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PUBLIC INTERNATIONAL LAW

TOPIC: INTERNATIONAL CONVENTION ON PROTECTION OF NEW

VARIETIES OF PLANTS

Submitted To:

Mrs Sugandha Sinha

Faculty of Public International Law

Submitted By:

Gautam

Roll no. 928

3rd year(5th Sem), BA. LLB

 ACKNOWLEDGEMENT

I am feeling highly elated to work on the project topic INTERNATIONAL

CONVENTION ON PROTECTION OF NEW VARIETIES OF PLANTS under the guidance of my
faculty of Public International Law, Mrs Sugandha Sinha. I am very grateful to her for hers
exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have
tried my best to pave the way for bringing more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project
was not possible. Apart from all these, I want to give special thanks to the librarian of my
university who made every relevant materials regarding to my topic available to me at the
time of my busy research work and gave me assistance. And at last I am very much obliged to
the God who provided me the potential for the rigorous research work.

At finally yet importantly I would like to thank my parents for the financial
support.

-----------Thanking you

Gautam

C.N.L.U.
RESEARCH METHODOLOGY

Research Methodology

The project will be basically based on the doctrinal method of research as no field work is to be
done on this topic.

Aims & Objectives

To do an in depth analysis of International Convention on Protection of New Varieties of Plants. To

also know why protection of varieties of plants is necessary and does it work.

Hypothesis
The International Union for the Protection of New Varieties of Plants(UPOV) is beneficial for
developing countries like India and to its farmers.

Sources of Data
The whole project will be made with the use of secondary source. The following secondary sources
of data will be used in the project-
1. Books

2. Websites

Type of Study

For this topic, the researcher has opted for Descriptive and Explanatory type of study as in this
topic, the researcher will be providing the descriptions of the existing facts.
 CONTENTS

1. Introduction to UPOV
2. Plant Innovation and Plant Variety Protection
3. The UPOV System and World
4. UPOV and Rights of Farmers- An Indian Perspective
5. Conclusions and Recommendations
 1.INTRODUCTION to UPOV

Many countries, including developing countries and countries in transition to a market economy, are
considering the introduction of a system for the protection of new varieties of plants (PVP system).
Most countries which have already introduced a PVP system have chosen to base their system on
the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in
order to provide an effective, internationally recognized system. In order to provide a meaningful
study on the impact of PVP it is important to understand the purpose of such a system of intellectual
property rights and, equally important, aspects which are not appropriate to be included within the
realms of such a system. With respect to the purpose of a PVP system, UPOV clarifies that its
mission is To provide and promote an effective system of plant variety protection, with the aim of
encouraging the development of new varieties of plants, for the benefit of society. Thus, the UPOV
system of PVP is designed to encourage innovation in the field of plant breeding. In that respect, the
1991 Act of the UPOV Convention recognizes that it is important to encourage breeding in all plant
genera and species and not to pre-determine for which genera and species breeding would, or could,
be beneficial. An important corollary to this principle is that it is inappropriate to conclude that a
PVP system is not effective because it does not encourage breeding in a particular crop.1

The aim of the International Union for the Protection of New Varieties of Plants (UPOV) is to
provide and promote an effective system of plant variety protection, with the aim of encouraging
the development of new varieties of plants, for the benefit of society. New varieties of plants which
produce improved yields, higher quality or provide better resistance to plant pests and diseases are a
key element and a most cost-effective factor in increasing productivity and product quality in
agriculture, horticulture and forestry, whilst minimising the pressure on the natural environment.
Many other modern technologies of plant production need to be combined with high- performing
varieties in order to deploy their full potential.2 The tremendous progress in agricultural
productivity in various parts of the world is largely based on improved varieties.

