Plant variety protection (“PVP”) is a type of intellectual property. PVP laws grant economic rights known as plant breeder rights (“PBR”) to breeders vis-a-vis the new, distinct, uniform, and stable varieties of crops that they develop. This intellectual property right is of European origin. In the 1950s, countries in Europe started designing laws for protecting to protect the interests of their plant breeders. This was extended throughout Europe through the Union for the Protection of New Varieties of Plants (“the UPOV”), which was established in 1961 by the UPOV Convention.It is critical to understand the relationship between the implementation of PVP laws and the World Trade OrganizationOrganization (“the WTO”) and its intellectual property rights (“IPR“) agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights (“the TRIPS Agreement”). Even though the text of the TRIPS Agreement does not mention the UPOV, the latter has been pushed by the developed world as the “effective sui generis system” by which to implement the TRIPS Agreement. Developing country governments that were reluctant to make laws allowing patents on plants were shown the UPOV as the way out for compliance to comply with the TRIPS Agreement. This was convenient for developing countries in several ways. Their administrators could avoid the hard work of designing something from scratch for the specific needs of their own country. They agreed to use the ready-made solution offered by the UPOV model; other governments were forced to do so. This also meant that there would be no risk of not gaining acceptability from other WTO member countries. Further, for governments that had also faced public opposition to patents on life forms, lawmakers could simply point to the characteristics of PVP, which make it look relatively less restricting. For instance, in a PVP law, unlike in a patent law, the “research exemption” can allow others to use the breeder’s protected material for research purposes. More importantly, the PVP law can (optionally) provide for a “farmer’s privilege”, which would permit farmers and small growers to save and re-use seeds from the PVP-protected variety. The term of protection under PVP law (fifteen years) is also shorter than that for patents (twenty years).
The Protection of Plant Varieties and Farmers’ Rights Act was passed by the Indian Government in 2001. After India became signatory to the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPs) in 1994, a legislation was required to be formulated. Article 27.3 (b) of this agreement requires the member countries to provide for protection of plant varieties either by a patent or by an effective sui generis system or by any combination thereof. Thus, the member countries had the choice to frame legislations that suit their own system and India exercised this option. The existing Indian Patent Act, 1970 excluded agriculture and horticultural methods of production from patentability. The sui generis system for protection of plant varieties was developed integrating the rights of breeders, farmers and village communities, and taking care of the concerns for equitable sharing of benefits.
International Union for the Protection of New Varieties of Plants or UPOV is an intergovernmental organization with headquarters in Geneva, Switzerland. UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 and revised in 1972, 1978 and 1991. The objective of the Convention is the protection of new varieties of plants by an intellectual property right. By codifying intellectual property for plant breeders, UPOV aims to encourage the development of new varieties of plants for the benefit of society.
The International Union for the Protection of New Varieties of Plants or UPOV is an international convention of which India is not a member. India has neither ratified the Convention nor is a signatory to the Convention. The PPVFR Act (Protection of Plant Varieties and Farmers’ Rights) is an Indian legislation for protection of the rights of various varieties of plants and also protection of the rights of the breeders and farmer. Hence we can say that both the Indian legislation and the International Convention aim for the registration of new varieties of plants thereby protecting the rights of breeders and farmers.
Objectives of PPVFR Act and UPOV:The objectives of the Protection of Plant Varieties and Farmers’ Rights Act are:
- to stimulate investments for research and development both in the public and the private sectors for the developments of new plant varieties by ensuring appropriate returns on such investments;
- to facilitate the growth of the seed industry in the country through domestic and foreign investment which will ensure the availability of high quality seeds and planting material to Indian farmers; and
- to recognize the role of farmers as cultivators and conservers and the contribution of traditional, rural and tribal communities to the country’s agro biodiversity by rewarding them for their contribution through benefit sharing and protecting the traditional right of the farmers.
More importantly this act provides safeguards to farmers by giving farmers’ rights while providing for an effective system of protection of plant breeders’ rights. The Act seeks to safeguard researchers’ rights as well. It also contains provisions for safeguarding the larger public interest. The farmer’s rights include his traditional rights to save, use, share or sell his farm produce of a variety protected under this Act provided the sale is not for the purpose of reproduction under a commercial marketing arrangement.