Dr. Gautam has got many prestigious awards and fellowships. Presently, he is the Vice President of National Academy of Agricultural Sciences and Member of Executive Board of Global Crop Diversity Trust and Vice Chairman of Trust for Advancement of Agricultural Sciences
Below are his expert opinions on the issues of Plant Variety Protection, Farmer’s right and Government’s measures to National Biodiversity.
Origiin: Hello Dr Gautam. It is pleasure to have opportunity to interact with you.
Dr Gautam: Hello Sabina. At the outset, my New Year greetings to you and the Origiin.
It is nice to interact with you and through you the readers of Origiin.
Origiin: As you know that India has not been very aggressive regarding protection and enforcement of Intellectual Property Rights so far resulting in patents on our traditional knowledge by foreign companies. What has been sole reason for it?
Dr Gautam: In 1992, Convention on Biological Diversity acknowledged the sovereign rights of the nation on their biological resources and prior to this Convention, the bio-resources and associated traditional knowledge were regarded as common heritage of humankind. The Article 8(j) of the Convention further recognized the contribution of communities and indigenous local people in the conservation and preservation of biological resources and fair and equitable share in the benefits arising out of utilization of such knowledge. The Agreement on Trade related of Intellectual Property Rights (TRIPS) an international agreement administration by the World Trade Organization (WTO) laid down standards for many forms of intellectual property (IP) regulations. The TRIPS mandated the member countries to enforce minimum standards of IP protection for a wide range of intellectual properties. It’s Article 27.3 provided that member countries may exclude from patentability plants and animals other than micro-organism and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, members shall provide for the protection of plants varieties by patents or by an effective sui generis system and by combination thereof. Therefore, countries were free to choose their own effective sui generis regime for the protection of plant varieties. India being one of the members of the CBD, ITPGRFA and WTO, enacted Protection of Plant Varieties and Farmers Rights Act 2001 and Biological Diversity Act 2002. In addition, India amended Indian Patents Act 1970(amendments in 1999, 2002 and 2005) and enacted Geographical Indications of Goods (Registration & Protection,) Act 1999 and Trademarks Act 1999, and its amendment 2010.
The People’s Biodiversity Registers (PBRs) are being documented by the BMCs under the Biological Diversity Act, 2002 of India. So far, 1915 PBRs have been documented by different states. These registers include comprehensive codified and oral information about traditional knowledge associated with bio-resources and may help provide protection from patenting and their illegal exploitation. The Indian Council of Agricultural Research has initiated massive programmes for the registration of bio-resources of plants, animals, fish, microbes, insects etc.
Under the PPV & FR Act, 2001, the farmer’s varieties are being registered. So far, farmers and breeders varieties of 54 crop species have been registered. The PPV & FR authority is also developing compendia for documentation, indexing and cataloguing of all varieties including farmers’ varieties. It has identified 22 agrobiodiversity hotspots for focused attention on conservation and sustainable use of agrobiodiversity. It is also maintaining databases of NORV (Notified and Released Varieties of India) and IINDUS ( Indian Information System as per DUS guidelines-a database for released ,example and reference varieties of all notified crops).
Traditional knowledge has always been an easily accessible treasure and thus has been susceptible to misappropriation and bio-prospecting. It is often misappropriated, because it is conveniently assumed that being in public domain, communities have given up all claims over it. Traditional Knowledge includes both the codified (documented) as well as non-codified information. Bio-piracy of codified Indian traditional knowledge continues, since, this information exists in regional languages. The reliability of the traditional medicine systems coupled with the absence of such information with patent offices, provides an easy opportunity for business houses for getting patents on formulations derived from traditional medicine systems. The grant of such patents has been matter of great concern to the developing world. Patent literature, is usually wholly contained in several distinctive databases and can be more easily searched and retrieved whereas it is not so with non-patent literature prior art. Thanks to the efforts of CSIR and AYUSH, TKDL targeted Indian Systems of Medicine, viz., Ayurveda, Unani, Siddha and Yoga available in public domain. This has been documented collating the information on traditional knowledge from Sanskrit, Urdu, Arabic, Persian and Tamil in digitized format, which is available in five international languages – English, German, Spanish, French and Japanese. TKDL acts as a bridge between formulations existing in local languages and a Patent Examiner at a global level, since the database provides information on modern as well as local names in a language and format understandable to Patent Examiners. Today, India through TKDL is capable of protecting about 2.5 lakh medicinal formulations. TKDL access has been given to eight International Patent Offices viz. Indian, European, German, United Kingdom, United States , Canadian, Australian and Japanese Patent Offices under Access (non-disclosure) Agreement. Based on the evidences of prior art submitted by the TKDL team on the basis of the information present in the TKDL database, so far 88 patent applications of the pharma companies of United States, Great Britain, Spain, Italy, China, etc. have been either set aside or withdrawn/cancelled or declared as dead patent applications at no cost and within few weeks of submission of prior art evidences, whereas cancellations of patents have been known to take 4-13 years of complex and expansive legal battle. Considering the novelty, utility and its effectiveness in preventing the grant of wrong patents several countries and organizations have expressed their keenness in replicating the TKDL model for their own countries.
