In this interview, Professor Chittur Srinivasan, School of Agricultural Policy and Development, University of Reading, speaks to Flora IP about farmers rights in India. Professor Srinivasan’s research interests include the economics of intellectual property rights (IPRs) in agriculture, assessing the impact of IPRs regimes on innovation flows and the economic impact of the World Trade Organisation’s Agreements on Trade-Related Aspects of Intellectual Property Rights (TRIPS) induced IPRs regimes in developing countries, with a focus on technology transfer and foreign direct investment in the seed industry. Professor Srinivasan received his BA Economics from St Stephen’s College, Delhi University, MBA from the Indian Institute of Management, Ahmedabad, India, MSc from London School of Economics and PhD from the University of Reading.
Flora IP (FI): In “Institutional Capacity and Implementation Issues in Farmers’ Rights” (Michael Halewood Ed, 2016), you argue that “developing countries have not systematically examined or provided for the institutional capacity, infrastructure, processes and operational procedures required for giving effect to farmers’ rights provisions, and this lack of institutional capacity is likely to undermine their implementation.” Could you please elaborate on this?
Professor Chittur Srinivasan (CS): If we look at the conceptual basis for farmers’ rights, there are essentially two arguments for introducing and implementing farmers’ rights. The first is the conservation argument. The second is the equity argument. These arguments posit that any innovation that plant breeders generate depend on sourcing parental material from farming communities, and farming communities have conserved and developed this agrobiodiversity over several generations. If breeders develop innovations and subject them to intellectual property rights (IPRs), they should also share the rewards from the IPRs with farming communities. Otherwise, it becomes inequitable, because farming communities provide the basic parental material, which breeders use in their innovations. When breeders protect those innovations through IPRs, farming communities do not get rewarded. There is a very strong argument for farmers’ rights or at least for providing incentives to farmers for continuing their conservation efforts so that agrobiodiversity remains available to breeders and other institutional innovation players.
How can we give effect to these farmers’ rights?
Here, there are two elements involved. One is the conceptual dimension of farmers’ rights. The other is the implementation or the administrative arrangements that can support farmers’ right. In conceptual terms, what many legislations, such as those of India, have tried to do is provide counterpart IPRs for farmers’ varieties. The argument is, since breeders can protect their new varieties using IPRs, to be equitable, the law should also provide IPRs for farmers’ varieties.
In the paper that you referred to, I have mainly looked at the utility of this counterpart protection for farmers’ varieties. Breeders varieties are generally new varieties, in the sense that they have not been commercially available. Therefore, the breeders have control over the reproductive material of that particular variety; that is what really makes it possible for them to exercise control once they have the IPRs. They can exercise control over the reproduction and multiplication of that variety, provide a license and charge a licensing fee.
How do we define farmers’ varieties?
Farmers varieties may not be amenable to the usual distinctness, uniformity, and stability definitions that go with the breeders’ IPRs. We need to find a definition that will accommodate the characteristics of farmers varieties because they may not always be distinct, uniform or stable. The second issue that arises is that the reproductive material is already widely available in the community for continued multiplication. Even if some kind of a right is provided to farmers, or even if we define farmers varieties and give them certain IPRs, how will farmers exercise those rights, because they do not have control over the multiplication of that variety? That variety is already available in the public domain, it is widely dispersed, and it is already available in the community. In a sense, you cannot really put the genie back into the bottle as it were (material in the public domain back into the private domain).
If that is the case (with the material being available in the public domain), how do farmers get any economic returns? Even if we go through the process of attributing a particular variety to a farming community and then give them the rights, the question is, how do they generate the economic returns, because unlike the breeder, who has complete control over the multiplicative material, the farmers do not have the same kind of control. In that sense, generating economic returns from protected farmers’ varieties becomes infeasible.
The other issue that we have to look at is the complex ancestry or lineage of many traditional varieties. Many of these varieties are the result of centuries of selection done by farming communities. In that situation, where an individual variety may have incorporated materials from say twenty different sources or parentages, it becomes extremely difficult to say that a particular individual or a particular farming community is responsible for developing that variety or has specific rights to that variety. Attribution of IPR ownership in the case of whatever we define as farmers varieties becomes very complex.