1http://www.upov.int/overview/en/

2http://www.upov.int/export/sites/upov/en/about/pdf/pub437.pdf
Plant breeding requires considerable investment in time and resources. However, it can be relatively
quick and easy to reproduce new varieties. Without the ability to cover their investment, breeders
will be unable to invest in breeding. By making the reproduction and commercial exploitation of
varieties subject to the breeders authorisation, a system of plant variety protection based on the
International Convention for the Protection of New Varieties of Plants (UPOV Convention)
provides the breeder with the possibility to recover investment in plant breeding work.
The UPOV Convention provides a sui-generis form of intellectual property protection which has
been specifically adapted for the process of plant breeding and has been developed with the aim of
encouraging breeders to develop new varieties of plants. Many countries, including developing
countries and countries in transition to a market economy, are considering the introduction of a
system for the protection of new varieties of plants (PVP system). Most countries which have
already introduced a PVP system have chosen to base their system on the UPOV Convention in
order to provide an effective, internationally recognized system.3

2.PLANT INNOVATION AND PLANT VARIETY

PROTECTION

In an effective system of PVP the development of new varieties of plants will be encouraged where
there is commercial viability, but in cases where there is no existing, or potential, commercial
market for varieties, the presence of a PVP system should not be expected to encourage the
development of new varieties. Reference to a potential commercial market is a recognition of the
fact that an effective PVP system can lead to the creation and/or increased availability of new
varieties which allow a market demand to be met, which it was not possible for farmers or growers
to satisfy without such new varieties.4

Where there is no commercial market for a particular crop, but where plant breeding is still
considered to be necessary, breeding may be supported by the public sector. Such a situation in a
particular crop should, however, be seen alongside the overall benefits of the PVP system in relation
to the availability of improved varieties for farmers and growers in commercially viable crops. Such
benefits of the PVP system can be the key to overall economic development and, in particular in

3http://www.upov.int/overview/en/

4http://www.upov.int/overview/en/variety.html
developing countries, the development of the rural economy in a way which helps farmers to break
out of the cycle of subsistence farming.

With regard to matters which do not fall within the realm of an effective PVP system, it is important
to note that it is not the role of a PVP system to regulate the marketplace. Thus, the 1991 Act of the
UPOV Convention, Article 18, states that The breeders right shall be independent of any measure
taken by a Contracting Party to regulate within its territory the production, certification and
marketing of material of varieties or the importing or exporting of such material. In any case, such
measures shall not affect the application of the provisions of this Convention, thereby clarifying
that an effective system is one which is independent of such market regulation. For that reason, it
was considered essential that any study on the impact of PVP.

systems should not be inter-twined with consideration of systems regulating production,

certification and marketing. It is further noted that the success of PVP does not depend on the
existence of systems regulating production, certification and marketing, as illustrated by the success
of PVP in sectors which are not regulated by systems such as national listing and seed certification.

This clarification should not be taken to mean that UPOV believes that there should be a particular
type or level of market regulation, but rather as a recognition that such regulation should be dealt
with by an appropriate, dedicated and independent mechanism. It is also relevant to note that, for
members of UPOV, being part of an internationally harmonised system, the introduction of a PVP
system can be established without a large infrastructure, thereby facilitating the introduction of PVP
for countries with limited resources.

The Benefits of Plant Variety Protection

In relation to the impact which might be expected from an effective PVP system, it is considered
important to recognize that the positive effects of a PVP system may be realized in the form of an
incentive to stimulate new breeders and new breeding work and/or providing a basis for more
effective breeding work at the domestic level. These positive effects could relate equally to the
private breeding sector, the public breeding sector or to partnerships between the two. However,
whilst recognizing that such an impact is of critical importance, it is also recognized that an
effective PVP system can also provide important benefits in an international context by removing
barriers to trade in varieties, thereby increasing domestic and international market scope. In short,
breeders are unlikely to release valuable varieties into a country without adequate protection. With
access to such valuable foreign-bred varieties, domestic growers and producers have more scope to
improve their production and also have more scope to export their products. It is also recalled that,
as a consequence of the breeders exemption in the UPOV Convention, domestic breeders also gain
access to valuable varieties for use in their breeding programs. This international aspect is an
important means of technology transfer and effective utilization of genetic resources.