Although, India started these initiatives after the above mentioned global developments, good progress has been made thanks to the aggressive steps in protecting IPRs including the traditional knowledge.
Origiin: India is one of the few countries in the world to have exclusive legislation for Protection of Plant Varieties and Farmers’ Rights, which is extremely encouraging. How does it actually benefit the farmers?
Dr Gautam: Yes, India is one of the pioneers in enacting the legislation providing rights to breeders, researchers, communities and farmers under the PPV& FR Act .The Act recognizes farmer as cultivator, conserver and breeder. The Act provides the following rights to the farmers:
- Right on seed to save, use, sow, re-sow, exchange, share or sell their farm produce including seed of protected varieties(except branded seed of protected variety under the Act) as were entitled before coming into force of the Act (Sec. 39(1)(iv)).
- Right to register existing farmer varieties fulfilling the laid out requirements (Sec.39 (1) (iii)).
- Right for award, reward and recognition from National Gene Fund (Sec. 39(i)(iii)& Sec.45(2)(C)).
- Right for compensation in case of non performance of the variety as claimed by the breeder of protected/ registered variety (Sec. 39(2)).
- Right for protection against innocent infringements (Sec. 42)
- Exemption from registration fee for registration of framer’s variety and any fee for legal proceedings related to infringement or other causes in courts, tribunal etc. (Sec.44)
- Right for access to quality seeds of protected varieties at reasonable price(Sec. 47)
- Right for benefit sharing, if genetic material conserved by tribal or rural families is used by a breeder in the development of a protected variety (Sec.26)
- Prior authorization in respect of use of farmer’s variety by the breeder for commercialization of essentially derived variety (Sec.34(c))
Origiin: In terms of biodiversity, India is one of the richest countries in the world. Unfortunately this has also led to exploitation of the same resulting in extinction of many plant varieties. In this scenario, how does implication of PPV&FR Act helps?
Dr Gautam: India is one of the mega diverse countries. There is global interdependence on plant genetic resources and hence access to such resources has to be facilitated, on mutually agreed terms and prior informed consent, by the countries as per commitments of CBD and ITPGRFA. Due to the extensive monoculture of crops, climate change, land and habitat destruction,and alien species, there had been erosion of traditional crop varieties. However, India has long history of systematic programmes for exploration, collection,characterization and conservation of germplasm. Resultantly, nearly 4 lakh germplasm of 1586 crops has been conserved under the umbrella of NBPGR/ ICAR.
The PPV & FR Act provides for protection of farmer and breeder varieties and their seeds are maintained in the gene bank of the Authority. This seed may be used for initial multiplication of a variety, in the event of invoking compulsory licensing by the government. In normal course, the seed is to be transferred to National Gene Bank of NBPGR after the period of protection of a particular variety is over. Hence, the legislation is becoming an effective instrument for protection and conservation of the farmers varieties.
Origiin: Under Protection of Plant Varieties and Farmers’ Rights Act, there are various Awards, Rewards & Recognitions for the farmers. Please tell us briefly about it.
Dr Gautam: The Act provides for establishment of National Gene Fund. Its Section 70(2) specifies that the gene fund shall be applied to support and reward farmers, community of farmers, particularly the tribal and rural communities engaged in conservation, improvement of genetic resources in areas identified as agro- bio diversity hot spots. It is also used for capacity building on ex-situ conservation at the level of local body, and supporting in-situ conservation, particularly in identified agro- bio diversity hot spots. The PPV & FR authority has instituted the following awards from National Gene Fund to encourage and recognize the self less services of the rural folks in ensuring the continuous availability of biodiversity for plant breeding purposes:
- Plant genome savior community awards (5 per year) of Rs. 10 lac each
- Plant genome savior farmer rewards (10 per year)of Rs. 1 lac each
- Plant genome savior farmer recognitions (20 per year) to the farmers engaged in the conservation of the genetic resources of land acres and wild relatives of economics plants and their improvement through selection and preservation.