When you think of the administrative arrangements, it is mind-bogglingly complex.
The question that has to be considered is, first: is it possible to conceptually or precisely define farmers’ varieties in a way that it can actually be applied in practice? Even if that were possible, is it possible for farmers, farming communities or whoever has the rights over those varieties to receive any economic returns? In a sense, it often becomes a token exercise only providing recognition for farmers’ contribution to the enhancement of agro-biodiversity. Suppose you give farmers’ rights on traditional varieties to a farming community or a group of farmers or even to an individual farmer, it becomes a little more than recognising their contribution. In practice, when you look at the spread of the varieties and the availability of the material of the varieties, it would be really difficult to argue, that a particular variety can be attributable to a particular farming community. This is for the counterpart (to plant breeders’) right.
The other way in which you can think of providing benefits to farmers is to say that, when breeders obtain IPRs – they should share some of the benefits that they derive from the IPRs with farming communities (if they have sourced their material from farming communities). In many cases, it may not be possible to precisely identify from which particular community breeders have sourced their materials. Breeders predominantly source their material from ex situ collections, such as the CGIAR collections or internal company collections. Breeders may not collect materials from farming communities. In that case, the argument made, and that is partly the approach that the Indian legislation takes, says that the breeders should make a contribution to the Gene Fund to support conservation activities.
Breeders are required to share benefits with the farming communities. This, they do, by sharing a part of the benefits that they derive from the varieties by making a contribution to the Gene Fund or the Conservation Fund. This Conservation Fund can then be used to support conservation activities by farmers.
In principle, while this is a concept one can certainly agree with, there are implementation challenges. We need to identify the benefits that the breeder is going to obtain. If you look at the series of IPRs granted for plant varieties and the value distribution of those varieties, we generally find that most of the returns are generated from a very small proportion of the protected varieties. This is not only true for plant variety protection; it is also true for patents. Lots of studies have shown that the value distribution of patents is highly skewed. That is, a large number of patents generate almost zero returns for the innovators. A small proportion of patents generate a substantial proportion of the returns, and there is a similar situation in plant varieties. If you have 100 varieties that are registered or granted plant variety protection certificates, you may find that only 10 or 15 varieties produce any economic returns. The rest of the varieties simply are not commercially exploited to generate any returns. If that is the situation – where you have a very highly skewed value distribution of plant variety protection certificates- how do you give effect to this benefit-sharing?
For example, in the Indian legislation, there is a provision that the benefit-sharing will be related to the anticipated commercial sales of the variety. You may provide, for example, that 1 per cent of your sales revenue from this protected variety should be your contribution to the gene fund. It is difficult to anticipate what the commercial sale of a particular variety is going to be. You cannot really have a benefit-sharing decision at the time the IPRs is granted. If it is a newly registered variety; it may succeed, and it may generate a lot of commercial revenue. Or it may completely flop, and it may not generate any commercial revenue. At the grant stage, you really cannot decide how much the breeder or the variety will contribute to the conservation fund or the gene Fund. The alternative may be to prescribe that 1 per cent of the commercial sales/turnover will be contributed to the Conservation Fund. You do not set an absolute amount right at the stage of the granting of the variety.
That may be more practicable. But, in most developing countries, you have to look at whether you have reporting and data systems of variety level sales figures. Is it really possible for you to figure out the commercial sales over time of a particular variety? Particularly when the same variety may be licensed to say five different companies, you have to then drill down into company sales data and within company sales data. Even today, if you look at most Seed Company reports or annual reports or balance sheets, there is no way you can get any variety level information. There is this administrative challenge of trying to identify variety level commercial sales information. The seed systems of many developing countries are developed to different degrees. But this information, which is necessary, if you want to have any benefit-sharing arrangement, is probably beyond the capacity of many developing countries, at least at the present stage of development of seed sector and seed sector reporting systems.