The UPOV mission statement refers to the aim of encouraging the development of new varieties of
plants, for the benefit of society. Clearly, it is not possible to detail all the benefits, or even the
range of benefits, to society of the introduction of new varieties of plants, because the scope is
enormous. However, the range includes: economic benefits, for example through varieties with
improved yield leading to reductions in the price of end-products for consumers, or improved
quality, leading to higher value products with increased marketability; health benefits, for example
through varieties with improved nutritional content; environmental benefits, for example through
varieties with improved disease resistance or stress tolerance; and even pure pleasure, for example
with ornamental plants. Society in this context means all society, and all members of society are
consumers in some way. However, it is also recognized that farmers and growers are the deliverers
of the benefits of new varieties to society and are also the first beneficiaries of new varieties which
offer improved income through improved yields, improved quality and the opening-up of new
market possibilities.
 3.THE UPOV SYSTEM AND THE WORLD

Background

The International Union For The Protection of New Varieties of Plants (UPOV) is the apex body
under an international convention5 on the subject, of which an Act of 1991 is the present version.
India has never been a member, even of past versions. The UPOV is itself more than four decades
old. It was created under the aegis of the 1961 UPOV Convention which came to be amended in
1972. The Convention was revised in 1978 and then again in 1991. The number of plant varieties
that have been granted recognition and protection in respect thereof accorded to the plant-breeder,
under the Convention, since 1961 is estimated to be more than 100,000. About 7,000 varieties are
being added to this list every year presently.6 Territorially however, the UPOV, until recently, has
remained almost exclusively a first world preserve. Developing and Least Developed countries have
perceived the UPOV as a tool of the multinational seed industry inimical to the interests of their
large uncorporatised agricultural communities and been slow to join in. India, in 2001, enacted a
sui-generis Protection of Plant Varieties and Farmers Rights Act which, as its name suggests,
sought to protect plant-breeders rights but in a much diluted form by recognising parallel and
competing farmers-rights. The Act, however was never commenced by the Government by issuing
the necessary notification to that effect7 and then, last year, the Government is reported to have
taken a decision to adhere to the UPOV model, which will require scrapping the sui-generis
enactment. With the dismissal in May of this year by the Delhi High Court of a public interest
litigation against this move, the decks have been cleared for India to join the UPOV regime, the
1978 Act regime as reported, possibly as a precursor to formally acceding the 1991 Act itself.

The Framework for Farmers Rights

The provisions of the Indian legislation8 are sui-generis in that they are not based on any model
draft nor intended primarily to be in conformity with the standards and obligations of any
international convention. The concerned Act of 20019 , now aborted by the Governments decision,
is designed to be within the limits of freedom available to the country under its TRIPS7 obligations

5The International Convention For The Protection of New Varieties of Plants

6UPOV Position Paper The Notion of Breeder and Common Knowledge adopted by UPOV Council 19th April, 2002
7Section 1 (3) of The Protection Of Plant Varieties and Farmerss Rights Act, 2001
8The Protection of Plant Varieties and Farmers Rights Act, 2001
9supra
(the UPOV is in this sense referred to as TRIPS10 positive) and also derives support from the
general thrust and declaratory provisions of some international treaties and materials.11

In the scope of rights granted to farmers and exceptions thereby made to the rights of plant-
breeders, it has very few peers.12 It defines13 farmers as not only self-cultivators or direct
supervisors of cultivation but also including someone who tends (conserves, preserves or adds value
through selection and identification) of wild species and traditional varieties of plants. If a variety
has been traditionally cultivated by farmers or is a wild relative or land race of a variety about
which farmers possess common knowledge, it is a farmers variety. But who is to tell? This
provision calls for an authority to do the needful without active prosecution of a claim as by a
business-motivated breeder. A breeder is someone who has bred or evolved or developed any
variety.14 A discoverer of a natural variety who selects the same is not evidently within the scope.
This particular potential in the natural environment is to be exploited not by profit-motivated
corporate entities but only by farmers, community bodies, non governmental organisations and
government agencies, essentially for a non-profit motive. From an economic point of view, there is
intrinsic inefficiency of exploitation in this situation. Instead of defining a breeder purely in terms
of what the breeder does in relation to the variety to be registered in his favour, the definition is
unnecessarily encumbered by including within it group of persons or a farmer or group of farmers
or any institution.