Origiin: What is difference between Seed Act 1966 and Plant Varieties and Farmers’ Rights Act 2001?
Dr Gautam: Until 1966 there was no central legislation on seeds. With the advent of high yielding varieties in food crops in 1960s, India realized the need for a seed law so as to create a climate for making available good quality seeds to the farmers. This lead to enactment of the Seeds Act, 1966 which was implemented in its entirety in October 1969.This Act and its rules were amended in 1972, 1973, 1974 and 1981. The enforcement of the provisions of Seeds Act in 1969 marked the beginning of systematic arrangements for large scale seed certification. Seeds Act, 1966 and its rules 1968 provide certification and minimum quality standards of notified kinds/ varieties. Hence, it provides for regulating the quality of certain seeds ( of notified and truthfully labeled varieties) for sale to the farmers . Hence, Seeds Act, 1966, Seeds Rules 1968 with Seeds (Control Order) 1983 are the legal instruments for regulating the production, distribution and the quality of certain seeds for sale and for matters connected therewith. The PPV&FR Act, 2001 grants the proprietary ownership of the variety to the concerned plant breeder or farmer. Intellectual Property Rights are the private rights which confer to the legitimate owners exclusive rights to produce sell, market, distribute, import or export the variety registered under the PPV & FR Act. The PPV &FR Act provides for the establishment of an effective sui-generis system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants. India being member of WTO and signatory to the TRIPS enacted this Act. The Act is unique in the world as it has granted right to both breeders and farmers simultaneously under one Act. It has taken the farmers rights concept forward and genuinely addressed the concern of the farmers as breeders, innovators, cultivators, conservers etc. It has incorporated the features of UPOV, CBD, TRIPS and ITPGRFA along with certain distinctive features of its own as per requirements of the farmers. Its main objectives are:
- To provide an effective system for protection(in terms of IPRs) of plant varieties and rights of farmers and plant breeders
- To recognize and protect rights of farmers in respect of contribution made at any time in conserving, improving and make available PGRs for development of new varieties.
- To accelerate agricultural development in country, protect PBRs and stimulate investment in R&D in public/ private sectors for varietal development.
- To facilitate growth of seed industry to ensure availability of high quality seeds and planting materials to the farmers.
Origiin: What is National Gene Fund and how can farmers make use of it?
Dr Gautam: Section 45 of the PPV& FR Act provides for establishment of National Gene Fund by the central government. The fund has been constituted by the Central Government to promote, recognize and reward those farmers who are engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation in the agro-biodiversity hot-spots and also to a farmer who is engaged in conservation of genetic resources of landraces and wild relatives of economic plants and their improvement through selection and preservation provided material so selected and preserved has been used as donor of genes in varieties registered under the Act. This fund would be augmented through benefit sharing received from varieties registered under the Act, annual fee payable to the Authority as royalty by the breeders of registered varieties, compensation deposited in gene fund under section 41(4), contribution from any national and international organizations and other sources. The Fund shall be applied for the following purposes:
- Paying benefit sharing under section 26 (5)
- Compensation payable under section 41(3)
- Expenditure for supporting conservation and sustainable use of genetic resources including in-situ and ex-situ collections and for strengthening capability of the panchayat in carrying out such conservation and sustainable use and the expenditure of the scheme relating to benefit sharing under section 46 of the Act. In this respect, there could be linkages between the provisions of this Act and the Biodiversity Management Committees established at the Panchayat/Local Body level under the Biodiversity Act.
- The central government may frame one or more schemes on the items indicated therein, to fulfill the purpose of section 41 and 45 of the Act
- Supporting, recognizing and rewarding the farmers, community of farmers, particularly the tribal and rural communities engaged in conservation, improvement and preservation of genetic resources of economic plants and their wild relatives particularly in identified agro bio-diversity hot spots.
Origiin: Thank you so much Dr Gautam for your valuable inputs.
Dr Gautam: Thank you Saikia. I trust and believe the information will be useful to the readers and the stakeholders.
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