In sum, there are two approaches. One is to provide a counterpart (to plant breeders’) right, and the other is to have benefit-sharing arrangements. Unfortunately, both of these appear to present, what, at least for a large number of developing countries, would be almost insurmountable administrative problems. Many developing countries do not even have seed certification systems. If you do not even have a seed certification system, can you expect to have an information system, which tells you what the variety level sales of a particular variety is all over the country? Both the counterpart right approach and the benefit-sharing approach seem to pose multiple challenges. In practice, even if you have these provisions in the legislation, it is unlikely that you will be able to generate any rewards or incentives for farmers. It largely becomes a token of recognition of farmers’ contributions. But we want to go beyond that. We should provide incentives to farmers to maintain and develop the agrobiodiversity, which they are custodians of. Both these approaches, at least at present, have huge challenges for developing countries.
FI: India is viewed as exemplary for crafting and introducing farmers rights in its “Protection of Plant varieties and Farmers Rights Act, 2001” (PPVFRA). Please share your perspectives on the protection of farmers varieties and farmers’ rights in the PPVFRA.
CS: At a conceptual level, the Indian legislation has addressed the issue of farmers’ rights. It has made explicit provisions and it provides both the approaches that are mentioned above. It provides for recognition of traditional varieties and it provides for benefit-sharing arrangements. The Indian legislation also has another provision, which was intended to protect the contribution that the public sector had made in developing plant varieties and those provisions are called the extant variety protections.
Normally, varieties have to be novel if they are to be protected. The argument was that from the time of independence in 1947, the public sector had made significant contributions to variety development. It was dominant in agricultural research. It was dominant in providing agricultural innovations often in collaboration with the international agricultural research centre. It had made a huge contribution to developing new varieties, which led to the Green Revolution. The argument was that their contribution should be recognised. If the private sector today, which has developed say since the 1990s, wants to make use of those varieties, they should share those benefits with the public sector, or there should be a reward for the public sector for the contributions that it is made over several decades.
The provision that was introduced in the Indian legislation was what is referred to as extant variety protection. That is, varieties developed by the public sector could be protected even though they may have been released a long time ago (i.e., these varieties may not be novel). For example, if there is a variety which was released in say 1980, it can still be protected. If it is going to be used as material for the development of other varieties say by the private sector, which may in turn claim IPRs, this extant variety protection will actually give protection to the contribution that the public sector has made.
The other important provisions in the Indian legislation were related to farmers’ ability to use farm-saved seed. When you have small and marginal farmers, it was never going to be possible for plant variety protection systems to move judicially against the use of farm-saved seed, against millions of farmers – that was never really going to be an option. Accordingly, the principle of farm-saved seeds being used by farmers, as a matter of right which they had exercised over centuries – was included in the legislation. Farmers had the right to use, exchange and sell farm-saved seed. The only restriction was that they would not sell it as a branded product under the protected variety denomination. Other than that, informal or formal exchange or even sale, called “brown-bagging sale” are allowed under the Indian legislation.
If you examine the plant variety protection certificates granted by the Plant Variety Protection Authority in India, most of the registrations you find are registrations of extant varieties by public sector institutions. For example, you have the national public research institutions under the Indian Council of Agricultural Research umbrella. A majority of the varieties which are protected are public sector varieties. In that sense, what has happened is that the plant variety protection system has tended to be a giant registry for public sector varieties. The contribution or the participation of the private sector in the registrations that have been granted has been much smaller. If you have extant variety protection and if you give farmers the right to exchange and even sell these varieties, then the question is, is the private sector going to have any incentive really to participate in the system? Are the potential returns for the private sector being diluted?
Those are important questions because the original idea of bringing in plant variety protection legislation, apart from the fact that it was a requirement under 27(3) of TRIPS, was to provide incentives for private sector investment in plant breeding. If we say that the farm-saved seed provisions will dilute those returns, then the question is: does it provide a strong enough incentive? My perspective is that the plant variety protection legislation does not provide sufficiently strong incentives for the private sector to participate. That does not mean that the private sector will not invest in plant breeding; the private sector still has an incentive to invest in plant breeding. The point is that, if the private sector invests in plant breeding, it is not going to be interested in using plant variety protection as a means of protection, they will resort to other avenues for protection.