The most striking feature is the codification of farmers rights.15 That a farmer can be a breeder15 is
as obvious as it is superfluous. That a farmers variety is capable also of registration16 is to require a
national effort to go about identifying them in the first place. The scheme of the Act is that it
expects a community based cooperative type movement in tandem with government and non-profit
bodies to participate in this endeavour. A Gene Fund corpus would support1 7 tribals and
indigenous peoples who tend to traditional varieties and wild races. The real cut to seed companies
is the statutory18 preservation of a farmers right to continue to deal in (save, use, sow, resow,

10Agreement on Trade Related Aspects of Intellectual Property Rights, 1994

11The International Treaty on Plant Genetic Resources For Food and Agriculture (FAO)
12Namibia is cited
13Section 2 (k)
14Section 2 (l)
15Section 39
16Section 39 (1) (ii)
exchange, share or sell) material produced on his farm (so long as it is not branded) of a variety
notwithstanding that it may become protected. The rationale must be that farmers lack information
and are liable to be exploited by the market in seeds. But such a stringent undercutting of the plant-
breeders rights is likely also to stunt the growth of the market itself. In the name of over
benevolence towards farmers, it is their own market that suffers. The attempt is against privatisation
and corporatisation of agriculture.

The Breeder as Discoverer?

The non- alphabetical organisation of the definitions in the UPOV Convention17 is indicative of its
objects and concerns. The definition of a breeder18 and the next one of breeders rights19 is
followed by the definition in sequence by that of variety.

Since it is the breeders exclusive rights in the plant variety bred by it that are enshrined as
protected in the UPOV Convention, the definition of who is or is not a breeder in respect of a
correspondingly denominated plant-variety, is a sensitive one. The definition of breeder in the
UPOV Convention is basically as the person who bred, or discovered and developed a variety. It is
the notion of a breeder as a discoverer and developer that has been clarified by the UPOV Council
in a Position Paper adopted by it in 199220 -

...Breeding in its strict sense connotes a process involving sexual reproduction as a source of
variability but in practical usage the activity of plant breeding is much wider and includes, in
particular, selection within pre-existing sources of variation...It is also clear that, when the text of
the UPOV Convention was adopted in 1961, it established a system that was intended to provide
protection for the fruits of all forms of plant improvement, including selections made within natural,
that is to say, pre-existing variation. Discoveries accordingly, became eligible for protection as
selections made within natural sources of variation...It should be noted that the 1978 Act contain no
definition of breeder or breeding so that these words have their natural meaning and include all
classes of activity...There is equally no express reference to the protection of discoveries. The
protection of discoveries is inferred from a natural source of initial variation, for example, a
mutation...The UPOV Convention differs from the patent system in its treatment of discoveries.

17The 1991 Act

18Article 1 (iv)
19Article 1 (v)
20supra at 2
Discoveries are not patentable. However, the discovery of mutations or variants in a population of
cultivated plants is indeed potentially a source of new improved varieties. The UPOV Convention
would have failed in its mission if it had excluded such varieties from protection and withheld from
discoverers the incentive to preserve and propagate useful discoveries for the benefit of the world at
large...It has been suggested that the criterion of development is only satisfied if the discovered
plant itself is subsequently changed in some way and that the propagation of the plant unchanged
would not constitute development. This approach would require the discovered plant to be
propagated sexually and for a selection to be made in the progeny in order to demonstrate
development. It is suggested that this approach cannot be correct since selection in the progeny
would constitute breeding. This approach would also deny protection to most mutations, since the
mutation is usually propagated unchanged...

