant! But worse, there is no clause to revoke the protection if it is found that the applicant has unfairly appropriated farmer/community resources or knowledge…indeed such a provision cannot be made since, as stated above, the PPV Bill has no provisions for prior consent of farmers.

4. Is the provision on farmers' rights adequate?: The PPV Bill's single paragraph on farmers' rights (Section 31) pertains to the ability to save, use, exchange, share and sell protected varieties. While this is in itself commendable (given especially the increasing international trend to exclude even such basic rights), it falls far short of the much fuller definition of farmers' rights that has been proposed by communities and NGOs across the world. This larger definition includes the right to protect community or individual farmer varieties and knowledge from being used without consent and benefit-sharing arrangements, as also to have guaranteed access to the biological, cultural, and economic resources that allow farmers to innovate and sustainably use crops.

5. Is the benefit-sharing provision adequate?: To its credit, the Government has introduced a provision (Section 26) for benefit-sharing arrangements with farmers/communities in case claims are made for this with regard to a registered variety. However, once again, the onus is on the claimant to prove a contribution, and the Authority is under no obligation to make its own enquiries about whether what contributions may have gone into a registered variety. Moreover, claims can only be made for contributions of genetic material, and not for knowledge…a rather strange oversight considering that information and knowledge of local communities is such a common ingredient in breeders' work. Nor is there any requirement for this benefit-sharing arrangement to be "equitable", however that is defined, though the Statement of Objects and Reasons attached with the PPV Bill states that this will be the case. Finally, the benefit-sharing amount, once determined, will be deposited into the Gene Fund, rather than given directly to the claimant, the reasoning behind which is unclear.

6. Will the national registration process cover farmers' varieties?: The PPV Bill's registration process, unfortunately, is open only to varieties that get protection under the Act. Farmers will not be able to register their varieties in it. NGOs have for many years been demanding some such registration process, so that there is proof of 'prior existence' of a variety and its related knowledge, making it easier to contest biopiracy. The PPV Bill makes only one possible provision for this: one of the duties it gives to the PPV Authority is to take measures for "compulsory cataloguing facilities for all varieties of plants, seeds, and germplasm". In theory, this could be used to register farmers' varieties, but the Bill does not provide any legal protection to such a catalogue against piracy and misuse.

   The above elements make it clear that, despite undoubtedly progressive elements such as community rights to claim compensation, benefit-sharing arrangements, compulsory licensing under certain conditions, and farmers' rights to continue using protected varieties, the PPV Bill is not really a "farmers' rights protection" bill.