What are these other avenues of protection? One is, of course, what we can call technological protection. That is, the varieties that are developed can be increasingly hybrid varieties. If they are hybrid varieties, then using farm-saved seed generally leads to a decline in productivity. You can use F1 hybrids, but they will give you a lower yield so that automatically pushes farmers to procure new seeds every year. It may shift the private sector investment in plant breeding towards hybrid varieties because hybrids provide some inbuilt technological protection.
The other avenue that the private sector uses for exercising control is through the control over marketing channels. Seeds generally are produced through contract arrangements with farmers. If you are producing hybrid seeds, and the variety is produced by crossing variety A with variety B, one farmer will produce variety A; another farmer will produce variety B. The kind of surveillance that the seed companies manage to have over these contract producing farmers, to put it mildly, can sometimes be pretty intense. There is a different sort of environment that operates when it comes to the surveillance and control over small seed producers.
You can exercise control over the marketing channels, and you can use hybrids. The other strategies which are used include the “first-mover advantage.” Here, you bring a variety onto the market that others can copy, but by the time others come down to copying your varieties, your research programme has moved forward and you are able to develop with newer varieties. If you have a quicker turnover of varieties, you have what is called the first-mover advantage. You are not relying on IPR; you are relying on the fact that it takes a lot of time for others to replicate your varieties.
My argument is that in the provisions that are trying to redress the balance between breeders and farmers in the legislation, essentially, their effect is that the incentives for the private sector are diluted. The private sector is essentially going to look for other forms of protection; they will not rely on the IPRs that the legislation is affording them. They are still going to be interested in economic returns; they are still going to invest. But for protection, they are going to rely on mechanisms other than IP methods.
FI: Can farmers varieties and extant varieties sustainably cover the plant variety needs in India?
CS: One of the issues is the adaptation of varieties and the performance of varieties. If you have developed a variety with a certain set of agronomic characteristics, say disease resistance and other characteristics, that is not going to remain stable forever. A variety which has excellent disease resistance today may become susceptible tomorrow. You may have an excellent set of varieties today, but that may not be adequate for tomorrow. Your excellent varieties of today may be the susceptible varieties of tomorrow, in which case, there is a need for new varieties to be developed. It is a dynamic situation.
The other question is, do we need all the innovations which the multinational companies are bringing in, either through local investments or by introducing varieties from their other operations?
There are several dimensions to this. One is the yield gap between the existing varieties promise and what you are obtaining on the farmers’ fields. You could well argue that you should devote more effort to bridging the yield gap rather than developing more new innovations. But again, I think the major strengths of multinational companies and other big national companies are in marketing. They are not only able to generate varieties that compete with, or outshine the public sector varieties; they are also much better when it comes to disseminating the varieties.
There is a role for the private sector. It may be a profit-led activity, but the profit-led marketing activity provides an excellent mechanism for disseminating varieties. Of course, the pricing of varieties, the kind of surplus which is extracted from those varieties, those issues are there. Fundamentally, the marketing of varieties by the private sector is a very good vehicle for disseminating varieties. In countries where you have only the public sector trying to disseminate varieties, the ability to provide the required varieties at the right time in the right place tends to be fairly limited. It is useful for developing countries to take advantage of private sector marketing capabilities. Yes, I think innovations will be needed, although there is a lot of work to be done to bridge the gap between the potential of existing varieties and the actual yields. But that does not mean that we do not need new varieties.
In the organic farming movement, we see that there are definitely trade-offs between organic cultivation and productivity. Similarly, many traditional varieties may be very well adapted to certain agro-climatic situations; they may provide much greater resilience against variation due to weather conditions, or yield variations due to weather condition. They may also protect the core subsistence income of farmers. But then, if the newer varieties are significantly more productive, it will be very difficult to say that we really do not need these varieties. If we stick to traditional varieties in developing countries, but you have varieties with much higher yields and much more favourable agronomic characteristics in the more developed countries, then developing country agriculture over time is going to become completely uncompetitive.
We may say that we do not need any of the multinational companies’ varieties, and we say that we are going to rely on our existing public sector varieties, but then, for how long is our agriculture going to remain competitive, especially if we have intentions to have a large role in the agricultural commodities trade?