The UPOV Council takes decisions by simple majority21 and countries, big or small, have the same
voting power.22 If and when India accedes to the UPOV Convention it will accede to the
interpretation of it as espoused in this Position Paper. And this position can be cannot be changed
until those in favour of a change can muster the requisite majority. Developing and Least developed
countries becoming members who may seek to do so will first have to adhere to this position and
then wait till enough of them joined up. This assumes, of course, that these new adherents will
continue to hold such views on the subject.

Is the Variety New or is it of Common Knowledge?

The UPOV Position Paper adopted by the UPOV Council23 deals seamlessly with the related
concept of which variety would be entitled to registration and protection in favour a breeder and
when a breeder would be denied on the ground that the variety claimed by him is within common
knowledge already. It sets out as under-

Article 6 (1) (a)24 : Whatever may be the origin, artificial or natural, of the initial variation from
which it has resulted, the variety must be clearly distinguishable by one or more important
characteristics from any other variety whose existence is a matter of common knowledge at the time
when protection is applied for. Common knowledge may be established by reference to various

21Article 26 (7)
22Article 26 (6)
23supra, at 2
24of the 1978 Act
factors such as: cultivation or marketing already in progress, entry in an official register of varieties
already made or in the course of being made, inclusion in a reference collection, or precise
description in a publication. The characteristics which permit a variety to be defined and
distinguished must be capable of precise recognition and description. ...The language of the
Convention establishes that there should have been a source of variability, which may have been
created by the breeder or be pre-existing and that the breeders selection must be clearly
distinguishable from any other commonly known variety. ...It is important to emphasise the
language used at the beginning of Article 6 (1)...The language implies a need for variation and for
selection within that variation in order that the resulting plant material be the basis of a protectable
plant variety...The relevant provisions of the 1991 Act therefore read as follows: Article 7 The
variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose
existence is a matter of common knowledge at the time of the filing of the application. ...A
fundamental feature of the UPOV Convention, now embodied in Article 12 of the 1991 Act, is that
protection shall only be granted after an examination to determine if the variety is clearly
distinguishable from all other varieties that are a matter of common knowledge at the date of filing
of the application....Article 6 (1) (a) of the 1978 Act did not define common knowledge but
provided a non-exhaustive list of examples of how a variety could become a matter of common
knowledge...the 1991 Act leaves common knowledge undefined and specifies only certain acts
(which are not likely to be known to the general public) shall be deemed to render varieties a matter
of common knowledge. Common knowledge has its natural meaning. It is a worldwide test. A
variety that is a candidate for protection must be clearly distinguishable from any variety whose
existence is a matter of common knowledge at the date of the application for protection anywhere in
the world....In applying the notion of common knowledge in cases of dispute and particularly
applications for a declaration of nullity, UPOV members are recommended to be prepared to take
into account not only knowledge that exists in a documented form, but also the knowledge of
relevant communities around the world provided that this knowledge can be credibly substantiated
so a to satisfy the standards of proof of the civil law courts....land races which are capable of
satisfying the definition of variety and which can in consequence be defined and propagated
unchanged should be regarded as varieties of common knowledge for distinctness purposes...

The Outlook
Earlier with China signing up and now with India exploring to do so, the two most populous nations
of the world are slated to make the UPOV a truly global institution. Indias 2001 legislation will get
substantially rewritten as India proceeds to accede to the UPOV.

But what about the lofty ideals of farmers rights enshrined therein? Although India was ahead of
most third world countries in actually framing a legislation of this kind, the outlook of a UPOV
world has consequences for all of the third world. Is the expansive application of the twin notions of
breeder and new variety under the UPOV going to lead to a rush to the bio-diverse germ
plasm rich tropical south viz. places like India, in an attempt by western companies to discover
genetic material that is known to the indigenous people, tribals and poor isolated communities
living there, develop it in the sense of merely selecting it in the progeny and then file claims for
its registration in their own favour, quite possibly in their own home jurisdictions that will treat
them with a kindly eye overlooking the common knowledge of the people where the material is
sourced from viz. discovered? A rude and insensitive global economy as also a far-off and
insensitive foreign jurisdiction may treat such people themselves as capable of being discovered.
To be sure, the common knowledge of such peoples will not command much of a premium when
it is of such little use to the rest of the world.

