Dr Rakesh Chandra Agrawal, the Registrar General of the Protection of Plant Varieties and Farmers’ Rights Authority in India, discusses his country’s seminal Protection of Plant Varieties and Farmers’ Rights Act 2001 (PPVFRA). The PPVFRA is the first national plant variety protection legislation to provide for the protection of both breeders’ rights and farmers’ rights. While at the international level, there are still debates around the conceptualisation of farmers’ rights as evidenced in the recently concluded Second Meeting of the Ad-Hoc Technical Expert Group on Farmers’ Rights, India provides concrete examples for countries seeking to craft and introduce such rights.
Flora IP (FI): The Protection of Plant Varieties and Farmers’ Rights Act 2001 (PPVFRA) is notable because it protects both commercial plant breeders and small-scale farmers interests. Can you discuss the key farmers’ rights provisions in the PPVFRA?
Dr Rakesh Chandra Agrawal (RCA): The PPVFRA is unique because it creates a balance between breeders’ rights and farmers’ rights. Farmers are given important rights.
First, farmers are equal to breeders, which means farmers are entitled to intellectual property rights for their varieties. Section 2 of the PPVFRA provides that “breeder means a person or group of persons or a farmer or group of farmers or any institution which has bred, evolved or developed any variety.”
Second, farmers can save, use, sow, re-sow, exchange, share or sell their farm produce including seed of a variety protected, but not in the branded form (Section 39, PPVFRA).
Third, if a variety is registered with the Protection of Plant Varieties and Farmers’ Rights Authority (Authority), and a breeder does not supply the varieties at a reasonable price or in sufficient quantities, farmers or farmers’ representatives can request the Authority to provide the varieties, through the compulsory licensing (Section 47 to 53 of the PPVFRA) . In other words, the Authority can compel the breeders to provide the varieties at a reasonable price and in sufficient quantities. If the breeder cannot fulfil the request, the Authority can grant licenses to third parties for a specified period. However, the licensee is required to pay a royalty to the original breeder.
Fourth, the Authority confers thirty-five Plant Genome Saviour Community Awards, Farmer Reward and Recognition Awards annually. Up to five ‘Plant Genome Savior Community Awards’: 1, 000, 000 INR. Up to ten ‘Plant Genome Savior Farmer Reward’ for individual farmers: 150,000 INR. Up to twenty ‘Plant Genome Savior Farmer Recognition’: 100,000 INR. These awards, rewards and recognition are conferred for the conservation and sustainable use of important plant genetic resources from the national Gene Fund created by the Indian Government under Section 45 of PPVFRA.
Fifth, farmers can register varieties under traditional cultivation. The definition of ‘farmer’ is flexible. Even if the farmers do not own the land or rent land, he/she can register the varieties with the Authority (section 2(k) of the PPVFRA).
Sixth, any person on behalf of any village community can file any claim for compensation if the village or local community has contributed significantly to the evolution of a variety registered under the PPVFRA.
Seventh, farmers are protected from innocent infringement. This means the PPVFRA shall not be deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right. Furthermore, a relief in an infringement suit shall not be granted by the court against a farmer who proves that at the time of infringement, he/she was not aware of the existence of the right so infringed.
Significantly, the uniformity criterion is relaxed for farmers because their varieties are not homogenous. Farmers are given double of the exemptions (off-types) allowed for other commercial plant breeders. The Authority only conduct tests on farmers varieties for one year, as opposed to the two years conducted for other commercial breeders. Furthermore, the Authority does not charge farmers any fees, including for DUS (Distinct, Uniform and Stable) testing or any other processing of the farmers’ varieties.
(See Chapter VI of the PPVRFA for a comprehensive outline of farmers’ rights).
FI: Can you discuss notable examples of the successful implementation of Farmers’ Rights in India?
RCA: First, the Authority has received around 16,000 applications for the registration of farmers’ varieties. Out of this, two-thirds (11,000) applications were submitted by farmers alone. This reveals the growing awareness amongst farmers about registration of their varieties. The Authority has registered around 3,600 varieties so far, half (1,800) are farmers’ varieties.
Second, the Authority has conferred about 124 Plant Genome Saviour awards. Those farmers conferred awards have received recognition at national and international levels. Several agencies have visited the farmers’ fields both to investigate why the farmers qualified as recipients of the awards and to determine how to promote the conservation and sustainable use the varieties. As a result of the awards, farmers have received funding, support and recognition.
Third, under the PPVFRA, the Authority asks for declarations from breeders about the use of farmers’ varieties, and if the use of farmers’ varieties is declared by the breeders, they are asked for the benefit-sharing with those farmers for the use of such varieties.
FI: Can you discuss the challenges to implementing Farmers Rights in India?
RCA: The biggest challenge is the effective mainstreaming of the farmers’ varieties after registration. That is, getting farmers varieties in the seed chain and to the markets. Mainstreaming farmers varieties is outside the mandate of the Authority. Accordingly, the Authority needs support from funding agencies, civil society organisations, the government, amongst others, to ensure that the farmers can derive economic benefits from their intellectual property protected varieties. The second challenge is the lack of awareness amongst the farmers about their rights on the protected varieties, which needs a massive media drive, through audio, visual, print and social media.
FI: Can you discuss the recent PepsiCo case against small-scale potato farmers?
RCA: The PepsiCo case is one of the first cases in India to generate awareness about the importance of farmers’ rights and intellectual property for plant varieties in India. PepsiCo registered a variety: “FL 2027/FC 5” with the Authority. The certificate for FL2027 was granted in 2016. PepsiCo India Holdings (PIH) Pvt. Ltd signed contracts with 11 farmers to grow propagating materials (the farmers were provided mini tubers). PepsiCo also granted about 12, 000 farmers licenses to grow potatoes used for the production of Lay’s chips.
However, PepsiCo filed lawsuits against farmers for the unauthorised growing of the FL 2027 varieties in April 2019. The suits were filed for permanent injunction restraining the farmers from using FL 2027 and for passing off such products being those of PIH, in violation of the company’s rights over the trademark FC 5. The lawsuits raised widespread national and international debates resulting in two main arguments. Some stakeholders argued that the farmers’ rights provisions in the PPVFRA allows farmers to grow and sell protected varieties, provided they are not sold with the brand names. Others argued that the farmers are prohibited from growing the FL 2027 varieties because the propagating materials were illegally obtained. Subsequently, PIH decided to withdraw the case from the court. The copying of seeds can be penalised under Sections 68 to 71 of the PPVFRA. The controversy has helped both the breeders and farmers to realise their rights over plant varieties registered under the PPVFRA.
FI: What changes to small-scale farmers interests would you like to see in India and at the international level?
RCA: Support is required for the use of farmers varieties (including varieties with important characteristics, such as pest resistance and climate resilience) in breeding programs. Also, as earlier mentioned, support is required to mainstream farmers varieties. This could be achieved by providing subsidies for farmers varieties, as provided for other varieties, which would allow farmers varieties to compete in the markets. Third, although the Authority confers awards, rewards and recognition for the conservation and sustainable use of important plant genetic resources, support is further required to ensure the varieties identified and celebrated are conserved on a long term basis. The Authority only grants one-time financial awards; as such, a long term conservation strategy for the farmers’ varieties is required.
While there are still on-going debates at the international level around breeders’ rights and farmers’ rights, India’s rich experience can provide lessons for other countries seeking to craft comprehensive plant variety protection systems which provide for both breeders’ rights and farmers rights.
India is willing to support other countries desirous of crafting and introducing similar sui generis systems.