From an international trade perspective, we want the agricultural sector to be competitive and to have a comparative advantage in certain crops. As such, it may be difficult to argue that we will rely only on traditional varieties and wait for in situ innovation by farmers.
FI: Do farmers breed new varieties?
CS: The process by which the institutional breeders and farmers generate new varieties is different. Farmers generate or end up with new varieties through a process of selection over several cycles of cultivation. You select the varieties with certain characteristics, you multiply those varieties or use the seeds of those varieties. It is a selection process through which farmers develop those varieties. There may be a very conscious effort on the part of farmers to select those varieties. But that is not the same thing as the process used by institutional breeders. Institutional breeders are looking to incorporate specific traits that are sourced from particular perinatal varieties, or for parental material, or in the case of genetic modification from other sources. There is the conscious search for certain traits and conscious incorporation of those traits. Then, you have the endless crossing of varieties and selections from those crossings. A few farmers might experiment with the crossing varieties; farmers’ development of varieties relies primarily on selection. Institutional breeders bring about innovation through conscious search and incorporation of desirable traits in varieties. Whether it is done through conventional breeding techniques or other molecular or genetic modification, that is a different issue. It involves a conscious search and a conscious effort to incorporate desirable varieties. In that sense, farmers’ breeding is different from institutional breeding techniques.
Farmers can develop a new variety, except that, if a farmer develops a new variety through a selection process that has gone on over several rounds of cultivation, it may need some more work to be done before it can become distinct, uniform and stable. But, in many senses, it could be defined as a new variety. It may be sort of distinct from existing varieties. It may probably not be uniform or stable, but yes, it would certainly meet the novelty criterion. It is possible to make novelty the only criterion for protecting these new farmers’ varieties. Still, it would be difficult to enforce those rights – without the uniformity and stability standards attached.
If you want to say that somebody has infringed your rights, that means there is a reproduction of a particular variety without your consent. If what constitutes that variety itself is not precisely determined, then the infringer can always argue that that is not the variety he or she is reproducing. The necessity for uniformity and stability standards is not really a fundamental requirement for defining an innovation. It is more a practical need when you want to enforce those rights. In defining an innovation, there is absolutely no need for saying that it has to be uniform and stable; distinctness is sufficient – the innovation only needs to be distinct from all known varieties. That will be sufficient. But if you want to enforce that right against a potential infringer, unless the variety is precisely defined in terms of uniformity and stability standards, it would be difficult to argue that some right has been infringed.
FI: Could you suggest alternative forms of protection for farmers, in line with the limitations highlighted above?
CS: A lot of progress that can be made towards benefit-sharing would come from the Nagoya Protocol types of provisions. For example, when breeders seek IPRs, they have to disclose the source of the parental material. If they are forced to disclose the source of the parental material, that can be then aligned with benefit-sharing provisions. Even that can be very complex because modern varieties may have sourced parental material, which can be traced back, say, 10 generations back to 15 different countries. You will have questions such as: how do you share benefits in those cases? Even if they have sourced their material from ex situ collections, ex situ collections are fairly well documented in terms of where those materials came from. Then, you could have benefit-sharing arrangements which are linked to the source of the ex situ collections. For example, CIMMYT (International Maize and Wheat Improvement Centre) in Mexico has germplasm that has been accessed by breeders worldwide to develop new varieties. The germplasm collection with CIMMYT itself is generally well documented in terms of where it came from. The benefit-sharing provisions could be linked to the countries from which the germplasm was sourced. However, it is much more difficult to link it to specific farming communities.
For more on Professor Srinivasan’s perspectives on farmers’ rights, see:
Srinivasan C S, ‘Institutional Capacity and Implementation Issues in Farmers’ Rights’ in Michael Halewood (ed.) Farmers’ Crop Varieties and Farmers’ Rights: Challenges in Taxonomy and Law. Issues in Agricultural Biodiversity (Routledge 2016).
Srinivasan C S, ‘Exploring the Feasibility of Farmers Rights’ 2003 21 (4) Development Policy Review 417 – 419.