Irrespective of whether such fears and apprehensions have any basis or not, the fact remains that the
real and material imbalance is between the state of corporatisation of the economy of the first world
versus that of the third world. In theory, it should be possible for domestic companies of such
economies to reap the same harvest. Actually the UPOV itself permits a phased transition to the
full rigor of its regime to redress such alarmist concerns. A new member such as India would have a
grace period of 10 years from the date of accession before it recognized any more than the
minimum fifteen initially recognized plant- species.25 In such a period, third world economies will
typically try to create a national publicly funded authority with the mandate of identifying and
recording all discoveries that are potentially to be made within their territories. What they will,
more often than not, fail to do is supplement this with free market policy measures to create a strong
and dynamic domestic seed industry in private hands outside of state control. Nor will these
societies, typically, attempt timely to create the sophisticated regulatory structures required in this
case the national authorities that will decide applications for registration of new varieties that will
be filed by breeders. Regulatory authorities of the third world are often described as atrocious.
These may possibly look at misconceived applications with an even kindlier eye. The market forces

25Article 3 (2)
at work are ranged against indigenous peoples and aboriginals having a monopoly over the genetic
resources of where they live because the socio-cultural-economics of their societies does not permit
them to exploit these as effectively as the more scientifically and technologically advanced and
resourceful companies of the societies they face which are increasingly both global and local
everywhere.

Whereas indigenous peoples are perceived as being under threat of being deprived of control over
the plant-genetic material to be found in their places of subsistence and livelihood, this is because of
the inherent incongruity of their situation with UPOVs mission statement which has its own
unassailable merit- The objective of UPOV is to provide and promote an effective system of plant
variety protection, with the aim of encouraging the development of new varieties of plants, for the
benefit of society...The UPOV protection system seeks to protect varieties resulting from the
various forms of plant improvement activity, which have been of much benefit to society,
particularly over the last century, as an understanding of plant genetics has grown.26

As the UPOV expands, there is great need for other global institutions also to expand the reach and
depth of the care they can reach to the many people in this world who are going to be
disenfranchised as the world shrinks.

26supra, at 2
 4.UPOV AND RIGHTS OF FARMERS- AN INDIAN
PERSPECTIVE

The Agreement on TRIPs requires WTO Members to provide either patent or introduce an
effective sui generis system for the protection of plant varieties. This led to the formation of the
International Union for the Protection of New Varieties of Plants (UPOV) in 1961, which then
represented the consensus among five European countries on how to introduce Plant Breeders
Rights (PBRs).

The second amendment of UPOV Convention in 1991 introduced far reaching changes to the
structure of protection, significantly strengthening PBRs. Lately, a lot of pressure is being put on
developing countries to adopt UPOV for example through bilateral treaties.27 Furthermore, the
WTO is lending support to the concerted campaign of this Convention, the US government and the
$23-billion commercial seed industry to force plant breeders' rights legislation as the only option for
developing countries.28 They are being told that patents and other forms of IPR are the key to
attracting investment in biotechnology, which will uplift their economies and improve food security.
These claims are utterly false and the only motivation behind the global IPR campaign is to increase
profits for transnational corporations housed in the developed nations. The Convention has the

27http://www.nfu.ca/sites/www.nfu.ca/files/Farmers%20Privilege%20and%20UPOV%2091.pdf

28http://www.apbrebes.org/content/upov-impacts-farmers-seed-systems
capability of sharply accelerating genetic erosion in developing nations in particular, India and
undermining the enormous wealth of traditional knowledge in the bio-diverse country.

THE PLANT VARIETY PROTECTION AND FARMERS' RIGHTS ACT 2002

The response of some of the developing countries to the developments in the UPOV Convention
has been the adoption of alternative sui generis options for the protection of plant varieties. Gene
Campaign, a research and advocacy organization working on the issues of bio-resources,
intellectual property rights, indigenous knowledge, farmers rights and community rights led by Dr.
Suman Sahai advocated a sui generis legislation for India. The campaign succeeded when in August
2001, the Government formulated The Plant Variety Protection and Farmers' Rights Act 2002
under the sui generis option which was compliant with the WTO in respect of plant breeders rights
and gave protection to the rights of farmers beyond their right to save seeds and replant.29

The Act was the first in the legislative history of India and perhaps the world to recognize the rights
of the farmers as conservators, breeders and cultivators. The proposed Plant Varieties Protection
Authority (PVPA), under the Act, is obliged to register new strains of plant varieties developed by
the farmers alongside the professional breeders. The PVPA is also required to ensure equitable
benefit sharing with the farmers. This is in conformity with the Convention on Biological Diversity
(CBD) which India has adopted and ratified. The preamble and Article 8(j) of the CBD requires the
member nations to encourage the equitable sharing of benefits arising from the use of traditional
knowledge, innovations and practices relevant to the conservation of biological diversity and the
sustainable use of its components.

The Article 8(j) further seems to affirm that the holders (subject to national legislation) have
rights over their knowledge, innovations and practices, whether or not they are capable of being
protected by IPRs. If they are not capable of being protected by the existing IPR system, there is
still an obligation for governments to safeguard these entitlements either through a new IPR law or
by other legal or policy measures. This includes the contribution of the farming community to the
critical foundational knowledge of agricultural biodiversity that led to development of new plant
varieties.

29http://www.ip-watch.org/2015/04/02/interrelations-between-plant-treaty-upov-wipo-farmers-rights-do-they-equate/
Furthermore, under this Act the farmer retains his traditional rights to sell seed locally of any
variety he grows, even of a variety on which a breeders' right has been granted. The Act also
affords protection to farmers against bad seeds provided by breeders and the right to compensation.
It also protected the same from the Terminator Technology, which is banned by the Indian law.
Terminator is a sterile seed technology, which the MNC Syngenta owns, which would make the
farmer dependent on the corporate breeder for seeds every season.30

The President of India gave his assent to the Protection of Plant Varieties and Farmers Rights Bill,
2001. The Bill, passed during the monsoon session of the parliament ending August 31, 2001, was
notified in the Gazette of India as Act number 53 of 2001.31 However, before its enforcement, the
Government of India decided to join UPOV in the year 2002, rejecting the national legislation. This
decision of the Indian Government has generated a lot of debate as regards its grave effects on the
rights of the farming community. Several leading international civil society groups have urged the
Indian government to take the lead for developing countries by resisting pressure to join UPOV.

UPOV NOT SUITED FOR INDIA

The UPOV model does not address the needs of India and other developing countries as it embodies
the philosophy of the industrialized nations where the primary goal is to protect the interests of
powerful seed companies who are the breeders. It does not recognise the notion of prior knowledge
of the farming community and consequently takes no notice of the farmers' right to the benefits
flowing out of such knowledge.32

The move to join UPOV is not suited for an agrarian economy like India where seeds are essentially
produced by farmers and farmers- cooperative and not by private corporations.

UPOV is anti-farmer as, among other disadvantages, it restricts his right to save seeds to replant,

a practice followed by 75 percent of the Indian farming community. Although the first

30http://www.apbrebes.org/content/upov-impacts-farmers-seed-systems

31 A copy of the Act can be found at http://agricoop.nic.in/PPV&FR%20Act,%202001.pdf

32http://www.ip-watch.org/2015/04/02/interrelations-between-plant-treaty-upov-wipo-farmers-rights-do-they-equate/
 amendment in 1978 put limited restrictions on protected seed, the 1991 amendment brought in
very strong protection as regards the same. In the latter amendment, the exemption for farmers to
save seed has become provisional.
It does not recognise or support communities' inherent rights to biodiversity and their space to

innovate.

UPOV aims at plant patents and now also permits dual protection of varieties. This effectively
means that in the UPOV system, the same variety can be protected by Plant Breeders Right and
patents.

Contrary to the CBD, the UPOV model does not provide for benefit sharing with the farmers.
So they end up paying royalties for their own germplasm that has been tampered with and
repackaged by the Trans National Corporations.

The costs of testing, approval and acquiring an UPOV authorized Breeders Right certificate

could be extremely expensive which shall effectively preclude the participation of small
companies, farmers co-operatives or farmer/breeders, but for the largest seed companies.

UPOV model has the potential to aggravate the erosion of biodiversity which can prove
extremely dangerous, especially in poor countries. Chemicals or genetic engineering will be
used to try to compensate for crop vulnerability which farmers cannot afford. Uniformity leads
to harvest loss and further food insecurity.

Contrary to the developed nations, research is conducted in India by public institutions like
various agricultural organizations. The control of plant varieties in the hands of big seed
companies and privatization of genetic resources can affect research negatively. Additionally,
UPOV rules on `essential derivation' will act as a disincentive to researchers since TNCs can
bully researchers to submit to accusations of plagiarism.

5.CONCLUSION AND RECOMMENDATIONS

In order to provide a meaningful study on the impact of PVP it is important to understand the
purpose of such a system of intellectual property rights. UPOV clarifies that its mission is To
provide and promote an effective system of plant variety protection, with the aim of encouraging
the development of new varieties of plants, for the benefit of society. Thus, the UPOV system of
PVP is designed to encourage innovation in the field of plant breeding. In that respect, the UPOV
Convention recognizes that it is important to encourage breeding in all plant genera and species and
not to pre-determine for which genera and species breeding would, or could, be beneficial. As
explained in Section I "Introduction", the key to an effective PVP system is to provide incentives to
breeders to develop new varieties and to avoid the absence of suitable protection being a barrier to
the availability of those varieties. It is apparent that the impact of PVP will vary country-by-country
and crop-by-crop. Accordingly, although substantial benefits have been seen across the range of
UPOV members and, in particular, in each of the countries in this study, the results and conclusions
of the study need to be seen in the context of the individual situations.

Also, the researcher would like to reiterate that in the UPOV system, rights are merely granted to the
breeders and not to the farmers. Hence, it is not suited for a developing nation like India where a
sizeable number of population bank directly on the agricultural sector for their livelihood. Unlike
the west, India does not have big seed companies in essential seed sectors and our major seed
producers are farmers. The government must essentially concentrate on protecting the interests of
the farmers in his role as producer as well as consumer of seed.

India needs to take a firm stand and reject UPOV acting as a role model for other developing
nations. Indias joining UPOV could have a domino effect on nine other Asian developing
countries that are currently consulting UPOV on their national legislations. The developing
countries must evolve a sui generis legislation which takes a balanced approach between giving
rights to farmers, formal plant breeders and traditional communities on their genetic resources. In
this respect the gene campaign had proposed the Convention of Farmers and Breeders (CoFaB),
which has been discussed in various national and international forums. The UNDP Human
Development Report (HDR) 1999 has commended Gene Campaigns CoFaB as an alternative to
UPOV. It described CoFaB as a strong and coordinated international proposal which offers
developing countries an alternative to following European legislation by focusing legislation on
needs to protect farmers rights to save and reuse seed and to fulfill the food and nutritional security
goals of their people.
 BILIOGRAPHY

(1) P. A. C. E. Van De Kooij,Introduction To The Ec Regulation On Plant Variety Protection

(2) http://www.upov.int/overview/en/
(2) http://www.upov.int/export/sites/upov/en/about/pdf/pub437.pdf
(3) http://www.apbrebes.org/content/upov-impacts-farmers-seed-systems
(4) http://www.upov.int/export/sites/upov/en/about/pdf/pub437.pdf
(5) http://www.upov.int/export/sites/upov/en/about/pdf/pub437.pdf